are taken upon land. Zouch has stated Grotius's doctrine very fairly, and Locceniust has done the same. What Grotius says of the doctrine of twenty-four hours, that it is now observed among all nations, without any distinction, whether a captured ship has been carried or not into a port of the captors, the attorney-general in the court of admiralty of Amsterdam, has formerly answered, and others are of the same opinion. But I never have been able to find that this custom was observed. I have found, indeed, that the military judges decided thus on the 24th of December 1624,6 and also at another time, but of what weight is the decision of men, mostly ignorant of law, who either have not been guided by any authority or perhaps have been seduced by that of Grotius. What I shall say in this and the next chapter will abundantly prove that this custom is repugnant to the laws and manners of the United Provinces. I know, that in the year 1631, the ambassador of the states-general in England,¶ requested the states-general to sanction by their authority that principle of jurisprudence, which vests the property in a prize after twenty-four hours' just possession; but I do not find that the states ever did so. It is indeed contrary to all reason; for if sider the thing by the mere light of common law, the true reason of a change of property consists in a real possession. But a real possession is that which may be safely retained. Then what signify the twenty-four hours, if there may be a real possession within that time, and if on the contrary a possession may even continue longer and not be real? Certainly it has been impossible to lay down a general rule upon this subject, on account of the great variety of cases that may happen;but every case is to be considered by itself, and from every case it will result, that the property of the thing taken will not vest in the captor, unless he is able to keep and defend it. Things taken in war, says the digest, belong to him who has first taken possession of them. L.1.§1. ff.de Acquir.vel Amitt. rer. Possess. * De Jure Fec. part 2. § 8. Q. 1.. Consil. Belg. vol. 2. Cons. 66.Aitz. 1. 11. you con - De Jure Marit. 1. 2. c. 4. n. 4. - Consil. Holland. vol. 2. Cons. 151. And he is not considered as having the possession of a thing, who is not able to retain it. L. 22. ff. Eod. Such is the opinion of the most eminent jurists, which is dictated by the law of nations itself. When, however, we have such a possession that we may or may not retain the thing taken, the variety of cases is such, as I have said, that it is not possible to give any definition. We may, however, be considered as having a firm possession, when we have carried the thing taken intra præsidia, to use the language of the Roman law. By præsidia, we understand castles, ports, towns and fleets; for in any one of these the thing taken may be considered as safe, and in a situation to be defended. But how can the twenty-four hours be sufficient, if it is not even sufficient, in order to change the property, that the captured thing should have been carried intra præsidia? For such is the mistaken idea of some, nay, of those whose authority otherwise is of the greatest weight. They are of opinion, that captured ships do not become the property of the captors, unless they have been carried into one of his ports and condemned there, and afterwards have freely navigated to a neutral port. Of merchandizes and other things, which are within the same reason, they might have said the same thing, but I believe they were ashamed. I well know what the states-general decreed concerning captured vessels on the 27th of November 1666: "That if ships, taken by the enemy and carried into England, and the kingdoms thereto belonging, and there condemned as prize, and purchased by neutrals, should be captured by Dutch ships on their way from the enemy's ports, either in ipso actu or afterwards, before arriving at their port of destination or at some other free port, such ships should then and therefore be declared good prize, as was usual in ancient times, and agreeably to the disposition of the fourth point of the case stated* of the 26th of June 1630, mutatis mutandis." I have quoted the precise words of the decree, that I may not be thought to relate incredible things. You will wonder, indeed for my part I * See the next page, certainly do wonder, what it can signify, whether the ships have arrived or not into one of the ports of the purchaser, or into some other friendly port. This national or friendly port must then give, I know not how, I know not what, to I know not whom. It would not give a right of property to the enemy, who already had taken and sold the prize, nor to the purchaser, who had thus purchased our own property from one who was not the rightful owner thereof. Then that certain port of the neutral purchaser or of his friend would actually be the thing that would take the property of the vessel from us. If recourse was to be had to a fiction, it would have been better to suppose that the vessel became enemy's property by the enemy's capture, remained such until it was purged of that taint, and that it could not be so purged until it had entered the port of the neutral or of one of his friends, until which time it might be lawfuly retaken. But such a fiction would not have been legal, because by the act of purchase the thing belongs to the purchaser, nor is it material whether it was originally his, or whether it became his property by capture and condemnation. But observe how improperly ancient custom is appealed to, and see that other decree of the states-general of the 26th of June 1630, which is supposed to have given rise to that custom. That decree was made on a case stated by the admiralty of Amsterdam, which contained several questions, to the fourth of which the states answer thus: "On the fourth point their high mightinesses declare, that ships taken by the enemy, carried into Flanders, and purchased by neutrals, but which shall be taken in the very act of coming out of the enemy's ports or on their way from them, before they have been into their own or in other free ports, shall be lawful prize, as has always been the custom in ancient times, by virtue of the right herein before alleged as to the first point; and likewise such vessels, which being so captured and purchased, and having run out of the said Flemish ports into other ports under the dominion of the king of Spain, and coming from thence, shall be captured by Dutch ships." from That this decree is very foreign to that cause appears the case stated itself; and the states-general themselves, by referring to the first head of the decree,* sufficiently make known what was their reason for enacting it. The fact is, that for the sake of preventing commercial intercourse, the statesgeneral had blocked up the ports of Flanders with ships of war, so that all vessels, to whomsoever belonging, bound to those ports, or sailing from them, were condemned by them as lawful prize; because by the law of nations and according to the principles of reason it is not lawful to carry any thing to a blockaded port, nor to take any thing away from it. Therefore the admiralty said, and the states-general decreed, that the same law applied to vessels which had been before taken from us and afterwards sold, because it was lawful to take even the ships of friends when trading with blockaded ports; which is true so far, that is, if they are taken before their voyage is ended, and while employed in the illicit trade, for the voyage is not considered as completed until the vessels have entered into their own or a friendly port. This and nothing else was what the states-general had in view by the said decree of the 26th of June 1630, and on these principles, that of the 27th of November 1666 would have been very proper, if in that year the whole of England, Scotland and Ireland, and all the British dominions in Asia, Africa and America had been blockaded by the fleets of the states-general. It is indeed related, that in the year 1652 they boasted of a similar thing with regard to the English, having prohibited all trade with them to all the world. But upon what foundation they so boasted I do not now inquire. I content myself with observing, that the same states-general in 1663 denied to the Spaniards, who pretended to blockade the whole of Portugal, that same right which they had before arrogated to themselves against the English. These facts are so recorded in Aitzema's chronicle.‡ That is to say, the first point of the case stated, on which the states made their decree. What that first point was, does not precisely appear, though it may be gathered from the context of our author's observations on the whole decree. T. Aitz. B. 32. Aitz. B. 43. From thence it appears, that the said decree of the statesgeneral of the 27th of November 1666 cannot be defended. And indeed if we once admit the principles of that decree, a number of monstrous consequences will necessarily follow: for as the poet says, "Si prava est regula prima, "Omnia mendose fieri atque obstipa necesse est." It will manifestly follow, that all enemy's goods, without exception, will be placed in precisely the same predicament; for whatever enemies have by capture is as much their own as what they have by succession, purchase, or by any other title. Therefore the same is to be said, not only, as I observed before, of merchandize and other things which enemies have taken from us, but also of ships, and every thing else which they have otherwise than by taking it from us, and which our friends have purchased from them. If this be admitted, we must also admit that it is lawful for princes to interdict their enemies from the use of fire and water, and to forbid all the world from carrying on a commercial intercourse, with them, which hitherto has only been done so far as relates to those things which are called contraband: for all things of that kind which our friends may purchase of our enemies, may lawfully be taken and confiscated, unless they have been carried into a neutral port. But it is unreasonable to infer a general rule from a law which, against the principles of reason, has been established. in a particular case, by which means a pretence will be given to every sovereign to commit injustice. On this and no other ground was founded the edict of Louis XIV. king of France, of the 17th of September 1672, by which he ordered the capture and confiscation of all vessels, even purchased by his friends in the United Provinces and found coming from thence. In consequence of that edict, on the next day a certain vessel was condemned which had been taken coming from Holland, where she had been built and purchased by Hamburghers, manned with a Hamburgh crew, and was going to Hamburgh. To that edict of the king of France, the statesgeneral, that they might not appear to do less harm to their |