respect to what articles are to be assigned to each class, and under what particular circumstances articles of the third class are subject to capture as contraband of war. Loccenius is of opinion that provisions are universally contraband, and refers to many instances in which different nations had enforced the prohibition. Heineccius includes in the list of contraband articles of promiscuous use in peace or war, such as provisions, naval stores, &c. Vattel makes a similar distinction to that of Grotius, though he includes timber or naval stores among articles which are liable to capture as contraband, and considers provisions as such only under certain circumstances, as when there are hopes of reducing the enemy by famine.' Valin and Pothier wholly exclude provisions, but admit that by general usage, when they wrote, naval stores were prohibited. Bynkershoek strenuously contends against admitting into the list of contraband articles of promiscuous use in peace and war, and denies that any other than those which, in their actual state, are immediately applicable to warlike purpose, can properly be enumerated as prohibited. Sir Leoline Jenkins, in a letter to Charles II., says: 'I am humbly of opinion that nothing ought to be judged contraband by the general law of nations, but what is directly and immediately subservient to the uses of war, except it be in the case of besieged places.'1

writers

§ 15. British authors have generally favoured the exten- of modern sion of the list of contraband to all articles of promiscuous use in peace and war. Reddie defines contraband to be: 'I. Articles which have been constructed, fabricated, or pounded into actual instruments of war. 2. Articles which, from their nature, qualities, and quantities, are applicable and useful for the purposes of war. 3. Articles which, although not subservient generally to the purposes of war, such as grain, flour, provisions, naval stores, become so by their special and direct destination for such purposes, namely, by their destination for the supply of armies, garrisons, or fleets, naval arsenals, and posts of military equipment.' The following list is given by Sir Godfrey Lushington, permanent

'Life and Correspondence of Sir L. Jenkins, vol. ii. p. 751; Grotius, De Jure Bell. ac Pac., lib. iii. cap. i. § 5; Loccenius, De Jure Marit., lib. i. cap. 4,9; Heineccius, De Navibus, cap. i. § 14; Vattel, Droit des Gens, liv. iii. ch. vii. § 112; Valin, Com. sur l'Ord., liv. iii. tit. ix. art. xi. ; Bynkershoek, Quæst. Jur. Bel., liv. i. cap. x.

Under-Secretary of State for the Home Department, 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), 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 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).'1

American writers, such as Kent, Wheaton, and Duer, have generally limited their remarks to stating the opinions of the older text-writers, and the decisions of English and American courts of prize. Wheaton is evidently disposed to exclude entirely, from the list of contraband, provisions and other articles of promiscuous use. Kent and Duer are of opinion that such articles may, or may not, be contraband, according to the circumstances of the case.2 In the case of the Peter

1 Reddie, Researches, Hist. and Crit., on Marit. Int. Law, vol. ii.

p. 456; Lushington, Manual of Naval Prize Law, p. 35.

* Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 26; Kent, Com. on Am. Law, vol. i. pp. 135-143; Duer, On Insurance, vol. i. pp. 622-644.

hoff' the Supreme Court of the United States, in 1866, was of opinion that a strictly accurate and satisfactory classification of contraband is perhaps impracticable, but that which is best supported by English and American decisions divides all merchandise into three classes:-Ist. Articles manufactured primarily or ordinarily used for military purposes in time of war, destined to a belligerent country or places occupied by the army and navy of a belligerent, are always contraband and liable to condemnation. 2nd. Articles which may be and are used for purposes of war or peace, according to circumstances, are contraband only when actually destined to the military or naval use of a belligerent. 3rd. Articles exclusively used for peaceful purposes are not contraband at all, though liable to seizure and condemnation for violation of blockade or siege. The Court further held that contraband articles contaminate the parts not contraband of a cargo if belonging to the same owner; and that the non-contraband must share the fate of the contraband, viz. confiscation.

Continental writers, generally, contend against the English extension of contraband. Among them are Hautefeuille and Ortolan. The former admits but one class of contraband, and confines it to objects of first necessity for war, which are exclusively useful in war, and which can be directly employed for that purpose, without undergoing any change. The latter declares his opinion to be, that, on principle, under ordinary circumstances, arms and munitions of war, which serve directly and exclusively for belligerent purposes, are alone contraband. He admits that in special cases certain determinate articles, whose usefulness is greater in war than in peace, are, from circumstances, in their character contraband, without being actually arms and munitions of war, such as timber, evidently intended for the construction of ships of war, or for gun carriages, boilers or machinery for the enemy's steam vessels, sulphur, saltpetre, or other materials for arms or munitions of war. Heffter is of opinion that certain articles, as provisions, not in their nature contraband, may, in certain cases, from their destination and intended use, be regarded as such.2

§ 16. And the same discordancy in the definition of con

1 5 Wall., 28.

2 Hautefeuille, Des Nations Neutres, tit. viii. § 2; Ortolan, Dip. de la Mer, tome ii. ch. vi. ; Heffter, Droit International, § 160.

VOL. II.

Q

earlier treaties

and ordinances

Discord- traband is to be found in the conventional law of nations, as ancy of established by treaties, the provisions of which are various and contradictory-even of those made, at different periods, between the same nations. The same may be said of marine ordinances and diplomatic discussions. 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, mortarpieces, petards, grenadoes, musket rests, bandaliers, saltpetre, muskets, musket shots, helmets, corslets, breastplates, coats of mail, and the like kinds of armature; also horses and other warlike instruments. The marine ordinances of Louis XIV., 1681, limit contraband to munitions of war. So, also, the treaties between England and Sweden in 1656, 1661, 1664, and 1665. Bynkershoek refers to other treaties of the seventeenth century, as containing the same limitation. But Valin says that in the treaty of commerce between France and Denmark, in 1742, pitch, tar, resin, sail cloth, hemp, cordage, masts, and ship timber were declared to be contraband. By the treaty of Utrecht, in 1713, and the subsequent treaties of 1748, 1763, 1783, and 1786, between Great Britain nd France, contraband was strictly confined to munitions of war; all other goods not worked into the form of any instrument or furniture for warlike use, by land or sea, are expressly excluded from this list. But the contraband character of naval stores continued a vexed question between Great Britain and the Baltic powers. By the treaty of 1801, between Great Britain and Russia, to which Denmark and Sweden subsequently acceded, saltpetre, sulphur, saddles and bridles, were enumerated as contraband; and by the convention of July 25, 1803, the list was augmented by the addition of coined money, horses, equipments for cavalry, and all manufactured articles serving immediately for the equipment of ships of war. In the treaty of 1794, between great Britain and the United States, it was stipulated (article 18) that under the denomination of contraband should be comprised all arms

1 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.)

and implements serving for the purposes of war, ' 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 article then goes on to provide, that 'whereas the difficulty of agreeing on the precise cases, in which alone provisions and other articles, not generally contraband, may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise, it is further agreed that whenever any such articles, so becoming contraband, according to the existing law of nations, shall, for that reason, be seized,' &c., the owners thereof shall be paid their value, &c.'

of more

§ 17. The numerous treaties to which the United States of those have been parties, and which contain any stipulations re- recent specting contraband, with the single exception of the one date just referred to with England, in 1794, confine the term to arms and munitions of war, and in the early ones naval stores are, in express terms, excluded from the list. The more modern treaties between European powers are not calculated to throw much light upon this subject. The declarations of the French and English governments, at the commencement of the war with Russia, in 1854, except contraband of war from the articles to which impunity is accorded, but they contain no new definition of contraband. But the British Order in Council of February 18, 1854, issued in anticipation of the declaration of war, prohibited from being exported, or carried coastwise, ' all arms, ammunition and gunpowder, military and naval stores, and the following articles, being articles which are judged capable of being converted into, or made useful in increasing the quantity of military or naval stores, that is to say, marine engines, screw propellers, paddle wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler plates, fire bars, and every article or any other component part of an engine or boiler, or any article whatever which is, or can, or may become applicable for the manufacture of marine machinery.' Although this Order,

'Merlin, Répertoire, verb. 'Prise Maritime,' § 3, art. I; Pistoye et Duverdy, Traité des Prises, tit. vi. ch. ii. § 3. 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. cap. i. § 10.)