and the former decision repeated in the case of the Atalanta. (a) It was observed, in this latter case, that the rule with us was correct in principle, and the most liberal and honorable to the jurisprudence of this country. The question may, therefore, be considered here as at rest, and as having received the most authoritative decision that can be rendered by any judicial tribunal on this side of the Atlantic.

(a) 3 Wheaton, 409.

[165]

LECTURE VII.

OF RESTRICTIONS UPON NEUTRAL TRADE.

THE principal restriction which the law of nations imposes on the trade of neutrals is the prohibition to furnish the belligerent parties with warlike stores and other articles which are directly auxiliary to warlike purposes. Such goods are denominated contraband of war; but in the attempt to define them the authorities vary, or are deficient in precision, and the subject has long been a fruitful source of dispute between neutral and belligerent nations. (x)

1. Contraband of War. In the time of Grotius, some persons contended for the rigor of war, and others for the freedom of

commerce.

As neutral nations are willing to seize the opportunity which war presents of becoming carriers for the belligerent powers, it is natural that they should desire to diminish the list of contraband as much as possible. Grotius distinguishes (a) between things which are useful only in war, as arms and ammunition, and things which serve merely for pleasure, and things which are of a mixed nature, and useful both in peace and war. He agrees with other writers in prohibiting neutrals from carrying articles of the first kind to the enemy, as well as in permitting the second kind to be carried. As to articles of the third class, which are of indiscriminate use in peace and war, as money, provisions, ships, and naval stores, he says that they are sometimes lawful articles of neutral commerce, and sometimes not; and the question will depend upon circumstances existing

* at the time. They would be contraband if carried to a * 136 besieged town, camp, or port. In a naval war, it is admitted that ships and materials for ships become contraband, and horses and saddles may be included. (a) Vattel speaks with some want of precision, and only says, in general terms, (b) that commodities particularly used in war are contraband, such as arms, military and naval stores, timber, horses, and even provisions, in certain junctures, when there are hopes of reducing the enemy by famine. Loccenius, (c) and some other authorities referred to by Valin, consider provisions as generally contraband; but Valin and Pothier insist that they are not so, either by the law of France or the common law of nations, unless carried to besieged or blockaded places. (d) The marine ordinance of Louis XIV. (e) included horses and their equipage, transported for military service, within the list of contraband, because they were necessary to war equipments; and that is, doubtless, the general rule. They are included in the restricted list of contraband articles mentioned in the treaty between the United States and Colombia, in 1825. Valin says that naval stores have been regarded as contraband from the beginning of the last

(a) B. 3, c. 1, sec. 5.

(b) B. 3, c. 7, sec. 112.

(a) Rutherforth's Inst. b. 1, c. 9.

(c) De Jure Maritimo, lib. 1, c. 4, note 9.

(d) Valin, Comm. ii. 264; Pothier de Propriété, No. 104. (e) Des Prises, art. 11.

1 The Peterhoff, 5 Wall. 28, 58; s. c. Blatchf. Pr. 463; Pistoye & Duverdy, t. i.

tit. vi. c. 2, § 3, p. 392. [See, generally, Hall, Int. Law, pt. 4, c. 5 and 6.]

century, and the English prize law is very explicit on this point. Naval stores, and materials for ship-building, and even corn, grain, and victuals of all sorts, going to the dominions of the enemy, were declared contraband by an ordinance of Charles I. in 1626. (f) Sail-cloth is now held to be universally contraband, even on a destination to ports of mere mercantile naval equip

ment; (g) and in the case of the Maria (h) it was held *137 that *tar, pitch, and hemp, and whatever other materials

went to the construction and equipment of vessels of war, were contraband by the modern law of nations; though formerly, when the hostilities of Europe were less naval than at the present day, they were of a disputable nature. The executive government of this country has frequently conceded that the materials for the building, equipment, and armament of ships of war, as timber and naval stores, were contraband. (a) But it does not seem that ship timber is, in se, in all cases, to be considered a contraband article, though destined to an enemy's port. In the case of the Austrian vessel, Il Volante, captured by the French privateer, L'Etoile de Bonaparte, and which was carrying ship timber to Messina, an enemy's port, it was held, by the Council of Prizes at Paris, in 1807, upon the opinion of the advocate-general, M. Collet Descotils, that the ship timber in that case was not contraband of war, it being ship timber of an ordinary character, and not exclusively applicable to the building of ships of war. (b)

Questions of contraband were much discussed during the continuance of our neutral character in the furious war between England and France, commencing in 1793, and we professed to be governed by the modern usage of nations on this point. (c) The national convention of France, on the 9th of May, 1793, decreed that neutral vessels laden with provisions, destined to

(f) Robinson's Collec. Mar. 63.

(h) 1 C. Rob. 287, Phil. ed.

(g) The Neptunus, 3 C. Rob. 108.

(a) Mr. Randolph's Letter to M. Adet, July 6, 1795; Mr. Pickering's Letter to Mr. Pinckney, January 16, 1797; Letter of Messrs. Pinckney, Marshall, and Gerry, to the French Minister, January 27, 1798.

(6) Répertoire universel et raisonné de Jurisprudence, par M. Merlin, ix. tit. Prise Maritime, sec. 3, art. 3. [s. c. Pistoye & Duverdy, i. 409.] [Money, bullion, &c., are contraband when destined for hostile use or to procure hostile supplies. United States v. Diekelman, 92 U. S. 520. — B.]

(c) President's Proclamation of Neutrality, April 22, 1793.

an enemy's port, should be arrested and carried into France; and one of the earliest acts of England, in that war, (d) was to detain all neutral * vessels going to France, and * 138 laden with corn, meal, or flour. It was insisted, on the part of England, (a) that, by the law of nations, all provisions were to be considered as contraband, in the case where the depriving of an enemy of those supplies was one of the means employed to reduce him to reasonable terms of peace; and that the actual situation of France was such as to lead to that mode of distressing her, inasmuch as she had armed almost the whole laboring class of her people, for the purpose of commencing and supporting hostilities against all the governments of Europe. This claim on the part of England was promptly and perseveringly resisted by the United States; and they contended that corn, flour, and meal, being the produce of the soil and labor of the country, were not contraband of war, unless carried to a place actually invested. (b) The treaty of commerce with England, in 1794, in the list of contraband, stated, that whatever materials served directly to the building and equipment of vessels, with the exception of unwrought iron and fir planks, should be considered contraband, and liable to confiscation; but the treaty left the question of provisions open and unsettled, and neither power was understood to have relinquished the construction of the law of nations which it had assumed. The treaty admitted that provisions were not generally contraband, but might become so according to the existing law of nations, in certain cases, and those cases were not defined.

It was only stipulated, by way of relaxation of the penalty of the law, that whenever provisions were contraband, the captors, or their government, should pay to the owner the full value of the articles, together with the freight and a reasonable profit. Our government has repeatedly admitted that, as far as that treaty enumerated contraband articles, it was declar- * 139 atory of the law of nations, and that the treaty conceded nothing on the subject of contraband. (a)

(d) Instructions of 8th June, 1793.

(a) Mr. Hammond's Letter to Mr. Jefferson, September 12, 1793, and his Letter to Mr. Randolph, April 11, 1794.

(b) Mr. Jefferson's Letter to Mr. Pinckney, September 7, 1793, and Mr. Randolph's Letter to Mr. Hammond, May 1, 1794.

(a) Mr. Pickering's Letter to Mr. Monroe, September 12, 1795; his Letter to