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between the different nations, which we have already mentioned, and also those which exist elsewhere, it will be found, that every thing is called contraband, which is of use to belligerent nations in making war; whether they be warlike instruments or materials by themselves fit to be used in war. For what the states-general on the 6th of May 1667, decreed against the Swedes, that even materials, not of themselves fit for war, but which might easily be adapted to warlike use, were to be considered as contraband, was founded on a special reason, to wit, the right of retaliation, as the states themselves express it in the said decree.
And hence you will judge whether the materials themselves out of which contraband goods are formed are themselves contraband? Zouch, de Jure Fee. part, 2. § 8. Q. 8., appears, if any thing, rather inclined to this opinion. For my part I am not, because reason and precedents incline me to the contrary. If all materials are prohibited out of which something may be made which is fit for war, the catalogue of contraband goods will be immense, for there is hardly any kind of material, out of which something at least, fit for war, may not be fabricated. The interdiction of these amounts to a total prohibition of commerce, and might as well be so expressed and understood. And the 4th article of the said treaty of the 1st of December 1674; the 4th of the said treaty of the 26th of November 1675, and the 16th article of the said treaty of the 12th of October 1679, which prohibit neutrals from carrying arms to enemies, permit the carrying of iron, brass, metals, materials for building ships, and in short every thing which is not already prepared for warlike use.
Sometimes, however, it happens, that materials for building ships are prohibited, if the enemy is in great need of them, and cannot well carry on the war without them. When the statesgeneral by the 2d section of their edict against the Portuguese, of the 31st of December 1657, prohibited the supplying the Portuguese with those things which by the general usage of nations are considered as contraband of war, they specially added by the 3d'section of the same edict, that as they feared nothing from the Portuguese except by sea, no one should carry to them even materials for building ships; thus openly distinguishing those materials from contraband articles, and prohibiting them only for a special reason expressly set forth. For the same reason, materials for ship building, are joined with instruments of war, in the 2d section of the edict against the English of the 5th of December 1652, and in the edict of the states-general against the French of the 9th of March 1689. But these are exceptions which confirm the general rule.
It is asked whether scabbards are to be considered as contraband? Petrinus Bellus, de Re Militari, part 9. n. 26, 27, 28., says that it has been so decided by the military judges, though he himself does not approve of that decision. Zouch, De Jure Fee. part 2. § 8. Q. 2., satisfied with giving out of Bellus, the arguments on both sides, decides nothing, according to his custom. For my part, I approve of the decision of the military judges, and I am opposed to the opinion of Bellus, because scabbards, although of promiscuous use, are however, instruments prepared for war. Without scabbards, swords cannot be used, and without swords there can be no war. Nay, holsters, saddles and belts are numbered among articles of contraband in the said 2d, 3d and 5th articles of the said edicts and treaties which I have above mentioned. Holsters, as to their use, do not differ in any thing from scabbards: the latter are cases for swords and the others for pistols. Certainly these might be excused, if they were in very small quantity; and the said third article of the treaty of the 26th of November 1675,* has also this exception: " unless those instruments should be in so small a quantity, that it might be inferred from thence that they were not designed for the use of war."
What shall we say of sword hilts? The same, I think, as of scabbards, for they are instruments fit and prepared for war, and are also included in the list of contraband goods, in some of the edicts and treaties which I have before cited. Of saltpetre, more doubt might be entertained, because it is not of itself an article fit to be used in war; and yet saltpetre is contained in all the lists of contraband articles which I have mentioned, for out of saltpetre gunpowder is made, which is now
* Between the states-general and Sweden, see p. 77.
the principal article used in war. Nay, I have observed that saltpetre is sometimes mentioned with the addition of gunpowder and sometimes without. Where gunpowder is omitted, saltpetre is mentioned in lieu of it; when both are mentioned, they are considered as synonymous words, unless saltpetre, on account of its important use in war, should have been excepted by nations out of those articles which of themselves are not fit for war.
Of tobacco, Zouch informs us, De jfure Fee. part 2. § 8. Q. 12. that there was a great contention between the English and the Spaniatds, and that the latter considered it as contraband,* to the great indignation of the English, who went so far as to issue reprisals against them. What became afterwards of that controversy I know not; this I know, that I cannot concur in opinion with the Spaniards, because the fact is, that tobacco cannot be of any use in destroying the enemy. Nay, by the said 3d, 4th, 15th and 16th articles! it is lawful to carry tobacco to an enemy, for by the same articles, it is lawful to carry to the enemies of our friends all things which in the condition they are in are not fit for war, and tobacco is nominally included among lawful goods, by the 4th article of the said treaty of the 1st of December 1674.
It is clear by the 1. 22. § 1. ff.de Jure Fisc. that if a pledge is forfeited, the jus pignoris is not thereby extinguished. Hence if neutrals had shipped contraband goods to our enemies and bound them for the freight, if the goods are taken in the course of the voyage, and condemned as contraband, the Dutch lawyers have given it as their opinion that the captain is entitled to his freight, as though the whole voyage had been performed. And it is related that it was thus decided by the court of admiralty of North Holland, on the 6th of May 1665, and of Friesland, on the 12th of July in the same year, on the principles that res transit cum suo onere, that the fisk yields to creditors, fjiscus cedit creditoribus\~) and others of the like
* The reason alleged was that tobacco might be used, as well as salt, to preserve provisions from corruption. Zouch, ubi suprd. T. t See p. 77, 78.
i In this country, and in England, the opposite maxim prevails.The sovereign is entitled to a priority of payment, et creditores cedunt Jisco. T.
kind, But the court of admiralty of Amsterdam decided differently on the 9th of July 1666; they refused to allow freight to the captured, without prejudice, however, to his rights against whomsoever else it might concern. And this is very correct; for the freight is not due unless the voyage is performed, and the enemy has lawfully prohibited its being performed. Then contraband goods are condemned, either ex delicto, when the captain and mariners are no less in fault than the owners of the goods, or ex re, for the very carriage of the goods themselves; for although we cannot prohibit neutrals from trading with our enemies, yet we may prohibit their assisting them in the war to our destruction. Therefore what is condemned, is condemned without regard to any man, and is to be considered as if it had perished by the act of God, whereby the jus pignoris is extinguished.* I am not, however, astonished at those lawyers having been of opinion, that the master of the vessel has a lien for the freight on contraband goods that are condemned, I rather wonder that they have not allowed it in preference to the owners of the merchandize; for they have jus in re, a. right of property, which is the strongest of all.f
It is denied that the subject of an ally or confederate, trading with a common enemy, may be punished by us, or his property condemned; because it is said that every one is bound only to obey the laws of his own sovereign, and therefore that an ally can have no control over him. But reason, usage and public utility, are opposed to that decision. The reader may, if he pleases, turn to what Aitzema has written^ upon that subject; for my part, I shall abstain from it. As I am now only treating of what contraband is, such a discussion cannot with propriety be introduced in this place.
* This doctrine is now adopted as to contraband goods, which are condemned ex delicto; but not as to enemy's goods, which are condemned only ex re. In the latter case, when the conduct of the captured is fair, freight is generally allowed. See post, c. 14 in note. T.
] There seems to be no real difference here, for the master can only claim as agent for the owners, to whom the freight belongs. T.
* Aitz. 1. 46.
Of Trade with blockaded and besieged Places.
IHAVE said in a former chapter,* that by the usage of nations, and according to the principles of natural reason, it is not lawful to carry any thing to places that are blockaded or besieged. Grotius is of the same opinion; for he reprobates the carrying any thing to blockaded or besieged places, "if it should impede the execution of the belligerent's lawful designs; and if the carriers might have known of the siege or blockade; as in the case of a town actually invested or a port closely blockaded, and when a surrender or a peace is already expected to take place."f Indeed, it is sufficient that there be a siege or blockade to make it unlawful to carry any thing, whether contraband or not, to a place thus circumstanced; for those who are within may be compelled to surrender, not merely by the direct application of force, but also by the want of provisions and other necessaries. If, therefore, it should be lawful to carry to them what they are in need of, the belligerent might thereby be compelled to raise the siege or
* Above, c. 4. p. 31.
f Si juris mei executioncm rerum subvectio impedierit, idque scire potuerit qui advexit, ui si oppidum. obscssum tenebam, si partus clausos, & jam deditio aut pax expectabatur, tenebitur ille mihi de damno culpa data, ut qui debitorem carceri exemit, aut fogam ejus in meam Jraudem instruxits si damnum r.ondum dederit, sed dare voluerit, jus erit rerum retentione eum cogere ut de future caveat, obsidibus, pignoribus, aut alio modo. If he (the carrier) should by his supplies impede the execution of any lawful designs; as >/1 kePt a town besieged or a port closely blockaded, and I already expected a surrender or a peace; he will be liable to me for the damage occasioned by his fault, in like manner as he who should make my debtor escape out of prison, or aid him in his flight to defraud me of my right; and if he has not occasioned to me any actual damage, but has been willing to do it, in that case, it will be lawful by the detention of his goods, to compel him to give security for the future, by hostages, pledges or in some other way. Grot, dc J. B. ac P. 1. 3. c. 1. § 5. n. 3. T.