which were at all times forbidden to be conveyed to the Saracens, and other more innocent goods, which could be consigned to them in time of truce.1 character of the hibitions. At the commencement of the Middle Ages it is impos- Legal sible to discover any idea of the modern unity of nations as distinct from a world empire. The imperial idea was papal proresuscitated in the West by Charlemagne, Otho, and their successors; while the Church also continued the notion of a world unity, but, like later Rome, refused to recognize the independence and absolute autonomy of the component states of her empire. The papal decrees, which were addressed to the faithful as members of the Catholic Church, were, like the corresponding provisions of the civil law, distinctly municipal and domestic in character. They prohibited trade with belligerents who were regarded as the enemies of every Christian nation, including those which remained strangers to the war. Even as neutrals the subjects of such a nation, it was thought, should consider an enemy of the Church as an enemy of their own country. They were looked upon as bound to the Christian belligerents by the common banner of the Cross; and trade in contraband by which a subject, even neutral and foreign, of that banner helped an adversary of the Holy cause was treated, notwithstanding the difference of nationality, as an act of high treason.2 influence inter national But as the allies of the Cross, while regarding them- Their selves as brothers in arms, were not actually fellow- on countrymen, the prohibitions of the Church afforded modern a precedent for regarding traffic in contraband goods as something more than a simple breach of national criminal law. And although the stipulations of the Canon Law may only have bound the subjects of those states which 1 Cf. Nys, Orig. 285–6; D. I. iii. 628–9, 633. 2 Cf. Walk. Hist. i. 83-4; Ward, Hist. i. 343-4; Hershey in 5 A. J. (1911), 922–3; Desp. D. I. 15–16. law. acknowledged the papal supremacy, they had obviously, like those of the civil law, considerable influence in generating and strengthening the notion of the illegality of trade in contraband of war. But the ultimate source of their obligation was municipal rather than international in character,1 and certainly did not arise from the conception of a duty on the part of a neutral state and its subjects, as such, to refrain from all participation in hostilities and from giving any succour to either of the belligerents. It was as members of the Christian confederation which recognized the Pope as its supreme head, and not as members of a society of mutually independent states, that Christian princes sanctioned the papal prohibitions by their own municipal ordinances.2 1 Cf. Nys, D. I. iii. 629; Manceaux, 9; Brochet, 14. 2 Cf. Twiss, War, 238, n. 11, and 243; Gent. H. A. bk. i, chap. 20. Gentilis discusses the case of an English ship which had been captured by Sardinian and Maltese cruisers while sailing to Constantinople, under a licence from Queen Elizabeth, with a general cargo and some gunpowder, and which was in judgement before a Spanish court of admiralty for carrying munitions of war to an infidel nation contrary to the prohibition of the canon law. The King of England, he says, is supreme in the ecclesiastical affairs of his kingdom, and therefore his express permission to transport articles of contraband to the Turks will absolve his subjects from liability to the penalties of the canon and civil law. Etiam licita ad Turcos ferri per placita Reginae Elizabethae. Has patrias leges norunt Angli, quas sequuntur: alias et canonicas illas non norunt, quae exulant etiam ex Anglia' (p. 79). CHAPTER V ORIGIN AND DEVELOPMENT OF THE PRINCIPLES of idea of tions of in Middle As soon as war against the infidels gave place to war between the Christian states themselves, a more truly international conception of contraband became possible. But at first there was no idea whatever of a duty on the Absence part of rulers and their subjects who were not directly modern concerned in a war to abstain from assisting the belli- obligagerents and from interfering in any way in their warlike neutrality operations. On the contrary, there continued to exist Ages. throughout the Middle Ages such an absence from the common law of nations of any recognized rule denying to a state the right to commit, or to permit its subjects to commit, acts of open hostility against other states with which it was nominally at peace, that neither usage nor moral opinion was outraged if a neutral power allowed a belligerent or his ally to enlist levies within its territories or even if it should itself lend him money or ships or supply him with munitions of war.1 In default of special treaty obligations the utmost extension of neutral care for which the mediaeval belligerent might look was the equal treatment of both sides.2 Thus the 1 Kleen, Cont. 71-2; Neut. i. 9-10; Manceaux, 3; Kent, 34, 324-5; Manning, 227-9; Hall, I. L. 571; Lawr. Prin. 590-1; Walk. Hist. i. 135-6, 197; Nys, Orig. 201-2; and cf. Louis XI's treaties with the Swiss Cantons of 1474 and 1475 (Dum. III. i. 465, 520). 2 Walk. Science, 377-8. In the letters of neutrality of 1596 from Henry IV of France to Charles of Lorraine it was stipulated: 'Et quand nôtre dit Beaufrere ou ses officiers et sujets le feront pour l'un, seront aussi tenus de le faire pour l'autre, afin qu'égalité soit gardée (Dum. V. i. 527). , ence with neutral trade. Borgias, hesitating as to which side to take in the FrancoSpanish struggle, gave leave to both parties to enlist levies in Rome. Machiavelli openly condemned neutrality on the ground that it was more profitable to declare for the one or the other.1 BelliIn self-defence a belligerent was bound to take such gerent interfer- steps as lay in his power to prevent the deliberate assistance of his enemy; and in this respect, as Dr. Walker observes, 'sovereigns declined to distinguish between military and merely mercantile succour of their foes; the foreign trader who carried on his accustomed commerce with a belligerent was apt to be roughly handled by the enemy.' As early as the thirteenth century it became the usage for powerful belligerents, following the papal example, to issue a proclamation at the commencement of a war forbidding all ships to carry provisions or supplies of any kind to the enemy under penalty of confiscation. Such a proclamation was issued by Henry III in 1223; while Edward I tried to induce the Flemings to cease their commercial dealings with Scotland,4 and in 1295 compelled the masters of neutral vessels lying in English ports to give security not to trade with France. In 1315 Edward II expressly forbade foreign merchants to transport wheat or any other kind of provisions to the Scotch under pain of imprisonment ; and Edward III issued a similar declaration in 1337. In 1460 and 1487 the kings of Denmark demanded that 3 1 The Prince, chap. xxi; Walk. Hist. i. 135. 2 History, i. 136. 3 Nys, Orig. 226; D. I. iii. 629; Jenk. Disc. 13-14; Westlake, I. L. ii. 199-200; Dav. Elem. 451, n. 4 Cf. the letter from Robert, Count of Flanders, in 1305, asking Edward to allow his subjects to trade with the Scots as well as with others (Rym. I. iv. 39). The trade with Scotland was too lucrative to be resigned at the King of England's bidding, and Hallam (M. A. iii. 321) characterizes this as an early instance of that conflicting selfishness of belligerents and neutrals which was destined to aggravate the animosities and misfortunes of later times. the Hanse towns should cease from all commerce with Sweden, with which the Danish monarchs were then at war. tional Charters of privileges were granted to the Hanseatic Merchants granted and other foreign merchants only on the express con- condidition that they should not trade with the enemies of charters of England.1 Similarly, Edward III's confirmatory charters privileges. allowed foreign merchants to carry their goods, whether purchased within the kingdom or without, 'quo voluerint ... praeterquam ad terras manifestorum et notoriorum hostium regni praedicti'.2 In 1357 Spanish merchants were granted special liberty to trade with France under certain conditions.3 of neutral traders. Neutrals did not always comply with the demand that Attitude they should break off their trade with a country at war. In 1458 Lubeck refused to obey such a demand from Dantzig, though in 1551 she herself made one on the Hollanders. The Hanse confederation complained in 1492 of the hardships and alleged injuries they had sustained in consequence of the war carried on by the King of Denmark and his ally the King of Scotland with Sweden, and of the interdiction of commerce with the latter country. But when the members of the Hanseatic league themselves went to war they were notorious for the severity of their prohibitions of neutral commerce with their enemies.4 At the outset belligerent interference with neutral trade was an act of force, uncontrolled by any generally recognized principles of international law. What traffic with his adversary a belligerent could stop he did stop. The regulations of neutral trade 1 'Ne merces in terras manifestorum et notoriorum hostium Regni Angliae deveherent' (Camd. Ann. 1589, pp. 553-4); cf. Nys, Orig. 226; Walk. Hist. i. 136. 2 Rym. II. iii. 15–16, 76–7; cf. Jenk. Disc. 18. 3 Rym. III. i. 144. 4 Grot. note to bk. iii, chap. 1, § 5; Reddie, i. 60; Calvo, D. I. v. 2; Cauchy, D. M. i. 358; Kleen in 25 R. D. I. (1893) 11, 14. |