§ 22. Articles in a rough state, which may be used for military and naval purposes, may, or may not, be contraband,

After the declaration of war in 1870 between France and Germany, the British Government lost no time in announcing the determination of Great Britain to maintain a position of neutrality between the contending parties, and this position was faithfully observed. No facilities were given, or restrictions imposed, which were not equally applicable to both belligerents. The steps taken by the British Government were strictly in accordance with precedent, and with the principles by which neutral nations, including Germany, had been guided in recent wars. But Prince Bismarck, on behalf of Germany, appeared to wish that Great Britain should go further, and that she should not only enjoin upon British subjects the obligations of neutrality, but that she should take it upon herself to enforce those obligations in a manner and to an extent wholly unusual. He complained that England had provisioned the French fleet with coal by direct communication of English vessels with the fleet, that there was an export of horses in large quantities to France, and that contracts had been entered into with English houses at Birmingham to supply the French Government with cartridges. He demanded that England should not only forbid, but should absolutely prevent the expor tation of articles contraband of war; that is to say, that she should decide herself what articles were to be considered as contraband of war, and that she should keep such a watch upon her ports as to make it impossible for such articles to be exported from them. It requires little consideration to be convinced that this is a task which a neutral power can hardly be called upon to perform. Different nations take different views at different times as to what articles are to be ranked as contraband of war, and no general decision has been come to on the subject. Strong remonstrances, for instance, were made by Prince Bismarck against the export of coal to France, but it has been held by Prussian authors of high reputation that coal is not contraband, and that no one Power, either neutral or belligerent, can pronounce it to be so. But even if this point were clearly defined, it is beyond dispute that the contraband character would depend upon the destination; the neutral power could hardly be called upon to prevent the exportation of such cargoes to a neutral port, and if this be the case, how could it be decided at the time of departure of a vessel, whether the alleged neutral destination were real or colourable? The question of the destination of the cargo must be decided in the prize court of a belligerent, and Germany could hardly seriously purpose to hold the British Government responsible, whenever a British ship, carrying a contraband cargo, should be captured while attempting to enter a French port.

When Prussia was in the same position as that in which Great Britain then found herself, her line of conduct was similar, and she found herself equally unable to enforce upon her subjects stringent obligations against the exportation even of unquestionable munitions of war, During the Crimean war arms and munitions were freely exported from Prussia to Russia, and arms of Belgian manufacture found their way to the same quarter through Prussian territory, in spite of a decree issued by the Prussian Government, prohibiting the transport of arms coming from foreign States.

It may not be irrelevant to quote the views expressed, in 1870, to a foreign Minister at Washington by the Secretary of State of the United States, respecting the duties of neutrals in regard to trade in articles contraband of war. He is reported to have said that arms and ammunition had always been considered to be articles of legitimate com

according to their nature and destined use, as inferred from their immediate destination. Thus, pitch, tar, and hemp, destined to the enemy's use, are generally held to be contraband in their nature, but when they are the produce of the neutral country from which they are exported, and are the property of its subjects or citizens, they are exempt from confiscation, except when they are exclusively and immediately destined to warlike use. Ship-timber, in a rough state, is not in se contraband, but it may become so from its particular character, as masts and spars, or from the character of its port of destination. Copper is not generally contraband, but if in sheets, adapted to the sheathing of vessels, it is condemned. Hemp is more favourably considered than cordage. Rosin is not generally contraband, but is condemned if going to a port of naval equipment. Iron itself is treated with indulgence, but if of such a form as to make it suitable for military or naval purposes, and its immediate destination is for such use, it cannot claim the benefit of exemption. The same rule would probably be applied to all unwrought materials for ship-building, and for the construction of marine machinery. Since the introduction of steam as the motive power in ships of war, the question has been much discussed in Europe, whether coals are to be considered as contraband. They would seem now to properly belong to the same class as ship-timber, tar, pitch, and other unwrought materials for ship-building and naval stores. In the recent war between the allies and Russia, the English cruisers stopped coals on their way to an enemy's port on the Black sea, though it appears, from an answer already referred to, given in the House of Commons, by Sir James Graham, that they would be regarded by British cruisers as one of the articles ancipitis usus, not necessarily contraband, but liable to detention under circumstances that warrant suspicion of their being destined to the military or naval uses of the enemy. Ortolan first merce by neutrals during war, and that the United States claimed the right to supply them to all belligerents without distinction, adding that during the Civil War in America, quantities of these articles had been brought from England, France, and Belgium.

The Belgian Government, while prohibiting the transit and exportation of arms and munitions of war in 1870, nevertheless excepted from that prohibition articles which could clearly be shown to be destined for a neutral Government, and reserved formally the right of free exportation for the future. (Parl. Papers, 1870.)

expressed the opinion that coals might, or might not, according to their intended use, be classed as prohibited articles; but he afterwards corrected this statement, and concluded that they never can, under any circumstances, become contraband of war. This view of the question is ably advocated by Hautefeuille.1

1 Polson, Law of Nations, p. 63; Ortolan, Diplomatie de la Mer, liv. iii. ch. vi.; the 'Staadt Embden,' 1 Rob., 26; the 'Sarah Christina,' I Rob., 241; the 'Maria,' 1 Rob., 372; the Apollo,' 4 Rob., 158; the 'Christina Maria,' 4 Rob., 166; the Twee Juffrowen,' 4 Rob., 244; the "Evert,' 4 Rob., 354; the Nostra Signora,' 5 Rob., 97.

During the Franco-German War, 1870, some doubts having arisen in certain ports on the question whether the transport of coal was a legitimate operation under the then existing circumstances, it was put on record in the 'Journal Officiel' of July 26 that the French Government did not consider that article contraband of war.

The best opinions on this subject seem to agree that the quantity and the destination of coal may render it liable to seizure. In such case it is obviously for the prize court of the captor to decide the question of contraband. See The Jurist, 1859, vol. v. part ii. p. 203. The determination of what is contraband must depend on the circumstances of each particular cargo. Provisions, though they may be safely sent under other circumstances, yet if sent to a port where an army of a State at war is in want of food, may become contraband. So with regard to coals. They may be sent for the purpose of manufacture, but if sent to a port where there are war steamers, with the view of supplying them with coals, then they become contraband. See Parliamentary Debates, H. of L., May 16, 1861.

By parity of reasoning the same remarks apply to horses. They are, moreover, mentioned as contraband in many treaties between different States, Russia always excepted. A neutral vessel destined to be sent to the enemy and to be used for purposes of war is contraband. (The 'Richmond,' 5 Rob., 325.)

As to enemy's despatches and contraband persons, see chap. xxviii. §§ 17, 18, post.

The marine treaty between England and Holland, December 1, 1674, comprehends as contraband of war, pieces of ordinances, with all implements belonging to them, fire-balls, powder, matches, bullets, pikes, swords, lances, spears, halberts, guns, mortar-pieces, petards, granadoes, musket-rests, bandaliers, saltpetre, muskets, musket-shots, helmets, corslets, breast-plates, coats of mail, and the like kinds of armature; also horses and other warlike instruments. And see the attempt made by John Burrough to trade with Sweden expressly against the interdiction of the King of Denmark. Sir Walter Raleigh, liv. v. c. i. § 10. The following list is given by Mr. Godfrey Lushington in his 'Manual of Naval Prize Law,' viz.:

'Goods absolutely contraband.-Arms of all kinds and machinery for manufacturing arms. Ammunition and materials for ammunition, including lead, sulphate of potash, muriate of potash, chloride of potassium, chlorate of potash, and nitrate of soda. Gunpowder and its materials, saltpetre and brimstone; also gun cotton. Military equipments and clothing. Military stores. Naval stores, such as masts (the "Charlotte,' 5 Rob., 305), spars, rudders, and ship timber, (the Twende Brodre,' 4 Rob., 33), hemp (the 'Apollo,' 4 Rob., 158), and cordage, sail cloth (the Neptunus,' 3 Rob., 108), pitch and tar (the 'Jonge Tobias,' 1 Rob., 329),

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$ 23. The probable use of articles is inferred from their known destination. This rule seems neither unjust nor unequal. The remarks of Chancellor Kent on this point are exceedingly clear and appropriate. The most important distinction,' he says, 'is whether the articles were intended for the ordinary uses 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 intended 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.' copper fit for sheathing vessels (the 'Charlotte,' 5 Rob., 275). Marine engines, and the component parts thereof, including screw propellers, paddle wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler plates, and fire bars, marine cement, and the materials used in the manufacture thereof, as blue lias and Portland cement; iron, in any of the following forms :-Anchors, rivet iron, angle iron, round bars of from 3 to of an inch diameter, rivets, strips of iron, sheet plate iron exceeding of an inch, and low moor and bowling plates.'

'Goods conditionally contraband.-Provisions and liquors fit for the consumption of army or navy (the 'Haabet,' 2 Rob., 182), money, telegraphic materials, such as wire, porous cups, platina, sulphuric acid, and zinc (Parl. Papers, N. America, No. 14, 1863), materials for the construction of a railway, as iron bars, sleepers, &c. ; coals, hay (Hosaek, 45), horses, rosin (the Nostra Signora de Begona,' 5 Rob., 98), tallow (the 'Neptunus,' 3 Rob., 108), timber (the 'Twende Brodre,' 4 Rob., 37).'

Particular relaxations, or special articles of treaty, may protect certain contraband; thus, in 1802, hemp, the produce of Russia and the property of a Russian merchant, taken on its way to Amsterdam, was not confiscated by the British Court of Admiralty; it was not on board a Russian ship, but was taken in the vessel of another country. It was, however, liable to seizure and pre-emption. (The 'Apollo,' 4 Rob., 158.) See also the treaty of July 25, 1803, between Great Britain and Sweden concerning pitch and tar.

The same principle is laid down by Sir William Scott, but it does not seem to have been followed out in all his decisions. It applies equally to unwrought materials and ordinary naval stores. If, when they are destined to a commercial port, it is a just presumption that they are intended solely for civil use, it is evident that this presumption exists in all cases when such is their destination, from whatever country they may be exported, and hence, in all such cases, the presumption should be admitted for their protection, as it is for their condemnation when destined to a port of naval equipment. The distinction in favour of those which are the produce of the country from which they are imported, does not seem to be well founded.'

§ 24. It is universally admitted, that provisions (commeatus belli) are not, in their own nature, contraband. But while some contend that they never can become so under any circumstances, others hold, (and such is the uniform practice of the British Admiralty,) that they may become liable to condemnation by their special destination and intended use. When they are destined to the immediate supply of the military or naval forces of the enemy, the aid thus intended to be given for the prosecution of the war, is so direct and important that the act of transportation is peculiarly noxious, and they are condemned without hesitation. It would seem, from the decision of the Supreme Court of the United States, in the case of the 'Commercen,' that where the real object is the supply of the enemy's forces, the voyage is illegal, even where the port of destination is neutral in its character. Nor, by the established doctrine of the English Admiralty, is it in all cases necessary, in order to make provisions contraband, that the destination to the use of the enemy's military or naval forces should be certain. The rule of ancipitis usus is here applied, which deduces the final use from the immediate destination. If destined to a general commercial port, they are presumed to be for civil use, but if to a port whose predominant character is that of naval construction and equipment, they are presumed to be for military use. But such destination alone is not, as a general rule, sufficient to produce a condemnation. It must further appear that

1 Kent, Com. on Am. Law, vol. i. p. 140; Riquelme, Derecho Pub, Int. lib. i. tit. ii. cap. xv.