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as in the case of nations ; and if, in the case of individuals, we are correct in not considering the rights of the belligerent party paramount, if we altogether deny the justice and propriety of the quarrelsome individual's treating the pacific individual in this way, we may properly take the same ground in regard to nations. We know that various objections may be raised to these suggestions ; but we have great confidence, that a full and minute examination of this subject, (such an examination as we are not now, for various reasons, permitted to go into,) would favor and confirm them.
It ought perhaps to be added, that the position, which requires the utter rejection of the whole doctrine of the right of blockade, is not wholly unsupported by the favorable sentiments of men, who stand high in public estimation as politicians and philosophers. We infer from various passages in his political writings, that such were the sentiments of Dr. Franklin. We know for certainty that he and Mr. Jefferson, (whose sentiments on neutral rights and other related subjects of public law seem to have been closely allied to those of Dr. Franklin,) participated in forming a treaty with Prussia, by the terms of which the right of blockade was abolished in respect to the parties to the treaty. Mr. Adams also was a signer to the treaty in question. This treaty may be regarded as an expression of the sentiments of these distinguished men in respect to the course, which they considered it right and proper for nations to pursue; particularly as we find them attempting to secure the same or equivalent provisions in the progress of other negociations.* The clause of the treaty, which relates to the subject before us, is as follows.-“ If one of the contracting parties should be engaged in war with any other power, the free intercourse and commerce of the sub
*Diplomatic Correspondence of the United States, Vol. II, p. 429..
jects or citizens of the party remaining neuter with the belligerent powers, shall not be interrupted. On the contrary, in that case as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch, that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other; and the same freedom shall be extended to persons who shall be on board a free vessel, although they should be enemies to the other party, unless they be soldiers in actual service of such enemy."*
OF ARTICLES CONTRABAND OF WAR.
A prolific source of irritation and dispute among nations, and one which neither treaties nor express stipulations have been able to close nor even greatly to diminish, is the doctrine of Contraband of war.—This matter furnishes so important a topic in the history of modern warfare and modern diplomacy, that it certainly demands some notice.
Under the head of contraband goods are usually included goods, that are particularly useful in war,
such as arms, ammunition, timber for shipbuilding, all kinds of
*Secret Journals of Congress. Foreign Affairs, Vol. IV.-See also Spark's Diplom. Correspondence of the Am. Revolution, Vol. IV, pp. 119, 155.
naval stores, horses, &c. Such are the expressions, which we find commonly employed in writers on national law; but obviously it is not easy to find any thing more indefinite, or more open to interminable difficulties. With no greater perversion, than has often been practically applied to the principles of blockade, this doctrine of contraband might be extended to every thing, excepting the acknowledged luxuries of life. It would require no great expense of plausible ingenuity to extend the doctrine to cows and sheep as well as horses, to include in it ship-bread as well as timber for the building of ships, and all sorts of clothing for sailors and soldiers, both in the raw material and when made up, as well as naval and military stores in the more common forms. Here, then, is an abundant subject of controversy.-Vattel lays it down, as a principle of the Law of nations, that provisions, in certain junctures are contraband.* But it is worthy of remark, that, in connection with this
very passage, he refers to a letter of the celebrated Pensionary De Witt, who takes different ground and acknowledges, that it would be contrary to the law of nations to prevent neutrals from carrying corn to an enemy's country. So that we have these two great names opposed to each other; but this is only one out of a multitude of instances, where both opinions and practice have come in conflict on this intricate subject.
The language of Martens on this subject seems clearly to imply, that he considered it exceedingly variant and unsettled. “The list of these merchandises, he says, commonly called contraband, has been differently composed in different treaties of commerce. Sometimes this list has been swelled out with merchandises, which are not evidently and unequivocally intended for warlike purposes, though they may be useful to the enemy, such
*Law of Nations, Bk. III, Chap. 7.
as ship timber, cables, hemp, coined money, corn, spirituous liquors, tobacco, provisions, &c.; and at other times, such merchandises have been expressly declared not contraband.” And in the next section, speaking of the right of confiscating contraband goods, and of the extension of the right to both vessel and cargo, he observes, that, where there are no treaties on the subject, the conduct of belligerent powers is extremely variant.* Chancellor Kent asserts, that the authorities vary in their attempt to define goods, denominated contraband of war, or are deficient in precision, and that the subject has long been a fruitful source of dispute between neutral and belligerent nations. †
Some attempts have been made, as above intimated, by Martens, towards settling this subject by means of treaties. But as they continually differ from each other in their specifications of what are to be regarded as contraband and what are not, no satisfactory deduction can be made from them, tending to establish a fixed and invariable rule. Some treaties recognize provisions, for instance, as liable to be pronounced contraband; others do not ; and one at least, the treaty between the United States and Prussia, already referred to, enters into an agreement binding upon the contracting parties, that no articles heretofore deemed contraband, shall hereafter be so deemed, so as to induce confiscation, or condemnation, and a loss of property to individuals. So that whether we endeavor to examine the doctrine of contraband by a reference to the customary authorities, or to obtain light upon it by the collation of treaties, we are still left entirely at a loss. Or perhaps the conclusion would be, from a joint regard to the speculations of writers and the practice of nations, that the maritime juris
*Martens' Law of Nations, Bk. VIII, §. §. 12, 13.
dictions and other authorities of each nation may establish a list of contraband for themselves; in other words, that there is no limitation whatever on a nation's option to increase or diminish the list of contraband, excepting the voluntary restriction of an express written convention with particular States. If this be the correct and tenable doctrine, it has been justly remarked, that “the law of nations, instead of being a stable rule, would fluctuate according to the caprice and force of the belligerent parties."* And yet if we may estimate the opinions of nations from their conduct, we shall see reasons for the inference, that they have sometimes so regarded it. On what other grounds, can we explain the extraordinary decree of the National Convention of France, 19th of May 1793, that all neutral vessels, laden with provisions, destined to an enemy's port, should be arrested and carried into France ? Or one of the earliest acts of England in the same war, authorizing her ships of war and privateers to detain all neutral vessels going to France, and laden with corn, meal, and flour? To maintain the right, as was done by those enlightened nations, of prohibiting neutral ships from carrying provisions, corn, meal, flour, &c. to each other, was assuming and acting on a latitude of construction, approaching very near to unlimited. Can we well say, that there is any restriction whatever on the number of contraband, if provisions are to be included in that number? Are corn, flour, rice, and other provisions, the bountiful gift of God to all his creatures and as necessary for their daily support as the air they breathe, to be pressed into the abhorred category of instruments of war?
It might properly be considered an open question, and Randolph's Letter to Hammond, Am. State Papers, Vol. II, P † See Pinkney's opinions delivered before the Commissioners ander the Treaty of 1794 ; Case of the Neptune.