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Those authorities say further, that the captor must pay the freight to the master of the vessel, but I do not think that opinion reasonable, because freight is not due, unless the goods have been carried to their port of destination. It may, indeed, be said, and with great truth, that it was not the fault of the master, that he did not carry them; but it must be said also, that when he took enemy's goods on board of his ship, he did it at his own peril, as he must have known that they might be taken, and thus be carried into a port of the captor. Therefore, he has no cause to complain, if his ship be merely dismissed without paying him any freight; unless it should be agreed between him and the captor, that he should carry the enemy's goods to the place of their destination, and thus have hired his vessel out to the captor himself. I have argued on this same principle in the preceding chapter, but in a case directly opposite; being that of neutral goods and an enemy's vessel.*
I shall not now turn to the particular cases in which this subject has been discussed. The reader, if he approves of the principles which I have laid down, will be able to form a correct judgment of what is said by Albericus Gentilis,t and Zouch,t on the same question, and of the controversy, which, as the latter relates, was once agitated with so much warmth between the English and the Zealanders.g. Zouch, himself, is Vattel, which is at this day generally considered as law.” Si l'on trouve sur un vaisseau neutre des effets appartenants aux ennemis, on s'en saisit par le droit de la guerre: mais naturellement on doit payer le fret au maître du vaisseau, qui ne peut souffrir de cette saisie. If on board of a neutral vessel, goods are found belonging to the enemy, they are seized by the law of war: but naturally, the freight is to be paid to the master of the vessel, who cannot suffer from that seizure." Vatt. L. of N. 1. 3. c. 7. $ 115. Such is also the rule in England, though very much restricted, and rendered almost illusory in practice. The Atlas, 3 Rob. 243. Am. edit. in not. The Emanuel, 1 Rob. 249. The Rebecca, 2 Rob. 84. The Immanuel, ibid. 172. Am. ed.
The reason of this rule is very plain, enemy's goods are not, like contraband, seized and confiscated, ex delicto, but merely ex re; for, he who carries enemy's property, is not guilty of any offence against the law of nations, as our author himself has ably demonstrated, above p. 108.
7. Above, p. 105. + De Advoc. Hispan. I. 1. c. 28. De Jure Fec. p. 2. $ & Q. 6.
s It is related by Zouch, that in the year 1576, the merchants of the Spanish Netherlands, being in the habit of carrying on their commerce with
of opinion, that the neutral vessel ought to be released, and the enemy's goods confiscated; but, he thinks that freight ought to be paid to the master, in which he agrees with the Consolato del Mare, but not with me. He is, however, for allowing such freight only pro ratâ itineris peracti.* If his doctrine were correct, as in my opinion it is not, it would be very difficult to explain this restriction, on satisfactory principles.t
After writing thus much, the works of the learned Heineccius have come to my hands, and among them his dissertation ** On the confiscation of ships for carrying prohibited goods,”! in which he briefly considers the two questions which are the subject of this and the preceding chapter. The perusal of that treatise has not induced me in the least to alter my opinion; I am, on the contrary, confirmed in it by the authority of so great a man. If the reader will take the trouble to compare what has been said by each of us on the same subject, he will be satisfied of the reason why I have not thought it necessary to make any alteration in this chapter, or in that which immediately precedes it.
Spain, then at war with the United Provinces, under cover of the English flag, the privateers of Zealand captured several English vessels engaged in that trade, and had them condemned as prize in their court of admiralty. He adds, that the English complained of it, and by way of retaliation, detained the ships of the Zealanders which they found in the ports of England, and im prisoned their commanders. But the prince of Orange prevailed upon the queen to accept of a compromise, by which the property taken was restored on both sides. Zouch, ubi supra.
T. * In proportion to the voyage performed.
T. | We have shewn in former notes, p. 81. 110. that contrary to the opinion of our author, freight is generally allowed to the neutral master in the prizecourts of Europe. And it is not only paid to him, as Zouch would have it, pro ratá itineris, but in toto, and as if the whole voyage had been performed. The reason given for it, which appears founded on very sound principles, is, “that the captor represents his enemy, by possessing himself of his goods, jure belli; and that, although the whole freight has not been earned by the completion of the voyage, yet, as the captor, by his act of seizure, has prevented its completion, his seizure shall operate to the same effect as an actual delivery of the goods to the consignee, and shall subject him to the payment of the full freight.” The Copenhagen, 1 Rob. 245. Amer.edit. T.
De navibus ob oecturam vetitarum mercium commissis.- -$ C. 2. $ 9.
Of the Right of Postliminy on neutral territory.
or things, which, after being taken by an enemy, are carried by him into the territory of a neutral. It might be supposed that this question is settled by that passage from the Digest, in which Pomponius says, “that one of our people who has been taken by the enemy, is understood to be returned among us, if he arrives among our friends or upon our territory;"* and as the same law which, on the subject of postliminy, applies to persons, applies also to things, there does not appear to be
for it seems, that under the general denomination of friends, Pomponius has meant to include neutrals, who are certainly entitled to that appellation. But Grotius construes it in a different manner;t he thinks, and in my opinion justly, that by the word friends are not generally to be understood, all those who are at peace with us, but only those who are engaged with us in the same war. He gives the same interpretation to what is said by Paulus, that “those are considered as having returned to us by right of postliminy, not only who have actually entered our territory, but who have arrived within the dominions of a friend or ally; because there they begin to be under the safeguard of the public faith.”+
If we take the words “or an ally” conjunctively, (which we may, perhaps, do, in the same manner that we frequently construe a conjunctive into a disjunctive), Paulus's opinion will support the interpretation of Grotius; for an ally certainly
comes within the description of the word friend. If, however, we take it in the disjunctive sense, it will be sufficient that it be a neutral or friendly, though not an allied nation. Of this opinion is Albericus Gentilis;* but he is clearly in the wrong; because the reason which Paulus gives, that the person who was taken begins, when on a friend's territory, to be under the safeguard of the public faith, applies as well and rather more to an ally than to a mere friend.
Of the same opinion with Grotius, and before him, was Antonio de Gama,t whom Gentilis on that account undertook to refute. Zouch, according to his custom, contents himself with relating the different opinions of others, and gives none himself, though he rather appears to incline to that of Gentilis. As to Grotius, he supports what he says merely by the authority of precedents, without adding a single argument of his own. “Among those,” says he, “who are friends, but not allies, prisoners of war do not change their condition, unless it be so specially agreed by treaty," and by way of example, he immediately quotes the second treaty between the Carthaginians and Romans; V but Zouch very properly observes, that it does not sufficiently appear whether what the two nations agreed upon together is to be considered as a declaration -of the law of nations, or as an exception to it. In various treaties, among the most ancient as well as the most modern, this is a question which it is often difficult to decide; and it is always dangerous to infer the law of nations merely from treaties, without also consulting reason. Grotius adds, in his notes, that it appears from Thuanus, that the king of Fez and Morocco was of the same opinion with him; but no one will be willing to be instructed by such masters in the law of nations.
* De Advoc. Hisp. l. 1. c. 1.
De Jure Fec. p. 2. $ 8.Q. 2. § It was stipulated by that treaty, that if the prisoners made by the Gurthaginians on some nation in friendship with the Romans, should come into the countries under the Roman dominion, they might be reclaimed, and should again become free; and that the friends of the Carthaginians should have the same right within the Punic dominions. Grot. ubi suprà.
As to other writers, Huberus* is of the same opinion with Grotius, when he understands by the word returned, one who is come back into the territory of an ally. Hertiust agrees also with him, and considers the right of postliminy as not being founded on the law of nations, but on municipal law. He decides on the question so often discussed among nations, “ whether a prisoner of war, or captured property, which is brought into a neutral country, are entitled to their liberty by the right of postliminy?” He maintains that they are not; “ because,” says he, “neutrals are bound to take the fact for the law,' and therefore cannot say that the capture was illegally made.”+
But, indeed, if we chuse to consider this subject by the mere light of reason, this question appears to me so idle, that I wonder that it has exercised the minds of so many writers. He who returns among the allies of his sovereign, is entitled to the right of postliminy, because he is considered as having returned to his own country, for allies are considered as making but one state with ourselves. Certainly they are not to be considered as separate nations in respect to the war in which they unite their forces and mutual assistance. Therefore, by the word friends, which Pomponius|| makes use of, I would understand those who are such in the highest degree, that is to say, who are in alliance with us against the same enemy; and by Paulus's expression, “ a friend or ally,"
* De Jure Civitatis, 1. 3. § 4. c. 5. n. 11.
Such is also the opinion of all the modern writers, and particularly of Vattel. Le droit de postliminie n'a point lieu chez les peuples neutres; car quiconque veut demeurer neutre dans une guerre est obligé de la considérer quant à ses effets, comme également juste de part & d'autre, & par conséquent de regarder comme bien acquis tout ce qui est pris par l'un ou l'autre parti. The right of postliminy does not take place among neutral nations; for whoever will re. main neutral in a war, is obliged to look upon it, as to its effects, as being equally just on both sides, and consequently to consider as a lawful acquisition whatever is captured by either party. Law of Nat. l. 3. c. 14. § 208.
Unam constituunt Civitatem. See the Henrick and Maria, 4 Rob. 49. Amer. edit.
T || Above, p. 113.