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the 27th of January 1631, that the vessel should be condemned, as being within the edict of the 26th June 1630.* What is said, moreover, in this third article about a free port, is explained by the fourth; for that cannot be understood to be a free port, which is under the same king or government with another which is not considered as such.
This decree of the 26th June 1630, was for some time not carried into execution, and in the mean while a free commercial intercourse in 1642 carried on with Flanders. During that period certain neutral vessels, trading thither were capsured by our vessels, and carried into Zealand. The contraband goods, however, were alone detained and condemned, and all the remainder was acquitted and released. It has been asked by what law the contraband goods were condemned under those circumstances, and there are those who deny the legality of their condemnation. It is evident, however, that while those coasts were guarded in a lax or remiss manner, the law of blockade, by which all neutral goods going to or coming from a blockaded port may be lawfully captured, might also have been relaxed; but not so the general law of war,
* Aitz. I. 11.
† This decree appears to us to have been very correct, not because the vessel had gone into a port of her own country, different from that of her actual destination, which, if she had done voluntarily, would have been a sufficient excuse, but because she had run into the port of Yarmouth to avoid pursuit, and was captured coming from thence, in consequence of which she was clearly within the letter of the third article of the cdict. T.
# The 4th article provides, that ships coming out of enemy's ports shall be condemned, if they are taken before they shall have been into their own or other free ports. (See above, p. 30.) Our author impressed with the idea that the words their own in the 3d article, only meant the ports of their actual destination, and being embarrassed by the words or other free ports in the 4th article, which clearly point to the opposite construction, thinks to get rid of his embarrassment, by assuming that other free ports cannot mean ports of the same country, that is to say, of the country to which the neutral belongs; thus arguing in a circle to which his first mistake unavoidably led him. We are loth to controvert the opinions of so great a writer, in any case, particularly when he is construing a law of his own country; but in the present instance the mistake is so obvious that we could not avoid noticing it.
T. $ Consil. Holland. vol. 2. Consil. 21.
by which contraband goods, when carried to an enemy's port, even though not blockaded, are liable to confiscation.
But although, as I have observed, the rigour of this decree of the 26th June 1630, may be sufficiently justified, it may however, be relaxed, if it shall be thought proper, and it has in fact often been relaxed. When admiral Van Tromp, in the year 1645, blockaded the ports of Flanders, with the fleet of the states-general, and asked of them, what he should do with neutral vessels, they decreed on the 1st of July, that neutrals should by all means be prevented from entering the ports of Flanders, but that their goods, not being contraband, should not be condemned.* The states, on that occasion, deviated from the principles which their predecessors had adopted in 1630. But when men change, what is there to prevent opinions from changing likewise?
If the principles which I have contended for in this and the two preceding chapters are correct, it will be easy with their help, to decide on the difference which took place between the English on one side, and the Poles and other nations on the other, of which Zouch gives us a particular account.t
* Aitz. 1. 4. Ibid. 1. 25.
| The difference to which our author alludes, is related by Zouch, substantially as follows: Queen Elizabeth being at war with Spain, had prohibited neutrals from carrying on any trade with that country. The ambassador of the king of Poland, in the name of his master, complained of it to the queen herself, in terms rather indecorous, to which she replied with becoming dignity, and defended her conduct by alleging, that the kings of Poland and Sweden lad acted in the same manner some time before in a similar circumstance. The fact was, however, that those sovereigns in the year 1572, being at war with the czar of Muscow, had merely prohibited the intercourse of neutrals with the ports of Livonia, which they blockaded with their ships, and which was at that time the theatre of the war by land, so that if Zouch is correct in his statement, the two cases were not parallel. But Elizabeth at that time was flushed with her victory over the invincible armada of Spain, and thought that there were no bounds to her maritime power.
To the Hanse Towns, Selden informs us, that she gave as a reason for the same proceeding, of which they also complained, that their ships could not go to Spain without passing through the English seas, which they had no right to do without her permission. Indeed, that author tells us that the measure
Of the mixture of lawful with contraband goods. /
F a neutral carries at the same time, lawful and unlawful
goods to the enemy, and the vessel should be taken, it is asked, “ whether the vessel itself and the lawful goods that are on board are to be condemned on account of those which are unlawful?” The same may be asked, if from any other cause, lawful and unlawful goods are mixed together. This was one of the several questions which were proposed in the year 1631, by the admiralty of Amsterdam to the statesgeneral, for the interpretation of their edict of the 1st of April 1622. But, although the states gave their answer to the other questions which were propounded to them at the same time, Aitzema informs us* that they kept this under advisement. And I do not find that any decision has been given upon it, either at that time, or at any time since; the states-general, however, on the 6th of May 1667, gave public orders to their courts of admiralty, that they should not condemn lawful goods, or even the ship, on account of illicit merchandize. Thus much and no more, we are told by Aitzema, and the states-general express themselves in the same general terms, in their several edicts of the 11th September 1665.
was not merely intended by Elizabeth to distress her enemies, but also to assert her claim to the dominion of the seas ( dominii maris causâ.) From his relation, however, and that of other respectable writers, such as Thuanus and Camden, it would seem that the prohibition was not general, as Zouch represents it, but was restricted to warlike stores and provisions, which at that time were by many considered as contraband. See on this subject, Zouch, ubi supra.-Selden, Mare Claus. 1. 2. c. 20.-Camden, Annal. sub anno 1597.— Thuan. Histor. 1. 96- Marquard. De Jure Mercat. p. 149. Koch, Hist. des Traités, vol. 3. p. 19–28.
T . L. 11. L. 47.
Consil. Belg. vol. 4. Consil 206. Q. 2.
But I am of opinion with the authors quoted by Zouch, in his treatise on the Law of Nations,* that there is a wide distinction to be made between the case where both the lawful and unlawful goods belong to the same owner, and that in which they are the property of different persons. If they belong to the same owner, then the whole may be lawfully condemned, as a just punishment for the offence; but on the contrary, if they are the property of different shippers, then the act of one of them ought not to affect the others. This distinction was very properly taken by the Dutch lawyers, on the 31st of July 1692. The Digestp also affords a strong argument in favour of this opinion, where, speaking of the owner of the vessel, Paulus distinguishes whether he knew or not that unlawful goods had been laden on board; if he knew of it, as if it was done in his presence, the law in that case declares that the ship also is forfeited; if on the contrary it had been done in his absence, and therefore he did not know of it, then the vessel is to be restored to him because he is not in fault. Zouch, however, without making any distinction, relates a case from Petrinus Bellus, by which it would seem that lawful goods had been condemned on account of others which were illicit, but on referring to that author, s it appears, that in that particular case, both the lawful and unlawful goods belonged to the same owner, who knew of the fraud, and therefore was properly punished with the confiscation of both: But of this we shall speak more at large presently.
In the meanwhile we shall turn our attention to the treaties and laws of our country, which have been made upon the subject: By the treaty of navigation between Spain and the states-general, of the 4th of February 1648, and the 12th article of the marine treaty between the same powers of the
* De Jure Fec. p. 2. § 8. Q. 13. In the original, the reference is by mistake to Q. 3. † Consil. Belg. vol. 4. Consil 210. $ ff de Public. & Vectigal. 1. 1. $ 2. $ Ubi suprà.
1 Zouch does not point out where the passage is to be found, but it is in Bellus's Treatise De Re Militari, part 9. 22. 26. 27. 28.
17th, 1650, it is simply agreed, “ that it shall not be lawful for the subjects of either country to carry contraband goods to the enemy of the other, otherwise, that such goods shall be confiscated. The same stipulation is contained in the 24th and 36th articles of the treaty between France and the statesgeneral of the 27th of April 1662, but without any particular provision as to goods not contraband. In like manner, the several edicts of the states-general against the English and against the English and French* after enumerating a long series of contraband articles, direct the confiscation of these, without saying any thing as to lawful goods which may be found with them.
But by the 7th article of the marine treaty between Charles II. of England and the states-general, a distinction is clearly made between lawful and contraband goods, and the latter, but not the former, are declared liable to confiscation; nay, if the unlawful goods are immediately delivered up to the captors, the ship is to be instantly released, with the remainder of the cargo, and suffered to proceed on her destined voyage. A similar provision is made in a variety of other treatiest in which they differ from the edicts above mentioned, which direct the ships to be sent into port for legal adjudication, in all cases where contraband goods are found on board. By the 7th article of the treaty of commerce between the king of Sweden and the states-general of the 26th of November 1675, it is only stipulated that contraband goods shall be confiscated, but not the ship or lawful merchandize. No provision is made, as in the other treaties, for the immediate release of the vessel and of the innocent part of the cargo.
* Of the 19th of March 1655, 14th of April 1672, and 11th of April 1673.
+ Marine treaty between the Swedes and the states-general of the 12th of October 1679, art. 21. 26.- Treaty of commerce between France and the states-general of the 10th of August 1678, art. 21. 26.- Treaty of commerce between the same, of the 20th September 1697, art. 26. 31. --and of the 11th of April 1713, art. 25. 30.
In the treaties of the United States with other nations, the most liberal principle has been adopted in respect to the seizure of vessels having con. traband goods on board going to the enemy. By the 17th article of our treaty with Great Britain of the 19th November 1794, it was stipulated