question open.1 It is important, as Sir R. Phillimore remarks, that Bynkershoek adopts the principle of considering the circumstances of each case, and that the list of contraband articles must therefore, according to him, be variable. Vattel enumerates arms and munitions of war, timber, and everything which serves for the construction and armament of vessels of war, horses, and even provisions, on certain occasions when there is hope of reducing the enemy by famine.'2 Valin, writing in 1766, says that'tar has also been declared to be contraband, with pitch, resin, sailcloth, hemp, and cordage, masts and shipbuilding timber. Thus, apart from their contravention of particular treaties, there is no reason to complain of the conduct of the English, for by right these things are now contraband, and have been so from the beginning of the century, though formerly the rule was otherwise.'s Lampredi reduces contraband merchandise to those articles only, 'which are so formed, adapted, and specialised as to be unfit to serve immediately and directly for other than warlike use.' He appears to ground his doctrine upon the 14 1 Excute pacta gentium, quæ diximus, excute et alia quæ alibi exstant, et reperies, omnia illa appellari contrabanda, quæ uti hostibus suggeruntur, bellis gerendis inserviunt, sive instrumenta bellica sint, sive materia per se bello apta. . . . Atque ante judicabis, an ipsa materia rerum prohibitarum quoque sit prohibita ? Et in eam sententiam, si quid tamen definiat, proclivior esse videtur Zocchius (De Jure Feciali, pt. ii. s. vii. q. 8). Ego non essem, quia ratio et exempla me moveant in contrarium. Si omnem materiam prohibeas, ex quâ quid bello aptari possit, ingens esset cata The First language of treaties. On comparing the jarring opinion of these different authors with the treaties. which have been enumerated and with the indications of unilateral practice which here and there occur in history, it seems to stand out with tolerable clearness that no distinct rule existed in the eighteenth century with regard to the classification of merchandise as innocent or as contraband. On the one hand there is no doubt that France thought it to her interest to restrict the number of articles. classed under the latter head; on the other it is as evident that England wished to preserve entire freedom of action; but the position of other nations is not so certain, and the extended catalogues which were sanctioned by a German, a Swiss, and a Frenchman must have been grounded on a wider opinion than could be evidenced by the practice of England and Holland alone. Neutrality. time It was natural, however, that the secondary maripowers should in time accommodate their theories. to their interests. They were not sure of being able as belligerents to enforce a stringent rule; they were certain as neutrals to gain by its relaxation. Accordingly, in 1780 Russia issued a declaration of neutral rights, among the provisions of which was one limiting articles of contraband to munitions of war and sulphur.1 Sweden and Denmark immediately adhered to the declaration of Russia, and with the latter power formed the league known as the First Armed Neutrality. Spain, France, Holland, the United States, Prussia, and Austria, acceded to the alliance in the course of the following year. Finally it was joined in 1782 by Portugal, and in 1783 by the Two Sicilies. It is usual for foreign publicists to treat the for1 See Appendix I. mation of the Armed Neutrality as a generous effort to bridle the aggressions of England, and as investing the principles expressed in the Russian declaration with the authority of such doctrines as are accepted by the body of civilised nations. It is unnecessary to enter into the motives which actuated the Russian government; but it is impossible to admit that the doctrines which it put forward received any higher sanction at the time than such as could be imparted by an agreement between the Baltic powers. The accession of France, Spain, Holland, and the United States was an act of hostility directed against England, with which they were then at war, and was valueless as indicating their settled policy, and still more valueless as manifesting their views of existing international right. It was the seizure by Spain of two Russian vessels laden with wheat which was the accidental cause of the original declaration, and within a few months of adhering to the league France had imposed a treaty upon Mecklenburg, and Spain had issued an Ordinance, both of which were in direct contradiction to parts of the Declaration.2 The value of Russian and Austrian opinion in the then position of those countries as maritime powers is absolutely trivial. Whatever authority the principles of the Armed Neutrality possess, they have since acquired by inspiring to a certain but varying extent the policy of France, the United States, Russia, and the minor. powers. On the outbreak of war between France and France. England in 1793, the Convention decreed that neutral 1 The intrigues which led to the issue of the Russian declaration are sketched by Sir R. Phillimore, iii. § 186; see also Lord Stanhope, Hist. of Eng., chap. lxii. 2 All the signataries to the Declaration of the Armed Neutrality violated one or other of its provisions when they were themselves next at war. United vessels laden with provisions destined to an enemy's port should be brought in for preemption of the cargo,1 although treaties were then existent between France and the Hanse Towns, Hamburg, the United States, Mecklenburg, and Russia, in which it was stipulated that provisions should not be contraband of war. But the Prize Courts seem to have acted upon the rules of the Ordinance of 1681;2 and of the few treaties which have been concluded by France during the present century, only one varies from the form which is usual in her conventions.3 The conduct of the United States has been less consistent. Between 1778 and the end of the century they concluded four treaties, by which munitions of war, horses, and sulphur or saltpetre, or both, were ranked as contraband; and provisions, money and metals, ships and articles of naval construction, were declared to be innocent. The treaty of 1794 with England includes naval stores among objects of contraband, and provides, when 'provisions and other articles not generally contraband are seized,' that they shall not be confiscated, but that the owner shall be indemnified.5 But the Government of the United States did not look upon provisions as incapable of entering the class of prohibited articles under special circumstances; for in 1793, while protesting against the Instructions issued by England in June of that year, it argued against them on the ground that provisions can only be contraband when carried to a place which is actually invested, and which therefore naval stores. Phillimore, iii. § 260. 1 Phillimore, iii. § 245. The decree was issued on May 9, and the English Instructions to the like effect were dated June 8. 2 Il Volante, Pistoye et Duverdy, i. 409. 3 The convention with Denmark made in 1842 includes 4 France, 1778 (De Martens, Rec. ii. 598); Holland, 1782 (ib. iii. 451); Sweden, 1783 (ib. 569); Spain, 1795 (ib. vi. 561). 5 De Martens, Rec. v. 674. there is a well-founded expectation of reducing by famine.1 And it fully recognised that materials of naval construction are contraband by the common usage of nations.2 In a case arising out of the subsequent war with England, the Prize Courts of the United States held that provisions 'destined for the army or navy of the enemy, or for his ports of naval equipment,' were to be deemed contraband.3 the nine States. § 39. In the present century a treaty of the United States with England retains naval stores and Practice in saltpetre, and is silent upon other points; another with teenth Sweden includes sulphur and saltpetre, excluding century. naval stores; a third with France follows the terms United affected by the latter power; and nine treaties, all contracted with American States, mention munitions of war and horses; and treat provisions, moneys, metals, ships, and articles of naval construction as innocent. That with Mexico contains the special stipulation that provisions destined to a besieged port are to be excepted from the usual immunity. It would seem, on the whole, that the United States have always recognised the English doctrine of contraband to be more in consonance with existing usage than that of France, but that they have wished in certain cases to limit the application of the rule by express convention. The practice of the Baltic States is of less interest, 1 Mr. Randolph to Mr. Hammond, May 1, 1794, American State Papers, i. 450. 2 Mr. Pickering to Mr. Pinckney, Jan. 16, 1797, American State Papers, i. 560. 3 Maisonnave v. Keating, ii Gallison, 335; The Commercen, i Wheaton, 387. 4 England, 1806 (De Martens, Nouv. Rec. viii. 584); Sweden, 1827 (ib. vii. 279); |