country. In the treaty of commerce concluded with Denmark in 1742, pitch and tar were also declared contraband, together with rosin, sail cloth, hemp, and cordage, masts, and ship timber. Thus, as to this matter there is no fault. to be found with the conduct of the English, except where it contravenes particular treaties; for in law these things. are now contraband, and have been so since the beginning of the present century, which was not the case formerly, as appears by ancient treaties, particularly that of St. Ger-main concluded with England in 1677; the fourth article of which expressly provides that the trade in all these goods shall remain free, as well as in every thing relating to human nourishment, with the exception of places besieged or blockaded."

In order to determine whether such a revolution in the

Law of con

law of contraband really took place in the beginning of the traband according to Grotieighteenth century, as is supposed by Valin, we must re- us. cur to the preexisting law on this subject as recognized by the earlier public jurists. Grotius, whose writings exercised an influence so powerful on the usage and opinions of the age succeeding that in which he wrote, in treating of this question, distinguishes between those things that are useful for the purposes of war, those which are not so, and those which may be used indiscriminately in war and in peace, such as money, provisions, and naval stores. The first he prohibits neutrals from carrying to the enemy; the second he permits; the third he sometimes prohibits and sometimes permits according to the circumstances of the war. "For if I cannot defend myself without seizing articles of this nature which are being sent to my enemy, necessity gives me the right to seize them, as we have already explained elsewhere, under the obligation of restoring them, unless there be some other reason supervening to prevent me." This other reason causa alia," is after

I Valin, ib.

wards explained by an example "as if I besieged a town if I held a port in a state of blockade, and the enemy was on the point of surrendering, or of making peace," &c.m

The opinion of Grotius as to the third class of commodities does not appear to consider them as contraband, but proceeds upon the ground of pure necessity on the part of the capturing belligerent. He does not state the seizure to be lawful on account of any supposed illegal conduct in the neutral in attempting to carry articles of promiscuous use, not bound to a port besieged or blockaded, when the seizure is made with the mere view of annoying or reducing the enemy, but solely when made with a view to our own preservation or defence, under the pressure of that imperious and unequivocal necessity which breaks down. the distinctions of property, and revives upon certain conditions the original right of using things as if they were in common. This necessity he had previously explained in his second book, (cap. ii. § vi,) and in the above recited passage he refers expressly to that explanation. In sections 7, 8 and 9, (lib. ii. cap. ii.) he lays down the conditions annexed to this right of necessity, 1. It shall not be exercised until all other possible means have been used. 2. Nor if the right owner is under a like necessity. 3. Restitution shall be made as soon as possible. In his third book, recapitulating what he had before said, Grotius fur

m In tertio illo genere usus ancipitis distinguendus erit belli status. Nam si tueri me non possum nisi quæ mittuntur intercipiam, necessitas, ut alibi exposuimus, jus dabit, sed sub onere restitutionis, nisi causa alia accedat. Quod si juris mei executionem rerum subvectio impedierit, idque scire potuerit qui advexit, ut si oppidum obsessum tenebam, si portus clausos, et jam deditio aut pax expectabatur, tenebitur ille mihi de damno culpa dato, ut qui debitorem carceri exemit, aut fugam ejus in meam fraudem instruxit: et ad damni dati modum res quoque ejus capi, et dominium carum debiti consequendi causa quæri poterit Si damnum nondum dederit sed dare voluerit, jus erit rerum retentione eam cogere ut de futuro caveat obsidibus, pignoribus, aut alio modo. (Grotius, de Jure B. ac P. Ib. iii. cap. iv. no. 3, 5, 6, 7.)

ther explains this doctrine of necessity, and confirms the interpretation we have put upon the above texts, showing that, with the exception of a place actually besieged or blockaded, they merely refer to such a necessity as exempts from all general rules.

Bynkershoek, in commenting upon the above passage of Opinion of Grotius, evidently understands it as permitting the seizure Bynkershoek. of things of promiscuous use, in case of such necessity only, and then under the obligation of restitution. He states that the usage of nations, both as deduced from treaties to be carried into effect in case of war, and from ordinances enacted during war, in general prohibited as contraband only such commodities as are exclusively useful for the purposes of war. He concludes that the mate

rials out of which contraband articles are formed are not contraband. "If," says he, "all materials are prohibited out of which something may be made which is fit for war, the catalogue of contraband goods will be immense; for there is hardly any kind of material out of which something, at least, fit for war, may not be fabricated. The interdiction of these amounts to a total prohibition of commerce, and might as well be so expressed and understood." He qualifies this general position by stating that it may sometimes happen that materials for ship building are prohibited "if the enemy is in great need of them, and cannot well carry on the war without them." On this ground he justifies the edict of the States General of 1657, and that of 1652 against the English, as exceptions to the general rule that materials for naval construction are not contraband." He also states that "provisions are often excepted" from the general freedom of neutral commerce "when the enemies are besieged by our friends or are otherwise pressed by famine."o

Of Heineccius.

Of Zouch.

Heineccius, writing about the same time with Bynkershoek, states that the cotemporaneous usage of nations, as proved by treaties, included in the list of contraband, not only munitions of war, but naval stores and provisions. He seems toplace the right of intercepting these latter articles upon the same ground of necessity with Grotius.P

Zouch, who is quoted by Heineccius, and who wrote in the middle of the seventeenth century, merely copies with a slight variation the above passage from Grotius on the subject of articles of promiscuous use, which he agrees with him in authorizing to be seized on the same ground of necessity. Whilst, on the other hand, Sir Leoline Jenkins, writing in 1674 to king Charles II, respecting the case of a Swedish vessel laden with naval stores, states, that it was "not probable that Sweden hath suffered or allowed in any treaty of theirs with Spain, that their own native commodities should be reputed contraband. These goods, therefore, if they be not made unfree by being found in an unfree bottom, cannot be judged by any other law than by the general law of nations; and then I am humbly of opinion that nothing ought to be judged contraband by that law in this case, but what is directly and immediately subservient to the uses of war, except it be in the case of besieged places, or of a general notification made by Spain to all the world, that they will condemn all the pitch and tar they meet with."r

The only fair inference from the preceding authorities would seem to be that the alteration in the law of contraband, as asserted by belligerents, of which Valin speaks, had already taken place long before the period he assigns to it, but the authority of the new rule thus introduced was

P Heineccius, de Nav. ob Vect. Merc. Vetit. Comm. cap. i. § xiv. 9 Zouch, Jur. et Jud. Fecialis, pars ii. § viii. No. 7. Aliæ sunt quæ in bello vel extra bellum usum habent, ut pecuniæ, commeatum, naves, quas etiam, si earum subvectio deditionem, quæ expectatur, impediri poterit, intercipere licet.

Life and Correspondence of Sir L. Jenkins, tom. ii. p. 751.

still contested by those neutral states whose interests were affected by the prohibition of their accustomed trade in their native productions. This was more especially the case with the Baltic powers as to naval stores. S

In the famous case of the Swedish convoy determined in the English court of admiralty in 1799, Sir William Scott states "that tar, pitch, and hemp, going to the enemy's use are liable to be seized as contraband in their own nature, cannot, I conceive be doubted under the modern law of nations; though formerly, when the hostilities of Europe were less naval than they have since become, they were of a disputable nature, and perhaps continued so at the time. of making that treaty," (i. e. the treaty of 1661 between Great Britain and Sweden which was still in force when he was speaking,) "or at least at the time of making that treaty which is the basis of it, I mean the treaty in which Whitlock was employed in the year 1656: for I conceive that Valin expresses the truth of this matter when he says: 'De droit ces choses,' (speaking of naval stores,)' sont de contrebande aujourd'hui et depuis le commencement de ce siècle, ce qui n'étoit pas autre fois néanmoins;' and Vattel the best recent writer upon these matters, explicitly admits amongst positive contraband, les bois et tout ce qui sert à la construction et à l'armement de vaisseaux de guerre.' Upon this principle was founded the modern explanatory article of the Danish treaty, entered into in 1780, on the part of Great Britain by a noble Lord (Mansfield) then secretary of state, whose attention had been peculiarly turned to subjects of this nature. I am therefore of opinion that although it might be shown that the nature of these commodities had been subject to some controversy in the time of Whitlock, when the fundamental treaty was con

of Sir W. Scott, in the case of the Swedish con

voy.

See the negotiations between Cromwell and the Swedes in 1656, (Whitlock's Memoirs, 625-638,) and between the Dutch and the Swedes, (Thurloe's State Papers, vol. iv. p. 589.)