Questions of Public Law (1737)
Cornelius van Bynkershoek
How and When Ownership Is Established in Captured Property and in Ships
IN the preceding we have treated of the persons of the enemies. We shall now speak of their property and of their actions. It is evident that the enemy’s goods, whether movable or not, may be taken by the laws of war. I shall not now discuss who gains possession of the property taken or whether, when men have gone foraging without authority, the booty falls to them, for I shall have something to say on that topic in Chapter XX. At present I shall rather discuss a question no less important which arises daily, namely, from what moment possession changes by capture. I shall not distinguish here between the different kinds of movable goods that may be taken, whether it be a person, a ship, merchandise, furniture, or anything else that can fall into the hands as booty. By the Roman law, as Grotius correctly observes, booty becomes the property of the captor when it has been brought into defensible ground, the sole reason for this doctrine being that then every hope of pursuing and recovering the thing is at an end. Grotius observes in the next paragraph: ‘Hence it seems to follow that at sea ships and other things captured are understood to be captured when, and not till, they are brought into dock or harbour, or to the place where the whole fleet is; for then recovery is despaired of.’ ‘But’, he adds, ‘we find that it has been established by the more recent law of nations among Europeans that such things are understood to be captured when they have been twenty-four hours in the possession of the enemy.’ This principle he applies in his notes also to things that have been captured on land. The doctrine of Grotius has been fairly restated by Zouche and Loccenius. But Grotius’s statement that the rule of the twenty-four hours was now being observed by all nations without regard to whether the captured ship has or has not been brought to port by the captor, has been answered by the counsellor of state in the court of admiralty at Amsterdam, as well as by others.
For my part I have never been able to find this custom observed. To be sure, the military court rendered such a decision on December 24, 1624, and also upon another occasion, but who would give heed to men, mostly ignorant of law, who clearly make no use of authorities and are perhaps misled by the words of Grotius alone. Even in the United Provinces this statement is contradicted by the laws and customs as I shall abundantly prove in this and the succeeding chapter. I know that the ambassador of the States-General to England requested the States-General in 1631 to lend their approval to the legal principle which recognized legal possession after twenty-four hours, but I cannot find that they approved. The principle is also contrary to reason, for if you judge the matter in the light of reason, the real and sole reason for a change of property consists in a real possession, and a thing is really possessed which can safely be retained. Then what virtue lies in a period of twenty-four hours, since there may be real possession before, and there may be instances in which no real possession can be established in that period? Indeed various cases will prove to differ so widely that a fixed and general principle cannot be laid down in the matter; the individual cases will have to be treated separately and judged on the principle that the captor has not established ownership unless he is able to keep and defend the article. In Roman law ‘things taken in war belong to him who has first taken possession of them’, and ‘he is not considered as having possession of a thing who is not able to retain it’. This is the true doctrine of the jurists sprung from the very law of nations. However, circumstances differ so greatly that we are not permitted to define precisely the period of time within which it may or may not be said that we are able to retain possession. We may, however, agree with Roman law and hold that we seem capable of retaining possession when we have brought the captured object within a defensible place (intra praesidia), by which term we mean forts, ports, cities, and fleets, since such places could devote themselves to the defence of the captured articles.
But twenty-four hours would hardly suffice for a change of ownership, if as some hold the bringing of the object intra praesidia is not sufficient. This illogical view is even held by some whose authority we must in other respects honour very highly. For they assert that captured ships do not become the property of the enemy until they have been taken to the enemy’s port, duly condemned, and afterwards freely navigated to a neutral port. They should have said the same about merchandise and other booty which reasonably fall into the same class, but I suppose they were ashamed to. Note what the States-General said about captured ships in their decree of November 27, 1666: ‘That if ships, taken by the enemy and brought to England, or a country subject to England, and there declared confiscated and purchased by neutrals, should be captured by our ships on their way from the enemy’s ports, either in the very exit or afterwards, before arriving at their port of destination or at some other free p6rt, such ships should then and thereafter be declared lawful prize as was usual in ancient times, and mutatis mutandis in accordance with the settlement of the fourth point of the case stated of June 26, 1630.’ I have quoted the exact words so that no one should think I was telling incredible things. You will wonder, as I do, how it concerns the case whether or not the ships reach the harbour of the purchaser or some other friendly port. Apparently the friendly port in question In some undefined way is supposed to bestow something upon somebody. It could hardly bestow the right of property upon the enemy, who has already seized the ship and sold it, nor upon the purchaser, who in that case must be assumed to have bought our property from a man who was not the owner, and the friendly port must be assumed to have deprived us of our property. It would have been better to adopt the fiction that the ship on being captured by the enemy became the enemy’s property, and remained so until it could be purged of that taint, and that this could not be done except by bringing it into the purchaser’s or some other friendly port, until which time it might be lawfully retaken. But such a fiction is not permissible, because the thing belongs to the purchaser by the act of
purchase, nor is it material whether it belonged originally to the vendor, or whether it became his by capture and condemnation.
However, I would have you notice how improper it was to appeal to ancient usage and to the other decree of the States-General dated June 26, 1630, which is supposed to have provided the basis for such usage. This decree was issued in answer to an inquiry of the admiralty at Amsterdam. To the fourth point of the several brought up, the States-General responded thus: ‘On the fourth point their noble highnesses declare that ships taken by the enemy, brought into Flanders, and purchased by neutrals, but which shall be taken in the act of coming out of the enemy’s port, or subsequently, before they have been into their own or in other free ports, shall be lawful prize, as was always the custom in ancient times, by virtue of the right herein before alleged as to the first point, and likewise such vessels, which being so captured and purchased, and having run out of the said Flemish ports into other ports under the dominion of the King of Spain, and coming thence, shall be captured by our ships.’ It is apparent from the case stated that this decree has nothing to do with the principle now under discussion; indeed the States-General by referring to the ‘first point’ disclose clearly enough what was their reason for issuing the decree. The fact is that the States-General had blocked the ports of Flanders with naval vessels in order to shut off commerce, and for that purpose they seized and condemned all vessels of whatsoever nation bound to those ports or sailing from them. For it is reasonable, and in accord with international usage, that when cities are besieged nothing should be permitted to be carried in or out. And that is why the Admiralty held and the States-General decreed that the same principle also held for ships which had formerly been taken from us and sold, since in a blockade it is lawful to intercept even the ships of friendly nations. And this holds true if the ships are taken before the voyage is complete, and while employed in illicit trade; and the voyage is not considered complete until the vessels have reached their own or a friendly port. This in fact was all that the States-General had in mind in that decree of June 26, 1630. But from that decree you cannot get any support for the point now at issue unless you can show that in 1666 the States-General were actually blockading England, Scotland, Ireland, and all the English possessions in Asia, Africa, and America. We are indeed told that the States-General in 1652 made some such boast about the English, namely, that they had shut off the English commerce to all the world, but how justly the boast was made I cannot now inquire. I will only note that in 1663 when the Spaniards pretended to have all of Portugal under blockade, the States-General refused to recognize that right which they had before claimed for themselves against the English. Thus it is related in the annals.
From what I have said it is apparent that the decree of the States-General of November 27, 1666, cannot be defended. And if we decided to adopt its arguments we should soon be involved in dangerous consequences, for as the poet says: ‘If the first plummet swerves from the straight line… the whole building will be faulty and without symmetry.’
From that edict it will clearly follow that all enemy’s goods will be placed in the same predicament, since what the enemy have secured from capture is just as much theirs as what they have by inheritance, purchase, or by any other title. The same must therefore be said, not only, as I indicated above, about merchandise and other things taken from us by the enemy, but also regarding ships and all other things which they have otherwise than by taking it from us, and which our friends have purchased from them. And if you admit this much you also admit that princes have a complete right to forbid their enemies the use of fire and water, so to speak, and you grant to them the power of prohibiting the commerce of any nation, a thing which has hitherto been customary only with regard to contraband. The result will be that whatever friends may purchase from the enemy will fall under the ban unless they have been brought into a free port.
But it is a serious thing to draw up a general rule based upon unreasonable decisions made for a special case. In this way a pretext is furnished sovereigns for committing acts of injustice. Certainly there was no justice in the edict of Louis XIV of France, dated September 17, 1672, by which he ordered the capture and confiscation of all ships bought, even by his friends, in the United Provinces and found coming thence for the first time. Accordingly, on the following day there was taken and confiscated by the French a ship built and purchased in Holland, manned by a Hamburg crew, which the purchasers were taking home to Hamburg. In answer to this decree of the French King the States-General, ready to be equally unjust even to their own friends (for friends generally bear the brunt of the suffering from such rules), retorted with the following: ‘That all ships purchased by neutrals within the dominions of the King of France, although manned by a neutral crew, which, sailing for the first time from the enemy’s ports, and not having been in the neutral port to which they were bound, should fall into the hands of Dutch cruisers, should be lawful prize.’ One might suppose that this edict was founded upon the right of retorsion, but retorsion can only be exercised against one who has inflicted wrong, it cannot involve a friend. Therefore, that edict of the States-General of November 29, 1666, cannot be defended with the plea that the English had previously progressed even further on the road of injustice when their envoy, on December 23, 1664, gave notice to the Hanseatic towns, at that time friendly both to the English and the United Provinces, that whatever ships they might purchase in the territory of the States-General would be considered enemy’s without distinction of voyage. He who has done no injury cannot justly be punished.
One might suppose that those decrees of the States-General of 1630 and 1666 had at least decided this point that the ships purchased by our friends from our enemies could not be taken from them if once they had reached a friendly port, for they hold that these may lawfully be seized ‘before they have been into their own or some other free port’. But not even this point is clear. Indeed the Admiralty of Amsterdam consulted the States-General on this point also, but they without reaching a definite decision simply answered by the letter of June 26, 1630: ‘As to ships taken by the enemy from the inhabitants of this country, brought into Flanders and there condemned, which without being taken should be brought into England, France, or some other country, and should be captured by our ships on their way from such a place while bound on other free voyages, and finally be declared lawful prize, we ought to have some brief time for consideration, requesting that in the meantime you will communicate to us the sentences that have been given in similar cases, and the decisions that have been rendered in other countries in this matter.’ In the year following, that is in 1631, I find that the Court of Holland was consulted on this very question, but I do not know what it answered, if at all. And confusion has continued on the question, although certain Dutch jurists, when consulted on the same point, responded correctly and according to good legal principles that our ships, captured by the enemy and then purchased by our friends clearly became the property of the enemy by the act of capture, and consequently of those also who purchased them from him. Now then, in order that the doubts of the States-General of 1630 may not in the future prove prejudicial in similar cases, I must repeat what I said above, that the case then at issue was a peculiar one, namely the blockaded ports of Flanders; and it was the failure to notice this fact that created the confusion. And I added that you could not argue from this instance as to ports not blockaded and where egress and ingress was free. The decree of November 27, 1666, is sufficiently unjust, lest we add the iniquity of arguing from special cases.
But if the intention of the States-General was that the ownership of the vessel is not altered ‘unless it is captured and brought into the enemy’s port and has afterwards freely sailed from there and arrived in a friendly port, what ground will you find for those decrees by which, in the case of ships captured by the enemy and recovered by us, they allow a certain part to the recaptor and a part to the original owner. That is, if mere capture transfers ownership, what right has the original owner? And if not, what right has the recaptor to a definite share, since the former owner may reclaim his property? And does it profit to bring or not to bring the ship into a friendly harbour, if the original owner has no rights against the recaptor after the ship has been brought into a hostile port and condemned? With such a theory I would find no justice left; and with me agree other authorities and the observances of nations everywhere. Indeed such suppositions cannot be reconciled with the decree of November 27, 1666, nor with reason nor with law.