ture, the fraud, in some manner, has become quite transparent.

commerce pro

The next exception to the general right of neutral Contraband nations to pursue their accustomed commerce, in hibited to neutime of war, is that which prohibits their commerce tral nations. with the enemy in such articles as are denominated contraband.

What commerce shall be deemed contraband, between the forces of belligerent states and the merchants of neutral nations, has occasioned infinite discussion, and the rule has been subjected to frequent fluctuations, in accordance with the prevalence of the policy of the rigor of war or the freedom of commerce. The early elementary writers upon this subject distinguish between articles which are useful only as serving the purposes of war, such as arms and ammunition; such articles as serve the purposes of pleasure simply, and such as are of a mixed nature, that is to say, useful both in war and in peace. As to articles of the third description, the great, and perhaps the only difficulty arises; for whether they should be regarded as contraband or not, depends entirely upon the circumstances existing at the time.2

traband com

"The catalogue of contrabands has varied very What are conmuch, and in such a manner," says Lord Stowell, modities. as to make it very difficult to assign the causes

for the variations; owing to peculiar circumstances the reason of which has not accompanied the history of the decisions." It is universally conceded that

2

'Rose vs. Himeley, 4 Cranch, 272. Grotius, Book III., c. i., § 5. The Jonge Margaretha, 1 Rob., 189.

Question as to provisions.

commodities particularly useful in war, such as arms, ammunition, horses and their equipments, timber and materials for ship-building, and naval stores of all kinds, are contraband.1

The greatest difficulty seems to have arisen in the article of provisions. On occasions when the expectation has been to accomplish the purposes of war by reducing the enemy to famine, provisions have been held to be contraband. At other times, the criterion adopted by the courts, in determining whether the article of provisions is or is not contraband, has been, whether upon examination it is found to be in a crude condition, or whether it be in a condition of preparation for immediate consumption. On the same principle, unwrought iron has been regarded with more indulgence than iron fabricated for use, as anchors, &c.

Thus, too, hemp has been regarded as an allowable article of merchandise, while cordage is contraband; and wheat has been held to be a lawful article of trade, while biscuit, or any of the final preparations of it for human use, are held to be unlawful.

The rigid rule of law, and its modern relaxations as to provisions, are explained by Lord Stowell in a case in which the question was directly before the court. "The right," he says, "of taking pos session of cargoes of this description, going to an

1

Vattel, Book III., c. vii., § 112.

The Jonge Margaretha, 1 Rob., 189.

The Haabet, 2 Rob., 182; vide also, The Jonge Hermanas, 4 Rob., 95; The Gute Gesellschaft, 4 Rob., 94; The Charlotte Fox, 5 Rob., 275; The Twee Juffrowen, 4 Rob., 158; The Jonge Tobias, 1 Rob., 329; The Mana, 1 Rob., 340; The Zacheman, 5 Rob., 152.

substituted for

enemy's ports, is no peculiar claim of this country, it belongs generally to belligerent nations. The ancient practice of Europe, or of several maritime states of Europe, was to confiscate them entirely. A century has not elapsed since this claim has been asserted by some of them. A more mitigated prac- As to provi tice has prevailed in later times of holding such of pre-emption cargoes subject only to the right of pre-emption-confiscation in that is, to a right to purchase, upon a reasonable certain cases. compensation, to the individual whose property is thus diverted. I have never understood, that on the side of the belligerents, this claim goes beyond the case of cargoes avowedly bound to the enemy's ports, or suspected, on just grounds, to have a concealed destination of that kind; or that, on the side of the neutral, the same exact compensation is to be expected, which he might have demanded from the enemy in his own port. The enemy may be distressed by famine, and may be driven by his necessities to pay a famine price for his commodities; if they get there, it does not follow that, acting upon my rights of war in intercepting such supplies, I am under obligation of paying that price of distress."

In strictness, according to the current of authority of the courts, all provisions are contraband. In this rude condition, however, the right of confisca tion is waived for the more lenient one of pre-emption; but the rigid rule of confiscation is applied when the provision has been manufactured into a condition for immediate use.1

1 Vide diplomatic correspondence between Mr. Hammond on the part of England, and Mr. Jefferson and Mr. Randolph on the part of the United States, Sept. 12, 1793, and April 12, 1794; and Mr. Pickering and Mr. Monroe, Sept. 12, 1795. The Com

Destined use, a national question.

In the determination of the question of contraband, there is no circumstance of so much importance as that of the destination of the cargo in question.

"The most important distinction," says Lord Stowell, in a case already cited, "is, whether the articles were intended for the ordinary use of lite, or even for mercantile ship's use, or whether they were going with a very highly probable destination to military use. Of the matter of fact on which the distinction is to be applied, the nature and quality of the port to which the articles are going. is not an irrational test. 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 ship of war may be constructed in that port. On the contrary, if the great predominant character of the port be that of a port of naval military 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 determine 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 mercen, 2 Gall., 269, and 1 Wheat., 382; The Jonge Andrews, 1747; The Zelden Rust, 6 Rob., 93; The Ranger, 6 Rob., 125; The Edward, 4 Rob., 68.

supply of those articles would be eminently useful."

The relaxation of the rule of confiscation of ar ticles which are decidedly contraband in their character, for that of pre-emption, is applied to cases where the article in question (as naval stores) is the product of the claimant's own country; for it is considered that confiscation would be a harsh exercise of a belligerent's right, to prohibit a material branch of the neutral's natural trade.2

With the exception, however, of these cases of relaxation, substituting pre-emption for confiscation, when the merchandise is clearly proved to be contraband, confiscation to the captor ensues as of course. The simple detention of such articles would be an ineffectual method of redress; for it is essential that the apprehension of loss should operate as a check to the avidity of gain, and thus deter neutral merchants from all attempts to supply the enemy with such commodities. It is this necessity, resulting from a proper regard for the nation's welfare and security, which induces the declaration that all such merchandise, destined for the enemy's country, shall be considered lawful prize. "On this account," says Vattel," "she notifies to neutral

The Jonge Margaretha, 1 Rob., 194; vide also, The Nostra Senora de Begona, 5 Rob., 99; The Neptunus, 3 Rob., 108; The Richmond, 5 Rob., 325; The Brutus, 5 Rob., app. 1; The Jonge Jan, 1 Dod., 458; The Endraught, 1 Rob., 23; The Elonora Wilhelmina, 6 Rob., 331; The Charlotte, 5 Rob., 305; The Mende Brodee, 4 Rob., 33; The Friendship, 6 Rob., 420.

The Sarah Christina, 1 Rob., 237; The Ringande Jacob, 1 Rob., 90; The Apollo, 4 Rob., 158; The Evart Evarts, 4 Rob.,

354.

'Vattel, Book III., c. vii., § 113.