enemy has been maintained by Great Britain against France, and by France and Great Britain against Russia, and by the United States of North America against the Confederate States. Vattel, in commenting upon this Treaty, appears not to have fully considered it in its bearing upon the practice of blockade, as maintained by the States General in their Resolutions of 26 June 163052, for he speaks of it as if it were simply an agreement between the two Powers to attack every ship bound to or coming from any port of France, and to declare it lawful prize; and when he goes on to say that "Sweden and Denmark, from whom some ships had been taken, entered into a convention on the 17th March 1693, for the purpose of maintaining their rights and procuring just satisfaction, and that Great Britain and the States General, being convinced that the complaints of the two Crowns were well founded, did them justice," he has not weighed carefully the recitals in the Convention which was concluded between the two Baltic Powers on this occasion. It would appear from these recitals that the special grievances, of which the two Baltic Powers complained, were not the capture and condemnation of their vessels bound to or from the ports of the enemy, but the capture of vessels under convoy, and the capture of vessels notwithstanding their passports were in perfect order, and in conformity with the treatyengagements between the two Baltic Powers and the respective belligerent Powers. It may well have been the fact that Great Britain and the United Provinces, as belligerent allies, were guilty of a breach of their treaty-engagements with the Baltic 51 Droit des Gens, L. III. c. 7. ritima, p. 158. § 112. 53 Dumont, Traités, Tom. VII. 52 Robinson's Collectanea Ma- Part II. p. 325. Opinion of Powers in the case of certain vessels which had been captured and condemned contrary to their treatyengagements, and upon the complaint of the two Crowns did them justice, without the allied Powers being open to the imputation, that, by attempting to prevent all commerce with France, Great Britain and Holland were guilty of a grievous violation of international Law 5. § 134. The state of the question as to Contraband of War at the conclusion of the seventeenth century had been relieved of much ambiguity by the treaties, under which the various Powers of Europe, which had any pretensions to be considered maritime Powers, not merely placed on record their deliberate recognition of a catalogue of contraband articles, but agreed that all other merchandise not comprised in that catalogue, as between the contracting parties, might be freely transported to enemy-ports, except when such ports were besieged or blockaded. We find accordingly that when a Spanish privateer in 1674 seized a Swedish vessel bound to Rouen with a cargo of pitch and tar, the property of a British subject, and the Spanish Admiralty Court was proceeding to condemn the cargo as Contraband of War, Spain being at such time at war with France, Sir Leoline Jenkins gave his opinion to King Charles II, that " there was no pretence to make pitch and tar belonging to British subjects Contraband; these commodities, not being enumerated in the 24th article of the Treaty made between Great Britain and Spain in 1667, are 54 The second article of the Treaty of Whitehall, whereby it was agreed that all vessels captured on their way to French ports, and all vessels laden with merchandise destined to France, wheresoever seized, should be treated by the competent tribunals as prize of war, seems to have been merely a Conventional affirmance of the doctrine, that the inception of a voyage to a blockaded port constituted a breach of the blockade. consequently declared not to be Contraband in the article next following." Sir Leoline Jenkins then proceeds to consider by what law the question should be decided, in case the benefit of the treaty-engagements between Great Britain and Spain could not be claimed in behalf of British goods laden in a Swedish bottom; and he says, "These goods, if they be not made unfree by being found in an unfree bottom, cannot be judged by any other law but by the general Law of Nations; and then I am humbly of opinion, that nothing ought to be judged contraband by that Law in this case, but what is directly and immediately subservient to the uses of war, except in the case of besieged places, or of a general notification made by Spain to all the world, that they will condemn all the pitch and tar they meet with." It would appear from the above passage that the opinion of this eminent civilian was, that there were three classes of goods contraband by the Law of Nations. 1. Goods directly and immediately subservient to the purposes of war, if they were being transported over sea to any place within the dominions of the enemy: 2. Goods of all kinds, if they were being carried to a besieged or blockaded town: 3. Goods which the belligerent had, by public notice, forbidden all merchants alike to carry to the enemy, and which, notwithstanding such notice, were being transported over sea to the enemy's country. Utrecht of § 135. The Treaty of Utrecht (11 April 1713) Treaty of may be considered as the first great international 1713. recognition of the more lenient practice, which had been inaugurated by Spain and France at the Peace of the Pyrenees, and to which Great Britain had given in her complete adherence by the Treaty of St. Germain en Laye. The provisions of the latter 55 Life and Correspondence of Sir Leoline Jenkins, Vol. II. p. 751. Treaty having ceased to be operative by reason of the war of the Spanish succession, the Dutch being in that war the allies of Great Britain and of the Germanic Empire and Portugal, whilst Spain was the ally of France, the links of the European Compact upon the subject of Contraband of War required to be reknit together upon the settlement of Peace. Accordingly, amongst the numerous Treaties concluded at Utrecht on the part of France with the Powers arrayed against her, a Treaty of Navigation and Commerce with England will be found, in which the question of contraband and free goods was dealt with in a still more explicit manner than in the previous Treaty of 1677 ART. XVIII. This liberty of Navigation and Commerce shall extend to all kind of Merchandises, excepting those only which follow in the next Article, and which are signified by the name of Contraband. ART. XIX. Under this name of Contraband or Prohibited Goods, shall be comprehended Arms, great Guns, Bombs, with their Fusees, and other things belonging to them, Fire Balls, Gunpowder, Match, Cannon Ball, Pikes, Swords, Lances. Spears, Halberds, Mortars, Petardes, Granadoes, Saltpetre, Muskets, Musket Ball, Helmets, Head Pieces, Breast Plates, Coats of Mail and the like kinds of Arms proper for arming Soldiers, Musket rests, Belts, Horses with their Furniture, and all other Warlike Instruments whatever. ART. XX. These Merchandises which follow shall not be reckoned among prohibited Goods, that is to say, all sorts of Cloaths and all other Manufactures woven of any Wooll, Flax, Silk, Cotton, or any other Materials whatever, all kinds of Cloathes and Wearing Apparel, together with the Species whereof they are used to be made, Gold and Silver as well coined as uncoined, Tin, Iron, Lead, Copper, Brass, Coals 55, as also Wheat and Barley and any other kind of Corn, and Pulse, Tobacco, and likewise all manner of Spices, Salted and Smoked Flesh, Salted Fish, Cheese and Butter, Beer, Oils, 55 Carbones Focarii. Schmauss. Corp. Jur. Gent. Acad. p. 1344. Wines, Sugars, and all sorts of Salt, and in general all Provisions which serve for the Nourishment of Mankind and the Sustenance of Life. Furthermore all kinds of Cotton, Hemp, Flax, Tar, Pitch, Ropes, Cables, Sails, Sail Cloths, Anchors and any parts of Anchors, all Ship Masts, Planks, Boards and Beams of what Trees soever and all other things proper either for Building or Repairing Ships, and all other Goods whatever which have not been worked into the Form of any Instrument or thing prepared for War by Land or by Sea, shall not be reputed Contraband, much less such as have been already wrought and made up for any use, all which shall wholly be reckoned among free Goods, as likewise all other Merchandises and Things which are not comprehended and particularly mentioned in the preceding Article, so that they may be transported and carried in the freest manner by the Subjects of both Confederates even to places belonging to an Enemy, such Towns and Places being only excepted as are at that time besieged, blocked up round about, or invested 56. gagements. § 136. The provisions in the Treaty of Utrecht British were renewed almost in identical language in the Treaty-enTreaty of Navigation and Commerce concluded between Great Britain and France at Versailles on 26 Sept. 178657. The engagements however of this Treaty were terminated by the war of the French Revolution, it being the rule of Great Britain to regard all treaty-privileges as annulled by the outbreak of war between the contracting parties; and any difficulty in observing this rule, which might have been raised by the dethronement of the Bourbon Dynasty, was removed by the Decree of the French Convention published on 1 March 1793, whereby it declared that "all treaties of alliance or of commerce existing between the former French Government and the Powers with whom the Republic is at war, are annulled." No subsequent treaty on the subject of Utrecht, London, 1715. Vol. I, p. 131. 56 This English version of the Treaty of Commerce and Navigation is copied from the Compleat History of the Treaty of 57 Martens, Récueil de Traités, IV. p. 169. |