CONTRABAND, a term denoting commodities the import or export of which is prohibited by law. With the development of neutrality (q.v.) it was extended to those commodities which the subjects of neutral States were forbidden to supply to bellig erents. These became known as "contraband of war." Under the British system contraband has been defined as "neutral property found on board ship either on the high seas, or in the territorial waters of either belligerent, which is by nature capable of being used to assist in, and is on its way to assist in, the naval or mili tary operations of the enemy" (see Parl. Pap. 19o9 [Cd. 4,554] p. 3). Speaking on this point in the House of Commons as long ago as 18o1 Sir William Grant, then solicitor general, declared that the distinction of contraband was artificial; there was no such distinction; all articles designed for and conducive to the advantage of the enemy were inadmissible to be freely conveyed and therefore contraband. Nevertheless, a distinction was drawn by Great Britain, adopting the classification propounded by Gro tius, viz.:—( ) absolute contraband, i.e., articles primarily adapted and used for purposes of war, e.g., arms, ammunition and materials for making the same, articles of military equipment, military and naval stores and the like; (2) conditional and occa sional contraband; i.e., articles anCiPitiS 11SUS, capable of use in peace or war, e.g., provisions, money, railway and transport ma terial, horses, hay, hemp and the like; such articles were only to be liable to seizure and condemnation if shown to be destined for the naval or military forces of the enemy or for a place of naval or military equipment belonging to or occupied by him. In declarations notifying neutrals, the Crown was entitled to extend or reduce the lists of both absolute and conditional contraband, subject to any restriction by treaty or international law.
The harshness of the doctrine of conditional contraband was in practice mitigated by the British practice of pre-emption.
With this view the United States and Japan substantially agreed. Continental opinion, on the other hand, was opposed to the doctrine of conditional contraband and sought to restrict contraband to articles of immediate warlike use. In practice, how ever, many Continental Powers when belligerents enforced rules of contraband even more severe than those under the British system. France, for instance, in her war with China in 1885 de clared rice bound for ports north of Canton absolute contraband although Great Britain refused to recognize this unless the rice was destined to a place of naval or military equipment (see Parl. Pap. 1885 [Cd. 4,359D• Spain in the Spanish-American War of 1898 claimed to include anything which the Government might determine as contraband; whilst Russia in the Russo-Japanese War of 1904 declared foodstuffs, fuel and raw cotton to be abso lute contraband whether bound for a military destination or not (see Parl. Pap. igoo [U. 2,348]). Seizures under this declara tion aroused strong remonstrances from both Great Britain and the United States which led to some revision whereby articles unless consigned to the belligerent Government or its administra tion, or to its armed forces, fortresses or naval ports, or con signed to agents or contractors for the naval or military authori ties, were exempt from capture.
In consequence of these differences of opinion and of practice, not only between different States but also in the practice of the same State at different times, according to whether it was neutral or belligerent, an attempt, which proved abortive, was made at The Hague Peace Conference of i9o7 to settle the vexed dis tinction between absolute and conditional contraband. Ultimately at the London Conference of go8—og after much discussion and many compromises an agreement found expression in the Dec laration of London. Three lists of articles were drawn up. By Art. 22 the articles therein described, viz., articles exclusively used in war, such as arms, etc., and some articles also used in peace, such as horses, might without notice be treated as absolute contraband. By Art. 23 articles exclusively used in war might be added to this list by declaration followed by notification to the Powers. By Art. 24 articles ancipitis usus, such as foodstuffs, fodder, clothing, money, vehicles, vessels, railway material, air craft, fuel, powder and explosives not specially prepared for use in war, barbed wire, horseshoes, harness, field-glasses and nautical instruments, might be treated as conditional contraband if shown to be destined to (I) the armed forces of the enemy, or (2) a Government department, i.e., either to enemy officials or to a contractor in the enemy territory who notoriously supplies arti cles of this kind to the enemy, or (3) to a fortified place belong ing to the enemy or to any other place serving as a base of operations. The latter phrase was, as Pitt Cobbett suggested it might be, interpreted by Germany in the World War to mean "a base of supply." By Arts. 33 and 36 where a belligerent had no seaboard, conditional contraband was liable to capture even though bound for a neutral port, if shown to be destined for the use of the armed forces or of a Government department. With this ex ception "the doctrine of continuous voyage" was wholly ex cluded in the case of conditional contraband, although by Art. 3o absolute contraband was liable to capture if destined to the territory belonging to or occupied by the enemy or his armed forces, and this whether directly or by transhipment or by sub sequent land transport. By Art. 27 articles not susceptible of use in war might not be declared contraband of war, and by Arts. 28 and 29 the articles therein described might not be declared con traband of war, including raw cotton, wool, silk, jute, flax, hemp and other raw materials of the textile industries and yarns of the same, rubber, metallic ores, paper, soap and articles serving exclusively to aid the sick and wounded. By Art. 37 a vessel carrying contraband with a hostile destination was liable to cap ture and condemnation throughout the whole of her voyage, but by Art. 38 this liability ceased with the deposit of the goods. By Art. 39 the contraband itself was liable to condemnation, but by Art. 4o the vessel was only liable to condemnation if the contra band amounted to more than one-half of the cargo. If the contra band were less than one-half, the vessel by Art. 41 was only liable to the costs and expenses incurred by the captor. By Art. 42 all other goods belonging to the owner of the contraband were liable to condemnation. Where the vessel was ignorant of the outbreak of war or of some declaration adding to or altering the existing lists, Art. 43 gave the captor the right of pre-emption of such part of the cargo as was contraband. With some notable excep tions these provisions were in substantial agreement with Anglo American doctrines and practice. It was these exceptions which caused the House of Lords to refuse to ratify the Declaration. Nevertheless upon the outbreak of the World War the Declara tion was adopted by all the belligerents, but with important modi fications. As, however, the war progressed the list of conditional contraband became merged in that of absolute contraband and the "free list" practically disappeared. Germany was the first to declare cotton absolute contraband. Rubber was declared abso lute contraband by Great Britain in Oct. 1914. Foodstuffs, how ever, remained in the British and German lists as conditional contraband. But with the application of the doctrine of continu ous voyage by the Allies, and the treatment of every Allied port by Germany as a base of supplies, continued adherence to this provision of the Declaration became impracticable. Accordingly by the British and French Orders of July 7, 1916, the Declara tion was formally abandoned and all commodities directly or indirectly of use to the enemy in the prosecution of the war were declared absolute contraband. Another innovation was the rejection by the British Prize Courts of the old rule which ex cluded the captor's evidence. Evidence "out of the ship's mouth," i.e., the evidence supplied by the ship's papers, was found in mod ern conditions to be insufficient. In lieu of this it has been sug gested that the system embodied in the treaty between Great Britain and Sweden of 1661, whereby the ship's papers should be officially certified at the port of export, should be substituted. But whilst it would protect the normal trade of a neutral, it would also protect an abnormal trade. Belligerents cannot be expected to permit neutrals to carry on an abnormal trade which is of direct assistance to the enemy and helps to prolong the war. Just as neutrals are entitled to supply either belligerent with all commodities at their own risk, so either belligerent may prevent such commodities reaching the other by blockade and the appli cation of the doctrine of continuous voyage. The right to declare any article of direct or indirect use to the enemy in the prosecu tion of the war appears to some to be a naval weapon conferring upon a belligerent the right to starve the civilian population. It was so regarded by Germany, and the German jurist, Dr. Sieve king, accepts the doctrine that the distress of the civil population is a legitimate and indeed the chief weapon of a modern belliger ent. But it is conceived that the chief aim of Great Britain was not to starve the civilian population. It was a return to her old principle stated at the head of this article, viz., to prevent corn modities which would be of use in the prosecution of the war from reaching the enemy. A belligerent will no more allow, for instance, jute and cotton from which high explosives may be manufactured to reach the enemy in the future than he allowed hemp and timber in the past. "In view of present conditions of both war and commerce," writes the American Charles Cheney Hyde, "a belligerent should enjoy the right to intercept and con demn all articles capable of assisting the enemy, even though con signed to neutral territory, if shown to be ultimately destined by land or sea to the domain of the enemy, and that irrespective of the final destination of ships which bear them on their way towards an intervening port." (H. H. L. B.) CONTRACEPTION : see BIRTH CONTROL.