CHAPTER LXV. CONTRABAND OF WAR. ARTICLE 852. Kinds of contraband. 853. Contraband persons. 854. Contraband ships. 855. Contingent destination presumed to be hostile. 857. Fraud and its effect. 858. Destination of ship conclusive as to goods. 859. What goods are contraband. 860. Goods on board ship exempt from capture. 861. Contraband documents. 862. Contents of mails not contraband. 863. Detention and confiscation of contraband. By the existing rules of war, the question of contraband is treated solely as a question between neutrals and belligerents. But if commerce not involving contraband, nor interdicted traffic between lines of military occupation, be made generally free, both for passive enemies and neutrals, as proposed by this Book, the doctrine of contraband becomes important as a restriction on intercourse between belligerents. It is, therefore, treated here among the rules applicable to belligerents. Division V., concerning NEUTRALS, contains some further reference to the subject. The definitions of contraband do not usually include property which is liable to confiscation merely because it is public property of the hostile nation, without reference to its being of a nature to serve the purposes of the war. This usage is recognized in the Articles of this Book. All movable property which belongs to the hostile nation, even though it be not within the definition of contraband, is lawful prize, by Articles 836 and 843. Kinds of contraband. 852. The term "contraband of war," as used in this Code, is applied to, 1. Persons; 2. Ships; 3. Goods; and, 4. Documents. Lushington's Naval Prize Law, p. 34, § 165. Contraband persons. 853. Persons are contraband of war, when impressed with the military character' of the hostile nation, or when on their way for a military purpose in aid of such nation, but not otherwise. 1 See Article 736. 2 Dominican Feb. 8,1867, Art. XV., 15 U. S. Stat. at L., (Tr.,) 167. XVI., 12 Id., 1003. XIV., 12 Id., 1143, May 13, 1858, Venezuela, Aug. 27, 1860, recognizes the principle that persons on board a neutral ship, although they may be enemies of both or either party, are not to be taken out of that ship, unless they are officers or soldiers, and in the actual service of the enemy. By the treaty between France and Peru, March 9, 1861, Art. XX., § 1, (8 De Clercq, 200,) it is provided that persons on a neutral ship are free of capture, unless actually in the service of the enemy, or destined to enter it. In the absence of treaty stipulations, the prohibition has been extended to pretended ministers of a usurping power, not recognized as legal by the captor or the neutral. The principle applies, says Mr. Seward, (Letter in the Trent Case, see Bernard's Neutrality of Great Britain during the American Civil War, p. 205,) to civil magistrates sent out on public service and at public expense; and to the bearers and carriers who undertake to carry contraband dispatches. Lushington, (Naval Prize Law, p. 39, § 190,) states, that under the present English rule the following persons on board a neutral ship, which has a hostile destination, are contraband : 1. Soldiers or sailors in the service of the enemy, (Friendship, 6 C. Robinson's Rep., 420;) and, 2. Officers, whether military or civil, sent out on the public service of the enemy at the public expense of the enemy. The number of such officers is immaterial, (Orozembo, 6 C. Robinson's Rep., 430.) And, (Id., p. 40, § 191,) states, that ambassadors from the enemy to a neutral State are not contraband, and their presence on board a neutral vessel is no cause for the detention of the vessel. Contraband ships. 854. Except when exempted under articles 786 and 834, ships are contraband of war, if used or destined for use by the hostile nation in war, and not otherwise. Contingent destination presumed to be hostile. 855. When a ship's destination is expressed in her papers to be dependent upon contingencies, it is presumed to be hostile, if any one of the ports which, under any of the contingencies she may be intended to touch at or go to, be hostile; but this presumption may be repelled by clear proof that the master has definitively abandoned a hostile destination, and is pursuing a neutral one. Lushington's Naval Prize Law, p. 37, § 177. In The Delta, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 133, and The Cheshire, Id., p. 151, it was held that, unless a contingent destination to a blockaded port appear on the ship's papers, it will be presumed that there was a dishonest purpose in approaching such port. Neutral and hostile destination. 856. A ship's destination is considered neutral, if both the port to which she is bound and every intermediate port at which she is to call in the course of her voyage be neutral; it is considered hostile, if either the port to which she is bound, or any intermediate port at which she is to call in the course of her voyage be hostile; or if in any part of her voyage she is to go to the enemy's fleet at sea. Lushington's Naval Prize Law, p. 37, §§ 176, 177. One of the chief evidences of fraud is a vessel's being out of the regular course leading to the port of destination shown on her papers. The Joseph H. Toone, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 223. Fraud and its effect. 857. The use of false or simulated papers, or false colors, on the part of the master or owner of a ship, for the purpose of deceiving a belligerent, is equivalent to a hostile destination within the last article. The belligerent has a right to require frank and bona fide conduct on the part of neutrals, in the course of their commerce in times of war; and if the latter make use of fraud and false papers to elude the just rights of the belligerents, and to cloak their own illegal purposes, there is no injustice in applying to them the penalty of confiscation. Car rington v. Merchants' Ins. Co., 8 Peters' U. S. Supr. Ct. Rep., 495. The Louisa Agnes, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 107. The spoliation of papers, not explained, in connection with the fact that the prize is enemy's property, (The Zavella, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 173), or that she is seized under circumstances which place it in her power to violate a blockade, supplies legal cause for condemnation and forfeiture; The Mersey, Id., p. 187; The Ella Warley, Id., 288. And see The Stettin, Id., 272; The Maria, Id., 283; The Ella Warley, Id., 648; The Albert, Id., 280. But it has been held that neither the carrying of simulated papers, (Hobbs v. Henning, 17 Common Bench Rep., N. S., 791,) nor the spoliation of papers is deemed per se a ground for condemning a vessel or cargo, though a strong presumption of fraudulent purposes in those having charge of her, which will effect a condemnation if not satisfactorily accounted for. The Mersey, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 187. Destination of ship conclusive as to goods. 858. The destination of the ship is conclusive as to the destination of the goods on board. If the destination of the vessel be hostile, then the destination of the goods on board should be considered hostile also, though it may appear from the papers or otherwise that the goods themselves are not intended for the hostile port, but are intended either to be forwarded beyond it, to an ulterior neutral destination, or to be deposited at an intermediate neutral port. On the other hand, if the destination of the vessel be neutral, then the destination of the goods on board should be considered neutral, though it may appear from the papers or otherwise that the goods themselves have an ulterior hostile destination, to be attained by transshipment, overland conveyance or otherwise. Lushington's Naval Prize Law, p. 37, § 178. To render goods contraband of war liable to seizure they must be taken in delicto: that is, in the actual prosecution of a voyage to an enemy's port. Hobbs v. Henning, 17 Common Bench Rep., N. S., 791; 34 Law Journal, C. P., 117. Mr. Seward, however, in his letter in the Trent case, assumes the British law to be that the circumstance that the ship was proceeding from a neutral port to a neutral port does not modify the right of the belligerent captor. The rule above stated is preferred as being in the interest of neutrals, and is generally supported by the English decisions, though in direct conflict with the American authorities. In the case of the Bermuda, 3 Wallace's U. S. Supr. Ct. Rep., 514, it was held, that voyages from neutral ports intended for belligerent, are not protected by an intention of touching at an intermediate neutral port. Contraband is always subject to seizure, when being conveyed to a belligerent destination, whether the voyage be direct or indirect. What goods are contraband. 859. Private property of any person whomsoever, and public property of a neutral nation, are contraband of war when consisting of articles manufactured for and primarily used for military purposes, in time of war ;1 and actually destined for the use of the hostile nation in war; but not otherwise. 1 1 This rule, the modern sanctions of which are stated below, will exclude from the doctrine of contraband those classes of goods which cause the most embarrassing questions and most frequently threaten the peace of neutrals. In the absence of treaties, which now, however, are numerous and important, as will appear below, the classification of goods as contraband and not contraband, which is best supported by American and English decisions, says Chief Justice CHASE, in the case of the Peterhoff, 5 Wallace's U. S. Supr. Ct. Rep., 58, "may be said to divide all merchandise into three classes. Of these the first consists of articles manufactured, and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes." Merchandise of the first class destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege." Artillery, harness, men's army bluchers, artillery boots, government regulation gray blankets, are of the first class. Id. Contraband is liable to capture when destined to the hostile country or to the actual military or naval use of the enemy, (according to the above rule,) whether a violation of blockade be intended or not. Id. Dana reviews the leading authorities as follows: "The principal point in dispute is as to articles admitted to be of ambiguous or uncertain use, when in the enemy's country and in time of war." "One class of writers contends for an absolute rule as to all articles of such descriptions; so that if upon the application of the general test, they are left ancipitis usus, they must be free, and no further inquiry can be made for the purpose of ascertaining the probable use in the particular case. Another class of writers contends, that as to such articles, |