CHAPTER IX. OF RESTRICTIONS UPON NEUTRAL TRADE. Contraband. Ancient rules on the subject. THE principal restriction which the law of nations imposes on the trade of neutrals, is the prohibition to furnish the belligerent parties with warlike stores, and other articles which are directly auxiliary to warlike purposes1. Such goods are denominated contraband of war; but in the attempt to define them the authorities vary, or are deficient in precision, and the subject has long been a fruitful source of dispute between neutral and belligerent nations. For whilst, on the one hand, the list is an extensive one, and the catalogue has varied so much at times, as to make it very difficult to assign the reason for the variation, on the other, it is scarcely possible to lay down any general test that shall enable us at once to say what are, or are not, contraband articles. In the time of Grotius, some persons contended for the rigour of war, and others for the freedom of commerce. As neutral nations are willing to seize the opportunity which war presents, of becoming carriers for the belligerent powers, it is natural that they should desire to diminish the list of contraband as much as possible. Grotius distinguishes between things which are useful only in war, as arms and ammunition, things which serve merely for pleasure, and things which are of a mixed 3 1 Vattel, Bk. 1. ch. viii. § 90. On this subject generally the reader may refer with advantage to Ortolan, Règles Internationales, &c. T. II. Liv. III. ch. vi., especially for an historical account of the French regulations on the subject to Cauchy, Droit Marit. Intern. T. II. ch. vi. § 3, and to Massé, Droit Commercial, T. 1. Liv. II. ch. ii. § 11. Art. II. 2 The Jonge Margaretha, 1 Robinson, 189. tions on neutral Contra band. nature, and useful both in peace and war. He agrees Restricwith other writers in prohibiting neutrals from carrying articles of the first kind to the enemy, as well as in trade. permitting the second kind to be carried. As to articles of the third class, which are of indiscriminate use in peace and war, as money, provisions, ships and naval stores, he says that they are sometimes lawful articles of neutral commerce, and sometimes not; and the question will depend upon circumstances existing at the time. They would be contraband if carried to a besieged town, camp or port. In a naval war, it is admitted, that ships, and materials for ships, become contraband, and horses and saddles may be included'. Vattel speaks with some want of precision, and only says, in general terms3, that commodities particularly used in war are contraband, such as arms, military and naval stores, timber, horses, and even provisions, in certain junctures, when there are hopes of reducing the enemy by famine. Loccenius3, and some other authorities referred to by Valin, consider provisions as generally contraband; but Valin and Pothier insist that they are not so, either by the law of France or the common law of nations, unless carried to besieged or blockaded places. The marine ordinance of Louis XIV. included horses, and their equipage, transported for military service, within the list of contraband, because they were necessary to war equipments, and this is, doubtless, the general rule. They are included in the restricted list of contraband articles mentioned in the treaty between the United States and Columbia in 1825. Valin says, that naval stores have been regarded as contraband from the beginning of the last century, and the English prize law is very explicit on this point. Naval stores, and materials for ship-building, and even corn, grain, and victuals of all sorts, going to the dominions of the enemy, were declared contraband by an ordinance of Charles I. in 1626". Sailcloth is now held to be universally contraband, even on a destination to ports of mere mer 1 Rutherforth's Inst. Bk. II. ch. ix. 2 Bk. III. ch. vii. § 112. 3 De Jure Maritimo, Lib. 1. c. iv. n. 9. 4 Valin's Com. T. 1. p. 264. Pothier, de Propriété, No. 104. 5 Des Prises, Art. II. 6 Robinson's Collec. Mar. p. 63. Restric tions on neutral trade. Contraband. War of 1793. cantile naval equipment1; and in the case of the Maria2, it was held, that tar, pitch, and hemp, and whatever other materials went to the construction and equipment of vessels of war, were contraband by the modern law of nations, though, formerly, when the hostilities of Europe were less naval than at the present day, they were of a disputable nature. The executive government of the United States has frequently conceded, that the materials for the building, equipment, and armament of ships of war, as timber and naval stores, were contraband3. But it does not seem that ship-timber is, in se, in all cases, to be considered a contraband article, though destined to an enemy's port. In the case of the Austrian vessel Il Volante, captured by the French privateer L'Etoile de Bonaparte, and which was carrying ship-timber to Messina, an enemy's port, it was held by the Council of Prizes at Paris, in 1807, upon the opinion of the Advocate General, M. Collet Descotils, that the ship-timber in that case was not contraband of war, it being ship-timber of an ordinary character, and not exclusively applicable to the building of ships of war1. Questions of contraband were much discussed during the continuance of the neutral character maintained by the United States in the war between England and France, commencing in 1793, and the authorities in the United States professed to be governed by the modern usage of nations on this point. The national convention of France, on the 9th of May, 1793, decreed, that neutral vessels, laden with provisions, destined to an enemy's port, should be arrested, and carried into France; and one of 1 The Neptunus, 3 Rob. 108. 2 1 Rob. 287, Phil. ed. 3 Mr Randolph's Letter to M. Adet, July 6th, 1795, American State Papers, Vol. 11. pp. 259-264. Mr Pickering's Letter to Mr Pinckney, January 16th, 1797, American State Papers, Vol. II. pp. 114-187. Letter of Messrs. Pinckney, Marshall, and Gerry, to the French Minister, January 27th, 1798, American State Papers, Vol. IV. pp. 27–81. 4 Répertoire universel et raisonné de Jurisprudence, par M. Merlin, Tom. IX. tit. Prise Maritime, § 3, Art. III. and Traité des Prises Maritimes, par Pistoye et Duverdy, T. 1. Tit. vI. ch. ii. § 3, p. 409. 5 President's Proclamation of Neutrality, April 22nd, 1793, Statesman's Manual, Vol. 1. p. 123. band. A.D. 1793. sions. the earliest acts of England, in that war', was to detain Contraall neutral vessels going to France, and laden with corn, meal, or flour. It was insisted, on the part of England, Provithat, by the law of nations, all provisions were to be considered as contraband, in the case where the depriving the enemy of those 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 labouring class of her people, for the purpose of commencing and supporting hostilities against all the governments of Europe. This claim on the part of England was promptly and perseveringly resisted by the United States; and they contended, that corn, flour, and meal, being the produce of the soil, and labour of the country, were not contraband of war, unless carried to a place actually invested3. The treaty of commerce with England, Treaty of in 1794, in the list of contraband, stated, that whatever between materials served directly to the building and equipment Great of vessels, with the exception of unwrought iron, and firplanks, should be considered contraband, and liable to confiscation; but the treaty left the question of provisions open and unsettled, and neither power was understood to have relinquished the construction of the law of nations which it had assumed. The treaty admitted that provisions were not generally contraband, but might become so, according to the existing law of nations, in certain cases, and those cases were not defined. It was only stipulated, by way of relaxation of the penalty of the law, that whenever provisions were contraband, the captors, or their government, should pay to the owner the full value of the articles, together with the freight, and a reasonable profit. The American government has repeatedly admitted, that, as far as that treaty enumerated contraband articles, it was declaratory of the law of nations, and 1 Instructions of 8th June, 1793. Martens' Recueil des Traités, T. v. p. 596. 2 Mr Hammond's Letter to Mr Jefferson, September 12th, 1793, and his Letter to Mr Randolph, 11th April, 1794, American State Papers, Vol. 1. p. 398, and Vol. II. p. 16. 3 Mr Jefferson's Letter to Mr Pinckney, September 7th, 1793, and Mr Randolph's Letter to Mr Hammond, May 1st, 1794, American State Papers, Vol. 1. p. 392, and Vol. II. p. 19. 1794 Britain and the United Contraband. Doctriue of the English Admiralty as to Provisions. that the treaty conceded nothing on the subject of contraband'. The doctrine of the English admiralty, on the subject of provisions being considered contraband, was laid down. very fully and clearly in the case of the Jonge Margaretha. It was there observed, that the catalogue of contraband had varied very much, and, sometimes, in such a manner as to make it difficult to assign the reasons of the variations, owing to particular circumstances, the history of which had not accompanied the history of the decisions. In 1673, certain articles of provision, as corn, wine, and oil, were deemed contraband, according to the judgment of a person of great knowledge and experience in the practice of the admiralty; and, in much later times, many other sorts of provisions have been condemned as contraband. In 1747 and 1748, butter and salted fish and rice were condemned as contraband; and those cases shew that articles of human food have been considered as contraband, when it was probable they were intended for naval or military use. The modern established rule is, that provisions are not generally contraband, but may become so, under circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it. Among the circumstances which tend to preserve provisions from being liable to be treated as contraband, one is, that they are of the growth of the country which produces them. Another circumstance to which some indulgence is shewn by the practice of nations, is when the articles are in their native and unmanufactured state. Thus, iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly contraband. Hemp is more favourably considered than cordage; and wheat is not considered as so noxious a commodity, when going to an enemy's country, as any of the final preparations of it for human use.. The most important distinction is, whether the articles were intended for the ordinary use of life, or even 1 Mr Pickering's Letter to Mr Monroe, September 12th, 1795. His Letter to Mr Pinckney, January 16th, 1797. Instructions from the Secretary of State to the American Ministers to France, July 15th, 1797, American State Papers, Vol. II. p. 264, and Vol. I. pp. 457-473. 2 1 Rob. 190. |