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Where the article is equivocal, the treaty may be reasonably cited against them as expressing their opinion at a happier time. Franciska. Atlanta.
1461. The essential quality of contraband is that it will directly aid the enemy in the conduct of war.
1462. Despatches from the enemy to his officers or others engaged in his service, and between such persons themselves, may obviously constitute most valuable assistance in the war. Such despatches are contraband, and those who carry them knowingly are guilty of violating the belligerent right. Except that the neutral nation is not only entitled to a free intercourse between herself and her own ministers in the belligerent country, but also to protect the correspondence between each belligerent and his ministers resident at her court. Caroline.
1463. The search and detention in respect of despatches is, however, confined to private ships. Public packets convey, in conformity with their duty, such documents as are, according to the general regulations to which they are subject, committed to their charge. The officers and crew of such packets have to govern and navigate the ship, they have no authority to violate the confidence of the documents entrusted in due course to their care ; they consequently are not responsible, nor is their ship responsible, for the contents of the letters and despatches which she may convey. Nor can she be taken by a belligerent for examination before any court; nor can any officer of the belligerent break open and examine the correspondence on board. So any other ship which is bound to receive and convey letters is in effect to that extent a packet, and entitled to the same immunity. But the master or any person on board any such ship, knowingly, in excess of his duty, conveying despatches or military correspondence to the enemy, cannot claim the privileges to which he is entitled while acting within the rules which he is bound to obey.
1464. Cannon, mortars, all firearms, gunpowder, shells, roekets, balls of every deseription, pikes, ances, sworis: 1 fine, all weapons of var: saitpetre and suiphur, the ingre dients of qunpowder, even ietensive armour, is eruirasses. military clothing, military saddles and bridles, sil military equipments are obvionsiy munitions of war, and contraband, except such as are necessary for the proper purposes of the merchant ship.
1465. Imperfect implements of war, and parts of sen implements which may be perfected or put together, are contraband equally with those which are entire. So are materials peculiariy adapted to the construction of ships of war and military machinery, such as the engines and other portions of steam-Tessels, and materials prepared or peerliarly adapted to the constructing or equipping ships of var.
1-466. It would perhaps be more easy to enumerate the articles which have not, than those which have, by prize courts been treated as contraband on account of their fitness for military purposes. We mention some of them, for however improperly they have been so treated, a prize court may so treat them again. They are sail-cloth, masts, anchors, tar and pitch, unless perhaps exempted as being the products of the country exporting them,- an exception inconsistent with a principle to which we have already referred, (1460); materials which serve directly for the building and equipment of vessels, except, perhaps, fir-planks and unwrought iron. It has been said by the merciless advocates of war that provisions are contraband, if it may be reasonably hoped that their exclusion will produce famine, that the hostile nation may be starved! France did not hold paval materials contraband.
1467. In the interrogatories issued by the British govern. ment for the examination of the officers and others on board of captured vessels, in the outbreak of the last Russian war, the articles enumerated as contraband were-guns, mortars, howitzers, balls, shells, rockets, hand-grenades, rifles, muskets, carbines, pistols, fuzees, halberts, spontoons, swords, bayonets, locks for muskets, flints, ramrods, belts, cartridges, cartridge-boxes, pouches, gunpowder, percussion-caps, saltpetre, nitre, camp equipage, military tools, uniforms, soldiers' clothing or accoutrements, or any sort of warlike or naval stores, steam-engines and machinery, and any parts thereof. Except that the word machinery is too indefinite, the list appears to contain only articles which may reasonably be regarded as contraband of war.
1468. Military officers, soldiers, and sailors are obviously of the character of contraband; and their number is immaterial to the detention of the ship in which they sail. Atlanta.
1469. Articles not ordinarily contraband may be such on account of their special purpose. Provisions, clothing, boots, shoes, etc., destined for the special supply of an armament then being fitted out, undoubtedly afford direct assistance in the war, and may be regarded as possessing the character of contraband, particularly if consigned to the belligerent government. But this character depends on proof of the special purpose, the mere fact of the destination of such articles to a port in or near which there is a military arsenal, or where a military expedition is in preparation, will not confer that character upon them. Jonge Margaretha. Charlotte.
1470. Civil officers and subjects of the enemy are not of the quality of contraband, -of course, private neutral persons going to the enemy's country are not so; nor are foreign officers and soldiers of a neutral country, unless going to join the enemy's military force.
1471. Whatever their quality may be, unless the articles are his property, their destination must be to the enemy. to constitute them contraband of war. If consigned to a port or any part of the enemy's country, there is no doubt of the destination. If sent to a hostile armament on the open sea, or in the port of some impotent nation calling itself neutral, or on a coast which has no means of resist
ance, the destination is to the enemy. If consigned to some entrepôt, or place in a country which cannot oppose it, to the agents of the enemy, there waiting to receive it, the destination is hostile.
1472. The real destination (which includes consignment) is the question, and not merely that on the papers; but that on the papers must be accepted, unless tbere is good ground for believing it to be fictitious; and it matters not how near the port of real destination may be to the hostile country, or how likely the articles may be to proceed thence on a hostile destination : during their transit to a neutral port they cannot be interfered with as contraband of war. He who suspects must endeavour to intercept them after they have begun their hostile progress. As the allies on each side of the warfare constitute one common belligerent, the allies on each side are common enemies to the allies on the other, and if munitions of war are destined to any of the allies on the one side, they are contraband as to each of the allies on the other.
1473. A destination from either a neutral port to the belligerents, or from one port to another of the belligerent or his allies, is of course hostile. .
1474. The ship is on her lawful business in carrying her contraband cargo; she is guilty of no offence against her own laws or the belligerent; she is proceeding to the best market to sell her wares. The belligerent has, on the ground of self-defence, the right to intercept her, to take her into his port, and to deprive her of the dangerous cargo. In ano. ther page we shall see how ruthlessly he treats her. But his right is to intercept her in what he calls her criminal voyage ; that voyage ended, she cannot be impeached for her supposed offence; she is entitled to sail to her next destination unsuspected and unassailed.
SECTION 5. PRE-EMPTION AND ANGARIE. 1475. Pre-emption is alleged to be a belligerent right to
appropriate at a price the cargo of a neutral destined to the enemy's port, either when that cargo is of doubtful character, or when the captor wants it for himself or his nation.
1476. It cannot be regarded as a right, but it may be conveniently accepted upon proper terms as a compromise, when the cargo is such as to be likely to prove useful to the enemy for the purposes of war. The terms are sometimes settled by treaty fixing the profit which the captor shall allow, such as ten or more per cent., after allowance for freight, and consideration of all other circumstances. When the terms are not fixed, regard should be had to the probable profit which would have been made in the market of its destination, with sometimes perhaps, in case of justifiable suspicion, some allowance for the danger it has escaped.
1477. The Act 17 Vict. c. 18 (sec. 8), authorizes the Lords of the Admiralty, their officers and agents, without proceeding to condemnation, to purchase for the public service, and directs the customs officers to permit the entry and landing of, naval and victualling stores laden on board the vessels of foreign nations, and intended to be carried to the ports and countries at war with the Queen, whereby the enemy might be supplied with the material to build, fit out, and provision ships of war, in case such vessels should be taken and brought into the ports of Great Britain.
1478. But as to the right of the belligerent to take the neutral's cargo, because he or his nation wants it, because it is necessary for his military forces, because there is a famine in the land ; it is the right of the robber, the pirate, the buccaneer; the right of superior force to satisfy its necessities by any atrocious crime. If he lay his hand on the innocent cargo, let him pay the enhanced price of goods purchased to satisfy such necessities, or that of the market for which they were destined, if they would have sold there at a still higher price. 1479. ANGARIE also is miscalled a belligerent right. It