Treaty having ceased to be operative by reason of the war of the Spanish succession, the Dutch being in that war the allies of Great Britain and of the Germanic Empire and Portugal, whilst Spain was the ally of France, the links of the European Compact upon the subject of Contraband of War required to be reknit together upon the settlement of Peace. Accordingly, amongst the numerous Treaties concluded at Utrecht on the part of France with the Powers arrayed against her, a Treaty of Navigation and Commerce with England will be found, in which the question of contraband and free goods was dealt with in a still more explicit manner than in the previous Treaty of 1677 ART. XVIII. This liberty of Navigation and Commerce shall extend to all kind of Merchandises, excepting those only which follow in the next Article, and which are signified by the name of Contraband. ART. XIX. Under this name of Contraband or Prohibited Goods, shall be comprehended Arms, great Guns, Bombs, with their Fusees, and other things belonging to them, Fire Balls, Gunpowder, Match, Cannon Ball, Pikes, Swords, Lances. Spears, Halberds, Mortars, Petardes, Granadoes, Saltpetre, Muskets, Musket Ball, Helmets, Head Pieces, Breast Plates, Coats of Mail and the like kinds of Arms proper for arming Soldiers, Musket rests, Belts, Horses with their Furniture, and all other Warlike Instruments whatever. ART. XX. These Merchandises which follow shall not be reckoned among prohibited Goods, that is to say, all sorts of Cloaths and all other Manufactures woven of any Wooll, Flax, Silk, Cotton, or any other Materials whatever, all kinds of Cloathes and Wearing Apparel, together with the Species whereof they are used to be made, Gold and Silver as well coined as uncoined, Tin, Iron, Lead, Copper, Brass, Coals 55, as also Wheat and Barley and any other kind of Corn, and Pulse, Tobacco, and likewise all manner of Spices, Salted and Smoked Flesh, Salted Fish, Cheese and Butter, Beer, Oils, 55 Carbones Focarii. Schmauss. Corp. Jur. Gent. Acad. p. 1344. Wines, Sugars, and all sorts of Salt, and in general all Provisions which serve for the Nourishment of Mankind and the Sustenance of Life. Furthermore all kinds of Cotton, Hemp, Flax, Tar, Pitch, Ropes, Cables, Sails, Sail Cloths, Anchors and any parts of Anchors, all Ship Masts, Planks, Boards and Beams of what Trees soever and all other things proper either for Building or Repairing Ships, and all other Goods whatever which have not been worked into the Form of any Instrument or thing prepared for War by Land or by Sea, shall not be reputed Contraband, much less such as have been already wrought and made up for any use, all which shall wholly be reckoned among free Goods, as likewise all other Merchandises and Things which are not comprehended and particularly mentioned in the preceding Article, so that they may be transported and carried in the freest manner by the Subjects of both Confederates even to places belonging to an Enemy, such Towns and Places being only excepted as are at that time besieged, blocked up round about, or invested 56. gagements. § 136. The provisions in the Treaty of Utrecht British were renewed almost in identical language in the Treaty-enTreaty of Navigation and Commerce concluded between Great Britain and France at Versailles on 26 Sept. 178657. The engagements however of this Treaty were terminated by the war of the French Revolution, it being the rule of Great Britain to regard all treaty-privileges as annulled by the outbreak of war between the contracting parties; and any difficulty in observing this rule, which might have been raised by the dethronement of the Bourbon Dynasty, was removed by the Decree of the French Convention published on 1 March 1793, whereby it declared that "all treaties of alliance or of commerce existing between the former French Government and the Powers with whom the Republic is at war, are annulled." No subsequent treaty on the subject of Utrecht, London, 1715. Vol. I. p. 131. 56 This English version of the Treaty of Commerce and Navigation is copied from the Compleat History of the Treaty of 57 Martens, Récueil de Traités, IV. p. 169. 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 5s. 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 65 (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. 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. 66 It was held by the English European articles. 67 Treaty of Commerce and Navigation between Great 2 Jan. 1858, which is silent on the subject of Con- Concert of § 137. It deserves to be remarked, that the list of Nations as 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 less otherwise specified, be limited in its operation to commercial privileges in time of peace; which seems to be a reasonable construction of it. 67 Martens, N. R. Général, XVI. p. 490. 68 Martens, R. I. P. 395. The provisions of this Treaty on the subject of Contraband were renewed in the Treaty of 1797, (Martens, R. VI. p. 362,) and recognised in the Treaty of 1801, (Martens, R. VII. p 262.) 69 Martens, Récueil, I. P. 395. |