5 6 ginally a term of municipal law, came to be applied to a trade in certain articles carried on by the subjects of a Neutral Power with the ports of a belligerent State; and whether the use of the term in the Treaty of Southampton was suggested by the fact, that belligerent Powers had been long accustomed at the outset of war to forbid, by Declarations formally communicated to neutral Powers, all trade with the ports of their enemies in certain articles of merchandise; or that Neutral Powers were beginning, in pursuance of treaty-engagements, to prohibit their own subjects by public Proclamation from transporting over sea certain articles of merchandise in time of war to the ports of belligerent States. The more probable opinion would seem to be, that the various Treaties which were concluded amongst the maritime Powers of Europe on the subject of Contraband of War in the first half of the seventeenth century, were entered into with the object of regulating an acknowledged Right on the part of every belligerent State to interfere with the trade of neutral subjects to the enemy's ports, and of restraining the exercise of that Right within just limits; and that the engagements on the part of neutral States not to permit their Subjects to transport over sea certain articles of merchandise to the enemy's country were auxiliary Treaty of to that object. That the term Contraband, as emton of 1628. ployed in the Treaty of Southampton, was intended to denote articles of merchandise forbidden under the Proclamation of a belligerent Power to be carried to an enemy's ports, may fairly be inferred from the Southamp 5 This seems to be the earliest treaty in which the phrase 'Marchandises de contrebande' occurs. 6 Instances of such declarations on the part of England will be found in Camden, anno 1591 and 1597. Grotius enumerates various instances of similar declarations on the part of other Powers in a note appended to Lib. III. c. 1. § 5. 1. De Jure Belli et Pacis. fact, that a Proclamation was issued by King Charles I. on 31 Dec. 1625, shortly after the signature of that Treaty, which in accordance with its provisions purported "to declare that all ships carrying corn or other victuals, or any munition of war, to or for the King of Spain, or any of his subjects, shall and ought to be esteemed as lawful prize." clamation 123. It was recited in this Proclamation "that First Prowhilst the King of Spain continued in terms and of King courses of hostility, it was neither agreeable with Charles I. the rules of policy or Law of Nations to permit the said King of Spain or his subjects to be furnished or supplied with corn, victuals, arms, or provisions for his shipping, navy, or army, if the same can be prevented. The King accordingly, with the advice of his Privy Council, formally notified to all manner of persons of all conditions, that shall send or carry into Spain, Portugal, Burgundy, or any other the said King of Spain's countries, or dominions, any manner of grain or other victuals, or any manner of provisions to serve to build, furnish, or arm, any ships of war, or any kind of munition for the war, or materials for the same, being not of the nature of mere merchandise, that, as it is lawful for his Majesty, being a Monarch and Prince Sovereign, and as other kings in like cases have already used to do, he will not only authorise his own admirals and captains of his own ships of war, serving on the seas, but will also allow and approve all other his subjects to arm their ships at their will, and with them to impeach and arrest all ships that shall sail, either out of the East ports, or out of the Low Countries, or from any other ports, with intention. to pass Spain, Portugal, Burgundy, or any other the King of Spain's countries or dominions, or to any the King of Spain's ships, being on the seas, having on Second Proclamation of 1626. board any such grain, victuals, or provisions of war, or furniture for shipping, or materials for the same; and the same to bring into the next good port, there to be ordered as goods duly forfeited for the benefit of his Majesty, where his Majesty's ships shall arrest the same, and to the benefit of such others, as being not in his Majesty's wages shall by their travel and adventure have stayed and arrested such ships and goods prohibited"." In the following year (4 March 1626) a second Proclamation of a more special character was published by the same Monarch, entitled "a Proclamation to prevent the furnishing the King of Spain and his subjects with provisions for shipping, or munition for the war, and with Victuals." The purport of the previous proclamation having been recited in the preamble, the second proclamation goes on to declare that "his Majesty intending to remove all pretext of ignorance or other exception which may be taken against the proceedings of his judges and officers, with any the subjects of his friends, confederates, or allies, who shall hereafter offend in the premises, has thought fit, by these presents to make further declaration, as well of the species or kinds of the things so prohibited as of the penalties to be suffered by the parties delinquent in supplying the enemies with the same prohibited things. Concerning therefore those kinds wherewith his Majesty may not suffer his said enemies to be furnished, his Majesty does by these presents publish and notify, that he holdeth these things following to be of that quality and condition, videlicet, ordinance, armes of which was contraband of war. 8 Rymer, Fœdera, Tom. XVIII. p. 856. Robinson's Collectanea Maritima, p. 63. 7 It appears under this proclamation that private ships equally with public ships of war were authorised to capture neutral vessels carrying merchandise, all sortes, powder, shott, match, brimstone, copper, iron, cordage of all kindes, hempe, saile, canvas, danuce pouldavis, cables, anchors, mastes, rafters, boate oars, balcks, capraves, deale board, clap board, pipe staves, and vessels, and vessel staffe, pitch, tarr, rosen, okam, corne, graine, and victualls of all sortes, all provisions of shipping, and all munition of warr, or of provisions for the same, according to former declarations and acts of State, made in this behalfe in the time of Queen Elizabeth, of famous memorie.'" This Earliest is probably the earliest catalogue in extenso of in extenso. articles of merchandise deemed contraband of war, for it does not clearly appear that the articles prohibited had been specifically set forth in the former declarations of Queen Elizabeth. On the contrary, it seems probable, from the writings of Dr. Zouch 10 and Albericus Gentilis", that the judgments of the Admiralty Courts in the reign of that Queen had 9 The earlier treaties of 1604, 1614, 1615, which are to be found in Dumont's Traités, Tom. V. do not specify in detail the articles of merchandise prohibited to be carried to enemy's ports. 10 Dr. Zouch in his Treatise on Fetial Law, first published in 1634, refers to several disputes on the subject of contraband of war between Queen Elizabeth and Foreign Princes, and amongst others, to the dispute with Spain as to tobacco being an article of provision, and consequently contraband of war. The Spanish Prize Courts declared tobacco to be an article of provision, and accordingly confiscated a British ship which was carrying a cargo of tobacco to the Low Countries; whereupon Queen Elizabeth granted Letters of Reprisal to the owners of the ship and cargo against the com- Albericus Gentilis, in his ship laden with a general cargo Catalogue first contributed to give precision to the catalogue of bona prohibita. What was the penalty of carrying such prohibited goods is thus set forth in the sequel of King Charles's second Proclamation: "And therefore, if any person whatsoever, after three months from the publication of these presents, shall by any of his Majesty's own ships, or the ships of any of his subjects authorised to that effect, be taken sailing towards the places aforesaid, having on board any of the things aforesaid, or returning thence in the same voyage, having vented or disposed of the said prohibited goods, his Majesty will hold both the ships and goods so taken for lawful prize, and cause them to be ordered as duly forfeited, whereby as his Majesty doth put in practice no innovation, since the same course has been held, and the same penalties have been heretofore inflicted by other States and Princes, upon the like occasions, and avowed and maintained by public writings and apologies, so now his Majesty is in a manner enforced thereto by proclamations set forth by the King of Spain and the Archduchess, in which the same and greater severity is professed against those, that shall carry or have carried without limitation the like commodities into these his Majesty's dominions." It would appear from both the above proclamations, that the usage of Princes was relied upon in evidence of the Right of a belligerent to impose penalties on neutral merchants for giving aid to an enemy by carrying munitions of war to his ships or his dominions. It will be important therefore to consider what that usage of Princes was at the commencement of the seventeenth century. leges norunt Angli, quas sequuntur alias et canonicas illas non norunt, quæ exulant etiam ex Anglia.". 12 Rymer, Fœdera, Tom. XVIII. p. 856. Robinson's Collectanea Maritima, p. 63. |