propriétaires du navire, on allégua que la nouvelle règle est contraire au droit des gens existant, celui-ci n'admettant la confiscation du navire que dans les cas oü la contrebande appartient au propriétaüe du navire, ou bien lorsque ce propriétaire tente d'éluder frauduleusement les droits des belügérants :
„The claim of the shipowners for the release of this captured vessel was founded upon a proposition that it is a well-established rule of the law of nations that neutral vessels carrying contraband of war are free from capture, subject to certain exceptions in cases where the owners of the vessels are also owners of the contraband, or where they attempt to defraud a belligerent of his belhgerent rights to capture the contraband by concealment of destination, by departure from the voyage, or by f alse papers or other similar methods. — Following upon this it was contended that the provisions adopted by Order in Council from article 40 of the Déclaration of London offended against the rule, and that effect should not be given to them by this Court [comp. § 64, (a)]."
Dans une monographie détaülée sur la question controversée, le président de la cour des prises en donne d'abord un exposé historique:
„The ancient practice in this country before the Napoleonic wars — apart from spécial treaties — was that neutral vessels carrying contraband goods were subject to capture and condemnation, as were the goods themselves .... Sir Wüliam Scott said of it that „it cannot be denied, that it was perfectly defensible on every principle of justice. If to supply the enemy with such articles is a noxious act with respect to the owner of the cargo, the vehicle which is instrumental in effecting that iüegal purpose cannot be innocent" —vide The Neutralitet.
The confiscation of the ship had been justified by Bynkershoek and other jurists of authority. It is true, however, that by the time of Lord Stowell a relaxation of the practice was introduced whereby J;he ship was regarded as non-confiscable, except in certain cases of the character already mentioned. But it is to be noted that if the owner of any part of the contraband cargo was also the owner of the ship, or any share in it, the ship or his share was stül held to be subject to confiscation — see the Jonge Tobias .
It is difficult to ascertain precisely the reasons for the relaxation made in those times. It was probably due partly to the policy of this country in relation to neutral commerce, and to the frequency of treaties deaüng with the subject. The legal ground for its introduction, however, was „the supposition that freights or noxious or doubtful articles might be taken, without the personal knowledge of the owner" — see per Sü William Scott in the Neutralitet. [Suivent différents détails sur le Règlement francais du 26 juület 1778 (règle des trois quarts) ; le traité franccaméricain de septembre 1800 ; les instructions frangaises du 31 mars 1854 et du 25 juület 1870 ; la pratique et la jurisprudence des prises