66 aforesaid (that is, from London to Matamoras), laden with "contraband. The second is, that the said ship with the "said cargo was not truly destined to Matamoras, a neutral port, and for the purpose of trade and commerce within "the authority and intendment of Public Law, but was "destined for some other port or place, and in aid and for "the use of the enemy, and in violation of the Law of "Nations; and that the ship's papers were simulated and "false. "If the Judge meant to find that the ship was not bound "to Matamoras, but, on the contrary, to a port of the "enemy, the finding would have been so expressed. But, "if he meant to find that she was bound to Matamoras, not "for the purpose of commerce with the inhabitants thereof, "but for the purpose of such a sale or transfer there as that "the Confederates should get the use of the cargo, all the "words of the judgment have their usual meaning and "effect. We have no jurisdiction to inquire into, nor are 66 we at all considering the validity of the legal grounds of "the judgment: our task is to ascertain what matter of "fact the Judge found to exist. He may have considered "that trading with the Confederates was not within the authority and intendment of public law, and was in vio"lation of the Law of Nations; and that a voyage to Mata 66 66 moras, in order that the cargo should be transferred from "thence to some port or place for the use, of the Confederates, "was a destination of the cargo for such a port or place, "and made it liable to confiscation; and that the papers "were simulated and false, because they represented Mata"moras as the final destination, and concealed a purpose of " ulterior destination. 66 By this examination of the judgment set out in the "plea, we are led to the conclusion that the learned Judge "did not intend to find, as a matter of fact, either that the "ship had not sailed on a voyage to Matamoras, or that, "after having so sailed, she had deviated from that voyage. But, on the contrary, he condemned her as lawful prize "because she was in prosecution of that voyage with an " ulterior destination, either for the cargo, or the ship, or both, as above explained. 66 66 "The judgment, therefore, does not sustain the inferences "of fact which the defendant seeks to establish thereby; nor does it sustain his claim of right to prevent the plaintiff from showing the truth in respect of this fact: " and the plea is therefore bad." 66 CCXXXVI. The most ardent and partial supporters of neutral rights and privileges have admitted that it is not competent to a Neutral to trade with Contraband goods to a Belligerent. The controversy has in this case arisen chiefly upon the following points, viz. :— I. What is Contraband? II. What is the penalty attaching to the Neutral for carrying it to the enemy? These questions (r) require a full discussion under the following heads :— (r) One of the earliest legislative prohibitions on the subject of Contraband is probably of the Emperor Marcian to his subjects "Nemo alienigenis barbaris cujuscunque gentis ad hanc urbem sacratissimam, sub legationis specie vel sub quocunque alio colore venientibus, aut in diversis aliis civitatibus vel locis, loricas, scuta et arcus, sagittas et spathas et gladios, vel alterius cujuscunque generis arma audeat venumdare: nulla prorsus iisdem tela, nihil penitus ferri vel facti jam vel adhuc infecti, ab aliquo distrahatur. Perniciosum namque Romano imperio et proditioni proximum est, barbaros, quos indigere convenit, telis eos ut validiores reddantur instruere," &c.— Cod. iv. t. xli. 2. The Canon Law forbade the exportation of arms to the Infidel—a prohibition which, in 1855, it would have been rather awkward to enforce :-" Ita quorundam animos occupavit sæva cupiditas, ut, qui gloriantur nomine Christiano, Saracenis arma, ferrum, et ligamina deferant galearum," &c.; all such excommunicandi.—Decret. 1. v. t. vi. c. 6. See also a similar prohibition and punishment, Extrav. Comm. 1. v. t. ii. As to the International authority of the Pope, vide ante, vol. ii. pp. 367-9. "Contrabannum : merces banno interdicta ; Italis contrabbando ; Gall. 1. The carrying of unquestionable Munitions of War, military or naval, in their perfect and completed state (s). 2. The permitting the sale of such articles to a Belligerent within the territory of the Neutral. 3. The carrying of material of a kind which does not certainly indicate whether their destination be for belligerent or ordinary commercial purposes: articles ancipitis vel promiscui usus, especially of commeatus, provisions and money. 4. The doctrine of Pre-emption. 5. The carrying of military persons in the employ of a Belligerent, or being in any way engaged in his transport service. 6. The carrying of the despatches of a Belligerent. 7. The penalty of carrying Contraband. 8. The principal Treaties upon the subject of Contraband. CCXXXVII. First. With respect to the carrying of unquestionable munitions, military or naval, of war, in their perfect and complete state. The general International Law upon this subject is founded upon the clearest principles of justice and reason. 66 "That person" (said the great Athenian orator), “ whoever he be, who prepares and provides the means of my "destruction, he makes war upon me, though he have never "cast a javelin or drawn a bow against me" (t). "If" (said Lord Grenville) "I have wrested my enemy's "sword from his hands, the bystander who furnishes him contrebande. Charta anno 1445, tom. iii. Cod. Ital. Diplom. col. 1756: 'Item quod non permittant committentes Contrabanna, dicti salis vel aliarum rerum. in dictis locis tutè et securè permanere.'”—Du Cange, Gloss. (ed. Carpenterius), Parisiis, 1842. (s) As to ambassadors of Belligerents on board neutral vessels, see vol. ii. pp. 160-7, et vide post. (t) ὁ γάρ, οἷς ἂν ἐγὼ ληφθείην, ταῦτα πράττων καὶ κατασκευαζό μενος, οὗτος ἐμοὶ πολεμε, κάν μήπω βάλλῃ, μηδὲ τοξεύη.”Demosth. Phil. Γ. " with a fresh weapon can have no pretence to be considered as a Neutral in the contest " (u). 66 No Armed Neutrality (r) has as yet denied this position : indeed, upon this very ground, they have hitherto excepted in their Conventions those warlike stores, which they have thought proper to designate as Contraband, from that general freedom which they otherwise maintain to be the right of neutral commerce. No Hübner, no professed advocate of neutral claims, has as yet maintained a contrary proposition, however logically inevitable such a conclusion might appear, upon investigation, to be from the premisses usually adduced in favour of the maxim that Free Ships make Free Goods. But with regard to furnishing arms and munitions of war, the opinion of Grotius meets with no gainsayers; "Verum "est dictum" (he says) ".... in hostium esse partibus qui "ad bellum necessaria hosti administrat " (y). CCXXXVIII. Secondly. As to the permitting the sale of such munitions to a Belligerent within the territory of the Neutral. If the fountains of International justice have been correctly pointed out in a former volume of this work (z), and (u) Letters of Sulpicius, p. 26. (x) "Il est considéré, de l'aveu de toutes les nations de l'Europe, comme contraire à la neutralité, de permettre à nos sujets de transporter vers les ports de l'une ou des deux puissances belligérantes de certaines marchandises qu'on désigne sous le nom de contrebande de guerre."-De Martens, Précis du Droit des Gens, 1. viii. c. vii. s. 318. 'Man hat ihnen dieselbe (i. e. Kriegscontrebande) an und für sich niemals contestirt; nur gegen eine zu weite Ausdehnung ist gekämpft worden; was man aber selbst als Befügniss ausübt, kann man dem andern Gleichstehenden ebenfalls nicht verweigern. Wenn dennoch einzelne Publicisten ein internationales gemeinsames Recht der Kriegscontrebande geleugnet, oder es nur von ausdrücklichen Vertragsbewilligungen abhängig erklärt haben, so muss dieses als der historischen Wahrheit widersprechend verworfen werden."- Heffters, § 158. (y) L. iii. c. 1. v. 1. it be the true character of a Neutral to abstain from every act which may better or worsen the condition of a Belligerent (a), the unlawfulness of any such sale is a necessary conclusion from these premisses. For what does it matter, where the Neutral supplies one Belligerent with the means of attacking another? How does the question of locality, according to the principles of eternal justice and the reason of the thing, affect the advantage to one Belligerent or the injury to the other accruing from this act of the alleged Neutral? Is the cannon or the sword, or the recruit who is to use them (b), the less dangerous to the Belligerent because they were purchased, or he was enlisted, within the limits of neutral territory? Surely not. Surely the locus in quo is wholly beside the mark, except, indeed, that the actual conveyance of the weapon or the soldier may evince a bitterer and more decided partiality, a more unquestionable and active participation in the war. CCXXXIX. One of the principal champions of the doctrine which we are combating is Lampredi (c); but he reasons from the very erroneous assumption, that the transport of Contraband is only forbidden by Treaties, and the usage derived from them, and that as Treaties are silent with respect to the sale of Contraband at home, such sale is (a) Vide ante, p. 226. (b) Thus Bynkershoek argues -"Quod juris est in instrumentis bellicis, idem esse puto in militibus apud amicum populum comparandis, nisi in pace convenerit ne vel uni vel alteri id facere licuerit."-L. i. c. 22. Q. J. P. (c) Pt. i. s. 6. Martens doubtfully follows Lampredi's authority. See note a to s. 318 of 1. viii. c. vii. Azuni (Droit Marit. t. ii. p. 88) also follows in Lampredi's wake. Heineccius speaks doubtfully. After enumerating articles considered as Contraband in various Treaties, he says:-"Quamvis enim alter populus forsan suo jure utatur dum talia hosti alterius subministrat, nec minus tamen jure suo utitur, qui se adversus illos defendit, qui hostem reddere potentiorem non dubitant."-De Navibus ob Vect. Merc. vetit. cap. i. s. xiv. |