and generally whatever immediately serves for the equipment of vessels; unwrought iron and deal planks, however, excepted. "But it is expressly declared that this kind of contraband merchandise shall by no means comprehend fish and flesh, fresh or salted, wheat, flour, corn or other grain, vegetables, oil, wine, and generally whatever serves for the nourishment and support of life, so that all these articles may always be sold and transported like other merchandise, even to places in the possession of an enemy of the two Crowns, provided that such places are neither besieged nor blockaded. “And their Majesties being desirous that this article, as it is actually settled, should hold precisely the place of that for which it is substituted, so that it shall have the same effect and validity as if it were inserted word for word in the said Treaty, and that it should be considered as *authentic and obligatory as the Treaty itself, they have agreed [*377] that it should be so declared and decreed by a declaration signed by the Minister for Foreign Affairs," &c.(h) And by Article XIII. of Treaty of Kiel, in 1814, "All the ancient Treaties of peace and commerce between the former Sovereigns of England and Denmark are hereby renewed in their full extent, so far as they are not contradictory to the stipulations of the present Treaty."(i) Between England and Sweden (1812.) "The relations of friendship and commerce between the two kingdoms shall be re-established upon the footing on which they stood on the 1st day of January, 1791, and all the Treaties and conventions subsisting between the two countries at that epoch, shall be regarded as renewed and confirmed, and they are by the present Treaty renewed and confirmed accordingly."(k) Between England and Sweden (1691.) "Although in the preceding articles of this 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, 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, provisions, weapons, firearms, *with their appurtenances, fire-balls, gunpowder, [*378] match, bullets, spear-heads, swords, lances, pikes, halberts, ordnance, mortar-pieces, petards, grenadoes, rests, bandoleers, saltpetre, pistols, small shot, pots, head-pieces, backs and breasts, or such kind of armour; soldiers, horses, all furniture necessary for horses, holsters, belts, (h) Declaration signed at Copenhagen, 4th July, 1780, explanatory of the 3rd Article of the Treaty of 1670. Hertslet's Treaties, vol. i. p. 203. (i) Treaty of Peace between Great Britain and Denmark, signed at Kiel, 14th Jan., 1814.-Hertslet's Treaties, i. p. 233. (k) Treaty between Great Britain and Sweden, signed at Orebro, 18th July, 1812.-Hertslet's Treaties, vol. ii. p. 335. and whatsoever warlike instruments, as 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 deteriment; 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 merchandize, not before excepted, without any let or hindrance, 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."(1) Between England and Russia. "The relations of friendship and commerce between the two countries shall be re-established on both sides, upon the footing of the most favoured nations."(m) Between England and Portugal. "Under the name of Contraband, or prohibited articles, shall be comprehended not only arms, cannon, harquebusses, mortars, petards, bombs, grenades, saucisses, carcasses, *carriages for cannon, musket[*379] rests, bandoleers, gunpowder, match, saltpetre, ball, pikes, swords, head-pieces, helmets, cuirasses, halberts, javelins, holsters, belts, horses and their harness, but generally all other articles that may have been specified as Contraband in any former Treaties concluded by Great Britain or by Portugal with other Powers. But goods which have not been wrought into the form of warlike instruments, or which cannot become such, shall not be computed Contraband, much less such as have been already wrought and made up for other purposes, all which shall be deemed not Contraband, and may be freely carried by the subjects of both Sovereigns, even to places belonging to an enemy, excepting only such places as are besieged, blockaded, or invested by sea or land.”(n) Between England and Brazil. "In order to regulate what is in future to be deemed Contraband of War, it is agreed that under the said denomination shall be comprised all arms and implements serving for the purposes of war, by land or by sea, such as cannon, muskets, pistols, mortars, petards, bombs, grenadoes, carcasses, saucisses, carriages for cannon, musket-rests, bandoleers, gunpowder, match, saltpetre, balls, pikes, swords, head-pieces, cuirasses, hal (7) Treaty between Great Britain and Sweden, concluded at Whitehall, 1691.— Hertslet's Treaties, vol. ii. p. 328. (m) Treaty of Peace between Great Britain and Russia, signed at Orebro, 18th July, 1812.-Hertslet's Treaties, vol. ii. p. 125. (n) Treaty of Commerce and Navigation between Great Britain and Portugal, signed at Rio de Janeiro, (art. xxviii.) 19th February, 1810.-Hertslet's Treaties, vol. ii. p. 59. AUGUST, 1857.-19 berts, lances, javelins, horse-furniture, holsters, belts, and, generally, all other implements of war; as also timber for ship-building, tar or 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; and all the above articles are hereby declared to be just [*380] to an enemy."(0) *objects of confiscation, whenever they are attempted to be carried CCLXXXII. Among the later Treaties upon this subject, in which England is not concerned, should be noticed the Treaties between the States of North and South America, namely, the Treaty with Columbia,(p) 3rd December, 1824; with Chili,(g) 16th May, 1832, (Art. XIV.); with Central America, (r) 5th December, 1825; with the Mexican States, 5th April, 1831,(s) (Art. XVI.); with Venezuela,(t) 20th January, 1836, (Art. XVII.) The Treaty between France and Brazil, (u) 28th January, 1826, (Art. XXI.); with Texas, (x) 25th September, 1839, (Art VI.) In the Treaty between Prussia and Brazil,(y) 5th July, 1827; with Mexico,(*) 18th February, 1831, (Art. XI.) The Treaty between the Hanse Towns and Venezuela, (a) 27th May, 1837, (Art. XVI.) [*381] *In these Treaties, Contraband appears to be confined to weapons and munitions of war. CCLXXXIII. The Prussian Government has incorporated into its Code of Municipal Law, an article prohibiting the carriage by its subjects to any other nation, of Contraband, consisting of munitions of war, or of articles forbidden by Treaties of the nations to whom it is carried.(b) CCLXXXIV. In the following Treaties are specified articles which shall and which shall not be considered as Contraband between the contracting parties. 1662. Treaty between Denmark and France. 1669. Treaty between Denmark and Great Britain. (0) Treaty of Amity and Commerce between His Majesty and the Emperor of Brazil, signed at Rio de Janeiro, 17th Aug., 1827.-Hertslet's Treaties, vol. iv. p. 43. The reader is also referred to the ample catalogue of Treaties between all Powers, and at various times, in vol. ix. of the Traité de Commerce of MM. Hauterive and De Cussy, title "Contrebande de Guerre," p. 228, &c.; and vol. i. of the successor to this work, by MM. De Cussy and De Martens.-Index Explicatif, tit. Contrebande. (p) De Martens, N. R., t. vi. p. 831. (r) Ib., t. xi. p. 442. Ib. Nouv. Suppl. t. ii. p. 415. (x) Ib., t. xiii. p. 988. (9) Ib., t. x. p. 334. (s) Ib., t. xiii. p. 544. (u) De Martens, N. R., t. vi. p. 874. (y) Ib., t. vii. p. 274. (z) Ib., t. xii. p. 544. (a) Ib., t. xvi. p. 242. Heffters, % 160, refers to the above Treaties. Mr. Lawrence, in his recent edition of Wheaton's Elements, observes:-"The United States of North America have only made one. Treaty in which they have not confined Contraband to arms and munitions of war: viz., the Treaty of 1794 with England." -Wheaton's El., ed. Lawrence, p. 563, note. (United States' Statutes at Large, vol. viii.) (b) "Verbotene Waaren sind grobes Geschütz und die dazu gehörende Ammunition, Granaten, Bajonnette, Flinten, Karabiner, Pistolen, Kugeln, Flintensteine, Lunten, Pulver, Salpeter, Schwefel, Piken, Säbel, Degen, Sättel, Hauptgestelle, Zelte, und was sonst durch besondere Verträge zwischen den verscheidenen Nationen einzunehmen verboten ist."-Preussisches Landrecht, B. ii. 2 2034, p. 416. 1674. Treaty between Spain and Holland. 1794. Treaty between the United States and Great Britain. 1800. Treaty between Denmark and Russia. 1800. Treaty between France and the United States. 1803. Treaty between Great Britain and Sweden. 1810. Treaty between Great Britain and Portugal. 1818. Treaty between Denmark and Prussia. 1826. Treaty between France and Brazil. 1827. Treaty between Brazil and Denmark. CCLXXXV. ANOTHER limitation of the rights incident to the Neutral during peace, is imposed upon him by the right of the Belligerent during war; viz., it is the right of the Belligerent to prohibit the commerce of the Neutral with all besieged and blockaded places, and the duty of the Neutral scrupulously to abstain from all intercourse with them. Among the rights of Belligerents there is none more clear and incontrovertible, or more just and necessary in the application, than that which gives rise to the Law of Blockade. (a) CCLXXXVI. It is proposed to consider this important belligerent right under the following general heads : 1. For what purpose a Blockade may be constituted. 2. Who may constitute a Blockade. 3. What constitutes the Blockade. 4. What maintains or continues a Blockade. 5. What vitiates a Blockade. 6. How a Blockade, having been discontinued or abandoned may be resumed. 7. How a breach of Blockade is caused, and the consequences of it. 8. Berlin and Milan Decrees. Orders in council of 1809. North American United States' Non-Intercourse Act. *CCLXXXVII. (1.) For what purpose a Blockade may be constituted. (a) Kent's Comm., vol. i. p. 145. [*383] A blockade imposed for the purpose of obtaining a commercial monopoly, for the private advantage of the State which lays on such Blockade, is illegal and void on the very principle on which it is founded; but particular licences granted to individuals will not vitiate a Blockade.(b) The object of a Blockade is to prevent exports as well as imports, and to cut off all communication of commerce with the blockaded place. (c) CCLXXXVIII. (2.) Who may constitute a Blockade. A declaration of Blockade is a high act of Sovereign Power: it is a right of a very severe nature, operating lawfully, but often harshly, upon Neutrals, and therefore not to be aggravated or extended by construction.(d) Nevertheless, a Blockade is not one of those acts of sovereignty which cannot be delegated. (e) The reason of the thing prescribes that a commander must carry with him such a portion of sovereign authority delegated to him, as may be necessary to provide for the exigencies of the service on which he is employed. On stations in Europe where Government is almost always at hand to superintend and direct the course of operations, under which it may be expedient that particular hostilities should be carried on, it may be different. But in distant parts of the world a commander must be held to carry with him sufficient authority to act, as well against the commerce of the enemy as against the enemy himself, for the more immediate purpose of reduction.(f) And if a commander so circumstanced did not originally possess this authority, and it should appear that he had acted irregularly, *and without [*384] orders, this is an affair between him and his Government, and the Blockade would hardly be impeachable by the Neutral on that ground; certainly not if that Government, by its subsequent conduct, had adopted his act this would, on the principle ratihabitio mandato æquiparatur, retrospectively legitimate what had been done by their officer.(g) It follows from what has been already observed respecting the authority and power of the East India Company, (h) that it must be fully competent to the Governor-General of India to order a Blockade. This power of the delegate of the Crown is incident to a state of war, and arises from the necessity of the case; for in civil cases it is holden that the royal confirmation of the act of a delegate exceeding the terms of his express authority, cannot, as a general rule, be inferred from acquiescence.(i) CCLXXXIX. (3.) What constitutes a Blockade. For this object two circumstances must combine :(a.) A proper notification of the Blockade de jure. (6.) A sufficient force to maintain it de facto.(k) À blockade may be of different descriptions; a mere maritime Block (b) The Fox and others, 1 Edwards, p. 320, ad Rep. The Frederick Molke, 1 Rob., p. 87. (d) The Henrick and Maria, 1 Robinson's Ad. Rep., p. 148. The Juffrow Maria Schroeder, 3 Ib., p. 154. (e) Vide ante, vol. ii. p. 141. (g) The Rolla, 6 Rob., p. 366. (2) Cameron v. Kyte, 3 Knapp's k) The Betsey, 1 Rob., p. 93. Acton, p. 57. (f) The Rolla, 6 Rob., p. 366. (h) Vide ante, pp. 197-200. Privy Council Reports, p. 342. The Frederick Molke, ib., p. 86. The Nancy, 1 |