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he may make war upon us. Therefore the counsellors of the states-general, on the 17th of March 1641, and afterwards on the 18th of July 1746, very properly decreed, that those of the territories of Luxemburg and Namur, who were under the protection of the states, and generally, on the 14th of August 1645. that no neutral under our protection should fight for the ling of Spain, even though he had fought for him before, and that no one, who had quitted the service should be recalled into it. The same counsellors, on the 23d of February 1636, issued an edict, that none of those who were under our protection should assist the enemy's camps with horses, wagons, or ships: and very properly, because, by acting thus, they would have afforded assistance to the enemy. The law is different, as to those things which are carried to an enemy, for other purposes than for war; and therefore the statesgeneral, although they had before generally prohibited the exportation of corn, decreed however, on the 23d of May 1631, that those who were under our protection might carry their corn to the Spaniards or to the United Dutch, as they might think proper. For a neutral may lawfully carry corn to an enemy, except in case of a siege or famine.
The states-general, by the third section of their edict of the 26th of September, 1590, prohibited the treating of neutrals, their vessels and goods, in a hostile manner, even though found in the enemy's territory, provided they were bound to the United Provinces, or thence to other places. Yet there are those who have written, as if the states-general on the 15th of December 1672, had decreed by a general law, that even neutral vessels, when coming from enemy's ports might be lawfully condemned. But no credit is-to be given to those wretched scribblers; for the fact is that the edict of the 15th of December 1672, was a special one, and made merely by way of retaliation for the condemnation of the Hamburg ship, as I have before shewn in chapter 5.
IT was formerly a capital crime at Rome to sell arms to the barbarians;* that is to say, it was capital in the subjects of the empire, for whom alone the Romans made laws. And it is now certainly so in every country, for a subject to carry arms to an enemy. Nay, by the first section of the edict of the states-general against England, of the 5th of December 1652, not only every subject, but a foreigner who should carry any kind of merchandize to the English, is to be considered as an enemy. Which by the second section of the edict of the states-general against the Portuguese, of the 31st of December 1657, is justly restricted to contraband goods. By the 1st section of the edict of the states-general of the 14th of August 1672, and 11th of April 1673, against the English and French, and the 1st section of the edict of the 19th of March 1665, against the English, he is punished as an enemy to the state, who carries to the hostile nation any warlike ammunition, provisions, materials for the building of ships, or any other prohibited merchandize. It is the same with a foreigner who carries those goods to the enemy from this country.
But the states-general as well as every other prince may make what laws they please with respect to their subjects; not so with respect to foreigners. Hence it is properly asked what is lawful for us by the law of nations to carry to the enemies of our friends, or, what is the same thing, what may our friends lawfully carry to our enemies? Whatever is not lawful to be carried, if the friend take it, he may lawfully con
• Cod, quae res export, non deb. 1. 2.
fiscate, and by that confiscation alone, the whole penalty of the law is satisfied. Grotius, de Jure B. ac P. 1. 3. c. 1. § 5. n. 1, 2, 3., being engaged in the consideration of this subject, distinguishes between those things that are useful for the purposes of war, those which are not so, and those which may be used indiscriminately in war and in peace. The first he prohibits neutrals from carrying to our enemies, the second he permits, the third he sometimes prohibits, and sometimes permits. If we adopt the principles which we have contended for in the preceding chapter, we cannot be much at a loss with regard to the first and second class of articles. As to the third class, Grotius distinguishes, and permits the intercepting of things of promiscuous use, but in case of necessity only, when otherwise we cannot protect our own, and then under the obligation of restitution. I shall only ask here who is to be the judge of that necessity, for it is very easy to allege it as a pretexts Shall it be I, who have taken the articles? Such, 1 think, is his opinion. But all laws prohibit my sitting as judge in my own cause, unless so far as custom, the prince of tyrants, admits, when treaties between sovereigns are to be interpreted. Nor have I been able to observe, that this distinction of Grotius is supported by the usage of nations; it rather confirms what he afterwards says, that it is not lawful to carry to besieged places, things of promiscuous use, because it would be assisting one party to the destruction of the other, as will be more fully explained in the next chapter. As to what he adds, in- conclusion, that a distinction is to be made between the justice and injustice of the war, I think I have sufficiendy prove d in the preceding chapter, that it may be proper for allies* in a certain case, but never for neutrals.
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* Our author in the chapter to which he refers seems to consider qualified neutrals as allies, and indeed, as we have said, the line is often difficult to be drawn between a qualified neutrality and an alliance: but why should states be the judges of the justice of the war in one case more than in the other, and what has that to do with their engagements? Will they not in every case, as our author himself has before obserTedj decide, fer their own att vantage? See notes p. 71, 72. T.
The law of nations on this subject is not to be drawn from any other source than reason and usage. Reason commands rat' to be equally friendly to two of my friends, who are enemies to each other, and hence it follows that I am not to prefer either in war. Usage is pointed out by the constant and as it wejre perpetual custom which sovereigns have been in of making treaties and laws upon this subject, for they have often made such regulations by treaties to be carried into effect in case of war, and by laws enacted after the war begun. I have said by, as it were, a perpetual custom; because one or 'perhaps two treaties, which vary from the general usage, do rot alter the law of nations. It is agreed amongst almost all nations, that it is not lawful for a friend to carry arms to an enemy, or other things which come under the denomination, of contraband goods; nevertheless, by the 10th section of the treaty of peace of Westminster, made ia the year 1654, between the English and Portuguese, it was stipulated that it should be lawful for the English to carry those things to the enemies of the Portuguese, as is observed by Zentgravius, De Orig. Verit. fe? Oblig. Jur. Gent. art. 7. $ 8. p. m. 296, 297. And the Dutch obtained the same privilege of the Portuguese by the 12th article of the treaty of peace between them of the 6th of August 1661. Otherwise the rule which is proved by an almost perpetual succession of treaties, is, that neutrals cannot carry contraband goods to enemies, and that if they do- it and are taken in the act, the goods are forfeited; but with the exception of these, they may freely trade with either party, and carry any thing to them with impunity.
According to these principles it was free to the Dutch, by the 3d article of the marine treaty between Spain and the statesgeneral of the 17th of December 1650, section 4, to trade with the French in any kind ol merchandize, in the same manner that they could have done before the war between France and Spain; so however, that they should not carry from the Spanish dominions to the French, things that might be employed against Spain; but by section 5, the Dutch are prohibited from carrying contraband goods to the other enemies of Spain, and by the 6th section those goods that are contraband are enumerated.
Again, by the 2d article of the above mentioned edict of the States-general against the English, of the 5th of December 1652, neutrals are prohibited from carrying to the English any ammunition of war, or any materials, serving to the equipment of vessels. Provision is also made against carrying contraband goods, by the 2d section of the edicts of 1665, 1672, and 1673, which I have already spoken of; there, after enumerating various species of contraband articles it is added, " and all other articles manufactured and prepared for warlike use." Nearly the same thing is found in the 27th and 28th articles of the commercial treaty between France and the statesgeneral of the 27th of April, 1662; in the 3d article of the marine treaty between Charles II. king of England and the states-general of the 1st of December 1674; the 3d article of the treaty of commerce between the king of Sweden and the states-general of the 26th of November 1675; the 15th article of the marine treaty between the same powers •f the 12th of October 1679; the 15th article of the treaty of commerce between France and the states-general of August 1671; the 11th section of the edict of the states-general de contrabandist of the 28th of July 1705, and in several Other treaties between different nations, some of which are •numerated by Zentgravius, 1. 7. § 8.
From these I understand generally, that contraband articles are such as are proper for war, and that it is of no consequence whether or not they are of any use out of war. Very few are the implements of war, which are not also of some use out of war. We wear swords for the decoration of our persons, we make use of the sword for the punishment of criminals; nay, we even make use of gunpowder for our amusement and to express public joy. And yet there is not any doubt but that these come under the denomination of'contraband articles.
Of those things which are of promiscuous use, it would be endless to dispute, and it would be so if we were to follow Grotius's opinion about necessity and the various distinctions which he brings forward. If we examine the treaties made