on the other hand, if the ships of friends shall be freighted out to carry the goods of enemies, this may subject them to be prize, especially if the goods shall be laden aboard by the consent or privity of the master or skipper; though in France they have subjected and involved the innocent with the nocent, and made both of them prize." (1) This agrees with the opinion of Loccenius above quoted, and is as far as possible from the claim of "free ships free goods."

The writer next to be quoted is Heineccius. He is Opinion of one of the highest authorities that could be cited on either Heineccius. side of the question. He was equally remarkable for his great learning, and for the powerful understanding which he employed in deducing conclusions from his materials; and he brought the spirit of a philosopher to the consideration of law. He was a writer on morality as well as on jurisprudence, and he was above the suspicion of any influences which might bias the correctness of judgment which his education so qualified him to attain. If weight be due to any authority, it is to that of Heineccius: and it is thus that he expresses himself, in his excellent treatise on maritime captures, published in 1721. Stating that the goods of a friend, found on board the ship of an enemy, ought to be released; he adds, "idem statuendum arbitramur, si res hostiles in navibus amicorum reperiIllas capi posse, nemo dubitat, quia hosti in res hostis omnia licent, eatenus, ut eas ubicunque repertas sibi possit vindicare.” (2)

antur.

Shortly subsequent to the treatise of Heineccius, appeared the work of Bynkershoek, who, however, composed his chapters on maritime capture, as he expressly tells us, before he had seen the essay of Heineccius. His

(1) Molloy, de Jure Maritimo et Navali, book I. c. 1. § 18. (2) Heineccius de Navibus

ob vecturam vetitarum Mercium
Commissis, c. II. § IX.

Opinion of
Bynkershoek.

arriving at the same conclusions, independently of his contemporary's suggestions, makes his authority the more valuable, especially as his mental character was directly in contrast to that of Heineccius. He had not the refinement, nor the love of pursuing abstract suggestions, nor the habit of systematizing from collected facts, which distinguish the latter writer. His characteristic was what is called common sense, possessed in its fullest extent. He was a powerful reasoner, who always seems to possess a complete mastery of all the bearings of his subject, and who makes his reader fully comprehend the steps which had produced conviction on his own mind. Of such a writer, the authority seems a sort of complement to the opinion of the philosophical Heineccius; and the judgment of both is identical in its purport, and similar in the decisive manner in which it is pronounced. Bynkershoek dedicates two chapters of his Quæstiones Juris Publici, published in 1737, (1) to the consideration of the property of friends found in the ships of enemies, and of the property of enemies found in the ships of friends. With regard to the former, he dissents from the old French maxim" que la robe de l'ennemi confisque celle de l'ami," and agrees with the rule, as acknowledged by this country, that the enemy's ship is lawful prize, but that the neutral property is free. "Cape, si potes, quodcunque est hostis tui, sed mihi redde quod meum est, quia amicus tuus sum, et impositione rerum mearum nihil sum molitus in necem tuam." (2)

With regard to the second question, respecting the property of enemies found in the ships of friends, Bynkershoek says there is the twofold consideration, whether the carrying such property confiscates the neutral ship, and whether the neutral ship protects such property from

capture. The old French law made the carriage of enemy's property penal, to the extent of confiscating the neutral ship; and we have seen above that Grotius, Loccenius, and Molloy, held that carrying such goods, if their character were known to the master of the vessel, entailed the capture of the ship. Bynkershoek examines this opinion, and asserts as his conclusion, that taking the goods of the carrier's friend on board, is not an offence against the Law of Nations, although that friend be in a state of hostility with a third party.

With respect to the other inquiry, whether the property of enemies, found in the ships of friends, be liable to seizure as lawful prize, he says, quid, inquies, dubitabis, cum recte occupem, quicquid hostium est?" But there have been treaties, he adds, in which the principle of "free ship free goods" has been agreed upon, and some of these were with the King of France. With regard to these he makes the observation "igitur dicendum est, aut ab antiquo jure Francico, de quo supra dixi, plane esse recessum, aut, quod est verius, hæc pacta exceptionum loco esse habenda." He proceeds to say, that however this may be," de ipsâ ratione, magis quam de pactis, laborandum est." In this view, he says, "I cannot perceive why it should not be lawful to capture hostile property, although found in the ship of a friend; for what is taken is the property of an enemy, which falls to the victor by the right of war. If you object that I cannot rightly take possession of hostile property, on board the ship of a friend, without first taking possession of the neutral ship, and that I thus offer violence to the property of a friend in order that I may capture the property of an enemy, and that this is no more allowable than to attack an enemy in the port of a friend, or to ravage a friendly country, I wish you to remark that it is allowable to stop the ship of a friend, so far as to ascertain whether it be really the ship of a friend, not from the flag, which may

chance to be deceptive, but from the ship's papers themselves. If it be proved to be the ship of a friend, I release it; if it be the ship of an enemy, I take possession. Now, if this is allowable, and by every law it is allowable, and is constantly practised, it will also be allowable to examine the papers which relate to the cargo, and thence to ascertain whether any hostile property be on board the vessel, and if there be such property on board, what should prevent my taking possession of it by the rights of war?" (quidni ea jure belli occupem ?) (1) Bynkershoek then proceeds to inquire whether freight should be paid by the captor; but this, though allowed, as he remarks, by the Consolato, by Albericus Gentilis, and by Zouch, he does not think should be granted. In this alone he differs from our practice, which allows freight to the neutral vessel.

This judgment of Bynkershoek, besides its own intrinsic value, is remarkable from the manner in which he anticipates the exact objections made by some of the modern claimants for additional privileges to neutrals. To their demand, that a ship should be considered as part of the state to which she belongs, he replies in a manner that makes it surprising that such a fallacy should have been re-asserted after such a refutation. To their

other chief point of reliance, that treaties have established a law contrary to that which previously existed in Europe, he replies, that these treaties form, not the rule, but the exception: and, let it be remembered, the treaties chiefly relied on had been made before the time when Bynkershoek wrote. And by whom was this opinion, expressed with such undoubting confidence, given? By a Dutch jurist, writing in Holland, president of the senate of Holland, and in the height of his reputation. A member of the country which had introduced, by treaties, an alteration in the old law of Europe, an alteration which

(1) Id. lib. I. c. XIV.

had for years been made the chief object of the diplomacy of the Dutch, to whom, when obtained, it was the source of such ample profits, he perceived that this privilege must be obtained as a favour, and could not be claimed as a right; and having formed this opinion, he declared it in a manner that is in itself a sufficient comment on his political integrity.

Thus we have traced the Law of Nations on this topic, as declared by the standard authorities, till nearly the middle of the 18th century. During the whole of this period, no single writer had attempted to claim for neutrals greater privileges than were allowed in the Consolato. Treaties had been made between some European states, in which the power to carry enemy's goods free from capture, in neutral ships, was granted; the counter-stipulation being always made, that of such powers, being neutral, the goods, when found in an enemy's vessel, should be liable to confiscation. Treaties of the opposite description were also made at the same period; the same state occasionally engaging in one set of stipulations with one state, and in another set of stipulations with another state. These treaties it will, however, be most convenient to consider in the ensuing section, in order not to interrupt the present examination of the opinions of the acknowledged authorities on the Law of Nations. Among these must not be omitted the opinions of those eminent lawyers who discussed the celebrated Prussian Memorial of 1752,-with which we arrive at the first occasion on which the power to protect enemy's goods in neutral vessels was demanded as a right, when not claimed under special treaty; it being acknowledged by the most violent assertors of the claims of neutrals, that, until this period, the whole weight of authority on this question went to show that enemy's property in neutral ships was the subject of lawful confiscation.

Uniformity of till the middle of the 18th

all authorities

century.