cate has never been adopted. If, on the other hand, they are held to set forth what the law ought to be, we may remark that the difficulty of drawing a line between a small trade and a large one is so great as to amount to impossibility. Moreover, it is by no means certain that international trade in arms on a large scale is confined to times of war. A firm like Krupp of Essen makes artillery for half the armies of the civilized world during periods of profound peace. And lastly, it may be argued that the burden placed by the proposed rule upon neutral governments would be too great for them to bear. The stoppage of large shipments of arms for belligerent purposes from the ports of a great commercial country would require for its effective enforcement an army of spies and informers. And when a state had dislocated its commerce and roused the anger of its trading classes, it might possibly find itself arraigned before an international tribunal for lack of "due diligence,' and cast in damages because a few cargoes had slipped through the cordon it maintained against its own subjects. The growth of a moral sentiment against making money out of the miseries of warfare may in time check the eagerness of neutral merchants to engage in contraband trade. Meanwhile belligerents must trust to the efficiency of their own measures of police on the high seas to keep cargoes of warlike stores out of the ports of their enemies. The proposal that neutral governments should be charged with the duty of preventing shipments of contraband goods from their ports to a belligerent destination has been revived in a recent report presented to the Institut de Droit International; but it has met with a cold reception.2 Neither jurists nor statesmen are prepared to impose this additional burden upon the condition of neutrality. 1 Westlake, Article in Revue de Droit International, II., 614-635. 2 Rapport par MM. Kleen et Brusa; Revue de Droit International, XXVI., 401 et seq. What articles are contraband of war. § 278. Since the law of nations gives to states at war the right of stopping neutral trade in contraband goods by the use of armed force on the high seas, it is obvious that some general agreement as to the articles which come under the description of contraband is necessary in order to avoid constant friction. But unfortunately no agreement exists except with regard to a very small portion of the large field to be covered. Arms and munitions of war are recognized as being contraband. Here, however, unanimity ends. Some doubt has been expressed even with regard to the materials from which gunpowder, dynamite and other means of destruction are made,1 though the vast majority of authorities class them along with weapons and ammunition. Beyond this point all is confusion, and there is scarcely a single article as to which the greatest diversity of opinion and practice does not prevail. Grotius divided commodities into three classes: things of direct and immediate use in war, things useless for warlike purposes, and things useful in war and peace indifferently. The first were always contraband, the second never, and with regard to the third, res ancipitis usus, the circumstances of the contest were to be considered.2 This classification is valuable, and would be more so were the various kinds of goods it embraces as plainly marked off from each other as birds and fishes or grain and trees. But there are no clear lines of demarcation between them. Cannon are always useful in war; but what of nitroglycerine, which may be used for blasting in mines or a dozen other peaceful purposes? Millinery is useless in war; but what of cloth, which may make tunics for soldiers as well as mantles for fashionable ladies? And with regard to the third class, which seems to have grown so rapidly at 1 Hautefeuille, Droits des Nations Neutres, Vol. II., Tit. VIII., Sec. II., § 3. 2 De Jure Belli ac Pacis, III., I., V. the expense of the other two, what circumstances are to be considered in the attempt to determine whether any particular article comprised in it is contraband or not? Quot homines, tot sententiæ. Whichever way we turn we meet nothing but disagreement and inconsistency. Publicist differs from publicist and state from state. Even the same state champions one policy at one time and another at another, and places different lists of contraband goods in different treaties negotiated during the same period. A full account of these diversities is given by Hall,1 and to it the student is referred if he desires to make himself acquainted with their multitudinous details. As an example of what has taken place we may refer to the action of Great Britain and the United States with regard to two out of the many classes of disputed goods. The treaty of 1794 between these powers included naval stores in its list of contraband articles. Yet in the next year the United States expressly excluded them in its treaty with Spain, following thereby its own precedents in the French treaty of 1778, the Dutch treaty of 1782 and the Swedish treaty of 1783.2 Horses were not included in the list of the British treaty of 1794; but they are expressly mentioned in the treaty of 1782 with the United Netherlands, though by its twenty-fourth article naval stores were ruled out in the most emphatic terms. The French treaty of 1778 included them. The French treaty of 1800 excluded them. They are mentioned as contraband in the treaty with Sweden of 1783 and the treaty with Spain of 1795. They are not mentioned in the Prussian treaties of 1785 and 1799.3 During the present century a list of contraband goods has been inserted in many of the treaties of the United States, the general tendency being towards the inclusion of horses and the exclusion of naval stores. Great Britain on the other hand has preferred to 1 International Law, Pt. IV., Ch. v. 2 Treaties of the United States, pp. 304, 389, 756, 1011, 1045. keep herself free from special agreements on the subject. Since the close of the last century she has entered into stipulations with regard to it very sparingly. But small in number as are her treaty-lists of contraband, they are not consistent with each other. Both horses and naval stores, for instance, were declared to be subject to confiscation in her treaty of 1810 with Portugal, but seventeen years after she agreed with Brazil to omit the former while retaining the latter.1 From these examples, which could be increased in number to an enormous extent if we examined the diplomatic history of all civilized states, it is evident that no authoritative list of contraband articles can be compiled from treaties. An examination of the works of publicists reveals a similar divergence and leads to a corresponding conclusion. But amid conflicting views it is possible to discern two main tendencies. The first, which favors a long list of contraband goods and leans to severity in dealing with them, may be called English, since its chief defenders are to be found among the jurists and statesmen of Great Britain. The second deems comparatively few articles to be contraband and is inclined to treat all doubtful cases with leniency. As its chief supporters are French, German and Italian writers, it may be called European. In this matter, as in so many others connected with maritime law, America occupies an intermediate position. In her treaties and her state papers she has generally followed European, and especially French, models; while her courts and her legal luminaries have as a rule supported English views. The most authoritative exposition of the English doctrine is to be found in the Manual of Naval Prize Law, drawn up for the British Admiralty by Professor Holland of Oxford, in 1888. It divides contraband articles into Goods Absolutely Contraband and Goods Conditionally Contraband. 1 G. F. de Martens, Nouveau Recueil, Supplement, VII., 211, and XI., 485, 486. Among the former it reckons not only arms of all kinds and the machinery for manufacturing them, ammunition and the materials of which it is made, gun-cotton and clothing for soldiers, but also military and naval stores, including in the latter marine engines and their component parts, such as cylinders, shafts, boilers and fire-bars. These things are contraband always and in every case. They are condemned on mere inspection, provided, of course, that they are bound to an enemy destination. They carry their guilt on their face, and are invariably liable to seizure and confiscation. But in addition to these there are other large classes of goods which may be regarded as contraband under some circumstances and non-contraband under others. They are not to be condemned merely for being what they are. It is necessary to know more about them than their nature and description. All manner of collateral circumstances must be taken into account in deciding their fate. Whatever raises a presumption that they will be used for warlike purposes tells against them. Whatever tends to show that they will be consumed by peaceful non-combatants tells in their favor. It is for this reason that Professor Holland calls them goods conditionally contraband. He enumerates among them provisions, money, coals, horses and materials for the construction of railways and telegraphs.1 It is obvious that the noxious or innocuous character of such things as these depends upon the use to which they are applied. Great Britain contends that they may lawfully suffer capture and condemnation when surrounding circumstances make it reasonably clear that they will be used for purposes of warfare. The immediate destination of the goods is held to be the best, though not the only, test of their final use. In the case of the Yonge Margaretha,2 Lord Stowell condemned a cargo of cheeses bound for Brest, a port of naval equipment, the cheeses being such as were used in 1 Manual of Naval Prize Law, p. 20. |