St. Germain, concluded with England in 1677, the fourth article of which expressly provides, that the trade in all these articles shall remain free, as well as in everything necessary to human nourishment, with the exception of places besieged or blockaded." In the case of The Maria (1 Rob. 340), it was held that pitch, tar, as well as hemp, and whatever other materials go to the construction and equipment of vessels of war, are contraband by the modern law of nations; though formerly, when the hostilities of Europe were less naval than at the present day, they were of a disputable nature. Where, in the case of The Zacheman (5 Rob. 152), a cargo of tar from Sweden to Rochefort was brought into a British port "for inquiry as to the fact of property, whether it was going on the private account of the neutral merchant, or under a contract with the government, by which those arsenals of the enemy are more usually supplied," and with a view to pre-emption (substituted by the treaty with Sweden for the right of forfeiture), the government having refused to purchase, and some delay having in arisen, Lord Stowell allowed three weeks' consequence demurrage to the owner, to be paid by the government, adding, "I wish the Admiralty may be apprized, that under the treaty which now exists, matters of this kind must not be kept subject to long negociation, since it is not less expedient for the purposes of justice, than for the interests of all parties concerned, that a prompt answer should be returned, as to the disposition of government to avail itself of the right of preemption."

Provisions (munitions de bouche) constitute a cargo which has presented very great difficulty in the deci

sion of questions as to contraband. Locennius (De Jure Maritimo, lib. 1, c. 4, n. 9), and some other authorities referred to by Valin, consider provisions as generally contraband; but Valin (Com. ii. 264) and Pothier (De Proprieté, No. 104) insist that they are not so, either by the law of France or the common law of nations, unless carried to besieged or blockaded places. Vattel, as we have seen, admits that they become so on certain occasions, when there is an expectation of reducing the enemy by famine. The National Convention of France, 9th May, 1793, decreed, that neutral vessels, laden with provisions, destined to an enemy's port, should be arrested and carried into France; and one of the earliest acts of England, in that war (Instructions of 8th June, 1793), was to detain all neutral vessels going to France, and laden with corn, meal, or flour. It was insisted, on the part of England (Mr. Hammond's Letter to Mr. Jefferson, September 12, 1793; and his Letter to Mr. Randolph, April 11, 1794), that, by the law of nations, all provisions were to be considered as contraband, in the case where depriving the enemy of those supplies was one of the means employed to reduce him to reasonable terms of peace; and that the actual situation of France was such as to lead to that mode of distressing her, inasmuch as she had armed almost the whole labouring class of her people for the purpose of commencing and supporting hostilities against all the governments of Europe. This claim on the part of England was promptly and perseveringly resisted by the United States; and they contended that corn, flour and meal, being the produce of the soil and labour of the country, were not contraband of war, unless carried to a place actually invested.

M

(Mr. Jefferson's Letter to Mr. Pinckney, September, 7th 1793, and Mr. Randolph's Letter to Mr. Hammond, May 1st, 1794.) The treaty of commerce with England, in 1794, in the list of contraband, stated, that whatever materials served directly to the building and equipment of vessels, with the exception of unwrought iron, and fir planks, should be considered contraband and liable to confiscation; but the treaty left the question of provisions open and unsettled, and neither power was understood to have relinquished the construction of the law of nations which it had assumed. The treaty admitted, that provisions were not generally contraband, but might become so according to the existing law of nations, in certain cases, and those cases were not defined.

It was only stipulated, by way of relaxation of the penalty of the law, that whenever provisions were contraband, the captors, or their government, should pay to the owner the full value of the articles, together with the freight, and a reasonable profit. The United States government has repeatedly admitted, that, as far as that treaty enumerated contraband articles, it was declaratory of the law of nations, and that the treaty conceded nothing on the subject of contraband. (Mr. Pickering's Letter to Mr. Monroe, September 12, 1795; his Letter to Mr. Pinckney, January 16, 1797; Instructions from the Secretary of State to the American Minister to France, July 15, 1797; Kent, Commentaries, 1, 141.)

The doctrine of the English Admiralty on the subject of provisions being considered contraband, is thus laid down by Lord Stowell, in The Jonge Marga"In 1673, when many unwar

retha (1 Rob. 192).

rantable rules were laid down by public authority re

specting contraband, it was expressly asserted by Sir R. Wiseman, the then king's advocate, upon a formal reference made to him, that by the practice of the Euglish Admiralty, corn, wine and oil were liable to be deemed contraband. 'I do agree,' says he, (reprobating the regulations that had been published, and observing that rules are not to be so hardly laid down as to press upon neutrals, 'that corn, wine and oil will be deemed contraband.' These articles of provisions then were at that time confiscable, according to the judgment of a person of great knowledge and experience in the practice of this court. In much later times, many other sorts of provisions have been condemned as contraband. In 1747, in The Jonge Andreas, butter, going to Rochelle, was condemned; how it happened that at the same time cheese was more favourably considered, according to the case cited by Dr. Swabey, I do not exactly know; the distinction appears nice; in all probability the cheeses were not of the species intended for ships' use. Salted cod and salmon were condemned in The Jonge Frederick, going to Rochelle, in the same year. In 1748, in The Johannes, rice and salted herrings were condemned as contraband. These instances show that articles of human food have been so considered, at least where it was probable that they were intended for naval or military use.

"I take the modern established rule to be this, that generally they are not contraband, but may become so under circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it."

The courts of the United States have sanctioned the same rule in the case of The Commercen (2 Gall.

269). "Provisions, the growth of the enemy's country, owned by the enemy's subjects, carried by a neutral to the enemy's army or navy operating in another neutral country, are contraband, and cannot earn freight for the vessel." "It makes no difference in

such a case that the enemy is carrying on a distinct war in conjunction with his allies, who are friends of the captor's country, and that the provisions are intended for the supply of his troops engaged in that war, and that the ship in which they are transported belongs to subjects of one of these allies." (1 Wheat. 382.)

Cheese, fit for naval use, and going to a port of naval equipment, is contraband. In The Vrow Margaretha, a cargo of Dutch cheese was taken on a voyage from Amsterdam to Quimper. On the part of the captors it was contended, that a destination to Quimper must be considered as an actual destination to Brest, under a mask to protect these articles in their course to the naval arsenal of the enemy. Lord Stowell said, "I am not disposed to hold that these articles on this destination are so clearly contraband, though certainly very near it, as to preclude the claimant from giving further proof of the property. (6 Rob. 92.) In The Zelden Rust, a cargo of Dutch cheese was taken in an asserted destination from Amsterdam to Corunna. An affidavit was produced, describing the cheese to be fit for naval stores, and such as is usually served on board French and Spanish ships of war. Lord Stowell said: "It certainly has been held by the court, that cheese going to a place of naval equipment, and fit for naval use, is contraband. Corunna is, I believe, a place of naval equipment in some degree; yet, from its vicinity to Ferrol,