8

vessels going to France, and laden with corn, meal, or flour. It was insisted, on the part of England, that, 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 invested. The treaty of commerce with England, in 1794, in the list of contraband, stated, that whatever materials served directly to the building and equipment of vessels, with the exception of unwrought iron, and fir planks, 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. Our government has repeatedly admitted, that, as far as that treaty enumerated contraband arti

a Mr. Hammond's Letter to Mr. Jefferson, September 12th, 1793, and his Letter to Mr. Randolph, 11th April, 1794.

h Mr. Jefferson's Letter to Mr. Pinckney, September 7th, 1793, and Mr. Randolph's Letter to Mr. Hammond, May 1st, 1794.

cles, it was declaratory of the law of nations, and 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 show 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 shown 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;

a 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. b 1 Rob. 159. edit. Phil.

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 for mercantile ships' use, or whether they were going with a highly probable destination to military use. The nature and quality of the port to which the articles are going, is not an irrational test. If the port be a general commercial one, it is presumed the articles are going for civil use, though occasionally a ship of war may be constructed in that port. But if the great predominant character of that port, like Brest in France, or Portsmouth in England, be that of a port of naval military equipment, it will be presumed that the articles were going for military use, although it is possible that the articles might have been applied to civil consumption. As it is impossible to ascertain the final use of an article ancipitis usus, it is not an injurious rule, which deduces the final use from the immediate destination; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if, at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful.

These doctrines of the English prize law were essentially the same with that adopted by the American Congress in 1775, for they declared, that all vessels, to whomsoever belonging, carrying provisions, or other necessaries, to the British army or navy, within the colonies, should be liable to seizure and confiscation. They were likewise fully adopted by the Supreme Court of the United States, when we came to know and feel the value of belligerent rights, by becoming a party to a maritime war. In the case of the Commercen, a neutral vessel, captured by one of our cruisers, in the act of carrying provisions for the use of the British armies in Spain, the court held, that provisions, being

a Journals of Congress, vol. 1. 241.

b1 Wheaton, 382.

neutral property, but the growth of the enemy's country, and destined for the supply of the enemy's military or naval force, were contraband. The court observed, that, by the modern law of nations, provisions were not generally contraband, but that they might become so on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life, in the enemy's country, they were not contraband; but it was otherwise if destined for the army or navy of the enemy, or for his ports of military or naval equipment. And if the provisions were the growth of the enemy's country, and destined for the enemy's use, they were to be treated as contraband, and liable to forfeiture, even though the army or navy were in a neutral port, for it would be a direct interposition in the war.

This case followed the decisions of Sir William Scott, and carried the doctrine of contraband, as applied to provisions, to as great an extent. It held the voyage of the Swedish neutral so illegal, as to deserve the infliction of the penalty of loss of freight.

It is the usus bellici which determine an article to be contraband, and as articles come into use as implements of war, which were before innocent, there is truth in the remark, that as the means of war vary and shift from time to time, the law of nations shifts with them; not, indeed, by the change of principles, but by a change in the application of them to new cases, and in order to meet the varying uses of war. When goods are once clearly shown to be contraband, confiscation to the captor is the natural consequence. This is the practice in all cases, as to the article itself, excepting provisions; and as to them, when they become contraband, the ancient and strict right of forfeiture is softened down to a right of pre-emption, on reasonable But, generally, to stop contraband goods, would,

terms.*

a Case of the Haabet, 2 Rob. 182.

as Vattel observes, prove an ineffectual relief, especially at sea. The penalty of confiscation is applied, in order that the fear of loss might operate as a check on the avidity for gain, and deter the neutral merchant from supplying the enemy with contraband articles. The ancient practice was, to seize the contraband goods, and keep them, on paying the value. But the modern practice of confiscation is far more agreeable to the mutual duties of nations, and more adapted to the preservation of their rights. It is a general understanding, grounded on true principles, that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself. It was contended, on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles, contraband of war, to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent powers, contraband articles, subject to the right of seizure, in transitu. This right has since been explicitly declared by the judicial authorities of this country. The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.

Contraband articles are said to be of an infectious nature, and they contaminate the whole cargo belonging to

a B. 3. c. 7. sec. 113.

b Vattel, b. 3. c. 7. sec. 113.

c M. Adet's Letter to Mr. Pickering, March 11th, 1796. Mr. Pickering's Letter to M. Adet, January 20th, and May 25th, 1796. Circular Letter of the Secretary of the Navy to the Collectors, August 4th, 1793.

d Richardson v. Marine Ins. Company, 6 Mass. Rep. 113. The Santissima Trinidad, 7 Wheaton, 283.