même temps, ne seront point détenus, ni empêchés de continuer leur voyage. One result of the Armed Neutrality of 1780 was to lay the foundation of a Common Concert amongst the Continental Powers on the subject of Contraband of War, although such concert could only take effect amongst the Powers which were parties to the Treaties. and Declarations 70; for it was not attempted on occasion of either of the Aimed Neutralities of 1780 or 1800 to set aside the treaty-engagements as to Contraband of War, which existed between the Powers, which were parties to either Armed Neutrality, respectively and Great Britain; on the contrary, there were express stipulations that in the matter of Contraband, each State should adhere to its existing engagements with other States. It is consistent therefore with the Custom of contracting which prevails amongst the European Powers, that the same Nation should have different Conventions on the subject of Contraband of War with different Nations. "Hence it arises, that the catalogue of Contraband has varied very much," as observed by Lord Stowell, "and sometimes in such a manner as to make it very difficult to assign the reason of the variations, owing to particular circumstances, the history of which has not accompanied the history of the decisions"." view. $138. The opinion of Grotius has already been re- Bynkerferred to upon the question, what we may lawfully do shoek's to those who are not our enemies and yet supply our enemies with certain things72. Bynkershoek, in considering the same question at the interval of more 70 The Declarations of Prussia on the subject of Contraband of War will be found in Martens, III. p. 247; and that of Austria in Martens, III. P. 258. 7 The Jonge Margaretha, than a century73, questions the opinion of Grotius, that there is " an intermediate class of articles of promiscuous use, which a belligerent may intercept on their way to his enemy, if he cannot defend himself except by intercepting them, under the obligation of making restitution," on the ground that no belligerent can be expected to judge equitably between himself and a neutral merchant as to the existence of such necessity, as will warrant him in intercepting the goods of the latter, whilst the practice of Nations does not affirm any such distinction. Bynkershoek contends that there is a Common Law of Nations, founded upon reason and usage, and that whilst reason suggests that we should be friends in an equal manner to our friends, although they should be enemies to each other, the Usage of Nations in such matters may be gathered from the perpetual tenor of the conventions and declarations of Sovereign Princes. Dixi," he says, " ex perpetua quodammodo consuetudine, quia unum forte alterumve pactum, quod a consuetudine recedit, jus gentium non mutat" But Bynkershoek, in discussing the practice of Holland, justifies an Edict of the States General, published on 31 Dec. 1657, during a war with the Portuguese; by which, after forbidding articles Contraband of War to be carried to Portuguese ports, they go on to prohibit ship timber and naval stores being conveyed to Portugal, on the ground that they had nothing to fear from the Portuguese except by sea, and that the Portuguese could not carry on the war without supplies of ship timber. He justifies with equal inconsistency analogous Edicts published by the Dutch on 5 Dec. 1652 against the British, and 66 73 Bynkershoek's Quæstiones Juris Publici were published in 173774 Quæstiones Juris Publici, L. I. c. 10. 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 75 Droit des Gens, L. III. c. 7. § 112. Spanish 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." § 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. 11. $ 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. Ortolan78, 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 79. 142. In the conflict of authority among text- Practice 77 Des Droits et Des Devoirs des Nations Neutres, Tit. VIII. § 5. Art. 4. c. 6. 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. |