Questions of Public Law (1737)
Cornelius van Bynkershoek
On Goods of Neutrals Found in Enemies’ Vessels
WHEN in 1602 the Dutch captured several Portuguese ships, Portugal being then subject to Spain, Grotius wrote in his Historia Belgarum: ‘It was more difficult to decide whether the goods of the Italians which were found on the captured ships became lawful prize. But the matter was settled by a compromise between equity and the law of war.’ It would seem, therefore, that Grotius was then in doubt whether neutral goods found on enemies’ ships should be considered as enemy goods. But he had no such doubt when in 1625 he wrote his work On the Law of War and Peace, for there he says that nothing is acquired by the law of war but what belongs to the enemy, and not the property of neutrals, although it be found on the territory of the enemy, as, for instance, in an enemy town or fortified place. And hence he infers that the common saying that ‘goods found on enemy ships are considered as belonging to the enemy’ does not accord with the law of nations, and that such goods may only be presumed to belong to the enemy until the contrary is proved. Then he proceeds, ‘and this principle I found approved by the judgement of the full senate in our own Holland in 1338 when a war was raging with the Hanse towns, and the judgement has become law’. Grotius treats the same question in another place, referring again to the decision of the senate.
I am indeed ashamed at not being able to find this decision of the year 1338, and my failure to comprehend what senate might have made it, for it is well known that Philip of Burgundy did not institute the Court of Holland until almost a century later. Indeed, in the last passage cited, Grotius himself gives the year 1438 in a new edition, but the latest edition, and the octavo edition of 1632, which the author in a statement signed on April 8 of that year approved of as entirely accurate, print the year 1338 in the passage, and this is the year followed by those who have quoted Grotius, as, for instance, Zouche and Het Nederlandsch Advis-boek. My illustrious friend, Barbeyrac, also uses the year 1338 in his French version of Grotius, thinking perhaps that this is a different decision from the one cited, in Book III, chapter I, section 5, n. 4, and which in the French version he attributes to the States-General, though this body never had judicial powers and has never been called a senate. But the same decision is referred to in both places, and the year 1438 should be restored in Book III, chapter VI, section 6, since Grotius referred to the Hanseatic war, on which there is a book preserved in the archives of the Court of Holland, entitled Oosterlingen.
To come to the subject-matter, I have, despite diligent search, failed to find the decision of 1438 but am ready to take the unsupported word of Grotius for the fact, and I readily believe that others as well have accepted the word and the judgements of Grotius without any support in law. Thus Loccenius speaks as though this were now the accepted law; and so do the six advocates quoted in Het Nederlandsch Advis-boek, at any rate, they add, unless there has been a public announcement that no neutral shall ship his goods in an enemy ship, or if the shipper was ignorant about the war. The same opinion is given again. These provisos seem unreasonable, for if by the law of nations a neutral may ship his goods in an enemy vessel, I fail to understand how this can become unlawful by the proclamation of another nation. It is lawful for us to carry on trade with nations friendly to us even if they are enemies of each other, unless, as usually obtains with reference to contraband, prevented by express or tacit conventions; but if one of the warring nations without the consent of the other forbade us to trade with her enemy, the prohibition would be entirely unjust except in so far as it touched that nation’s own subjects. This also seems to be the opinion of Grotius where he discusses the matter fully. I say ‘it seems’, for in the passage cited he yields some respect to public proclamations of nations, though in his notes he shows that such proclamations may be disregarded. Again, what difference does it make whether or not the shipper who placed his goods on an enemy ship knew of the war? Granted that he did, and also that he knew the ship was an enemy vessel, there will still remain the question whether or not he had a part in an act of fraud. But these are quibbles of lawyers by which they bait the ignorant public.
But before I express my own views, it will be worth the pains to consider what the various treaties have said. So far as I am aware these usually agree with the French law cited by Mornac: ‘that the goods of an enemy produce the confiscation of those of a friend,’ since on account of an enemy vessel confiscated, the goods of a friend are also confiscated. Grotius in On the Law of War and Peace, cites the French regulations which command the confiscation of ships because of the nature of the goods, and of the goods because of the ships; but to make them seem less harsh he interprets them to mean that only when enemy goods have been taken on board with the consent of the owner of the ship is the vessel confiscated, though it be neutral. But this type of case is now irrelevant, and will be treated in the next chapter. However, I will say, that if the consent of the owner subjects the ship to confiscation, why do we not confiscate neutral goods that have been placed on an enemy vessel by the consent of the owner of those goods? On this subject Grotius says nothing, and yet since the case is absolutely analogous it should be subject to the same rule.
But setting aside the discussion for a moment, let us turn to the treaties. In Article 13 of the marine treaty of December 17, 1650, between the Spaniards and the States-General it is agreed that neutral goods of whatsoever kind are condemned if found on enemy ships. The same provision is found in Article 35 of the commercial treaty of April 27, 1662, between the King of France and the States-General, in various commercial treaties made between the same powers, to wit, on August 10, 1678 (Article 22), on September 20, 1697 (Article 27) , and on April 11, 1713 (Article 26). A similar agreement is found in Article 8 of the marine treaty of December 1, 1674, between Charles II of England and the States-General, in Article 8 of the commercial treaty of November 26, 1675, between Charles of Sweden and the States-General, and again in Article 22 in the treaty of October 12, 1679 between the same parties.
It is apparent that these treaties agree with the old French law in condemning neutral goods found in enemy vessels; and this does not accord with the decision that Grotius says the Court of Holland has made and which has become the accepted rule. However, these treaties that I have cited are subsequent to that decision, and in my opinion are not to be held binding except between the signatories. Certainly, they cannot be defended on rational grounds, for there is no reason why I should not be permitted to use for the transmission of goods the ships of a friend even though that friend be your enemy. As I said above, I may, unless some treaty forbids, trade with your enemy, and if that is permissible I may also enter into contracts, buy, sell, let, hire, and so forth. Therefore, if I have engaged his vessel and his labour to carry my merchandise across the sea I have engaged in an undertaking which is wholly lawful. You may indeed seize the ship since you are his enemy; but by what law will you seize my goods if I am your friend, especially if I can prove that the goods are mine? For I must agree with Grotius that there is some ground for presuming that goods found on board of an enemy’s vessel are the property of the enemy.
But what are we to say if the owners of the goods knowingly consented to have their goods placed on a vessel which, though friendly, belonged to an enemy of yours? For my part I do not think that that knowledge and consent constitute good grounds for confiscation. The question at issue is whether the owners of the goods in placing the cargo on an enemy vessel have acted lawfully or unlawfully. I have argued that the act was lawful because with those with whom I may properly trade I may also make any kind of contract, and hence I may make a bargain for the use of their ships in my service. You may therefore seize what belongs to the enemy if you can, but you must return to me what is mine, because I am your friend and I have not intended to harm you by shipping my goods.
With the above-said the regulations of the Consolato del Mare are in almost complete agreement in stipulating that an enemy vessel when captured belongs to the captor, but the owners of neutral goods if present may compound for the purchase of the vessel and thus continue their voyage. Moreover, if the vessel is not so purchased, the vessel may be brought into the port of the captor and the goods nevertheless restored to their owners upon the payment of the full freight that would have been due after a completed voyage. I approve of this general doctrine; but I cannot find the justice of the last clause regarding the payment of the freight. I well understand that the captor of an enemy ship has succeeded to all the rights belonging to the ship and its captain, but the freight was not due the ship or the captain unless the goods were carried to the destined port. By the premises, moreover, the ship is captured on the voyage, why then must I pay freight to the captor? If the captor is willing to carry the goods to the destined port I might understand the reason for this rule, but I cannot otherwise. For the imprudent act of placing my goods on an enemy vessel, I am sufficiently punished by the necessity of having to claim and carry away my goods at my own expense and risk. Imprudent writers have frequently made foolish proposals in this matter of exacting the freight; another example of this kind I have noted in Chapter X.