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CHAPTER VII.

CONTRABAND OF WAR.

Contraband

THE right of belligerents to prevent neutrals from Principles carrying to an enemy articles that may serve him in the regulating direct prosecution of his hostile purposes, has been ac- of War. knowledged by all authorities, and is obvious to plain reason. It is no interference with the right of a third party to say that he shall not carry to my enemy instruments with which I am to be attacked; such commerce is, on the other hand, a deviation from neutrality, or rather would be so if it were the act of a state, and not of individuals. It is further the clear right of a belligerent to attempt to reduce an enemy by straitening his resources; a right which is only limited by the contingency of lesion to the rights of those who are not parties in the contest. The non-recognition of this right would involve the absurdity of making it, in many cases, impossible to reduce an enemy by paralyzing his means; and would place it in the power of neutrals to interfere directly in the issue of wars,-those who, by definition, are not parties in the contest, thus receiving a power to injure a belligerent, which even if direct enemies they would not possess. At the same time, neutrals retain the full right of carrying to an enemy goods which do not affect him in his belligerent character; the articles excepted and forbidden to be carried being what is called Contraband of War.

Different

limitations of Contraband of War.

The text

writers not uniform. Opinion of Grotius,

To this term very different limitations have been assigned at different periods. This is partly occasioned by the nature of the right; as it may injure a belligerent, under certain circumstances, to carry to his enemy articles which, under other circumstances, would be perfectly harmless. Of this a good illustration is given by Mr. Ward in the case of Hides, which are in themselves an innocent article of traffic, but in such a conjuncture as where floating batteries designed for an attack on Gibraltar were being constructed at Algeziras, and hides were used as a chief article in the fitting out of that armament, we should be justified in stopping, if not in confiscating, hides carried to that port of equipment. (1) But it is not merely the nature of the subject which has introduced uncertainty into the definition of Contraband. The same states have, at different periods, made quite contrary stipulations on the subject; and it is not at all unusual to find the same state contracting different engagements regarding Contraband at the same time with different powers.

Nor is there any thing like uniformity in the opinions of the text-writers upon Contraband. Grotius divides goods carried to an enemy into three classes-those which are only useful in war, as arms, &c.; those which have no use but as articles of luxury; and those which are useful both in war and peace, as money, provisions, ships, and naval materials. With regard to the first, Grotius says that that person is on the side of the enemy who carries to him the necessaries of war. With regard to the second, there can be no dispute. With regard to the third class, comprising articles doubtful on account of their double service in peace and war, a distinction is made by the state of the war. If the seizure of such goods is requisite for my defence, necessity confers the

(1) Ward's Essay on Contraband, p. 248.

right of intercepting them, but there must be restitution made unless other causes justify confiscation. Intentional interference with a belligerent's rights justifies capture of the offending cargoes; and if my enemy's injustice towards me be evident, assistance given him is a crime, and justifies confiscation. (1)

shoek.

Bynkershoek, after quoting the above opinion, says Of Bynkerthat instruments of war, and materials directly adapted for war, are Contraband. He does not include under this title every thing that may be used for warlike purposes; which, he says, would include so large a list as practically to interdict nearly all commerce; but he says, that it is occasionally lawful to intercept naval stores and materials, if the enemy is much in want of them, and cannot easily carry on the war without them. (2)

to war,

Vattel is much more explicit in his definition of Con- Of Vattel. traband. After claiming for neutrals the full right of trading with a belligerent in goods that have no relation he says, that such as are useful in war must not be carried to a belligerent; and such contraband goods are, he says, arms, ammunition, timber for ship-building, every kind of naval stores, horses, and even provisions, in certain junctures, when we have hopes of reducing an enemy by famine. (3)

But this list does not universally obtain as an acknow- His catalogue not always ledged catalogue of Contraband, and it will be necessary recognised. to examine rather more in detail what articles are reputed contraband; and then consider their treatment when found on a voyage to an enemy, and the effect which the

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What arms are Contra

band.

Horses.

carrying such goods has on the vessel engaged in the transport.

There are two or three old treaties in which even Arms are allowed to be freely carried to an enemy. Such is the treaty between Cromwell and Portugal, in 1654, which, by the 10th article, stipulates such freedom for the people of this country. (1) But articles which are at the present day, by universal consent, allowed to be Contraband, are such as pertain immediately to military service," cannons, mortars, fire-arms, pistols, bombs, grenades, bullets, balls, muskets, flints, matches, powder, saltpetre, sulphur, cuirasses, pikes, swords, belts, cartouch-boxes, saddles and bridles, beyond the quantity necessary for the use of the ship." These words are quoted from the treaty between Great Britain and Russia, in 1800; (2) and comprise what would be considered Contraband in the strictest limitation of the term, with the exception that sulphur is not so frequently specified as saltpetre in articles on Contraband.

Horses, though by no means universally allowed to be seized as Contraband, are mentioned, in a very considerable number of treaties, as liable to confiscation, their immediate connection with military service pointing them out as objects of jealousy to belligerents. They are mentioned as Contraband in the following treaties; that between Louis XIV. and the Hanse Towns, in 1655; (3) in the treaty of the Pyrenees, in 1659; (4) between

(1) Chalmers, II. 272. Similar treaties between England and the Duke of Britanny in 1468, and between Portugal and the United Provinces in 1661, are mentioned by De Martens,

Précis II. § 318, note (a).

(2) De Martens, Rec. VII. 262.

(3) Dumont, Corps. Dip. VI.

II. 103.

(4) Id. 266.

England and Sweden, in 1661; (1) between France and the United Provinces, in 1662; (2) between England and Spain, in 1667; (3) between Sweden and the United Provinces, in 1667; (4) renewed in 1675; (5) between England and United Provinces, in 1667; (6) between England and Spain, in 1667; (7) between Denmark and United Provinces, in 1701; (8) by treaty of Utrecht, in 1713; (9) between France and Hambro, in 1769; (10) between France and America, in 1778; (11) between England and Denmark, in 1780; (12) between United States and Holland, in 1782; (13) between Sweden and the United States, in 1783; (14) England and France, in 1786; (15) Denmark and Genoa, 1789; (16) Spain and United States, in 1795; (17) England and Portugal, 1810. (18) Instances might be multiplied, but these are sufficient to shew that Horses have been looked upon as Contraband, at different times, by all the principal maritime powers, excepting Russia, in whose treaties with us, and with other powers, horses are not, and, I believe, never have been, included in the list of Contraband.

Unwrought metals, and coined money, have, in a few Metals and treaties, been included in the list of Contraband. In a money. treaty between the States General and Lubec, in 1613, it was agreed that neither should furnish munitions of war, &c., nor money to the enemies of the other: (19)

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