Contraband of traband. When the number and variety of the goods that have from time to time been declared contraband of Varieties of con- war are taken into consideration, it is scarcely matter of surprise that the decisions of the authorities are so various and uncertain. Vattel enumerates arms, military and naval stores, horses, timber, and in case of siege, provisions, as contraband of war;† and according to the same author, even ships come within that denomination. These opinions are upheld by various treaties, ordinances, and legal decisions. Sail-cloth, tar, pitch, and hemp, being necessary to the equipment of vessels of war, and also ship-timber, have been added to the list; although in some instances their hostile character has been negatived by proof of destination, as for instance, when transmitted to an exclusively commercial port, from which it might fairly be presumed that they were to be applied to civil purposes. The raw material is viewed with more favour than articles fabricated from it.‡ By a treaty between the United States and this country in 1796, it was expressly provided that unwrought iron and fir planks should be exempted from seizure. at Fallacy of tempting arbitrary rules. Under these circumstances it would be utterly fallacious to lay down rules of universal application as to what constitutes contraband of war. The invention of * The following articles have on different occasions been declared contraband of war, viz., butter, cheese, copper in sheets, cordage, corn, hemp, masts, pitch, rice, rosin, salted cod, herrings and salmon, sea biscuits, tar, and wine. † Les choses qui sont d'un usage particulier pour la guerre et dont on empêche le transport chez l'ennemi s'appellent marchandises de contraband. Telle sont les armes, les munitions de guerre, les bois et tout ce qui sert a la construction et a l'armement des vaisseaux de guerre, les chevaux et les vivres mêmes en certaines occasions, ou l'on espère de reduire l'ennemi par la faim, Vattel, book iii., chap. 7, sec. 112. The Jonge Margaretha, 1 Rob. Rep., 188; the Neptunus, 3 Rob. Rep., 108; the Twee Juffrowen, 4 Rob. Rep., 242; Nostra Signora de Begona, 5 Rob. Rep., 97. War. novel instruments of warfare has necessarily augmented Contraband of the number of contraband articles, by embracing new materials required to render such instruments serviceable, whereby goods formerly deemed innocuous, have by force of circumstances become liable to confiscation at the hands of those against whom they are attempted to be used. Such, of course, was the case when gun. powder superseded the catapult and the bow, and again more recently when the power of steam was adopted for propelling vessels of war. Thus, during the Crimean campaign, engines, boilers, and other marine machinery were amongst the prohibited articles of commerce; and now that the explosive power of gun-cotton is known, were its application to warlike purposes to become general, it would necessarily bring cotton, as well as the chemicals by which it acquires its new character, within the list of contraband of war, as the components of gunpowder, sulphur, saltpetre, &c., came to be treated. declared contraband of war. The most important feature in the law of contraband Ships of war in relation to the controversial question of the day, is that ships, and armed vessels, come within that denomination. This opinion has prevailed and been acted upon from a very early date, and has gained strength, and indeed the full force of international law, by recognition in treaties and by the decisions of courts, which have been accepted by European as well as American states, and by none more unequivocally than the latter. So far back as 1625, by treaty between England and the Low Countries, "ships, arms," &c., by express mention, are deemed "contraband of war," and the articles enumerated, as well as "ships and persons on board," are declared "good prize."* The terms of this treaty * Treaty of Southampton, September, 1625. Contraband inter alia as to ships. : of would seem to embrace every description of ship; but in 1661 by treaty between this country and Sweden,* the expression is narrowed to "ships of war" and guardships; this very limitation points the more distinctly to the fact that ships for warlike purposes are particularly intended. Vattel draws no distinction between contraband for naval and military warfare. Indeed so far from considering that neutrality is violated by trading in either with the belligerent, he thus distinctly affirms the contrary with reasons for the opinion :—“ If Dictum of Vattel " a nation trades in arms, timber for shipbuilding, ships, "and warlike stores, I cannot take it amiss that it sells "such things to my enemy, provided he does not refuse "to sell them to me also at a reasonable price. It "carries on its trade without any design to injure me, "and by continuing it in the same manner as if I were "not engaged in war, it gives me no just cause of "complaint." Nay, he brings the matter home to the precise state of affairs as at present subsisting between this country and the transatlantic belligerents, for he proceeds to explain, placing himself for argument in the place of the belligerents:-"In what I have said above, "it is supposed that my enemy goes himself to the "neutral country to make his purchases." This is exactly what the Federals are doing here with regard to arms, and what the Confederates have been charged with doing in respect of ships. But he carries the analogy still further by the discussion of another supposititious case— —that of "neutral nations resorting "to the enemy's country for commercial purposes. It " is certain that as they have no part in my quarrel, they are under no obligation to renounce their commerce Neutrals bound to nounce commerce. not re their * Treaty of Whitehall, October, 1661. † Vattel, book iii., sec. 110. "for the sake of avoiding to supply my enemy with Contraband of "the means of carrying on the war against me." War. no breach of Law. Now all this has reference inter alia to ships, and it Supply of ships is difficult to conceive how consistently with this the British subject can be guilty of a breach of international law, or subject himself, much less his government, to any legitimate complaint by carrying on with either of the belligerents, in the ordinary course of commerce, his almost peculiarly national business of a builder and vender of ships. "If," says Vattel, "they only con"tinue their customary trade, they do not thereby "declare against my interests; they only exercise a 'right which they are under no obligation of sacrificing "to me." He backs this argument by the remarkably clear and strong common sense observation, that "should they (the neutrals) affect to refuse selling me 66 a single article, while at the same time they take pains to convey an abundant supply to my enemy, "with an evident intention to favour him, such partial "conduct would exclude them from the neutrality "which they enjoyed." 66 66 as regards ships arms. Neutrality then as regards contraband of war, includ- Neutrality ing ships as well as arms, according to this great as well as authority, consists not in the refusal to supply the belligerents, but in supplying indifferently to either the merchandise they may require in accordance with the accustomed and undisturbed course of commerce. The neutral may not only sell articles contraband of war in his own country, but may send them to either of the belligerents, subject of course to the liability to capture by the other. The neutral market is open to the sale of ships as well as other instruments or munitions of The foreign belligerents may purchase from the neutral subject, both or either of these articles of con war. War. Contraband of traband, they being the judges of what they require; and it appears totally at variance with the principles of neutrality, to refuse ships to the one, if we sell arms to the other, and vice versa. Confirmation by United States. Armed ships contraband of war. Neutral trade in contraband. The doctrine here contended for, the practice of centuries, the dictum of Vattel just cited, the opinions of other great writers to the same effect, have been emphatically endorsed by the Americans themselves, the supreme courts of the United States having solemnly decided that there is "nothing in their own laws" (and they have a Foreign Enlistment Act, whose provisions as to ships are analogous to our own), "or in the law "of nations, that forbids their citizens from sending “armed vessels, as well as munitions of war, to foreign 66 ports for sale." Nay more, that "it is a commercial "adventure which no nation is bound to prohibit" (the judicial authorities of the United States not being ignorant of our Foreign Enlistment Act), "and which "only exposes the person engaged in it to the penalty "of confiscation."* There is an end therefore to all doubt, certainly as between the United States and this country, as to the fact that ships, armed ships, are contraband of war. It follows that the rights, privileges, and liabilities of neutrals in respect of ships, differ nothing from those which relate to arms and other articles of contraband. On the breaking out of hostilities between nations, the subjects of a neutral territory can only supply contraband of war to either of the belligerents at the risk of capture and confiscation by the other; subject to these consequences the adventure is perfectly lawful. The deprived party has no right to complain of his loss, or to demand restitution through his own government; * J. Wheaton's Reports, 348. |