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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.t
" 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 sKould 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. & Vectig. I. 11. § 2.
† At present, neutral ships are not confiscated for carrying contraband goods to the enemy, though with the master's knowledge. The Neutralitet, 3 Rob. 240. The Mercurius, 1 Rob. 242. The Fonge Tobias, 1 Rob. 277. m. edit.
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 may justly 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 Nautico Fænore. 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. + See that law translated in the American Lat Journal, vol. 3. p. 155. T.
dering whether it belongs to the same owner or not. But this distinction, as the separation can always be made, is neither founded on reason, nor on any authority of law. It is more reasonable, and at the same time more consonant to legal principles, to distinguish whether the lawful goods belong to another than the author of the fraud; then the principle properly applies, that one person should not be deprived of his goods for the fraud of another. This doctrine may be supported by a variety of authorities taken from the Roman law, in analogous cases; as if one of several co-heirs defrauds the revenue of the tax on dutiable property belonging to the estate of the deceased, the shares of the other heirs are not on that account to be confiscated.* In the same manner, if the farmer or servants of a landholder should manufacture iron on his estate, contrary to law, t if it should be done without the knowledge of the owner, he shall not suffer any penalty, nor shall the bottomry or respondentia creditor suffer, if by the fraud of his debtor in shipping unlawful goods, the ship and cargo should be confiscated.
But what if the owners of lawful goods should merely have known that others had laden unlawful merchandize on board of the same vessel? Shall this mere knowledge occasion also the confiscation of the lawful goods. Such appears to have been the opinion of a certain lawyer, which is recorded in the Consilia Belgica; but I do not agree with him, nor do I find that he is supported by any authority; he might, perhaps, have appealed, (though he does not do it), to the abovementioned text of the Digest, where it is said, that the owner is not to suffer, if his farmer or servants have manufactured iron upon his estate without his knowledge: from whence he might have implied, that if the same thing is done with the knowledge of the owner, he ought to be punished, because it was his duty to forbid it, and to order his farmer and servants not to do any thing unlawful upon his estate. But, if several owners, as is often the case, ship their goods on board of the same vessel, they have no control over each other, nor over the master who receives the goods on freight. Therefore, the owner of the lawful goods ought not to suffer for what he cannot prohibit; he might, indeed, not have shipped his goods on board of that vessel, but if it was not convenient for him so to do, he cannot be made answerable for the act or fraud of another person.*
* ff de Public. et Vectigal. I. 8. 1.
† By the Roman law, no individual was allowed to manufacture arms without the special permission of the government. Cod. 1. 10. tit. 46. Lex unica. Ut armorum usus inscio principe interdictus sit.
T fff de Public. et Vect. I. 16. § 11. Ś Cod. de Naut. Fæn. I. 3. I Vol. 4. Consil. 10.
Such is my opinion, and I wish that the several treaties and edicts which I have cited, had spoken more explicitly upon the subject. It will be said, perhaps, that the distinctions which are not therein expressed, are to be tacitly understood, and that thus the treaties and edicts may be interpreted according to each particular case. I wish that I could be of that opinion; but I fear that it cannot be done, because of the tob great generality of the expressions. What Albericus Gentilis has written on all these subjects, is full of obscurity and confusion.t
By the law of France, if a vessel is captured with contraband on board going to the enemy, the contraband goods only are forfeited, but the vessel and the remainder of the cargo are to be released, unless the contraband articles amount to three-fourths of the cargo, in which case, the whole of the merchandize on board is to be condemned, as well as the ship. Ordin. of the 26th of July 1778, art. 1. 2. Code des Prises, 672, edit. 1784.
The rule in England, is to condemn only the contraband articles, and to restore the rest of the cargo and the ship, but without freight; provided, however, that they belong to a different owner from that of the illicit goods, who did not know of the illegality of the voyage, and was not by himself or his agent, concerned in any fraud or concealment, to impose upon the offi. cers of the belligerent nation, by masking the real destination of the ship, covering enemy's property, or otherwise, and was not acting in violation of a treaty of his own country.-The Mercurius, Meincke, 1 Rob. 242. — The Mercurius, Geddes, ibid. 70.—The Fonge Tobias, ibid. 278.-The Princesa, 2 Rob. 42.—The Rosalie & Betty, ibid. 292.-The Franklin, 3 Rob. 183.The Neutralität, 3 Rob. 240. Amer. edit.
T. + De Advoc. Hispan. I. 1. c. 20.
Of Neutral Goods found on board of the ships of enemies.
Spaniards, several Portuguese ships were captured by the Dutch, who were then at war with Spain. Grotius, who relates the fact,* says, “that it was more difficult to decide whether the goods of the Italians which were found on board of the captured ships, were lawful prize,” and he adds, "that the matter was decided by a compromise between equity and the law of war.” That respectable writer, therefore, doubted whether neutral goods found on board the ships of enemies, were to be considered as enemy goods; but he entertained no such doubt in 1625, when he wrote his treatise De Jure Belli ac Pacis; for in that work he expressly says: “That nothing is acquired by the law of war, but what belongs to the enemy, and not the property of neutrals, although it be found on the enemy's territory;" and he infers from thence, that the vulgar saying, that goods found on board of an enemy's ships are to be considered as belonging to the enemy,” is not warranted by the law of nations, but that such are only to be presumed enemy goods, until the contrary is proved. He adds, that it was so decided in Holland, in full court, in the year 1338, while we were at war with the Hanse Towns, and that that decision has passed into a law. He gives it his approbation in another place, where he treats of the same subject. I
I must own, that I blush at my ignorance, for not having been able to find that decision of the year 1338, nor can I understand by what court it was pronounced; for it is a fact of public notoriety, that it was not until near a century after
* Hist. Belg. l. 11. sub anno 1602. + De Jure B. ac P. 1. 3. c. 6. 5. | Not. ad l. 3. de J. B. ac P. c. 1. $5.