Free ships make free goods.-Treaties between Turkey and France.

31. From what has been said, it follows, as a principle, that all neutral nations ought to be at liberty to continue their commerce with belligerents in the same manner as before the war, excepting in, contraband goods; that the transportation of enemy's property in neutral ships is no violation of the rights of belligerents; that this principle is recognised by. nations the least civilised, as may be seen from the treaties of the 19th September, 1689, between. France and the Ottoman Porte, renewed afterwards by the treaties of 1719, 1764, and the 29th March, 1790. All these treaties declare, that the Turkish, Algerine, or Tunisian flag, accompanied with passports to show the neutrality of the ship, protects the ships. and goods of the enemy; in regard to the Turkish nation, no inquiry is made whether the ship belongs to an enemy, if it be commanded by an Ottoman captain, and be furnished with a passport; or if the goods belong to an enemy, the flag covers them, unless more than one third of the crew be composed of enemies, as was decided by the council of prizes on the 7th July, 1801, in favour of the Alge

If all na

rican minister at Paris, dated the 26th August, 1793. tions would consent that the flag should protect the cargo, it would free the commerce of neutral and pacific nations from much em, barrassment; but while the interests of the belligerent powers of Europe are so adverse to each other, there is little hope of its becoming a permanent rule in the universal Code of nations. Nor is it, in the opinion of many well-informed men, a doctrine for which the United States, considering the nature and progress of their commerce, ought very strenuously to contend....T.

Opinion of M. Portalis.—Contraband of war.

rine ships, La Madonna della Salute, et La Rachel.* "It results from this historical view of the laws," says the learned M. Portalis, in his opinion delivered in the council of prizes, the 25th July, 1800, relative to the capture of the ship Statira, " that they have "varied with the change of manners and circum"stances; that the policy of the moment has almost "always modified the principles of political law; that, in more modern times, the regulations appear "constantly to incline towards general equity; and "that the French nation, may claim the honour of "having been, during the last war, the first to in"troduce the mild and generous maxims which "have prevailed, and to set an useful example to "all nations."

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ARTICLE V.

Of Contraband of War.

§ 1. ALL restrictions on the independence and natural freedom of the commerce of pacific and neu→ tral nations, in time of war, are founded solely on the conventional law of Europe, as has been shewn in the preceding pages, and not on the primitive law of nations. There is nothing in the universal law

* See the note of M. Bonnemant, in his translation of D'Habreu's Tratado sobre las Presas, part 1, ch. 9, p. 148. He was counsel for the captors in the case of the Rachel....T.

Contraband derived from treaties.-Galliani's enumeration.

that prohibits the transportation of goods on the high sea, any more than the sale of them on the neutral territory, in the same manner as might have been done before the war. Thus the origin and designation of goods contraband of war, is to be ascribed solely to conventions express, or tacit, and not to the universal law of nations.

2. Galliani, so often cited, after having exhibited, chapter 9, § 4, the doctrine of the publicists from Grotius to Lampredi, concerning the specification of contraband articles, concludes with saying, that he had determined by the light of reason and good sense, (expressions his vanity rendered familiar) what kind of goods ought to be regarded as contraband of war they are, he adds, with a very little difference, the same that are specified under that name in almost all the European treaties. He enumerates those articles which have been declared contraband, at all times, and in all places; he next proceeds to those, the commerce in which has always been free, and, lastly, he mentions those about which the question yet remains undecided. In the first class, he reckons men, horses, all kinds of arms, offensive and defensive, and vessels of war. In the second, he places provisions, articles of the first necessity, and whatever conduces to the luxury and comforts of life. In the third, are comprised such goods, the freedom or prohibition of which, has not yet been established by common consent, especially, metals, silver coin, minerals, hemp, tar, and ship-timber.

Contraband ascertained by treaties.-A few exceptions.

3. If the determination of what goods or articles are contraband of war, depend solely on the treaties of Europe, as Galliani, in the outset, wisely observes, it was quite useless to class all merchandise under three distinct heads, and, afterwards, to determine by a philosophical or chemical analysis of their nature, under what aspect they ought to be considered in time of war. In order to learn the most general practice of nations, would it not have been sufficient to refer to the conventional and voluntary law of nations, formed by the express or tacit agreements of the contracting parties?

4. From all the treaties, cited in the preceding article, for the purpose of refuting the error of this writer, and which constitute a part of the conventional law of Europe, it follows, that under the name of contraband are comprised those things only, which are of immediate and direct use in war, that is to say, for attack and defence, by sea and land. This principle has so far prevailed in public treaties, in times the most remote, that, during an interval of three centuries and an half, we with difficulty find a few treaties, allowing a free commerce in arms and warlike stores, and the transportation of them to an enemy, and they form an exception to the general rule introduced into the public conventional law of Europe. Such are the treaty of Westminter, between Edward IV, king of England, and Francis, duke of Brittany, of the 2d July, 1468; those of 1642, and 1654, between England and Portugal; that of 1647,

Variations have taken place in the designation of contraband.

between Spain and and the Hanse-Towns, and another between Alphonso, king of Portugal, and the. United Provinces, signed at the Hague, the 6th Au-› gust, 1661.(129)

a

5. The question of contraband of war, was not, however, uniformly established as to articles which in their natural state, did not serve directly for war, though human art and industry might adapt them to that purpose; such as salt-petre, sulphur, iron, lead, copper, hemp, sail-cloth, tar, pitch, ship-timber, masts, and objects of the like nature, as well as provisions, and money which has always been considered as the sinew of war. It will not be foreign from the subject to mark the variations which have takenplace in this repect in the treaties of Europe.

6. The first act in the European diplomatic Code, that proscribes the transportation of eatables and money in time of war, as contraband goods, is the treaty of the 16th August, 1604, and, afterwards, the 9th and 18th articles of that of the 15th November, 1630, between Spain and France. Salt-petre was first placed among contraband articles, in the 6th article of the maritime treaty, concluded the 17th December, 1650, between Philip IV, king of Spain, and the United Provinces of the Low Countries. The same regulation as to provisions and money, again appears in the 8th article of the treaty of Westminster, made

(129) See the last article.