the time, and carry them through. Is not this an unsettling of all international rules, a real tyranny of a superior power? Thirdly. The authority of the older text-writers is more in favor of such a distinction. In an often-cited passage of Grotius (iii., 1, § 5), after dividing things in the hands of those who are not enemies into such as have a use in war alone, such as have no use in war, and such as have a use in war and aside from war, he says that in regard to this third class of articles ancipitis usus; “si tueri me non possum, nisi quæ mittuntur intercipiam, necessitas, ut alibi exposuimus, jus dabit, sed sub onere restitutionis, nisi causa alia accedat." His commentator, Samuel de Cocceii, on this passage observes, that "necessity gives no right over the goods of another; so that if my enemy is not aided by such articles, I cannot intercept them, although I may be in want of them. On the other hand, if the power of the enemy is thereby increased, I can take them, albeit I may not need them myself."1 Bynkershoek, although he differs from Grotius as to the rule of necessity, and regards a commerce in the raw materials of war as not illicit, yet thinks they may be prohibited, if the enemy cannot well carry on war without them. ("Quæst. J. P.," i., 10.) And Vattel decides that even provisions are contraband in certain junctures, when we have hopes of reducing an enemy by famine. Modern English writers and Chancellor Kent give their sanction to the doctrine of occasional contraband, Opinions in while Wheaton, without expressing a positive opin- respect to it. ion, seems averse to it. Several Continental authors of repute either deny it to be a part of the law of nations, or admit it with cautious reserve. Heffter says (§ 160), "Never have belligerents been allowed, alone, and according to their good pleasure, to make restrictions of this kind, although when possessed of power enough they have assumed to do this." And he adds, in regard to doubtful articles, that belligerents can take measures against neutrals exporting them only when a destination for the enemy's government and military forces 1 Lausanne ed. of Grotius, vol. iii., p. 602. can be ascribed to them on sufficient grounds. Ortolan (ii., 179) denies that provisions and objects of prime necessity can ever be considered contraband, but concedes that a belligerent may declare objects to be contraband which are not usually such, when they become what he calls contraband in disguise, as the parts of military machines conveyed separately, and ready to be put together. His countryman, Hautefeuille ( "Droits des Nations Neutres," ii., 4191), maintains that no products of use in peace and war both can in any case be contraband, "and that 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." Klüber, after saying (§ 288) that naval stores and materials are not to be reckoned contraband, adds, that in case of doubt as to the quality of particular articles the juristic presumption inclines to the side of natural right, which allows the natural freedom of trade. De Martens says (§ 318) that "where no treaties intervened, the powers of Europe, when they were neuter, maintained long before 1780 [the date of the first armed neutrality] that only articles of direct use in war could be considered and treated as contraband by belligerents." The United States, it is believed, has steadily taken this ground in regard to provisions, although not in regard to naval stores. 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 govern 1 1st ed. Comp. ii., 157, 2d ed. ments of Europe.1 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. It may be added that the French National Convention led the way in seizing neutral ships laden with provisions, and bound to an enemy's port, by a decree of May 9, 1793, which provoked a retaliatory measure of Great Britain, in June of the same year. (Phillimore, iii., 422, ed. 2.) The decree (for which see Marten's "Recueil," v., 382, and the reprint of the "Moniteur," xvi., 351) ordains that the provisions shall be paid for, at their value at the port of their destination, together with the freight stipulated by the shipper, and with compensation for detention, as determined by a prize court. The same decree contains the article referred to in § 189 (last paragraph but two), relating to enemy's goods on board of neutral vessels. § 197. The harshness of the doctrine of occasional contraband brought into favor the rule of preemption, which Preemption. was a sort of compromise 2 between the belligerents (if masters of the sea) and the neutrals. The former claimed that such articles should be confiscated, the latter that they should go free. Now, as the belligerent often wanted these articles, and at least could hurt his enemy by forestalling them, it came nearest to suiting both parties if, when they were intercepted on the ocean, the neutral was compensated by the payment of the market price, and of a fair profit. This rule, which was more especially applied by the English prize courts shortly after the French Revolution, would be a relaxation of the severe right of war, if the doctrine of occasional contraband could be established, and as such, be a concession to neutrals. But it does not, as an independent rule, possess sufficient support from usage and authority. There are two sources from which arguments in its support have 1 Kent, i., 137, Lect. vii. 2 So Sir W. Scott calls it in Robinson's Rep., i., 241. been derived (1.) An old practice of European governments was to seize the grain or other necessary articles found in the hands of foreigners in their ports, on promise of compensation, which naturally would be slow in coming. Many treaties of the seventeenth century put an end to this half-barbarous exercise of sovereignty between the contracting powers, and it is believed to be unknown to the law of nations, unless (2.) under the form of a rule of necessity. Such a rule in a broad sense would authorize, whether in war or peace, the taking of property from subjects or foreigners, if self-preservation required it. A more limited necessity is contemplated in the passage of Grotius already cited, as pertaining to a belligerent, and justifying him in detaining the goods of those who are not enemies, if otherwise he cannot defend himself. But modern preëmption is limited in extent to cargoes of neutrals bound to the enemy's ports, and is practiced to distress the enemy, not to relieve an imminent distress of one's own. "I have never understood," says Sir William Scott," that this claim [of preemption] goes beyond the case of cargoes avowedly bound for enemy's ports, or suspected on just grounds to have a concealed destination of that kind." Here we may ask whether modern preëmption rests on any ground of justice. On this point we remark: (1.) That the nearest analogy is the taking away in a hostile country of necessaries from the non-belligerent inhabitants for the use of the invading army. This is a right of war in extreme cases, but is allowed, unlike preëmption, for the sake of the invaders. Pillage for its own sake is unlawful. (2.) It is contrary to the spirit of the rules of 1856. The neutral flag covers enemy's goods; how much more ought it to cover its own innocent goods. (3.) It almost reaches the position that paper blockades are defensible. It says, I will take your wheat from you whether you are bound to a blockaded port or not. English practice of preemption. The English practice in cases of preemption is to pay a reasonable indemnification and a fair profit on the commodity intercepted, but not to pay the price which could be obtained in the enemy's ports. In a treaty with Sweden of 1803, it was arranged that in seizures of this kind the price of the merchandise should be paid, either as valued in Great Britain or in Sweden, at the option of the proprietor, with a profit of ten per cent. and an indemnity for freight and expenses of detention. In the treaty of 1794, .... already referred to, between Great Britain and the United States, it is said "that whereas the difficulty of agreeing on the precise cases, in which provisions and other articles of contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise, . . . . whenever any such articles so becoming contraband according to the existing law of nations shall for that reason be seized, .... the captors, or in their defauk the government, under whose authority they act, shall pay the full value, . . . . with a reasonable mercantile profit thereon, together with the freight and also the damages incident to such detention." (Article xviii.) The expression "becoming contraband according to the existing law of nations" left the question, What the law of nations decided, an open one; if the United States, for instance, denied that certain articles seized as contraband were legally such, they could not yield their opinion, and preemption itself in such cases might be a cause of complaint and even of war. This was an unfortunate halfway admission, which left everything unsettled, and yet justified the other party to the convention in their measures of detention on the seas. § 198. If the contraband articles are clearly intended for the ene trade. my's use, especially if they are more in quantity than Penalty for the ship's company need, they are subject to confis- contraband cation on being captured, and no freight is paid for them to the transporter. Ancient French ordinances, before the ordinance of 1681, prescribed a much milder course: the value of the contraband articles, at the estimate of the admiral or his lieutenant, was to be paid after bringing the ship so freighted into port. Ancient usage, in general, made the ship also liable to confiscation: the commercial treaty of Utrecht, |