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The naval commander is however not chargeable with the decision as to the fate of ship or non-contraband cargo. His business is limited to ascertaining that there is contraband on board and to evidence as to absence of fraud in papers, destination or other respects, so that the Prize Court may be able to act.
The treaties of the United States generally confiscate contraband, leaving the vessel and remainder of cargo free; there are some exceptions to this, how
By that with Prussia, in 1785, renewed in 1794 and 1828, contraband is not to be confiscated, but may be detained or used and paid for.
No provision is made in that with Spain, Russia, Sardinia, or Hayti; therefore the common law will apply.
In some cases it is specified "whether the owner of the contraband or not," as with Venezuela.
Slaves were held to be contraband of war in England in 1814. *
With respect to coal, France seems unwilling to admit it to the list of contraband. While at war with Mexico in 1864, she complained of our "refusing coal to the French fleet".
On May 16, 1864, Mr. Dayton informs Mr. Seward that M. Drouyn de Lhuys says that "France never has declared and never will declare coal contraband of war; that if the United States should do so, it would be a retrograde move, inasmuch as its traditional policy had always been in favor of neutrals and in limitation rather than in extension of the list of contraband. He hopes that we will not retrace our steps, * Jacobsen's Sea Laws, p. 476.
but in this matter adhere to our past policy; that France has always gone with us, or we with her, on these questions of maritime law, and he does not think it for the interest of either country to part company; at least, that was the inference from his language. This is a question of deep interest to the French government-deeper, perhaps, than to us, she having a large navy and little coal, while Great Britain and the United States have an abundace of the latter article.
He said, further, that if the United States should declare coal contraband of war, it would place France in a false position in reference to our country. That she, France, holding coal not to be contraband, would be compelled to supply it to our enemies in time of war, and to the confederates, while denying it to us because we denied it to them. That they would dislike much to be placed in a position indicating such apparent want of neutrality, yet that it would be inevitable if coal was declared by us contraband of war".
The same complaint was repeated June 8th. The refusal was admitted by Mr. Seward, and justified June 27th, 1864. *
After perusing the writers above cited in relation to blockade and contraband, I find no one to compare with the Commentaries of Kent in comprehensivə view, concisely yet clearly expressed.
* Diplomatic Correspondedce, 1865, Part 3, 759-765.
VISITATION AND SEARCH.
The need of appropriate and well defined terms is very apparent in the glance at the subject to which these terms refer. It might be said of them in the words of Ortolan, they were never "redigees par des marins.
Even in a treaty concluded after long years of fruitless effort in relation to a much vexed question, (with Great Britain, April 7th, 1862,) chiefly to be defined by these very phrases, is to be noted this censurable inacuracy.
In the first article, visit and search are used as equivalent terms. In the second and third sections search only is used; in the fourth section search and detention; in the remainder search only; and the process described in article six shows it to be a search in the ordinary sense of the word. In the instructions to commanders annexed to the treaty "search and detain" only occur.
In the additional article (February 17th, 1863) the treaty is described as agreeing that a "visit" may be made; and then, in the same article, it is spoken of