justly be confiscated; and if the owners of the vessel consent to take unlawful goods on board, knowing their character, their vessel may be confiscated; but the owners of the vessel are not to suffer if ignorant of the illegality of their cargo. (1) At the same time that Bynkershoek lays down this rule, he admits that a considerable number of treaties, which he cites, are at variance with the decision, but he adds, in his favourite phrase, that " Juris Gentium magistra, Ratio," points to the conclusion which he has stated to be the law. Since the time of Bynkershoek, a considerable number of treaties, to some of which our own country has been a party, have declared that none but the contraband goods are to be taken from the vessel, and that the ship and remainder of the cargo are to be allowed to proceed. Sir Wm. Scott has, however, distinctly stated the law, as understood in our prize courts, to include in the sentence of condemnation all that part of the cargo which belongs to the owner of the Contraband, and also the ship, or any share of the ship, if belonging to the owner of the Contraband: and the reason is given that "where a man is concerned in an illegal transaction, the whole of his property involved in that transaction is liable to confiscation." (2) With such

(1) Bynk. Quæst. Jur. Pub. lib. I. cap. XII.

(2) Sir Wm. Scott on the Jonge Tobias, Rob. Rep. I. 330. See also the Ringende Jacob, id. 91. Sarah Christina, id. 242, and the Staadt Embden, id. 30. Of course Sir W. Scott's rule only applies to those cases where the reverse is not declared by treaty. Albericus Gentilis says that the question of the infection of contraband was debated in his days, but was not determined, nor does he give an opinion on the

subject. Hispan. Advoc. I. c. xx. Zouch says that the distinction was made by some in his time of confiscating such part of the property as belonged to the owner of the contraband: but he does not give his opinion on the subject, merely saying "alii distinguunt." Juris et Judicii Fecialis Explicatio, P. II. c. VIII. § 13. Heineccius says, that in 1648 the Dutch proclaimed that they would confiscate not only contraband goods, but also the ship that carried them, and in

high authorities as Bynkershoek and Sir Wm. Scott, it must be concluded that such penalty from infection is the rule, and that the treaties which differ from it are exceptions; but it appears very desirable that this point should be settled by definite treaty,-the only method of avoiding those heartburnings and animosities, which must arise from the confiscation of neutral property on any grounds but those of certainty, or of very strong presumption.

1659 declared that such was the usual custom; but he says that the ship ought not to be confiscated, if only the captain, and not the owner of the innocent goods, has offended. De Navibus ob Vecturam vetitarum Thercium Commissis, c. 11. § 3, 4. Hübner says that a ship carrying

arms to a belligerent may be confiscated, together with her cargo, if this cargo belongs to the proprietors either of the ship or of the contraband. De la Saisie des Bátimens neutres, II. 1. ch. IV. § 4. Thus the authority of previous writers is on the side of the practice of our courts.

CHAPTER VIII.

PRE-EMPTION.

THE subject of Pre-emption, or the right of a govern- Nature of ment to purchase for its own use the property of the Pre-emption. subjects of another power, instead of allowing such property to reach its original destination, has been in part considered under the foregoing head of Contraband. It has, however, features of its own which require a separate notice.

By the former custom of Europe, the use of the right of Pre-emption appears to have been in much more frequent operation than at present, and to have been exercised with a wider scope of purpose. Instead of being, as now, confined to those cases in which it is doubtful whether we may confiscate, and in which Preemption is employed as a mild exercise of our right to prevent assistance from being given to an enemy, formerly it appears that the right was exercised on indifferent subjects, and that governments were in possession of the power of having, in the most peaceable times, the first choice of any cargoes which entered their ports for sale. This right is frequently referred to in treaties; by some it is acknowledged, and its exercise is limited by certain stipulations; by others, especially the more recent, it is agreed that this right shall not be exercised at all, on the property of the subjects of either contracting party. In a treaty with Denmark in 1641, it was agreed that the King of Spain should have the right of

Formerly frequently exerduring peace.

cised even

first purchase of all goods in Danish vessels, but that if this right were not exercised within six days, then the cargo might be sold to any purchaser. (1) By a treaty between England and Portugal, in 1642, British goods are only to be taken by the King of Portugal on his paying a just price for them, such price to be paid two months afterwards, unless the seller agree to other terms. (2) By treaty between Denmark and the United Provinces, in 1645, it is agreed that no goods shall be taken from the ships of the latter unless by agreement with the owner, and duly paid for. (3) From this, and the preceding treaty, it would appear that the seizure of cargoes for Pre-emption was a practice more constant than was any promptitude in paying for them; that the exercise of the right was regular, but that the discharge of the obligation was irregular. It was probably in part the inconvenience sustained through such irregularity that occasioned the article in the treaty of Munster, between Spain and the United Provinces, (4) which is also found in a great number of succeeding treaties, that the goods and vessels of the contracting parties should not be seized upon any pretext. Still, after this period, some traces of the old custom are observable in a few treaties. The United Provinces, which, as we have just seen, stipulated with Spain in 1648 that no seizure at all should be allowed, agreed with England, in 1654, that the ships and goods of either party should not be stopped except upon cogent necessity, and on paying a just satisfaction. (5) And England, in the same year, agreed with Portugal that no seizure should take place except with leave obtained from the other government, as well as from the owner of the ship. (6) It now, however, became

a usual article in treaties to forbid such seizures, and an article to this effect is still found in most treaties of commerce: but a modern instance of the old system is found in art. XVII. of the treaty made between this country and Portugal in 1810, in which, after stipulating that all naval or military stores, seized by the government of Portugal, are to be paid for at the price fixed by the proprietors, who are not to be forced to make any abatement, it is added, that if the Portuguese government take possession of any cargo whatever, or of any part of a cargo, with the intention of purchasing it, or otherwise, they are to be liable for any damage which the goods may sustain while under the custody of the Portuguese officers. (1)

In this country, although some of the treaties above quoted shew that our government formerly recognized the right of Pre-emption in its most comprehensive scope, yet such exercise of the right has, with us, long fallen into disuse. Pre-emption is confined, in our practice, to those instances where goods are of that description that their transport to our enemy would be manifestly to our disadvantage, while, on the other hand, the law of Contraband does justify their confiscation. "Pre-emption," said Sir Wm. Scott, is "no unfair compromise, as it should seem, between the belligerents' rights, and the claims of the neutral to export his native commodities, though immediately subservient to the purposes of hostility." (2) In the previous chapter, on Contraband, we have seen in what manner this law is applied in doubtful cases,—in the examples of naval materials, and of provisions carried to

an enemy.

Our own garding Prepractice reemption.

The application of the right of Pre-emption, as defined Treaties re

garding Preemption.

(1) De Martens, Supp. VII. 207.

(2) Rob. Rep. I. 241.