lay down a rule the application of which shall, in every case, determine whether a particular article is, or is not, contraband of war. The attempt has frequently been made, but none of the rules suggested has, as yet, received that general sanction which is necessary to give it standing as a rule of international law. "Grotius, in considering this subject, makes a distinction between those things which are useful only for purposes of war, those which are not so, and those which are susceptible of indiscriminate use in war and peace. 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 other times permits, according to the existing circumstances of the war.""

The question as to what is and what is not contraband cannot, as yet, be answered with precision. No complete list of articles which are to be deemed contraband under all circumstances has been drawn up, nor does it seem likely that it ever will be. That which is contraband under certain circumstances may not be so under others. The main point, in case of an article of doubtful use, is, whether it was intended for, or would probably be applied to, military purposes. The release or condemnation of the goods is, in every case, determined by

voyages from neutral ports intended for belligerent ports are not protected in respect to seizure, either of ship or cargo, by an intention, real or pretended, to touch at intermediate neutral ports.”— The Bermuda, 3 Wallace, 514. "Neutrals may convey to belligerent ports not under blockade whatever belligerents may desire to take, except contraband of war, which is always subject to seizure when being conveyed to a belligerent destination, whether the voyage be direct or indirect ; such seizure, however, is restricted to actual contraband, and does not extend to the ship or other cargo, except in cases

of fraud or bad faith on the part of the owners, or of the master with their sanction."-Ibid.

'Boyd's Wheaton, pp. 558, 559. citing Grotius, De Jure Belli et Pac. lib. iii. cap. i. § v. 1, 2, 3. The views of Bynkershoek and Vattel agree in substance with those of Grotius. The former, however, shows an inclination to extend Grotius's rules in the interest of belligerents, while the latter con. tends for a rule somewhat more favorable to neutrals. See Vattel, bk. iii. chap. vii. §§ 112, 113; Bynkershoek, Quest. Jur. Pub. lib. i. cap. 10.

the decision of this question. Contraband of war may be defined, however, in general terms, as any article primarily intended for the military or naval use of a belligerent and constituting, wholly or in part, the cargo of a neutral merchant vessel found on the high seas or in the territorial waters of a belligerent and having a hostile destination.'

Field's Rule. Mr. Field, in his proposed International Code, holds that "private property of any person whomsoever, and public property of a neutral nation, are contraband of war when consisting of articles manufactured for, and primarily used for, military purposes in time of war, and actually destined for the use of the hostile nation in war, but not otherwise."

Question Determined by Prise - Courts. In England and America the court before which the goods are brought will inquire into all the circumstances of the case; such as the destination of the ship, the purpose to which the goods seem intended to be applied, the character of the war, and so on, and will condemn or release them upon the evidence. If, however, there are any treaty stipulations on the subject, or if the state before whose court the goods are brought has issued any definite list of contraband goods, the decision will, of course, be regulated accordingly. "The liability to capture," says Halleck, "can only be determined by the rules of international law, as interpreted and applied by the tribunals of the belligerent state, to the operations of whose cruisers the neutral merchant is exposed."

Opinion of the Supreme Court of the United States. The most recent authoritative opinion upon the subject, and the one which more nearly expresses the existing rule than any other, is that laid down by the Supreme Court of the United

IV Calvo, § 2708; II Twiss, § 121; II Halleck, pp. 244, 245; Hall, §§ 236-246; Dana's Wheaton, p. 629, note 226; II Ortolan, pp. 182-200.

2 Field, Int. Code, § 859.

Boyd's Wheaton, pp. 575, 576; Halleck, chap. xxxii. § 19. See, also,

on page 576 of the former work, the lists of contraband as determined by the English prize-courts. Dana's Wheaton, § 501, note 226; V Calvo, §§ 2708-2738; Holmes's Kent, pp. 136-143.

States in the case of the Peterhoff. The decision of the court was that "the classification of goods as contraband or not contraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is, perhaps, impracticable; but that which is best supported by American and English decisions may be said to divide all merchandise into three classes: (1) Articles manufactured and primarily or ordinarily used for military purposes in time of war. (2) Articles which may be, and are, used for purposes of war or peace, according to circumstances. (3) Articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege." 1

1

To these may be added the rule that no articles of merchandise are contraband of war so long as they remain in neutral territory, or are found on the high seas with a bona fide neutral destination. They acquire the character of contraband only when they are found, without the territorial waters of a neutral state, on board a ship which is destined to a hostile port.

Application of the Rules. In the application of these rules, the first and third give rise to but little difficulty. Such discussion as has been had, with respect to the liability of merchandise to capture as contraband of war, has had to do chiefly with the second class, with reference to which there is a wide difference of opinion. This is observable, not only in the

The Peterhoff, 5 Wallace, 58; III Phillimore, §§ 236, 243-253; Vattel, liv. iii. chap. vii. § 112; II Twiss, § 121-148; II Ortolan, pp. 182-197; Lawrence, Int. Law, § 278; Klüber, § 288; Manning, pp. 352377; II Parsons, Maritime Law, pp. 93, 94; Upton, Maritime Law, pp.

327-334; Heffter, § 160; Dana's Wheaton, § 501, note 226; Lawrence's Wheaton, p. 796, note 229; Bluntschli, § 765; III Dig. Int. Law, §§ 368-374.

"The classification of goods as contraband or not contraband, which is best supported by Amer

policy of states, but in the views of text writers. Those states which, at different periods, have enjoyed great maritime power, both in a commercial and a military sense, have usually advocated an extension of the list of contraband; while, on the other hand, those which have never attained to any considerable degree of maritime importance have opposed such an extension, and have contended for the greatest freedom of neutral trade. Of the former class England is the most conspicuous representative; next in order follow France and the United States. Holland, when an important maritime power, entertained a different view from that advocated by her when her maritime importance had been largely diminished.

Again, articles which are in dispute are differently regarded at different times, and under different circumstances of destination, as determined by the states which are parties to a particular war. So, too, articles which are undeniably contraband at a particular epoch gradually lose that character; on the other hand, articles formerly innocent, with the lapse of time and the march of improvement, acquire the character of contraband. Parts of marine steam machinery, previous to 1830, would have escaped capture. Plates of iron or steel, of suitable size for use as armor, would have enjoyed a similar immunity. At present both are everywhere regarded as contra

(3)

ican and English decisions, divides all merchandise into three classes: (1) Articles manufactured and primarily or ordinarily used for military purposes in time of war. (2) Articles which may be and are used for purposes of war or peace, according to circumstances. Articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the

band of war. However difficult it may be to prepare a list of contraband articles at any particular epoch, it is certainly much less difficult for a court to determine whether a certain article of captured merchandise is, or is not, contraband. In reaching such a determination the court takes into account the circumstances of capture, the necessities of the state to whose use it was destined, its condition, origin, and ownership. With these data the court is usually able to determine, with great accuracy, whether a particular article is, or is not, contraband of war.'

Destination Important: How Determined. From what has been said in respect to the right of belligerents to impose restrictions on neutral commerce, it will be seen that, in determining liability to capture, the destination of the vessel and

The action of the court in the case of the Peterhoff may be cited as an example. A portion of the cargo of the ship consisted of stoutly made shoes and cavalry boots. The ostensible destination of the cargo was Matamoras, a Mexican port. These articles were notoriously not worn or used, in Mexico, by any portion of the population; they were worn in the United States, and were especially needed for the equipment of the Confederate armies. Another portion of the cargo was composed of heavy woollen blankets, not adapted to the Mexican market, and of a kind entirely different, in pattern and weight, from those usually worn in Mexico. On the other hand, they closely resembled those made and sold, for military use, in the United States, and were adapted to the colder climate of that country. The court, in both instances, properly inferred that the goods were destined to the military service of the Confederacy. In the cargo of the Springbok a large quantity of gray cloth and metal buttons was found. The cloth was a heavy woollen material, altogether unsuited to the

Nassau market, or for use in the manufacture of clothing in that climate. On the other hand, it was of the same color and quality as that officially adopted for the use of the Confederate armies. Some of the buttons bore as a device the letter C; others the letter A; others the letter I; still others the letters CSN. These buttons were not usual articles of commerce in Nassau, the ostensible destination of the ship. The Confederate army regulations prescribed that such buttons should be worn by, and should designate the uniforms of, its cavalry, artillery, and infantry. Its naval regulations prescribed the use of buttons bearing the letters CSN. Goods bearing the name of the same makers, and in some cases of the same shippers, had been found and condemned in previous cargoes of contraband. These facts created a presumption against the articles, which the claimants did not attempt to rebut by evidence of a legitimate neutral destination. The Peter

hoff. 5 Wallace, 58; the Springbok, Ibid. 1. See, also, Dana's Wheaton, p. 632, note.