In the case of the Adela, decided by the Supreme Court of the United States at December term, 1867 (6 Wallace, 266), the Supreme Court affirmed the United States District Court's judgment where a vessel was condemned for attempted breach of the Federal blockade, although immediately destined to a neutral port, and her cargo, together with the mail on board, was carefully examined for evidence of intention to run the blockade; the assertion of the principle of continuous voyage is here illustrated together with the right to safeguard belligerent interests through the examination of mail as well; whether the mail were to be examined for evidence of the ship's destination, or to ascertain, as in case of the present European war, whether it were being utilized to carry contraband material, would not seem to vary the important principle asserted by the United States Supreme Court.

CHAPTER XIII

CONTRABAND OF WAR

Restrictions upon Neutral Commerce in Time of War. The law of nations permits a belligerent to exercise a pecul iar jurisdiction over neutral commerce in time of war. This jurisdiction is so extensive in some respects as to amount to an absolute prohibition of certain kinds of trade; it is limited, indeed, in its extent and operation, only by the zeal and energy which belligerents display in its exercise. This jurisdiction extends—

(a.) To the prohibition of neutral trade with belligerents in certain articles susceptible of military use. The articles so forbidden to be transported are called contraband of

war.

(b.) To the prohibition of all trade with certain ports or places, which are closed to such trade by an exercise of military force known as an investment, siege, or blockade.

(c.) To make these prohibitions effective, a belligerent is given the right to stop and search all neutral merchant vessels on the high seas, in his own territorial waters, or those of the enemy, for the purpose of determining the nationality of ships and goods, and of ascertaining whether they contain enemies' goods, contraband of war, or are destined to a port of the enemy against which a blockade has been established. This is called the belligerent right of search.

When and by Whom Exercised: Penalty. These rights pertain to belligerent states alone. They come into existence at the outbreak of war, and are terminated by the treaty of peace. None of them exist, or may lawfully be exercised, in time of peace; indeed, the enforcement of any one of them, during

peace, would be regarded as a just cause for war by the state whose sovereign rights were injured by its exercise.1

International law permits seizure, as prize, of contraband on the way from neutral to belligerent. Just what shall be pronounced contraband is a belligerent prerogative unless, as in the Declaration of London, a contraband list is agreed upon (cf. Erskine's address in the House of Lords, March 8, 1808, 19 Hansard, 1st Ser. 958). The carriage of contraband is not a crime.

Application to Individuals. The rules of international law on the subject of contraband trade and breach of blockade are directed chiefly against the acts of individuals. If a neutral state, in its corporate capacity, were to engage in contraband trade, it would be regarded as an act of hostility by the injured state, and would result in a declaration of war. An individual engaging in such trade does so at the risk of losing the articles of merchandise which constitute his commercial venture. He does not involve his government, however, in the breach of neutrality of which he is himself guilty. If, however, the municipal law of his own state forbids its subjects to take part in contraband trade, he may be punished by that government for a violation of its laws.

Origin of the Practice. The principle of forbidding, as a matter of state policy, the manufacture or sale of certain articles, or even the holding of them in legal possession, has been recognized by the municipal law of all states since the beginning of history. The origin of the rule of international

'V Calvo, § 2708; II Twiss, § 121; Bluntschli, § 765; Klüber, §§ 289, 290; Hall, §§ 232-235; Vattel, liv. iii. chap. vii. §§ 111–118.

According to the modern law of nations--for there has been some relaxation in practice from the strictness of the ancient rules-the carriage of contraband goods to the enemy subjects them, if captured in delicto, to the penalty of confiscation; but the vessel and the

remaining cargo, if they do not belong to the owner of the contraband goods, are not subject to the same penalty. The penalty is applied to the latter only when there has been some actual co-operation, on their part, in a meditated fraud upon the belligerents, by covering up the fraud under false papers, and with a false destination. — Carrington vs. Merchants, Ins. Co., 8 Peters, 495.

law on the subject of contraband of war, however, is relatively recent, and, in its present form, does not antedate the seventeenth century.'

The commercial cities of the Mediterranean had but little interest in asserting such a right against each other, since each of them claimed exclusive control over what it regarded as its own field of commerce, and was not disposed to surrender any portion of it, even in time of war. Moreover, a large part of their trade with the East, especially that of Venice and Genoa, was in articles which would now be regarded as contraband of war. It is, therefore, very unlikely that they would have advocated, or even favorably considered, a principle the application of which would have seriously injured, if it did not entirely destroy, a most lucrative branch of their commerce. The adoption of the modern rule was thus deferred until the northern and western European powers had begun to acquire maritime importance, and to carry on hostile undertakings against each other at sea.

So soon as interstate commerce became general it was seen that certain kinds of trade, if carried on during the existence of a war, were calculated to injure belligerents to such an extent as to make it necessary for them to cause, at least, their temporary discontinuance; and to justify them, in the exercise of the right of self-defence, in resorting to such measures of precaution as would neutralize their injurious effects. It was not difficult to find a remedy, when the trade complained of was carried on by a state in its corporate capacity, since it constituted a violation of neutrality, and was punishable as such.

'So early as the thirteenth century it had become the usage for powerful sovereigns to forbid all trade with their enemies in time of war. Such an instance occurs in a

treaty of Edward III. of England with the Flemings, in 1370. Francis I., in 1543, forbade his allies and confederates to deliver munitions of war to his enemy. Grotius was the first writer of standard author

ity to discuss the subject. Although the transport of certain articles is forbidden in treaties of an earlier date, the Treaty of the Pyrenees, in 1659, and that of Utrecht, of 1713, seem to have been most effective in determining the present rule on the subject of contraband of war. See, also, V Calvo, §§ 2708-2715; II Twiss, § 121; Heffter, § 158; Hall, §§ 236-240.

Where the objectionable commercial undertakings originated with individuals, however, it was less easy to provide a remedy. On land it was soon found to be impossible to prevent contraband trade, unless the belligerent himself controlled the neutral frontier, or the neutral state was willing to resort to such elaborate police measures as would effectively prevent the conveyance of contraband articles across its boundaries. Its attempted regulation on land, therefore, was soon abandoned. At seà, however, the matter could be more easily regulated. The ships of neutrals could be searched, and, if contraband articles were found on board, a suitable penalty could be inflicted; or their introduction into the enemy's country could be prevented by maintaining opposite his coasts a naval force of sufficient strength to make it difficult, or impossible, for neutral ships to obtain access to his harbors.

When such regulation was first undertaken, the attempt was made to forbid all traffic with an enemy. This claim, however, was soon abandoned, and the conveyance of contraband was regarded as a criminal act, involving the persons engaged in it, as well as their property, in the penalties imposed. In this form the rule was recognized by Grotius. The criminal feature was soon abandoned, so far as it affected the personal rights of those concerned, and the penalties were restricted to the contraband goods alone.

What Constitutes Contraband. In determining whether a particular article is or is not contraband of war, three elements must be considered in reaching a decision as to its liability to condemnation: (a) the place of its capture; (b) its destination; (c) the character of the article and the use to which it may be applied. The first two are not difficult to determine. The article must be captured on the high seas, or in the territorial waters of either belligerent; and it must have a hostile destination-that is, it must be destined to the military use of a belligerent.' As to the article itself, it is difficult to

"Goods of every description may be conveyed to neutral ports from neutral ports, if intended for actual

discharge at a neutral port, and to be brought into the common stock of merchandise of such port; but