"The character of the port is immaterial, since naval stores, if they are to be considered as contraband, are so without reference to the nature of the port, and equally, whether bound to a mercantile port only, or to a port of military equipment. The consequences of the supply may be nearly the same in either case. If sent to a mercantile port, they may be applied to immediate use in the equipment of privateers, or they 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."[171]
[Sidenote: Controversy between England and America on Contraband
Provisions.]
The doctrine of the English Admiralty Court, as to provisions becoming contraband, was adopted by the Government in the instructions given to their cruisers, on the 8th June, 1793, directing them to stop all vessels laden wholly, or in part, with corn, flour, or meal, bound for France, and to send them into a British port to be purchased by Government; or to be released on condition that the master should. give security to dispose of his cargo in the ports of some country in amity with his Britannic Majesty. This was resisted by the Neutral Powers, Sweden, Denmark, and especially the United States.
This order was justified upon the ground, that by the modern law of nations, all provisions are to be considered as contraband, and as such liable to confiscation, wherever depriving an enemy of these supplies is one of the means intended to be employed for reducing him to terms. The actual situation of France, (it was said,) was notoriously such, as to lead to the employing this mode of distressing her by the joint operations of the various powers engaged in the war; and the reasonings of the text writers applying to all cases of this sort were more applicable to the present case, in which the distress resulted from the unusual mode of war adopted by the enemy himself, in having armed almost the whole laboring class of the French nation, for the purpose of commencing and supporting hostilities against almost all European Governments; but this reasoning was most of all applicable to a trade, which was in a great measure carried on by the then actual rulers of France, and was no longer to be regarded as a mercantile speculation of individuals, but as an immediate operation of the very persons who had declared war, and were then carrying it on against Great Britain.
This reasoning was resisted by the neutral powers—Sweden, Denmark, and especially the United States. The American Government insisted, that when two nations go to war, other nations who choose to remain at peace, retain their natural right to pursue their agriculture, manufactures, and ordinary vocations; to carry the produce of their industry for exchange to all countries, belligerent or neutral, (as usual;) to go and come freely without injury or molestation; in short, that the war, (amongst other) should be for neutral purposes, as if it did not exist; the only exceptions being trade in implements of war, or to a place blockaded by its enemy. That there were sufficient treaties to decide what were implements of war. Corn, flour, and meal, were not of the class of contraband.
The result of this controversy was a treaty with the United States in 1794. It confined contraband to military and naval stores; and with respect to provisions not generally contraband, it was agreed,
"That whenever such articles became contraband by the Law of Nations, and should for that reason be seized, the same should not be confiscated, but the owners thereof should be speedily and completely indemnified; and the captors, or in their default, the Government under whose authority they act, should pay to the masters or owners of such vessels the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage incident to such detention."
The instructions of June, 1793, had been revoked previously to the signature of this treaty; but before its ratification, the British Government issued, in April, 1795, an order in council, instructing its cruizers to stop and detain all vessels laden wholly, or in part, with corn, flour, meal, and other provisions, and bound to any port in France, and to send them to such ports as might be most convenient, in order that such corn, &c., might be purchased on behalf of Government.
This last order was subsequently revoked, and the question of its legality became the subject of discussion in a mixed commission, constituted under the treaty, to decide upon the claims of American citizens, by reason of irregular or illegal seizures of their vessels and cargoes, under the authority of the British Government.
A full indemnification was allowed by the commissioners, under the 7th article of the Treaty of 1794, to the owners of vessels and cargoes seized under the orders in council, as well for the loss of a market as for the other consequences of their detention.