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should have been in direct contradiction to each other.
same point afterwards arose, and was again argued, and the former decision repeated, in the case of the Atalanta. It was observed in this latter case, that the rule with us was correct in principle, and the most liberal and honourable to the jurisprudence of this country. The question may, therefore, be considered here as at rest, and as having received the most authoritative decision that can be rendered by any judicial tribunal on this side of the Atlantic.
a 3 Wheaton, 409.
OF RESTRICTIONS UPON NEUTRAL TRADE.
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 purposes. 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.
In the time of Grotius, some persons contended for the rigour of war, and others for the freedom of commerce. 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, and things which serve merely for pleasure, and things which are of a mixed nature, and useful both in peace and war. He agrees with other writers in prohibiting neutrals from carrying articles of the first kind to the enemy, as well as in 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
Contraband of war.
a B. 3. c. 1. sec. 5.
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 terms, 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. Loccenius, 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 Colombia 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 mercantile naval equipment ; and in the case of the Maria," it was held, that
a Rutherforth's Inst. b. 2. c. 9.
b B. 3. c. 7. sec. 112.
c De Jure Maritimo, lib. 1. c. 4. n. 9. d Valin's Com. tom. 2. p. 264.
e Des Prises, art. 11.
f Robinson's Collec. Mar. p. 63.
Pothier, de Propriété, No. 104.
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 this country has frequently conceded, that the materials for the building, equipment, and armament of ships of war, as timber and naval stores, were contraband. 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 war.
Questions of contraband were much discussed during the continuance of our neutral character, in the furious war between England and France, commencing in 1793, and we 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 the earliest acts of England, in that war, was to detain all neutral
a Mr. Randolph's Letter to M. Adet, July 6th, 1795. Mr. Picker ing's Letter to Mr. Pinckney, January 16th, 1797. Letter of Messrs. Pinckney, Marshall, and Gerry, to the French Minister, January 27th, 1798.
b Repertoire universel et raisonne de Jurisprudence, par M. Merlin, tom. 9. tit. Prise Maritime, sec. 3. art. 3.
c President's Proclamation of Neutrality, April 22d, 1793.
d Instructions of 8th June, 1793.