and that liens will not be protected or regarded in a prize court. This position is sustained by the authorities as to certain kinds of liens. The extent of this doctrine and the reasons on which it is founded, are stated by the Supreme Court, in The Francis, 8 Cranch, 418. It is there said that 'cases of liens created by the mere private contract of individuals, depending upon the different laws of different countries, are not allowed, because of the difficulties which would arise in deciding upon them, and the door which would be open to fraud.' Similar reasons are given by Lord Stowell, in The Marianna, 6 Rob., 25, 26, and in several other cases. These reasons are especially applicable to latent liens created under local laws. They do not reach the case now before the court. This coffee was purchased by the claimants at Rio, and shipped by them on board this brig under a bill of lading, by which the master was bound to deliver it to their order, and they ordered it to be delivered to J. L. Phipps & Co., that is, to themselves. They then retained the legal title, and the possession of the master was their possession. Being the legal owners of the property, they can hardly be said to have a lien upon it; a lien being in strictness an incumbrance on the property of another. Their real character was that of trustees holding the legal title and possession with a right of retention until their advances should be paid. "In The Francis and many other cases it is held that the lien of a neutral carrier for the freight of enemy's goods, is upon capture to be allowed. The general doctrine seems to be that where a neutral has a jus in re; where he is in possession with a right of retention until a certain amount is paid to him, the captor takes cum onere and must allow the amount of such right. But where the neutral has merely a jus ad rem, which he cannot enforce without the aid of a court of justice, his claim will not be recognized by a prize court. (The Tobago, 5 Rob., 218.)" CHAPTER IV. OF THE RIGHTS OF BELLIGERENTS TO INTERFERE WITH A REMARK attributed to the king's advocate in the early case of Potts vs. Bell, that "there is no such thing as a war for arms and a peace for com merce," has since been adopted by the elementary writers, us a happy statement of an axiom in the law of nations. The commerce of the enemy has, in all ages, been The comregarded as the legitimate prize of war. The character and effects of what are considered the several rights of war relative to hostile commerce, will form the subject of this chapter. merce of the enemy the le gitimate prize of war. As a starting point, it will be instructive to consider the great leading principles, as they have been Leading prinlaid down by the early authoritative writers, as subject in naforming the basis of the existing law of nations. "A state, taking up arms," says Grotius, "in a just cause, has a double right against her enemyfirst, a right to obtain possession of her property withheld by the enemy, to which must be added the expenses incurred in the pursuit of that object -the charges of war and the reparation of damages -for, were she obliged to bear those expenses and 8 Term Rep., 548. 'Grotius, B. III., c. vi. ciples on this tional law. losses, she would not fully recover her property nor obtain her due. Secondly, she has a right to weaken her enemy, in order to render him incapable of supporting his unjust violence, a right to deprive him of the means of resistance. "Hence, as from this source originate all the rights which war gives us over things belonging to the enemy, we have a right to deprive him of his pos sessions of every thing which may augment his strength and enable him to make war. This, every one endeavors to accomplish in the manner most suitable to him. Whenever we have an opportu nity, we seize on the enemy's property, and convert it to our own use, and thus, besides diminishing the enemy's power, we augment our own, and ob tain at least a partial indemnification or equivalent either for what constitutes the subject of the war, or for the expenses and losses incurred in its prosecution-in a word, we do ourselves justice." Professor Martens, of Gottingen, in his "Summary of the Law of Nations," makes the following condensation of the elementary doctrines: "The conqueror has a right to seize on the property of the enemy, whether movable or immovable. These seizures may be made; 1st, in order to ob tain what he demands as his due or equivalent; 2d, to defray the expenses of the war; 3d, to force the enemy to an equitable peace; 4th, to deter him, or by reducing his strength, to hinder him, from repeating, in future, the injuries which have been the cause of the war. And, with this last object in view, a power at war has a right to de Marten's Lib. VIII., c. iii., § 9. stroy the possessions and property of the enemy, for the express purpose of doing him, mischief. However, the modern laws of war do not permit the destruction of any thing, except, 1st, such things as the enemy cannot be deprived of by any other means than those of destruction, and which it is at the same time necessary to deprive him of; 2d, such things as, after being taken, cannot be kept, and which might, if not destroyed, strengthen the enemy; 3d, such things as cannot be preserved without injury to the military operations. To all these we may add, 4thly, whatever is destroyed by way of retaliation." The subject of the belligerent right of the destruction or confiscation of the property of the enemy, acquires a peculiar interest in its connection with the insurrection against the government of the United States, raised by certain malcontents in the southern portion of the country, and in its application to the negroes held as slave property by a small portion of the people in the insurgent territory. The solution of this question assumes a momentous importance, when it is considered in connection with the obvious and imperative duty of the gov ernment, in the suppression of a rebellion, which, in any event must involve a pecuniary loss of many millions to the people, and may entail a loss of greater magnitude than the highest estimated value of the entire negro population held as slave property-to remove all possible ground or occa sion for future domestic commotion, from the same real or pretended cause. It would be out of place, in a work of this char |