wards, that the court of Holland was instituted by Philip of Burgundy. This, indeed, was corrected by Grotius, in a new edition of his book, in which he substituted the year 1438 instead of 1338. But in the latest edition, published in 1632, in the octavo form, (which Grotius himself certifies to be entirely correct), the year 1338 is again mentioned, and this date has been followed by those who have quoted that passage out of his book.† Even my learned friend Barbeyrac has preserved the same year 1338, in his French translation of Grotius, and attributes that decree to the states-general, although they never exercised judicial powers, nor ever were considered as a court of judicature; at any rate, the true date of it must be the year 1438, as Grotius alludes to the Hanseatic war, of which there is a book preserved among the archives of the court of Holland, entitled Oosterlingen.§

Although that decree of the year 1438, has escaped my diligent inquiry, I nevertheless believe Grotius's assertion, without requiring any other proof of the fact, and I can easily conceive how others have followed his opinion on the credit of his character alone, and without its being supported by any other authority. Thus Loccenius|| speaks of the principle which Grotius lays down as being established law, and so do the six advocates whose opinions are recorded in Consilia Belgica.¶ I think, however, that they go too far when they seem to intimate that it would be otherwise if public notice

In what we believe to be the last edition of Grotius's work, Utrecht 1773, the error appears to have been corrected. The decree there is said to have been pronounced in 1438. T.

Zouch, de Jure, Fec. p. 2. § 8. Q. 25.-Consil. Belg. vol. 3. Consil 253. It is not so in the Amsterdam edition of Barbeyrac's translation, printed in 1724, which Mr. Bynkershoek, it seems, had not before him when he composed this work. The decree there is said to have been given in

1438.

T.

$ Or the Easterlings; by which name the inhabitants of the Hanse Towns were formerly known.

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|| Res in kostium navibus repertæ præsumuntur esse hostium, donec contrarium probetur. Things found on board the enemy's ships are presumed to belong to the enemy, until the contrary is proved. Loccen. De Jure Marit. 1. 2.

c. 4. n. 11.

¶lbi suprà.

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had been given that no neutral should ship his goods on board of an enemy's vessel, or if he who shipped them, was ignorant of the war.

*

If by the general law of nations, it is lawful for a neutral to ship his goods on board of an enemy's vessel, I cannot conceive how it can be rendered otherwise by the proclamation of a belligerent sovereign. I am at liberty to carry on trade with two nations, who are in friendship with me, but at war with each other, unless I am prevented by express or tacit conventions, (as is almost always the case with respect to contraband;) what, then, if one of those nations, without the consent of the other, should prohibit altogether my trading with her enemy? Such an interdiction would be unjust as to all but the subjects of the prohibiting nation. Grotius appears to have been of this opinion,† otherwise he justly thinks that respect is due to the public proclamations of sovereigns, and that they are not to be disregarded with impunity.

As to the other point, what matters it, whether he who has shipped his goods on board of the enemy's ship, did or did not know of the war? Suppose that he did know of it, and that he also knew that the ship belonged to an enemy, the question will still recur, whether he has acted lawfully or unlawfully in shipping the goods? These fine spun niceties, although they may serve to make a display of legal ingenuity, cannot fail to be rejected by those who follow the rules of plain unsophisticated common sense.

Before I express my own opinion, I must first consult the treaties which have been made between different nations upon the subject. As far as I can understand, they nearly agree with the French law, which is laid down by Mornac,‡ que la robe de l'ennemi confisque celle de l'ami. Grotius attempts

* The same opinion is given in Consil. Belg. vol. 4. Consil. 207.

† Ubi suprà, not. 4.

Ad 1. Penult. § 1. ff. locati conducti.

"That the goods of an enemy produce the confiscation of those of a friend." The word robe in the old French idiom signified effects, goods, furniture, wearing apparel and the like. Roba in Italian, ropa in Spanish, and roupa in Portuguese, at this day, mean the same thing.

In not. ad l. 3. de J. B. ac P. c. 6. § 6.

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to explain away the rigour of this law, and understands it to mean, that if enemy goods are shipped on board of a neutral vessel, with the consent of the owner of the ship, then the ship herself, though neutral, is liable to confiscation. But this is not the subject before us, and will be treated in the next chapter. If, however, the consent of the owner of the vessel is the cause of her confiscation, why do we not confiscate neutral goods, which, with their owner's consent, are shipped on board of an enemy's vessel? Of this, Grotius has said nothing, and yet the rule of reciprocity required that the same law should be applied to both cases.

But if, setting aside for a moment these considerations, we turn to the treaties themselves: we shall find that they all simply stipulate, that "neutral goods found on board of an enemy's vessel, are liable to confiscation." In this they have adopted the principle of the old French law, which confiscates the goods of neutrals merely because they are found on board of the vessel of an enemy, and therefore do not agree with what Grotius states to have been decided by the court of Holland,

But Valin rebukes him strongly for entertaining this opinion. "Grotius," says he, "pretends that our ordinances are to be understood with this restriction; it would, if it were admitted, furnish an excuse to the neutral master, with which he never would fail to elude the confiscation of his vessel and the remainder of his cargo." Valin, Traité des Prises, p. 64.

There is no doubt that such was the ancient law of France, and that it confiscated alike neutral goods found on board the enemy's ships, and neutral ships carrying enemy's goods; so true it is, that injustice has always followed power.

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† Marine treaty between Spain and the states-general of the 17th December 1650, art. 13.-Treaty of commerce between France and the statesgeneral of the 27th of April 1662, art, 35.-Treaty between the same powers of the 10th of August 1678, art. 22.-Of the 20th of September 1697, art. 27.-11th of April 1713, art. 26-Between England and the statesgeneral, 1st of December 1674, art. 8-Sweden and the states-general of the 26th of November 1675, art. —. And 12th of October 1679, art. 22.

But by the same treaties, as will be seen in the next chapter, it was on the other hand stipulated that enemy's goods found on board of neutral ships should not be liable to confiscation, or in other words, that free ships should make free goods; so that if, in one respect, they were conformable to the old severe law of France, they established upon the whole, the more equitable principles of the modern law of nations.

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and to have obtained the force of a law. It is true, that the treaties which I have related are subsequent, and that they are of no force except between those who are parties to them. But the rule which they establish cannot be defended on rational principles: for why should I not be allowed to make use of my friend's ship to carry my property, notwithstanding his being at war with you? If treaties do not prohibit, I am at liberty, as I have already said, to trade with your enemy; and if so, I may likewise enter into any kind of contract with him, buy, sell, let, hire, &c. Therefore, if I have engaged his vessel and his labour, to carry my goods across the seas, I have done that which was lawful on every principle. You, as his enemy, may take and confiscate his ship, but by what law will you also take and confiscate the goods that belong to me, who am your friend? All that I am bound to do, is, to prove that they are really mine; for here I agree with Grotius, that there is some room for presuming, that goods found on board of an enemy's vessels are the property of the enemy.

But what shall we say, if the owners of the goods knew and consented that they should be shipped on board of the vessel of their friend, indeed, but of your enemy? I should think that this knowledge and consent do not authorize a confiscation. The matter depends upon this only question, whether the owners of the goods, in shipping them on board of an enemy's vessel have acted lawfully or unlawfully? I have contended for the former position, because, as I may lawfully carry on any kind of trade with your enemy, I think that I may therefore enter with him into any kind of contract, and make use, for a valuable consideration, of his ship for my own utility. Take, if you can, every thing which belongs to your enemy, but restore to me what is my own, because I am your friend, and in shipping my goods, I have not intended to do you any injury.

With what I have said, nearly agrees what is laid down in the Consolato del Mare, to wit: "that the enemy's ship when taken, belongs to the captors, and the neutral goods to the owners thereof, but that those owners may, if they are present, compound for the purchase of the vessel, and thus be

enabled to prosecute their voyage.* If, however, a composition does not take place, the vessel may be carried into a port of the captor, but still the goods are to be restored to their owners, on paying the freight thereof, in the same manner as if the voyage had been performed." I approve of this general doctrine; but what is said there on the subject of freight, I cannot admit to be founded in law. I understand very well, that he who has taken the vessel, has also taken all the right arising out of it which belonged to her or to the master; but the freight was not due to the ship, nor to the captain, unless the goods had been carried to their destined port. The question, however, is asked, whether, if a ship is taken in the course of her voyage, the owner of the goods on board is obliged to pay freight to the captor? I answer, that if the captor is ready to carry the ship with the goods to the place of their destination, I think that he is entitled to demand his freight, otherwise I am of opinion that he is not. The shipper is sufficiently punished for his imprudence, in putting his goods on board an enemy's vessel, when he is obliged to claim them at his own expense, and to carry them away at his own risk. I have shewn, in a former chapter, that difficult questions will arise respecting this matter of freight, and that it requires a sound judgment to form a correct opinion upon them.

* Consol. del Mar. c. 273. This chapter has been elegantly translated into English, by the learned Dr. Robinson, and is bound together with his interesting collection, entitled, Collectanea Maritima, London, Butterworth 1801. The passage referred to by our author, is in that translation marked §§ 6 & 7. In M. Boucher's French translation, it is c. 276. §§ 1012, 1013, vol. ii. p. 511.

This doctrine of our author is fully recognised in England, where the captor of an enemy's ship is not considered as entitled to freight on neutral goods, unless he has carried them to the port of their destination. The Fortuna, 4 Rob. 228. Am. edit. It is, however, allowed in certain cases, when the goods are brought to the claimant's own country. The Diana, 5 Rob. 64. Am. edit.

C. 10. p. 80.

10