by the exporter and the expense which he has incurred. As to what is to be deemed a reasonable indemnification and profit, I hope and trust that this country will never be found backward in giving a liberal interpretation to these terms. But certainly the capturing Nation does not always take these cargoes on the same terms, on which an enemy would be content to purchase them; much less are cases of this kind to be considered as cases of costs and damages, in which all loss of possible profit is to be laid upon unjust captors, for these are not unjust captures, but authorised exercises of the rights of war." The same learned Judge in dealing with the case of a Swedish ship carrying pitch and tar to a French port, the cargo of which he condemned by reason of there being false cargo-papers on board setting up a pretended neutral destination, observed, " In the practice of this Court there is a relaxation which allows the carrying of these articles (pitch and tar), being the produce of the claimant's country; as it has been deemed a harsh exercise of a belligerent Right to prohibit the carriage of these articles, which constitute so considerable a part of its native produce and ordinary commerce. But in the same practice this relaxation is understood with a condition, that it may be brought in, not for Confiscation, but for Preemption; no unfair compromise, as it should seem, between the belligerent's Rights, founded on the necessities of self defence, and the claims of the neutral to export his native commodities, though immediately subservient to the purposes of hostility. To entitle the party to the benefit of this rule, a perfect bona fides on his part is required?." The option of a sale to the belligerent had been made a treaty-privilege between Sweden and Great The Haabet, 2 Ch. Rob. p. 2 The Sarah Christina, 1 Ch. 183, 30 August 1800. Rob. p. 241, 6 March 1799. 66 of West Britain in certain cases by the Treaty of West-Treaty minster, concluded on 17 July 16563, which treaty, minster of 1656. after enumerating what goods and merchandise should thereafter be declared contraband and prohibited, goes on by the third Article to provide as follows: But it shall be lawful for either of the Confederates and his people and subjects to trade with the enemies of the other, and to carry to them any goods whatever, which are not excepted as above, without any impediment; provided they are not carried to those ports or places which are besieged by the other, in which case they shall have leave either to sell their goods to the besiegers, or to repair with them to any other port which is not besieged." In the subsequent Treaty Treaty of of Whitehall 21 October 1661, in which a more ex- of 1661. tensive list of Contraband articles was set forth, the language of the treaty-privilege was slightly varied, it being provided that "it shall be lawful for either Confederate, his people, and subjects, to have commerce with the enemies of the other, and to carry to them all kinds of merchandise, not before excepted, without any let or hinderance, unless it be to such ports and places as are besieged by the other, and in such case it shall be lawful for them to sell their commodities to the besiegers, or otherwise to betake themselves to any other port which is not besieged." But as it had been specified in the earlier part of the same article of that Treaty that neither of the Con 3 Hertslet, II. p. 317. It appears from Whitelocke's Memorials, p. 645, that the Latin Articles of this Treaty were drawn up by John Milton, as the Swedish Ambassador complained of the delay in translating them, and of their having been sent to one Mr. Milton, a blind man, to put them into Latin. 4 Hertslet, Vol. II. p. 324. Dumont, Traités, Tom. VI. Part II. p. 384. 5 Art. XI. Although in the preceding Articles of the present Treaty it be forbidden to either Confederate to yield any aid or assistance to the enemies of the other, yet it is not to be so understood, as if either Confederate, Whitehall without any let or hinderance, unless it be into such ports and places as are besieged by the other, and in such case it shall be lawful for them to sell their commodities to the besiegers, or otherwise to betake themselves to any other port, which is not besieged." Hertslet, II. p. 329. federates should suffer any of his subjects to give aid, sell or lend ships, or be in any way useful to the enemy or rebels of the other, to his prejudice or detriment, the British Government contended that the prohibition to give aid, sell or lend ships, or be in any way useful to the enemy, carried with it by implication a prohibition to supply the enemy with the necessaries for building ships, and consequently that pitch and tar were virtually made Contraband of War under this treaty." The English Court of having no war with the enemies of the other, might not sail to or traffic with the said enemies, notwithstanding that the other Confederate be in actual war with them. But it is only provided that "no goods, called goods of Contraband, and particularly that no money, provision, weapons, fire-arms with their appurtenances, fire balls, gunpowder, match, bullets, spear-heads, swords, lances, pikes, halberts, ordnance, mortarpieces, petards, grenadoes, rests, bandeliers, saltpetre, pistols, small shot, pots, head-pieces, backs and breasts, or such kinds of armour; soldiers, horses, all furniture necessary for horses, holsters, belts, and whatsoever warlike instruments; and also that no ships of war or convoys be furnished to the enemy, without peril, in case they be taken, of being adjudged lawful prize without hope of restitution And neither of the Confederates shall suffer any of his subjects to give aid, sell or lend ships, or be any way useful to the enemies or rebels of the other to his prejudice or detriment; but it shall be lawful for either Confederate, his people and subjects, to have commerce with the enemies of the other, and to carry to them all kind of merchandise not before excepted, 6 The doctrine of Contraband by implication was upheld by Sir Robert Wiseman, the King's Advocate General, in certain positions of International Law which he drew up on 23 May 1672, and in which he says, "Setting aside what are by treaties agreed to be Contraband, which must be so esteemed, whatsoever they be, and no other, I also agree that iron, pitch, tar, hemp, clypebard, plancks, excepting wainscott, corn, wine, oyle, salt, will be accounted Contraband, under which all such things which are of a general use of furnishing the war and those that are in arms are properly comprehended." The positions of Sir R. Wiseman, fifteen in number, are set forth at length in Dr. Pratt's work on Contraband of War, p. 255. The author has a copy of them in his possession in a MS. book of Sir Nathaniel Lloyd, Queen's AdvocateGeneral in 1710. Admiralty, in adjudicating upon such commodities. laden in Swedish bottoms, captured on their way to an enemy's port, considered them to be entitled to the benefit of the more favourable rule, and held them, if taken when avowedly going to the enemy, to be brought in for Preemption, not for Confiscation: nevertheless it was thought advisable by the Swedish and British Governments, after the second Armed Neutrality, to make this more favourable rule a matter of treaty-engagement between the two Powers; and accordingly a Convention was concluded at London on 25 July 1803 between Great Britain. and Sweden, with a view, as averred in the preamble, to prevent the recurrence of the differences which had previously arisen in relation to the 11th Article of the Treaty of Whitehall (21 Oct. 1661). By the second Article of this Convention it was provided as follows: Les croiseurs de la Puissance bélligerante exerceront le droit de détenir les bâtimens de la Puissance neutre, allants aux ports de l'ennemi avec des chargemens de provisions et de poix, résine, goudron, chanvre, et généralement tous les articles non manufacturés, servant à l'équipement des bâtimens de toutes dimensions, et également tous les articles manufacturés servant à l'équipement des bâtimens marchands (le hareng, fer en barres, acier, cuivre rouge, laiton, fil de laiton, planches et madriers, hors ceux de chêne et esparres, pourtant exceptés); et si les chargemens, ainsi exportés par les bâtimens de la Puissance neutre, sont du produit du territoire de cette Puissance, et allant pour compte de ses sujets, la Puissance belligérante exercera dans ce cas le droit d'achat sous la condition de payer un bénéfice de dix pour cent sur le prix de la facture du chargement fidèlement déclaré, ou du vrai taux du marché, soit en Suède, soit en Angleterre, au choix du propriétaire, et en outre une indemnité pour la détention et les dépenses nécessaires7. 7 Martens, Récueil, VIII. p. in the case of the Zacheman, 92. This Treaty received a judi- 1 May 1804. 5 Ch. Robinson, p. cial exposition from Lord Stowell, 152. Orebro of 1812. This Convention appears not to have been renewed Treaty of by the Treaty of Orebro in 1812, as that treaty reestablished relations of amity and commerce between the two Crowns, upon the footing on which they existed on 1 January 1791, and all treaties and conventions existing at that time. The more rigorous system, which was founded on the Treaty of 1661, would therefore seem to be revived between the two Nations. Treaty of Upsal, 1654. § 147. It appears that pitch and tar and hemp. have been at times omitted from the catalogue of Contraband of War in treaties of commerce where the restriction upon neutral trade resulting from such commodities, being regarded as Contraband, would not have been attended with mutual inconvenience to both of the belligerent parties. Thus in the diplomatic discussions preliminary to the treaty of 16619 the Swedish Ambassador contended in the first place "that in Finland pitch and tar were the chief commodities, which if they did not vend them yearly, having great quantities of them, the country could not subsist, nor would the commodity last above one year in their vessels, but by reason of the great strength of it, being kept longer, it would break the hoops of the vessels and be lost; and if the least restraint should be put upon the vending of it to any place, the inhabitants of Finland would think themselves undone, and it would be a great prejudice to their trade." He urged in the second place, that "it had been taken for granted, when the treaty of Upsal (9 May 1654) 10 was concluded, that these commodities should not be taken for contraband." Mr. Whitelock, the negotiator of the treaty of Upsal, in reply admitted that when he was in Sweden, 8 Martens, Récueil, IX. p. 431. 1656. 10 Hertslet, I. p. 310. |