possible by captures, all communication with the enemy, and thus strike at once effectually at his power and resources?

cussion con

The United

1794.

This dis- § 499. As to the 18th article of the treaty of 1794, betinued. tween the United States and Great Britain, it manifestly State-Brit- intended to leave the question where it found it; the ish treaty of two contracting parties, not being able to agree upon a definition of the cases in which provisions and other articles, not generally contraband, might be regarded as such, (the American government insisting on confining it to articles destined to a place actually besieged, blockaded, or invested, whilst the British government maintained that it ought to be extended to all cases. where there is an expectation of reducing the enemy by famine,) concurred in stipulating, that "whenever any such articles, so becoming contraband, according to the existing law of nations, shall for that reason be seized, the same shall not be confiscated," but the owners should be completely indemnified in the manner provided for in the article. When the law of nations existing at the time the case arises pronounces the articles contraband, they may for that reason be seized; when otherwise, they may not be seized. Each party was thus left as free as the other to decide whether the law of nations, in the given case, pronounced them contraband or not, and neither was obliged to be governed by the opinion of the other. If one party, on a false pretext of being authorized by the law of nations, made a seizure, the other was at full liberty to contest it, to appeal to that law, and, if he thought fit, to resort to reprisals and war.

This dis

tinued. The

§ 500. As to the second ground upon which the Order cussion con- in Council was justified, necessity, Great Britain being, justification as alleged at the time of issuing it, threatened with a of necessity considered scarcity of those articles directed to be seized, it was answered that it would not be denied that extreme necessity might justify such a measure. It was only important to ascertain whether that necessity then existed, and upon what terms the right it communicated might be carried into exercise.

Grotius, and the other text-writers on the subject, concurred in stating that the necessity must be real and pressing; and that even then it does not confer a right of appropriating the goods of others, until all other practicable means of relief have been tried. and found inadequate. It was not to be doubted that there were other practicable means of averting the calamity apprehended by

§ 501 Great Britain. The offer of an advantageous market in the different ports of the kingdom, was an obvious expedient for drawing into them the produce of other nations. Merchants do not require to be forced into a profitable commerce; they will send their cargoes where interest invites; and if this inducement is held out to them in time, it will always produce the effect intended. But so long as Great Britain offered less for the necessaries of life than could have been obtained from her enemy, was it not to be expected that neutral vessels should seek the ports of that enemy, and pass by her own? Could it be said that, under the mere apprehension (not under the actual experience) of scarcity, she was authorized to have recourse to the forcible means of seizing provisions belonging to neutrals, without attempting those means of supply which were consistent with the rights of others, and which were not incompatible with the exigency? After this order had been issued and carried into execution, the British government did what it should have done before; it offered a bounty upon the importation of the articles of which it was in want. The consequence was, that neutrals came with these articles, until at length the market was found to be overstocked. The same arrangement, had it been made at an earlier period, would have rendered wholly useless the order of 1795.

of the Mixed the

§ 501. Upon these grounds, a full indemnification was Decision allowed by the commissioners, under the seventh article of Commission the treaty of 1794, to the owners of the vessels and cargoes against t seized under the Orders in Council, as well for the loss of 1794. a market as for the other consequences of their detention. (a) 226

(a) Proceedings of the Board of Commissioners under the seventh article of the treaty of 1794. MS. Opinion of Mr. W. Pinkney, case of the Neptune.

[226 Contraband of War.-The position of the subject of contraband cannot be said to have been much changed since the text was written; still, some light has been thrown upon it by the discussions of later writers.

There seems to have been a concurrence of opinion on one point, that certain things are of such a nature as to be conclusively deemed contraband, so that no further inquiry need be made by prize courts. These courts must act summarily, by sharp and clear lines, and often upon absolute presumptions. It is agreed that they must do so as to contraband. The only difference seems to be one of detail, as to what things do or do not come into this category. The test is variously described, and more or less strictly; but it seems to amount to this, - Is the primary and ordinary use of the article military, when in the enemy's possession in time of war? No article is exclusively of military use. Fire-arms are used in time of peace for police purposes, for killing game, for private defence, for salutes, for signal-guns; and mortars and shells, for the humane object of communicating with wrecked vessels: and

portation of

Trans- § 502. Of the same nature with the carrying of conmilitary traband goods is the transportation of military persons or despatches in the service of the enemy.227

persons and despatches

in the enemy's service.

A neutral vessel, which is used as a transport for the enemy's forces, is subject to confiscation, if captured by

powder is used for blasting rocks to construct buildings of peace and benevolence. The question is, - what is the primary and ordinary use of such things, in time of war, when in the enemy's possession? It is agreed that all forms of fire-arms, swords, powder and ball, come within this category. It is a question of detail, after the test is agreed upon, what other articles come under it.

There are things, on the other hand, as to which it is impossible even to imagine a direct military purpose; as, a cargo of piano-fortes, works of fine art, and a library of books of theology or belles-lettres.

The principal point in dispute is as to articles admitted to be of ambiguous or uncertain use, when, in the enemy's country and in time of war. The best illustration of this class is, perhaps, manufactured spars fully ready to be put into ships; and, in later times, marine steam-machinery, in like condition of readiness. One class of writers contends for an absolute rule as to all articles of such descriptions; so that, if, upon the application of the general test, they are left ancipitis usus, they must be free, and no further inquiry can be made for the purpose of ascertaining their probable use in the particular case. Another class of writers contends, that, as to such articles, inquiry may be made into the circumstances, for the purpose of determining their probable use in the particular instance. This is really the point of difference, on principle, among the later writers. The latter rule has been unquestionably the British doctrine, enforced by her Orders in Council and prize courts, recognized in her treaties, and sustained by her statesmen and text-writers. (Reddie on Marit. Intern. Law, ii. 456. Phillimore's Intern. Law, iii. 245-284. Wildman's Intern. Law, ii. 210 et seq. Manning's Law of Nations, 282 et seq. Moseley on Contraband, passim.) It may also be said, in the main, to have been the American doctrine. The treaty of 1794 with Great Britain recognizes that articles ancipitis usus may be contraband, by the then existing law of nations. But our other treaties usually exclude naval stores ancipitis usûs from the list of contraband, although some of the treaties include saltpetre and sulphur. The treaties with Colombia of 1824, with Venezuela of 1836, with Guatimala of 1849, with New Grenada of 1848, with San Salvador of 1850, with Mexico of 1851, enumerate only articles of direct and primary military use. The treaty with Mexico includes provisions destined to a besieged port. In the Commercen (Wheaton's Rep. i. 322), barley and oats were held contraband in a neutral vessel bound to a neutral port, but destined not for the market, but to be delivered on board the enemy's fleet lying in the port. Kent says, that, as to articles ancipitis usûs, the inquiry is, "whether they are intended for the ordinary uses of life, or even for mercantile ships' use, or whether they were going with a highly probable destination to military use. The nature and quality of the port to which they are going, is not an irrational test. As it is impossible to ascertain the final use of an article ancipitis usûs, it is not an injurious rule which deduces the final use from the immediate destination." (Comm. i. 140.) Halleck gives the history and practice on the subject, and considers the English and American practice to authorize inquiry

[227 This subject is examined in the note 228, infrà, on Carrying Hostile Persons and Papers.]

D.

the opposite belligerent. Nor will the fact of her having been impressed by violence into the enemy's service, exempt her. The master cannot be permitted to aver that he was an involuntary into the probable use of articles ancipitis usûs. He states the arguments against the doctrine by the continental writers, but gives no opinion as to which would be, in his judgment, the better rule. (Intern. Law, 569-591.) Dr. Woolsey (§§ 180, 181) comes to the conclusion that articles ancipitis usûs should be deemed free, and that the rule of English and American prize courts to the contrary has not been so accepted as to be a part of the settled law of nations. He says, "If it be doubtful whether an article pertains to the class 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." This is true, but does not meet the question. The question is not, whether there shall be condemnation in a case of doubt, but whether, to solve the doubt, the court is limited to an inspection of the physical nature of the articles, or may inquire further. Professor Parsons (Marit. Law, ii. 93, 94, Boston, 1859) thus defines contraband as settled, in his judgment, by the practice of maritime nations: "A trade with a belligerent, intended to provide him with military supplies, equipments, instruments, or arms. Goods are contraband which are in fact munitions of war, or may certainly become so, or which are designed, or capable of being used, for the support or assistance of an enemy in carrying on war, offensively or defensively. Thus, even provisions, if they are intended to be sent to a place which an enemy is attempting to reduce by starvation, and, in general, articles ordinarily used only for peaceful purposes, if capable of a military use, and sent to places where it is probable that such a use will be made of them, are contraband of war; and so is all property destined to a besieged or blockaded town."

Of the continental writers, Hautefeuille contends for the absolute rule limiting contraband to such articles as are in their nature of first necessity for war, substantially exclusively military in their use, and so made up as to be capable of direct and immediate use in war. (Tit. 8, § 2, tom. ii. pp. 84, 101, 154, 412; tom. iii. p. 222). Ortolan is of the same opinion, on principle, and contends that all modern treaties limit contraband to articles directly and solely applicable to war; yet he admits that certain articles not actually munitions of war, but whose usefulness is chiefly in war, may, under circumstances, be contraband; as, sulphur, saltpetre, marine steammachinery, &c.: but coal, he contends, from its general necessity, is always free. (Tom. 1. ch. 6, pp. 179-206.) Massé (Droit Comm. i. 209-211) admits that the circumstances may determine whether articles doubtful in their nature are contraband in the particular case; as, the character of the port of destination, the quantity of goods, and the necessities and character of the war. The same view is held by Tetens, a Swedish writer (Sur les Droits Réciproques, pp. 111-113). Hübner (lib. ii. ch. 1, §§ 8,9) seems to be of the same opinion with Tetens and Massé. Kluber (§ 288) says that naval stores are not contraband; but adds, that, in case of doubt as to the quality of particular articles, the presumption should be in favor of the freedom of trade. The subject is not affected by the Declaration of Paris of 1856, which merely uses the word "contraband,” without attempting to define it. The British Orders in Council of 18th February, 1854, in anticipation of the war with Russia, prohibit the exportation from the United Kingdom (as modified by the order of 11th and 24th April, 1851), to certain countries in Europe or of Russian possession, of certain enumerated articles which are clearly contraband of war, and the like exportation of other articles "which are judged capable of being converted into, or made useful in increasing the

agent. Were an act of force exercised by one belligerent power on a neutral ship or person to be considered a justification for an act, contrary to the known duties of the neutral character, there

quantity of, military or naval stores," in which are enumerated saltpetre and brimstone, and all parts of marine steam-machinery. But these Orders in Council do not pretend to decide the subject of contraband. Their operation is municipal, -to keep certain articles useful in war within the kingdom, and prevent their getting into Russian possession.

A Swedish ordinance of April 8, 1854, prohibiting the carrying of contraband in Swedish vessels, defines contraband to include saltpetre, sulphur, saddles, bridles, and all other manufactures immediately applicable to warlike purposes.

During the Crimean war, the English stopped coals on their way to a Russian port; but the Ministry said, in the debate in the House of Commons, that coals were to be regarded as ancipitis usûs.

The royal proclamation of 13th May, 1859, issued during the war between France, Sardinia, and Austria, warns British subjects against carrying contraband, without attempting to define it. To an inquiry, addressed by British merchants to the Foreign Office, the government declined to decide whether coals were contraband, but added, "It appears, however, to Her Majesty's Government, that, having regard to the present state of naval armaments, coal may, in many cases, be rightly held to be contraband of war, and therefore that all who engage in the traffic must do so at a risk, from which Her Majesty's Government cannot relieve them." (Jurist, 1859, v. 203.) The royal proclamation of 13th May, 1861 (at the beginning of the civil war in the United States), warns British subjects against carrying "arms, military stores, or materials, or any article or articles considered and deemed to be contraband of war according to the law or modern usage of nations, for the use or service of either of the said contending parties." On the 26th May, a debate springing up in the House of Lords on the subject, Earl Granville, after referring to articles clearly contraband, said, "There are certain other articles the character of which can be determined only by the circumstances of the case." Lord Brougham thought coal might be contraband, "if furnished to one belligerent to be used in warfare against the other." Lord Kingsdown said, with more precision, "If coals are sent to a port where there are war-steamers, with a view of supplying them, they become contraband."

It may be safely assumed, that prize courts of Great Britain and the United States, in the absence of treaty stipulations or of rules of their governments, would inquire into the circumstances of each case, to determine whether articles ancipitis usûs were contraband of war; and that in that class they would include ships, marine steammachinery, masts and spars in a manufactured state, the component materials of gunpowder, coals, articles in a manufactured state chiefly useful in war, or the component parts of armaments and military equipments. The chief circumstance of inquiry would naturally be the port of destination. If that is a naval arsenal, or a port in which vessels of war are usually fitted out, or in which a fleet is lying, or a garrison town, or a place from which a military expedition is fitting out,-the presumption of military use would be raised, more or less strongly according to the circumstances. The nature and character of the war, as being maritime or not, and the known special needs of the enemy, are also to be considered. If it is proved, as a fact in the case, that the articles are destined directly to military use, as, if they were to be deliv ered to an enemy's fleet, or army, or war department, for the further reason of being involved in a non-neutral trade.

they would be condemned

In the case of the Commercen (Wheaton's Rep. i. 332), the carrying by a neutral