to pacify neutrals, the British prize judges, especially Sir William Scott, adopted certain discriminating rules, according to which the articles in question partook more or less of the contraband character. Thus, if the produce of the country from which they had been exported, or in an unmanufactured state, or destined to a commercial port, they were viewed with greater indulgence than if shipped from a country where they were not grown, or in a manufactured state, or destined to a naval station. Sir William Scott afterwards withdrew his indulgence from naval stores destined to a commercial port, on the ground that they could be used there to equip privateers, or be transported to a port of naval equipment.* And in some cases a yet milder rule was adopted by Great Britainthat of preëmption, of which we shall speak by itself. $181. sanctioned by In regard, now, to this doctrine of occasional contraband, we say first, that it is unjust to neutrals. If it be Is it just, and doubtful whether an article pertains to the class usage? of contraband or not, the penalty attached to this class of articles ought certainly not to be levied upon it. It is either contraband or not, and is not so, if there is a doubt to what class it belongs. To visit it with a half-penalty, because it is of doubtful character, is like punishing on a lower scale a crime half proven. Secondly. Does usage sanction occasional contraband? So far as I can see, the most that can be said is, that belligerents have sometimes put doubtful articles into the list of contraband, and neutrals have sometimes submitted to it; but that no clear practice appears to have prevailed. Thirdly. The authority of the older text-writers is more in favor of such a distinction. In an' often-cited passage of Grotius (III. 1, § 5), after dividing things in the hands of those who are not enemies, into such as have a use in war alone, such as have no use in war, and such as have a use in war and aside from war, says that in regard to this third class of articles he * Comp. Wheaton, El. IV. 3, § 24, p. 519. ancipitis usus; “si tueri me non possum, nisi quæ mittuntur intercipiam, necessitas, ut alibi exposuimus, jus dabit, sed sub onere restitutionis, nisi causa alia accedat." His commentator, Samuel de Cocceii, on this passage observes, that "necessity gives no right over the goods of another, so that if my enemy is not aided by such articles, I cannot intercept them, although I may be in want of them. On the other hand, if the power of the enemy is thereby increased, I can take them, albeit I may not need them myself."* Bynkershoek, although he differs from Grotius as to the rule of necessity, and regards a commerce in the raw materials of war as not illicit, yet thinks they may be prohibited, if the enemy cannot well carry on war without them. (Quæst. J. P. I. 10.) And Vattel decides that even provisions are contraband in certain junctures, when we have hopes of reducing an enemy by famine. Opinions in respect to it. Modern English writers and Chancellor Kent give their sanction to the doctrine of occasional contraband, while Wheaton, without expressing a positive opinion, seems averse to it. Several continental authors of repute either deny it to be a part of the law of nations, or admit it with cautious reserve. Heffter says (§ 160), "never have belligerents been allowed, alone and according to their good pleasure, to make restrictions of this kind, although when possessed of power enough, they have assumed to do this." And he adds in regard to doubtful articles, that belligerents ·can take measures against neutrals exporting them, only when a destination for the enemy's government and military forces. can be ascribed to them on sufficient grounds. Ortolan (II. 179) denies that provisions and objects of prime necessity can ever be considered contraband, but concedes that a belligerent may declare objects to be contraband which are not usually such, when they become what he calls contraband in disguise, as the parts of military machines conveyed separately, and ready to be put togethe.. His countryman, Hautefeuille (Droits des nations neutres, II. 419 †), maintains that no products of use in peace and war both can in any case be contraband, “and * Lausanne ed. of Grotius, vol. III., p. 602. † 1st ed. Comp. II. 157 2d ed. that nothing else is contraband but arms and munitions of war actually manufactured, proper, immediately, and without any preparation or transformation by human industry, to be employed in the uses of war, and not capable of receiving any other destination." Klüber, after saying (§ 288) that naval stores and materials are not to be reckoned contraband, adds, that in case of doubt as to the quality of particular articles, the juristic presumption inclines to the side of natural right, which allows the natural freedom of trade. De Martens says (§ 318), that "where no treaties intervened, the powers of Europe, when they were neuter, maintained long before 1780 [the date of the first armed neutrality], that only articles of direct use in war could be considered and treated as contrabands by belligerents." The United States, it is believed, has steadily taken this ground in regard to provisions, although not in regard to naval stores. The doctrine of occasional contraband received its widest extension in the war of England against revolutionary France. The British representative to our government claimed in 1793 and 1794, that by the law of nations all provisions were to be considered as contraband, in the case where the depriving the enemy of these supplies was one of the means employed to reduce him to reasonable terms of peace, and that the actual situation of France was such as to lead to that mode of distressing her, inasmuch as she had armed almost the whole laboring class of the people for the purpose of commencing and supporting hostilities against all the governments of Europe.* If a government had armed nearly its whole laboring population, the laws of political economy would probably reduce it to weakness far sooner than the cruisers of its enemy would have that effect. § 182. 3. The harshness of the doctrine of occasional contraband brought into favor the rule of preëmption, which was a sort of compromise † between the belliger * Kent, I. 137, Lect. VII. + So Sir W. Scott calls it in Robinson's Rep. I. 241. Preemption. ents (if masters of the sea) and the neutrals. The former claimed that such articles may be confiscated, the latter that they should go free. Now as the belligerent often wanted these articles, and at least could hurt his enemy by forestalling them, it came nearest to suiting both parties, if, when they were intercepted on the ocean, the neutral was compensated by the payment of the market price, and of a fair profit. This rule, which was more especially applied by the English prize courts shortly after the French revolution, would be a relaxation of the severe right of war, if the doctrine of occasional contraband could be established, and as such, a concession to neutrals. But it does not, as an independent rule, possess sufficient support from usage and authority. There are two sources from which arguments in its support have been derived. (1.) An old practice of European governments was to seize the grain or other necessary articles found in the hands of foreigners in their ports, on promise of compensation, which naturally would be slow in coming. Many treaties of century XVII. put an end to this half-barbarous exercise of sovereignty between the contracting powers, and it is believed to be unknown to the law of nations, unless (2.) under the form of a rule of necessity. Such a rule in a broad sense would authorize, whether in war or peace, the taking of property from subjects or foreigners, if self-preservation required it. A more limited necessity is contemplated in the passage of Grotius already cited, as pertaining to a belligerent, and justifying him in detaining the goods of those who are not enemies, if otherwise he cannot defend himself. Omitting to inquire whether nations have any such right, which if it exist can arise only in extreme cases, we need only say that modern preëmption is limited in extent to cargoes of neutrals bound to the enemy's ports, and is practised to distress the enemy, not to relieve an imminent distress of one's own. "I have never understood," says Sir William Scott, "that this claim [of preëmption] goes beyond the case of cargoes avowedly bound for enemy's ports, or suspected on just grounds, to have a concealed destination of that The English practice in cases of preemption is to pay a reasonable indemnification, and a fair profit on English practice the commodity intercepted, but not to pay the of preemption. price which could be obtained in the enemy's ports. In a treaty with Sweden of 1803, it was arranged, that in seizures of this kind the price of the merchandise should be paid, either as valued in Great Britain or in Sweden at the option of the proprietor, with a profit of ten per cent., and an indemnity for freight and expenses of detention. In the treaty of 1794, already referred to, between Great Britain and the United States, it is said, "that whereas the difficulty of agreeing on the precise cases, in which provisions and other articles of contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise, . . . whenever any such articles so becoming contraband according to the existing law of nations, shall for that reason be seized,... the captors, or in their default, the government, under whose authority they act, shall pay the full value... with a reasonable mercantile profit thereon, together with the freight and also the damages incident to such detention." The expression "becoming contraband according to the existing law of nations," left the question, What the law of nations decided, an open one: if the United States, for instance, denied that certain articles seized as contraband were legally such, they could not yield their opinion, and preëmption itself in such cases might be a cause of complaint and even of war. This was an unfortunate halfway admission, which left everything unsettled, and yet justified the other party to the convention in their measures of detention on the seas. $183. If the contraband articles are clearly intended for the enemy's use, especially if they are more in quan- Penalty for contity than the ship's company need, they are sub- traband trade. ject to confiscation on being captured, and no freight is paid for them to the transporter.* Ancient French ordinances, be |