List of contraband articles.-English and French policy.

swords, belts, pistols, holsters, horse-saddles and harness, cannon, mortars with their carriages, and other arms and warlike utensils, for the use of troops, beyond what is necessary to equip a vessel for its own defence, and destined for an enemy. They afterwards included under this description, shiptimber, masts, tar, pitch, turpentine, sulphur, sails, cordage, and every thing which could serve for the armament of a vessel, even money, and, in certain cases, provisions.

14. English policy, that it may not endanger its own interest, classes in the predicament of contraband, besides the articles already specified, all such as may be determined by the English, as capable of augmenting the force of an enemy. With this rule of jurisprudence, they are certain never to miss their aim. England, able to carry on its commerce in time of war by means of convoys, may do without neutrals, whose commerce she is interested to restrain, by prohibiting the transportation of all those things which may augment the resources and strength of her enemy.

15. France, on the contrary, even at the period when she counterpoised the maritime power of England, always kept within the bounds of a just and equitable restriction; she has rarely transgressed this moderation, even when she might, without injustice, have made reprisals. This appears from her dif ferent treaties, and from the decisions of her tribu

Opposite conduct of England and France towards the U. S. A.

⚫nals. It was decided by the council of prizes at Paris, the 4th April, 1801, in favour of the Danish ship Elegance, laden with masts for ships, recaptured from the English, that this article was not contraband of war; " and though, in contempt of trea

ties," said the council," the English confiscate "articles belonging to neutrals, and destined for "their enemies; this conduct so atrocious, audaciously proclaimed by the ministerial party, ought "not to find imitators among governments who respect the laws of nations."*

16. According to principles so opposite to each other, have the French and English governments formed their treaties with the United States of America. In that concluded between those states and Great-Britain, the 17th November, 1794, all goods of an indirect use in war, are regarded in nature of contraband; the 18th article excepts only bar-iron and fir planks. On the contrary, in that concluded

* On this subject we see no reason to extol the generosity of the French, on the one hand, or to reprobate the atrocity of the English on the other. Each government in making these commercial pacts or treaties, has been guided by the same motives which actuate two individual merchants, that is, by their respective interests. The whole of the historical detail in this article, and particularly the last treaties between England and Russia, and Russia and Sweden, show the influence of circumstances in the formation of these conventions. The principle contended for by M. Azuni, undoubtedly affords the only just and true rule, and it is to be wished, that all nations would take it as a guide in their commercial treaties....T.

Treaty of 1801, between England and Russia

between these states and France, the 30th September, 1800, those articles only are considered as contraband of war, which have the shape of an instrument proper for warlike use by land or sea, or for troops, and also powder and salt-petre. This principle of moderation, which, without infringing the rights of belligerents, secures the liberty of neutrals, was proclaimed as law by the convention of the armed neutrality of Russia, the 21st October, 1780. The salutary principle established in that convention has been recently admitted by England, in the treaty concluded with Russia, the 17th June, 1801, and by the 26th article of the treaty of alliance, of the 11th March, 1801, between Russia and Sweden.

CHAPTER III.

OF THE COLLISION BETWEEN THE
RIGHTS OF BELLIGERENTS
AND NEUTRALS.

ART. I.

Of the Conventional Law of Europe, as to the Capture of the Goods of an Enemy on board of a Neutral Ship.

§ 1. THE opinion, that every ship laden with goods belonging to enemies, though sailing under a neutral and friendly flag, might be confiscated by the belligerents, has long prevailed. It has been' adopted in many marine ordinances, in different declarations concerning the navigation of neutrals in time of war, and by several publicists, (133) who have derived it from the Roman law, without considering that the application of this law to the present state of Europe, was contrary to the interests of nations.

(133) Ordonnance de la Marine de France, August, 1681, liv. 3, tit. 9, art. 7, Comment. D'Habreu, Tratado sobre las Presas, par. 1, cap. 8, p. 108, et sequen.

Roman law not applicable.—Mistakes of publicists.

2. The Roman law, beyond all doubt, subjected to confication, prohibited goods and the vessel which carried them, as for an infraction of the law ;(134) but it is equally clear, that this was a matter of pure civil regulation,(135) obligatory only on the subjects of the legislator, and not on other and independent nations. In regard to their respective interests, nations are bound to observe only the law of nature; and this law, as has been shewn in the first and second articles of the preceding chapter, confers no other right than that of seizing and sequestering goods belonging to an enemy, in every place where any acts of jurisdiction and hostility may be lawfully exercised. It must be allowed, therefore, that writers, who have been desirous of establishing the legality of the principle derived from the Roman jurisprudence, have confounded the case of a seizure on the high sea, and that made in the ports of a nation, of goods of an innocent nature belonging to an enemy, with the seizure of contraband of war, and those two classes with the objects of fiscal prohibition; in short, the rights of each sovereign over his own subjects, with those which the law of nations, sometimes, gives him over the subjects of others.

(134) Digest, lib. 39, tit. iv. I. 11, de Publicanis et Vectigalibus, et Commis. Dominus navis, si illicite aliquid in nave, vel ipse, vel vectores imposuerunt, navis quoque fisco vindicatur.

(135) Mornac, ad leg. pen. ff. de loc. et cond. Bynkershoek, Illust. Quest. tit. an licitum per illicitum publicatur, cap. 12.