present state of the arts throughout Europe every nation possesses, or may easily possess, within itself the faculty of supplying all the ordinary munitions of war. Originally the case was different, and for that reason only it would seem that the articles in question [i. e., the lists embraced in the treaties] were placed on the contraband list. The articles which alone fall within the original reason are naval stores; and if these are expunged from the list of contraband, it is manifest that an abolition of the list altogether would be a change in the law of nations to which little objection ought to be made."

Mr. Madison, Sec. of State, to Mr. Armstrong, min. to France, March 14, 1806, MS. Inst. U. States Ministers, VI. 322.

The doctrine of contraband "should be rigidly confined within the narrowest limits compatible with an honest belligerent policy; and in the opinion of this Government those limits ought to be made to include only arms and munitions of war. It found its way

into the code of nations, when the means of supply were much more restricted than at present, and before the progress of improvement had placed it in the power of almost every nation to provide itself with whatever it may want either for offensive or defensive operations. . . . The dictum upon which this whole doctrine rests is, that a neutral nation ought not to supply a belligerent power with articles which may serve him in the direct prosecution of hostilities.

The discussion which at this time is going on respecting the military character of coal, and whether it is now excluded from general commerce as contraband of war, is a striking illustration of the tendency to enlarge this power of prohibition and seizure, and of the necessity of watching its exercise with unabated vigilance. . . . It adds to the complications arising out of the uncertainty in which this subject is involved, that there is no common tribunal empowered to decide between the independent parties, when a belligerent nation, interested in the measure, undertakes to add a new article to the catalogue of contraband, upon the assumption that it has changed its character from a peaceable to a warlike one, in consequence of a change in the objects to which it may be applied, either by a revolution in the mode of conducting war, or by improvements in the implements used in its prosecution. The pretension of a prerogative on the part of sovereigns, whether in peace or war, if indeed any such exist, to decide these questions, except so far as relates to their own. subjects, is utterly repudiated by the United States."

Mr. Cass, Sec. of State, to Mr. Mason, min. to France, No. 190, June 27, 1859, MS. Inst. France, XV. 426.

See note under an extract from this instruction, supra, § 1195.

"I have the honor to acknowledge the receipt of your note of the 25th ultimo, wherein you present certain reasons which lead your Government to ask that this Government, in common with other powers, consent to a general prohibition of the passage of the Dardanelles or the Black Sea by vessels carrying dynamite.

"In the form in which the request is presented, this Government would not feel justified in giving this measure its unqualified sanction, inasmuch as it is founded not so much on the inherent danger to life and property of the explosives named while in transit as on the possible ulterior wish to which they may be put. I need scarcely adduce argument to show that such a course is tantamount to enlarg ing the international definition of contraband of war, and making the substances in question contraband also in time of peace. To this proposition the United States could not assent, either as a general principle or in its practical application to a class of explosives whose employment is widely extending in all operations of mining and tunneling, and which, rightly used, plays an important part in the internal development of the natural resources of nearly all countries.

"If, however, the question presented were one of regulating the conveyance of a dangerous detonating or inflammable substance, so that its transit might be unaccompanied by peril to life, this Government could find no objection to such a course. Our own laws (sections 4472, 5353, and 5354 of the Revised Statutes) prohibit the carriage of such explosives upon any vessel or vehicle whatever used for the conveyance of passengers to the United States or between the States and Territories; and section 5354 especially considers the death of any person when caused by the transit or attempted transit of such explosives as entailing upon the offenders the penalty for manslaughter. Our statutes, however, do not absolutely prohibit, but simply regulate, the conveyance of explosives.

"This Government will be happy to consider any scheme for the regulation of the conveyance of explosives through the straits of the Porte, and if it shall not appear that the rights of peaceful and legitimate commerce or of transit through waters by which the world's commerce must necessarily pass are interfered with or prohibited, your Government may rest assured that no objection will be made to the enforcement of such legislation."

Mr. Frelinghuysen, Sec. of State, to Aristarchi Bey, Turkish min., Dec. 4,
1882, For. Rel. 1883, 892.

Mr. King's correspondence in 1799 as to contraband is given in 2 Am. State
Papers, For. Rel. 494 et seq.

Mr. Seward's report of Jan. 26, 1863, giving correspondence in relation to
the capture of British vessels sailing from one British port to another
with contraband articles for the Confederate States, is given in Sen-
ate Ex. Doc. 27, 37 Cong, 3 sess.

July 17, 1890, the Pacific Mail Steamship Company's steamer Colima arrived at San José, Guatemala, having on board a quantity of arms and ammunition in transit from San Francisco to a port in Salvador. At that time, the relations between Guatemala and Salvador were strained, armies of "observation" of the two countries confronting each other on the frontier. When the Colima arrived at San José, the Guatemalan authorities sought the consent of Mr. Mizner, the American minister, to the taking of the arms from the steamer as contraband of war, and proposed, if necessary, formally to declare war in order to seize the arms as contraband, the steamer meanwhile being detained till Mr. Mizner should hear from Washington. On July 20 Mr. Blaine instructed Mr. Mizner to demand the surrender of the Colima and her cargo, as she had been guilty of no offense against any existing treaty or against the law of nations. Before this message was received, however, the attention of the Guatemalan minister of foreign affairs was drawn to a stipulation in the contract between that Government and the steamship company, by which the latter agreed not to permit troops or munitions of war to be carried on its steamers from any of its ports of call to the ports of or adjacent to Guatemala, if there should be reason to believe that the materials might be used against Guatemala, or that war or pillage was intended. On the strength of this stipulation, it was agreed between the Guatemalan authorities and the officers of the steamship company, with Mr. Mizner's concurrence, that the arms and ammunition should be transshipped from the Colima to a steamer going north for the purpose of being provisionally detained at the company's storehouse at Acapulco, in Mexico. But, while the transshipment was in progress, the Guatemalan official who had charge of it compelled, by means of threats against the Colima, the conveyance of the arms to the shore, where they were seized by the Guatemalan authorities and some of them distributed among the troops. Mr. Mizner demanded that the arms should be returned to the company, with certain apologetic formalities. This was agreed to, and the arms were placed on board a steamer bound north on the 31st of August, but without any of the promised formalities. The United States declined to accept this as terminating the incident, and insisted that further reparation should be made for the irregular seizure of the arms and ammunition and for the indignity offered to the Colima.

For. Rel. 1890, 32-35, 39, 40, 47, 54, 97, 142; For. Rel. 1891, 53-55, 59, 61, 66, 74, 82.

II. WHAT ARTICLES ARE CONTRABAND.

§ 1250.

According to Chief Justice Chase, contraband goods are divided into three classes: "Of these classes, the first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes.

"Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege."

The Peterhoff, 5 Wall. 28, 58.

The foregoing classification is that which was made by Grotius, and which has been repeated by writers ever since his time. See Grotius, De Jure Belli ac Pacis, bk. 3, c. 1, sec. 5.

See, also, note by Wheaton, 1 Wheat. 389.

In the draft convention, suggested on January 5, 1804, by Mr. Madison, Secretary of State, to Mr. Monroe, minister to England, occurs the following:

"ART. IV. Contraband of war shall consist of the following articles only: Saltpeter, sulphur, cuirasses, pikes, swords, sword belts, knapsacks, saddles and bridles, cannon, mortars, firearms, pistols, bombs, grenades, bullets, firelocks, flints, matches, and gunpowder; excepting, however, the quantity of the said articles which may be necessary for the defense or use of the ship and those who compose the crew, and no other articles whatever, not here enumerated, shall be reputed contraband or liable to confiscation, but shall pass freely without being subjected to the smallest difficulty, unless they be enemy's property."

Mr. Madison stated that this enumeration was "copied from the treaty of 1781 between Great Britain and Russia. It is sufficiently limited, and that treaty is an authority more likely than any other to be respected by the British Government."

MS. Inst. U. States Ministers, VI. 161.

"There is no accepted enumeration of the articles coming within. the prohibition. And to add to the dangers of collision, the principle by which they are to be tested is so loosely defined that it is practically of little use, but to furnish a pretext when one is wanting,

to enable parties at war to enlarge the contraband list at their pleasure. Some of the later and approved writers upon the law of nations, as Hautefeuille and Ortolan, object to this power of extension ad libitum, and the former particularly confines the list to objects of first necessity for war, and which are exclusively useful in its prosecution, and which can be directly employed for that purpose without undergoing any change that is to say, to arms and munitions of war."

Mr. Cass, Sec. of State, to Mr. Mason, min to France, No. 190, June 27, 1859, MS. Inst. France, XV. 426.

By the "armed neutrality" entered into during the American Revolutionary War by Russia, Denmark, and Sweden in 1780, "being the three northern powers from whose dominions chiefly the other maritime nations of Europe received supplies of timber and other naval stores," the effort was made "to strike these from the list of contraband, or by some means to exempt them from capture." It was understood, however, at the time, that this was an exception from the law of nations. By this law" timber and other articles for the equipment of ships are contraband of war." Hence the recital of this principle in Jay's treaty ought to give no just cause of offense to France.

Mr. Pickering, Sec. of State, to Mr. Pinckney, min. to England, Jan, 16, 1797, Am. State Papers, For. Rel. I. 559.

For the list of contraband under the armed neutrality, see the section on that subject, supra, § 1220.

Marshall, referring, as Secretary of State, to the provision in the Jay treaty which embraced as contraband "whatever may serve directly to the equipment of vessels," complained that the British vice-admiralty courts, in construing the clause, appeared to consider it "as including whatever might by any possibility be applied to the equipment of vessels."

Mr. Marshall, Sec. of State, to Mr. King, min. to England, Sept. 20, 1800,
Am. State Papers, For. Rel. II. 486, 488.

See, also, 5 American Law Review, 256.

See note by Wheaton, 1 Wheat. 389.

Tar was, as an article used in the building and equipment of ships, contraband in 1779.

The Bird (1903), 38 Ct. Cl. 228.

"Of the continental writers, Hautefeuille contends for the absolute rule limiting contraband to such articles as are in their nautre of first necessity for war, substantially exclusively military in their use, and so made up as to be capable of direct and immediate use in war.