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Clothing, money and metals.
Money and unwrought metals, and in general, clothing and its materials, are of like character with provisions, and in principle may become contraband under similar conditions; but under modern conditions it would very rarely be necessary to consign money directly to an army or fleet in a neutral vessel;
Hall, p. 690.
Coal, owing to the lateness of the date of which it has become of importance in war, is the subject of a very limited usage. In 1859 and 1870 France declared it not to be contraband; and according to M. Calvo the greater number of the secondary states have pronounced themselves in a like sense. England on the other hand, during the war of 1870, considered that the character of coal should be determined by its destination, and though she refuses to class it, as a general rule, with contraband merchandise, vessels were prohibited from sailing from English ports with supplies directly consigned to the French fleet in the North Sea Germany went further, and remonstrated strongly against its export to France being permitted by the English government. The claim was extravagant, but the nation which made it is not likely to exclude coal from its list of contraband. More recently, during the West African Conference of 1884, Russia took occasion to dissent vigorously from the inclusion of coal amongst articles contraband of war, and declared that she would " categorically refuse her consent to any articles in any treaty, convention, or instrument whatever which would imply its recognition" as such.
The view taken by England is unquestionably that which is most appropriate to the uses of the commodity with which it deals. Coal is employed so largely, and for so great a number of innocent purposes, the whole daily life of many nations is so dependent on it br its use for making gas, for driving locomotives, and for the conduct of the most ordinary industries, that no sufficient presumption of an intended warlike use is afforded by the simple fact of its destination to a belligerent port. But on the other hand, it is in the highest degree noxious when employed for certain purposes; and when its destination to such purposes can be shown to be extremely probable, as by its consignment to a port of naval equipment, or to a naval station, such as Bermuda, or to a place used as a port of call, or as a base of naval operations, it is difficult to see any reason for sparing it which would not apply to gunpowder. One article is as essential a condition of naval offence as is the other. As will be seen directly, France has endeavoured within the last few years to treat as contraband an article so much more innocent in the circumstances than coal could be, that she at least must be regarded as estopped from further alleging its total exemption. Hall, pp. 685-687; Calvo, sec. 2460; Bluntschli, sec. 805; Hansard, 30
series, vol. cciii, 1094, and vol. clxii, 2087; State Papers, Franco-German War, 1870, No. 3; Parl. Papers, Africa, No. iv, 1885, 132; British Admiralty Manual of Prize Law (1888), p. 20.
Practice of Nations respecting foodstuffs.
The doctrine of the English courts at the commencement of the present century with respect to provisions was that “ generally they were not contraband, but might become so in circumstances arising out of the particular situation of the war, or the conditions of the parties engaged in it.” Grain, biscuit, cheese, and even wine, when on their way to a port of naval equipment or to a naval armament, were condemned, and, as has already been seen, the same practice was followed by the courts of the United States. In 1793 and 1795, the English government indefensibly extended the application of the doctrine to the point of seizing all vessels laden with provisions which were bound to a French port, alleging as their justification that there was a prospect of reducing the enemy by famine. A serious disagreement occurred in consequence with the United States, which maintained that provisions could only be treated as contraband when destined for a place actually invested or blockaded; and the point remained wholly unsettled by the Treaty of 1794, which, while recognizing that provisions, under the existing law of nations
, were capable of acquiring the taint of contraband, did not define the circumstances under which the case would arise. The excesses of the English government cast discredit on the doctrine under the shelter of which they screened themselves. Manning adopts it, but not without evident hesitation. Wheaton seems to think that provisions can only be contraband when sent to ports actually beseiged or blockaded; and MM. Ortolan, Bluntschli, and Calvo declare this to be undoubtedly the case. Until lately no nation except England had pushed its practice even to the point admitted in the American courts, and England itself had long regarded its own doctrine of 1793 as wholly untenable; but in 1885 the doctrine was revived to its fullest extent by a country which has been in the habit of including a very narrow range of articles in its list of contraband. France, during her hostilities of that year with China, declared shipments of rice destined for any port north of Canton to be contraband of war. The pretension was resisted by Great Britain on the ground that though, in particular circumstances, provisions may acquire a contraband character they cannot be in general so treated." In answer the French government alleged that a special circumstance of such kind as to justify its action was supplied by the fact of “ the importance of rice in the feeding of the Chinese population" as well as of the Chinese armies. Thus they implicitly claimed that articles become contraband, not by their importance in military or naval operations, but by the degree in which interference with their supply will put stress upon the noncombatant population. Lord Granville notified that Great Britain would not consider itself bound by the decision of any Prize Court which should give effect to the doctrine put forward by France; but no opportunity was afforded for learning whether the French Courts would have upheld the views of their government, as no seizure was made during the short remainder of the war; shipments of rice, it would seem, were entirely stopped by fear of capture.
Hall, pp. 687, 688; The Jonge Margaretha, i. Rob., 193; The Ranger, 6
Rob., 125; The Educard, 6 Rob., 69; De Martens, rec. 5, 674; Wheaton,
The topic of the admissibility of provisions in general to the list of contraband of war may be put aside as one which is not open to serious argument. Further than this, it cannot be doubted for a moment, not only that the detention of provisions bound even to a port of naval equipment is unauthorized by usage, but that it is unjustifiable in theory. To divert food from a large population, when no immediate military end is to be served, because it may possibly be intended to form a portion of supplies which in almost every case an army or a squadron could complete from elsewhere with little inconvenience, would be to put a stop to all neutral trade in innocent articles. But writers have been satisfied with a broad statement of principle, and they have overlooked an exceptional and no doubt rare case, in which, as it would seem, provisions may fairly be detained or confiscated. If supplies are consigned directly to an enemy's fleet, or if they are sent to a port where the fleet is lying, they being in the latter case such as would be required by ships, and not ordinary articles of import into the port of consignment, their capture produces an analogous effect to that of commissariat trains in the rear of an army. Detention of provisions is almost always unjustifiable, simply because no certainty can be arrived at as to the use which will be made of them; so soon as certainty is in fact established, they, and everything else which directly and to an important degree contributes to make an armed force mobile, become rightly liable to seizure. They are not less noxious than arms; but except in a particular juncture of circumstances their noxiousness cannot be proved.
Hall, pp. 689, 690. Ships.
It may here be mentioned once for all that although the terms used with reference to contraband in public documents, by authors or in these pages, often seem to contemplate only things carried in ships, which of course present the commonest case, ships themselves, when suitable for any warlike use and on their voyage with a view to sale in a hostile port or for delivery to the enemy, fall under the same principles and are contraband. No one contests this, and in the British view, to be developed later, they are absolute contraband.
Westlake, vol. 2, p. 277. British and United States view.
The view of contraband which found one of its earliest expressions in the treaty of Whitehall [between England and Sweden, 1661] may, from the state most eminent among its authors and upholders, be called the British view. Its most remarkable features are, first, the assertion of a class of conditional or occasional contraband, or contraband of circumstance, never including any thing solely of peaceful use, but in which things of use both in peace and in war, on their way to a hostile destination, may be placed as occasion requires, being otherwise entirely free; secondly, a milder treatment, by way of preemption, in certain cases roughly corresponding to that class. Goods usus ancipitis may be contraband of the conditional class either by virtue of an express declaration by the belligerent government, based on the circumstances of the war, or by the judg
ment of its prize court, when that court sees reason for believing or presuming that they are intended to be used for purposes of war. The Admiralty Manual of 1888, embodying the British practice, declares that such a “presumption arises when the hostile destination of the vessel [carrying the goods] is either the enemy's fleet at sea, or a hostile port used exclusively or mainly for naval or military equipment."
The United States maintain the British view on contraband, which they inherited.
Westlake, vol. 2, pp. 282, 283. The school of thought whose view on contraband was embodied in the treaty of the Pyrenees [between France and Spain, 1659] objects to conditional contraband as opening a door to arbitrary behaviour on the part of belligerent governments and their prize courts, and declines to see an alleviation in bringing in neutral cargoes for preemption only, which in practice can scarcely fail to cause some molestation to neutral commerce, and in theory conflicts with the view that a neutral ought not to be touched at all when his innocence is admitted by not condemning him. In the treaties concluded under the influence of that school the enumerations of contraband have often included articles usus ancipitis, which were thereby exposed to confiscation when under the British system they would have escaped with preemption. And states which take this line, having deprived themselves of a class of conditional contraband in which to place branches of neutral commerce only occasionally in conflict with their belligerent interest, have been the more impelled to save that interest by excessive extensions of absolute contraband. Thus France in 1885, in spite of her traditional policy as to victuals, declared rice destined for any Chinese port north of Canton to be contraband of war, and justified herself, in answer to the British remonstrance, by the importance of rice in feeding the Chinese population as well as the Chinese armies. Thus also Russia, which up to the time of her war with Japan did not admit conditional contraband, and which during the African conference at Berlin declared that she would refuse her consent to any inclusion of coal among contraband, issued at the commencement of that war a list of contraband including rice, provisions, horses, and “every kind of fuel, such as coal, naphtha, alcohol and other similar materials." Afterwards however, in deference to the protests of Great Britain and the United States, she consented that rice and provisions should be regarded only as conditionally contraband, according to the use to which they were to be applied.
Westlake, voi. 2, pp. 285, 286; Parliamentary Papers, France No. 1, 1885;
Russian Regulations of February 28, 1904, in the London Gazette of
London Chamber of Commerce in the London Times, November 4, 1904. The Institute of International Law has taken a line not entirely in accordance with either of the schools thus far criticised. In 1895 a commission adopted a resolution approving conditional contraband when resulting from an immediate and special destination to the military or naval forces or the military operations of the enemy, and declared in advance by the belligerent government. But in 1896 the Institute as a whole substituted an emphatic condemnation of conditional contraband, at the same time proposing for a belligerent a right of sequestration or preemption, at his pleasure and subject to an equitable indemnity, over all goods, being on their way to a port of his enemy, which can serve equally for warlike or peaceful uses. The change was made in spite of strong opposition from the late Dr. Perels, who held an eminent position in international law both from his talents and from his being a director in the German Ministry of Marine. And we are thus entitled to say that if the doctrine which had its origin in France has become widely spread, at least it cannot claim to be regarded as that of the whole continent.
Westlake, vol. 2, p. 286; Annuaire, vols, 13, 14, 15. The treaties in which contraband of war is mentioned, except the great ones which launched the subject, present little interest except for ascertaining by what engagements each state is actually bound. Stipulations on contraband, like all political stipulations, are not extended beyond the original parties by a most favoured nation clause. Like all stipulations as to the rights of neutrals which do not take the form of declarations of law, such as the Declaration of Paris, they are cancelled by war between the parties. Even while they endure they have no effect unless one party is a belligerent and the other a neutral, and so many European wars have been general ones as seriously to affect the number of cases in which that situation has existed. Whether these facts have led to their being rather carelessly entered into or from any other causes, the mind of England on the subject of contraband would be erroneonsly judged if her treaties during a century and a half were taken as showing it. What that mind really was is shown by her practice so far as she was free, and by her resistance to the Armed Neutralities. In fact England adopted the system of the treaty of the Pyrenees, sometimes with slight variations, in treaties of 1667 with Spain and Holland, and of 1677 with France_instances which are remarkable for coming so soon after the Anglo-Swedish treaty of 1661 of opposite characterand again in treaties of 1713 and 1786 with France. Nor were these the only instances, and Hall, speaking of the eighteenth century, says that treaties embodying the French doctrine of contraband bound England at different times with France, Spain, Sweden, Russia, Denmark and the United States. The fact goes far to undermine the reliance placed by many jurists on treaties, as testimony to a public conviction on litigated points of international law.
Westlake, vol. 2, pp. 286, 287. Grotius divided commodities into three classes: things useful for war only, things useless for warlike purposes, and things useful in war and peace indifferently. The first might always be captured when on their way to an enemy, the second never, and with regard to the third, res ancipitis usus, the circumstances of the contest were to be considered. This classification is valuable, and contains, in its reference to surrounding circumstances as the decisive factors in dealing with the third class, the germ of the English doctrine of contional or occasional contraband.
Lawrence, p. 703.