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to explain away the rigour of this law, and understands it to mean, that if enemy goods are shipped on board of a neutral vessel, with the consent of the owner of the ship, then the ship herself, though neutral, is liable to confiscation.* But this is not the subject before us, and will be treated in the next chapter. If, however, the consent of the owner of the vessel is the cause of her confiscation, why do we not confiscate neutral goods, which, with their owner's consent, are shipped on board of an enemy's vessel? Of this, Grotius has said nothing, and yet the rule of reciprocity required that the same law should be applied to both cases.
But if, setting aside for a moment these considerations, we turn to the treaties themselves: we shall find that they all simply stipulate, that "neutral goods found on board of an enemy's vessel, are liable to confiscation."f In this they have adopted the principle of the old French law, which confiscates the goods of neutrals merely because they are found on board of the vessel of an enemy4 and therefore do not agree with what Grotius states to have been decided by the court of Holland,
• But Valin rebukes him strongly for entertaining this opinion. "Grotius," says he, "pretends that our ordinances are to be understood with this restriction; it would, if it were admitted, furnish an excuse to the neutral master, with which he never would fail to elude the confiscation of his vessel and the remainder of his cargo." Valin, Traits des Prises, p. 64.
There is no doubt that such was the ancient law of France, and that it confiscated alike neutral goods found on board the enemy's ships, and neutral ships carrying enemy's goods; so true it is, that injustice has always followed power. T.
\ Marine treaty between Spain and the states-general of the 17th December 1650, art. 13.—Treaty of commerce betw een France and the statesgeneral of the 27th of April 1662, art. 35.—Treaty between the same powers of the 10th of August 1678, art. 22.—Of the 20th of September 1697, art. 27.—11th of April 1713, art. 26 —Between England and the states-' general, 1st of December 1674, art. 8.—Sweden and the states-general of the 26th of November 1675, art —. And 12th of October 1679, art 22.
t But by the same treaties, as will be seen in the next chapter, it was on the other hand stipulated that enemy's goods found on board of neutral ships should not be liable to confiscation, or in other words, that free ships should maie free goods; so that if, in one respect, they were conformable to the old severe law of France, they established upon the whole, the more equitable principles of the modern law of nations. 7'.
and to have obtained the force of a law. It is true, that the treaties which I have related are subsequent, and that they are of no force except between those who are parties to them. But the rule which they establish cannot be defended on rational principles: for why should I not be allowed to make use of my friend's ship to carry my property, notwithstanding his being at war with you? If treaties do not prohibit, I am at liberty, as I have already said, to trade with your enemy; and if so, I may likewise enter into any kind of contract with him, buy, sell, let, hire, &c. Therefore, if I have engaged his vessel and his labour, to carry my goods across the seas, I have done that which was lawful on every principle. You, as his enemy, may take and confiscate his ship, but by what law will you also take and confiscate the goods that belong to me, who am your friend? All that I am bound to do, is, to prove that they are really mine; for here I agree with Grotius, that there is some room for presuming, that goods found on board of an enemy's vessels are the property of the enemy.
But what shall we say, if the owners of the goods knew and consented that they should be shipped on board of the vessel of their friend, indeed, but of your enemy? I should think that this knowledge and consent do not authorize a confiscation; The matter depends upon this only question, whether the owners of the goods, in shipping them on board of an enemy's vessel have acted lawfully or unlawfully? I have contended for the former position, because, as I may lawfully carry on any kind of trade with your enemy, I think that I may therefore enter with him into any kind of contract, and make use, for a valuable consideration, of his ship for my own utility. Take, if you can, every thing which belongs to your enemy, but restore to me what is my own, because I am your friend, and in shipping my goods, I have not intended to do you any injury.
With what I have said, nearly agrees what is laid down in the Consolato del Mare, to wit: "that the enemy's ship when taken, belongs to the captors, and the neutral goods to the owners thereof, but that those owners may, if they are present, compound for the purchase of the vessel, and thus be enabled to prosecute their voyage.* If, however, a composition does not take place, the vessel may be carried into a port of the captor, but still the goods are to be restored to their owners, on paying the freight thereof, in the same manner as if the voyage had been performed." I approve of this general doctrine; but what is said there on the subject of freight, I cannot admit to be founded in law. I understand very well, that he who has taken the vessel, has also taken all the right arising out of it which belonged to her or to the master; but the freight was not due to the ship, nor to the captain, unless the goods had been carried to their destined port.f The question, however, is asked, whether, if a ship is taken in the course of her voyage, the owner of the goods on board is obliged to pay freight to the captor? I answer, that if the captor is ready to carry the ship with the goods to the place of their destination, I think that he is entitled to demand his freight, otherwise I am of opinion that he is not. The shipper is sufficiently punished for his imprudence, in putting his goods on board an enemy's vessel, when he is obliged to claim them at his own expense, and to carry them away at his own risk. I have shewn, in a former chapter,:): that difficult questions will arise respecting this matter of freight, and that it requires a sound judgment to form a correct opinion upon them.
* Consol. del Mar. c. 27:3. This chapter has been elegantly translated into English, by the learned Dr. Robinson, and is bound together with his interesting collection, entitled, Collectanea Maritima, London, Butterworth 1801. The passage referred to by our author, is in that translation marked §§ 6 & 7. In M. Boucher's French translation, it is c. 276. §§ 1012, 1013, vol. ii. p. 511.
f This doctrine of our author is fully recognised in England, where the captor of an enemy's ship is not considered as entitled to freight on neutral goods, unless he has carried them to the port of their destination. The Fortuna, 4 Rob. 228. Am. edit. It is, however, allowed in certain cases, when the goods are brought to the claimant's own country. The Diana, S Rob. 64. Am. edit.
t C. 10. p. 80.
Of Enemy s Goods found on board of neutral ships.
IF 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 Digest] 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. Loccenius§ also distinguishes the present case in the same manner.
* See the note * p. 103.
f Dominus navis, si illicite aliquid in nave, vel ipse, vel vectores impasuerint, navis quoquefsco vindicatur. §>uod si absente Domino, t) magistro vel gubernatore out proreta naut&ve 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. W Vcctig. 1. 11. § 2.
t C. 12. p. 94
§ Ubi suprd.
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.f 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 willing 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 i Above, c. 12. p. 96.