on 9 March 1689 against the French. He cites these Edicts indeed as exceptions which prove the rule, on the ground that the Dutch, having forbidden all trade in Contraband of War generally, go on to forbid these articles specially to be carried by neutrals to the enemy's country. But in thus citing the practice of the Dutch, he holds it to be lawful for a belligerent, under special circumstances, to forbid other articles besides what are Contraband of War to be carried to the enemy; and he accordingly admits a class of things, which if not at all times Contraband, may become Contraband under circumstances. There would thus seem to be no substantial difference between the views of Bynkershoek and those which Grotius advocated. § 139. Vattel, on the other hand, having stated Vattel. that neutral Nations ought to enjoy perfect liberty to trade in ordinary goods which have no relation to war, as the belligerent is not authorised by the care of his own safety or the necessity of self defence to prevent the importation of such goods into the enemy's country, goes on to say, that "commodities particularly useful in war, and the importation of which to an enemy is prohibited, are called Contraband goods. Such are arms, ammunition, timber for shipbuilding, every kind of naval stores, horses, and raw provisions in certain junctures, when we have hopes of reducing the enemy by famine." It will be seen from the above passage that Vattel holds that a belligerent may rightfully prohibit a neutral to carry to the enemy anything which may be useful to him in war, and that all articles so prohibited become Contraband of War. § 140. Italian jurists, such as Lampredi and Azuni, Italian and recognise no other source of law as to Contraband of Spanish 75 Droit des Gens, L. III. c. 7. § 112. French War than the treaty-engagements of particular Nations, coupled with the usage of other Nations, conforming themselves by Comity to the practice of those particular Nations under their treaty-engagements. D'Abreu, on the other hand, and other Spanish authors, agree that neutrals are prohibited by every kind of law from carrying munitions of war to the enemy's country, and that a belligerent does only what is his Right in capturing such articles on their way to the enemy's ports; but they hold that a neutral may rightfully carry provisions to any but besieged or blockaded places: and in support of this latter position D'Abreu refers to the Treaty of 1650, concluded with the Dutch, the Treaty of 1667 concluded with the English, and the Treaty of Commerce concluded with the Emperor in 1725. "From what we have said," he concludes, "it follows that a belligerent may justly capture vessels which are conveying arms and munitions of war to the enemy, and that those vessels which convey provisions to them, ought to be protected from violence, excepting when such provisions are being conveyed to a besieged or blockaded place 76 " § 141. Valin, amongst the older French writers, holds that provisions are not Contraband of War by the Law of Nations, except they are being carried to besieged or blockaded places; but he admits that naval stores have by the usage of Nations come to be regarded as Contraband, and that munitions of war may be rightfully captured by a belligerent under any circumstances, if they are being carried to the dominions of the enemy. Amongst the more recent French writers who have treated professedly of Neutral Commerce in time of war, M. de Hautefeuille occupies a 76 Tratado Juridico-Politico sobre Pressas de Mar, Cap. II. § 15. D'Abreu expressly bases his opinion as to provisions upon the treaties between Spain and various European Powers. more advanced position than Valin was content to take up, in restraining the exercise of belligerent right, when he maintains that there is only one class of articles which are properly Contraband of War; namely, objects which are both necessary and exclusively useful for belligerent purposes, and which are directly available for such purposes without undergoing any change. He excludes naval stores altogether from the list of contraband". M. Ortolan 78, on the other hand, holds that munitions of war and supplies of all sorts, which serve directly and exclusively for the purposes of war, are absolutely and necessarily Contraband of War, whilst other articles, which are useful in peace but can also be adapted to the purposes of war, may, under particular circumstances, be declared Contraband; on the other hand he maintains that provisions can never be considered Contraband of War, unless they are being carried to a blockaded place. With regard to the catalogue of Contraband articles, M. Ortolan considers that the list must necessarily vary with the application of science to the purposes of war. In this respect he agrees with Lord Erskine, who, in the course of the debate in the House of Lords, on the Orders in Council issued in 1808, observed, that the King may make new declarations 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, shifting from time to time, make the law shift with them 7. § 142. In the conflict of authority among text- Practice 79 Lord Erskine's Speech on March 8, 1808. 10 Cobbett's 78 Diplomatie de la Mer, L. III. Parliamentary Debates, p. 958. of British Prize Courts. to enable a navy to move by sea. Horses 82 may accordingly be prohibited with justice to be conveyed by a neutral merchant to the ports of a Continental Power, whilst naval stores may by parity of reason be with justice prohibited to be carried to the country of an Insular Power. On the other hand, horses will be useless appendages to a fleet, whilst naval stores will be equally unserviceable to land forces. There are without doubt certain articles, which all Nations have agreed in practice to regard as unlawful for neutral merchants to convey by sea to the dominions of a belligerent Power, and such articles, if captured upon their voyage, are by all Courts declared to be lawful Prize of War to the captors. If however it should be desirable in the interests of International Commerce, that some attempt should be made to render the law of conditional Contraband less vague, the opinion, which Sir Leoline Jenkins submitted to King Charles II, in regard to a cargo of pitch and tar, which had been captured and confiscated by the Spaniards, may be worthy of attention. "Nothing," said that eminent civilian, "ought to be judged contraband by the Law of Nations, but what is directly and immediately subservient to the uses of war, except it be 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." If a Belligerent Power at the commencement of a war should notify to all Neutral Powers what are the articles of ambiguous use (ancipitis usus) which it intends to confiscate, if they should be intercepted by its cruisers in the course of transport on the High Seas to the enemy's dominions, neutral merchants would have a warning 82 Russia has never allowed list of Contraband in any of her horses to be enumerated in the treaty engagements. analogous to that, which is conveyed to them by the Notification of a blockade, after which Notification a belligerent Power is held to be entitled by the Law of Nations to capture and confiscate all vessels and cargoes, which attempt to trade with a blockaded port. As an instance however of the difficulties which are in the way of Nations coming to any common agreement, as to what articles shall be conditionally Contraband of War, Mr. Robert Ward refers to the case of Bulls' Hides, as being goods "which are in themselves seemingly a very innocent article of traffic, and in the American war Neutrals might, for a long time, have been safely permitted to supply them to Spain. But when the floating batteries, destined for the destruction of Gibraltar, were fitting at Algeziras, and it was known that Hides were to be the chief article of defence to be used in that famous attack, I have no doubt that a ship loaded with Hides, and destined for that port of equipment, with a knowledge that they were then wanted, might very justly have been stopped, and even confiscated 83 " British bunals. § 144. The general doctrine of the British Prize General Courts on the subject of Contraband of War is to be doctrine of gathered from the decisions of those Courts during Prize trithe wars of the first French Revolution. In the recent war of 1854-56 with Russia there was hardly any occasion for the subject of Contraband of War to be discussed in any British Court, seeing that the Allied Powers placed all the ports and coasts of Russia both in the Baltic and in the Black sea under Blockade, and the proceedings in the British Prize Courts were instituted for the most part in cases of neutral commerce, to punish attempts to 83 Ward's Essay on Contraband, London, 1801, p. 248. |