inquiry may be made into the circumstances, for the purpose of determining their probable use in the particular instance. 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 Maritime 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." Kent's Commentaries, I., 140; Halleck, Intern. Law, 569-590; Woolsey, Intern. Law, § 180, 181.

Professor Parsons, (Marit. Law, II., 93, 94, Boston, 1859,) thus defines contraband as, in his judgment, settled 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 only 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, in principle; and contends that all modern treaties limit the application of 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 steam machinery, &c.; but coal, he contends, from its general necessity, is always free. (Tom. II., ch. 6, p. 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 taken by Tetens, a Swedish writer, (Sur les Droits Reciprogues, pp. 111–113.) Hubner, (lib. II., ch. I., §§ 8, 9,) seems to be of the same opinion with Tetens and Mussé."

Klüber, (§ 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." Dana's Wheaton, Elements of Intern. Law, note 226, p. 629.

Lushington, (Naval Prize Law, pp. 35, 36, §§ 169-172,) states the following rules as embodying the present British law:

All goods fit for purposes of war only, and certain other goods which, though fit for purposes of peace, are in their nature peculiarly serviceable to the enemy in war, on board a vessel which has a hostile destination, are absolutely contraband.”

The list of goods absolutely contraband comprises:

Arms of all kinds, and machinery for manufacturing arms; ammunition and materials for ammunition, including lead, sulphate of potash, muriate of potash, (chloride of potassium,) chlorate of potash, and nitrate of soda; gunpower and its materials, saltpetre and brimstone; also gun-cotton; military equipments and clothing; military stores; naval stores, such as masts, (Charlotte, 5 C. Robinson's Rep., 305; Staadt Embden, 1 Id., 27,) spars, rudders, and ship timber, (Twende Brodre, 4 C. Robinson's Rep., 33,) hemp, (Apollo, 4 C. Robinson's Rep., 161; Evert, 4 Id., 354; Gute Gesellschaft Michael, 4 Id., 94,) and cordage, sail-cloth, (Neptunus, 3 C. Robinson's Rep. 108;) pitch and tar, (Jonge Tobias, 1 C. Robinson's Rep., 329 ; Twee Juffrowen, 4 Id., 242; Neptunus, 6 Id., 408;) copper, fit for sheathing vessels, (Charlotte, 5 C. Robinson's Rep., 275;) marine engines, and the component parts thereof, including screw-propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler-plates, and firebars; marine cement, and the materials used in the manufacture thereof, as blue lias and Portland cement; iron, in any of the following forms,— anchors, rivet-iron, angle-iron, round bars of from three-quarters to fiveeighths of an inch diameter, rivets, strips of iron, sheet plate-iron exceeding one-quarter of an inch, and low moor and bowling plates.

All goods fit for purposes of war and peace alike, (not herein before specified as absolutely contraband,) on board a vessel which has a hostile destination, are conditionally contraband; that is, they are contraband only in case it is to be presumed that they are intended to be used for purposes of war. This presumption arises when such hostile destination of the vessel is either the enemy's fleet at sea, or a hostile port used exclusively or mainly for naval or military equipment."

The list of goods conditionally contraband comprises :

Provisions and liquors fit for the consumption of army or navy, (Haabet, 2 C. Robinson's Rep., 182; Jouge Margaretta, 1 Id. 191; Ranger, 6 Id., 125; Edward, 4 Id., 68;) money; telegraphic materials, such as wire, porous cups, platina, sulphuric acid, and zinc, (see Parliamentary Papers, North America, No. 14, 1863, p. 5, and see note to Article 964 of this Book ;) materials for the construction of a railway, as iron-bars, sleepers, &c.; coals, (see Lord Kingsdown's Speech in the House of Lords, May 26, 1861 ;) hay; horses; rosin, (Nostra Signora de Begona, 5 C. Robinson's Rep., 98;) tallow, (Neptunus, 3 C. Robinson's Rep., 108;) timber, (Twende Brodre, 4 C. Robinson's Rep., 37.)

Provisions have not in general been deemed contraband by the modern law of nations, if destined for the ordinary use of life in the enemy's country; but it has been held that they may become so, although the

property of a neutral, by reason of the particular situation of the war, or of their destination; as if destined for a military use. The Commercen, 1 Wheaton's U. S. Supr. Ct. Rep., 382, 387.

And if they are the growth of a neutral exporting country, they are not contraband; but if they are the growth of the enemy's country, and more especially if the property of his subjects, and destined for enemy's use, they are not exempt from the contraband character, even though they are destined to a neutral country. Ib. Compare Maisonnaire v. Keating, 2 Gallison's U. S. Circ. Ct. Rep., 325; The Stephen Hart, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 387; The Springbok, Id., 434; The Peterhoff, Id., 463, 528.

In the case of The Bermuda, it was held that printing presses, materials and paper, and Confederate States postage stamps, belonging to the enemy, and intended for its immediate use, were contraband. 3 Wallace's U. S. Supr. Ct. Rep., 514, 552.

In very recent treaties, the two latter of the three classes, described by Chief Justice CHASE, have been substantially excluded.

By the foregoing review of the authorities, two rules are suggested for consideration in framing such a Code as this: One, that of our text, which prohibits only goods manufactured for war use; the other, that which forbids all articles which, without further manipulation, could serve for immediate military or naval armament. The latter rule was that adopted by the Italian government, in their instructions to their commanders in the war with Austria, in 1866. Lushington's Naval Prize Law, Intro., p. viii., note.

The former rule is, however, so much more definite, and already more or less fully adopted by so many treaties, that it is preferred here as the more feasible of the two.

The leading treaties are as follows:

By the treaty between France and Peru, March 9, 1861, Art. XXI., (8 De Clercq, 201,) contraband is defined as including only articles expressly made for war on sea or land.

The treaties between the United States and

provide that the liberty of navigation and commerce shall extend to all kinds of merchandise, excepting those only which are distinguished by the name of contraband of war, and under this name shall be comprehended: 1. Cannons, mortars, howitzers, swivels, blunderbusses, muskets, fusees, rifles, carbines, pistols, pikes, swords, sabres, lances, spears, halberds, grenades, bombs, powder, matches, balls, and everything belonging to the use of arms; 2. Bucklers, helmets, breast-plates, coats of mail, accoutrements, and clothes made up in military form and for military use; 3. Cavalry belts and horses, with their harness; 4. And gener

ally, all offensive or defensive arms, made of iron, steel, brass, copper, or of any other material prepared and formed to make war by land or at sea.

The treaty between the United States and The Two Sicilies, Art. III., Dec. 1, 1855, 11 U. S. Stat. at L., 639, enumerates as contraband: cannons, mortars, petards, grenades, muskets, balls, bombs, gun-carriages, gunpowder, saltpetre, matches, troops, whether infantry or cavalry, together with all that appertains to them; as also every other munition of war, and generally every species of arms, and instruments in iron, steel, brass, copper or any other material whatever, manufactured, prepared, and made expressly for purposes of war, whether by land or sea.

The treaty between the United States and Venezuela, Art. XIII., Aug. 27, 1860, 12 U. S. Stat. at L., 1143, enumerates as contraband, the following: gunpowder, saltpetre, petards, matches, balls, bombs, grenades, carcasses, pikes, halberds, swords, belts, pistols, holsters, cavalry saddles and furniture, cannons, mortars, their carriages and beds, and generally all kinds of arms, ammunition of war, and instruments fit for the use of troops.

By the treaty between the United States and

Dominican

Republic,
Bolivia,

Art. XIV., Feb. 8, 1867, 15 U. S. Stat. at L., (Tr.,) 167.

all merchandises and things not comprehended in the articles of contraband explicitly enumerated and classified in the treaty, shall be held and considered as free, and subjects of free and lawful commerce, so that they may be carried and transported in the freest manner by the members of both nations, even to places belonging to an enemy, excepting only those places which are at the time besieged or blockaded.

See also Katchenovsky's Prize Law, by Pratt, p. 118.

It will be observed that saltpetre, matches and horses, mentioned in the foregoing treaties are not included in the definition given in the above Article. The rule there proposed is intended to protect belligerents' rights, and at the same time avoid the mischiefs which result from subjecting other classes of property to capture, and the uncertainty which attends the endeavor to maintain the existing rules. It is not necessary here to review the intricate mass of authorities on questions that will be superceded by the adoption of such a rule as is here proposed.

If it be thought preferable to include all articles which may subserve the purpose of the war, the following clause may be added to Article 859: And all other articles necessary and intended for the maintenance of armaments and combatants.”

Goods on board ship exempt from capture.

860. All goods of whatever character, on board a ship that is exempt from capture, and not exceeding in

quantity that which may be required for the use of the ship and her crew, are exempt from detention or capture.

Lushington's Naval Prize Law, p. 35, § 168.

Contraband documents.

861. Documents are contraband when they are official communications from or to officers of a hostile nation, and fitted to subserve the purposes of the war, but not otherwise.

Sir William Scott interprets "despatches," treated of in the decisions as warlike or contraband communications, to be "official communications of official persons, on the public affairs of the government." The Caro. line, 6 Ch. Robinson's Rep., 465. But to this rule there is an exception in the case of communications to or from a neutral nation, or the hostile nation's ministers or consuls resident in the neutral nation.

As to the effect of war upon the mail service, see Article 915.

Contents of mails not contraband.

862. The contents of mails upon mail packets, owned or employed by any nation, are not contraband of war.

This rule is submitted as a proper one, although the contrary is now recognized.

Lushington, (Naval Prize Law, Introd., p. xii.,) says, that to give up altogether the right to search mail steamers and bags, when destined to a hostile port, is a sacrifice which can hardly be expected from belligerents; citing Desp. of Earl Russell to Mr. Stuart, November 20, 1862, Parliamentary Papers, No. Amer., No. 5, 1863.

As to suspension of mail service, see Article 915.

Detention and confiscation of contraband.

863. Things which are contraband of war are liable to capture and confiscation, and persons who are contraband of war are liable to capture and detention, in the manner provided in this Book; but the ship or contents thereof, not being contraband, are not liable to condemnation nor detention, except as provided by articles 871 and 877.

This rule is drawn from recent treaties, which provide that articles of contraband, which may be found in a vessel bound to an enemy's port,