1902 Encyclopedia > Contraband


CONTBABAND (Low Latin, contrabannum) means, according to Ducauge, "merces banno interdicta," and was originally applied to a prohibited domestic trade in time of peace, such as that in salt. The term does not occur in the Guidon dj la Mer, or in Grotius, and is first used to denote a prohibited neutral trade with a belligerent in the Treaty of Southampton (17th September 1625) between Charles I. and the States-General of Holland. That treaty declared that all provisions (munitions de bouche), provisions of war, ships, arms, sails, &c, silver, iron, &c, carried to Spanish ports, would along with the carrier ships and their crews be good prize. It was partly from the general use of such treaty-stipulations with neutrals, and partly from the custom of belligerents at the beginning of a war to issue declarations which they formally intimated to neutrals, and which forbade all trade in certain articles with the ports of their enemies, that the international law of contra-band grew up. An example of the latter mode of proceed-ing is the "Placaart" issued in 1599 by the States-General, which, like the Berlin Decrees, completely interdicted all trade with Spain. The Treaty of Southampton itself was followed by two proclamations, which assume a belligerent right to place restrictions on neutral commerce, and which go the length of authorizing private ships to capture neutral bottoms carrying contraband. The practice of contraband is of course much older than the name. Thus in the Code of Justinian (iv. 41, 42) Marcian prohibits the sale to barbari alienigenœ of oil, wine, several specified kinds of arms, and generally of iron. So also the Decretals, Gregory IX. (v. 6-12), and the Bull " In Ccena Domini," c. 7, denounced excommunication against such as should supply Saracens with arms. It is in the 17th century that the military policy and commercial interests of the various European nations begin to be indicated in their treaties relating to contraband. Opinion varied so much with the political situation, that it is difficult to extract from these treaties the prevailing custom even of a single nation. At first provisions, that is corn, <fec, seem generally to have been excluded from the list, and in 1674 a great English lawyer, Sir Leoline Jenkins, told Charles II. that nothing ought to be deemed contraband " but what is directly and immediately subservient to the use of war, except it be in the case of besieged places" (which raises the distinct question of blockade), or of a " general certification by Spain to all the world." The definition of the French Ordonnance de la Marine of 1681 is also limited to muni-tions of war, and even to such as have " la forme d'un instrument pouvant servir directement à l'usage de la guerre." On the other hand, the early writers on contra-band, such as Dr Zouch (De Jure Fetiali, 1634) and Albericus Gentilis (Advocaciones Hispanices), in discussing the question " An res amicorum ad hostes transeúntes in-tercipere liceat ? " seem to assume that the belligerent has, apart from treaty, a right indefinitely to vary the list of articles constituting munitions of war, and it is clear that the test of " immediate subserviency " must vary with ths character of the hostilities, the resources of the combatants, and the actual position of the conflict. In 1543 the English envoy, Sadler, challenged the Scotch fish trade to France as a species of " aid," a word often used in the older treaties of alliance, but which can scarcely have been intended to cover the case of habitual trade ; and in 1589 Queen Elizabeth successfully justified the capture of a fleet of sixty vessels, belonging to the Hanse confederation, and carrying corn and naval munitions to Spain.1 In all these cases some ordinance, placaart, or treaty v> as appealed to, but these documents were of course liable to ex post facto interpretation, and such interpretations were acquiesced in from necessity or from motives of policy. A powerful neutral, dissatisfied with the decision of the captor's prize court, might issue letters of reprisal. This was done by England when a cargo of tobacco, bound for Holland, was condemned in Spain on the ground that by its use " the consumption of victuals might be prolonged." The general principle, before the writings of Grotius permanently affected the public law of Europe, was, therefore, that the private right of neutral merchants to free trade must yield to the public right of the belligerent to put such limits on neutral trade as were reasonably necessary in the conduct of war,— that right being exercised in a public and legal manner. After the Peace of Westphalia, the grand pensionary of Holland, John de Witt, contended strongly for the exten-sion of neutral rights, and in 1662 by treaty with France the Dutch adopted the definition of contraband in the 12tb and 13th articles of the Treaty of the Pyrenees between France and Spain (1659), which included munitions of war, and specially excluded almost everything in the nature of ordinary provisions. For some time England maintained (as in her Treaty of Whitehall with Sweden, 1661) the doctrine that money, ships, and provisions were to be deemed contraband, but in her Treaty of Breda with Holland (1667), and her Treaty of St Germain-en-Laye with France (1677), she practically adopted the rule of the Pyrenees, with this extension, that the neutral trade might take place even between two enemy ports, provided neither was-blockaded. This explains the singular agreement made by England and Holland in 1689 for a wholesale blockade of the ports, harbours, and roadsteads of France. The treaties of the 18th century proceeded for the most part on the Treaty of Utrecht, " which embodied the French doctrine of contraband" (Hall, Bights and Duties of Neutrals, 1874). As, however, some powers never contracted with each other on the subject, and as the treaties made were for limited periods, and were often broken by the outbreak of war, there was plenty of room for controversy and for the-enforcement of national opinions. The classical division of contraband by Grotius was as follows : " Sunt res quae in. bello tantum usum habent, ut arma; sunt quae in bello nullum habent usum, ut quae voluptati inserviunt; sunt quae et in bello et extra bellum usum habent, ut pecuniae,, commeatus, naves, et quae navibus adsunt." The only difficulty arises in connection with the third class, of which Grotius says that the state of the war must be considered, and that " if seizure is necessary for defence, the necessity confers a right of arresting the goods " (De Jure Belli et Paris, iii. 1. 5). A leading question in the 18th century was whether naval stores should be deemed contraband, the Baltic powers (supported by the writings of Heineecius and Valin) inclining to the affirmative, while Bynkershoek (Qucest. Jur. Pub. i. 10, 1737) and Lampredi (Del Com-mercio dei Popoll Neutrali in Tempo di Guerra, § 70) maintained, in conformity with the 20th article of the Treaty of Utrecht, that goods, though possibly of warlike use, were not contraband, if not worked into the form of an instrument of war. Other authors, as Vattel (Droit des Gens, iii. 7, 112) and Heineecius (De navibus ob vecturam vetitarum mercium commissis, Comm. xiv.), attached great value to the fact of urgent need among the enemy—" si hostis laboret inopia"—aud were prepared on this ground even to include provisions as contraband. The first armed neutrality of 1780, alarmed by the growing naval power of Great Britain, declared that only munitions of war and sulphur should be contraband. (This is the hriegs-contrebande of German jurists. See Lord Grenville's Letters of Sulpicius Ward.) In 1793 both England and France made large seizures of provisions, the former pretending that there was a chance of reducing France by famine, and the French executive having assumed the direction of the whole corn trade of their country. Both sides were wrong, and were nobly rebuked by the counter declaration of the Danish minister, Count Bernstorf, in which he explained that a neutral was neither a party nor a judge, and could take no notice of a reciprocity of injuries. The United States also energetically protested against the notion that provisions, not destined to a blockaded port, could in any circumstances be contraband,—a position inconsistent with the modern American doctrine that an actual military destination even of luxuries will impress on the cargo a contraband character. The second armed neutrality of 1800 took up the same position as the first ; and in 1803 England and Bussia agreed that money, horses, ships, and manufactured articles for naval use were to be confiscated, naval stores, the produce of either country, being brought in for pre-emption. The only existing treaties of England on this subject are those with Portugal in 1820 (munitions of war, sulphur, horses, money, and naval stores) and with Brazil in 1827 (munitions of war and naval stores). Throughout the French wars, however, the law administered by Lord Stowell and others in the English prize court was much harsher than the treaty obligations of the nation. The circumstances which Lord Stowell considered favourable to a cargo were these :—1. Its being the product of the neutral country, and therefore a natural export; 2. Its being in an unmanufactured state, as hemp or iron; 3. Its destination to a commercial not a military port (" Jonge Margaretha," 1 Rob. Adm. Rep.) Among modern jurists Ortolan (Dlplomatie de la Mer., ii. 190) and Heffter (Le Droit International, § 160), as quoted by Hall, agree that contraband cannot be limited to munitions of war, but must extend to raw materials and merchandize, if clearly destined for actual and immediate military use. Ortolan expressly excludes provisions under all circumstances, but the tendency of modern decision is to bring all articles to the test proposed by Mr Dana, the editor of Wheaton,—" the right of the belligerent to prevent certain things from getting into the military use of the enemy,"—a principle which is obviously independent of the innocent or fraudulent intention of the owner of the cargo. Mr Hall proposes a classification of contraband goods, not being munitions of war, based on their more or less intimate connection with military operations. Among these he includes horses, saltpetre, sulphur, materials of naval construction, such as timber, cordage, pitch (stated by the British Government during the Crimean war to be contraband), marine engines, &c, and coal, if its immediate destination be military. Thus in the Franco-German war, 1870, vessels laden with coal were forbidden to sail from English ports to the French fleet in the North Sea. France, on the other hand, still holds by the decision in the case of " II Volante " (an Austrian ship laden with bois de construc-tion from Lisbon to Messina, and captured in 1807 by the French cruiser " Etoile de Bonaparte "), that ship's timber and naval stores are not contraband. Provisions of very various kinds, biscuits, cheese, wine, corn have both in England and America been held contraband (The " Com-mercen," 1 Wheaton's Reports). A ship, available for war, and sent to an enemy's port with instructions either to sell or charter, has been condemned in England. The general subject of ships, however, belongs to the subject Neutrality. With regard to clothing, money, and unwrought metals, there are no recent decisions, but the rule would probably be applied that they may become contraband in certain circumstances. The ordinary penalty of carrying con-traband is confiscation of cargo, but where the capture is only justified by special circumstances, or, as it is sometimes expressed, where the contraband is "conditional," and where the cargo is ordinary neutral produce, and there is perfect bona fides of the owner, the ship is merely carried in for pre-emption, which means the owner's value plus 10 per cent., with indemnity for freight and expenses of detention. Anciently, in cases of absolute contraband, both ship and cargo were forfeited; it is said Russia still does this. The right of pre-emption (droit d'achat) is stated by Lord Stowell to apply to all cargoes whatever bound for an enemy's port; and it is settled that any attempt at fraud, as false papers, or a concealed destination, will disentitle the owners to compensation. The same circumstances occurring in the case of a cargo of absolute contraband, even where the ship does not belong to the owner of the contraband, may forfeit the ship.

It will be remembered that the blockade runners of the American civil war raised very nice questions on this point. It was impossible to prove that these vessels after leaving Nassau were not going to Matamoras in Mexico, for they had only a floating intention of " running." The question, therefore, which came before the Supreme Court of the United States in the "Bermuda" and "Peterhoff" cases was whether the interposition of a neutral port between the neutral point of departure and the belligerent destination did protect the cargo which was admitted to be contraband There could be little doubt that the goods went straight through Texas to the Confederate States. But in several cases these cargoes were not condemned. The " PeterhofFs " cargo was army boots, artillery harness, regulation blankets, chloro-form, and quinine.

Where the shipowner is innocent and does not own the cargo, he merely loses his freight and expenses. Contraband articles also involve innocent parts of a cargo in confiscation when both belong to one owner. The United States and Prussia are the only powers that have chosen the bold plan of entirely renouncing by treaty between themselves the right of confiscation, for which they have substituted an unlimited right of stoppage and detention and appropriation, subject to full compensation. This is an arrangement which may probably become more common, and will of course much weaken the effects of the law of contraband. It is impossible to prevent the seizure of private property in war, but it has been suggested that the value should be at once paid over by the captor's government to the neutral government for distribution. There is only one case in which a return cargo has been confiscated on the ground that the outward cargo was contraband, with fraudulent papers and fraudulent destination ; the voyage was a long one,—to the East Indies. Where a neutral vessel carries despatches to a belligerent, as the ship has become a quasi-servant of the enemy, the captor generally not only seizes the papers but confiscates the ship. Despatches from or to accredited diplomatic agents or consuls residing in a neutral country do not fall under this rule, the neutral having an interest in their safe transmission. But ignorance of the contents of despatches addressed to military officials, or unaccredited agents, will not excuse their carriage. Even where the despatches have been received through force or imposition, the English prize court holds that the carrier is liable, because his suspicions ought to have been roused. A very difficult question rose in the American civil war with regard to the searching of mail bags. If the right were renounced absolutely, all belligerent despatches would choose this safe route. It was arranged that all British mails, certified to be such, should on capture be forwarded unopened. The carriage of persons in the service of a belligerent also leads to confiscation of the ship, if it amount to an intentional assistance of the belligerent. The persons carried may be mere civilians, and the port of destination neutral. The most common case is the carriage of soldiers. The exception to this rule is the case of trans-port of diplomatic agents, which is generally recognized as lawful, but which in the Trent affair the United States Government repudiated.

Besides the works mentioned the following may he consulted :— Twiss, On the Mights and Duties of Nations in Time of War ; Phillimore, Commentaries on International Law, iii., where the literature of the subject is fully noticed ; Wheaton's Elements of International Law ; Neutrality Laws Commissioners' Report, State Papers, 71, 1871. (W. C. S.)


Continental jurists called this an attempt to starve Spain out.

1 Essay on Contraband, London, 1801; Lord Liverpool's Discourse on the conduct of the Government of Great Britain in respect to Neutral Nations, London, 1801.

The " Commercen " was a Swedish vessel, carrying English provi-sions to a Spanish port for delivery to the British commissariat in the Peninsular War. Sweden and Spain were British allies in the war with France, but neutral in the war with the United States, and there was no alliance between France and the States. The particular cargo was therefore (unjustly) condemned as enemy's goods, but doctrines were laid down as to contraband

The " Commercen " was a Swedish vessel, carrying English provi-sions to a Spanish port for delivery to the British commissariat in the Peninsular War. Sweden and Spain were British allies in the war with France, but neutral in the war with the United States, and there was no alliance between France and the States. The particular cargo was therefore (unjustly) condemned as enemy's goods, but doctrines were laid down as to contraband.

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