This is a much stricter limit to contraband goods than has ever been accepted by prize courts.

Mr. Hall, after quoting Kent, Wheaton, Manning, Ortolan, Hall. Bluntschli and Heffter, remarks that "The language of each of the above writers distinctly involves the proposition that contraband of war cannot be limited to munitions of war, and that the articles composing it must vary with the special circumstances of particular cases. This proposition is the simple expression of common sense. There can be no question that many articles, of use alike in peace and war; may occasionally be as essential to the prosecution of hostilities as are arms themselves; and the ultimate basis of the prohibition of arms is that they are essential. The reason that no difference of opinion exists with respect to them is the fact that they are in all cases essential.

"But it may also happen, after a remote non-manufacturing country, such as Brazil, has suffered a disaster at sea, that to prevent the importation of marine engines would be equivalent to putting an end to the war, or would at least deprive the defeated nation of all power of actively annoying its enemy. In considering the matter logically therefore, the true difficulty is the test of essentiality. Under what circumstances can the seizure of merchandise of double use be justified?

"The principle that the right to class a particular object as contraband is intimately bound up with the fact of its possession being essential to the belligerent for his warlike purposes will scarcely be contested by any publicist. The belief that no article except munitions of war can be so essential as to warrant interference with trade appears to underlie the doctrine of one school of writers; the statement that the contrary is true is explicitly made by the adherents of the opposite opinion; but these are mere differences of opinion as to the value of facts; upon the question of theory there is general agreement. The policy of nations, on the other hand, has been governed by no principle. The wish to keep open their own or a foreign market has usually been a motive quite as powerful as the hope of embarrassing an enemy, and it has led to a thoroughly confused practice. Usage does not conform to principle, and at the same time no sufficient rule can be extracted from it."*

*Hall, pp. 578-9.

Dana.

Sec. 3. Treaties of the United States.

It may be safely assumed that prize courts of Great Britain and the United States, in the absence of treaty stipulations or of rules of their governments, would inquire into the circumstances of each case, to determine whether articles ancipitus usús were contraband of war; and that in that class they would include ships, marine steam-machinery, masts and spars in a manufactured state, the component materials of gunpowder, coals, articles in a manufactured state chiefly useful in war, or the component parts of armaments and military equipments. The chief circumstances of inquiry would naturally be the port of destination. If that is a naval arsenal, or a port in which vessels of war are usually fitted out, or in which a fleet is lying, or a garrison town, or a place from which a military expedition is fitting out, the presumption of military use would be raised, more or less strongly according to the circumstances. The nature and character of the war, as being maritime or not, and the known special needs of the enemy, are also to be considered. If it is proved, as a fact in the case, that the articles are destined directly to military use-as if they were to be delivered to an enemy's fleet, or army, or war department-they would be condemned for the further reason of being involved in a nonneutral trade."*

The United States have generally, in discussions respecting contraband, favored a limited list of articles to be classed as contraband of war, and in many treaties have agreed to consider as contraband only arms, and such articles as are prepared and serve directly for purposes of war. But the policy of our government has not been consistent on this point, and no general rule can be laid down; each treaty now in force must be referred to where the parties to them are engaged in war.

The following list of articles held to be contraband is taken from the treaty concluded with Bolivia in 1858:†

"This liberty of navigation and commerce shall extend to all kinds of merchandise, excepting those only which are distinguished by the name of contraband of war, and under this name shall be comprehended,—

"Ist. Cannon, mortars, howitzers, swivels, blunderbusses,

Dana's Wheaton, p. 632, n.

†U. S. Treaties, 1873, "Bolivia," pp. 85-86.

muskets, fusees, rifles, carbines, pistols, pikes, swords, sabres, lances, spears, halberds, and grenades, bombs, powder, matches, balls, and all other things belonging to the use of these arms. "2d. Bucklers, helmets, breast-plates, coats of mail, infantry belts and clothes made up in the form and for military use.

'3d. Cavalry belts, and horses, with their furniture.

4th. And, generally, all kinds of arms, offensive and defensive, and instruments of iron, steel, brass, and copper, or any other materials manufactured, prepared, and formed expressly to make war by sea or land.

"All other merchandises and things not comprehended in the articles of contraband explicitly enumerated and classified as above, shall be held and considered as free, and subjects of free and lawful commerce, so that they may be carried and transported in the freest manner by the citizens of both contracting parties, even to places belonging to an enemy, excepting only those places which are at that time besieged or blockaded."

The following treaties give exactly the same list of contraband, and hold the same language as to freedom of trade: Dominican Republic, 1867; Ecuador, 1839; Guatemala, 1849; Hayti, 1864; Mexico, 1848.

The treaties with the United States of Colombia, 1846, and San Salvador, 1850, give the same list of articles directly contraband, but add "provisions that are imported into a besieged or blockaded place." These are the only treaties, it may be noted, concluded by the United States subsequent to the treaty of 1794 with Great Britain, in which it is admitted that provisions became contraband under any circumstances. The reason for including them in the list of contraband in the cases named is not clear, since they would be condemned on another ground, namely, breach of blockade.

The following treaties contain substantially the same list of contraband as that given above:

Italy, 1871, the treaty "expressly declares that the following articles and no others shall be considered under this denomination." Horses are omitted from the list, but war saddles and holsters" are included.

Holland, 1782, "soldiers, saltpetre, sulphur, and saddles" are included. Naval stores of all kinds are expressly excepted from the list of contraband, "even if suited for the construction

and equipment of vessels of war and for the manufacture of implements of war."

Sweden, 1783, renewed by the treaty with Sweden and Norway, 1827, includes "sulphur and saltpetre," and expressly excludes naval stores.

Spain, 1795, includes "saltpetre," and excludes naval stores. Vessels of war of either party may, in cases of necessity, take any portion of the cargo of merchant vessels belonging to the other, paying for the articles taken the same price as would have been realized at the port of destination.

Prussia, 1799, renewed by the treaty of 1828, includes "saltpetre and sulphur," and omits horses.

France, 1800, includes "saltpetre" in the list, but omits horses. Venezuela, 1860, adds "saltpetre" to the list.

Treaties with Brazil, 1828, Chile, 1832, and Peru, 1851, contained the same list of contraband as that given in the treaty with Bolivia, but were all terminated in pursuance of formal notifications given by those governments.

The treaty with Great Britain of 1794, terminated by limitation, in addition to the usual list of arms and munitions of war, omitted horses, but included "saltpetre," and also "timber for ship-building, tar or rosin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted." The treaty further agrees that provisions and other articles not generally contraband, becoming so "according to the existing law of nations," and seized for that reason, shall not be confiscated, but the owners shall be speedily and completely indemnified.

It follows then that the United States, at present, hold defined and limited agreements as to contraband with Bolivia, the United States of Colombia, the Dominican Republic, Ecuador, France, Guatemala, Hayti, Holland, Italy, Mexico, Prussia, San Salvador, Spain, Sweden and Norway, and Venezuela.

With other nations than those named above the United States have no agreement as to contraband goods, and the prize courts would determine, according to public law, the character of merchandise shipped to an enemy's ports.

While the treaties with Great Britain, Brazil, Chile and Peru, where contraband is defined, have terminated by limitation or

after notification, it may be assumed that the courts would, in passing upon cases involving the property of citizens of those countries, be guided to a great extent by the policy expressed in those treaties. This was seen during the War of Secession in the United States, when the prize courts, in deciding cases affecting British property, adopted the practice of the British Admiralty Courts.

of Courts of the United States.

“The rules of International Law recognized by the authori- Sec. 4. Decisions ties in the United States are those admitted by common custom at the period when the United States became independent, except when modified by treaty. And the practice of our prize courts, which are the real expounders of the law, conforms to that of the British courts, except when modified by treaty."

"As it is impossible to ascertain positively the final use of an article ancipitus usûs, 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."†

The court, also, in the decision of the cases growing out of the war of 1812, reported before Mr. Wheaton's connection with them, had declared that, as the United States at one time formed a component part of the British Empire, their prize law was, as understood at the time of separation, the prize law of the United States, though no recent rules of the British courts were entitled to more respect than those of other countries; yet that, where there were no reasons to the contrary, they should regard the decisions of the English Courts of Admiralty."‡

Uor M

*Dahlgren, p. 85.

Kent, p. 147.

Lawrence's Wheaton, p. 974, n.