could not have been such a one as Vattel had in view; or, in other words, that the cargoes were not become contraband at all within the true meaning of his principle, or within any principle known to the general law of nations.

This dis

cussion continued. Opinion of Grotius.

§ 496. The authority of Grotius was also adduced, as countenancing this position.

Grotius divides commodities into three classes, the first of which he declares to be plainly contraband; the second plainly not so; and as to the third, he says: "In tertio illo genere usûs ancipitis, distinguendus erit belli status. Nam si tueri me non possum nisi quæ mittuntur intercipiam, necessitas, ut alibi exposuimus, jus dabit, sed sub onere restitutionis, nisi causa alia accedat." This "causa alia" is afterwards explained by an example, "ut si oppidum obsessum tenebam, si portus olausos, et jam deditio aut pax expectabatur."

This opinion of Grotius, as to the third class of goods, did not appear to proceed at all upon the notion of contraband, but simply upon that of a pure necessity on the part of the capturing belligerent. He does not consider the right of seizure as a means of effecting the reduction of the enemy, but as the indispensable means of our own defence. He does not state the seizure upon any supposed illegal conduct in the neutral, in attempting to carry articles of the third class, (among which provisions are included,) not bound to a port besieged or blockaded, to be lawful, when made with the mere view of annoying or reducing the enemy, but solely when made with a view to our own preservation or defence, under the pressure of that imperious and unequivocal necessity, which breaks down the distinctions of property, and, upon certain conditions, revives the original right of using things as if they were in

common.

This necessity he explains at large in his second book, (cap. ii. sec. 6,) and, in the above recited passage, he refers expressly to that explanation. In sections 7, 8, and 9, he lays down the conditions annexed to this right of necessity: as, 1. It shall not be exercised until all other possible means have been used; 2. Nor if the right owner is under a like necessity; and, 3. Restitution shall be made as soon as practicable.

In his third book, (cap. xvii. sec. 1,) recapitulating what he had before said on this subject, Grotius further explains this doctrine of necessity, and most explicitly confirms the construction placed

upon the above cited texts. And Rutherforth, in commenting on Grotius, (lib. iii. cap. 1, sec. 5,) also explains what he there says of the right of seizing provisions upon the ground of necessity; and supposes his meaning to be that the seizure would not be justifiable in that view, "unless the exigency of affairs is such, that we cannot possibly do without them." (a)

§ 497. Bynkershoek also confines the right of seizing goods, not generally contraband of war, (and provisions among the rest,) to the above-mentioned cases. (a)

This disind

cussion con

Opinion of
Bynker-

It appeared, then, that so far as the authority of text- shock. writers could influence the question, the Order in Council of 1795 could not be rested upon any just notion of contraband; nor could it, in that view, be justified by the reason of the thing or the approved usage of nations.

This dis

General

§ 498. If the mere hope, however apparently well cussion confounded, of annoying or reducing an enemy, by inter- tinued. cepting the commerce of neutrals in articles of provision, principles. (which, in themselves, are no more contraband than ordinary merchandise,) to ports not besieged or blockaded, would authorize that interruption, it would follow that a belligerent might at any time prevent, without a siege or blockade, all trade whatsoever with its enemy; since there is at all times reason to believe that a nation, having little or no shipping of its own, might be so materially distressed by preventing all other nations from trading with it, that such prevention might be a powerful instrument in bringing it to terms. The principle is so wide in its nature, that it is, in this respect, incapable of any boundary. There is no solid distinction, in this view of the principle, between provisions and a thousand other articles. Men must be clothed as well as fed; and even the privation of the conveniences of life is severely felt by those to whom habit has rendered them necessary. A nation, in proportion as it can be debarred its accustomed commercial intercourse with other States, must be enfeebled and impoverished; and if it is allowable to a belligerent to violate the freedom of neutral commerce, in respect to any one article not contraband in se, upon the expectation of annoying the enemy, or bringing him to terms by a seizure of that article, and preventing it reaching his ports, why not, upon the same expectation of annoyance, cut off as far as (a) Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 19. (a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 9.

possible by captures, all communication with the enemy, and thus strike at once effectually at his power and resources?

This discussion con

The United

1794.

§ 499. As to the 18th article of the treaty of 1794, betinued. tween the United States and Great Britain, it manifestly States-Brit- intended to leave the question where it found it; the ish treaty of two contracting parties, not being able to agree upon a definition of the cases in which provisions and other articles, not generally contraband, might be regarded as such, (the American government insisting on confining it to articles destined to a place actually besieged, blockaded, or invested, whilst the British government maintained that it ought to be extended to all cases where there is an expectation of reducing the enemy by famine,) concurred in stipulating, that "whenever any such articles, so becoming contraband, according to the existing law of nations, shall for that reason be seized, the same shall not be confiscated," but the owners should be completely indemnified in the manner provided for in the article. When the law of nations existing at the time the case arises pronounces the articles contraband, they may for that reason be seized; when otherwise, they may not be seized. Each party was thus left as free as the other to decide whether the law of nations, in the given case, pronounced them contraband or not, and neither was obliged to be governed by the opinion of the other. If one party, on a false pretext of being authorized by the law of nations, made a seizure, the other was at full liberty to contest it, to appeal to that law, and, if he thought fit, to resort to reprisals and war.

This dis

tinued. The

§ 500. As to the second ground upon which the Order cussion con- in Council was justified, necessity, Great Britain being, justification as alleged at the time of issuing it, threatened with a of necessity considered. scarcity of those articles directed to be seized, it was answered that it would not be denied that extreme necessity might justify such a measure. It was only important to ascertain whether that necessity then existed, and upon what terms the right it communicated might be carried into exercise.

Grotius, and the other text-writers on the subject, concurred in stating that the necessity must be real and pressing; and that even then it does not confer a right of appropriating the goods of others, until all other practicable means of relief have been tried and found inadequate. It was not to be doubted that there were other practicable means of averting the calamity apprehended by

§ 501 Great Britain. The offer of an advantageous market in the different ports of the kingdom, was an obvious expedient for drawing into them the produce of other nations. Merchants do not require to be forced into a profitable commerce; they will send their cargoes where interest invites; and if this inducement is he'd out to them in time, it will always produce the effect intended. But so long as Great Britain offered less for the necessaries of life than could have been obtained from her enemy, was it not to be expected that neutral vessels should seek the ports of that enemy, and pass by her own? Could it be said that, under the mere apprehension (not under the actual experience) of scarcity, she was authorized to have recourse to the forcible means of seizing provisions belonging to neutrals, without attempting those means of supply which were consistent with the rights of others, and which were not incompatible with the exigency? After this order had been issued and carried into execution, the British government did what it should have done before; it offered a bounty upon the importation of the articles of which it was in want. The consequence was, that neutrals came with these articles, until at length the market was found to be overstocked. The same arrangement, had it been made at an earlier period, would have rendered wholly useless the order of 1795.

Decision of the Mixed

against the

§ 501. Upon these grounds, a full indemnification was allowed by the commissioners, under the seventh article of Commission the treaty of 1794, to the owners of the vessels and cargoes Order of seized under the Orders in Council, as well for the loss of 1794. a market as for the other consequences of their detention. (a)226 (a) Proceedings of the Board of Commissioners under the seventh article of the treaty of 1794. MS. Opinion of Mr. W. Pinkney, case of the Neptune.

[226 Contraband of War.—The position of the subject of contraband cannot be said to have been much changed since the text was written; still, some light has been thrown upon it by the discussions of later writers.

There seems to have been a concurrence of opinion on one point, that certain things are of such a nature as to be conclusively deemed contraband, so that no further inquiry need be made by prize courts. These courts must act summarily, by sharp and clear lines, and often upon absolute presumptions, It is agreed that they must do so as to contraband. The only difference seems to be one of detail, as to what things do or do not come into this category. The test is variously described, and more or less strictly; but it seems to amount to this,Is the primary and ordinary use of the article military, when in the enemy's possession in time of war? No article is exclusively of military use. Fire-arms are used in time of peace for police purposes, for killing game, for private defence, for salutes, for signal-guns; and mortars and shells, for the humane object of communicating with wrecked vessels: and

portation of

Trans- § 502. Of the same nature with the carrying of conmilitary traband goods is the transportation of military persons or despatches in the service of the enemy.227

persons and despatches in the

enemy's service.

A neutral vessel, which is used as a transport for the enemy's forces, is subject to confiscation, if captured by

powder is used for blasting rocks to construct buildings of peace and benevolence. The question is, what is the primary and ordinary use of such things, in time of war, when in the enemy's possession? It is agreed that all forms of fire-arms, swords, powder and ball, come within this category. It is a question of detail, after the test is agreed upon, what other articles come under it.

There are things, on the other hand, as to which it is impossible even to imagine a direct military purpose; as, a cargo of piano-fortes, works of fine art, and a library of books of theology or belles-lettres.

The principal point in dispute is as to articles admitted to be of ambiguous or uncertain use, when in the enemy's country and in time of war. The best illustration of this class is, perhaps, manufactured spars fully ready to be put into ships; and, in later times, marine steam-machinery, in like condition of readiness. One class of writers contends for an absolute rule as to all articles of such descriptions; so that, if, upon the application of the general test, they are left ancipitis usûs, they must be free, and no further inquiry can be made for the purpose of ascertaining their probable use in the particular case. Another class of writers contends, that, as to such articles, inquiry may be made into the circumstances, for the purpose of determining their probable use in the particular instance. This is really the point of difference, on principle, among the later writers. The latter rule has been unquestionably the British doctrine, enforced by her Orders in Council and prize courts, recognized in her treaties, and sustained by her statesmen and text-writers. (Reddie on Marit. Intern. Law, ii. 456. Phillimore's Intern. Law, iii. 245-284. Wildman's Intern. Law, ii. 210 et seq. Manning's Law of Nations, 282 et seq. Moseley on Contraband, passim.) It may also be said, in the main, to have been the American doctrine. The treaty of 1794 with Great Britain recognizes that articles ancipitis usûs may be contraband, by the then existing law of nations. But our other treaties usually exclude naval stores ancipitis usûs from the list of contraband, although some of the treaties include saltpetre and sulphur. The treaties with Colombia of 1824, with Venezuela of 1836, with Guatimala of 1849, with New Grenada of 1848, with San Salvador of 1850, with Mexico of 1851, enumerate only articles of direct and primary military use. The treaty with Mexico includes provisions destined to a besieged port. In the Commercen (Wheaton's Rep. i. 322), barley and oats were held contraband in a neutral vessel bound to a neutral port, but destined not for the market, but to be delivered on board the enemy's fleet lying in the port. Kent says, that, as to articles ancipitis usûs, the inquiry is, "whether they are 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 they are going, is not an irrational test. As it is impossible to ascertain the final use of an article ancipitis usus, it is not an injurious rule which deduces the final use from the immediate destination." (Comm. i. 140.) Halleck gives the history and practice on the subject, and considers the English and American practice to authorize inquiry

[227 This subject is examined in the note 228, infrà, on Carrying Hostile Persons and Papers.]

D.