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 confiscated, 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? I, 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

* Above, p. 96.

1

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, 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 narrowed for them the field of that celebrated controversy.

Consil. Belg. ubi suprà.

T.

‡ 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

Those authorities say further, that the captor must pay the freight to the master of the vessel, but I do not think that opinion reasonable, because freight is not due, unless the goods have been carried to their port of destination. It may, indeed, be said, and with great truth, that it was not the fault of the master, that he did not carry them; but it must be said also, that when he took enemy's goods on board of his ship, he did it at his own peril, as he must have known that they might be taken, and thus be carried into a port of the captor. Therefore, he has no cause to complain, if his ship be merely dismissed without paying him any freight; unless it should be agreed between him and the captor, that he should carry the enemy's goods to the place of their destination, and thus have hired his vessel out to the captor himself. I have argued on this same principle in the preceding chapter, but in a case directly opposite; being that of neutral goods and an enemy's vessel.*

I shall not now turn to the particular cases in which this subject has been discussed. The reader, if he approves of the principles which I have laid down, will be able to form a correct judgment of what is said by Albericus Gentilis, and Zouch, on the same question, and of the controversy, which, as the latter relates, was once agitated with so much warmth between the English and the Zealanders.§ Zouch, himself, is Vattel, which is at this day generally considered as law." Si l'on trouve sur un vaisseau neutre des effets appartenants aux ennemis, on s'en saisit par le droit de la guerre: mais naturellement on doit payer le fret au maître du vaisseau, qui ne peut souffrir de cette saisie. If on board of a neutral vessel, goods are found belonging to the enemy, they are seized by the law of war: but naturally, the freight is to be paid to the master of the vessel, who cannot suffer from that seizure." Vatt. L. of N. 1. 3. c. 7. § 115. Such is also the rule in England, though very much restricted, and rendered almost illusory in practice. The Atlas, 3 Rob. 243. Am. edit. in not. The Emanuel, 1 Rob. 249. The Rebecca, 2 Rob. 84. The Immanuel, ibid. 172. Am. ed.

The reason of this rule is very plain, enemy's goods are not, like contraband, seized and confiscated, ex delicto, but merely ex re; for, he who carries enemy's property, is not guilty of any offence against the law of nations, as our author himself has ably demonstrated, above p. 108.

Above, p. 105.

T.

† De Advoc. Hispan. 1. 1. c. 28.-‡ De Jure Fec. p. 2. § 8. Q. 6. § It is related by Zouch, that in the year 1576, the merchants of the Spanish Netherlands, being in the habit of carrying on their commerce with

of opinion, that the neutral vessel ought to be released, and the enemy's goods confiscated; but, he thinks that freight ought to be paid to the master, in which he agrees with the Consolato del Mare, but not with me. He is, however, for allowing such freight only pro ratâ itineris peracti.* If his doctrine were correct, as in my opinion it is not, it would be very difficult to explain this restriction, on satisfactory principles.f

After writing thus much, the works of the learned Heineccius have come to my hands, and among them his dissertation "On the confiscation of ships for carrying prohibited goods,"‡ in which he briefly considers the two questions which are the subject of this and the preceding chapter. The perusal of that treatise has not induced me in the least to alter my opinion; I am, on the contrary, confirmed in it by the authority of so great a man. If the reader will take the trouble to compare what has been said by each of us on the same subject, he will be satisfied of the reason why I have not thought it necessary to make any alteration in this chapter, or in that which immediately precedes it.

Spain, then at war with the United Provinces, under cover of the English flag, the privateers of Zealand captured several English vessels engaged in that trade, and had them condemned as prize in their court of admiralty. He adds, that the English complained of it, and by way of retaliation, detained the ships of the Zealanders which they found in the ports of England, and imprisoned their commanders. But the prince of Orange prevailed upon the queen to accept of a compromise, by which the property taken was restored on both sides. Zouch, ubi suprà.

* In proportion to the voyage performed.

T.

T.

We have shewn in former notes, p. 81. 110. that contrary to the opinion of our author, freight is generally allowed to the neutral master in the prizecourts of Europe. And it is not only paid to him, as Zouch would have it, pro ratâ itineris, but in toto, and as if the whole voyage had been performed. The reason given for it, which appears founded on very sound principles, is, "that the captor represents his enemy, by possessing himself of his goods, jure belli; and that, although the whole freight has not been earned by the completion of the voyage, yet, as the captor, by his act of seizure, has prevented its completion, his seizure shall operate to the same effect as an actual delivery of the goods to the consignee, and shall subject him to the payment of the full freight." The Copenhagen, 1 Rob. 245. Amer.edit. T. ‡ De navibus ob vecturam vetitarum mercium commissis.—§ C. 2. § 9.