Freight and capture. The Fanny and the Nereide. criticism on the case of the Nereide. each other. The 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 of the United States was correct in principle, and the most liberal and honourable to the jurisprudence of that country. The question may, therefore, be considered there as at rest, and as having received the most authoritative decision that can be rendered by any judicial tribunal in the United States. [On these two cases Mr Duer's remarks deserve to be Mr Duer's quoted: he says, "The authority of the decision in the Nereide, as a just exposition of the law of nations, is greatly impaired by the dissent of a learned judge (Mr J. Story), by whom the principles and doctrines of that law are known to have been profoundly studied, and whose decisions evince his masterly knowledge of the entire system to which they belong." In support of his opinion, which was in accordance with the view taken by Sir Wm. Scott in the case of the Fanny above mentioned, Mr. J. Story referred to the cases, then recent, of American ships captured, while under British convoy, by the Danes, and condemned by the highest prize tribunal in Denmark, and cited with approval the grounds of the decision in the case of the Samson Barney. In spite therefore of the decision of the rest of the court in the Nereide, and in spite of Mr J. Johnson's elaborate vindication of that decision in his judgment in the Atalanta, Mr Duer doubts whether any change will be produced in the conviction that the arguments of Sir William Scott and Mr J. Story are fitted to impress. It should, however, be noticed. that the American government pressed their claims upon that of Denmark for the condemnation of the American ships above referred to. These claims, after a peremptory refusal in the first instance, and a long and elaborate argument in support of a renewal of them, were settled by a treaty between the two countries in 1830, by which the 1 3 Wheaton's Reports, 409. 2 Duer on Insurance, Vol. 1. lect. viii. § 14. p. 731. 41 Duer, p. 774. For the view of a Spanish Jurist on the principles discussed in the cases of the Nereide and the Atalanta, see Calvo, Le Dr. Int. T. 2. Liv. iii. § 1217, where at p. 624 all the leading (English and Foreign) authorities are cited. latter power agreed to indemnify the American claimants Freight for the loss of their property by the payment of a fixed sum, to be apportioned by commissioners appointed by the American government'.] 1 For a full account of the transaction, and the arguments involved in it, see Wheaton's Elements, Vol. 11. Part 4, ch. iii. § 52, pp. 858-867. Lawrence's ed. of 1863. and capThe ture. Fanny and the Nerside. 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 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. 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 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. ? The Jonge Margaretha, 1 Robinson, 183. 3 Bk. III. ch. i. § 5. He agrees Restric tions on neutral Contra band. nature, and useful both in peace and war. with 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 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. 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 5 1 Rutherforth's Inst. Bk. II. ch. ix. 2 Bk. I. ch. vii. § 112. 3 De Jure Maritimo, Lib. I. 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. Wer of 1793. cantile naval equipment'; 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 war. 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. 21 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. 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. |