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 restraint ventions in Treaties between England and France (A. D. 1303), it was provided: "Item. Accordé est que l'un ne of neutral trade. 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 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 28 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 Hispanicæ Advocationes, L. I. c. 20. p. 92. of the neral in sixteenth century. Placaarts hibitam esse 29." The Right of a belligerent Power States Ge- to prohibit by notice or proclamation the trade of neutrals with the enemy's country was so absolutely maintained in practice, that we find the States 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" Practice of the end of century. § 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 and in the early part of the seventeenth century, 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. 66 vate right of a merchant to carry on his trade. Jus commerciorum æquum est," writes Albericus Gentilis, "sed hoc æquius tuendæ salutis; est illud gentium jus, hoc naturæ est; est illud privatorum, hoc est regnorum 32" These views of the Publicists of the seventeenth century have been commented on by Azuni and Lampredi. The former The former says, "Publicists lay it down as a principle, that a Nation has a complete and perfect right to diminish indefinitely the forces of its enemy, to frustrate all the means which its enemy can employ to preserve or augment his forces, and even to prevent any other Nation from carrying on a commerce with its Enemy, which may increase his resources or his means of attack and defence 33" Lampredi writes thus: "It is permitted to friendly and neutral Nations to continue their trade in its full extent: the only restriction which war imposes upon their liberty in this respect is, that they observe strict impartiality between the belligerents; nevertheless a belligerent Nation may prevent the Commerce of Neutrals with the Enemy, from the moment that it considers it necessary for its own safety to do so." This practice may be said to have culminated in the Placaart of the States General of 1599, already referred to, by which they prohibited neutral merchants from carrying any goods whatever to Spanish ports; in other words, by which they placed all the ports of the King of Spain under an Interdict. On the other hand, if a neutral Nation did not acquiesce in the view of necessity, under which the Belligerent claimed a right to act in capturing the vessels and goods of the subjects of the neutral Nation, it was open to the latter to make 32 De Jure Belli, Comment. I. 33 Droit Maritime de l'Europe, § 4. T. II. c. 2. Art. 2. § 6. 34 Commerce des Neutres, c. I. the seven tury. Reprisals. Thus during the war between the States General and Spain, a Spanish cruiser captured a British vessel, which was bound to a Dutch port with a cargo of tobacco. The Spanish captors on this occasion maintained successfully before the Spanish Prize Court, that tobacco was rightly to be considered amongst victuals, inasmuch as by the use of tobacco the consumption of victuals might be prolonged. The English claimants on the other hand contended in vain that tobacco was not a nutritive plant, and that it had not been interdicted by the express words of the Spanish Proclamation. The judgment of the Prize Court was in favour of the captors. The English owner therefore made complaint to the King of England, who upon the advice of his Council, granted to the owner letters of Reprisal against the subjects of the King of Spain, in order that he might make good his loss 35. Practice of § 128. The application of the word Contraband for teenth cen- the first time in the Treaty of Southampton (1625) to articles which neutrals might not rightfully carry to an enemy's country in time of war, seems to be confirmatory of the fact, that the Right of a Belligerent to interdict by formal notice the trade of a Neutral in certain articles with the Enemy's country, was fully recognised in the early part of the seventeenth century. King Charles I thought it right, in pursuance of this Treaty, to issue a formal Catalogue in extenso of the articles which he intended not to allow to be carried to the enemies of England, for England had previously maintained against Spain, 35 Processes in the Court of the Admiralty of England, cited in Zouch, de Judicio inter Gentes, § 8. Part II. p. 132. Tobacco is specified amongst the articles, which were not to be regarded as contraband of war, in the treaty between Charles II of England and the States General, (1 Dec. 1674). Dumont, VII. Pars. I. p. 283. |