The Eng lish-French treaties in the 18th century, as to naval stores and

§ 484. By the treaty of navigation and commerce of Utrecht, between Great Britain and France, renewed and confirmed by the treaty of Aix-la-Chapelle, in 1748, by the treaty of Paris, in 1763, by that of Versailles, in 1783, provisions. and by the commercial treaty between France and Great Britain, of 1786, the list of contraband is strictly confined to munitions of war; and naval stores, provisions, and all other goods which have not been worked into the form of any instrument or furniture for warlike use, by land or by sea, are expressly excluded from this list.

England

tic powers,

stores and

§ 485. The subject of the contraband character of naval and the Bal- stores continued a vexed question between Great Britain as to naval and the Baltic powers, throughout the whole of the eighprovisions. teenth century. Various relaxations of the extreme belligerent pretensions on this subject had been conceded in favor of the commerce, in articles the peculiar growth and production of these States, either by permitting them to be freely carried to the enemy's ports, or by mitigating the original penalty of confiscation, on their seizure, to the milder right of preventing the goods being carried to the enemy, and applying them to the use of the belligerent, on making a pecuniary compensation to the neutral owner. This controversy was at last terminated by the convention between Great Britain and Russia, concluded in 1801, to which Denmark and Sweden subsequently acceded. By the 3d article of this treaty it is declared, "That, in order to avoid all ambiguity in what ought to be considered as contraband of war, His Imperial Majesty of all the Russias and His Britannic Majesty declare, conformably to the 11th article of the treaty of commerce, concluded between the two crowns on the 10th (21st) February, 1797, that they acknowledge as such only the following articles, namely, cannons, mortars, fire-arms, pistols, bombs, grenades, balls, bullets, firelocks, flints, matches, powder, saltpetre, sulphur, helmets, pikes, swords, swordbelts, saddles and bridles; excepting, however, the quantity of the said articles which may be necessary for the defence of the ship and of those who compose the crew; and all other articles whatever, not enumerated here, shall not be considered warlike and naval ammunition, nor be subject to confiscation, and of course shall pass freely, without being subject to the smallest difficulty, unless they be considered as enemy's property in the above settled

It is also agreed, that what is stipulated in the present article shall not be to the prejudice of the particular stipulations of one or the other crown with other powers, by which objects of a similar kind should be reserved, provided, or permitted."

1801, on the

§ 486. The object of this convention is declared, in its The preamble, to be the settlement of the differences between treaty of the contracting parties, which had grown out of the subject. armed neutrality, by "an invariable determination of their principles upon the rights of neutrality, in their application to their respective monarchies;" which object was accomplished by the northern powers yielding the rule of free ships free goods, whilst Great Britain conceded the points asserted by them as to contraband, blockades, and the coasting and colonial trade.

The 8th article of the treaty also declared, that "the principles and measures adopted by the present act, shall be alike applicable to all the maritime wars in which one of the two powers may be engaged, whilst the other remains neutral. These stipulations shall consequently be regarded as permanent, and shall serve for a constant rule to the contracting powers, in matters of commerce and navigation."

The English-Swe

on the

§ 487. The list of contraband, contained in the convention between Great Britain and Russia, to which Sweden dish treaty acceded, differed, in some respects, from that contained of 103, in the 11th article of the treaty of 1661, between Great subject. Britain and Sweden. In order to prevent a recurrence of the disputes which had arisen relative to that article, a convention was concluded at London, between these two powers, on the 25th of July, 1803, by which the list of contraband, contained in the convention between Great Britain and Russia, was augmented, with the addition of the articles of coined money, horses, and the necessary equipments of cavalry, ships of war, and all manufactured articles, serving immediately for their equipment, all which articles were subjected to confiscation. It was further stipulated, that all naval stores, the produce of either country, should be subject to the right of pre-emption by the belligerent party, upon condition of paying an indemnity of ten per centum upon the invoice price or current value, with demurrage and expenses. If bound to a neutral port, and detained upon suspicion of being bound to an enemy's port, the vessels detained were to receive an indemnity, unless the belligerent government chose to exercise the right of

pre-emption; in which case, the owners were to be entitled to receive the price which the goods would have sold for at their destined port, with demurrage and expenses. (a)

Sir W. Scott, as to articles

ancipitis

garetha.

and naval

contra

§ 488. The doctrine of the British Prize Courts, as to provisions and naval stores becoming contraband, indeusus. The pendently of special treaty stipulations, is laid down very Jonge Marfully by Sir W. Scott, in the case of The Jonge MarProvisions garetha. He there states that the catalogue of contrastores, when band had varied very much, and sometimes in such a band. manner as to make it difficult to assign the reason of the variations, owing to particular circumstances, the history of which had not accompanied the history of the decisions. "In 1673, when many unwarrantable rules were laid down by public authority respecting contraband, it was expressly asserted, by a person of great knowledge and experience in the English admiralty, that, by its practice, corn, wine, and oil, were liable to be deemed contraband. In much later times, many sorts of provisions, such as butter, salted fish, and rice, have been condemned as contraband. The modern established rule was, that generally they are not contraband, but may become so under circumstances arising out of the peculiar situation of the war, or the condition of the parties engaged in it. Among the causes which tend to prevent provisions from being treated as contraband, one is, that they are of the growth of the country which exports them. Another circumstance, to which some indulgence by the practice of nations is shown, is when the articles are in their native and unmanufactured state. Thus iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly contraband. Hemp is more favorably considered than cordage; and wheat is not considered so noxious a commodity as any of the final preparations of it for human use. But the most important distinction is, whether the articles are destined for the ordinary uses of life, or for military use. The nature and quality of the port to which the articles were going, is a test of the matter of fact to which the distinction is to be applied. If the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ships of war may be constructed in that port. On the contrary, if the

(a) Martens, Recueil, tom. vii. pp. 150-281.

great predominant character of a port be that of a port of naval equipment, it shall be intended that the articles were going for military use, although merchant ships resort to the same place, and although it is possible that the articles might have been applied to civil consumption; for it being impossible to ascertain the final application of an article ancipitis usûs, it is not an injurious rule which deduces both ways the final use from the immediate destination; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if, at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful.” (a)

The Char

§ 489. The distinction, under which articles of promis- The same cuous use are considered as contraband, when destined har to a port of naval equipment, appears to have been sub- lotte. sequently abandoned by Sir. W. Scott. In the case of The Charlotte, he states that "the character of the port is immaterial; since naval stores, if they are to be considered as contraband, are so without reference to the nature of the port, and equally, whether bound to a mercantile port only, or to a port of nayal military equipment. The consequence of the supply may be nearly the same in either case. If sent to a mercantile port, they may then be applied to immediate use in the equipment of privateers, or they may be conveyed from the mercantile to the naval port, and there become subservient to every purpose to which they could have been applied if going directly to a port of naval equipment." (a)225

instructions

of 1793, as to

§ 490. The doctrine of the English Courts of Ad- British miralty, as to provisions becoming contraband under certain circumstances of war, was adopted by the British provisions. government in the instructions given to their cruisers on the 8th June, 1793, directing them to stop all vessels laden wholly or in part with corn, flour, or meal, bound to any port in France, and to send them into a British port, to be purchased by government, or

(a) The Jonge Margaretha, Rob. i. 192. (a) Robinson's Adm. Rep. v. 305. [225 But this decision is not an abandonment of the rule laid down in the Jonge Margaretha. The cargo of the Charlotte was large masts and spars in a manufactured state, which, it was contended, were contraband per se. On the authority of the Graafen von Gothland, Lord Stowell held that this cargo was of such a character as to be contraband, if destined to a place where hostile vessels may be fitted out or supplied.]-D.

to be released, on condition that the master should give security to dispose of his cargo in the ports of some country in amity with His Britannic Majesty. This order was justified, upon the ground that, by the modern law of nations, all provisions are to be considered contraband, and, as such, liable to confiscation, wherever the depriving an enemy of these supplies is one of the means intended to be employed for reducing him to terms. The actual situation of France (it was said) was notoriously such, as to lead to the employing this mode of distressing her by the joint operations of the different powers engaged in the war; and the reasoning which the text-writers apply to all cases of this sort, was more applicable to the present case, in which the distress resulted from the unusual mode of war adopted by the enemy himself, in having armed almost the whole laboring class of the French nation, for the purpose of commencing and supporting hostilities against almost all European governments; but this reasoning was most of all applicable to a trade, which was in a great measure carried on by the then actual rulers of France, and was no longer to be regarded as a mercantile speculation of individuals, but as an immediate operation of the very persons who had declared war, and were then carrying it on against Great Britain. (a)

The doctrine of these instructions denied by the neutral powers.

§ 491. This reasoning was resisted by the neutral powers, Sweden, Denmark, and especially the United States. The American government insisted, that when two nations go to war, other nations, who choose to remain at peace, retain their natural right to pursue their agriculture, manufactures, and other ordinary vocations; to carry the produce of their industry for exchange to all countries, belligerent or neutral, as usual; to go and come freely, without injury or molestation; in short, that the war among others should be, for neutral nations, as if it did not exist. The only restriction to this general freedom of commerce, which has been submitted to by nations at peace, was that of not furnishing to either party implements merely of war, nor any thing whatever to a place blockaded by its enemy. These implements of war had been so often enumerated in treaties under the name of contraband, as to leave little question about them at that day. It was sufficient to say, that corn, flour, and meal, were not of the class of contraband,

(a) Mr. Hammond's Letter to Mr.Jefferson, 12th September, 1793: Waite's State Papers, i. 398.