Cyclopædia of Political Science, Political Economy, and the Political History of the United States
CONTRABAND OF WAR. The prohibition of trade in goods contraband of war is a limitation imposed by international law upon the commerce of neutrals. This commerce, generally speaking, is free, both in the intercourse of neutrals with one another, and in the intercourse of neutrals with belligerents. Still it is free only on condition that it remain neutral, that it does not interfere in the war, and that its nature and object be of a peaceful character. This condition is violated when commerce engages in supplying the wants of war, in which case it assumes the character of assistance to the enemy. It can then no longer claim the rights of neutrality, whose character it has itself denied and lost, and its goods are treated as enemy's goods, as contraband of war. It results herefrom that no special treaties are necessary for the definition of the idea of contraband of war; this idea lies in the nature of the thing and of neutrality itself.
—If the doctrine of contraband of war is one of the most unsettled and most open to controversy in the whole body of international law, this must be ascribed to the fact that the practical application of the general principles applicable to contraband of war is always made by belligerent maritime powers, the strongest of which finds it consonant with its interests to extend the meaning of the word contraband as far as possible, while the weaker has just as much interest to restrict it—In former centuries, each of the belligerent maritime powers was wont to declare, at the beginning of hostilities, what articles it would consider as contraband of war. At the present time such declarations are not made; it is left to the prize courts to decide whether, in a particular case, articles are contraband of war or not. The prize courts are compelled not to go beyond reasonable limits in their decisions in such cases, because the neutral power has the right of making any decision which should be contrary to the laws of nations a casus belli against the power in question.
—This consideration has had such a salutary effect that a dispute respecting the contraband nature of an article has never been followed by war. But, on the other hand, it follows from this condition of things, necessarily, that so long as it continues to exist there is no possibility of determining, in theory, what are and what are not articles of contraband of war, by any rule of universal application. Theory must be satisfied with elucidating the principles applicable at the present time, and stating what were the articles which have provoked discussion during recent times.
—Wants of war are contraband of war. But what are wants of war? There are certain objects which, as Grotius says, every one will recognize as being articles intended to supply the wants of war, and consequently articles contraband of war. Such are arms, implements of war, especially ships of war and war material; finally, the ingredients employed in the manufacture of gunpowder. And, on the other hand, there are articles which every one will recognize as being of an eminently peaceful character. To this category belong not only pianos and prayer books, as Dana says, but also the great mass of articles of commerce, such as cotton, etc. However, there will always be found a number of articles concerning the destination of which—whether they are intended for peaceful or bellicose objects—doubts will arise. So far as these articles are concerned, the decision rests essentially in the equitable judgment of the prize courts. When the special circumstances of the case tend to demonstrate, without a doubt, the intention of an employment of the articles for war purposes, the prize court will be able to condemn the cargo without having to fear the intervention of the neutral power; consequently, there exists, de facto, such a thing as contrabande par accident, scoffed at by so many theorists. The articles of doubtful use, res ancipitis usus, concerning which there has been most controversy in modern times, are: iron, steel, steam engines, boilers, coal, horses, specie money, and articles of food. We can not enter more minutely into the details of this controversy, and must confine ourselves to the statement that, so far as there exists no special stipulation between a belligerent and a neutral power providing otherwise, only the seizure of all supplies of articles of food of every kind could afford the neutrals a motive for protest.
—According to the law in force at the present time neutral powers are not bound to forbid their subjects the carrying on of trade in articles of contraband. They simply permit such trade, subject to the right of confiscation on the part of the belligerents.
—Belligerents have the right to interfere in neutral trade as contraband trade, when a neutral vessel attempts to carry articles of contraband to the enemy. It is necessary, however, that the ship should be seized in flagrante delicto: a vessel that has sold her cargo can not be seized on her return voyage.
—The consequence of the seizure of a vessel engaged in contraband trade is, according to tradition, that, by way of prize court law, the cargo is confiscated. By delivering up the articles of contraband the captain of the neutral vessel can free himself from any further interruption of his voyage. But if he refuses to deliver up such articles, then the vessel must be brought before a prize court; but the articles of contraband must not be carried away by force.
—The confiscation of the portion of the cargo not contraband of war, as well as of the ship itself, is made when the owner of the vessel, or freighter, knew of the transportation of the contraband articles.
—Analogous to the contraband of war is the transport of troops or dispatches for the benefit of the enemy. A neutral vessel which consents to engage in such service is, according to English custom, subject to confiscation, because she thus loses her neutrality by an evident act of hostility. The English admiralty courts do not admit the plea that the ship had been forced by the enemy to perform such service. If the enemy compels a neutral vessel to violate the laws of neutrality, then the ship owner must seek redress at the hands of the enemy's government, through the intervention of his own country. The other belligerent looks upon a breach of neutrality simply as a breach of neutrality, and acts accordingly; because, admitting the plea that the act was performed under compulsion would render useless and uncertain all its rights of prohibition.
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