of war, "and also timber for ship-building, tar or rosin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted." The article then goes on to provide, that "whereas the difficulty of agreeing on the precise cases, in which alone provisions and other articles, not generally contraband, may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise, it is further agreed that whenever any such articles, so becoming contraband, according to the exist ing law of nations, shall, for that reason, be seized," etc., the owners thereof shall be paid their value, etc. (Merlin, Repertoire, verb. Prise Maritime, § 3, art. 3; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 24; Wheaton, Hist. Law of Nations, pp. 115, 126-134, 375-401; Valin, Comm. sur l'Ord, liv. 3, tit. 9; Phillimore, On Int. Law, vol. 3, §§ 243, et seq.; Wildman, Int. Law, vol. 2, pp. 222, et seq.; Manning, Law of Nations, pp. 283, et seq.; Ortolan, Diplomatie de la Mer, liv. 3, ch. 6; Pistoye et Duverdy, Traité des Prises, tit. 6, ch. 2, sec. 3; Heffter, Droit International, § 160; Lampredi, Commerce des Neutres, pt. 1, § 8.)

§17. The numerous treaties to which the United States have been parties, and which contain any stipulations respecting contraband, with the single exception of the one just referred to with England, in 1794, confine the term to arms and munitions of war, and in the early ones, naval stores are, in express terms, excluded from the list. The more modern treaties between European powers, are not calculated to throw much light upon this subject. The declarations of the French and English governments, at the commencement of the war with Russia, in 1854, except contraband of war from the articles to which impunity is accorded, but they contain no new definition of contraband. But the British order, in council of February 18th, 1854, issued in anticipation of the declaration of war, prohibits from being exported or carried coastwise," all arms, ammunition and gun powder, military and naval stores, and the following articles, being articles which are judged capable of being converted into, or made useful in increasing the quantity of military or naval stores, that is to say, marine engines, screw propellers, paddle

wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler plates, fire bars, and every article or any other component part of an engine or boiler, or any article whatever, which is, or can, or may become applicable for the manufacture of marine machinery." Although this order, and its subsequent modification, was probably not intended as a fresh declaration of contraband of war, yet it was evident, from the character of the order itself, and from answers given by the ministers in the house of commons, that the parts and elements of steam machinery, and also coals, were to be regarded as articles ancipitis usus, not necessarily contraband, but liable to be considered so, if they were to be applied to the military or naval uses of the enemy. A Swedish ordinance, of April 8th, 1854, section fifth, enumerates as contraband of war, all kinds of arms, munitions of war, military stores, saddles, bridles, aud other manufactured articles, immediately applicable to warlike purposes. (U. S. Statutes at Large, vol. 8, passim; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 24; Edinburg Review, No. 203, July, 1854; Ortolan, Diplomatie de la Mer, tome 2, ch. 6; Heffter, Droit International, § 160.)

§ 18. Again, if we recur to the decisions of prize courts, although we shall find less discordancy, perhaps, than in the other sources of international law, we nevertheless shall encounter a diversity of sentiment, on some points, which it would be vain to attempt to reconcile. Even in the same country, at different periods, the decisions have been various and contradictory. Thus, in England, Sir Leoline Jenkins, the judge of admiralty in the reign of Charles II., 1674, in the case of a Swedish vessel, laden with naval stores, already referred to, decided that such commodities as pitch, tar, and naval stores, except in case of besieged places, ought not to be judged contraband; while Sir William Scott condemned naval stores as contraband, even when bound to a mercantile port only, as "they may then be applied to immediate use in the equipment of privateers, or may be conveyed from the mercantile to the naval port, and there become subservient to every purpose to which they could have been applied, if going directly to a port of naval equipment." The same authority sustained the orders and instructions to English cruisers, to

sieze all neutral vessels laden with corn, flour, meal, and other provisions, bound to ports of France, upon the ground that by the modern law of nations, all provisions are to be considered contraband, and, as such, liable to confiscation, whenever the depriving the enemy of these supplies is one of the means to be employed in reducing him to terms. (Dalloz, Repertoire, verb. Prises Maritimes, sec, 3, art. 2; Merlin, Repertoire verb. Prise Maritime, § 3, art. 3; Pistoye, et Duverdy, Des Prises, tit. 6, ch. 2, sec. 3; Life and Cor. of Sir L. Jenkins, vol. 2, p. 751; Wheaton, Hist. Law of Nations, p. 130; Wheaton. Elem. Int. Law, pt. 4, ch. 3, § 24; The Charlotte, 5 Rob. Rep., p. 305; The Richmond, 5 Rob. Rep., p. 325; The Neptunus, 3 Rob. Rep., p. 108.)

§ 19. As already stated, it is not our present intention to attempt to reconcile conflicting opinions and decisions, or to deduce, from any process of reasoning, the rules of an universal law applicable to contraband of war. But we will endeavor to state what has been decided to be contraband by the prize courts of Europe and of the United States, wherein the courts are generally agreed, and wherein they have differed in opinion. It is, perhaps, of as much importance to know what has been, and is likely to be, administerd as the law, in the courts of the principal commercial states, as to know what ought, in theory, to be established as the conventional law of nations. The liability to capture can only be determined by the rules of international law, as interpreted and applied by the tribunals of the belligerent state to the operations of whose cruisers the neutral merchant is exposed. (Phillimore, On Int. Law, vol. 3, §§ 251, et seq.; Duer, On Insurance, vol. 1, p. 634; Wildman, Int. Law, vol. 2, pp. 110, et seq.; Manning, Law of Nations, pp. 301, 302; Heffter, Droit International, §§ 159, 160.)

§ 20. It is universally admitted, as already remarked, that all instruments and munitions of war are to be deemed contraband, and subject to condemnation. This rule embraces, by its terms, and by fair construction, all ordnance and arms of every description, balls, shells, shot, gunpowder, and articles of military pyrotechny, gun-carriages, amunition-waggons, belts, scabbards, holsters, all military equipments and military clothing. Any vessel, evidently built for warlike purposes, as gun and mortar boats, and destined to be sold

for such use, is clearly liable to confiscation under the same rule. To this list is to be added all articles, manufactured or unmanufactured, which are almost exclusively used for military purposes, as machinery for manufacturing arms, and saltpetre, and sulpher for making gunpowder. (Garden, De Diplomatie, liv. 7, §6; Phillimore, On Int. Law, vol. 3, § 229; Duer, On Insurance, vol. 1, p. 635; Bynkershoek, Quaest Jur. Pub., lib. 1, cap. 10; Grotius, de Jur. Bel. ac Pac, lib. 3, cap. 1, §5; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 24; Vattel, Droit des Gens, liv. 3, ch. 7, § 112; Chitty, Com. Law, pp. 444-449; Law of Nations, pp. 119-128; Heffter, Droit International, § 110; Bello, Derecho Internacional, pt. 2, cap. 8, §4; Riquelme, Derecho Pub. Int., liv. 1, tit. 2, cap. 15; Hautefeuille, Des Nations Neutres, tit. 8, sec. 2; Merlin, Repertoire verb. Prise Maritime, § 3, art. 3; De Cussy, Droit Maritime, liv. 1, tit. 3, § 14; Lampredi, Commerce des Neutres, pt. 1, §9; Dalloz, Repertoire verb. Prises Maritimes, sec. 3, art. 2.)

§ 21. It is an established doctrine of the English admiralty, that all manufactured articles that in their natural state are fitted for military use, or for building and equipping ships of war, such as masts, spars, rudders, wheels, tillers, sails, sail-cloth, cordage, rigging and anchors, are contraband in their own nature, to the same extent as munitions of war, and that no exception is admitted in their favor, unless created by express provisions of a treaty. Since the introduction of steam, as a motive power, in ships of war, the British prize courts would probably, upon the same principle, condemn as contraband all marine engines, screw propellers, cylinders, shafts, boilers, boiler plates, tubes, fire-bars, and every component part of a marine engine or boiler, and every article suitable for the manufacture of marine machinery. (Duer, On Insurance, vol. 1, p. 635; The Charlotte, 5 Rob. Rep., p. 305; The Neptunus, 3 Rob. Rep., p. 108; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 24; Edinburg Review, No. 203, July, 1854; Phillimore, On Int. Law, vol. 3, § 234; Polson, Law of Nations, p. 63; Wildman, Int. Law, vol. 2, p. 212.)

§ 22. Articles in a rough state, which may be used for military and naval purposes, may, or may not, be contraband, according to their nature and destined use, as inferred from

their immediate destination. Thus, pitch, tar and hemp, destined to the enemy's use, are generally held to be contraband in their nature, but where they are the produce of the neutral country from which they are exported, and are the property of its subjects or citizens, they are exempt from confiscation, except when they are exclusively and immediately destined to warlike use. Ship-timber, in a rough state, is not in se contraband, but it may become so from its particular character, as masts and spars, or from the character of its port of destination. Copper is not generally contraband, but if in sheets, adapted to the sheathing of vessels, it is condemned. Hemp is more favorably considered than cordage. Rosin is not generally contraband, but is condemned if going to a port of naval equipment. Iron itself is treated with indulgence, but if of such a form as to make it suitable for military or naval purposes, and its immediate destination is for such use, it cannot claim the benefit of exemption. The same rule would probably be applied to all unwrought materials for ship building, and for the construction of marine machinery. Since the introduction of steam as the motive power in ships of war, the question has been much discussed in Europe, whether coals are to be considered as contraband. They would seem now to properly belong to the same class as ship-timber, tar, pitch, and other unwrought materials for ship building and naval stores. In the recent war between the allies and Russia, the English cruisers stopped coals on their way to an enemy's port on the Black sea, though it appears, from an answer already referred to, given in the house of commons by Sir James Graham, that they would be regarded by British cruisers as one of the articles ancipitis usus, not necessarily contraband, but liable to detention under circumstances that warrant suspicion of their being destined to the military or naval uses of the enemy Ortolan first expressed the opinion that coals might, or might not, according to their intended use, be classed as prohibited articles; but he afterward corrected this statement, and concluded that they never can, under any circumstances, become contraband of war. This view of the question is ably advocated by Hautefeuille. (Polson, Law of Nations, p. 63; Duer, On Insurance, vol. 1, p. 636; Heffter, Droit International, § 160; Wheaton, Elem. Int.