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certain acts which have been sometimes classed as analogous to contraband. Even while using the term "analogues of contraband,” speaking of the analogy which the carriage of military dispatches and persons possesses to the carriage of articles contraband of war, admits that it is “always remote.”
One of the acts most frequently classed as analogous to the carriage of contraband is the carriage of dispatches for the enemy. Upon this subject there has been much discussion, especially since the attempted defense of the action of the United States in the case of the Trent in 1861.
British opinions distinguishing service from contraband. The difference between the carriage of contraband and the aid afforded by the transmission of information was early recognized by Sir William Scott. He, in the case of the Atalanta in 1808, said:
If a war intervenes and the other belligerent prevails to interrupt that communication (between mother country and colony), any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does in fact place himself in the service of the enemy state, and is justly to be considered in that character. Nor let it be supposed that it is an act of light and casual importance. The consequence of such a service is indefinite, infinitely beyond the effect of any contraband that can be conveyed. The carrying of two or three cargoes of stores is necessarily an assistance of limited nature; but in the transmission of dispatches may be conveyed the entire plan of the campaign that may defeat all the projects of the other belligerent in that quarter of the world.
The practice has been, accordingly, that it is in considerable quantities only that the offense of contraband is contemplated. The case of dispatches is very different; it is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences in the operations of the enemy. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature. (6 C. Rob., 440.)
This opinion of the great English jurist, rendered early in the nineteenth century, shows that the transmission of dispatches of varying character can not properly be put in the same category with contraband because so different in nature and results,
In other cases Great Britain has recognized that penalties may attach directly to service.
In the case of Burton v. Pinkerton, in Great Britain, in 1867, it was held
That to serve on board a vessel used as a storeship in aid of a belligerent, the fitting out of which to be so used is an offense within the seventh section, is “serving on board a vessel for a warlike purpose in aid of a foreign state,” within the second section. (L. R. Q. Exch., 340.)
The vessel in question was the Thames, which was serying as a storeship for Peruvian war vessels in the war between Peru and Spain.
By section 8 of the foreign enlistment act, 1870, “if any person within Her Majesty's dominions, without Her Majesty's license, dispatches any ship with intent that the same shall be employed in the military or naval service of any foreign state at war with any friendly state, the ship in respect of which any such offense is committed and her equipment shall be forfeited to Her Majesty."
Recent British opinions. — The British authorities, in 1904, reaffirmed positions previously taken. They recognized such acts as different in nature from the carriage of contraband, and as involving different penalties. The acts were regarded as practically acts in the naval service of one of the belligerents. This is seen in the following letter, which was, by direction of the Marquis of Lansdowne, addressed to the Chamber of Shipping of the United Kingdom, to the Association of Chambers of Commerce of the United Kingdom, and to certain other associations:
FOREIGN OFFICE, November 25, 1904. . SIR: On the 25th ultimo a letter was received by the foreign office from Messrs. Woods, Tyler & Brown, asking whether it was permissible “for British shipowners to charter their boats for such purposes as following the Russian fleet with coal supplies;” and by the Marquis of Landsowne's directions they were informed that “it is not permissible for British owners to charter their vessels for such a purpose.”
In view of the numerous inquiries which have been addressed to His Majesty's Government on this subject, I am instructed to explain that action of the kind described in Messrs. Woods' letter might render those concerned liable to proceedings under subsections 3 and 4 of the eighth section of “the foreign enlistment act, 1870.” (33 and 34 Vict., cap. 90.) This section, so far as it is material, runs as follows:
“8. If any person within Her Majesty's dominions, without the license of Her Majesty, does any of the following acts, that is to say
“(3) Equips any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state; or
“ (4) Dispatches, or causes or allows to be dispatched, any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state;
“Such person shall be deemed to have committed an offense against this act, and the following consequences shall ensue:
“(1) The offender shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and imprisonment, if awarded, may be either with or without hard labor.
“(2) The ship in respect of which any such offense is committed, and her equipment, shall be forfeited to Her Majesty.”
The interpretation clause, section 30, defines "naval service” and “equipping” as follows:
“Naval service shall, as respects a person, include service as a marine, employment as a pilot in piloting or directing the course of a ship of war or other ship, when such ship of war or other ship is being used in any military or naval operation, and any employment whatever on board a ship of war, transport, storeship, privateer, or ship under letters of marque; and as respects a ship include any user of a ship as a transport, storeship, privateer, or ship under letters of marque.
“ • Equipping' in relation to a ship shall include the furnishing a ship with any tackle, apparel, furniture, provisions, arms, munitions, or stores, or any other thing which is used in or about a ship for the purpose of fitting or adapting her for the sea or for naval service, and all words relating to equipping shall be construed accordingly.
""Ship and equipment' shall include a ship and everything in or belonging to a ship."
A similar question arose in 1870 during the Franco-German war, and on the 1st of August of that year a question on the subject was put to and was answered by Mr. Gladstone, then prime minister. The foreign enlistment act then in force was that of 1819 (59 Geo. III, cap. 69), containing provisions similar upon this point to those of the act of 1870, which was about to replace it and which received the royal assent on the 9th of August. The question and answer were as follows:
“Mr. Stapleton asked the first lord of the treasury whether his attention has been called to the report that the French fleet in the Baltic is to be supplied with coal direct from this country; whether it AMERICAN OPINIONS.
would be consistent with neutrality to allow any vessels, either French, English, or others, to carry coal direct from this country to a belligerent feet at sea; and whether English vessels so engaged would be entitled to the protection of their country if the other belligerent should treat them as enemies, considering them part of the armament to which they were acting as tenders.
“Mr. Gladstone replied: “Sir, the House bas already been apprised on more than one occasion that there is nothing in a general way to prevent the exportation of coal from this country. If either of the belligerents capture those vessels supplying coal, the question whether it is contraband of war will be a question for the consideration of the court of the captors. But the honorable gentleman has called attention to a particular case, and although the exportation of coal is not generally prohibited, exporters being warned that if it be supplied to either of the belligerents they run the risk of capture, yet of course the case reported, which I can neither affirm nor deny, as I have no more knowledge of it than he has—that is to say, the knowledge derived from general rumor-presents itself under a somewhat different aspect, and in that form the question has been referred to the law officers of the Crown. They have given their opinion, which we have adopted, that if colliers are chartered for the purpose of attending the fleet of a belligerent, and supplying that fleet with coal for the purpose of enabling it to pursue its hostile operations, such colliers would to all practical intents and purposes become storeships to that fleet, and if that fact were established they would be liable, if within reach, to the operation of the English law under the provisions of the foreignenlistment act. It will be the duty of the Government, and they will act upon that duty when such reports arise, to institute searching inquiries into the existence of any such case.'
Although, therefore, neutral traders may carry on trade even in contraband with belligerents, subject to the risk of capture of their goods, it is necessary that such traders should bear in mind the condition of the law of this country as set forth in the foregoing enactments, which, moreover, have been applied recently by orders in council in British protectorates and also in countries where the King exercises extraterritorial jurisdiction over his own subjects. I am, etc.,
(Signed) F. A. CAMPBELL. American opinions distinguishing service from contraband.-- The United States courts as well as the British courts have recognized the difference in nature between commerce in contraband and commerce undertaken in the enemy's employ.
In the case of the Julia, Story rendered the opinion of the United States Supreme Court in 1814, to the effect “that the sailing on a voyage under the license and pass
port of the enemy, in furtherance of his views or interests, constitutes such an act of illegality as subjects the ship and cargo to confiscation as prize of war.” (8 Cranch, 181.)
The opinion rendered in the case of the Julia was subsequently followed with approval in other cases. (The Aurora, 8 Cranch, 203; the Hiram, 8 Cranch, 444; the Ariadne, 2 Wheaton, 143.) In all these cases subjects of one of the belligerents accept the service of the other and sail under his license. The principle applies equally to a neutral accepting such service for one of the belligerents.
Indeed, it may not be necessary that the master of a vessel be a knowing party to the undertaking which aids the enemy. Lord Stowell has held that “It will be sufficient, if there is injury arising to the belligerent from the employment in which the vessel is found. The master may be ignorant and perfectly innocent. But if the service is injurious, that will be sufficient to give the belligerent the right to prevent the thing from being done.” (6 Rob., 430)
Not merely in court decisions, but in the opinions of text writers, distinctions are made in the acts of neutrals.
Dana, in note 228 to Wheaton, speaking of the carrying of hostile persons or papers, in contrast to contraband, says:
But the subject now under consideration is of a different character. It does not present cases of property or trade, in which such interests are involved, and to which such considerations apply, but simply cases of personal overt acts done by a neutral in aid of a belligerent.
Suppose a neutral vessel to transmit signals between two portions of a fleet engaged in hostile combined operations, and not in sight of each other. She is doubtless liable to condemnation. It is immaterial whether these squadrons are at sea or in ports of their own country or in neutral ports, or how far they are apart or how important the signals actually transmitted may be to the general results of the war, or whether the neutral transmits them directly or through a repeating neutral vessel. The nature of the communication establishes its final destination, and it is immaterial how far the delinquent carries it on its way. The reason of the condemnation is the nature of the service in which the neutral is engaged. (Wheaton, D., International Law, note 228.)
The distinctions clearly made in the early half of the nineteenth century seem to have been somewhat neg