the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war, and therefore not subject to capture. It has been usual for the government sending out such an expedition to give notice to other powers; but it is not essential. While there are instances in modern times, in which nations, by convention between themselves, have made special agreements concerning mail ships, the writers on international law concur in affirming that no provision for the immunity of mail ships from capture has as yet been adopted by such a general consent of civilized nations as to constitute a rule of international law. There can be no question of intercepting neutral mail ships, because communications between neutrals and belligerents are lawful, in principle, saving the restrictions relating to blockade, to contraband of war, and the like; the right of search furnishes belligerents with a sufficient means of control. But there is no doubt that it is permissible according to existing practice to intercept and seize the enemy's mails. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. Ortolan says: "Custom admits an exception in favor of boats engaged in the coast fishery; these boats, as well as their crews, are free from capture and exempt from all hostilities. The coast fishing industry is, in truth, wholly pacific, and of much less importance in regard to the national wealth that it may produce than maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those who carry it on, among whom women are often seen, may be called the harvesters of the territorial seas, since they confine themselves to gathering in the products thereof; they are for the most part poor families who seek in this calling hardly more than a means of gaining their livelihood." Again, after observing that there are very few solemn. public treaties which make mention of the immunity of fishing boats in time of war, he says: "From another point of view the custom which sanctions this immunity is not so general that it can be considered as making an absolute international rule; but it has been so often put in practice, and, besides, it accords so well with the rule in use in wars on land, in regard to peasants and husbandmen, to whom coast fishermen may be likened, that it will doubtless continue to be followed in maritime wars to come." But the privilege of exemption from capture, which is generally acquired by fishing vessels plying their industry near the coasts, is not extended in any

2. The Paquete Habana, 175 U. S. 677, 20 S. Ct. 290, 44 U. S. (L. ed.) 320.

3. The Panama, 176 U. S. 535, 20 S. Ct. 480, 44 U. S. (L. ed.) 577.

country to ships employed on the high sea in what is called the great fishery, such as that for the cod, for the whale or the sperm whale, or for the seal or sea calf. These ships are, in effect, considered as devoted to operations which are commercial and industrial.*

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100. Criteria of Enemy Character of Vessels.-Courts and text writers agree that ships are a peculiar property, and that such peculiarity assumes more importance as a criterion of judicial decision in war than in peace. They have a national character, as recognized by the law of nations, because they regularly carry the flag of the nation to which they belong. Evidences of ownership are also peculiar, but vary somewhat according to the laws of the country in which the ships are built, or in which they are owned. Commercial nations generally have, for the advancement of their own individual prosperity, conferred great privileges upon the ships belonging to their own citizens and, in consideration thereof, have imposed upon their owners certain special duties and obligations. Usually ships are required to be registered at the home port, and they are not allowed to sail on any voyage, foreign or coasting, without such papers as the laws of the country to which they belong require. When a ship is captured as prize of war she is bound by the flag and papers under which she sailed. Owners are also bound by those insignia of national character. They are not at liberty when they happen to be evidence against them to turn round and deny the character the ship has assumed for their benefit. The sailing under the enemy's license constitutes, of itself, an act of illegality, which subjects the property to confiscation, without regard to the object of the voyage or the port of destination." Neutrals who place their vessels under belligerent control, and engage them in belligerent trade, or permit them to be sent with contraband cargoes under cover of false destination to neutral ports, while the real destination is to belligerent ports, impress upon them the character of the belligerent in whose service they are employed, and cannot complain if they are seized and condemned as enemy property.8 But where goods, destined ultimately for a bel ligerent port, are being conveyed between two neutral ports by a

4. The Paquete Habana, 175 U. S. 677, 20 S. Ct. 290, 44 U. S. (L. ed.) 320.

5. The Wm. Bagaley, 5 Wall. 377, 18 U. S. (L. ed.) 583.

138, 44 U. S. (L. ed.) 195.

7. The Ariadne, 2 Wheat. 143, 4 U. S. (L. ed.) 205.

8. The Hart, 3 Wall. 559, 18 U. S. (L. ed.) 220.

6. The Alexander, 8 Cranch 169, 3 In Darby v. The Erstern, 2 Dall. 34, U. S. (L. ed.) 524; The Aurora, 8 1 U. S. (L. ed.) 277, the court said: Cranch 203, 3 U. S. (L. ed.) 536; The "Neutral property cannot be captured. Hiram, 8 Cranch 444, 3 U. S. (L. ed.) For, while the character of neutrality 619; The Ariadne, 2 Wheat. 143, 4 is preserved, such property is the U. S. (L. ed.) 205; The Wm. Bagaley, property of a friend, on which the 5 Wall. 377, 18 U. S. (L. ed.) 583; rights of war cannot attach; but the The Pedro, 175 U. S. 354, 20 S. Ct. owners of a ship may violate their

neutral ship, under a charter made in good faith for that voyage, and without any fraudulent connection on the part of her owners with the ulterior destination of the goods, the ship, though liable to seizure in order to the confiscation of the goods, is not liable to condemnation as prize.9

101. Effect of Capture on Title, Liens and Claims.-It is admitted, on all sides, by public jurists, that in cases of capture a firm possession changes the title to the property; 10 and although there was formerly much vexed discussion as to the time at which this change of property takes place, whether immediately on the capture or on the pernoctation, or on the carrying infra præsidia, of the prize, it is universally allowed that, at all events, a sentence of condemnation completely extinguishes the title of the original proprietor, and transfers a rightful title to the captor's sovereign.11 Ships of war and privateers both cruise under a commission from their sovereign, and both make prizes under the authority of that commission. In both cases the sovereign is the captor, and the prize vests absolutely in him.12 The principle is well settled that capture as prize of war, jure belli, overrides, all previous liens. 18 No lien by way of pledge for the payment of purchase money, or otherwise, is sufficient to defeat the rights of the captors, in a prize court, unless in very peculiar cases where the lien is imposed by a general law of the mercantile world, independent of any contract between the parties.14 Prize courts have rejected in its favor the lien of bottomry bonds, of mortgages, for supplies, and of bills of lading. The assignment of bills of lading transfers the jus ad rem, but not necessarily the jus in rem. The jus in re or in rem implies the absolute dominion-the ownership independently of any particular relation with another person. The jus ad rem has for its foundation an obligation incurred by another. 15 An obvious principle of necessity must forbid a prize court from recognizing the contrary doctrine. If it were once admit

neutrality, by taking a decided part S. (L. ed.) 32; The Siren, 7 Wall. 152, with the enemy. In what light is such 19 U. S. (L. ed.) 129. a ship then to be considered, and what is to be done with her? The law of nations says that a ship under those circumstances is in the predicament of enemy's property, and subject to seizure and confiscation."

9. The Springbok, 5 Wall. 1, 18 U. S. (L. ed.) 480.

10. The Star, 3 Wheat. 78, 4 U. S. (L. ed.) 338; The Siren, 7 Wall. 152, 19 U. S. (L. ed.) 129.

11. The Mary, 1 Wheat. 46, 4 U. S. (L. ed.) 32; The Star, 3 Wheat. 78, 4 U. S. (L. ed.) 338.

12. The Mary, 1 Wheat. 46, 4 U.

13. The Sally Magee, 3 Wall. 451, 18 U. S. (L. ed.) 197; The Nassau, 4 Wall. 634, 18 U. S. (L. ed.) 413; The Hampton, 5 Wall. 372, 18 U. S. (L. ed.) 659; The Battle, 6 Wall. 498, 18 U. S. (L. ed.) 933; The Siren, 7 Wall. 152, 19 U. S. (L. ed.) 129; The Carlos F. Roses, 177 U. S. 655, 20 S. Ct. 803, 44 U. S. (L. ed.) 929.

14. The Frances, 8 Cranch 418, 3 U. S. (L. ed.) 609.

15. The Carlos F. Roses, 177 U. S. 655, 20 S. Ct. 803, 44 U. S. (L. ed.) 929.

ted in these courts, there would be an end of all prize condemnations. As soon as a war was threatened, the owners of vessels and cargoes which might be so situated as to be subject to capture would only have to raise a sufficient sum of money on them, by bona fide mortgages, to indemnify them in case of such capture. If the vessel or cargo were seized, the owner need not appear, because he would be indifferent, having the value of his property in his hands already. The mortgagee, having an honest mortgage which he could establish in a court of prize, would either have the property restored to him, or get the amount of his mortgage out of the proceeds of the sale. The only risk run by enemy vessels or cargoes on the high seas, or by neutrals engaged in an effort to break a blockade, would be the costs and expenses of capture and condemnation, a risk too unimportant to be of any value to a belligerent in reducing his opponent to terms. A principle which thus abolishes the entire value of prize capture on the high seas, and deprives blockades of all dangers to parties disposed to break them, cannot be recognized as a rule of prize courts. 16

102. Private Armed Vessels; Privateers.-Until comparatively recent times it was the practice of belligerents to commission private armed vessels for the purpose of making captures and thereby destroying the commerce of the enemy.17 This practice has been justly arraigned as tending to encourage a spirit of lawless depredation and as being a contradiction of the spirit that ought to influence civilized nations in the practice of warfare. Privateers were watched with great anxiety and vigilance, because they might often involve the nation, by irregularities of conduct, in serious controversies, not only with public enemies, but also with neutrals and allies, 18 until finally the practice was abolished by the Declaration of Paris. This pronouncement the United States adhered to during the Spanish war.19

103. Contraband.-One of the most important exceptions to the rule allowing neutrals to carry on commercial intercourse with belligerents is that which forbids the supply of what is called contraband

16. The Hampton, 5 Wall. 372, 18 U. S. (L. ed.) 659.

4 Wheat. 497, 4 U. S. (L. ed.) 624; La Amistad De Rues, 5 Wheat. 385, 5 U. S. (L. ed.) 115; The Amiable Isabella, 6 Wheat. 1, 5 U. S. (L. ed.) 9; The Santa Maria, 7 Wheat. 490, 5 U. S. (L. ed.) 505; The Monte Allegre, 7 Wheat. 520, 5 U. S. (L. ed.) 513; Greeley v. United States, 8 Wheat. 256, 5 U. S. (L. ed.) 611; The Experiment, 8 Wheat. 261, 5 U. S. (L. ed.) 612.

17. Hills v. Ross, 3 Dall. 331, 1 U. S. (L. ed.) 623; Del Col v. Arnold, 3 Dall. 333, 1 U. S. (L. ed.) 624; Jennings v. Carson, 4 Cranch 2, 2 U. S. (L. ed.) 531; The Joseph, 8 Cranch 451, 3 U. S. (L. ed.) 621; The Astrea, 1 Wheat. 125, 4 U. S. (L. ed.) 52; The L'Invincible, 1 Wheat. 238, 4 U. S. (L. ed.) 80; The Mary, 2 Wheat. 123, 4 U. S. (L. ed.) 200; The George, 2 Wheat. 278, 4 U. S. (L. ed.) 239; 19. The Adula, 176 U. S. 361, 20 The Nuestra Senora De La Caridad, S. Ct. 432, 44 U. S. (L. ed.) 505.

18. The Thomas Gibbons, 8 Cranch 421, 3 U. S. (L. ed.) 610.

of war, under which term are comprehended all such articles as may serve a belligerent in the direct prosecution of his hostile purposes. 20 The term relates exclusively to goods; it does not embrace persons or despatches. The classification of goods as contraband or not contraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is perhaps impracticable; but that which is best supported by American and English decisions may be. said to divide all merchandise into three classes. Of these classes, the first consists of articles manufactured, and primarily and ordinarily used, for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege. By the modern law of nations, provisions are not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life in the enemy's country they are not, in general, contraband; but it is otherwise if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband. Of course, arms and munitions of war are contraband; yet it must be admitted that arms and ammunition are not contraband of war when taken and kept on board a merchant vessel as part of her equipment, and solely for her defense against "enemies, pirates, and assailing thieves," according to the ancient phrase. It is certainly true that goods destined for the use of a neutral country can never be deemed contraband, whatever may be their character, or however well adapted to warlike purposes. The trade of neutrals with belligerents in articles not contraband is absolutely free unless interrupted

20. Yangtsze Ins. Ass'n v. Indemnity Mutual Marine Assur. Co., [1908] 2 K. B. (Eng.) 504, 15 Ann. Cas. 239.

1. Yangtsze Ins. Ass'n v. Indemnity Mutual Marine Assur. Co., [1908] 2 K. B. (Eng.) 504, 15 Ann. Cas. 239 and note.

2. The Peterhoff, 5 Wall. 28, 18 U. S. (L. ed.) 564; The Panama, 176 U. S. 535, 20 S. Ct. 480, 44 U. S. (L. ed.) 577.

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Note: 18 U. S. (L. ed.) 201.

3. The Commercen, 1 Wheat. 382, 4 U. S. (L. ed.) 116; The Carlos F. Roses, 177 U. S. 655, 20 S. Ct. 803, 44 U. S. (L. ed.) 929.

4. The Panama, 176 U. S. 535, 20 S. Ct. 480, 44 U. S. (L. ed.) 577.

5. The Commercen, 1 Wheat. 382, 4 U. S. (L. ed.) 116.