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 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 *138 neutral vessels going to France, and 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,

(b) Répertoire universel et raisonné de Jurisprudence, par M. Merlin, tom. ix. tit. Prise Maritime, sec. 3, art. 3.

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

(d) Instructions of 8th June, 1793.

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

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

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 declaratory *139 of the law of nations, and that the treaty conceded nothing on the subject of contraband. (a)

The doctrine of the English admiralty, on the subject of provisions being considered contraband, was laid down very fully and clearly in the case of The Jonge Margaretha. (b) It was there observed, that the catalogue of contraband had varied much, and, sometimes, in such a manner as to make it difficult to assign the reasons of the variations, owing to particular circumstances, the history of which had not accompanied the history of the decisions. In 1673, certain articles of provision, as corn, wine, and oil, were deemed contraband, according to the judgment of a person of great knowledge and experience in the practice of the admiralty; and, in much later times, many other sorts of provisions have been condemned as contraband. In 1747 and 1748, butter and salted fish and rice were condemned as contraband; and those cases show that articles of human food have been considered as contraband, when it was probable they were intended for naval or military use. The modern established rule is, that provisions are not generally contraband, but may become so, under circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it. Among the circumstances which tend to preserve provisions from being liable to be treated as contraband, one is, that they are of the growth of the country which produces them. Another circumstance, to which some indulgence is shown by the practice of nations, is when the articles are in their native and un

(a) Mr. Pickering's Letter to Mr. Monroe, September 12th, 1795; his Letter to Mr. Pinckney, January 16th, 1797; Instructions from the Secretary of State to the American Minister to France, July 15th, 1797.

(b) 1 Rob. Adm. 159, edit. Phil.

manufactured state. Thus, iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly

contraband. Hemp is more favorably considered than cor*140 dage; and wheat is not considered as so objectionable a commodity, when going to an enemy's country, as any of the final preparations of it for human use. The most important distinction 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. The nature and quality of the port to which the articles are going is not an irrational test. If the port be a general commercial one, it is presumed the articles are going for civil use, though occasionally a ship of war may be constructed in that port. But if the great predominant character of that port, like Brest in France, or Portsmouth in England, be that of a port of naval military equipment, it will be presumed that the articles were going for military use, although it is possible that the articles might have been applied to civil consumption. As it is impossible to ascertain positively the final use of an article ancipitis usus, it is not an injurious rule which deduces the final use from the immediate destination: and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if, at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful.

These doctrines of the English prize law were essentially the same with that adopted by the American Congress in 1775, for they declared, that all vessels, to whomsoever belonging, carrying provisions or other necessaries to the British army or navy within the colonies, should be liable to seizure and confiscation. (a) They were likewise fully adopted by the Supreme Court of the United States, when we came to know and feel the value of belligerent rights, by becoming a party to a maritime war. In the case of The Commercen, (b) a neutral vessel, captured by one of our cruisers in the act of carrying provisions for the use of the British armies in Spain, the court held, that provisions, *141 being * neutral property, but the growth of the enemy's

(a) Journals of the Confederation Congress, vol. i. 241. (b) 1 Wheaton, 382.

country, and destined for the supply of the enemy's military or naval force, were contraband. The court observed, that, by the modern law of nations, provisions were not generally contraband, but they might become so on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life in the enemy's country, they were not contraband; but it was otherwise if destined for the army or navy of the enemy, or for his ports of military or naval equipment. And if the provisions were the growth of the enemy's country, and destined for the enemy's use, they were to be treated as contraband, and liable to forfeiture, even though the army or navy were in a neutral port, for it would be a direct interposition in the war.

This case followed the decisions of Sir William Scott, and carried the doctrine of contraband, as applied to provisions, to as great an extent. It held the voyage of the Swedish neutral so illegal, as to deserve the infliction of the penalty of loss of freight.

It is the usus bellici which determined an article to be contraband; and as articles come into use as implements of war which were before innocent, there is truth in the remark, that as the means of war vary and shift from time to time, the law of nations shifts with them; not, indeed, by the change of principles, but by a change in the application of them to new cases, and in order to meet the varying inventions of war. When goods are once clearly shown to be contraband, confiscation to the captor is the natural consequence. This is the practice in all cases, as to the article itself, excepting provisions; and as to them, when they become contraband, the ancient and strict right of forfeiture is softened down to a right of pre-emption on reasonable terms. (a) But, generally, to stop contraband goods, would, as *142 Vattel observes, (a) prove an ineffectual relief, especially at sea. The penalty of confiscation is applied, in order that the fear of loss might operate as a check on the avidity for gain, and deter the neutral merchant from supplying the enemy with contraband articles. The ancient practice was, to seize the contraband goods, and keep them, on paying the value. But the modern practice of confiscation is far more agreeable to the mutual duties of nations, and more adapted to the preservation of their rights.

(a) Case of the Haabet, 2 Rob. Adm. 182.

*

(a) B. 3, c. 7, sec. 113.

It is a general understanding, grounded on true principles, that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself. (b) It was contended, on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent powers, contraband articles subject to the right of seizure, in transitu. (c) This right has since been explicitly declared by the judicial authorities of this country. (d) The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal

act.

Contraband articles are said to be of an infectious nature, *143 and they contaminate the whole cargo belonging to the same owners. The innocence of any particular article is not usually admitted, to exempt it from the general confiscation. By the ancient law of Europe, the ship, also, was liable to condemnation; and such a penalty was deemed just, and supported by the general analogies of law, for the owner of the ship had engaged it in an unlawful commerce, and contraband goods are seized and condemned ex delicto. But the modern practice of the courts of admiralty, since the age of Grotius, is milder; and the act of carrying contraband articles is attended only with the loss of freight and expenses, unless the ship belongs to the owner of the contraband articles, or the carrying of them has been connected with malignant and aggravating circumstances; and among those circumstances, a false destination and false papers are considered as the most heinous. In those cases, and in all cases of fraud in the owner of the ship, or in his agent, the penalty is carried beyond the refusal of freight and expenses, and is extended

(b) Vattel, b. 3, c. 7, sec. 113.

(c) M. Adet's Letter to Mr. Pickering, March 11th, 1796; Mr. Pickering's Letters to M. Adet, January 20th and May 25th, 1796; Circular Letter of the Secretary of the Navy to the Collectors, August 4th, 1793.

(d) Richardson v. Maine Ins. Company, 6 Mass. 113; The Santissima Trinidad, 7 Wheaton, 283.