be suspended by an order of blockade, it is not affected by a blockade. To the same purport the Lords of Appeal in Prize Cases (the Judicial Committee of the Privy Council) decided in the case of the Franciska (30 Nov. 1855) that the Order in Council of 29 March 1854, under which "Russian merchant vessels in any ports or places of her Majesty's dominions should be allowed until the 10th day of May next, six weeks from the date hereof, for loading their cargoes and departing from such ports or places; and that such Russian merchant vessels if met at sea by any of her Majesty's ships should be permitted to continue their voyage, if on examination of their papers it should appear that their cargoes were taken on board before the expiration of the above term: Provided that nothing therein contained should extend or be taken to extend to Russian vessels having on board any officer in the military or naval service of the enemy, or any article prohibited or contraband of war, or any despatch of or to the Russian Government," gave to all Russian vessels which did not come within any of the specified exceptions, full liberty to sail in security to their port of destination, although such port might be in a state of blockade 95. licenses on $120. By the Law of Nations, "a belligerent may Effect of not concede to another belligerent, or take for himself, a blockade. the right of carrying on commercial intercourse prohibited to neutral Nations; and therefore no blockade can be legitimate that admits to either belligerent a 94 The Orion, Stewart's Reports, p. 506. In this case Sir A. Croke held that a license to an enemy protected him in egress from a port subsequently blockaded, as the nature of the trade afforded a presumption of 95 The Franciska, 10 Moore, freedom of commerce denied to the subjects of States not engaged in the war. The foundation of this principle is clear, and rooted in justice; for interference with neutral commerce at all is only justified by the right which war confers of molesting the enemy, all relations in the nature of trade being by war itself suspended." Such is the forcible language of Dr. Lushington in the case of the Franciska. To this principle the Lords of Appeal (the Judicial Committee) gave their full adhesion, and in applying it to the state of things arising out of the British orders in Council, issued at the commencement of the war with Russia, under which free ingress into Russian ports for a certain time was granted to Russian vessels sailing from ports in the British dominions, and free egress from Russian ports for a certain time was granted to Russian vessels bound with cargoes to British ports, they held that during such interval of time, as was covered by these Orders in Council, no valid blockade of the Russian ports in the Baltic could be established by the British fleet. It is obvious that so long as enemy-vessels are allowed by a belligerent Power freely to enter or to come. out of enemy-ports, the condition of things, which alone authorises a belligerent to interfere at all with the trade of neutrals does not exist, namely, the necessity of interdicting all communication by way of trade with the ports in question, in order to compel the enemy to submission. In arriving at the conclusion, that the British Orders in Council issued on this occasion granting for six weeks to enemy vessels free access to their ports of destination forbade the establishment of any blockade of the Baltic ports during such time by British 96 The Franciska, Spinks's Eccl. and Adm. Reports, II. p. 135. vessels, to the prejudice of neutral commerce, the Lords of Appeal made a distinction which is worthy of notice: "No doubt," they said, "ships of one belligerent at the outbreak of war, found in the ports of another, into which they have entered for peaceful purposes, with the expectation of the continuance of peace, form an exceptional class which has a strong claim to an indulgent exercise of the right of capture; and an express permission to such ships to enter their port of destination, though blockaded, might perhaps not affect the validity of the blockade. It might fall within the class of cases alluded to by the learned Judge of the Court below, of license granted in particular cases upon special grounds. Such a case is very distinguishable from one where a belligerent, with a view to the interests of his own commerce, permits enemies' ships to bring him cargoes from their own ports, though he at the same time insists on a blockade of such ports against neutrals 97." 97 10 Moore, P. C. p. 56. Origin of the term Contra band. CHAPTER VII. CONTRABAND OF WAR. Origin of the term Contraband - Application of the term to international trade-Treaty of Southampton of 1625-First Proclamation of King Charles I.-Second Proclamation of 1626Earliest Catalogue in extenso-Zouch on Fetial Law-Queen Elizabeth and the Envoy from Poland-Queen Elizabeth and the Hanse Towns-Albericus Gentilis-Klüber-Heffter-Early Conventions in restraint of neutral trade with an enemy's country— Placaarts of the States General in the sixteenth century-Practice of European Powers at the end of the sixteenth century-Practice of the seventeenth century-Doctrine of Grotius as to Contraband of war-Treaty of Westminster of 1654-Treaty of Paris of 1655 -Treaty of the Pyrenees of 1659-Treaty of Whitehall of 1661— Treaties of Breda and Madrid of 1677-Treaty of St. Germain-enLaye of 1677-Treaty of Whitehall of 1689-Opinion of Sir Leoline Jenkins-Treaty of Utrecht of 1713-British Treaty-engagements Concurrence of European Nations as to certain articlesBynkershoek's view-Vattel-Italian and Spanish Jurists-French Jurists-Practice of British Prize Courts-Practical difficulty of specifying articles conditionally contraband-General doctrine of British Prize Tribunals-British Treaty with United States of 1796 -Treaty Right of Preemption-Treaty of Westminster of 1656Treaty of Whitehall of 1661-Treaty of Orebro of 1812-Treaty of Upsal 1654-Equity as to conditional contraband-Ships under circumstances contraband of war-Transport, not sale of merchandise penal by the Law of Nations-Treaty-engagements between Prussia and the United States of America-Belligerents may not interfere with trade within the jurisdiction of a neutral State. § 121. Contraband is a term of positive law, and in its primary sense denotes something prohibited by Ban, or Edict. The word is probably of Italian origin, (Contrabbando',) as the earliest document in which any trace of it is extant is an Italian Charter of A. D. 1445%, in which the Latin equivalent Contrabannum is used in relation to a trade prohibited by the Sovereign Power of a State to its citizens in time of peace. The term is not employed by Grotius, the first edition of whose work, De Jure Belli et Pacis, was published in 1625; but it occurs in a Treaty of offensive and defensive alliance concluded at Southampton in that year, (17 Sept. 1625,) between King Charles I of England and the United Provinces of the Low Countries; from the language of which it would seem that the term Contraband had at that time a recognised acceptation amongst Nations, in reference to a branch of maritime trade, which was prohibited to merchants in time of war. "Toutes marchandises de contrebande, comme sont munitions de bouche, et de guerre, navires, armes, voiles, cordages, or, argent, cuivre, fer, plomb, et semblables, de quelque part qu'on les voudra porter en Espagne, et aux autres pays de l'obéissance du dit Roy d'Espagne et de ses adhérens, seront de bonne prise avec les navires et hommes qu'ils porteront.” Art. XX. tion of the 122. It would be a difficult task in the present Applica day to determine with precision the circumstances term to inunder which the word Contraband, which was ori 1 The Spanish phrase is, 'Mercaderias de contravando.' D'Abreu, c. II. 2 Item quod non permittant committentes contrabannum dicti salis, vel aliarum rerum in dictis locis tuto et secure permanere. Ducange, Gloss. vox Contrabannum. 3 The word Contraband does not occur in the Guidon de la + Dumont, Traités, Tom. V. ternational trade. |