significationes fieri ad alios populos, tum ut de jure causæ, tum etiam ut de spe probabili juris exequendi appareat. euntes excutere liceret, nequis forte bellicus paratus occultaretur, concedere ne hoc quidem voluere, dicentes obtentum rapinis et commerciis turbandis quæri. Et eo federe quod Angli cum Hollandis eorumque sociis anno clɔ loc XXV. pepigere, id quidem convenit, ut rogarentur ceteræ gentes, quarum intererat magnitudinem Hispanicam infringi, ut et ipsæ vetarent cum Hispanis commercia, sed, si ultro id non facerent, placuit inspici naves num quid bellici instrumenti ferrent, sed ultra neque naves neque merces retentari, aut quicquam pacatis noceri eo nomine. Atque evenit eodem anno ut Hamburgenses quidam in Hispaniam irent nave maxima ex parte onusta apparatu bellico, qui ipse quidem apparatus ab Anglis vindicatus est, sed ceterarum mercium persolutum est pretium. Galli autem, cum ab Anglis naves Gallicæ in Hispaniam euntes in fiscum raperentur, ostenderunt pati se id nolle. Bene ergo dictum a nobis, significationes publicas requiri, quod et Angli ipsi ita sensere; a quibus factæ significationis talis exemplum est apud Camdenum circa annum clɔ ɔxci et clɔ lɔ XCVIII. Neque vero talibus significationibus semper paritum, sed distincta tempora, causæ, loca. Anno enim clocCCC LVIII Lubecensis civitas significationi a Dantiscanis sibi factæ, ne cum Malmogensibus nations, to make known both the justice of the cause, and also the probable hope of exacting their rights. [The note of Grotius respecting the cases in which the rights of belligerents against neutrals had then been enforced is so important, that I will give the substance of it below. I may observe that the rules which he has here laid down agree with the Rules of International Italian, and contains the constitutions of the Emperors of Greece and Germany, the kings of the Franks, of Spain, Cyprus, the Balearic Isles, of the Venetians, and of the Genoese. In Title 274 of this book, controversies of this kind are treated; and the rule given is this, that if the ships and the lading both belong to the enemy, the matter is plain, and they become the property of the captors. If the ship belong to a neutral, the goods to an enemy, the belligerent may compel the ship to go into a port of his own, paying the navigators for the freight. If, on the other hand, it is an enemy's ship, with the goods of a neutral, the ship is to be ransomed, and if the navigators refuse this, they may be taken into a port of the captors, and the captor must be paid for the use of the ship. In the year 1438, when the Hollanders were at war with Lubeck and other cities on the Baltic and the Elbe, they decided in full Senate, that goods of neutrals found in the enemy's ships were not good prize, and that law was afterwards maintained. So also in 1597, the king of Denmark judged, when he sent an embassy to the Hollanders, and their allies, asserting for his subjects the right of carrying goods into Spain, with which the Hollanders were then in fierce war. The French always permitted neutrals the right of carrying on commerce with those who were the enemies of France; and so indiscreetly, that their enemies often covered their goods with neutral names; as appears by an edict of 1543, chap. 42, which was copied again in an edict of 1584, and the following year. In those edicts, it is plainly declared that the friends of the French shall be allowed to carry on commerce during war, provided that they do it with their own ships and their own men; and that they may land where they please, provided the goods are not munitions of war; but if these are carried, it is declared to be lawful for the French to 5 Hanc autem quæstionem ad jus naturæ ideo retulimus, quia ex historiis 'nihil comperire potuimus ea de re jure vo et Memelensibus Dantisci hostibus mercaturam exerceret, parendum non censuit. Neque magis paruere Hollandi anno clɔ ɔLI. cum Lubecenses ipsis denuntiarent, ut a Danorum, quos ipsi hostes tum habebant, commercio abstineretur. Anno vero clɔ ɔxxi. quo tempore inter Suedos Danosque bellabatur, cum Danus Ansiaticas civitates rogasset ne cum Suedis commercia haberent, quædam civitates amicitia ipsius indigentes morem gessere, aliæ non item. Hollandi, bello ardente inter Suediam et Poloniæ regem, nunquam passi sunt sibi aut hujus aut illius gentis commercio interdici. Gallis autem semper reddidere naves quas ab Hispania revertentes, aut in Hispaniam, ipsis tunc hostilem, euntes Hollandicæ naves interceperant. Vide Ludovici Servini advocati quondam regii orationem habitam anno clɔlɔxc. in causa Hamburgensium. Verum iidem Batavi Dunquercam, ad quam classem habebant, ab Anglis merces inferri non siverunt: quomodo Dantiscani anno cIo cccc LV. Batavis denuntiarunt, nequid in urbem Regiomontanam inferrent, narrante Gaspare Schutzio in Historia Prussica. Adde Cabetum decisione XLIII. num. 2. et Seraphinum de Freitas in libro de Justo Imperio Lusitanorum Asiatico, ubi complures adducit alios. Nihil comperire potuimus ea de re Law, as laid down by modern authors: namely (see E. M. 1087, 1088), That Neutrals have no right of carrying Munitions of War, (Grotius's first class of supplies, called Contraband of War,) to one of the belligerents; and that they have no right of carrying anything to a place in a state of Blockade.] 5 We have referred this question to Natural Law because we have take such goods, paying a fair price for them. Here we note two points, that even munitions of war were not declared prize; still less goods of a peaceful character. I do not deny that the northern nations asserted other rules, but variously, and rather for an occasional purpose than as a permanent rule of equity. For when the English, under pretence of their wars, had interfered with the Danish commerce, a war arose between those two nations, of which the event was that the Danes imposed a tribute on England, which, under the name of the Danes' penny, remained, though the alleged reason was changed, to the time of William the Conqueror, the founder of the present dynasty in England, as Thuanus notes in the history of 1589. Again, Elizabeth, the sagacious queen of England, sent in 1575, Sir William Winter, and Robert Beal, secretary of state, to Holland to complain that the English could not allow the Dutch, in the heat of the war, to detain, as they had done, English ships bound to Spanish ports. So Reidan relates in his Batavian history, at the year 1575, and Camden, at the following year. But when the English had themselves gone to war with the Spanish, and interfered with the right of the German cities to sail to Spain, how doubtful the right was by which they did this, appears from the adverse arguments of both nations, which deserve to be read for the purpose of understanding this controversy. And it may be noted that the English themselves acknowledge this; since the two main arguments which they allege are, that what the Germans carried into Spain were munitions of war, and that there were old conventions which prohibited such an act. And conventions of this kind were made by the Hollanders and their allies, with the Lubeckers and their allies in the year 1613; to the effect that neither party should Polyb. i. 83. luntario gentium esse constitutum. Romanos qui Carthaginiensium hostibus commeatus attulerant, ipsi Carthaginienses aliquando ceperunt: eosdem iidem Carthaginienses repetentiPlut. Demet. bus Romanis reddiderunt. Demetrius cum Atticam teneret exercitu, jamque vicina oppida Eleusina et Rhamnuntem cepisset, Athenis famem facturus, navis frumentum inferre parantis p. 904 E. jure voluntario gentium esse constitutum] (cap. 29.) Thuanum in dicto anno clo lo LXXXIX. libro historiarum XCVI. Camdenum, præter jam dicta loca, in anno clɔ ɔ LXXXIX. et clo lo xcv. Ubi illa inter Anglos et Germanos, quos Ansiaticos vocant,controversia tractatur. 8 Et magistrum et gubernatorem not been able to find in history anything on the subject as determined by Instituted Law. When the Romans carried provisions to the enemies of the Carthaginians, they were sometimes taken prisoners by the Carthaginians, and then given up by the Carthaginians to the Romans on being demanded. When Demetrius held Attica with an army, and had taken Eleusis and Rhamnus, neighbouring towns, inpermit the subjects of an enemy to traffic in their country, nor should assist the enemy with soldiers, ships or provisions. And afterwards, in 1627, a convention was made between the kings of Sweden and of Denmark, to the effect that the Danes should prevent all commerce with the Dantzickers, the enemies of the Swedes; and should not allow any merchandize to pass the Sound, to the other enemies of the Swedes; for which terms the king of Denmark stipulated in turn certain advantages to himself. But these were special conventions, from which nothing can be inferred which is binding upon all. For what the Germans said in their declarations was, not that all merchandize was prohibited by this convention, but that only which was once carried to England or made in England. Nor were the Germans the only party who refused to acknowledge the doctrines of the English, forbidding commerce with their enemy. For Poland complained by her ambassador that the Laws of Nations were infringed, when, on account of the English war with Spain, they were deprived of the power of trafficking with the Spanish; as Camden and Reidan mention under the year 1597. And the French, after the peace of Vervins with Spain, when Elizabeth of England persisted in the war, being requested by the English to allow their ships going to Spain to be visited, that they might not privily carry munitions of war, would not permit this; saying that the request, if granted, would be made a pretext for spoliation and disturbance of commerce. And in the league which the English made with the Hollanders and their allies in the year 1625, a convention was indeed made, that other nations, whose interest it was that the power of Spain should be broken, should be requested to forbid commerce with Spain; but if they would not agree to this, that their ships should be searched, to see whether they carried munitions of war; but that beyond this, neither the ships nor the cargo should be detained, nor that any damage should be done to neutrals on that ground. And in the same year it happened, that certain Hamburghers went to Spain in a ship laden for the most part with munitions of war; and this part of the lading was claimed by the English; but the rest of the et magistrum et gubernatorem suspendit, atque eo modo deterritis ceteris potitus urbe est. VI. 1 Modum agendi quod attinet, vis ac terror maxime propria bellorum. An et dolis uti liceat quæri solet. Nam Homerus quidem dixit hosti nocendum : 2*Η δόλῳ, ἠὲ βίῃ, ἢ ἀμφαδόν, ἠὲ κρυφηδόν. suspendit] Non multum dissimile est quod de Pompeio narrat Plutarchus in Mithridatici Belli Historia : ἐπέστηκε φύλακας τῶν νεῶν ἐπὶ τοὺς πλέοντας εἰς Βόσφορον ἐμπόρους. καὶ θάνατος ἦν ἡ ζημία τοῖς αλισκομένοις custodes imposuit Bosphoro, qui observarent si qui mercatorum in Bosphorum navigarent: deprehensis pœna mors. (Pag. 639 E.) 2 Non est versus Homericus, sed pars ejus legitur Odyss. Ix. 119. et Lib. tending to reduce Athens by famine, and when a ship attempted to introduce corn into the city, he hung the captain and the pilot of the ship, and thus, deterring others, became master of the city. VI. 1 As to the mode of acting in war, force and terror are the appropriate means. Whether it is allowable to use stratagem also, is a lading was paid for. But the French, when French ships going to Spain were confiscated by the English, shewed that they would not tolerate this. Therefore we have rightly said that public declarations are required. And this the English themselves saw the necessity of. For they made such public declaration in 1591 and 1598, as we see in Camden. Nor have such declarations always been obeyed, but times, causes, and places have been made grounds of distinctions. In 1458 the city of Lubeck refused to obey a notice given to them by the Dantzickers, that they were not to trade with the people of Malmoge and Memel. Nor did the Hollanders in 1551 obey, when the Lubeckers gave them notice to abstain from traffic with the Danes with whom they were then at war. In the year 1522, when there was a war between Sweden and Denmark, when the Danes had asked the Hanseatic cities not to have commerce with the Swedes, some of the cities who had need of their friendship conformed to this, but others did not. The Hollanders, when war was raging between Sweden and Poland, never allowed their commerce with either nation to be interdicted. The French always restored the Dutch ships which they took either going to or coming from Spain, then at war with them. See the pleading of Louis Servinus, held in 1592, in the case of the Hamburghers. But the same Dutch did not allow the English to carry merchandize into Dunkirk, before which they had a fleet; as the Dantzickers in 1455 did not allow the Dutch to carry anything into Königsberg. [See the authorities. See also the subsequent views entertained on this subject, E. M. 1085–1091, and the authorities there quoted.] [Grotius's note.] There is much on this subject in Meursius's Danish History, B. 1. and II. There you will see that the Lubeckers and the Emperor are for commerce, the Danes against it. Also see Crantzius, Thuanus, as quoted, Camden, besides the passages already quoted, on the years 1589 and 1595; where that controversy between the English and those Germans whom they call the Hanse towns is treated of. Et Pindari est (Isthmiac. IV. 82): Χρὴ δὲ πᾶν ἔρ δοντ ̓ ἀμαυρῶσαι τὸν ἐχθρόν. Plutarch in pseud. pp. 326, 327. Cyri inst. i. 6. et de re equest. c. 5. Quidvis agendo scilicet hostica Apud Virgilium [Æneid. ii. v. 300] quoque dictum illud, sequitur ipse Ripheus, justissimus unus Qui fuit in Teucris et servantissimus æqui. Et legitur hoc ipsum imitatus sapientiæ nomine nobilissimus Exin virtuti placuit dolus. 2 Apud Homerum Ulysses viri sapientis exemplum, plenus ubique fraudium in hostem : unde Lucianus regulam elicit, Luc. Philo laude dignos qui hostem fallunt. Nihil utilius in bello dolis Xenophon dixit, et Brasidas apud Thucydidem præclaram imprimis laudem esse ex belli furtis: et apud Plutarchum Agesilaus hostes decipere et justum et licitum esse. Polybius, quæ vi fiunt in bello minoris censenda, quam quæ ex occasione Polyb. ix. 2. et dolo: et ex eo Silius Corvinum sic inducit loquentem: iBellandum est astu: levior laus in duce dextra. Atque ita censuisse ipsos illos severos Laconas notat PlutarVit. Marcell. chus, ac majorem etiam victimam ab eo immolatam, qui dolo, n. 9. Lib. v. v. 100. p. 311 B. I. vers. 295, 296. Habet Auctor e Sto- h Belli furtis] Ita et Virgilius loqui- tius, quem citat Servius. [Vide Nonium Marcellum, voce Furtum, pag. 310. Ed. Mercer.] i Bellandum est astu] Muhammedis dictum simile: elharbu Hudiatum, id common question. It is assumed that it is, by Homer, Pindar, Virgil, Solon, Silius. [See the passages quoted.] 2 Ulysses in Homer, the example of a wise man, is full of stratagems towards the enemy; and Lucian praises those who deceive the enemy. Xenophon said that in war nothing was so useful as deceit; so in Thucydides, Brasidas; and in Plutarch, Agesilaus. Polybius and Silius say that in war fraud is better than force; so the severe Lacedæmonians thought, as Plutarch says: and so he praises Lysander and Philopemen. So Ammianus. 3 The Roman Jurists call it good deceit (bonus dolus) which a man practises against an enemy, and say that it makes no difference whether any one elude the enemy by force or by fraud. So Eustathius. |