"The greater number of the European powers, so far as I have observed, have failed to avow their position on this question. England, however, found her navigation and commercial interests so much involved that her Government appears to have protested against the doctrine. At the risk of duplicating the information already on the files of the Department, I inclose herewith a printed summary of the AngloFrench views of the question, deeming it worthy of preservation in the files of important international questions. "But more especially I beg your attention to the importance of the principle involved in this declaration, as it concerns our American interests. We are neutrals in European wars. Food constitutes an immense portion of our exports. Every European war produces an increased demand for these supplies from neutral countries. The French doctrine declares them contraband, not only when destined directly for military consumption, but when going in the ordinary course of trade as food for the civil population of the belligerent Government. If food can be thus excluded and captured, still more can clothing, the instruments of industry, and all less vital supplies be cut off on the ground that they tend to support the efforts of the belligerent nation. Indeed, the real principle involved goes to this extent, that everything the want of which will increase the distress of the civil population of the bellig. erent country may be declared contraband of war. The entire trade of neutrals with belligerents may thus be destroyed, irrespective of an effective blockade of ports. War itself would become more fatal to neutral states than to belligerent interests. "The rule of feudal times, the starvation of beleaguered and fortified towns, might be extended to an entire population of an open country. It is a return to barbaric habits of war. It might equally be claimed that all the peaceful men of arms-bearing age could be deported, because otherwise they might be added to the military forces of the country. The United States and other countries have hitherto refused to recognize coal as contraband of war, indispensable as it is to the equip ment of war steam cruisers, because its chief use is for peaceful objects. But this French doctrine goes far beyond that. "Although the Franco-Chinese war is ended, there is always danger that this precedent will be again adopted in the heat of another war, unless resisted by energetic protests in the interests of neutral trade and of humanity itself. Its adoption indeed would practically nullify the advantages of neutrals intended to be secured by the Paris declara tions of 1856." Mr. Kasson, minister at Berlin, to Mr. Bayard, Sec. of State, Apr. 23, 1885. Provisions sent to a belligerent are not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life in the enemy's country, they are not, in general, contraband; but it is otherwise if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband. Another exception from being treated as contraband is, where the provisions are the growth of the neutral exporting S. Mis. 162-VOL. III- -28 433 country. But if they be the growth of the enemy's country, and more especially if the property of his subjects, and destined for enemy's use, there does not seem any good reason for the exemption; for, as Sir William Scott has observed, in such a case the party has not only gone out of his way for the supply of the enemy, but he has assisted him by taking off his surplus commodities. The Commercen, 1 Wheat., 382. Provisions may become contraband of war when destined to a port of naval equipment of an enemy, and a fortiori, when destined for the supply of his army. Maisonnaire v. Keating, 2 Gallison, 325. (3) AS TO MONEY. § 371. Money sent a belligerent country for payment of debts or purchase of goods is not to be regarded as contraband of war. It is otherwise when forwarded to assist belligerent operations. See infra, § 390. "While it may be conceded that the cases to which you refer as deciding that even provisions bound to an enemy's port may, in peculiar circumstances, be regarded as contraband, are founded in correct principles, I have not yet succeeded in finding a case in which paper money, intended for a foreign Government, has been seized or condemned as contraband." Mr. Blaine, Sec. of State, to Mr. Martinez, June 3, 1881. MSS. Notes, Chili. "You seek to justify the seizure on the ground that money, or its representative, may, under special circumstances, be regarded as contraband of war, and consequently, that the seizure, in this case, was a lawful one. You do not, however, specify the circumstances under which money may be so regarded, nor do you refer to the text of the law of nations or to the cases in prize courts where the doctrine bas been maintained. Diligent but fruitless search has here been made for them. It is possible that the maritime courts of a belligerent may, in some instance, have so determined, but there is not believed to be any reported case of the kind. Same to same, May 18, 1881; ibid. Money, silver-plate, and bullion, when destined for hostile use or for the purchase of hostile supplies, being contraband of war, where a foreign vessel entered New Orleans under the license of the President's proclamation of May 12, 1862, the determination of the question as to whether articles of this class, part of her outward-bound cargo, were cou traband, devolved upon the Federal general commanding in that city. Believing them to be so, he was authorized to order them to be removed from her, and her clearance to be withheld until his order should be complied with. U. S. v. Diekelman, 92 U. S., 520. That it is not a breach of neutrality to permit subjects or citizens to lend money to a belligerent, see infra, §§ 388–390. (4) AS TO HORSES. § 372. By the 24th article of the treaty with France of 1778, "horses with their furniture" were contraband. 1 Op., 61, Lee, 1796. As between countries on the same continent, horses are usually regarded as contraband, since, when they can be readily transported, they form an important and peculiarly available contribution to military strength. Hall's Int. Law, 615. (5) AS TO MERCHANDISE. "If Mexico shall prescribe to us what merchandise we shall not sell to French subjects, because it may be employed in military operations against Mexico, France must equally be allowed to dictate to us what merchandise we shall allow to be shipped to Mexico, because it might be belligerently used against France. Every other nation which is at war would have a similar right, and every other commercial nation would be bound to respect it as much as the United States. Commerce in that case, instead of being free or independent, would exist only at the caprice of war." Mr. Seward, Sec. of State, to Mr. Romero, Dec. 15, 1862. MSS. Notes, Mex. Citizens of the United States have, by the law of nations and by treaty, the right to carry to the enemies of Spain, whether insurgents or foreign foes, all merchandise not contraband of war, subject only to the requirements of legal blockade. "Articles contraband of war, when destined for the enemies of Spain, are liable to seizure on the high seas, but the right of seizure is limited to such articles only, and no claims for its extension to other merchandise, or to persons not in the civil, military, or naval service of the enemies of Spain, will be acquiesced in by the United States. This Government certainly cannot assent to the punishment by Spanish authorities of any citizen of the United States for the exercise of a privilege to which he may be entitled under public laws and treaties." Mr. Fish, Sec. of State, to Mr. Roberts, Apr. 3, 1869. MSS. Notes, Spain. In Dana's Notes to Wheaton we have the following summary: "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, 84, 101, 154, 412; tom. iii, 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, bé contraband; as sulphur, saltpeter, marine steam machinery, etc.; but coal, he contends, from its general necessity, is always free. (Tom. ii, ch. vi, 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, 111-113). Hubner (lib. ii, ch. i, §§ 8, 9), seems to be of the same opinion with Tetens and Massé. 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, 629, note 226. The English courts treat as goods absolutely contraband ammunition and materials for ammunition; military and naval equipments and stores (Charlotte, 5 C. Rob., 305); hemp, cordage, and other materials for fitting up shipping (Neptunus, 3 C. Rob., 329; 6 C. Rob. 408); and steam engines and machinery for steamers (Lushington, Prize Law, §§ 169-172). It has also been ruled that printing presses, materials, and paper, and postage stamps, belonging to the enemy, and intended for its immediate use, are contraband. (The Bermuda, 3 Wall. 514, 552.) "The doctrine of occasional contraband received its widest extension in the war of England against revolutionary France. The British representative to our Government claimed, in 1793 and 1794, that by the law of nations all provisions were to be considered as contraband, in the case where the depriving the enemy of these supplies was one of the means employed to reduce him to reasonable terms of peace, and that the actual situation of France was such as to lead to that mode of distressing her, inasmuch as she had armed almost the whole laboring class of the people for the purpose of commencing and supporting hostilities against all the Governments of Europe. If a Government had armed nearly its whole laboring population the laws of political economy would probably reduce it to weakness far sooner than the cruisers of its enemy would have that effect." Woolsey, Int. Law, § 182. That the contraband quality of merchandise depends upon its object, see 5 Am. According to Chief Justice Chase, contraband goods are divided into three classes. "Of these the first consists of articles manufactured, and primarily and ordinarily used, for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes. "Merchandise of the first class destined to a belligerent country, or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege." The Peterhoff, 5 Wall., 58. Artillery, harness, men's army bluchers, artillery boots, Government regulation gray blankets, are of the first class. Ibid. Contraband is liable to capture when destined to the hostile country or to the actual military or naval use of the enemy (according to the above rule), whether a violation of blockade be intended or not. Ibid. "The following list is given by Mr. Godfrey Lushington, in his Manual of Naval Prize Law, viz: "Goods absolutely contraband.-Arms of all kinds and machinery for manufacturing arms. Ammunition and materials for ammunition, including lead, sulphate of potash, muriate of potash, chloride of potas sium, chlorate of potash, and nitrate of silver, gunpowder and its ma terials, saltpeter, and brimstone; also, gun-cotton. Military equipments and clothing; military stores; naval stores, such as masts (The Charlotte, 5 Rob., 305), spars, rudders, and ship-timber (The Tweude Brodre, 4 Rob., 33), hemp (The Apollo, 4 Rob., 158), and cordage, sail cloth, (The Neptunus, 3 Rob., 108), pitch and tar (The Jonge Tobias, 1 Rob., 329), copper fit for sheathing vessels (The Charlotte, 5 Rob., 275); marine engines, and the component parts thereof, including screw propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler-plates, and fire bars, 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 3 to g of an inch diameter, rivets, strips of iron, sheet-plate iron exceeding of an inch, and low moor and bowling plates."" 2 Halleck's Int. Law (Baker's ed.), 260, 261. "In order to constitute contraband of war, it is absolutely essential that two elements should concur, viz, a hostile quality and a hostile destination. If either of these elements is wanting, there can be no such thing as contraband. Innocent goods going to a belligerent port are not contraband. Here there is a hostile destination, but no hostile quality. Hostile goods, such as munitions of war, going to a neutral port, are not contraband. Here there is a hostile quality, but no hostile destination." Historicus, 191. |