ing private property, when captured in cities taken by storm, as booty; and the well known fact that contributions are levied upon territories occupied by a hostile army, in lieu of a general confiscation of the property belonging to the inhabitants; and that the object of wars by land being conquest, or the acquisition of territory to be exchanged as an equivalent for other territory lost, the regard of the victor for those who are to be his subjects, naturally restrains him from the exercise of his extreme rights in this particular; whereas, the object of maritime war is the destruction of the enemy's commerce and navigation, the sources and sinews of his naval power—which object can only be attained by the capture and confiscation of private property." (Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 7; Polson, Law of Nations, sec. 6; Hautefeuille, Des Nations Neutres, tit. 7, chs. 1, 2; Martens, Precis du Droit des Gens, § 281; Ortolan, Diplomatie de la Mer., liv. 3, ch. 2; Manning, Law of Nations, p. 136; Bello, Derecho Internacional, pt. 2, cap. 4, § 2; Heffler, Droit International, § 137; Riquelme, Derecho Pub. Int., lib. 1, tit. 2; Jouffroy, Droit Maritime, pp. 57, et seq.; Pando, Derecho Internacional, p. 412; Nau, Volkerseesecht, §§ 265, et seq.; Wildman, Int. Law, vol. 2, p. 118, et seq.; De Steck, Versuch, etc., pp. 171, et seq.; Merlin, Repertoire, verb. Prises Maritimes; Dalloz, Repertoire, verb. Prises Maritimes; Pistoye et Duverdy, Des Prises, tit. 1, ch. 1.)

§ 2. Several of the ablest continental writers oppose this distinction on principle. The Abbé Mably advocated an entire freedom of commercial intercourse in war, even between the subjects of the belligerent powers; and Emerigon, yielding to the arguments of the Abbé, expresses an earnest desire that the laws of war may be modified or changed accordingly. Others, again, think that the change should extend only to the adoption of the principle that private property on the high seas should be subject to the same rules in war as private property on land; without any modification of the law of war respecting the commercial intercourse of subjects of the belligerent powers. Napoleon, in his memoirs, dictated at St. Helena, says: "Il est á desirer qu'un temps vienne, où les mêmes ideés libérales s'entendent sur la guerre de mer, et que les armées navales de deux puissances puissent se battre sans donner lieu á la confiscation

des navires marchands, et sans faire constituer prisonniers de guerre de simple matelots du commerce," etc. The great advantages which England, by means of her naval superiority, has derived from the capture of private property upon the high seas, have tended very much to the maintenance of the rigor of the ancient rule of commercial warfare, while other nations have adopted more liberal principles and views in war upon land,- by which the interests and happiness of the human race have been greatly promoted. (Emerigon, des Assurances, ch. 12, § 19; Mably, Droit Public, etc., ch. 12, p. 308; Napoleon, Memoires, etc., tome 3, ch. 6.)

§ 3. The government of the United States proposed to add to the first article of the "declaration concerning maritime law," made by the conference of Paris, April 16th, 1856, the following words; "and the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband." As already stated, this proposition, although favorably received, has not been adopted by a majority of the powers represented in that conference, and even if it had been, it would bind only those who adopted it, in their intercourse with each other, and could not affect the general rule of international law on that subject. It may therefore be stated as the existing and established law of nations, that, when two powers are at war, they have a right to make prize of the ships, goods, and effects of each other upon the high seas; and that this right of capture includes not only government property, but also the private property of all citizens and subjects of the belligerent powers, and of their allies. Whatever bears the character of enemy's property (with a few exceptions to be hereafter noticed), if found upon the ocean, or afloat in port, is liable to capture as a lawful prize by the opposite belligerent. (Pistoye et Duverdy, Des Prises, tit. 1, ch. 1; Hautefeuille, Des Nations Neutres, tit. 7, ch. 1; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 7; Wheaton, On Captures, App., p. 317; Kent, Com. on Am. Law, vol. 1, p. 73; Duer, On Insurance, vol. 1, p. 416; Polson, Law of Nations, sec. 6; Bello, Derecho Internacional, pt. 2, cap. 4, § 2; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, caps 12, 13; Martens, Presis du Droit des Gens, § 28; Ortolan, Diplomatie de la Mer.,

liv. 3, ch. 2; Heffter, Droit International, § 137; Hautefeuille, Des Nations Neutres, tit. 7, chs. 1, 2; Jouffroy, Droit Maritime, p. 57, et seqr.; Pando, Derecho Pub. Int., p. 412; Wildman, Int. Law, vol. 2, p. 118, et seqr.; Merlin, Repertoire, verb. Prise Maritime; Manning, Law of Nations, p. 136; Dalloz, Repertoire, verb. Prises Maritimes; Azuni, Droit Maritime, tome 2, ch. 4; Marcy, Letter to Count Sartiges, July 28th, 1856; De Cussy, Presis Historique, ch. 12; Gardner, Institutes, ch. 15.)

§ 4. Notwithstanding the clearness and apparent simplicity of this rule, there is frequently great difficulty in its application to particular cases. Where the question turns solely on the evidence as to the facts of the case, it is attended with no other difficulties than those which usually belong to a judicial investigation of facts; but, in numerous cases where the facts are admitted or clearly proved, questions of much difficulty arise as to their legal import under the laws of war, and the rules by which prize courts are, or ought to be, governed. War establishes very different relations between parties from those which exist in the ordinary transactions of trade and pacific intercourse, and from those new relations arise new duties and new obligations. Hence the rules which govern the decisions of prize courts, under the law of nations, with respect to the ownership of property, widely differ, in many respects, from those which obtain in time of peace in the courts of civil or common law. This renders necessary a special examination of the law of prizes, and the investigation of many nice and refined distinctions in the application of that law. (Duer, On Insurance, vol. 1, pp. 420, 421; Kent, Com. on Am. Law, vol. 1, p. 74; Bello, Derecho Internacional, pt. 2, cap. 5, § 1; Heffter, Droit International, § 139; Merlin, Repertoire, verb. Prise Maritime; Pistoye et Duverdy, Des Prises, tit. 6; Ortolan, Diplomatie de la Mer., liv. 3; Massé, Droit Commercial, liv. 2; Hautefeuille, Des Nations Neutres, tit. 7.)

§ 5. For example, the legality, or illegality of the capture of goods upon the high seas, will frequently turn upon the question of ownership at the time of capture; for when property is shipped from a neutral country to an enemy's, or from an enemy's country to a neutral, the question of its national character, whether it is neutral or hostile, can only

be determined, by ascertaining whether the right of property, at the time of shipment was vested in the shipper or in the consignee. If, in order to determine this question, we were to refer only to the rules established by courts of civil and common law, we should be liable to form an erroneous conclusion, as these rules differ in some respects from those which govern courts of prize, while, in others, they are precisely the same in all courts. (Kent, Com. on Am. Law, vol. 1, pp. 86, 87; Duer, on Insurance, vol. 1. p. 421; Pistoye et Duverdy, Prises Maritimes, tome 1, ch. 1; Phillimore, On Int. Law, vol. 3, 8485; The Packet of Bilboa, 2 Rob. Rep., p. 336; The Vrouw Margaretha, 1 Rob. Rep., p. 336; The Anna Cartherina, 4 Rob. Rep., p. 107; The Danckebaar African, 1 Rob., Rep. p. 107.)

§ 6. The general rule of law, both international and civil, or common, is, that goods in the course of transportation from one place to another, if they are shipped on account and at the risk of the consignee, in consequence of a prior order or purchase, are considered as his goods during the voyage. The master of a ship, who receives goods, that, by the bill of lading, are expressed to be, and, in fact, are, shipped on account of the consignee, becomes, by the very act, the agent of that consignee, so that the delivery to him has the same effect in vesting the property, as a delivery to his principal. Hence, goods in transitu from a neutral country to a belligerent, if they are to be delivered to, and to become the property of a belligerent immediately on their arrival, are considered as his goods during the voyage, in itinere, and subject to capture and confiscation. This general rule, as to the effect of a delivery of goods, to the master, for a foreign purchaser, may, both by the civil and common law, be varied by an express stipulation between the parties, or by the usage of a particular trade. If the parties agree that the payment for the goods shall be contingent upon their actual delivery at the foreign port, the whole risk of the voyage being cast upon the shipper, and the contract of sale, until a delivery, being incomplete and executory, the goods, during the voyage, in judgment of law, remain the property of the shipper. So, if the prevailing usage of a particular trade casts the risk upon the consignor, the delivery to the master is not regarded, in law, as a delivery to the consignee; for such a usage pre

supposes the general agreement of the merchants engaged in the trade to which it refers. But neither of these exceptions to the general rule, that the delivery to the master, as the agent of the consignee, is a delivery to the principal, is admitted in courts of prize, for the very conclusive reason, that, to permit goods, in time of war, to be considered the property of the neutral consignor, instead of the enemy consignee, merely on the ground that the former had assumed the risk of transportation, would at once put an end to captures of enemy's property on the high seas. On every contemplation of a war, in the consignments of goods from neutral ports to an enemy's country, the risk of transportation would be laid on the consignor, and the right of capture would be completely frustrated. Hence, says Sir William Scott, that part of the contract laying the risk of transportation, in time of war, upon the neutral consignor, is invalid; or rather, as the captor has all the rights which belong to the enemy, his taking possession is considered equivalent to an actual delivery to the enemy consignee. The foregoing rule of the prize courts of England, that property consigned to, and to become the property of an enemy, upon arrival, cannot be protected by the neutrality of the shipper, has been explicitly recognized and acted upon by the prize courts of the United States, and approved by American writers of the highest authority. No case directly in point has yet been decided by the supreme court of the United States, but the doctrine has been affirmed in analagous cases, resting substantially on the same grounds; and Mr. Justice Story, in the United States circuit court, says, "that in time of war, property shall not be permitted to change character in its transit, nor shall property consigned to become the property of an enemy upon its arrival, be protected by the neutrality of the shipper. Such contracts, however valid in time of peace, are considered, if made in war, or in contemplation of war, as infringements of belligerent rights, and calculated to introduce the grossest frauds. In fact, if they could pre'vail, not a single bale of enemy's goods would ever be found upon the ocean." Chancellor Kent, in his commentaries, says, that "property shipped from a neutral to the enemy's country, under a contract to become the property of the