Origin of the term Contraband. 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 1626 — Earliest 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 countryPlacaarts 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 1661Treaties 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 1656— Treaty 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 Bun, 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. 14452, 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 66 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.1 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- trade. The Spanish phrase is, 'Mercaderias de contravando.' D'Abreu, c. 11. 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 5 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. 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 6 Instances of such declara- 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"." 8 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 7 It appears under this pro- which was contraband of war. clamation that private ships equally with public ships of war were authorised to capture neutral vessels carrying merchandise, 8 Rymer, Fœdera, Tom. XVIII. p. 856. Robinson's Collectanea Maritima, p. 63. |