contracting party, could not be fairly applied to the case of property shipped before the contemplation of war. Sir W. Scott (Lord Stowell) observed, in delivering his judgment in this case, that it did not follow, that because Spanish property put on board a Portuguese ship would be protected in the event of the interruption of war, therefore Portuguese property on board a Spanish ship should become instantly confiscable on the breaking out of hostilities with Spain; that, in one case, the conduct of the parties would not have been different, if the event of hostilities had been known. The cargo was entitled to the protection of the ship, generally, by this stipulation of the treaty, even if shipped in open war; and à fortiori, if shipped under circumstances still more favourable to the neutrality of the transaction. In the other case, there might be reason to suppose, that the treaty referred only to goods shipped on board an enemy's vessel, in an avowed hostile character; and that the neutral merchant would have acted differently, if he had been apprised of the character of the vessel at the time when the goods were put on board (u). maxims in The same principle has been frequently incorporated into treaties The two between various nations, by which the principle of 'free ships later treaties. free goods' is associated with that of enemy ships enemy goods.' The treaties of Utrecht expressly recognise it, and it has been also incorporated into the different treaties between the United States and the South American Republics, with this qualification, “that it shall always be understood, that the neutral property found on board such enemy's vessels shall be held and considered as enemy's property, and as such shall be liable to detention and confiscation, except such property as was put on board such vessel before the declaration of war, or even afterwards, if it were done without the knowledge of it; but the contracting parties agree that two months having elapsed after the declaration, their citizens shall not plead ignorance thereof" (x). tion of Paris, It is clear from the above account, that with respect to the The Declaratreatment of neutral commerce in time of war the practices of 1856 belligerents were for a long time divergent, and the practice of each belligerent varied at different times according to considerations of policy and interest. On the outbreak of the Crimean war it was evident to the allies, Great Britain and France, that it was 28. (u) The Marianna (1805), 5 C. Rob. (x) Treaty of 1828, between the United States and Colombia, Art. 13. By the Treaty of 1831, between the United States and Mexico; by that of 1834, with Chile, Art. 13, the term CONTRABAND Meaning of contraband. essential to adopt, on their part, uniform maritime practice. We have already seen that they agreed to discontinue privateering, and to use in their naval hostilities against Russia only public warships (y). They agreed, too, that they would not seize enemy goods in neutral ships or neutral goods in enemy ships; thus each waived formerly asserted rights. On the conclusion of the war these relaxations of maritime practice, together with other principles, were embodied in the Declaration of Paris, 1856. Article 2 says: "The neutral flag covers enemy's goods, with the exception of contraband of war." Article 3: "Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag." The original parties to this international Convention, and the later accessions, have already been pointed out (2). There is no doubt that the principles affirmed in the Declaration now constitute part of general international law, and are even binding on those States that were not signatories and have not formally notified their adhesion to it. The general freedom of neutral commerce with the respective belligerent Powers is subject to certain specific exceptions. Among these is the trade with the enemy in certain articles called contraband of war (a). Contraband of war may be said to comprise such articles as are regarded by the belligerents as being intrinsically objectionable, on the ground that they will be of assistance to the enemy in the prosecution of hostilities. "The notion of contraband connotes two elements: it concerns objects of a certain kind and with a certain destination. Cannons, for instance, are carried in a neutral vessel. Are they contraband? That depends: if they are destined for a neutral Government, no; if destined for an enemy Government, yes. The trade in certain articles is by no means generally forbidden during war; it is the trade with the enemy in these articles which is illicit, and against which the belligerent to whose detriment it is carried on may protect himself by the measures allowed by international law" (b). The essential elements are thus usefulness in war and hostile destination, Here it is necessary to draw a distinction between articles regarded as (y) Cf. supra, p. 547. (a) The Popes prohibited trade with merces banno interdictae "-trade in 'absolute' contraband, and those regarded as 'conditional,' 'relative,' or 'occasional' contraband. The former class includes such things as are specially adapted and used for warlike purposes, and are therefore confiscable if found on their way to any part of the enemy territory. The latter class includes other articles useful in peace as well as for war, and are subject to seizure if intercepted on their way to the enemy forces. A third class of articles is usually made, comprising only those things that are adapted only for purposes of peaceful occupation and peaceful conditions. But whilst there has generally been agreement as to such a threefold classification, there has never been a consensus of opinion with regard to the contents or denotation of these classes. Indeed, there is no subject of international law that has provoked so much controversy as the question of contraband has aroused during the last two or three centuries. With regard to one class of things the difficulty has not been so great. The almost unanimous authority of writers, of prize ordinances, and of treaties, agrees to enumerate among absolute contraband all warlike instruments, or materials by their own nature fit to be used in war. Beyond these, there is some difficulty in reconciling the conflicting authorities derived from the opinions of public jurists, the fluctuating usage among nations, and the texts of various conventions that had been designed to give that usage the fixed form of positive law. Grotius, in considering this subject, makes a distinction between Classification those things which are useful only for the purposes of war, those of Grotius. which are not so, and those which are susceptible of indiscriminate use in war and in peace ('res ancipitis usûs'). The first he agrees with all other text writers in prohibiting neutrals from carrying to the enemy, as well as in permitting the second to be so carried; the third class, such as money, provisions, ships, and naval stores, he sometimes prohibits, and at others permits, according to the existing circumstances of the war (c). Vattel. Vattel makes somewhat of a similar distinction, though he in- Position of cludes timber and naval stores among those articles which are particularly useful for the purposes of war, and are always liable to capture as contraband; and considers provisions as such only under certain circumstances, "when there are hopes of reducing the enemy by famine" (d). shoek. Bynkershoek strenuously contends against admitting into the of Bynkerlist of contraband articles those things which are of promiscuous use in peace and in war. He considers the limitation assigned by (c) Grotius, De Jur. Bel. ac Pac. lib. iii. cap. 1, § v. 1, 2, 3. (d) Vattel, Droit des Gens, liv. iii. ch. 7, § 112. Naval stores, how far contraband. Grotius to the right of intercepting them, confining it to the case of necessity, and under the obligation of restitution or indemnifica tion, as insufficient to justify the exercise of the right itself. He concludes that the materials out of which contraband articles may be formed are not themselves contraband; because if all the materials may be prohibited, out of which something may be fabricated that is fit for war, the catalogue of contraband goods will be almost interminable, since there is hardly any kind of material out of which something, at least, fit for war may not be fabricated. The interdiction of so many articles would amount to a total interdiction of commerce, and might as well be so expressed. He qualifies this general position by stating that it may sometimes happen that materials for building ships are prohibited, “if the enemy is in great need of them, and cannot well carry on the war without them." On this ground he justifies the edict of the StatesGeneral of 1657 against the Portuguese, and that of 1652 against the English, as exceptions to the general rule that materials for ship-building are not contraband. He also states that "provisions are often excepted" from the general freedom of neutral commerce "when the enemies are besieged by our friends, or are otherwise pressed by famine” (e). Valin and Pothier both concur in declaring that provisions ('munitions de bouche') are not contraband by the prize law of France, or the common law of nations, unless in the single case where they are destined to a besieged or blockaded place (ƒ). Valin, in his commentary upon the marine ordinance of Louis XIV., by which only munitions of war were declared to be contraband, says: "In the war of 1700, pitch and tar were comprehended in the list of contraband, because the enemy treated them as such, except when found on board Swedish ships, these articles being of the growth and produce of their country. In the treaty of commerce concluded with the King of Denmark, by France, the 23rd of August, 1742, pitch and tar were also declared contraband, together with resin, sail-cloth, hemp and cordage, masts, and ship-timber. Thus, as to this matter there is no fault to be found with the conduct of the English, except where it contravenes particular treaties; for in law these things are now contraband, and have been so since the beginning of the present century, which was not the case formerly, as it appears by ancient treaties, and particularly that of St. Germain, concluded with (e) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 10. (f) Valin, Comment. sur l'Ordon. liv. iii. tit. 9; Des Prises, Art. 11. Pothier, Traité de Propriété, No. 104. England in 1677; the fourth Article of which expressly provides that the trade in all these articles shall remain free, as well as in everything necessary to human nourishment, with the exception of places besieged or blockaded" (g). Judgment of Lord Stowell as to naval In the famous case of the Swedish convoy, determined in the English Court of Admiralty, in 1799, Sir W. Scott (Lord Stowell) says: That tar, pitch, and hemp, going to the enemy's use, are stores. liable to be seized as contraband in their own nature, cannot, I conceive, be doubted under the modern law of nations; though formerly, when the hostilities of Europe were less naval than they have since become, they were of a disputable nature, and perhaps continued so at the time of making that treaty," (that is, the treaty of 1661, between Great Britain and Sweden, which was still in force when he was pronouncing this judgment) "or at least at the time of making that treaty which is the basis of it, I mean the treaty in which Whitlock was employed in 1656; for I conceive that Valin expresses the truth of this matter when he says: 'De droit ces choses,' (speaking of naval stores) sont de contrebande aujourd'hui, et depuis le commencement de ce siècle, ce qui n'étoit pas autrefois néanmoins;'-and Vattel, the best recent writer upon these matters, explicitly admits amongst positive contraband, 'les bois, et tout ce qui sert à la construction at à l'armement de vaisseaux de guerre.' Upon this principle was founded the modern explanatory Article of the Danish treaty, entered into in 1780, on the part of Great Britain by a noble lord (Mansfield) then Secretary of State, whose attention had been peculiarly turned to subjects of this nature. I am, therefore, of opinion, that, although it might be shown that the nature of these commodities had been subject to some controversy in the time of Whitlock, when the fundamental treaty was constructed, and therefore a discreet silence concerning them was observed in the composition of that treaty, and of the latter treaty derived from it, yet that the exposition which the later judgment and practice of Europe had given upon this subject would, in some degree, affect and supply what the treaties had been content to leave on that indefinite and disputable footing, on which the notions then more generally prevailing in Europe had placed it" (h). It seems difficult to read the treaties of 1656 and 1661, between Criticism on Great Britain and Sweden, as fairly admitting the interpretation this decision. placed upon them in the above-cited judgment. These treaties, together with those subsequently concluded between the same (g) Valin, Comm. sur l'Ordon. liv. iii. tit. 9; Des Prises, Art. 11. (h) The Maria (1799), 1 C. Rob. 372. |