The third article directs the confiscation of such ships with their cargoes, "as should come out of the said ports, not having been forced into them by stress of weather, although they should be taken at a distance from thence, unless they had after leaving the enemy's port performed a voyage to a port of their own country, or to some other neutral or free port, in which case they should not be condemned; but if in coming out of the said Flemish ports they should be pursued by our own ships, chased into another port, such as their own or that of their destination, and found on the high sea coming out of such port, in that case they might lawfully be captured and confiscated." There is also a fourth article, which I have recited and commented upon before,* and which I think it unnecessary to say any more upon. But the three first articles of this law appear to me to require some explanation. As to the first article, inasmuch as it condemns vessels found actually going into or coming out of the enemy's ports, there is no reason for it, but that which is expressed in the edict itself. It goes however further, and confiscates those which shall be found so near to the enemy's ports as to shew beyond a doubt that they intend running into them. This is reasonable also; because if prohibited goods are found on the confines of the hostile territory, they are presumed to be carrying to the enemy, not only according to the most general opinion of the civilians,† but also according to the intent and meaning of the states-general, which is fully expressed in this law and in various other edicts, unless, indeed, as is provided in all the said edicts, they should prove that they were driven in by stress of weather. The same exception is made in the second article of this decree. But, not to leave the coast of Flanders, precisely the same thing was decreed on the same subject, in the infancy of our *Above, c. 4. p. 30. † Zouch, De Jure Fec. p. 2. § 8. Q. 10. quotes a number of authorities to this point. Edicts against the English, of the 5th December 1652, and 19th of March 1665, § 4.-Against the English and French of the 14th of April 1672, and 11th of April 1673, § 4. republic; for by the edicts of the earl of Leicester,* by which he prohibits as well to foreigners as to subjects all commerce with the Spaniards, and by the edict of the states of Holland, of the 27th July 1584, neutrals, trading with the Flemish ports, are punished with the confiscation of their ships and goods, and that edict expressly provides that those "who shall be found on the coast of Flanders, or near "to some of the prohibited ports, shall be adjudged to have contravened this ordinance, except in cases of extreme and well proved necessity." The opinion of Cynus, who writes that they are, even in such a case, to be punished as going to the ports of the enemies, when they have so far advanced on their way that they cannot return, is therefore not admissible, although it has the approbation of Albericus Gentilis.† Thus much I have thought proper to observe on the first article of this law; the reasonableness of which applies equally to the second article; for those things which are taken near to besieged places, are not condemned for any other reason, than that an intention of trading with the enemy is tacitly collected from the internal evidence of the fact itself, and it amounts to the same thing, as if that intention had clearly appeared from the documents on board, and therefore there is no room for any doubt. But what is added about repentance, I find some difficulty to admit; if, however, there is sufficient proof of the alteration of the voyage, I should not be far from acceding to that opinion. The third article properly distinguishes between vessels which are chased or compelled to take refuge and those who proceed voluntarily to the port of their destination. The latter are excused, when found coming out of that port, their voyage being considered as ended, and a new one begun, while the former are condemned, as being taken in the very act of violation of blockade. But on the subject of these, the edict speaks in the disjunctive, and says, "if they are chased into their own port OR the port of their destination," so that there may be a doubt as to the sense of these words and the law * Edict of the 4th of April 1586-of the 4th of August same year, $9. which results from them. Certainly there can be no doubt, if the same thing is meant by their own port, and the port of their destination; But if an Englishman who was bound to a port of Denmark is driven into a port of England, and coming out of it, and prosecuting his voyage, should be taken before he reached the Danish port, it appears to me that he would be taken in the course and in the very act of the illicit voyage, and that it would be of no consequence, whether it was his own port, or not, which he had entered into, if the voyage which he was engaged in had not been completely finished. Therefore, as disjunctives are frequently to be construed as conjunctives, I understand these words "their own port,” in the said article, to mean the port to which the vessel was bound, and where her voyage was to be ended.* I shall put a case, in order more fully to illustrate my meaning: Suppose that a vessel from Zierikzeef is taken by the Dunkirkers, who condemn and sell her, and she is purchased by a Scotchman. By the 4th article of the said decree which I have above recited at large it is only lawful to capture and condemn her, if found coming out of an enemy's port before she had entered into her own or into some other free port, but not afterwards. This vessel now belonging to the Scotchman, and coming out of Dunkirk, is met with, but not taken. She runs into Yarmouth, where she was not bound to, and coming out of that port, is captured. It is asked whether she is to be considered as having entered into her own port within the meaning of the edict? I cannot say that she is, because she has not entered into the port to which she was bound. The states-general in a similar case, with the advice of the admiralty of Zealand, decreed on * We cannot perceive how any difficulty can arise as to the construction of this part of the edict; since, whether the vessel was chased into the actual port of her destination or into any other port of her own country, she is equally to be condemned according to the letter of the law as it is given to us. So that the interpretation which our author contends for, appears to us to be not only unnecessary but dangerous, as it would make a merely constructive offence, of what the legislator expressly made a positive one. T. A port of Zealand, in the island of Schouwen, at the mouth of the Scheldt. C. 4. p. 30. T. 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.t 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 captured 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. l. 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 edict. 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. Consil. Holland. vol. 2. Consil. 21. T. 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.† * Aitz. 1. 4. Ibid. 1. 25. † De Jure Fec. p. 2. § 8. Q. 7. The difference to which our author alludes,, is related by Zouch, substantially as follows: Queen Elizabeth being at war with Spain, bad 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 had 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 Muscovy, 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 armuda 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 |