Questions of Public Law (1737)
Cornelius van Bynkershoek
Shall Non-contraband Goods Be Condemned Because of Contraband?
IF a neutral carries at the same time both. lawful and unlawful goods to the enemy and the ship is captured, it is asked whether the ship and whether the lawful goods should be confiscated on account of those that are unlawful, and the same question may arise at any time where lawful and unlawful goods are mixed together. Among a number of questions the Admiralty of Amsterdam proposed this one also to the States-General in 1631, in order to procure an interpretation of their edict of April 1, 1622. But though they answered the other questions, as Aitzema relates, they decided to take this one under advisement. And though I cannot find that they answered then or later, they did on May 6, 1667, publicly order their courts of admiralty not to condemn ships and non-contraband with the contraband goods, as Aitzema relates. This is all that Aitzema says, and the responses of September 18, 1665, based upon the several decrees of the States-General, go no farther.
But with some of the authorities cited by Zouche, I think a distinction must be made between the case where both lawful and unlawful goods belong to the same owner and that in which they belong to different persons: if they belong to the same person, everything is condemned for the purpose of checking wrongdoing, but if they belonged to different shippers then one must not suffer for the wrongs of the other; and the response of the Dutch lawyers properly adopted this opinion on July 31, 1692. Very strong support is provided for this view by the Digest, where, in the case of the owner of a vessel, Paulus raises the question whether or not he knew that something unlawful had been placed on board: if he knew of it, as for instance if it was done in his presence, the vessel is also confiscated, but if it was done by the master in his absence so that he was ignorant of it, the ship is restored to the owner as being innocent. Zouche, to be sure, brings evidence from Pierino Belli that lawful goods have without such distinctions been confiscated with the unlawful; but if you will refer to the case in Belli, the location of which Zouche failed to mention, you will find that both lawful and unlawful goods belonged to the same shipper, and that he was cognizant of the fraud and therefore punished by the confiscation of both. But of this we shall speak more fully presently.
Let us first examine the treaties and edicts to which our state has been a party with reference to this subject. In the navigation treaty of February 4, 1648, between the Spanish and the States-General, and in Article 12 of the marine treaty of December 17,, between the same signatories, it is simply agreed that it shall be unlawful for the subjects of either party to carry contraband goods to the enemy of the other, and that they may be confiscated if so carried; but the ships and non-contraband goods are exempt. The same simple regulation without distinction as to ownership is found in Articles 24 and 36 of the commercial treaty between the French and the States-General, dated April 27, 1662. The States-General adopt the same principle in section 2 of their edicts against the English, and against the English and French, dated March 19, 1665, April 14, 1672, and April 11, 1673, where, after enumerating a long list of contraband goods, they order the confiscation of these without any mention of non-contraband goods. But in Article 7 of the Treaty of December 1, 1674, between Charles II of England and the States-General, lawful goods are distinguished from unlawful, and the latter are ordered condemned while the former are not. The treaty even specifies that if the contraband goods are at once surrendered to the captors, the vessel with the rest of the cargo shall be dismissed to proceed upon its voyage, a rule contrary to section 4 of the above-cited edicts of 1665, 1672, and 1673, which specifies that the ship shall be sent to the Court of Admiralty for adjudication if any part of its cargo was unlawful. Again, Article 7 of the commercial treaty of November 26, 1675, between the King of Sweden and the States-General, has the simple provision that contraband goods are condemned while the ship and the non-contraband are not. Another long list of treaties has the above-cited provision that ships and lawful goods are free, and that these are dismissed to proceed upon the destined voyage as soon as the contraband goods are surrendered by the captain; compare Articles 21 and 26 of the marine treaty between the Swedes and the States-General of October 12, 1679, Articles 21 and 26 of the commercial treaty of August 10, 1678, between the French and
the States-General, Articles 26 and 31 of the commercial treaty of September 20, 1697, between the same signatories, and Articles 25and 30 of the commercial treaty of April 11, 1713, between the same.
Such are the treaties and edicts, and if we could deduce the law of nations from these, we must apparently conclude that vessels and lawful goods could never be condemned on account of the carrying with them of unlawful goods. But the law of nations cannot be deduced from these, for reason, the preceptress of the law of nations, will not permit us to give a general and indiscriminate interpretation to these practices. As for the ship, I think we must ask whether this belongs to the captain or to some one else; if it belongs to him we must again ask whether, as would usually be the case, he knew that unlawful goods had been put on board, or whether he was ignorant, as, for instance, if in the absence of the captain the sailors had concealed these things in the ship. If he knew, he is guilty of fraud because he hired out his ship for an unlawful use, and the ship will be condemned; but it will not be if he was in ignorance and was innocent of fraud. This is the sane and reasonable principle laid down by Paulus in the above cited passage from the Digest. We must apply the same principle if the ship belongs to another, for Paulus speaks in general about ‘the master of the ship’. Accordingly, if the captain has placed unlawful goods in the vessel without the knowledge of the owners, their ship is not confiscated, but the case is different if they knew unlawful cargo was being taken, for in that case they would be parties to the fraud. It is unjust that owners should suffer from the act of a captain, but it is wholly just and fair that they should suffer because of their own act. However, this distinction between a captain who knows and one who is ignorant of his cargo, cannot now be as frequently applied as it was formerly, since it is now the custom for the captain to sign the bill of lading of the cargo, and to promise that he will use his proper endeavour to convey the goods to the consignee. And yet it may be applied if anything unlawful has been taken on board without the captain’s knowledge, as I just said. In the case of other owners of vessels the principle may very frequently be applied even now.
As to owners of goods, I think that for the same reason a distinction should be made whether or not all the goods, lawful and unlawful, belong to the same owner, and as I said above, other authorities have also advocated this. If they belong to one and the same owner I think all are properly confiscated; just as in Roman law regarding revenue cases if any one carries in the same cargo both prohibited and lawful goods, declaring the latter while concealing the former, both are confiscated on account of the fraud of the carrier, as commentators on the above-cited Digest have properly collected from the text of that law and from the third law of the code De nautico fenore. Various other authorities make other distinctions: one would ask whether or not the lawful goods could readily be separated from the unlawful, holding that both should be condemned if they could not easily be separated, but that if they could, the former should be released, the latter condemned without considering whether or not all the goods belong to one and the same person. But since such separation can always be made, this distinction is not founded on reason, nor has it the support of any legal authority. There is more reasonableness in the question whether the lawful goods belong to another than the one who commits the fraud, for this situation involves the principle that one man should not suffer on account of the deed of another. Furthermore, on this question we can appeal to a legal decision pronounced on an analogous case; for the Digest holds that if one of several coheirs defrauds the estate to escape the revenue, the other coheirs shall not lose their portions by way of punishment. It also holds, that if tenants or slaves of a landlord illegally make iron on the estate without the knowledge of the owner, the latter is not liable; and finally, the above-cited code of nautical insurance holds that if the whole ship’s cargo is confiscated because of the fraud of the owner in shipping unlawful goods, the person who placed the ship’s insurance shall not suffer.
But what if the owners of the lawful goods merely know that unlawful things were also being put on board, would this mere knowledge entail confiscation of the lawful goods? I have found such an opinion expressed, but I have not found any support for it and do not intend to accept it. The lawyer who advocated this might indeed have appealed to the above-cited passage of the Digest, which exonerates the landlord who is ignorant of the illicit manufacture of iron by his tenants or slaves; since one might infer from this that if the owner knew of the wrongdoing he would not be exonerated, because it was his duty to forbid it, and to command his tenants and slaves not to do anything unlawful upon his estate. But if, as usually happens, several owners ship their goods on the same merchantman, one owner cannot control the others, not even the captain who undertakes to carry the cargo. What therefore the owner of lawful goods cannot prevent, cannot involve him in damage; he might refrain from shipping his goods, but if he cannot conveniently do this he cannot be made liable for the act or fraud of others.
This is my opinion, and I wish that the treaties and edicts which I have cited had contained these principles and distinctions. You may think that the definitions not explicitly expressed are to be tacitly understood, and that these treaties and edicts may therefore be interpreted according to each particular case. I wish I might think so, but I fear that the documents are written in such general terms that this is impossible. What Alberico Gentili has written on all these subjects is full of obscurity and confusion.