contraband. Wheaton on "The general freedom of neutral commerce with the respective belligerent powers is subject to some exceptions. Among these is trade with the enemy in certain articles called contraband of The almost unanimous authority of elementary writers, of. prize ordinances, and of treaties, agrees to enumerate among these all warlike instruments, or material by their own nature fit to be used in war. Beyond these, there is some difficulty in reconciling the conflicting authorities derived from the opinions of public jurists, the fluctuating usage among nations, and the texts of various conventions designed to give to that usage the Grotius. fixed form of positive law. Grotius, in considering the subject, makes a distinction between those things which are useful only for the purposes of war, those which are not so, and those which are susceptible of indiscriminate use in war and peace. The first, he agrees with all other text-writers in prohibiting neutrals from carrying to the enemy, as well as in permitting the second to be so carried; the third class, such as money, provisions, ships, and naval stores, he sometimes prohibits, and at others permits, according to the existing circumstances of the war."* Bynkershoek. "Bynkershoek strenuously contends against admitting into the list of contraband articles those things which are of promiscuous use in peace and war. He considers the limitation assigned by Grotius to the right of intercepting them, confining it to the case of necessity, and under the obligation of restitution or indemnification, as insufficient to justify the exercise of the right itself. He concludes that the materials out of which contraband articles may be formed are not themselves contraband, because if all the materials may be prohibited, out of which something may be fabricated that is fit for war, the catalogue of contraband goods will be almost interminable, since there is hardly any kind of material out of which something, at least, fit for war may not be fabricated. The interdiction of so many articles would amount to a total interdiction of commerce, and might as well be so expressed. He qualifies this general position by stating that it may sometimes happen that materials for building ships are prohibited, 'if the enemy is in great need of them, and cannot well carry on the war without them.' He also states, 'that provisions are often excepted' from the general freedom of neutral *Lawrence's Wheaton, p. 767. et seq. commerce 'when the enemies are besieged by our friends, or are otherwise pressed by famine.'"* "Nothing can be justly regarded as contraband, unless so Woolsey. regarded by the law of nations, or by express convention between certain parties. The definition of contraband must be clear and positive. For as belligerents are authorized to inflict severe evils on neutrals trading in contraband articles, it is plain that they alone cannot define in what contraband consists. The heavy penalty implies a heavy crime, understood to be such when the penalty was allowed. There must be certain kinds of articles, such as afford direct assistance, not to the enemy, but to the enemy's military operations, and known beforehand, and hence implying a departure from the spirit and rules of neutrality, which can be seized and confiscated. Or, since the articles of direct use in war may change from age to age, at the most, new articles, as for instance in these days of war-steamers, steam engines, coals, and the like,-can justly come into this list, only when there is satisfactory proof that they are for the direct uses of war. And this, of course, only where treaty has not specified certain definite articles, and such alone." This is rather what the rule of contraband should be, than what it actually is. Certainly the prize courts of the United States have not required positive proof that articles susceptible of the character of contraband were destined for direct use in hostile operations; proof of destination to the enemy's country having been always sufficient to warrant condemnation. The following classification by Rear-Admiral Dahlgren, based on the experience of the War of Secession in the United States, and the decisions of the courts, is much the safest guide for the American naval officer: "Ist. Cannon, muskets, and their implements and munitions, Dahlgren. entire or in parts; gunpowder and its components, nitre and sulphur; all kinds of military clothing and their fabrics and equipments, torpedoes and apparatus therefor. "2d. Naval stores, such as tar, pitch, rosin, ship timber, sails, hemp, cordage, copper in sheets, steam machinery for sea steamers, entire or in parts; vessels adapted to war or their armor. * Lawrence's Wheaton, pp. 779-80. † Woolsey, Sec. 180. Parsons. "3d. Provisions, coal and other articles which, though not in their nature for war, yet by their destination for a blockaded place, or hostile fleet or army, may serve the purposes of war. "Many of the above come directly under the law of admitted contraband, such as those enumerated in the first head; and most of those under the second head have been decided on in the courts, as the remainder probably will be when brought there. As regards the articles under the third head, the officer must be guided as to their intended use, by the exercise of a sound discretion as to their final destination." ""* Professor Parsons defines contraband as, in his opinion, 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 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."t Reddie. A late English writer has defined 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 ports of military equipment."‡ Great Britain. The British Orders in Council, issued February 18, 1854, in anticipation of the war with Russia, prohibited the exportation of certain articles from the United Kingdom. These *Dahlgren, pp. 92-93. Orders did not pretend to decide the question of contraband, being only municipal in their character, and intended to keep articles useful in war within the kingdom; they may be considered to some extent as indicating the position of the government, at that time, as to contraband. The articles enumerated are "arms, ammunition, and gunpowder, military and naval stores, marine boilers, engines and propellers, and all articles that are, or can, or may become applicable to the manufacture of marine machinery." A subsequent Order, issued April 24, 1854, reduced the prohibited articles to three classes only, namely, "1. Gunpowder, saltpetre, and brimstone; 2. Arms and ammunition; 3. Marine engines and boilers and the component parts thereof." These articles could not be exported without a special permit from the Privy Council, to any port north of Dunkirk or east of Malta. "By the French Ordinance of 1681, which is still the rule, France. it being recognized in the Ordinance of 1778, which abolished the intervening regulations, only arms and ammunition are regarded as contraband; though during the wars of the French Revolution, all distinctions on this point, as in other matters relating to neutrals, were often practically disregarded."* "On the outbreak of war between France and England in 1793, the Convention decreed that neutral vessels laden with provisions destined to an enemy's port should be brought in for pre-emption of the cargo, 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; 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."+ M. Ortolan objects to the wide extension of contraband given Ortolan. Lawrence's Wheaton, p. 797, n. † Hall, p. 572. It is to be noted that France has lately, in the operations on the coast of China, declared rice, under some circumstances, to be contraband. It does not appear, however, that any cases of condemnation of rice cargoes have occurred; certainly not where foreign citizens were concerned. by English writers and prize courts, and is "of the opinion that the freedom of neutral commerce ought to furnish the general principle, to which only such restrictions should be applied as are an immediate and necessary consequence of the state of war between the belligerents." He therefore holds that "Arms and instruments of war, and munitions of every kind directly serving for the use of those arms, are the only objects generally and necessarily contraband of war. "Raw materials or merchandise of every kind fitted for peaceful use, even though equally capable of being employed in the manufacture or application of arms, instruments and munitions of war, are not strictly comprised in this contraband. It is, at most, permitted to a belligerent power, in view of some special circumstance affecting its military operations, to treat such articles as contraband; but they ought to be so assimilated as a rare exception, which should be limited to those cases in which they in fact form a disguised contraband, that is to say, in which they are tainted with fraud. "Provisions and all other objects of first necessity are incapable of being included in any case, or for any reason, among goods contraband of war.' He admits among the articles that may be regarded as contraband according to the circumstances of the case, "timber, evidently intended and worked for the construction of ships of war or gun carriages, boilers and engines for the enemy's steamers, sulphur and saltpetre for making gunpowder, or other elements of arms and military stores."+ Hautefeuille. M. Hautefeuille excludes from the list of contraband all articles of promiscuous use in peace and war. He admits of but one class, and limits that strictly to articles of the first necessity in war; articles which are useful only in war, and which can be employed directly in war without undergoing any change; that is, arms and munitions of war only. "Nothing else is contraband but arms and munitions of war, actually manufactured, proper, immediately, and without any preparation or transformation by human industry, to be employed in the uses of war, and not capable of receiving any other destination."‡ *Ortolan, Vol. II, p. 190. † Ibid. p. 206. Hautefeuille, Vol. II, p. 419. |