English authors have generally favoured the views of their Government in its extension of the list of contraband to all articles of promiscuous use in peace and war. One of their latest text-writers, Reddie, defines contraband to be: 'I. Articles which have been constructed, fabricated, or compounded into actual instruments of war. 2. Articles which from their nature, qualities, and quantities, are applicable and useful for the purposes of war. 3. Articles which, although not subservient generally to the purposes of war, such as grain, flour, provisions, naval stores, become so by their special and direct destination for such purposes, namely, by their destination for the supply of armies, garrisons, or fleets, naval arsenals, and posts of military equipment.' The continental writers, generally, contend against the English extension of contraband. Among the most recent are Hautefeuille and Ortolan. The former admits but one class of contraband, and confines it to objects of first necessity for war, which are exclusively useful in war, and which can be directly employed for that purpose, without undergoing any change. The latter declares his opinion to be, that, on principle, under ordinary circumstances, arms and munitions of war, which serve directly and exclusively for belligerent purposes, are alone contraband. He admits that in special cases certain determinate articles, whose usefulness is greater in war than in peace, are, from circumstances, in their character contraband, without being actually arms and munitions of war, such as timber, evidently intended for the construction of ships of war, or for gun-carriages, boilers or machinery for the enemy's steam-vessels, sulphur, saltpetre, or other materials for arms or munitions of war. Phillimore reviews the whole question, and considers that provisions may or may not be contraband, according to their destination and probable use. Heffter is of opinion that certain articles, as provisions, not in their nature contraband, may, in certain cases, from their destination and intended use, be regarded as such.1

§ 16. And the same discordancy in the definition of con

1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 26; Kent, Com. on Am. Law, vol. 1. pp. 135-143; Duer, On Insurance, vol. i. pp. 622-644; Reddie, Researches Hist. and Crit. in Mart. Int. Law, vol. ii. p. 456; Hautefeuille, Des Nations Neutres, tit. 8, § 2; Ortolan, Dip. de la Mer, tome ii. ch. vi.; Phillimore, On Int. Law, vol. iii. § 245, et seq.; Heffter, Droit International, § 160.

traband is to be found in the conventional law of nations, as established by treaties, the provisions of which are various and contradictory,-even of those made, at different periods, between the same nations. The same may be said of marine ordinances and diplomatic discussions. The marine ordinances of Louis XIV., 1681, limits contraband to munitions of war. So, also, the treaties between England and Sweden in 1656, 1661, 1664, and 1665. Bynkershoek refers to other treaties of the seventeenth century, as containing the same limitation. But Valin says that in the treaty of commerce between France and Denmark, in 1742, pitch, tar, resin, sailcloth, hemp, cordage, masts and ship-timber, were declared to be contraband. By the treaty of Utrecht, in 1713, and the subsequent treaties of 1748, 1763, 1783, and 1786, between Great Britain and France, contraband was strictly confined to munitions of war; all other goods not worked into the form of any instrument or furniture for warlike use, by land or sea, are expressly excluded from this list. But the contraband character of naval stores continued a vexed question between Great Britain and the Baltic powers. By the treaty of 1801, between Great Britain and Russia, to which Denmark and Sweden subsequently acceded, saltpetre, sulphur, saddles and bridles, were enumerated as contraband; and by the convention of July 25, 1803, the list was augmented by the addition of coined money, horses, equipments for cavalry, and all manufactured articles serving immediately for the equipment of ships of war. In the treaty of 1794, between Great Britain and the United States, it was stipulated (article 18) that under the denomination of contraband should be comprised all arms and implements serving for the purposes of war, and also timber for shipbuilding, tar or rosin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted.' The article then goes on to provide, that 'whereas the difficulty of agreeing on the precise cases, in which alone provisions and other articles, not generally contraband, may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise, it is further agreed that whenever any such articles, so becoming contraband, according to the

existing law of nations, shall, for that reason, be seized,' etc., the owners thereof shall be paid their value, etc.1

§ 17. The numerous treaties to which the United States have been parties, and which contain any stipulations respecting contraband, with the single exception of the one just referred to with England, in 1794, confine the term to arms and munitions of war, and in the early ones, naval stores are, in express terms, excluded from the list. The more modern treaties between European powers are not calculated to throw much light upon this subject. The declarations of the French and English governments, at the commencement of the war with Russia, in 1854, except contraband of war from the articles to which impunity is accorded, but they contain no new definition of contraband. But the British Order in Council of February 18, 1854, issued in anticipation of the declaration of war, prohibits from being exported or carried coastwise, ' all arms, ammunition and gunpowder, military and naval stores, and the following articles, being articles which are judged capable of being converted into, or made useful in increasing the quantity of military or naval stores, that is to say, marine engines, screw propellers, paddle wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler plates, fire bars, and every article or any other component part of an engine or boiler, or any article whatever, which is, or can, or may become applicable for the manufacture of marine machinery.'" Although this order, and its subsequent modification, was probably not intended as a fresh declaration of contraband of war, yet it was evident from the character of the order itself, and from answers given by the ministers in the House of Commons, that the parts and elements of steam machinery, and also coals, were to be

Merlin, Répertoire, verb. 'Prise Maritime,' § 3, art. 1; Pistoye et Duverdy, Traité des Prises, tit. vi. ch. ii. § 3.

2

By virtue of the 39 and 40 Vict. c. 36, § 138, the following goods may, by Proclamation or Order in Council, be prohibited either to be exported or carried coastwise: Arms, ammunition, and gunpowder, military and naval stores, and any articles which Her Majesty shall judge capable of being converted into or made useful in increasing the quantity of military or naval stores, provisions, or any sort of victual which may be used as food by man; and if any goods so prohibited shall be exported or brought to any quay or other place to be shipped for exportation from the United Kingdom or carried coastwise, or be water-borne to be so exported or carried, they shall be forfeited.

regarded as articles ancipitis usûs, not necessarily contraband, but liable to be considered so, if they were to be applied to the military or naval uses of the enemy. A Swedish ordinance, of April 8, 1854, section fifth, enumerates as contraband of war, all kinds of arms, munitions of war, military stores, saddles, bridles, and other manufactured articles, immediately applicable to warlike purposes.

§ 18. Again, if we recur to the decisions of prize courts, although we shall find less discordancy, perhaps, than in the other sources of international law, we nevertheless shall encounter a diversity of sentiment, on some points, which it would be vain to attempt to reconcile. Even in the same country, at different periods, the decisions have been various and contradictory. Thus, in England, Sir Leoline Jenkins, the judge of admiralty in the reign of Charles II., 1674, in the case of a Swedish vessel, laden with naval stores, already referred to, decided that such commodities as pitch, tar, and naval stores, except in case of besieged places, ought not to be judged contraband; while Sir William Scott condemned naval stores as contraband, even when bound to a mercantile port only, as they may then be applied to immediate use in the equipment of privateers, or 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.' The same authority sustained the orders and instructions to English cruisers, to seize all neutral vessels laden with corn, flour, meal, and other provisions, bound to ports of France, upon the ground that by the modern law of nations, all provisions are to be considered contraband, and, as such, liable to confiscation, whenever the depriving the enemy of these supplies is one of the means to be employed in reducing him to terms.'

§ 19. As already stated, it is not our present intention to attempt to reconcile conflicting opinions and decisions, or to deduce, from any process of reasoning, the rules of a universal law applicable to contraband of war. But we will endeavour to state what has been decided to be contraband by the prize courts of Europe and of the United States, wherein the courts are generally agreed, and wherein they have differed

1 Life and Cor. of Sir L. Jenkins, vol. ii. p. 751; the Richmond,' 5 Rob., 325.

in opinion. It is, perhaps, of as much importance to know what has been, and is likely to be, administered as the law, in the courts of the principal commercial States, as to know what ought, in theory, to be established as the conventional law of nations. The liability to capture can only be determined by the rules of international law, as interpreted and applied by the tribunals of the belligerent State, to the operations of whose cruisers the neutral merchant is exposed.

§ 20. It is universally admitted, as already remarked, that all instruments and munitions of war are to be deemed contraband, and subject to condemnation. This rule embraces, by its terms, and by fair construction, all ordnance and arms of every description, balls, shells, shot, gunpowder, and articles of military pyrotechny, gun-carriages, amunitionwaggons, belts, scabbards, holsters, all military equipments and military clothing. Any vessel, evidently built for warlike purposes, as gun and mortar boats, and destined to be sold for such use, is clearly liable to confiscation under the same rule. To this list are to be added all articles, manufactured or unmanufactured, which are almost exclusively used for military purposes, as machinery for manufacturing arms, and saltpetre, and sulphur for making gunpowder.1

§ 21. It is an established doctrine of the English Admiralty, that all manufactured articles that in their natural state are fitted for military use, or for building and equipping ships of war, such as masts, spars, rudders, wheels, tillers, sails, sail-cloth, cordage, rigging, and anchors, are contraband in their own nature, to the same extent as munitions of war, and that no exception is admitted in their favour, unless created by express provisions of a treaty. Since the introduction of steam, as a motive power, in ships of war, the British prize courts would probably, upon the same principle, condemn as contraband all marine engines, screw propellers, cylinders, shafts, boilers, boiler plates, tubes, fire bars, and every component part of a marine engine or boiler, and every article suitable for the manufacture of marine machinery.2

1 Phillimore, On Int. Law, vol. iii. § 229; Duer, On Insurance, vol. i. p. 635; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 24. Torpedoes, and all electric gear connected with them or with artillery, would be included in this list.

Phillimore, On Int. Law, vol. iii. § 234; Edinburgh Review, No. 203, July, 1854.