life, or even for the service of merchant vessels. (1) The uncertainty of the question has, also in this case, made the measure of pre-emption, which we shall consider in the next chapter, a substitute preferable to the more rigorous measure of confiscation. (2) From the foregoing observations on the different articles of Contraband, the reader must have remarked how very various have been the Customary and Conventional Law of Europe in this regard. On no article, beyond the most obviously warlike instruments, is there anything like an identity of practice. The same nations have at different times observed quite different rules, and nothing is more common than to find the same state bound by treaties to observe distinctly opposite rules, at the same time, with different governments. In neither of the Armed Neutralities was there any attempt to establish a general rule for Europe on the subject of Contraband, notwithstanding the eagerness of the contracting parties to engage in a new scheme of maritime legislation. In the Armed Neutrality of 1780, it was expressly stipulated that, in the matter of Contraband, each state should keep to its existing engagements with other states,-a duty which some of them did not think it necessary to observe in other parts of their convention. The consequence was that there was no general rule observed on the subject of Contraband. Denmark and Russia, for instance, declared themselves each bound by their existing compacts; now by the Danish treaty with Great Britain, naval stores, canvas, cables, masts, &c., and also horses, were Contraband, while by our treaty with Russia none of these articles were Contraband. (3) Again, Sweden likewise bound herself to maintain her existing engagements; now (1) Rob. Rep. I. 193. (2) Id. II. 182. (3) Compare our Danish treaty of 1670, above cited, with our The foregoing how various have been the remarks show limitations of Desirable that Contraband should be de by the Swedish treaty of 1661, money and provisions were Contraband, while they were not so either with Denmark, or with Russia. The Dutch, on their accession to the Armed Neutrality, in 1781, also maintained the principle of so far observing their treaties, appealing, with regard to this country, to their treaty of 1674, in which money, metals, provisions, and naval stores, are excepted from the list of Contraband. (1) Portugal, on her accession to the system in 1782, observed the same rule of maintaining existing contracts. Prussia and Austria, in 1781, and Sardinia in 1783, having no treaties extant on the subject, declared that they would take for their rule (2) the treaty between Russia and Great Britain of 1766, justly thinking that, as they were helping themselves, they might as well choose, what the treaty just mentioned really is, the most limited compact on the subject of Contraband that existed. In the second Armed Neutrality, in 1800, Russia, Sweden, and Denmark, in their respective treaties, observed the same rule, declaring that they should not deviate from their existing treaties on the subject of Contraband. (3) The unsettled state of the question, and the animosities likely to arise from contested rights, make it very defined by treaty. sirable that governments should settle by definite treaty, what articles, and what articles solely, shall be deemed Contraband. Our own obligations on this subject are, I believe, as follows. Our own engagements with Denmark. With Denmark, by art. xIII. of the treaty of Kiel, in 1814, all treaties of peace and commerce are renewed in their full extent, as far as they do not contradict the present treaty. (4) We are therefore bound, with respect (1) Chalmers' Coll. I. 178, 179. (2) De Martens, Rec. III. 246, 258, 269. (3) Id. VII. 175, 184, 191. (4) Id. Supp. V. 680. to Denmark, by the treaty of 1780, which declares that, besides the direct implements of war, and also saltpetre and horses, ship-timber, tar and pitch, sheet-copper, sails, canvas and cordage, and generally all that serves for the equipment of a vessel shall be deemed Contraband, excepting unwrought iron, and deal planks. It is then added, that it is expressly declared that among articles of Contraband, shall not be comprehended fish, or meat, whether salt or fresh, wheat, flour, corn, or other grain, vegetables, oil, wine, and generally whatever serves to the nourishment and support of life, all these articles. being free to be transported to ports belonging to the enemies of either party, as long as they are not besieged or blockaded. (1) With regard to Sweden, by art. II. of the treaty of With Sweden. Orebro, in 1812, the relations of amity and commerce between the two countries are restored on the same footing on which they existed on 1st January, 1791, all treaties and conventions subsisting at that period being renewed and confirmed by the present instrument. (2) In regard to this power, we are therefore still bound by art. xI. of our treaty of 1661, (3) which was declared still to be binding by the note of the British government regarding neutral vessels in 1780, (4) and which was also acknowledged as still in force by both governments in the explanatory treaty of 1803. (5) By the treaty of 1661, besides the usual munitions of war, horses and saltpetre, money and provisions, and also ships of war and guard ships, are expressly declared Contraband. By our treaty (1) De Martens, Rec. III. 177. In the treaty between Denmark and Prussia of 1818, naval materials are not included in the list of contraband; that term being restricted to warlike implements, going to a hostile port, id. Supp. VIII. 534. (2) Id. Supp. V. 432. With Russia With Portugal. of 1803, just mentioned, provisions, as well as naval materials, &c., are declared merely subject to pre-emption by art. II., but the treaty of Orebro carrying back the rule to the treaties existing in 1791, the more rigorous system is now our law, and provisions, as well as money, are by our treaties with Sweden liable to confiscation as Contraband. (1) By our treaty of 1812 with Russia, signed at Orebro, there is no express reference to former treaties, but it is merely declared by art. II. that "the relations of amity and commerce between the two countries, shall be reestablished on each side on the footing of the most favoured nations." (2) Our treaty made with Portugal in 1810, is of most extensive compass on the question of Contraband. By art. XXVIII., not only are munitions of war, saltpetre, and horses, recapitulated as articles of contraband, but it is added that also all other articles which may have been designated as objects of contraband in all treaties previously concluded by Great Britain, or by Portugal, with other states, shall be reputed contraband between the contracting powers. It is, however, added that articles which have not been fabricated into instruments of war, or which cannot be used for this purpose, still less articles which have been manufactured for other purposes, shall not be deemed articles of contraband. (3) (1) A different law exists between Sweden and the United States. By treaty of 1827, (De Martens, Supp. XI. 1. 279) the articles of their treaty of 1783 are declared to be still in force between the parties on this subject. By arts. IX. and x, of this treaty, munitions of war, By this treaty, therefore, saltpetre, sulphur, and horses, (2) Id. Supp. VII. 226. money and provisions, which had been declared contraband between this country and Sweden, and naval materials, which had been declared contraband by our treaty with Denmark, are to be deemed contraband between Great Britain and Portugal. This treaty, however, expired in April 1835, pursuant to notice; it is to be hoped that the pending negotiations will renew its existence. With Brazil, by our treaty of 1827, besides the usual With Brazil. munitions of war, and saltpetre, "timber for ship-building, tar and resin, copper in sheets, sails, hemp and cordage, and, generally, whatsoever may serve directly to the equipment of vessels of war, unwrought iron and fir planks excepted," are declared contraband. In this treaty, horses are not included in the list of contraband, though horse-furniture, holsters, &c., are specified as contraband. (1) I believe that we have no definite treaties on the subject of Contraband, either with France, Spain, Holland, or the United States. Our previous treaties were dissolved by the wars with these states, and the treaties restoring peace do not contain, either articles defining Contraband, or articles re-establishing our former obligations on this question. Neither am I aware of any treaties on this subject existing between Great Britain and either Prussia or Austria. The confiscation by the captor of articles of Contraband, is a point too well established to need much illustration. An exception, I believe unique, is made by a curious article in the treaties between Prussia and the United States. By art. XII. of the treaty of 1828, between these powers, the thirteenth article of the treaties of (1) De Martens, Supp. XI. 11. 486. X No treaties with France, Spain, Holland, the Prussia, nor Austria. United States, Articles of Contraband confiscated by the captor. |