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Of Enemy's Goods found on board of neutral ships.
F a neutral ship be taken, having enemy's property on board,
two questions are to be considered: the one, whether the neutral ship itself, the other, whether the enemy's goods are liable to confiscation?
As to the first question, if we follow the ancient law of France, a neutral ship will be liable to confiscation for carrying enemy's goods. That such was the law of France, in ancient times, is clear, by the exemption from it granted to the Hanse Towns, in their treaty with that country of the 10th of May 1655. Grotius, in the passage mentioned in the preceding chapter, is of opinion, that the French law does not extend farther than to the case of a neutral ship, the owner of which knowingly receives enemy's goods on board,* relying on that law of the Digestt in which, as I have said above, a distinction is made between the master's knowing and his being ignorant of unlawful goods being laden on board of his ship; in the first case, but not in the second, the law directs the ship to be confiscated. Locceniusy also distinguishes the present case in the same manner.
* See the note * p. 103.
† Dominus navis, si illicitè aliquid in nave, vel ipse, vel vectores imposuerint, Navis quoque fisco vindicatur. Quod si absente Domino, à magistro del gubernatore aut proretá nautáve aliquod id factum sit: ipsi quidem capite puniuntur, commissis mercibus, navis autem Domino restituitur. If the owner of the ship or any of the passengers shall put any thing unlawfully on board, the ship shall also be confiscated. If, however, it shall have been done in the absence of the owner, by the master, mate, or some of the mariners, they shall be capitally punished, and the goods shall be confiscated, but the ship shall be restored to the owners. ff. de Public. & Vectig. 1. 11. $ 2.
C. 12. p. 94 $ Ubi suprà.
This distinction of Paulus* between the knowledge and ignorance of the master of the ship, is certainly very important, and has been very much attended to in the Roman law, but now is hardly of any force if the vessel belongs to the master himself; for it is generally he who receives the goods, and who attests their shipment by an instrument commonly called a bill of lading. It is of greater use, if the ship belongs to other owners than the captain, and he has received the goods without their knowledge, as I have already shewn in another place. It may, however, be doubted, whether other owners, if they have given a special authority to the master to take goods on freight, and he has shipped unlawful merchandize, are not bound for his act? In general the rule is, that he who entrusts an unfit person with his business, is answerable for his faults and for the frauds that he commits; and if a distinction is made between the master and another owner of the vessel, the question will present itself in a pretty difficult point of view. But this is not the ground that I go upon. I am wil. ling to admit, that the owners of the ship are bound for the act of the master, even without having given him a special authority; that the receiving of the goods was ordered by the owner himself, and that he knew in every case what goods were shipped on board of his vessel, and to whom they belonged; notwithstanding all that, I see no reason for confiscating the ship, merely for having enemy's property on board, whether or not the owner knew of or gave his consent to it.
I do not grant to Grotius, that the case which Paulus speaks of in the passage, which he cites, extends to that which we are now contending about. Not because in those things which depend solely upon reason, the principles of the law of nations may not safely be sought for in the rules of Roman jurisprudence, but because the doctrine of Paulus has no application here. He only speaks of a master of a vessel, who, knowingly or unknowingly, carries goods in fraud of the revenue. In that case, it is true, that if the master acts with full knowledge of the circumstances, he employs his vessel and his labour for an
* The author of the abovementioned passage in the Digest. T. † Above, c. 12. p. 96.
unlawful purpose, and she is justly liable to confiscation; for he who conceals and knowingly carries on board of his vessel, goods which ought to be declared for the purpose of paying the duties thereon, commits a fraud upon the public. And therefore, at present, by the laws of almost every country, ships which are employed in defrauding the revenue, are con fiscated, for no other reason than that they are employed in an illegal act.
I have myself adopted the same distinction of Paulus, with respect to contraband goods,* and have given it as my opinion, that if such goods were shipped on board of a neutral vessel, to be carried to the enemy, with the knowledge of the owners, the ship itself is also liable to be confiscated, unless there should be treaties to the contrary; because the owners in such a case are concerned in an act prohibited by law.
But now, let us pause and consider, whether he is guilty of any offence against the law of nations, who carries on board of his vessel the goods of his friend, although that friend is your enemy? By what right will you, who are my friend, capture my ship, merely because she carries your enemy's goods? 1, who am a friend to both parties, shall serve them both, in those things that are not hurtful to either, and in the same manner both will serve me in things that are indifferent. On this principle, your enemy may with propriety hire his vessel out to me, and I am at liberty to hire mine out to him. Of those who act thus innocently and without fraud, I have treated more at large in the preceding chapter, and if what I have said there is correct, there is no need of saying any more upon this question, but it must be laid down as a principle, that a neutral vessel is not liable to be confiscated for having enemy's goods on board, whether the owner of the vessel knew of it, or not; because, in either case, he knew that he was engaged in a lawful trade; and in this his case differs from that of him who knowingly carries contraband goods to the enemy. Wherefore, on the present question, I do not admit the application of the distinction made by Paulus; but I approve of the
Abore, p. 96.
opinion which was given in general terms by the Dutch lawyers, and is recorded in the Consilia Belgica,* that a neutral ship, although laden with enemy's goods, is not liable to confiscation.
We will now proceed to consider the second question, whether the enemy's goods themselves, taken on board of a neutral vessel are liable to confiscation? Some will wonder, perhaps, that any doubt should be entertained about it, as it is clearly lawful for a belligerent to take the property of his enemy. And yet, in all the treaties which I have cited in the preceding chapter,t there is an express stipulation, that “enemy's goods found on board of neutral vessels, shall be free,” or, (as we commonly express it), that free ships shall make free goods, except, however, contraband of war, when carrying to the enemy. And what will be thought more astonishing is, that among those treaties there are four to which France is a party, and according to them, even enemy's goods laden on board of neutral vessels are not liable to confiscation; much less, therefore, ought the neutral vessel to be confiscated, on board of which they are shipped. So that it must be said, either that the principle of the old French law which I have above mentioned, has been entirely abandoned, or, what is more probable, that those treaties are to be considered as exceptions to it. However this may be, we are bound, in the discussion of general principles, to attend more to reason than to treaties. And on rational grounds, I cannot see why it should not be lawful to take enemy's goods, although found on board of a neutral ship; for in that case, what the belligerent takes is still the property of his enemy, and by the laws of war, belongs to the captor.
It will be said, perhaps, that a belligerent may not lawfully take his enemy's goods on board of a neutral vessel, unless he should first take the neutral vessel itself; that he cannot do this without committing an act of violence upon his friend, in order to come at the property of his enemy, and that it is quite as unlawful as if he were to attack that enemy in a neutral port,
* Vol. 4. Consil 206. n. 2.
Above, p. 103.
or to commit depredations in the territory of a friend.* But it ought to be observed, that it is lawful to detain a neutral vessel, in order to ascertain, not by the flag merely, which may be fraudulently assumed, but by the documents themselves which are on board, whether she is really neutral. If she appear to be such, then she is to be dismissed, otherwise, she may be captured. And if this is lawful, as on every principle it is, and as it is generally practised, it will be lawful also to examine the documents which concern the cargo, and from thence to learn, whether there are enemy's goods concealed on board, and if any should be found, why may they not be captured by the law of war? The Dutch lawyers, whose opinion I have already cited, and the Consolato del Mare, in the chapter above referred to, are equally clear upon this point. According to them, the neutral ship is to be released; but the enemy's goods are to be carried into a port of the captor, and there condemned.
* It is worthy of observation, that our author, while he supports the belligerent principle, on the long agitated question, whether free ships “ do or do not make free goods," tacitly admits, that neutral vessels are entitled to be considered as neutral territory, a proposition which Mr. Hubner thought so self-evident, that he did not think it worth while (though he professedly wrote in favour of the neutral doctrine) to devote a single page of his work to its proof and development. Hubn. de la Saisie &c. vol. 1. p. 211. This principle being admitted, the question is reduced to the single point: “ Whether the right of taking enemy's property on board of neutral vessels, necessarily follows as a consequence of the right of search, for the purpose of ascertaining their neutral character?” On this point alone, the whole of our author's argument turns, and he maintains the affirmative; but like Hubner, he takes his proposition for granted, without taking any pains to demonstrate it. On the whole, he must be considered as having made a very important concession in favour of neutrals, and having greatly nar. rowed for them the field of that celebrated controversy. † Consil. Belg. ubi suprà.
C. 273. § 2. of Mr. Robinson's translation, and c. 276. § 1004. of that of M. Boucher.
T $ Above, p. 104. This opinion of our author is adopted, as we have shewn before, p. 105. in the case of neutral goods found on board of an enemy's vessel; but the contrary rule universally takes place in the case of enemy's goods taken on board of a neutral ship, in which case, as we have observed above, p. 81, the owner of the vessel is entitled to his freight, though he has not carried the goods to the place of their destination. Such is the opinion of