Questions of Public Law (1737)
Cornelius van Bynkershoek
IN ancient Rome it was a capital crime to sell arms to the barbarians, that is to say, it was capital in subjects, for whom alone the Romans made laws. And now as well, it is everywhere a capital crime for a subject to convey arms to the country’s enemies. By the first section of the solemn edict of the States-General against the English, dated December 5, 1652, he is treated as an enemy, be he a subject or a foreigner, who conveys any merchandise whatsoever to England. However, in the edict of the States-General against the Portuguese, dated December 31, 1657, this rule is more justly restricted to that which we generally term contraband. By the first clause of the edicts of the States-General against the English and French, dated April 14, 1672, and April 11, 1673, and by the first clause of the edict of March 19, 1665, against the English, he is punished as a public enemy who carries to the hostile nation any ammunition of war, provisions, materials for the building or fitting of ships, or any other prohibited articles. The same penalty holds for any foreigner who conveys those things from our territory to the enemy.
Now, the States-General, as well as other sovereigns, may make laws at pleasure for their own subjects, but not for foreigners. Hence the fair question arises what it is permissible by the law of nations for us to carry to the enemies of our friends, or, what amounts to the same, what our friends may carry to our enemies. Whatever is not permissible is properly confiscated if our friend takes it, and thus alone the penalty of the law is satisfied. Grotius in discussing this question distinguishes between goods useful for purposes of war, those which are not, and those which are of use promiscuously both in and out of war. The first class he forbids neutrals to carry to our enemies, the second he permits, the third he sometimes prohibits and sometimes permits. If we follow the principles laid down in the preceding chapter, we need not concern ourselves seriously with the first two classes. Grotius divides the third class, permitting the intercepting of things of promiscuous use, but only in case of necessity, when we cannot otherwise protect ourselves and our property, and then under the obligation of restitution. But to pass over other objections, we must ask who will be judge of this necessity, for it is very easy to use this as a pretext. Shall the one who seized the articles? This, I think, is Grotius’s view, but all laws prohibit men from sitting as judges in their own case except in so far as custom, the prince of tyrants, permits it when treaties between sovereigns are to be interpreted. Nor have I been able to discover that the practices of nations support this distinction drawn by Grotius; they rather support what he says in the following paragraph, that it is unlawful to carry to the besieged articles of the third class, since in doing so we should benefit one to the destruction of the other, as will be more fully explained in the next chapter. As to his next following rule that a distinction must be made between a just and unjust cause, I think I have proved in the preceding chapter that it may be applied to allies in a certain case but never to neutrals.
It is only from reason and custom that we can learn the general law of nations in this matter. Reason declares that I am equally friendly to both powers at war if both continue their amity with me, whence it follows that I cannot show preference to either so far as concerns the war. The rule of custom may be learned from the almost unbroken practices in treaties and edicts, for sovereigns have often made such regulations by treaties with a view to a possible outbreak of war, and also by edicts after war has broken out. I said ‘almost unbroken practices’, for one or two treaties which vary from the general usage do not alter the law of nations. It is agreed among almost all nations that it is not lawful for a friend to convey to our enemy, arms or other things that come under the designation of contraband goods, nevertheless by the tenth section of the treaty of Westminster between the English and the Portuguese in 1654, it was agreed that the English should be permitted to carry such things to the enemies of the Portuguese, as Zentgravius observes. The United Provinces obtained the same permission from the Portuguese by the treaty of August 6, 1661, section twelve. Otherwise, this rule, supported by an almost unbroken line of treaties, is that neutrals may not carry contraband goods to our enemy, and that if they do, and are caught, the goods are confiscated; but with the exception of contraband, they may freely trade with either party and carry anything to them with impunity.
Following these principles the Dutch had permission, by the marine treaty between Spain and the States-General of December 17, 1650, to trade with the French in any kind of wares, just as it had had before the war between the French and Spanish; however, the restriction was added that the Dutch should not carry to the French, out of Spanish territory, articles that might be of service against Spain, and furthermore that the Dutch should not carry contraband goods to any of the other enemies of Spain, and a list of contraband articles is given in the sixth paragraph of the treaty. Again, in the second section of the above-mentioned edict of the States-General against the English on December 5, 1652, neutrals are forbidden to carry to the English any munitions of war or any material serving for the equipment of vessels. There is the same prohibition against contraband goods in section two of the above-mentioned edicts of 1665, 1672, and 1673, where, after an enumeration of various species of contraband articles, it is added ‘and all other articles manufactured and prepared for warlike use’. Similar rules are found in Articles 27 and 28 of the commercial treaty between the French and the States-General (April 27, 1662), in Article 3 of the maritime treaty between Charles II of England and the States-General (December 1, 1674), in section 3 of the commercial treaty between the King of Sweden and the States-General (November 26, 1675), in section 15 of the marine treaty between the same signatories (October 12, 1679), the fifteenth article of the commercial treaty between the French and the States-General of August 10, 1678, in the eleventh article of the edict of the States-General of July 28, 1705, on contraband, and in other treaties of other nations, some of which are given by Zentgravius.
From these I understand that those articles are contraband which are proper for war, and it is of no consequence whether or not they are of any use outside of war. Very few of the instruments of war cannot also be of service out of war. We carry swords for ornamental purposes and we use them in the punishment of criminals; even gunpowder we employ for our amusement and to express public joy; yet we do not doubt that these fall under the title of contraband goods. About those things that may equally well be of use in war and peace, there might be an interminable discussion, even if we follow Grotius’s opinion regarding necessaries and the various distinctions he lays down. If you will examine the treaties which we have mentioned, and others of other nations, you will find that everything is called contraband which serves warlike purposes in the form in which it is brought, whether it be an instrument of war or material by itself fit for use in war. It should be noted that the decree of the States-General against the Swedes, of May 6, 1667, declaring contraband all materials that might readily be adapted for purposes of war, even if not by themselves adapted, was founded on a special plea of the right of retorsion, as they say in the decree.
Hence you may judge whether the material out of which prohibited articles are made is also prohibited, an opinion toward which Zouche leans though he does not precisely state his view. I do not accept this, for reason and precedents incline me to the contrary-view. If we are to prohibit all materials out of which instruments of war may be made, there would be an immense catalogue of prohibited articles, since there is hardly any material out of which we cannot readily make some article useful for war. If we prohibited this we would all but forbid all commerce, which would be quite useless. Section 4 of the treaty of December 1, 1674, also of the treaty of November 26, 1675, and section 16 of the treaty of October 12, 1679, all mentioned above, after prohibiting neutrals from carrying arms to enemies, permit the carrying of iron, bronze, metals, materials for building ships, in fact all things which are not made for purposes of war. Sometimes, however, it happens that materials for shipbuilding is forbidden, if the enemy is especially in need of this and cannot readily wage war without it. When the States-General, by Article 2 of the edict against the Portuguese of December 31, 1657, prohibited the supplying the Portuguese with those things which are generally considered as contraband of war, they especially added in section 3 of the same edict that, since they feared no harm from the Portuguese except on the sea, no one should carry to them the material needed for ships. Thus they made a clear distinction between material for ships and contraband, though it was prohibited for a special reason. For the same reason the material for ships is joined to articles of war in the second section of the said edict against the English, dated December 5, 1652, and in the edict of the States-General against the French, dated March 9, 1689. But these are exceptions that confirm the rule.
Some have asked whether scabbards should be classed as arms and instruments of war, and Pierino Belli notes, though with disapproval, that they have so been adjudged by military courts. Zouche is, as usual, content to give the arguments for and against without a decision. I would approve of the decision of the court rather than the opinion of Belli, since a scabbard, though of general use, is an instrument made for purposes of war: we could not use the sword without scabbards, and we could not have wars without swords. Even pistol-cases, saddles, and belts are enumerated among contraband goods in sections 2, 3, and 5 of the edicts and treaties mentioned above. In their use pistol-cases differ little from scabbards, since they are made to hold firearms as the latter to hold swords. Surely these and other articles might be excluded from the list if they were found in very small quantities, and the said article 3 of the treaty of November 26, 1675, contains an exception reading ‘unless these instruments are so few that it might be inferred that they were not intended for purposes of war’.
A question has also been raised about sword-hilts. These I think are in the same class as scabbards, for they are articles made and suitable for purposes of war, and these are also enumerated among prohibited articles in certain of the edicts and treaties mentioned above. About saltpetre there might be more room for doubt, because it is not of itself a material suitable for warfare, and yet it appears in almost all the lists of prohibited articles that I have mentioned, for gunpowder is chiefly made from it, and that is now the principle article used in war. I have even noticed that saltpetre is often named without mention of gunpowder, though often it is mentioned together with the latter. When gunpowder is omitted, saltpetre is mentioned in lieu of it; when it is added the two words are considered as synonymous, unless nations have now come to exclude saltpetre entirely from the list of articles not directly fit for war, on account of its predominant service in war. Zouche relates that the English and the Spaniards have contended vehemently about the proper classification of tobacco, the latter judging it contraband to the great indignation of the English, who consequently issued reprisals against them. Whether this controversy has now gone up in smoke I know not; at any rate I cannot agree with the Spaniards because tobacco can certainly not be of service in destroying the enemy. It is certainly lawful for a neutral to carry tobacco to the enemy of his friends according to the above-cited articles 3, 4, 15, and 16, for by these articles it is permissible to carry to the enemies of our friends all things which in their present state are not fit for purposes of war, and furthermore tobacco is explicitly mentioned among the permitted articles in the aforesaid clause 4 of the treaty of December 1, 1674.
It is clear according to the Roman law that if a pledge is confiscated the private claim is not extinguished. Hence if neutrals have shipped contraband goods to our enemies, and have pledged their goods for the freight, if the goods are taken on the voyage and confiscated as contraband, the Dutch courts have held that the captain is thence entitled to his freight as though the whole voyage had been completed. And it is related that it was thus decided by the Court of Admiralty of North Holland on May 6, 1665, and of Friesland on July 12 of the same year, on the principles that ‘obligations go with the property’ and ‘private claims take precedence before public’ and others of like nature. But the Court of Admiralty of Amsterdam-on July 9, 1666, decided differently, refusing to allow the claim for the freight, without prejudice, however, to claims against whomsoever else it might concern. This decision was entirely proper, for the freight is not due unless the voyage is completed, and in this case the enemy lawfully prevented its completion. Then contraband goods are condemned either ex delicto, in which case the captain is as much at fault as the owner of the prohibited articles, or ex re for the very carriage of the foods themselves: for though we may not be able to prohibit a neutral from engaging in commerce with our enemy, we can prevent him from aiding our enemy to our injury. Consequently, what is confiscated will be taken without respect to any person, and will be considered as having perished by the hand of Providence, so that every obligation is extinguished. But I am not surprised that those counsellors held that the captain had a preferred claim for freight upon the condemned cargo; I rather wonder that they did not also give a preference to the owners of the contraband goods, for these also have jus in re, namely the right of property, which is the strongest of all.
It is held that the subject of an allied power who is trading with a common enemy cannot be punished by us, and that his goods cannot be confiscated by us, since every sovereign has the execution of his own decrees, and allies have no jurisdiction in such cases. However, reason, usage, and public utility have annulled this decision. On this matter the reader may consult Aitzema. I refrain from discussing it since it seems to me not to concern the subject of contraband.