understanding on the subject of Contraband in these

terms:

Item. L'on pourra faire trafic pendant la Guerre des mêmes marchandises que l'on peut négocier en temps de Paix à la reserve de celles de Contrebande, qui sont expliquées dans l'article suivant.

ART. III. Les marchandises défendues et de Contrebande sont les canons et leurs assortimens, armes à feu, poudre, mèches, boulets, picques, épées, lances, hallebardes, pertuisannes, bombes, mortiers, pétards, grénades, fourches de mousquets, bandoulières, salpêtres, balles, casques, morions, cuirasses, et autres armes semblables. Est encore prohibé sous le dit nom, le transport de gens de guerre, de chevaux, de harnois, de fourreaux de pistolets, de baudriers, et assortimens façonnez et formez à l'usage de la guerre.

ART. IV. Au nombre de marchandises de contrebande et défendues ne sont comprises les marchandises suivantes : sçavoir, les étoffes et manufactures de laine, lin, soye, coton, et de quelque autre matière que ce soit : toutes sortes d'habits et vestemens, et les étoffes et sortes desquelles on les fait, or et argent monnoyé et non monnoyé, estain, fer, plomb, cuivre, charbon, blez, orges, et autres grains et legumes, tabac, espiceries, chairs salées et fumées, poisson sec et salé, fromage, beurre, bière, huile, vin, sucre, sels, et tout ce qui appartient à la nourriture et sustentation de la vie. Ne seront aussi compris dans les marchandises défendues, les cotons, chanvres, lins, poix, cordages, voiles, anchres, mats, planches, poultres et bois travaillé de toutes espèces d'arbres, et qui peut servir à construire des vaisseaux ou à les radouber; et demeureront les dites marchandises libres, de même que toutes les autres généralement qui ne sont comprises dans l'article précédent.

Free traffic in all the above articles was secured to the merchants of either Nation, not merely between neutral and enemy ports, but from one enemy port to another enemy port. "Ne pourra néammoins ledit transport être fait aux villes et places assiégées, ou bloquées, ou investies 48"

46 Dumont, Traités, Tom. VII. Part I. p. 327. PART II.

S

Treaty of Whitehall of 1689.

§ 133. It will be convenient to notice in the present place the provisions of the Treaty of Whitehall (22 August 1689) concluded between Great Britain and the United Provinces. Lord Liverpool speaks of it as a convention between the two allied Powers "to prohibit totally the commerce of neutral Powers with France;" and Dr. Phillimore condemns it as an attempt to enforce a doctrine, that neutral States are not entitled to carry on, upon their own account, a trade with a belligerent. But this convention, if carefully examined, will be found to be not an agreement between the two Powers to revive the ancient practice, which was fast falling into desuetude, of forbidding by proclamation all commerce whatsoever between neutral merchants and the ports of a belligerent Power, but a compact between the two Powers to establish a blockade of all the ports, harbours, and roadsteads, of the French King, and to notify their resolution to all neutral States. It is not surprising that Puffendorf 50 was of opinion that this Convention was justifiable, for under the more lenient practice of the present century a blockade of all the ports, harbours, and roadsteads of the

47 Discourse on the Conduct of the Government of Great Britain in respect to Neutral Nations. London, 1801, p. 37.

48 Phillimore's Commentaries on International Law, Vol. III. p. 238.

49" Il est nécessaire qu'on employe toutes ses forces, et particulièrement qu'on passe en sorte que tout commerce et trafficq avec les sujets dudit Roi très Chrétien soit effectivement rompu et interdit, pour ôter au dit Roi et à ses sujets les moyens de fournir à une guerre, qui pourra

autrement par sa durée estre très nuisible, et causer une grande effusion du sang Chrestien, et sa dite Majesté de la Grande Bretagne et les dits Seigneurs Estats Généraux ayant pour mieux y parvenir ordonné à leurs flottes de faire voile vers les Costes de France, et de bloquer tous les Ports, Havres et Rades dudit Roi très Chrétien." Dumont, Traités, Tom. VII. Part II. p. 238.

so See a Letter of Puffendorf, in Groningii Bibliotheca Universalis Librorum Juridicorum, p. 105.

enemy has been maintained by Great Britain against France, and by France and Great Britain against Russia, and by the United States of North America against the Confederate States. Vattel, in commenting upon this Treaty, appears not to have fully considered it in its bearing upon the practice of blockade, as maintained by the States General in their Resolutions of 26 June 16302, for he speaks of it as if it were simply an agreement between the two Powers to attack every ship bound to or coming from any port of France, and to declare it lawful prize; and when he goes on to say that "Sweden and Denmark, from whom some ships had been taken, entered into a convention on the 17th March 1693, for the purpose of maintaining their rights and procuring just satisfaction, and that Great Britain and the States General, being convinced that the complaints of the two Crowns were well founded, did them justice," he has not weighed carefully the recitals in the Convention which was concluded between the two Baltic Powers on this occasion. It would appear from these recitals that the special grievances, of which the two Baltic Powers complained, were not the capture and condemnation of their vessels bound to or from the ports of the enemy, but the capture of vessels under convoy, and the capture of vessels notwithstanding their passports were in perfect order, and in conformity with the treatyengagements between the two Baltic Powers and the

respective belligerent Powers. It may well have

been the fact that Great Britain and the United Provinces, as belligerent allies, were guilty of a breach of their treaty-engagements with the Baltic

51 Droit des Gens, L. III. c. 7. ritima, p. 158. $112.

52 Robinson's Collectanea Ma

53 Dumont, Traités, Tom. VII. Part II. p. 325.

Powers in the case of certain vessels which had been captured and condemned contrary to their treatyengagements, and upon the complaint of the two Crowns did them justice, without the allied Powers being open to the imputation, that, by attempting to prevent all commerce with France, Great Britain and Holland were guilty of a grievous, violation of international Law.

Opinion of $134. The state of the question as to Contraband Sir Leoline of War at the conclusion of the seventeenth century

Jenkins.

had been relieved of much ambiguity by the treaties, under which the various Powers of Europe, which had any pretensions to be considered maritime Powers, not merely placed on record their deliberate recognition of a catalogue of contraband articles, but agreed that all other merchandise not comprised in that catalogue, as between the contracting parties, might be freely transported to enemy-ports, except when such ports were besieged or blockaded. We find accordingly that when a Spanish privateer in 1674 seized a Swedish vessel bound to Rouen with a cargo of pitch and tar, the property of a British subject, and the Spanish Admiralty Court was proceeding to condemn the cargo as Contraband of War, Spain being at such time at war with France, Sir Leoline Jenkins gave his opinion to King Charles II, that there was no pretence to make pitch and tar belonging to British subjects Contraband; these commodities, not being enumerated in the 24th article of the Treaty made between Great Britain and Spain in 1667, are

54 The second article of the Treaty of Whitehall, whereby it was agreed that all vessels cap. tured on their way to French ports, and all vessels laden with merchandise destined to France, wheresoever seized, should be

66

treated by the competent tribunals as prize of war, seems to have been merely a Conventional affirmance of the doctrine, that the inception of a voyage to a blockaded port constituted a breach of the blockade.

consequently declared not to be Contraband in the article next following." Sir Leoline Jenkins then proceeds to consider by what law the question should be decided, in case the benefit of the treaty-engagements between Great Britain 55 and Spain could not be claimed in behalf of British goods laden in a Swedish bottom; and he says, " These goods, if they be not made unfree by being found in an unfree bottom, cannot be judged by any other law but by the general Law of Nations; and then I am humbly of opinion, that nothing ought to be judged contraband by that Law in this case, but what is directly and immediately subservient to the uses of war, except in the case of besieged places, or of a general notification made by Spain to all the world, that they will condemn all the pitch and tar they meet with.” It would appear from the above passage that the opinion of this eminent civilian was, that there were three classes of goods contraband by the Law of Nations. 1. Goods directly and immediately subservient to the purposes of war, if they were being transported over sea to any place within the dominions of the enemy: 2. Goods of all kinds, if they were being carried to a besieged or blockaded town:. 3. Goods which the belligerent had, by public notice, forbidden all merchants alike to carry to the enemy, and which, notwithstanding such notice, were being transported over sea to the enemy's country.

Utrecht of

§ 135. The Treaty of Utrecht (11 April 1713) Treaty of may be considered as the first great international 1713. recognition of the more lenient practice, which had been inaugurated by Spain and France at the Peace of the Pyrenees, and to which Great Britain had given in her complete adherence by the Treaty of St. Germain en Laye. The provisions of the latter 55 Life and Correspondence of Sir Leoline Jenkins, Vol. II. p. 751.