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services, they may be intercepted and treated as contraband of war, and, peradventure, hired into the captor's hosts. When they set forth already commissioned and enlisted, they are leniently dealt with as prisoners of war, and not unfrequently tempted to earn their guerdon in the captor's cause; at least they are free, as Sir Dugald Dalgetty, to do so, when the term of their original service has expired.
The subjects of a neutral state carry contraband and violate blockades at their peril; they are not under a duty to abstain froin the one or to respect the other.
SECTION 4. CONTRABAND. 1442. Although a ship which sails forth armed and manned for the service of the enemy is an enemy's ship, the neutral subjects are not by reason of war to be disturbed in their trades and vocations. Except so far as they are restrained by municipal laws, shipbuilders may build vessels of every description, without stint in quality or number; they may build line-of-battle ships by the dozen, iron-clads, and steamers, for whoever will buy them. They may equip them in readiness for battle, in the perfection of machinery and the panoply of war. The builder is exemplarily impare tial. If one belligerent grudge the acquisition to the other, he has only to offer a higher price and be will surely obtain the menacing frigate, or, if she be already sold, a similar or a better vessel. War-ships may be in progress of building for the hostile belligerents in the same yard. The enemies may supply themselves with artillery and rifles from the same assortment and stock.
1443. After the ship is built, wemay inquire into her character and pursuits. She may have been purchased by a neutral; if so, the neutral may put his war-crew on board her, and she may sail to her destined port. She may have been purchased by or for or given to a belligerent; if so, she is the belligerent's vessel, and as such, as soon as she has left the neutral waters, whatever her destination, the adversary may intercept, capture, and condemn her, if he can. She may be unsold, the property of the builder, or she may have been purcbased by neutrals on speculation, to be offered for sale in another market. As soon as she has left the protected region, her character depends on her destination ;-if that be to a neutral port, however near the coasts of a belligerent, to be sold there, although the agents of one belligerent only are waiting to bid for her, she constitutes the unassailable, the unquestionable, even, according to the strictest notions of belligerent rights, the innocent goods and chattels of the owner. If the adverse belligerent want her, unless he can bargain for her on the sea, he must go to the market and offer a tempting price. But when her destination is to the belligerent, there arises a conflict between the neutral and belligerent rights; the neutral is entitled to sell his vessel, and to send her where he thinks it most to his advantage, for sale ; but the belligerent, on the natural right of defence, is entitled to intercept the weapons with which he will otherwise be assailed. The right of self-defence against destruction is a higher right than that of the trader to sell his ship, and when two rights come in conflict, that which is paramount must prevail. The war-ship destined to a belli. gerent port for sale is subject to this right; she is contraband of war.
1444. But this, which is the foundation and, with its in. cidents, the limit of the rights of war in respect of contraband, does not affect the trader with guilt; although the expression guilty is a convenient mode of distinction in speaking of capture and search.
1445. Nor is the sending of an armed ship fully equipped, even to a belligerent port, for sale, an offence against either the American (Santissima Trinidad) or English municipal law. It is merely an impartial commercial speculation, of which, as in many other adventures, the speculator runs the risk. He does not trouble himself with any intention or order, that she should be employed in the service of any ration or petun against say aber; bis intention is to sei be to the best customer, be be one of his ons & any other neutral natin, or of either of the parties to the war; after the purchase is competes, it is indiferent to him whether abe founder or not. Undoubtedly, when he sends her to a beliigerent port, he bopes to sell her there, but be may be disappointed of bis customer, or if she is sold, bis intention is accomp.bed as soon as he has received the price.
1446. The ship which has been sold to a belligerent, whether armed or unarmed, is then to be considered by the ad. versary, whatever her destination, an enemy's ship. The ship of war sent by the neutral owner to an enemy's port for sale is simply contraband of war.
1447. We have now to consider what contraband is, using that expression for contraband of war.
1448. We have already spoken of the armed ship, which is the perfection of contraband, as it contains all essentials of an armament, with one great exception, the military commander and his crew.
1449. As the shipbuilder is at liberty to pursue his vocation to so formidable an extent, it is obvious that the founders, the powder manufacturers, and all the artisans of the machinery and implements of war, may pursue their craft, and that they will pursue it vigorously, when their productions are most in request. As the ships may be built in the neutral dockyards, so the mortars, the cannon, the rockets, the shell, the rifles, the bayonets and the swords, the gunpowder, and all the other materials of destruction, may occupy the quays and fill the warehouses of the neutral ports. The neutral sovereign may behold all these menacing materials on his wharves, and loading on board his merchant ships. He is not bound to interfere with their export; he is not bound to inquire as to their destination. Though he may deem it proper for his own safety, he is not bound to refuse the clearance for belligerent ports. The cruisers of the belligerents are on the sea; he has not protected this
branch of the national commerce; the merchant and the belligerents must settle the conflict between their rights.
1450. But the neutral sovereign has not abandoned the commercial rights of his people to the despotism of those occupied in the war; his ships sail, though not attended by convoy, under the protection of his flag. It is only in respect of contraband of war that they may be searched and arrested, or on their way to break a blockade. Nor may they, on suspicion of bearing contraband, or of being bound to a blockaded port, be insulted or improperly treated or delayed. · 1451. We have, then, to ascertain what is contraband.
This depends upon its quality and its destination or ownership. To possess the character of contraband, it must possess two of those characteristics. It must be of the quality of contraband, and the property of the enemy of him who would capture it; or otherwise, it must be of the quality of contraband, and destined to such enemy.
1452. In some countries, as in Prussia and Austria, the municipal law has prohibited the carriage of contraband by the subjects; of course, contraband according to the acceptation in the country to which the law applies.
1453. It is not unusual, on the outbreak of a war, for the neutral nations not only to warn their subjects of the danger of their enterprises in the carrying of contraband, but also to prohibit the export of specific articles to either of the belligerents. Such practice, when adopted, is as a matter of national policy, and not on account of any obligation imposed by the public law.
1454. The belligerent nations also, on the breaking out of war, generally proclain their views on the subject by ukases, edicts, decrees, or orders of council, in which, in effect, they sometimes command all nations to abstain from conveying to the ports of the enemy any of the articles which they designate contraband; and as surely as they proclaim the iniquity of selling it to the enemy, they purchase it themselves.
1455. Nothing is contraband unless it is property of a belligerent, or destined to a belligerent; we do not say to a belligerent port.
1456. If it be the property of a belligerent, or destined to a belligerent, his adversary may take it, although on board a neutral ship.
1457. We will first inquire as to its quality. Practice affords no guide, even if practice could create the law. If all things which have been treated as contraband were of that character, during war all commerce between neutrals and belligerents must cease.
1458. There are advocates of belligerent rights who assert that the belligerent may intercept every commodity, the deprivation of which would distress the foe, utterly regardless of the rights of neutrals, and as thoughtless of the mischiefs which it may bring upon him who asserts the right.
1459. The neutrals have a right to say, and to maintain the assertion by menace, and if necessary by convoy, by confederacy and proclamation of war, that nothing is or shall be treated as contraband except that which directly assists the belligerent in the conduct of war.
1460. It has often been determined between nations in their treaties what alone shall be considered as contraband, or what shall be excluded from that character. Whatever either party involved in a war is, under treaty, bound to permit, or, in fact, does permit, his adversary to import from one neutral, or from his own ports, he cannot treat as contraband when imported by others; inasmuch as he permits his antagonist to be supplied with such articles, he cannot assert that their exclusion is necessary for his self-defence, or complain of any nation which affords the supply. He cannot confer a monopoly on one of his friends. But two allies in a war are not bound to admit the importation into the country of their adversary of articles really of the quality of contraband, merely because they are not treated by them as such in a treaty to which they are the only parties.