become contraband of war. This view of the question is ably advocated by Hautefeuille.'

use

nation

§ 23. The probable use of articles is inferred from their Intended known destination. This rule seems neither unjust nor deduced unequal. The remarks of Chancellor Kent on this point are from destiexceedingly clear and appropriate. The most important distinction,' he says, 'is whether the articles were intended for the ordinary uses of life, or even for mercantile ships' use, or whether they were going with a highly probable destination to military use. The nature and quality of the port to which the articles are going, is not an irrational test. If the port be a general commercial one, it is presumed the articles are intended for civil use, though occasionally a ship of war may be constructed in that port. But, if the great predominant character of that port, like Brest in France, or Portsmouth in England, be that of a port of naval military equipment, it will be presumed that the articles were going for military use, although it is possible that the articles might have been applied to civil consumption. As it is impossible to ascertain the final use of an article ancipitis 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.' The same principle is laid down by Sir William Scott, but it does not seem to have been followed out in all his decisions. It applies equally to unwrought materials and ordinary naval stores. If, when they are destined to a commercial port, it is a just presumption that they are intended solely for civil use, it is evident that this presumption exists in all cases when such is their destination, from whatever country they may be exported, and hence, in all such cases, the presumption should be admitted for their protection, as it is for their condemnation when destined to a port of naval equipment. The distinction in favour of those which are the produce of the

Droit des Gens, tit. 2, p. 212; Polson, Law of Nations, p. 63; the 'Staadt Embden,' 1 Rob., 26; the 'Sarah Christina,' I Rob., 241; the Maria,' Rob., 372; the Apollo,' 4 Rob., 158; the Christina Maria,' 4 Rob., 166; the Twee Juffrowen,' 4 Rob., 244; the 'Evert,' 4 Rob., 354 ; the Nostra Signora,' 5 Rob., 97; the Neptunus,' 3 Rob., 108.

Provisions

country from which they are imported, does not seem to be well founded.'

§ 24. It is generally admitted, that provisions (commeatus belli) are not, in their own nature, contraband. But while some contend that they never can become so under any circumstances, Great Britain holds (and such is her uniform practice) that they may become liable to condemnation by their special destination and intended use. When they are destined to the immediate supply of the military or naval forces of the enemy, the aid thus intended to be given for the prosecution of the war is so direct and important that the act of transportation is peculiarly noxious, and they are condemned without hesitation; but grain in an unprepared state is regarded more favourably. It would scein, from the decision of the Supreme Court of the United States, in the case of the Commercen,' that where the real object is the supply of the enemy's forces, the voyage is illegal, even where the port of destination is neutral in its character. Nor, by the established doctrine of the British Admiralty, is it in all cases necessary, in order to make provisions contraband, that the destination to the use of the enemy's military or naval forces should be certain. The rule of ancipitis usûs is here applied, which deduces the final use from the immediate destination. If destined to a general commercial port, they used to be presumed to be for civil use, but if to a port whose predominant character is that of naval construction and equipment, they were presumed to be for military use. But the modern inland communications by railway must tend to qualify this rule; while, on the other hand, a warlike destination alone is not usually sufficient to produce a condemnation. It must further appear that the provisions were, from their nature and quality, adapted to military use; since, otherwise, there would be no basis for the presumption that they would have been applied to that use, had their arrival been permitted. Thus, where cheeses, intercepted as contraband, were destined to Brest, a port notoriously of naval equipment, evidence was required by Sir William Scott of their fitness for naval use.2

1 Kent, Com. on Am. Law, vol. i. p. 140; Riquelme, Derecho Púb. Int., lib. i. tit. ii. cap. xv.

2 The Commercen,' 2 Gallis R., 264; the 'Jonge Margaretha,' I

pre-emp

§ 25. The ancient custom of pre-emption1 by the belligerent Ancient of the property of the subjects of another State, as practised rule of about the middle of the seventeenth century, had a much tion wider operation and very different meaning than is now attributed to it; all cargoes, without distinction, were subject to it. By the French Ordonnance of 1584, Art. 69, contraband was subjected, not to confiscation, but to pre-emption. But, according to the modern use of this term, it is applied to articles not contraband in themselves, but which, being ambigui usus, are, under the peculiar circumstances of the case, subject to seizure and to be condemned to the use of the belligerent, he paying their value with a reasonable mercantile profit-which, by the practice of the British prize courts, is usually fixed at ten per cent. If the goods are contraband by the law of nations the carrying of them is a criminal act, punishable by confiscation, or any milder penalty which the belligerent may see fit to impose. The question, therefore, resolves itself into one of contraband, upon which opinions are somewhat divided.2

pre-emp

§ 26. The British Admiralty, and especially Sir William British Scott, sustained the capture of provisions which were not rule of even probably destined to military use; they did not confis- tion cate them as contraband, but condemned them to the use of the British Government, on the payment of a price equivalent to their value, or, rather, their cost, and the specified mercantile profit of ten per cent. A similar rule of pre-emption, or requisition, was applied by Great Britain to certain native commodities of neutral States, found in neutral vessels, and required by her for naval purposes. In some cases, where Rob., 196; the 'Zelden Rust,' 6 Rob., 93; the 'Ranger,' 6 Rob., 126; the 'Edward,' 4 Rob., 68; Maisonnaire v. Keating, 2 Gallis R., 334.

1 The prerogative of Purveyance and Pre-emption upon land was a right enjoyed by the Crown of buying up provisions and other necessaries, by the intervention of the King's purveyors, for the use of his royal household, at an appraised valuation, in preference to all others, and even without the consent of the owner; also of forcibly impressing the carriages and horses of the subjects to do the King's business on the public roads, in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a settled price. This prerogative prevailed pretty generally throughout Europe, during the scarcity of gold and silver and the high nominal valuation of money consequential thereupon. Pre-emption on the sea is akin to the above, and is well explained in the case of the 'Haabet,' 2 Rob., 182.

Phillimore, On Int. Law, vol. ii. §§ 267 270; the Sarah Christina,' 1 Rob., 241; De Cussy, Droit Maritime, liv. i. tit. iii. § 18.

Contested

this rule of pre-emption, or right of purchase, was exercised, it was not claimed that the goods so captured and condemned to a forced sale were contraband, or even ambigui usûs; but the right to pre-empt them was claimed, because the ancient practice of Europe, or at least of several maritime States of Europe, was to confiscate them entirely; a century has not elapsed since this claim has been asserted by some of them.''

§ 27. The arguments adduced in favour of the British by others right of pre-emption failed to convince its opponents of its justness or legality, and its enforcement was, at the time, most strenuously opposed by the Government of the United States and the neutral powers of Europe. Nor did this opposition cease with the war in which the rule had originated, or, at least, been called into operation. Since then text-writers have most emphatically denied the legality of the rule, and attacked the arguments by which it was attempted to be defended. Probably in any future war the British Government will not attempt to exercise the right of pre-emption, except upon goods manifestly contraband of war, or which may fall within section 38 of the Naval Prize Act, 1864 (27 and 28 Vict., c. 25). This Act enacts that' where a ship of a foreign nation, passing the seas, laden with naval or victualling stores intended to be carried to a port of any enemy of her Majesty, is taken and brought into a port of the United Kingdom, and the purchase for the service of her Majesty of the stores on board the ship appears to the Lords of the Admiralty expedient, without the condemnation thereof in a prize court, in that case the Lords of the Admiralty may purchase on the account or for the service of her Majesty all or any of the stores on board the ship; and the Commissioners of Customs may permit the stores purchased to be entered and landed within any port.'

Insurance on articles contraband of war

§ 28. Arnould lays down the rule that all insurances on articles contraband of war are wholly void, and incapable of being enforced in the courts of the belligerent country.2 But if effected by or for neutrals, and sought to be enforced in the court of a neutral State, the case would be different, for it

1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 24; Kent, Com. on Am. Law, vol. i. pp. 138, 139; Debrett's State Papers, p. 380; Manning, Law of Nations, pp. 287, 316.

2 Gibson v. Service, 5 Taunt., 433.

is not deemed unlawful in a neutral, by its own government, to be engaged in a contraband trade.' The insurance, therefore, by a neutral, of articles contraband of war, being per se a valid contract, may be enforced in the courts of the neutral country, provided the nature of the trade and of the goods. was disclosed to the underwriter, or provided there be just ground, from the circumstances of the trade, or otherwise, to presume that he was duly informed thereof. Duer contends that the carrying of contraband, being contrary to the general law of nations, renders the voyage prohibited and illegal, and hence, that an insurance of the ship on such a voyage cannot be sustained. We copy a portion of his remarks. An insurance,' he says, 'upon goods liable to confiscation, as contraband of war, if made in the belligerent country whose rights are violated, it is admitted by all writers, is wholly void; nor do I perceive any reason for doubting that an insurance upon every other subject or interest, liable to be involved in the same penalty, is equally invalid. Hence, a policy upon the freight of the contraband articles, upon other goods, the property of the same owner, and upon the ship, when subject to condemnation, is, in all cases, an illegal contract; for, although the penalty in which the subject is liable may not always be enforced in a court of Admiralty, that court alone seems competent to judge of the special circumstances that may warrant a discretionary relaxation of its general rules. Nor to avoid a policy upon the ship, does it seem to be necessary that she should be placed in circumstances to justify her condemnation. The transportation of contraband, as viewed by the law of nations, is universally an unlawful act; and it is for this reason that it subjects the ship to the penalty of the loss of freight. The imposition of this penalty, it seems to me, renders the voyage prohibited and illegal; and hence, if we are governed by analogy, an insurance of the ship, on such a voyage, cannot be sustained. The arguments of a sound policy lead us to the same conclusion. It is impossible to deny that a belligerent country has a real, and, in some cases, a deep interest in preventing the transportation of contraband articles to the use of the enemy. To permit the vehicle of transportation to be insured, is to encourage the

1 The 'Santissima Trinidad,' 7 Wheat., 283; ex parte Chavasse, in re Grazebrooke, 34 L. J. (Chanc.), 17.