Contraband of War has ever been concluded between France and Great Britain. With regard to Spain and Great Britain, the Treaty of 1667 was confirmed and inserted word for word in the Treaty of Navigation and Commerce signed at Utrecht 9 Dec. 1713; which was renewed and confirmed by the Treaty of Versailles of 3 Sept. 1783; and by the first additional article of the Treaty of Madrid, signed on 28 Aug. 1814, all the Treaties of Commerce which subsisted between the two Nations previously to the year 1796 were ratified and confirmed 59. It would appear therefore that the provisions of the 24th and 25th articles of the Treaty of 1667 as to contraband and free merchandise are still in force 59. With regard to Sweden and Great Britain, the provisions of the Treaty of Whitehall (21 Oct. 1661) are still in force, having been renewed by the second article of the Treaty of Orebro (18 July 181260.) With regard to Denmark and Great Britain, the Treaty of 1670 with the explanatory article of 4 July 1780 as to contraband and free merchandise, was renewed by the seventh article of the Treaty of Kiel (14 Jan. 1814), and is still in force. With regard to Portugal and Great Britain, the Treaty of Rio Janeiro, 19 Feb. 1810, appears to have been the first and last Treaty in which the two Nations came to a common agreement on the subject of Contraband. By this Treaty, Great Britain and Portugal agreed to regard as Contraband not merely the articles included in the Catalogue of the Treaty of the Pyrenees, but generally all other articles that may have been specified as 58 Hertslet, Vol. II. p. 271. Martens, N. R. IV. p. 123. 59 Mr. Manning, in his Commentaries on the Law of Nations, p. 305, considers that there are no Treaties in force between Great Britain and Spain on the subject of Contraband. 60 Hertslet's Treaties, Vol. II. P. 337. 61 Hertslet, Vol. I. p. 229. Contraband in any former Treaties concluded by Great Britain or by Portugal with other Powers: but this Treaty ceased to be in vigour after 30 April 1836, by virtue of a notification made, on the part of Great Britain, in pursuance of the provisions of the 33d article 62; and no provision has been made on the subject of Contraband of War in the subsequent Treaty of Commerce concluded between Great Britain and Portugal on 3 July 184263. The Treaties between Great Britain and the United Provinces have not been renewed with the Netherlands, nor have the Treaties on the subject of Contraband, which formerly existed between Great Britain and Russia, been renewed, for all that was provided by the Treaty of Peace between Great Britain and Russia, signed at Orebro on 18 July 1812, was that the relations of friendship and commerce between the two countries shall be reestablished on both sides upon the footing of the most favoured Nations. The Treaty of Orebro was determined by the war of 1854-56; but there was a provision in the 32d article of the Treaty of Paris (30 March 1856), by which the commerce of the subjects of the contracting parties was reestablished on the footing of the treaty-engagements in vigour before the war, until they should be renewed or replaced by new Acts, and the subjects of all the contracting parties in all other matters were to be treated on the footing of the most favoured Nation". A subsequent 62 Hertslet, IV. p. 362. P. 413. 64 63 Ibid. VI. p. 598. N. R. III. p. 226. 65 V. Court of Admiralty in the case of the Quatre Frères 27 Nov. 1778, (Hay and Marriott's Reports, p. 171.) that the Treaty of Copenhagen, Art. XL. (11 July 1670) did not give to the Danes the privilege of Free Ship Free Cargo in time of war, which was 65 Martens, N. R. Gén. XV. p. 780. 65 It was held by the English European Nations as articles. Treaty of Commerce and Navigation between Great Britain and Russia was signed at St. Petersburg on 2 Jan. 1858, which is silent on the subject of Contraband of War. Concert of § 137. It deserves to be remarked, that the list of contraband articles adopted in the Treaty of St. Peto certain tersburg, concluded between Russia and Great Britain on 20 June 1766, is less extensive than the catalogue of the Treaty of the Pyrenees; and that Russia, Spain, France, Prussia, Austria, Sweden, Denmark, Holland, and Sardinia, have all at various times concurred in declaring the articles included in that list to be Contraband of War according to Natural Law. The list is as follows: ART. XI.69 Tous les canons, mortiers, armes à feu, pistolets, bombes, grénades, boulets, balles, fusils, pièrres à feu, mèches, poudre, salpêtre, souffre, cuirasses, piques, épées, ceinturons, poches-à-cartouche, selles et brides, au-delà de la quantité qui peut être nécessaire pour l'usage du vaisseau, ou au delà de celle qui doit avoir chaque homme servant sur le vaisseau ou passager, sera reputés munitions ou provisions de guerre, et s'il s'en trouve, ils seront confisqués selon les loix, comme contrebande ou effets prohibés. Mais ni les vaisseaux, ni les passagers, ni les autres marchandises, qui s'y trouveront en granted by Great Britain to the 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 Declarations70; for it was not attempted on occasion of either of the Armed 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 shock'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. 71 The Jonge Margaretha, than a century 73, 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 73 Bynkershoek's Quæstiones Juris Publici were published in 1737. 74 Quæstiones Juris Publici, L. I. c. 10. |