§ 11. In order to constitute the unlawfulness of the transportation of contraband, it is not necessary that the immediate destination of the ship and cargo should be to an enemy's country or port. If the goods are contraband and destined for the direct use of the enemy's army or navy, the trasportation is illegal, and subject to the ordinary penalty. Thus, if an enemy's fleet be lying, in time of war, in a neutral port, and a neutral vessel should carry contraband goods to that port, not intended for sale in the neutral market, but destined to the exclusive supply of the hostile forces, such conduct would be a direct interposition in the war by furnishing essential aid in its prosecution, and consequently would be a flagrant departure from the duties of neutrality. (Duer, On Insurance, vol. 1, p. 630; The Commercen, 1 Wheaton Rep., pp. 388, 389; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 26.)

§ 12. In the case of The Commercen, a Swedish vessel captured by an American cruiser in the act of carrying a cargo of barley and oats, for the supply of the allied armies in the Spanish peninsula, the United States being at war with Great Britain, but at peace with Sweden and the other powers allied against France, the supreme court of the United States held that the voyage was illegal, the cargo was condemned, and the neutral carrier denied his freight. The cargo, in this case, was enemy's property, but all the members of the court concurred in the principle that a neutral carrying supplies for the enemy's naval, or military forces, was engaged in an illicit voyage inconsistent with the duties of neutrality, and that it was a very lenient administration of justice to confine the penalty to a mere denial of freight. Some doubts have arisen as to the propriety of the decision in the particular case, but none as to the truth of the general principles upon which it was founded. Chief Justice Marshall dissented from the majority of the court, but his dissent was founded on the special circumstances of the case: first, that the war in the Spanish peninsula was so distinct from that between England and the United States, that the latter could not be prejudiced by the aid furnished; and, second, that Sweden being an ally with England in the war against France, her subjects might lawfully aid the British forces

engaged in that war, and without violating their neutrality toward the United States. (Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 26; Duer, On Insurance, vol. 1, p. 631; Webster, The Works of, vol. 6, p. 452; The Commercen, 1 Wheaton Rep., p. 322.)

§ 13. All writers on international law are agreed, that implements and munitions of war, and articles, which, in their actual condition, are of immediate use for warlike purposes, are to be deemed contraband, whenever they are destined to an enemy's country, or to an enemy's use; but, beyond this, there is such a diversity of opinion among textwriters that it is exceedingly difficult, if not impossible, to deduce from such works any well established and satisfactory principles to guide our decision on the points in dispute. We will proceed to refer to the discussions of publicists of the highest authority on these questions, without attempting, however, to reconcile their differences of opinion. (Kent, Com. on Am. Law, vol. 1, p. 135; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 26; Duer, On Iusurance, vol. 1, p. 631; Phillimore, On Int. Law, vol. 3, § 229; Munning, Law of Nations, p. 301; Heffter, Droit International, § 160; Jouffroy, Droit Marit., pp. 130, 134; Ortolan, Diplomatie de la Mer., liv. 3, ch. 6; Hautefeuille, Des Nations Neutres, tit. 8, sec. 2; Bello, Derecho Internacional, pt. 2, cap. 8, § 4; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 15; Bynkershoek, Quaest Jur. Pub., lib. 1, cap. 10; Kluber, Droit des Gens Moderne, § 288; De Cussy, Droit Maritime, liv. 1, tit. 3, § 14; Lampredi, Commerce des Neutres, pt. 1, § 9.)

§ 14. Grotius divides all articles of trade into three classes: 1st, Implements and materials which, by their nature, are suitable to be used in war; 2d, Articles of taste and luxury, useful only for civil purposes, as books, paintings, etc.; 3d, Articles which are of indiscriminate use in peace and war, as provisions, naval stores, etc. Articles of the first class are always contraband; those of the second class never; those of the third class may or may not be contraband, according to the particular circumstances of the war. But little objection can be made to this classification, but it leaves the entire difficulty unsettled, as the question immediately arrises with respect to what articles are to be assigned to each class, and

under what particular circumstances articles of the third class are subject to capture as contraband of war. Loccenius is of opinion that provisions are universally contraband, and refers to many instances in which different nations had enforced the prohibition. Heineccius includes in the list of contraband articles of promiscuous use in peace or war, such as provisions, naval stores, etc. Vattel makes a similar distinction to that of Grotius, though he includes timber or naval stores among articles which are liable to capture as contraband, and considers provisions as such only under certain circumstances, as "when there are hopes of reducing the enemy by famine." Valin and Pothier wholly exclude provisions, but admit that by general usage, when they wrote, naval stores were prohibited. Bynkershoek strenuously contends against admitting into the list of contraband, articles of promiscuous use in peace and war, and denies that any other than those which in their actual state, are immediately applicable to warlike purpose, can properly be enumerated as prohibited. Sir Leoline Jenkins, in a letter to Charles II., says: "I am humbly of opinion, that nothing ought to be judged contraband, by the general law of nations, but what is directly and immediately subservient to the uses of war, except it be in the case of beseiged places." (Philli more, On Int. Law, vol. 3, §§ 235, et seq.; Duer, On Insurance, vol. 1, pp. 632-634; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 26; Grotius, De Jur. Bel. ac Pac., lib. 3, cap. 1, § 5; Loccenius, De Jur. Marit., lib. 1, cap. 4, 89; Heineccius, De Navibus, cap. 1, § 14; Vattel, Droit des Gens, liv. 3, ch. 7, § 112; Valin, Com. sur l'Ord., liv. 3, tit. 9, art. 11; Bynhershoek, Quaest. Jur. Bel., liv. 1, cap. 10; Wildman, Int. Law, vol. 2, p. 210; Manning, Law of Nations, p. 282; Heffter, Droit International, § 160; Bello, Derecho Internacional, pt. 2, cap. 8, §4; Hautefeuille, Des Nations Neutres, tit. 8, sec. 2.)

§ 15. The more modern treatises on the law of nations present an almost equal diversity of sentiment on this subject. Kent, Wheaton and Duer have generally limited their remarks to stating the opinions of the older text-writers, and the decisions of English and American courts of prize. Wheaton is evidently disposed to exclude entirely from the list of contraband, provisions and other articles of promis

cuous use.

Kent and Duer are of opinion that such articles may, or may not, be contraband, according to the circumstances of the case. English authors have generally favored the views of their government in its extension of the list of contraband to all articles of promiscuous use in peace and war. One of their latest text-writers, Reddie, defines contraband to be: "1. Articles which have been constructed, fabricated, or compounded into actual instruments of war; 2. Articles which from their nature, qualities and quantities, are applicable and useful for the purposes of war; 3. Articles which, although not subservient generally to the purposes of war, such as grain, flour, provisions, naval stores, become so by their special and direct destination for such purposes, namely, by their destination for the supply of armies, garrisons or fleets, naval arsenals, and posts of military equipment." The continental writers, generally, contend against the English extension of contraband. Among the most

recent are Hautefeuille and Ortolan. The former admits but one class of contraband, and confines it to objects of first necessity for war, which are exclusively useful in war, and which can be directly employed for that purpose, without undergoing any change. The latter declares his opinion to be, that, on principle, under ordinary circumstances, arms and munitions of war, which serve directly and exclusively for belligerent purposes, are alone contraband. He admits that, in special cases, certain determinate articles, whose usefulness is greater in war than in peace, are, from circumstances, in their character contraband, without being actually arms and munitions of war; such as timber, evidently intended for the construction of ships of war, or for guncarriages, boilers or machinery for the enemy's steam vessels, sulpbur, satpetre, or other materials for arms or munitions of war. Phillimore reviews the whole question, and considers that provisions may or may not be contraband, according to their destination and probable use. Heffter is of opinion that certain articles, as provisions, not in their nature contraband, may, in certain cases, from their destination and intended use, be regarded as such. (De Cussy, Droit Maritime, liv. 1, tit. 3, § 14; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 15; Manning, Law of Nations, pp. 282, et seq.; Whea

ton, Elem. Int. Law, pt. 4, ch. 3, § 26; Kent, Com. on Am. Law, vol. 1, pp. 135-143; Duer, On Insurance, vol. 1, pp. 622644; Reddie, Researches Hist. and Crit. in Mart. Int. Law, vol. 2, p. 456; Hautefeuille, Des Nations Neutres, tit. 8, sec. 2; Ortolan, Dip. de la Mer., tome 2, ch. 6; Phillimore, On Int. Law, vol. 3, §§ 245, et seq.; Wildman, Int. Law, vol. 2, pp. 210, et seq.; Pistoye et Duverdy, Traité des Prises, tit. 6, ch. 2, sec. 3; Heffter, Droit International, § 160; Bello, Derecho Internacional, pt. 2, cap. 8, § 4.)

§ 16. And the same discordancy in the definition of contraband is to be found in the conventional law of nations, as established by treaties, the provisions of which are various and contradictory, even of those made, at different periods, between the same nations. The same may be said of marine ordinances and diplomatic discussions. The marine ordinances of Louis XIV., 1681, limits contraband to munitions of war. So, also, the treaties between England and Sweden in 1656, 1661, 1664 and 1665. Bynkershoek refers to other treaties of the seventeenth century, as containing the same limitation. But Valin says that in the treaty of commerce between France and Denmark, in 1742, pitch, tar, resin, sailcloth, hemp, cordage, masts and ship-timber, were declared to be contraband. By the treaty of Utrecht, in 1713, and the subsequent treaties of 1748, 1763, 1783, and 1786, between · Great Britain and France, contraband was strictly confined to munitions of war; all other goods not worked into the form of any instrument or furniture for warlike use, by land or sea, are expressly excluded from this list. But the contraband character of naval stores continued a vexed question between Great Britain and the Baltic powers. By the treaty of 1801, between Great Britain and Russia, to which Denmark and Sweden subsequently acceded, saltpetre, sulphur, saddles and bridles, were enumerated as contraband; and by the convention of July 25th, 1803, the list was augmented by the addition of coined money, horses, equipments for cavalry, and all manufactured articles serving immediately for the equipment of ships of war. In the treaty of 1794, between Great Britain and the United States, it was stipulated (article 18,) that under the denomination of contraband should be comprised all arms and implements serving for the purposes