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It is an inevitable consequence of the existence of war, that discussions should arise as to the conimercial rights of nations not embroiled in the quarrel. The result has been sometimes to cripple, but frequently to favour, their commerce; and the belligerents themselves bave often found a mutual benefit in the exchange of their own produce, through the instrumentality of neutral carriers. In many of those instances it became the duty and the necessity of the neutral state to assert with decision the commercial liberties of its subjects, the belligerents being influenced by consideration of the power which might be thrown into either scale by such state, when they might have been disposed to ignore the advantages of unrestricted commerce. But though these motives operated to introduce the practice, so varied and complicated were the interests, and so changeable the course of proceeding, that some unvarying tribunal became necessary; and for this purpose the opinions of a few wise men were erected into a code of international law, and something was gained towards permanency and justice by the admission of those authorities.
But the commerce of neutral with belligerent states, to be entitled to immunity, must be legal. “Whenever,” says Vattel (Chitt. Ed., 336), "I am at war with a nation, both my safety and welfare prompt me to deprive her, as far as possible, of every thing which may enable her to resist or injure me. In this instance the law of necessity exerts its full force. If that law warrants me, on occasion, to seize what belongs to other people, will it not likewise warrant me to intercept every thing belonging to war which neutral nations are carrying to my enemy? Even if I should, by taking such measures, render all those neutral nations my enemies, I had better run that hazard, than suffer him who is actually at war with me thus freely to receive supplies and collect additional strength to oppose me.”
It is therefore very proper, and perfectly conformable to the
It has even been holden that a British-born subject, while domiciled in a neutral country, may legally trade from that country with a state at war with this country, Bell v. Reid, 1 M, & S., 727.
law of nations, which disapproves of multiplying the causes of war, not to consider those seizures of the goods of neutral nations as acts of hostility. To limit these inconveniences, and secure as much freedom to the commerce of neutral nations as is consistent with the laws of war, certain principles seem to be generally recognized among civilized nations of modern times. Thus, a careful distinction is made between ordinary goods which have no relation to war, and those that are subservient to it. According to Vattel (336), neutral nations should enjoy perfect liberty to trade in the former; the belligerent powers cannot with any reason refuse it, nor can they prevent the importation of such goods into the enemy's country. The care of their own safety, and the necessity of self-defence, do not authorize them so to interfere; for the goods referred to will not render the enemy more formidable, and any attempt to interrupt the trade therein would be a violation of the rights of neutral nations, and a flagrant injury.
Commodities useful in war, or auxiliary or subservient to it, and the importation of which to an enemy is prohibited, are called contraband goods. What commerce shall be deemed contraband, is a question that has been much discussed between the governments of belligerent states and the merchants of neutral nations. Grotius, in a classification which has been adopted ever since his time, divides all articles of commerce for the above purpose under three heads :-(1.) Materials ready wrought up for the immediate purposes of war; e. g., arms and ammunition designed for war. (2.) Articles of luxury. And (3.) materials which may be wrought up or employed for the purposes of war; e. g., sail-cloth, timber, pitch, sulphur, money, provisions, ships, &c., which, being of use in times of peace as well as of war, are frequently termed articles ancipitis usus (De Jure Belli, lib. iii., c. 1, sec. 5). Azuni, in his celebrated treatise on the maritime law of Europe, classes under the head of contraband, “oggetti che possono immediatamente servire
guerra” (Dritto Maritimo, c. 3, art. 2, vol. 2, p. 181); and Vattel (337) specifies as contraband, arms, ammunition, timber for shipbuilding, all
kinds of naval stores, horses, and even provisions, when there are hopes of reducing the enemy by famine. But De Witt, in a letter of Jan. 14, 1654, while including among contraband goods cordage, and other materials suitable for the equipment of ships of war, gives his opinion that it would be contrary to the law of nations to prevent neutrals from carrying corn to an enemy's country; and much difficulty has been experienced in consequence of differences of opinion in this respect.
The questions of contraband brought before the Prize Court of Admiralty in this country, during the war times extending from 1792 to 1814, are those from which the English lawyer may best learn the principles as well as the practice by which matters of this nature are determined, and the judgments of our great master of international law are the main sources whence the learning on this head is to be derived."
In the case of the Jonge Margeretha (1 Rob., 189), Sir William Scott observed that “the catalogue of contrabands has varied very much, and sometimes in such a manner as to make it difficult to assign the reason of the variations, owing to particular circumstances, the history of which has not accompanied the history of the decisions.” It is, however, one of the prerogatives of the British crown to make new declarations of contraband when articles come into use as implements of war which before were innocent. This is not the exercise of arbitrary discretion, which the law of nations prohibits; but it is in accordance with
the usus bellici, which shift from time to time, making the law shift with them. One of the principal criteria adopted by our courts for determining the question, whether any particular articles be confiscable as contraband, is to ascertain whether they be in a rude or a manufactured state ; for articles are treated with greater indulgence in their natural condition, than when they are wrought up for the convenience of the enemy's immediate
Thus Sir William Scott, in the case last alluded to, lays
1 The courts of the United States of America bave very generally referred to, and adopted, Lord Stowell's decisions on questions of prize and contraland.-Kent's Com.
down, that though anchors and other instruments fabricated out of iron are directly contraband, yet that metal when unwrought, is more favourably viewed; so too is hemp, as distinguished from cordage; and wheat, from bread or biscuit. The case of the Haabet (2 Rob. Rep., 182) seems to bave settled that provisions in strictness are confiscable as contraband.
In that case Sir William Scott explained the strict law, and the relaxations of modern practice. He observes, that the right of taking possession of cargoes of this description, going to the enemy's ports, is no peculiar claim of this country; it belongs generally to belligerent nations. The ancient practice of Europe, or at least of the maritime states of Europe, was to confiscate them entirely; but a more mitigated practice prevailed in later times, namely, that of holding such cargoes subject only to a right of preemption, a reasonable compensation being made to the individual whose property is thus diverted. In the war between England and France at the close of the last century, this rule, however, was not adopted; for the National Convention (9th May, 1793) decreed that neutral vessels laden with provisions bound for an enemy's port might be seized ; and England, by way of reprisal (8th June, 1793), ordered a similar capture of all neutral vessels bound for France laden with corn, meal, or flour.
From a further position laid down in the case of the Haabet, just quoted, the destination of cargo constitutes a material element for consideration. “ The most important distinction," observed the learned judge, "is, whether the articles were intended for the ordinary use of life, or even for mercantile ships' use, or whether they were going, with a highly probable destination, to military use. If the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ships of war may be constructed in that port. On the contrary, if the predominant character of the port, like Brest in France, or Portsmouth in England, be that of a port of naval or military equipment, it shall be intended that the articles were going for military use.” Where the goods are clearly shewn to be contraband, confiscation to the belligerent captor-except in
such cases of relaxation as above mentioned-follows as a matter of course.
Barely to stop such goods," says Vattel, “would in general prove an ineffectual mode, especially at sea, where there is no possibility of cutting off all access to the enemy's harbours; recourse is therefore had to the expedient of confiscating all contraband goods that can be seized, in order that the fear of loss may operate as a check on the avidity of gain, and deter the merchants of neutral countries from supplying the enemy with such commodities.” On this account a nation at war notifies to neutral states the declaration of war, whereupon the latter usually give orders to their subjects to refrain from all contraband commerce with the nations at war, declaring that, if they are captured in carrying on such trade, the sovereign will not protect them. This rule is the point where the general custom of maritime states seems at present fixed; and, in order to avoid perpetual recurrence of complaint, it has been agreed that the belligerent powers may seize and confiscate all contraband goods which the subjects of a neutral state shall attempt to carry to the enemy, without liability of complaint being made by the government of such neutral state; while, on the other hand, the power at war may not render a neutral state responsible for these practices of its subjects.
Contraband articles are said to be of an infectious nature, so as to contaminate the whole cargo belonging to the same owner, by which metaphorical language is meant that all the merchandise which he may have embarked in the same ship is liable to seizure and confiscation. This consequence does not, however, except in aggravated cases, extend to the ship, unless she also belong to the owner of the goods. In ordinary cases, the only loss sustained by the shipowner from having contraband articles on board, is the loss of freight and expenses. If, however, the ship and goods be owned by the same person, or if the contraband articles are sought to be protected by a false destination or false papers, the contagion of the contraband will extend to the whole of the ship and cargo, and both will be subject to confiscation. (The Staadt Embden, 1 Rob., 26; the Ringende Jacob,
1 All insurances on contraband of war are void, and incapable of being