434 



CONTOUR CONTRACT. 



games at the circus in Rome and Constantinople, for 

 whose amusement both these emperors provided so 

 abundantly. They were, probably, distributed as 

 tickets of admission for the spectators, by the di- 

 rectors of the bands. The images of celebrated 

 men, which arc found upon them, are of little value 

 as portraits, because they do not appear to liave 

 been executed with care. 



CONTOUR. See Outline. 



CONTRABAND, IN COMMERCE; all goods and 

 wares exported from or imported into any country, 

 against the laws of said coimtry. There are, also, a 

 number of articles termed contraband of war which 

 neutrals may be prevented, by one belligerent, from 

 carrying to another. What is to be considered con- 

 traband of war depends upon existing treaties. 

 These, however, have not settled, with much preci- 

 sion, the articles embraced under this term. In- 

 deed, before the Consolato del Mare of the Italian 

 mercantile states, the subjects of many powers were 

 forbidden to furnish their enemies with arms. The 

 rule was afterwards established, that a belligerent 

 power might prevent neutrals from supplying its 

 enemy with munitions of war ; hence the name con- 

 traband (contra bannuni) was introduced. Subse- 

 quently, the term contraband was extended so as to 

 embrace articles out of which munitions of war were 

 made. All other articles, however, even such as 

 might be useful to the enemy, such as grain, wine, 

 provisions, money, &c., were allowed to pass free, a 

 few only being excepted, by particular treaties (as, 

 for instance, in the compact between France and 

 Spain, hi 1604, in the treaty between England and 

 Holland, in 1654, &c.) until very lately, when the 

 number of articles styled contraband of war has been 

 prodigiously increased. Many belligerent powers, 

 in the war which broke out near the end of the last 

 century, gave a partial and arbitrary construction to 

 the term for instance, Britain, and Russia, in 1794, 

 who wished to prevent neutral powers from supply- 

 ing France with corn ; and the might of Britain en- 

 abled her to enforce her own construction, which 

 made such articles, for example, as salted meat con- 

 traband, under the pretext that it could only be 

 intended for garrisons and ships' crews. " The 

 catalogue of contrabands," says lord Stowell, " has 

 varied very much ; sometimes in such a manner as to 

 make it difficult to -assign the reason of the varia- 

 tions, owing to particular circumstances, the history 

 of which has not accompanied the history of the de- 

 cisions. The king is bound to watch over the safety 

 of the state ; he may, therefore, make new declara- 

 tions of contraband, when articles come into use, as 

 implements of war, which were before innocent. 

 This is not the exercise of discretion over contraband. 

 The law of nations prohibits contraband, and it is the 

 usus bellici, which, shifted from time to time, make 

 the law shift with them. The greatest difficulty 

 seems to have occurred in the instance of provisions, 

 which have not been held, universally, contraband, 

 though Vattel admits that they become so on cer- 

 tain occasions, when there is an expectation of re- 

 ducing the enemy by famine. In modern times, one 

 of the principal criteria, adopted by the courts, for 

 the decision of the question, whether any particular 

 cargo of provisions be confiscable as contraband, is, 

 to examine whether those provisions be in a raw or 

 a manufactured state. Articles are treated with 

 greater indulgence in their native condition than 

 when they are wrought up for the convenience of the 

 enemy's immediate consumption." Of late, the prac- 

 tice of treating provisions as contraband of war, 

 when asserted at all, has been, undoubtedly, less 

 strict ; a proof that the belligerent was not entirely 

 confident of his right to confiscate. The belligerent 



has exercised the right of pre-emption only a right 

 of purchase with a reasonable compensation to the 

 individual whose property has been diverted, by the 

 act of the belligerent, from its original destination. 

 Every state determines for itself wliat articles sliall 

 be deemed contraband in the way of trade ; for the 

 most part, on the principle that nothing shall be im- 

 ported which the country itself produces in abun- 

 dance, and nothing exported but that which exceeds 

 its own consumption. See Smuggling. 



CONTRACT ; an agreement, or covenant between 

 two or more persons, in which each party Imuls him- 

 self to do or forbear some act, and each acquires a 

 right to wliat the other promises. Natural law re- 

 quires that if one person accepts from another a ser- 

 vice, he should render to him something in return, 

 whether this be expressly agreed upon, or only im- 

 plied from the nature of the undertaking. Mutual 

 promises of future good offices also are binding, at 

 least by the natural law, if one of the contracting 

 parties has thereby been induced to act ; for, if he 

 does not receive the thing stipulated for, he suffers 

 wrong. We may go further, and say, that confidence 

 hi promises is so essential to the existence of social 

 intercourse among men, that even the bare promise 

 of one of the parties, when given and received in 

 earnest, that is, with the idea of its being binding, is 

 not entirely destitute of the force of obligation. In 

 every state, it will be necessary to retain these prin- 

 ciples, since the idea of justice implanted in the 

 human mind should not be violated. It is the part 

 of legislation to provide for special cases, to establish 

 certain forms, and to fix, according to rules founded 

 upon experience, the effects of each promise ; also to 

 withdraw from certain contracts their natural obliga- 

 tion, or determine this in others, in wlu'ch it is uncer- 

 tain according to natural law. 



Such has been the course of the Roman law, which 

 by its consistency and justice in regard to contracts, 

 has obtained, on the continent of Europe, almost uni- 

 versal authority. In that law, at an early period, a 

 contract (contractus), in the proper sense of the 

 word, was an agreement binding on both parties. It 

 was required to be in a determinate form ; and there 

 was an equally determinate mode of impeaching it. 

 A contract was distinguished from a simple pact or 

 promise (pactum) ; and it was a fundamental doc- 

 trine, that a simple pact (pactum) would not entitle 

 one to maintain a legal action, but merely to raise an 

 objection in defence. The essential character of con- 

 tracts in the stricter sense, is founded on the circum- 

 stance that such a legal relation is necessary for the 

 most simple social intercourse, and imposes, accord- 

 ing to its nature, certain duties. The most simple of 

 these relations arise from a positive act, as the trans- 

 fer of a thing to be returned (contractus realis), in 

 which the object and extent of the obligation are de- 

 termined by the real benefit conferred. Such a con- 

 tract arises from delivering a thing, with or without 

 pay; as, for instance, a deposit, a mutuum, or a 

 pawn. A determinate form of agreement, however, 

 is not always necessary. Civil intercourse allows 

 another kind of contracts, in which the simple con- 

 sent of the parties gives obligation to agreements, 

 so that they may constitute the ground ofan action 

 (contractus consensualis). Such, according to the 

 Roman law, is sale, hire (as well the lending of a 

 thing as services done for money), partnership, an 

 accepted commission, and the contract for a fee farm 

 rent (emphyteusis). 



But the same obligatory power, and this is the 

 strictest sense, was allowed, also, to a verbal promise 

 given in a certain solemn form, called a stipulation 

 (contractus verbalis), as well as to a written obliga- 

 tion (contractus literate, chirographariut). The form 



