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dering whether it belongs to the same owner or not. But this distinction, as the separation can always be made, is neither founded on reason, nor on any authority of law. It is more reasonable, and at the same time more consonant to legal principles, to distinguish whether the lawful goods belong to another than the author of the fraud; then the principle properly applies, that one person should not be deprived of his goods for the fraud of another. This doctrine may be supported by a variety of authorities taken from the Roman law, in analogous cases; as if one of several co-heirs defrauds the revenue of the tax on dutiable property belonging to the estate of the deceased, the shares of the other heirs are not on that account to be confiscated.* In the same manner, if the farmer or servants of a landholder should manufacture iron on his estate, contrary to law,f if it should be done without the knowledge of the owner, he shall not suffer any penalty,^: nor shall the bottomry or respondentia creditor suffer, if by the fraud of his debtor in shipping unlawful goods, the ship and cargo should be confiscated.^
But what if the owners of lawful goods should merely have known that others had laden unlawful merchandize on board of the same vessel? Shall this mere knowledge occasion also the confiscation of the lawful goods. Such appears to have been the opinion of a certain lawyer, which is recorded in the Consilia Belgica,-^ but I do not agree with him, nor do I find that be is supported by any authority; he might, perhaps, have appealed, (though he does not do it), to the abovementioned text of the Digest, where it is said, that the owner is not to suffer, if his farmer or servants have manufactured iron upon his estate without his knowledge: from whence he might have implied, that if the same thing is done with the knowledge of the owner, he ought to be punished, because it was
* ff de Public, et Vectigsd. 1. 8. § 1.
f By the Roman law, no individual was allowed to manufacture arms without the special permission of the government. Cod. 1. 10. tit 46. Lex unica. Ut armorum usus initio principe interdictus sit- T.
\ ff de Public, et Vect. 1. 16. § 11.
§ Cod. de Naut. Fan. 1. 3.
f Vol. 4. Consil. 10.
his duty to forbid it, and to order his farmer and servants not to do any thing unlawful upon his estate. But, if several owners, as is often the case, ship their goods on board of the same vessel, they have no control over each other, nor over the master who receives the goods on freight. Therefore, the owner of the lawful goods ought not to suffer for what he cannot prohibit; he might, indeed, not have shipped his goods on board of that vessel, but if it was not convenient for him so to do, he cannot be made answerable for the act or fraud of another person.*
Such is my opinion, and I wish that the several treaties and edicts which I have cited, had spoken more expliciUy upon the subject. It will be said, perhaps, that the distinctions which are not therein expressed, are to be tacitly understood, and that thus the treaties and edicts may be interpreted according to each particular case. I wish that I could be of that opinion; but I fear that it cannot be done, because of the too great generality of the expressions. What Albericus Gentilis has written on all these subjects, is full of obscurity and confusion.f
* By the law of France, if a vessel is captured with contraband on board going to the enemy, the contraband poods only are forfeited, but the vessel and the remainder of the cargo are to be released, unless the contraband articles amount to three-fourths of the cargo, in which case, the whole of the merchandize on board is to be condemned, as well as tfce ship. Ordin. of the 26th of July 1778, art. 1. 2. Code des Prises, 672, edit. 1784.
The rule in England, is to condemn only the contraband articles, and to restore the rest of the cargo and the ship, but without freight! provided, however, that they belong to a different owner from that of the illicit goods, who did not know of the illegality of the voyage, and was not by himself or his agent, concerned in any fraud or concealment, to impose upon the officers of the belligerent nation, by masking the real destination of the ship, covering enemy's property, or otherwise, and was not acting in violation of a treaty of his own country.—The Mercurius, Meincke, 1 Rob. 242.—The Mercurius, Geddes, ibid. 70.—The Jonge Tobias, ibid. 278. —The Princua, 2 Rob. 42—The Rosalie 15 Betty, ibid. 292.—The Franklin, 3 Rob. 183.— The Neutrality, 3 Rob. 240. Amer. edit. T.
t De Advoc. Hispan. 1.1. c. 20.
Of Neutral Goods found on board of the ships of enemies.
IN the year 1602, after the conquest of Portugal by the Spaniards, several Portuguese ships were captured by the Dutch, who were then at war with Spain. Grotius, who relates the fact,* says, "that it was more difficult to decide whether the goods of the Italians which were found on board of the captured ships, were lawful prize," and he adds, " that the matter was decided by a compromise bctxveen equity and the law of war." That respectable writer, therefore, doubted whether neutral goods found on board the ships of enemies, were to be considered as enemy goods; but he entertained no such doubt in 1625, when he wrote his treatise De Jure Belli ac Pacts; for in that work he expressly says: "That nothing is acquired by the law of war, but what belongs to the enemy, and not the property of neutrals, although it be found on the enemy's territory;" and he infers from thence, that the vulgar saying, "that goods found on board of an enemy's ships are to be considered as belonging to the enemy," is not warranted by the law of nations, but that such are only to be presumed enemy goods, until the contrary is proved. He adds, that it was so decided in Holland, in full court, in the year 1338, while we were at war with the Hanse Towns, and that that decision has passed into a law.f He gives it his approbation in another place, where he treats of the same subject.:):
I must own, that I blush at my ignorance, for not having been able to find that decision of the year 1338, nor can I understand by what court it was pronounced; for it is a fact of public notoriety, that it was not until near a century after
* Hist. Belg. 1. 11. sub anno 1602.
wards, that the court of Holland was instituted by Philip of Burgundy. This, indeed, was corrected by Grotius, in a new edition of his book, in which he substituted the year 1438 instead of 1338.* But in the latest edition, published in 1632, in the octavo form, (which Grotius himself certifies to be entirely correct), the year 1338 is again mentioned, and this date has been followed by those who have quoted that passage out of his book.f Even my learned friend Barbeyrac has preserved the same year 1338, in his French translation of Grotius,\ and attributes that decree to the states-general, although they never exercised judicial powers, nor ever were considered as a court of judicature; at any rate, the true date of it must be the year 1438, as Grotius alludes to the Hanseatic war, of which there is a book preserved among the archives of the court of Holland, entitled Oosterlingen.§
Although that decree of the year 1438, has escaped my diligent inquiry, I nevertheless believe Grotius's assertion, without requiring any other proof of the fact, and I can easily conceive how others have followed his opinion on the credit of his character alone, and without its being supported by any other authority. Thus Loccenius\\ speaks of the principle which Grotius lays down as being established law, and so do the six advocates whose opinions are recorded in Consilia Belgica.^ I think, however, that they go too far when they seem to intimate that it would be otherwise if public notice
• In what we believe to be the last edition of Grotius's work, Utrecht 1773, the error appears to have been corrected. The decree there is said to have been pronounced in 1438. T.
t Zouch, de Jure Fee. p. 2. § a Q. 25.—Consil. Bclg. vol. 3. Consil 253.
^ It is not so in the Amsterdam edition of Barbeyrac's translation, printed in 1724, which Mr. Bynkershoek, it seems, had not before him when he composed this work. The decree there is said to have been given in
§ Or the Easterlings; by which name the inhabitants of the Hanse Towns
|| lies in hostium navibus repertx pnesumuntur esse hostium, donee contrarium probetur. Things found on board the enemy's ships are presumed to belong to the enemy, until the contrary is proved. Loccen. Be Jure Marit. 1. 2.
were formerly known.
c. 4. n. 11.
had been given that no neutral should ship his goods on board of an enemy's vessel, or if he who shipped them, was ignorant of the war.*
If by the general law of nations, it is lawful for a neutral to ship his goods on board of an enemy's vessel, I cannot conceive how it can be rendered otherwise by the proclamation of a belligerent sovereign. I am at liberty to carry on trade with two nations, who are in friendship with me, but at war with each other, unless I am prevented by express or tacit conventions, (as is almost always the case with respect to ^contraband;) what, then, if one of those nations, without the consent of the other, should prohibit altogether my trading with her enemy? Such an interdiction would be unjust as to all but the subjects of the prohibiting nation. Grotius appears to have been of this opinion,t otherwise he justly thinks that respect is due to the public proclamations of sovereigns, and that they are not to be disregarded with impunity.
As to the other point, what matters it, whether he who has shipped his goods on board of the enemy's ship, did or did not know of the war? Suppose that he did know of it, and that he also knew that the ship belonged to an enemy, the question will still recur, whether he has acted lawfully or unlawfully in shipping the goods? These fine spun niceties, although they may serve to make a display of legal ingenuity, cannot fail to be rejected by those who follow the rules of plain unsophisticated common sense.
Before I express my own opinion, I must first consult the treaties which have been made between different nations upon the subject. As far as I can understand, they nearly agree with the French law, which is laid down by Mornac^ que la robe de Pennemi confisque cells de Pami.§ Grotius\\ attempts
* The same opinion is given in Consil. B'elg. vol. 4. Consil. 207.
t Ubi suprd, not. 4.
% Ad 1. Penult. § 1. ff. locati conducti.
§ " That the goods of an enemy produce the confiscation of those of a Friend." The word robe in the old French idiom signified effects, goods, furniture, ixearing apparel and the like. Roba in Italian, ropa'va Spanish, and roupa in Portuguese, at this day, mean the same thing. T. || In not. ad 13. de J. B. ac P. c. 6. § 6.