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Of the mixture of lawful with contraband goods.
T F a neutral carries at the same time, lawful and unlawful goods to the enemy, and the vessel should be taken, it is asked, "whether the vessel itself and the lawful goods that are on board are to be condemned on account of those which are unlawful?" The same may be asked, if from any other cause, lawful and unlawful goods are mixed together. This was one of the several questions which were proposed in the year 1631, by the admiralty of Amsterdam to the statesgeneral, for the interpretation of their edict of the 1st of April 1622. But,; although the states gave their answer to the other questions which were propounded to them at the same time, Aitzema informs us* that they kept this under advisement. And I do not find that any decision has been given upon it, either at that time, or at any time since; the states-general, however, on the 6th of May 166r, gave public orders td their courts of admiralty, that they should not condemn lawful goods, or even the ship, on account of illicit merchandize. Thus much and no more, we are told by Aitzema,] and the states-general express themselves in the same general terms, in their several edicts of the 11th September 16654
was not merely intended by Elizabeth to distress her enemies, but also to assert her claim to the dominion of the seas fdominii maris causd.J From his relation, however, and that of other respectable writers, such as Thuanus and Camden, it would seem that the prohibition was not general, as Zmtck represents it, but was restricted to inarlUe stores and provisions, which at that time were by many considered as contraband. See on this subject, Zouch, ubi sufird.—Selden, Mare Claus. 1. 2. c. 20—Camden, Anna!.
sub anno 1597 Thuan. Histor. 1. 96—Marquard. De Jure Mercat. p. 149.—
Koch, Hist, des Traitis, vol. 3. p. 19—28. T.
* L. 11. f L. 47.
$ Constl. Belg. vol 4. Consil 206, Q. 2.
But I am of opinion with the authors quoted by Zouch, in his treatise on the Law of Nations,* that there is a wide distinction to be made between the case where both the lawful and unlawful goods belong to the same owner, and that in which they are the property of different persons. If they belong to the same owner, then the whole may be lawfully condemned, as a just punishment for the offence; but on the contrary, if they are the property of different shippers, then the act of one of them ought not to affect the others. This distinction was very properly taken by the Dutch lawyers, on the 31st of July 1692.f The Digest\ also affords a strong argument in favour of this opinion, where, speaking of the owner of the vessel, Paulus distinguishes whether he knew or not that unlawful goods had been laden on board; if he knew of it, as if it was done in his presence, the law in that case declares that the ship also is forfeited; if on the contrary it had been done in his absence, and therefore he did not know of it, then the vessel is to be restored to him because he is not in fault. Zouch,§ however, without making any distinction, relates a case from Petrinus Bellus, by which it would seem that lawful goods had been condemned on account of others which were illicit, but on referring to that author,^ it appears, that in that particular case, both the lawful and unlawful goods belonged to the same owner, who knew of the fraud, and therefore was properly punished with the confiscation of both: But of this we shall speak more at large presently.
In the meanwhile we shall turn our attention to the treaties and laws of our country, which have been made upon the subject. By the treaty of navigation between Spain and the states-general, of the 4th of February 1648, and the 12th article of the marine treaty between the same powers of the
* De Jure Fee. p. 2. § 8. Q. 13. In the original, the reference is by mistake to Q; 3. T. f Consil. Belg. vol. 4. Consil 210. \ ff de Public. & Vectigal. 1. 1. § 2. i § XJbi suprd.
% Zouch does not point out where the passage is to be found] but it is in Bellus's Treatise De He Militari, part 9. 22. 26. 2". 28.
17th, 1650, it is simply agreed, "that it shall not be lawful for the subjects of either country to carry contraband goods to the enemy of the other, otherwise, that such goods shall be confiscated. The same stipulation is contained in the 24th and 36th articles of the treaty between France and the statesgeneral of the 27th of April 1662, but without any particular provision as to goods not contraband. In like manner, the several edicts of the states-general against the English and against the English and French* after enumerating a long series of contraband articles, direct the confiscation of these, without saying any thing as to lawful goods which may be found with them.
But by the 7th article of the marine treaty between Charles II. of England and the states-general, a distinction is clearly made between lawful and contraband goods, and the latter, but not the former, are declared liable to confiscation; nay, if the unlawful goods are immediately delivered up to the captors, the ship is to be instantly released, with the remainder of the cargo, and suffered to proceed on her destined voyage. A similar provision is made in a variety of other treatiesf in which they differ from the edicts above mentioned, which direct the ships to be sent into port for legal adjudication, in all cases where contraband goods are found on board. By the 7th article of the treaty of commerce between the king of Sweden and the states-general of the 26th of November 1675, it is only stipulated that contraband goods shall be confiscated, but not the ship or lawful merchandize. No provision is made, as in the other treaties, for the immediate release of the vessel and of the innocent part of the cargo4
* Of the 19th of March 1655,14th of April 1672, and 11th of April 1673.
f Marine treat)' between the Swedes and the states-general of the 12th of October 1679, art. 21. 26.—Treaty of commerce between France and the states-general of the 10th of August 1678, art. 21. 26.—Treaty of commerce between the same, of the 20th September 1697, art 26. 31.—and of the 11th of April 1713, art. 25. 30.
$ In the treaties of the United States with other nations, the most liberal principle has been adopted in respect to the seizure of vessels having contraband goods on board going to the enemy. By the 17th article of our treaty with Great Britain of the 19th November 1794, it was stipulated
Such are the rules laid down by our own laws and treaties, and if we are to infer from them what the law of nations is, it will follow as a principle, that ships and lawful goods are never to be condemned on account of contraband merchandize carried on board of the same vessel. But it is not from thence that the law of nations is to be deduced. Reason, as we have said before, is the supreme law of nations, and she does not permit that we should understand these things altogether generally and without distinction. As to the vessel, I think that it ought to be distinguished, whether she belongs to the captain himself or to others. If to the captain, I should here again distinguish, whether he knew (as is most frequently the case) that contraband goods had been shipped on board of her, or whether he was ignorant of it; as if the mariners, in his absence, had concealed such goods on board. If he knew of it, he is himself guilty of the fraud, because he hired his ship for an unlawful purpose, and she ought therefore to be confiscated; but it is otherwise, if he did not know it, because in that case, the fraud cannot be laid to his charge. Such is the doctrine laid down by Paulus,* and it is evidently conformable to the dictates of sound reason and of common sense.f
"that in all cases where vessels should be captured or detained on just suspicion of having on board enemy's property, or of carrying to the enemy any of the articles which are contraband of war, the said vessel should be brought to the nearest and most convenient port; and if any property of an enemy should be found on board such vessel, that part only which belonged to the enemy should be made prize, and the vessel should be at liberty to proceed with the remainder, without any impediment.—2 Laws U. S. 483— and by our convention with France of the 30th September 1800, art. 20, it was agreed, that in case the vessels of either party should be captured for carrying contraband to the enemy, the contraband goods only should be condemned, "saving always the ship and the other goods which it should contain." 6 Laws U. S. append, xxxii. T. * ff. de Public. Si Vectig. 1.11. J 2.
t At present, neutral ships are not confiscated for carrying contraband goods to the enemy, though with the master's knowledge. The Neutrality, 3 Rob. 240. The Mercuriut, 1 Rob. 242. The Jonge Tobias, 1 Rob. 277.
Am. edit. T.
The same is to be said if the vessel belongs to another person, for Paulus applies his principle to the master only. If, therefore, the master has taken illicit goods on board, without the knowledge of the owners, their ship shall not be confiscated; but the law will be otherwise, if they knew of their being shipped, and thus have become parties to the unlawful act. It would be unjust, that the owners should suffer for the act of the master; but it is right and proper that they should suffer for their own. This distinction between the knowledge and ignorance of the captain is not so frequent at this time as it was formerly, because, according to the present usage, the master is in the habit of signing bills of lading of the merchandize shipped on board of his vessel, by which he promises that he will take good care of it for the shippers. It may, however, still apply, if nevertheless, unlawful goods should be privately conveyed on board of the vessel, without the knowledge of the master. But as to owners of the ship, others than the master, the rule may have even now a frequent application.
As to the owners of the goods, I think, that for the same reason, a distinction ought also to be made, as I have said above, and it ought to be distinguished, whether all the goods belong to one and the same person, or to several. If to one and the same, I think that the whole mayjustly be confiscated, exactly as by the Roman law in revenue cases, if any one carries at the same time lawful and unlawful merchandize, and declares the one and conceals the other, both are confiscated on account of the fraud of the carrier, as the commentators on the title of the Digest De Publicanis Vectigalibus* have properly collected from the text of that law itself, and from the third law of the code De Nautko Fcenore.] Others are pleased with another distinction, to wit: whether the lawful goods may be easily separated from the unlawful; if they cannot, then they are of opinion, that the whole is to be condemned, otherwise the contraband goods alone are to be confiscated, and the remainder to be released without consi
* L. 11. § 2.
t See that law translated in the American Law Journal, vol. 3. p. 155. T.