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cence or noxiousness of an article is determined by the external circumstances under which it is supplied, but part of which seems also to spring from the adoption of intent as a test of character.

of classifi

of contra

The principle that the right to class a particular Principle object as contraband is intimately bound up with the cation fact of its possession being essential to the belligerent band. for his warlike purposes will not, I think, be contested by any publicist. The belief that no article except munitions of war can be so essential as to warrant interference with trade appears to underlie the doctrine of one school of writers; the statement that the contrary is true is explicitly made by the adherents of the opposite opinion. It may be admitted that no such principle has governed the policy of nations. The wish to keep open their own or a foreign market has usually been a motive quite as powerful as the hope of embarrassing an enemy. But when no sufficient rule can be extracted from clashing usages, it is not unreasonable to find a mean term by the cautious application of a general idea. It appears to me therefore that, though no great precision can from the nature of things be obtained, articles other than munitions of war may to some extent be classified according to the greater or less intimacy of their association with warlike operations, and consequently, according to the less or greater urgency of circumstance under which a belligerent may fairly prevent their access to his enemy; it being nevertheless in all cases understood that usage shall receive its full value in so far as it weighs in favour of a particular custom.

Saltpetre.

§ 42. Horses, saltpetre and sulphur, may be placed Horses. first as subjects of the widest usage. It has always been Sulphur. the practice of England and France to regard horses as contraband; in a very large number of treaties they are expressly included; in none are they excluded ex

cept in a few contracted by Russia, and in those between the United States and other American countries, the latter however confining the prohibition to cavalry mounts. M. Bluntschli treats this limitation as a matter of international rule, without explaining in what way horses used for artillery or transport are less noxious than those employed in the cavalry, or how it can be determined for which use they are intended.1 Under the mere light of common sense the possibility of looking upon horses as contraband seems hardly open to argument. They may no doubt be imported during war time for agricultural purposes, as powder may be used for fireworks; but the presumption is certainly not in this direction. To place an army on a war footing often exhausts the whole horse reserve of the country; the subsequent losses must be supplied from abroad, and more necessarily so as the magnitude of armies increases. Almost every imported horse is probably bought on account of the government; if in rare instances it is not, some other horse is at least set free for belligerent use.

The Russian treaties are those of 1766 with England, and those of 1780-2 with Sweden, Denmark, Portugal, Prussia, Austria, and Holland. Bluntschli, § 805; Valin, Ord. de la Marine, ii. 264. See also Vattel, lib. iii. chap. vii. § 112; Kent, Lect. vii.; Manning, 285; Calvo, § 1112, who sustains the contraband character of horses; and on the other side Hübner, who makes a like distinction with Bluntschli, and Hautefeuille (tit. viii. sect. ii. § 6), who takes refuge from treaties in primitive

law.

The military administration in Germany is apparently less

inclined than publicists of that country to regard the acquisition of horses by an enemy as unimportant. In 1870 Count Bismarck complained to Lord A. Loftus that the export of horses from England under existing circumstances provided the enemy of Prussia with the means of carrying on a war with a power in amity with Great Britain.' State Papers, No. 3, 1870, Franco-Prussian War. Horses are included in an Austrian ordinance of 1864, which in other respects limits contraband to munitions, &c., saltpetre, and sulphur. Calvo, § 1039.

The amount of authority and of reason in favour of including saltpetre and sulphur is approximately the same as that which governs the case of horses. But there are no treaties in which these commodities are expressly excluded.

Naval con

§ 43. Materials of naval construction, e.g., ship Materials of timber, masts, spars of a certain size in a manufactured struction. state, marine engines, or their component parts, sailcloth, cordage, copper in sheets, hemp, tar, &c. have been deemed contraband by less general consent. English usage bars all such objects from reaching the enemy, but does not treat them as being all equally harmful. Manufactured articles are looked upon with more suspicion than raw material; and where commodities are the staple produce of the exporting country and owned by persons belonging to it, the penalty of confiscation is relaxed, and they are subjected only to preemption. The American rule on the subject is identical with that of England, and the Confederates also acted upon it during the Civil War.2 In the course of a dispute with Spain in 1797, the details of which are unimportant, the Government of the United States laid down that 'ship timber and naval stores are by the law of nations contraband of war,' and the Courts give expression to a like view. The custom of France has now become fixed in an opposite sense.3 The policy of the Northern States,

1 Jonge Margaretha, i Rob. 193. Maria, i Rob. 373. So late as 1750 pitch and tar, the produce of Sweden, were confiscated by the English courts. The Apollo, iv Rob. 161; the Twee Juffrowen, iv Rob. 243.

During the Crimean war Sir J. Graham stated the opinion of the government that by the law of nations, timber, cordage, pitch,

and tar could be dealt with as
contraband of war. Hansard,
3rd series, vol. cxxxiv. 916.

2 Dana's Wheaton, note to
§ 501; The Commercen, i Whea-
ton, 143; Ortolan, vol. ii. Ap-
pendix xxi.

3 Pistoye et Duverdy, i. 445; Il Volante, ib. 409; La Minerve, ib. 410.

Ships.

Coal.

which have always exported their timber and tar, can only be confirmed by the modern necessity of importing machinery.1 The views of the South American world are probably indicated by its treaties with the United States, the tenor of which is thoroughly in consonance with the interests of the southern nations. Writers are divided into two classes, the members of which correspond to those whose diverse opinions as to horses have already been cited. In practice, therefore, the maritime authority of England and America is opposed by that of France, supported by a crowd of nations, the future nature or importance of the naval action of many of which cannot at present be foretold. Upon reasonable grounds it appears to me that it must always be a matter of the highest and most immediate belligerent importance for a non-manufacturing state to import machinery in safety, and for a country poor in forests or in iron to be able to introduce ship timber and armour plates.

The position occupied by vessels in modern practice has already been so fully discussed under the head of State Duties, that it does not seem necessary to recur to the subject.

§ 44. Coal, owing to the lateness of the date at which it has become of importance in war, is the subject of a very limited usage. In 1859 and 1870 France declared it not to be contraband; and according to M. Calvo the greater number of the secondary states have pronounced themselves in a like sense. England, on the other hand, during the war of 1870, considered that the character of coal should be determined by its destination, and though she refuses to class it, as a general rule, with contraband merchan

1 The Swedish neutrality saltpetre, and sulphur. Neut. ordinance of 1854 only mentions Laws Comms' Rep., Appendix iv. as contraband munitions of war,

dise, vessels were prohibited from sailing from English ports with supplies directly consigned to the French fleet in the North Sea. Germany went further, and remonstrated strongly against its export to France being permitted by the English Government. The claim was extravagant, but the nation which made it is not likely to exclude coal from its list of contraband. The view taken by England seems to be that which is most appropriate to the uses of the commodity with which it deals. Coal is employed so largely, and for so great a number of innocent purposes, the whole daily life of many nations is so dependent on it by its use for making gas, for driving locomotives, and for the conduct of the most ordinary industries, that no sufficient presumption of an intended warlike use is afforded by the simple fact of its destination to a belligerent port. But on the other hand it is in the highest degree noxious when employed for certain purposes; and when its destination to such purposes can be shown to be extremely probable, as by its consignment to a port of naval equipment, or to a naval station, such as Bermuda, I am unable to see any reason for sparing it which would not apply to gunpowder. One article is as essential a condition of naval offence as is the other.

§ 45. The doctrine of the English Courts at the com- Provisions. mencement of the present century with respect to provisions was that' generally they were not contraband, but might become so under circumstances arising out of the particular situation of the war, or the conditions of the parties engaged in it."2 Grain, biscuit, cheese, and even wine, when on their way to a port of naval

1 Calvo, § 1111; Bluntschli, § 805; Hansard, 3rd series, vol. cciii. 1094. State Papers, Franco-German War, 1870,

No. 3.
2 The Jonge Margaretha, i
Rob. 193.

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