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EXPEDIENCY OF CAPTURE OF PRIVATE PROPERTY.
ence was exerted upon the war by the few captures of private vessels and property, and it would seem that the influence of such capture had been even less in the RussoJapanese war of 1904-5.
Modern policy seems to show that the capture of private property at sea does not necessarily bring any great military advantage. It may happen that the military strength may be greatly lessened if naval vessels are sent in pursuit of vessels bearing private property. The cost of pursuit, capture, bringing to port, trial, and condemnation may, and often does, exceed the value of the goods and vessel captured.
The British report of the Royal Commission on Supply of Food and Raw Materials in Time of War in 1905 expresses the opinion that “the first and principal object of both sides, in case of future maritime war, will be to obtain the command of the sea,” and maintains that concentration of the fleet is necessary to accomplish this purpose.
The equitable practice of days of grace will probably be continued. The use of improved means of communication will be extended. Privateering is abandoned. Prize money is beginning to be abolished. Land commerce is more and more developed. In time of war commerce is easily transferred to neutral flags. The actual influence of the capture of private property does not seem to be great. The weakening of a naval force in order to pursue and capture private property is of doubtful expediency. Such considerations as these show why the tendency to guarantee the exemption of all private property at sea in time of war by an international agreement has been looked upon with increasing favor.
The proposed exemption if it extended to all goods and property would probably make necessary an extension of the list of contraband. Contraband as now used applies only to certain classes of goods carried by or belonging to neutrals. If enemy property is placed on the same basis as neutral property, the doctrine of contraband must be interpreted accordingly and the principles enunciated with this in view,
Treatment of special vessels. — The vessels of the enemy used in commerce may be enemy private property. Certain of these vessels may readily become of great service to the enemy.
Vessels of like character if belonging to a neutral could not be classed as contraband. Owing to the ease with which many types of commercial vessels may be converted to warlike uses it seems proper that such agencies of transportation should not be placed under the general exemption. The degree of exemption to be extended to vessels may properly be left to the belligerents to determine.
Considering the general conditions of modern naval warfare and commercial relations, as well as the trend of opinion, together with the exceptional character of private vessels belonging to enemy citizens, an attempt to formulate a proper regulation in regard to the exemption of private property at sea may be considered expedient. Of course such exemption does not cover property of con. traband nature, property involved in violation of blockade, property involved in unneutral service, or otherwise concerned directly in the war. The regulation of exemption should apply therefore only to innocent property and ships.
Some such regulation in regard to vessels as the following seems to meet the requirements imposed by the above discussion and conclusions:
Innocent private ships, except belligerent vessels propelled by machinery and capable of keeping the high seas, are not liable to capture.
It may be said that the word " innocent" applies only to such private property or ships as have no direct relation to or share in the hostilities. It may be assumed that innocent belligerent goods or ships may be taken in case of military necessity, and when so taken full remuneration shall be paid, after the analogy of similar action on land.
Regulation.-Innocent neutral goods and ships are not liable to capture.
Innocent enemy goods and ships, except vessels propelled by machinery and capable of keeping the high seas, are not liable to capture,
(a) What should be regarded as absolutely contraband? (6) What should be regarded as conditional contraband?
(c) What are the circumstances under which food stuffs and coal, and raw material, such as cotton, can be declared to be contraband?” (Question of Lord Reay in House of Lords, April 13, 1905, The London Times, April 14, 1905.)
1. Absolute contraband.-When within or destined for the territory within the enemy's jurisdiction or for his military or naval use the following articles are absolutely contraband:
(a) Military materials, such as weapons, ammunition, etc.
6) Instruments solely for use in warlike purposes, as machinery for the manufacture of military materials.
(c) Any other articles solely for use in war.
2. Conditional contraband.- When destined for the enemy's military or naval use the following articles are contraband:
Means of subsistence, fuel, means and material for transportation and communication on land or sea, money, and other articles, such as cement, cotton, lumber, etc., of use either for warlike or for peaceful purposes.
DISCUSSION AND NOTES.
The nature of contraband – Early opinions.— The above three questions are so closely related that they may most advantageously be considered together under a general discussion of contraband.
While the term contraband does not occur in early codes like “Il Consolato de Mare,” yet the idea was understood. Grotius does not use the word contraband, though before his time it seems to have been used somewhat in domestic law. There is mention of contraband in a treaty between England and Holland in 1625, the year of the publication of Grotius's great work. From this time contraband became more and more a subject of definition in public international law. Grotius, however, gives a clear classification of articles of commerce, even though not using the term contraband. He enumerates:
1. Those things which have their sole use in war, such as arms. 2. Those things which have no use in war, as articles of luxury.
3. Those things which have use both in war and out of war, as money, provisions, ships, and those things pertaining to ships. (De Jure Belli et Pacis, III, I, 5.)
Grotius further says, in regard to the conditions under which articles of the third class may come:
In the third class, objects of ambiguous use, the state of the war is to be considered. For if I can not defend myself except by intercepting what is sent, necessity, as elsewhere explained, gives us a right to intercept it, but under the obligation of restitution, except there be cause to the contrary. If the supplies sent impede the exaction of my rights, and if he who sends them may know this—as if I were besieging a town or blockading a port, and if surrender or peace were expected, he will be bound to me for damages; as a person would who liberates my debtor from prison, or assists his flight to my injury; and to the extent of the damage his property may be taken, and ownership thereof be assumed for the sake of recovering my debt. If he have not yet caused damage, but have tried to cause it, I shall have a right by the retention of his property to compel him to give security for the future by hostages, pledges, or in some other way. But if, besides, the injustice of my enemy to me be very evident, and he confirms him in a most unjust war, he will then be bound to me not only civily, for the damage, but also criminally, as being one who protects a manifest criminal from the judge who is about to inflict punishment, and on that ground it will be lawful to take suchi measures against him as are suitable to the offense, according to the principles laid down in speaking of punishment; and therefore to that extent he may be subjected to spoliation. (Whewell's translation, Grotius, De Jure Belli et Pacis, III, I, 5.)
Destination was early recognized as an important factor in determining the character of goods in time of war. This was recognized in treaties and in proclamations. This principle seems to have been recognized in some form certainly so early as the time of Josephus. The provision is inserted in a treaty between France and England in 1303. An English proclamation of 1625 enumerates as prohibited articles of commerce with the enemy “any
OPINIONS OF UNITED STATES COURTS.
manner of graine, or victualls, or any manner of provisions to serve to build, furnish, or arme any shipps of warr, or any kind of munition for warr, or materials for the same, being not of the nature of mere merchandize.” (December 30, 1625.) Gradually the enumeration becomes more detailed. On March 4, 1626, a proclamation speaking of things prohibited says “His Majestie” regards the following as such,“ ordinance, armes of all sortes, powder, shott, match, brimstone, copper, iron, cordage of all kinds, hempe, faile, canvas, danuce pouldavis, cables, anchors, mastes, rafters, boate ores, balcks, capraves, deale board, clap board, pipe staves, and vessels and vessel staffe, pitch, tarr, rosen, okam, corne, graine, and victualls of all sorts, all provisions of shipping, and all munition of warr, or of provisions for the same, according to former declarations and acts of state, made in this behalf in the tyme of Queen Elizabeth, of famous memorie.”
This same proclamation extends the penalty for carrying contraband to the return in the same voyage.” This practice did not, however, continue in favor, and by the end of the eighteenth century the penalty for carrying contraband was generally considered to be deposited with
Opinions of United States Courts. In the case of The Commercen, in 1816, the decision rendered by Story, it is stated that
By the modern law of nations provisions are not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war or on account of their destination. If destined for the ordinary use of life in the enemy's country they are not, in general, contraband; but it is if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband. (1 Wheaton, U. S. Supreme Court Reports, 387.)
The decision rendered by Chief Justice Chase in the case of The Peterhoff, in 1866, has been regarded as stating the general principles in regard to contraband from the point of view of the United States:
The classification of goods as contraband or not contraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is perhaps impracticable; but that which is best