Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether it Is Lawful to Convey Goods to Besieged Cities, Camps, and Ports
ACCORDING to the dictates of common sense and the usages of nations, it is not lawful to carry any goods to besieged cities, as I said in a different connexion in the fourth chapter. This is also the opinion of Grotius, who disapproves of the sending of supplies ‘if it impedes the exaction of my right, and if he who sends them can know this, as, for instance, if I am besieging a town or blockading a port, and if surrender or peace is expected’. The fact that there is a siege is a sufficient reason why nothing should be supplied, whether it be contraband or not, for the besieged are brought to the point of surrendering not only by force, but also by want of food and other things. If it were lawful to bring the besieged the things which they need, the attacking power might perchance be compelled to abandon the siege, which would be an injury to it, and therefore an injustice. Moreover, since we cannot know of what things the besieged may be in use or in what they may be well supplied, all supplying is forbidden, otherwise there would be no end of disputes that might arise. So far I agree with the opinion of Grotius, but I wish that he had not made his rule contingent upon the condition ‘if there was expectation of peace or surrender’, and that he had not presently specified that ‘he will be liable to the extent of the damage caused by his act’, and, that ‘if he has not yet caused damage, but has tried to cause it, I shall have a right, by the retention of his property, to compel him to give security for the future, by hostages, pledges, or in some other way’. These clauses, I say, Grotius should not have added, for they are not consonant to reason nor in accord with such treaties as occur to me. On what principle of reason is the carrier empowered to judge whether peace or surrender is near at hand? Or if they are not near at hand may he carry whatever he likes to the besieged? I should rather say that he may at no time so long as the siege lasts bring supplies, and he is not acting the part of a friend in ruining or in injuring in any manner the cause of his friend. Furthermore, why should not the carrier be liable for more than the damage caused by his act, since such conduct has always entailed capital punishment in the case of subjects, and even in the case of neutrals when previously warned by an edict, and often without such warning. And since those who thus aid besieged peoples in distress are usually private individuals in search of gain, let us imagine that an individual has saved a city from capture by his commerce: I should hardly think that any such individual would have wealth enough to pay an adequate indemnity for the loss of a city which has escaped capture by his act. Again, if an individual who has as yet brought nothing into a besieged city is intercepted while attempting to do so, can we be satisfied with the mere retention of his goods, and that too only until he gives security that he will not do the like again? This I cannot accept, for I have been taught by the common usage that the intercepted goods are confiscated at the least, and that often some corporeal punishment, if not a capital one, is inflicted.
Let us now turn to some treaties dealing with this subject. In Article 7 of the marine treaty of December 17, 1650, between the King of Spain and the States-General, it is simply agreed that even non-contraband goods may not be carried to besieged cities and places. The same agreement occurs in Article 29 of the commercial treaty of April 27, 1662, between the King of France and the States-General, in Article 4 of the marine treaty of December 1, 1674, between the King of England and the States-General, in Article 16 of the commercial treaty of August 10, 1678, between the King of France and the States-General, in Article 16 of the commercial treaty of October 12, 1679, between the King of Sweden and the States-General, as well as in many other treaties. All of these treaties hold simply, without specifying a penalty, that it is unlawful to carry any goods to a besieged place, but if it be unlawful, then all goods so carried must be considered contraband, for what is carried contrary to treaties and edicts is contraband. It follows that goods so carried must, as I just said, be confiscated at the least, by the same principle that all goods actually called contraband are confiscated. And this practice is observed in usage as will be seen presently, and usage has also established that the offender is punished capitally or in some milder manner according to circumstances.
Not only cities but camps as well may be surrounded by troops and besieged, as it were; accordingly, it is just as unlawful to carry goods to besieged camps as to besieged cities. To camps not besieged, however, neutrals may, so far as I can see, properly carry goods that may be carried to cities, ports, and other places of the enemy not besieged, namely, goods that are not contraband. And yet the counsellors of the States-General on August 9, 1622, decreed in the name of the latter that those would be treated as enemies who carried goods of any description to the camp of the Spaniards at Bergen-op-Zoom. The same body made the same general decree again on September 2, 1624, against any who supplied goods to the Spanish camp, and again on March 21, 1636. But these decrees are too unjust to deserve defence, if the camps are not besieged and the goods are not carried through our territory. The first two decrees applied not only to subjects but also to neutrals and to those under our protection. So far as concerns subjects, a sovereign may issue whatever command he desires, but so far as they concern neutrals and those under our protection these decrees cannot be defended unless we restrict them to the subject of contraband goods. The third decree is directed against neutrals who carried food and instruments of war to the Spanish fortresses, but, as the decree states, it was issued by right of retorsion because the Spaniards had treated as enemies those who had aided Maastricht with food and arms. The principle of retorsion therefore excuses the severity of this edict in the matter of food, since neutrals may carry food unless it be forbidden by treaty; but arms are always contraband, whether the place is besieged or not, and in this respect the aforesaid- third decree was entirely fair. As to other things, whether the Spaniards and the States-General have been fair in their edicts and decrees, depends wholly, it seems to me, upon the question whether or not the places were besieged.
The rules that apply to besieged cities, and which have with good reason been applied to camps surrounded and, as it were, besieged, apply also to hostile ports that are blockaded and therefore considered besieged. Regarding this matter there is a remarkable decree of the States-General issued on June 26, 1630, with the advice and opinion of the Court of Admiralty of Amsterdam and of other courts of admiralty, and even probably with the advice of some private lawyers. It may be found in De Hollandsche Consultatien. When in 1630 the States-General blockaded with ships of war the coast of Flanders, the question was raised whether neutral ships might enter the ports and carry merchandise in and out. The first clause of the decree specifies ‘that ships and cargoes of neutrals shall be confiscated if found going in or coming out of the enemy’s ports in Flanders, or being so near that there is no doubt that they intended to sail in, since the sovereign state kept those ports continually blockaded with their ships of war in order to prevent commerce with the enemy, as had been the custom many years before, after the example of all princes who had made use of a similar right in such cases’. The second clause ordains the confiscation of all ships and cargoes ‘if from the letters and documents of the ships, it becomes evident that they were bound for the said Flemish ports, even though found at a distance; unless they of their own accord, before being sighted or pursued by our vessels, and before any act is committed should repent and alter their course; in which case the matter shall be decided as a new case according to conjectures and circumstances’. The third clause ordains the confiscation of ships and cargo ‘which come out of said ports, not having been forced into them by stress of weather, although they be taken at a distance, unless they have after leaving the enemy’s port made a voyage to a port of their own country or to some other neutral or free port, in which case they shall not be condemned; but if in coming out of said enemy’s ports they are pursued by our own ships, and chased into another harbour as, for instance, their own, or that of their destination, and found on the high sea coming out of such port, they are to be confiscated’. There is also a fourth clause which I quoted and explained in the fourth chapter, above, which I can therefore now pass over.
However, the first three clauses of this decree seem to require some explanation. The first point of the first clause is explicitly stated, and is entirely in accord with the recognized rights of war. The clause then proceeds to ordain confiscation for ships ‘so near that there is no doubt that they intended to sail into the port’. This is reasonable, for contraband or forbidden goods if found at the confines of the enemy’s territory are presumed to be on their way to the enemy, not only according to the general opinion of jurists, as quoted in Zouche, but also in accordance with the intentions of the States-General as expressed in the decree just quoted as well as in the following: that of December 5, 1652, against the English (clause 4), that of March 19, 1665, against the same (clause 4), those of April 14, 1672, and April 11, 1673, against the English and French (clause 4), and this is the presumption of these edicts unless the ships can prove that they were driven in by stress of weather, as the second clause of our edict specifies. However, to return to the coast of Flanders, the very same decree was issued in the early days of our commonwealth, for according to the edicts of the Earl of Leicester of April 4, 1586, and of August 4, 1586 (clause 9), in which he forbids subjects and foreigners to have any commerce with the Spanish, and according to the edict of the Estates of Holland of July 27, 1584, neutrals resorting to the ports of Flanders are punished by the confiscation of ships and cargoes; and that edict expressly provides that ‘those who shall be found along the coast of Flanders or near any of the forbidden ports, shall be adjudged to have acted contrary to this decree, except in cases of extreme and well-proved necessity’. We cannot therefore approve of the opinion of Cinis who writes that they are to be punished on the ground of going to the enemy only when they have proceeded so far that they cannot return, and yet this view is approved by Alberico Gentili.
The second clause is as reasonable as the first, which I have just discussed; for the ships and cargoes found near blockaded places are confiscated only on the ground that their intention of going to the enemy is tacitly adduced from facts; and there is no doubt about this intention if this is found clearly stated in the ship’s documents. However, what is said about repentance involves a subject difficult to investigate, but if the proofs are adequate that the course has been altered, I should not dissent.
In the third clause, the ships that have once reached their port of destination are considered to have completed their voyage, and to be beyond reach of confiscation, but a nice distinction is made with reference to the harbour into which a ship is chased, when caught in the act of violating a blockade. The disjunctive is used in the clause ‘their own port or that of their destination’, so that a doubt arises about the meaning and the justice of the rule. If ‘the port of destination’ is meant to be synonymous with ‘their own port’, there will be no doubts. But if, for instance, an Englishman sailing for Denmark from Flanders is driven into an English port, and when sailing out to proceed on his voyage is caught before he reaches the Danish port, it would seem to me that he is caught on his voyage and in the illicit act, and I do not see that it is of any consequence whether the port he entered was his own if he had not finished the voyage in which he was engaged. Therefore, as disjunctives are often used as explicatives, I understand the words of the aforesaid clause ‘their own port’ to mean the port to which the vessel was bound, and ‘the voyage’ to refer to the completed course. Let us suppose, for example, that a vessel from Zierikzee is taken by the Dunkirkers, who condemn her at Dunkirk, where she is then bought by a Scotchman. According to the fourth clause of our decree of 1630, which I quoted above in chapter IV, it is lawful to intercept and confiscate the ship on her way out, if she be taken before she entered into her own or into some other free port, but not afterwards. This ship, now belonging to the Scotchman, is sighted on her way out from Dunkirk, but escaping capture, runs into Yarmouth, to which she is not bound; then in coming out of Yarmouth, she is captured. The question is whether this ship entered ‘her own port’. I would not say that she did, since she did not reach the ‘port of her destination’. Aitzema relates that on the advice of the Admiralty of Zealand, given January 27, 1631, in a similar case, the States General decreed that the ship must be confiscated, and that this accorded with the decree of June 26, 1630.
Finally, what the third clause says about ‘free ports’ must be interpreted according to the meaning of the fourth, so that the phrase ‘free port’ does not mean a port of the same sovereign. Since this decree of June 26, 1630, was not put into execution at once, and there was in the meanwhile free intercourse with Flanders, it happened in 1642 that certain neutral ships bound for those ports were taken by us and brought into Zealand; and there the contraband goods were condemned and sold while the rest was released and restored. The question has arisen whether the contraband goods were lawfully taken, there being some who claim it was not. But we must approve of the decision, for though it might seem that the right of blockade, by which the goods of neutrals are seized, was relaxed, since the shores of the enemy were not being carefully guarded, nevertheless the general law of war was not annulled, according to which it is lawful to confiscate contraband goods, even that which is being carried to non-blockaded ports.
However, though the severity of this decree of 1630 can thus be defended, nevertheless it may be relaxed in proper circumstances, as in fact it sometimes has been. When Admiral van Tromp, who in 1645 was blockading the ports of Flanders with a Dutch fleet, asked the States-General whether he should take any action against neutral ships, the latter on July I of that year decreed that he should make every effort to prevent any and every ship from entering a Flemish port, that, however, non-contraband goods should not be confiscated. The States-General had therefore changed their opinion since 1630; but since men change what can prevent the change of decisions’?
By the aid of these principles, if my arguments in this and the two preceding chapters are correct, the reader can readily reach a decision regarding the disputes between the English and the Poles and others which are rehearsed by Zouche.