Usage of the six- tury. Gentilis. retenir selon l'estimation raisonnable, qui en sera faite par nostre dit admiral ou son lieutenant." § 125. It seems to have been the established usage of Europe in the middle of the sixteenth century for belligerent Powers to prohibit all merchants from carrying munitions of war to the ships or dominions of their enemies, and to confiscate all vessels laden with such munitions, if taken on the High Seas on their Albericus way to the enemy's country. Albericus Gentilis, in discussing the lawfulness of the capture of an English ship, taken by Sardinian and Maltese cruisers on a voyage to Constantinople with a general cargo including some barrels of gunpowder, and which was in judgment before a Spanish Court of Admiralty, observes, that "the capture was justifiable by the Civil Law, by the Canon Law, by the Law of Nations, and by Conventions between England and Spain 19." Thus the Civil Law had made it a capital offence for any one to supply Barbarians with oil, wine, or any munition of war 20. The Canon Law had similarly forbidden all Christians to supply any munitions of war to the Saracens 21. The practice of England on the other hand, in regard to the merchants of the Hanse Towns, in not permitting them to carry provisions to Spain, was evidence of the Law of Nations, whilst the Treaty of 1604 concluded between Philip III of Spain, the Archduke Albert and his wife Isabella, and James I of England, bound each of the contracting parties not to supply or consent to its subjects supplying to the enemies of the others any soldiers, provisions, money, instruments or munitions of war, or warlike aid of any kind whatsoever 23. Most writers refer the origin of belligerent prohibitions against the trade of neutrals with the enemy to the Confederation of the Hanse Towns; and after the subject of Contraband of War came to be formally regulated by international compacts, the Hanse Towns were amongst the foremost of the Maritime Powers to enter into Conventions with other Powers. § 126. Certain writers 24 have contended that the whole law of Contraband of War rests upon Conventions, and that there is no Common Law of Nations in such matters. "In the absence of treaties," says Klüber. Klüber, "the Natural Right of Nations, which establishes complete liberty of commerce, is in force, and all merchandise ought to be presumed free." Heffter Heffter. with justice combats this view as being at variance with historical truth, and observes that the declarations of the Armed Confederations of the Baltic Powers in 1782, and in 1801, contain nothing in support of this theory on the contrary those Powers were not opposed to the principle of "contraband of war," but only to the arbitrary application of it; and they advocated a common agreement amongst Nations as to details. If the facts of history may be appealed 23 Item quod neutra partium præstabit nec præstari per aliquos suos vassallos subditos incolasve consentiet auxilium, favorem, vel consilium directe nec per indirectum, tam per terram quam per mare et aquas dulces, nec subministrabit nec subministrari consentiet per dictos vassallos, incolasve et subditos Regnorum suorum, milites, commeatus, pecunias, instrumenta bellica, munitiones, vel aliquodvis aliud aux ilium ad bellum confovendum 24 Lebeau, Code des Prises, to in elucidation of the controversy, it would appear that the Nations of Europe claimed in the sixteenth century to capture on the High Seas jure belli the vessels and goods of the subjects of neutral Powers, which were on their way to an enemy's ports, on one or other of these grounds 25, either that the trade was in contravention of some treaty-engagement with the neutral Power, whereby it had bound itself not to give aid or to consent to its subjects giving aid to the enemy of the belligerent, or that the belligerent had prohibited the trade by an express notice to the neutral, that under the particular circumstances of the war certain articles could not be considered in the nature of mere merchandise, being things required by the enemy to enable him to maintain hostilities. It had been usual from a very early period to introduce a clause into treaties, whereby either of the contracting parties bound itself not to give aid to Early Con- the enemies of the other. Thus in one of the earliest Treaties between England and France (A. D. 1303), it was provided: "Item. Accordé est Accordé est que l'un ne receptera ne soustendra ne confortera, ne sera confort, ne ayde aus ennemis de l'autre ; ne ne souffera qu'ils aient confort, secours ne ayde, soit de gent d'armes, ou de vitailles ou d'autres choses queles qu'eles soient, de ses terres ne de son poiar"." But even in such cases discussions sometimes arose as to the meaning of the word aid, which was used in the treaties, whether or not it extended to any goods which were merchandise of usual traffic to other countries. Thus in the discussions between Sir Ralph Sadler, the Envoy of King Henry VIII, and the Government ventions in restraint of neutral trade. 25 Pactis enim Principes sæpe id egerunt in casum belli, sæpe etiam edictis contra quoscunque, flagrante jam bello. Bynkershoek, Quæst. Jur. Publ. L. I. c. 10. of Scotland (A. D. 1543), respecting the detention of some Scotch vessels by the English Government, it was contended on behalf of the English Crown, that as the vessels were carrying victuals to French ports, it was a breach of treaty, for that the Scotch were bound not to minister any kind of aid to the enemies of England. To which the Scotch Government made answer, that there was no other cargo on board those said vessels than fish, which was a common article of traffic between the two countries in time of peace, and that they could not perceive by the treaties, that merchants being subjects of either realm might not use their accustomed traffic with such merchandise, as they have been in use to transport to other countries. The English Envoy replied, that "fish could not be deemed to be victuals, and being laden in the said ships to be transported to France, which was in open hostility with England, was a certain kind of aid ministered to the enemies of England, and therefore a lawful and just cause to stay the said ships"." Thus much for Treaty-Engagements in restraint of the freedom of neutral trade in time of war. On the other hand, Albericus Gentilis 2 lays great stress on the fact that Queen Elizabeth had notified to the Hanse Confederation not to carry provisions into Spain, before she captured their vessels; and the Protestants are represented by De Thou to have replied to the complaints of the Portuguese, by reason of twenty-five Portuguese vessels having been captured, bound with cargoes of corn to Spanish ports, "Jure belli tales spoliari naves, quippe rem edictis et constitutionibus regiis pro 27 Sir Ralph Sadler's Letters and Negotiations in Scotland, p. 381. 28 28 Hispanicæ Advocationes, L. I. c. 20. p. 92. of the Placaarts hibitam esse 29." The Right of a belligerent Power States Ge- to prohibit by notice or proclamation the trade of sixteenth neutrals with the enemy's country was so absolutely century. maintained in practice, that we find the States neral in Practice of General of the Low Provinces, during their war with Spain in 1599, issuing a Placaart, which they made known to all Kings and Nations, whereby they forbade all merchants to carry to the Spaniards provisions or any other goods whatsoever, under the penalty of being treated as enemies 30. The historian informs us that King Henry IV of France directed his subjects to submit to this Placaart for six months, and that the other Powers of Europe passed it over in silence. But it would appear from a letter of Sir Henry Nevile to Mr. Secretary Cecil, that the English Government held this Placaart of the States General to be "an effect of great necessity, which had no law 31" § 127. The general practice of Belligerents, as Powers at gathered from the Placaarts and Ordinances issued sixteenth by various Powers in the latter part of the sixteenth century. and in the early part of the seventeenth century, the end of shows that Belligerent States held themselves entitled of Right, if they considered it to be necessary to secure a successful issue to the war, in which they were engaged, to interdict neutrals from furnishing any supplies to their enemy. This practice had the support of Publicists, who held that the Right of the Belligerent in such a case was a Natural Right of a public character, which must prevail over the pri 29 Loccenius, De Jur. Maritimo, L. I. c. 9. Thuani Historia, L. 64. 30 Grotius, Hist. de Rebus Belgicis, L. VIII. Per edictum vetant populos quoscunque alios commeatus resve alias in Hispa niam ferre: si qui secus fecerint, ut hostibus faventes, vice hostium futuros. 31 This Letter bears date, Paris, 15 May 1599, O.S, and is found in Winwood's Memorials, Vol. I. p. 23. |