as in the case of the army of the Deccan, to allow the Lords of the Treasury to hear counsel upon points arising between the claimants and the trustees, as to what shall, or shall not, be considered legal booty. By the statute of 1833, the Privy Council were authorised to hear or consider any matter referred to them by the Crown, and to advise thereon; and the statute of 1840' extends the jurisdiction of the High Court of Admiralty to all matters and questions concerning booty of war, or the distribution thereof, which it shall please the Crown, by the advice of the Privy Council, to refer to the judgment of said court, and in all matters so referred, the court shall proceed as in case of prize of war, and the judgment of the court shall be binding upon all parties concerned. It therefore appears that, although an English prize court, as such, has no jurisdiction of cases of booty, the High Court of Admiralty may decide such matters and questions concerning booty as shall be referred to it by the Crown with the advice of the Privy Council.2

By s. 22 of this statute (2 and 3 Vict. c. 65) the High Court of Admiralty shall have jurisdiction to decide all matters and questions concerning booty of war or the distribution thereof, which it shall please Her Majesty, by the advice of her Privy Council, to refer to the judgment of the said court, and in all matters so referred the court shall proceed as in cases of prize of war, and the judgment of the court therein shall be binding upon all parties concerned, provided that nothing in this Act contained shall be deemed to preclude any of Her Majesty's courts of law or equity, having jurisdiction over the several subject-matters, from continuing to exercise such jurisdiction. See also Banda and Kirwee Booty, 1 Law R. (Adm.) 109.

Sir James Scarlett, Attorney-General, 1 Knapp Rep., p. 357; Elphinstone v. Bedreechund, 1 Knapp Rep., pp. 360-1; Case of the 'Buenos Aires,' 1 Dod. Rep., p. 29.

124

CHAPTER XXII.

ENEMY'S PROPERTY ON THE HIGH SEAS.

1. Distinction between enemy's property on land and on the high seas-2. Opinions of Mably and others-3. Unavailable attempts to change present rule-4. Difficulties in its application-5. Ownership at time of capture-6. Rule as to consignee-7. Contract and shipment made in contemplation of war-8. Contract made in peace and shipment in war-9. If both be made in time of peace-10. Shipment, with risk on neutral consignee-11. If neutral consignor become an enemy during voyage-12. Acceptance in transitu by neutral consignee-13. Change of ownership by stoppage in transitu -14. National character of goods-15. Transfer of enemy's ships to neutrals-16. Rules of such transfer-17. Character of ships and goods, how deduced-18. Effect of secret liens-19. Documentary proofs of ownership-20. Laws of different States-21. Decisions of French prize courts-22. Exemption of vessels of discovery-23. Of fishing boats-24. In cases of shipwreck, etc.

§ 1. WHILE 'the progress of civilisation has slowly but constantly tended to soften the extreme severity of the operations of war by land,' says Wheaton, 'it still remains unrelaxed in respect to maritime warfare, in which the private property of the enemy, taken at sea or afloat in port, is indiscriminately liable to capture and confiscation. This inequality in the operation of the laws of war, by land and by sea, has been justified by alleging the usage of considering 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."

§ 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 I. in his 'Memoirs,' dictated at St. Helena, says: 'Il est à désirer qu'un temps vienne, où les mêmes idées libérales s'étendent sur la guerre de mer, et que les armées navales de deux puissances puissent se battre sans donner lieu à la confiscation des navires marchands, et sans faire constituer prisonniers de guerre de simples 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 rigour 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.2

1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 7. See also chap. xxx. post.

Property captured on land by a naval force of the United States is not a 'maritime prize,' even though it may have been a proper subject of capture generally. Alexander's Cotton (2 Wall, 404), and see act of March 3, 1863, 12 Stat. at. L. 820; Act of July 2, 1864, 13 Stat. at. L. 375. Mably, Droit Public, etc., ch. xii. p. 308; Napoleon, Mémoires, etc., tome iii. ch. vi.

2

This proposition can be well illustrated by assuming the accomplishment of the proposed change, the realisation of the ideal which the reformers have conceived; that is, contest between combatants alone, while all else in the State goes on as usual. A war is declared between two powerful maritime nations. It produces no direct change in the peaceful avocations of life; agriculture, manufactures, commerce, flourish as before. The people are not hindered in their productions and exchanges, and are thus enabled to respond to the demands of the Government, and to furnish all the material supplies necessary to sustain the struggle. It is true that producers are withdrawn from time to time from

§ 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 16, 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 favourably 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.1 the orderly activities of life and are converted into military non-producers. But the vacancy thus made is not felt, because the articles which were before produced at home are now brought from abroad, by means of the free commerce which is thus quickened into extraordinary activity. Under these circumstances the war is reduced to a mere duel between hostile armies. The nation has only to furnish men, and the contest will be continued until one country has been swept of its able-bodied citizens. That nation will certainly be victorious which can bring forward and sacrifice the greatest number of soldiers. This is not an imaginary picture. The essential fact was shown to be true in the history of the Confederacy. Levy after levy was made, army after army took the field; but as soon as Sherman ravaged the sources of supply in Georgia and Carolina, the whole hostile array collapsed.-North American Review, No. 235, p. 405. See also the note to § 10, ch. xxviii. on the maxim, free ships free goods.

1 Pistoye et Duverdy, Des Prises, tit. i. ch. i.; Hautefeuille, Des Nations Neutres, tit. vii. ch. i.; Wheaton, On Captures, App., p. 317; Polson, Law of Nations, § 6; Riquelme, Derecho Pub. Int., lib. i. tit. ii. caps xii., xiii.; Martens, Précis du Droit des Gens, § 28; Ortolan, Diplo matie de la Mer, liv. iii. ch. ii.; Jouffroy, Droit Maritime, p. 57, et seq.; Pando, Derecho Pub. Int., p. 412; Wildman, Int. Law, vol. ii. p. 118, et seq.; Manning, Law of Nations, p. 136; Dalloz, Répertoire, verb. Prises Maritimes; Azuni, Droit Maritime, tome ii. ch. iv.; Marcy, Letter to Count Sartiges, July 28, 1856; De Cussy, Précis Historique, ch. xii. ; Gardner, Institutes, ch. xv.

In 1854, at the commencement of the Crimean war, it was proclaimed by an order in Council that all Russian vessels in British ports

$ 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

should be allowed six weeks for loading their cargoes and for departing therefrom, and further, that if met with at sea by any British ships of war, they were to be permitted to continue their voyage, if from their papers it was evident that their cargoes had been taken on board before the expiration of the above term. The French Government also issued a similar order. The British Government on the same occasion ordered all Her Majesty's subjects who might be resident in Russia to return to their own country within the term of six weeks.

In 1870, at the commencement of the Franco-German War, the North German Confederation declared, that French merchant vessels should not be subject to be captured or seized as prizes of war, by vessels of the Navy of the Confederation, but that this rule should not apply to those vessels, which might be subject to capture or seizure, if they were neutral vessels. The Staats-Anzeiger, July 19, announced that French merchant vessels would be allowed six weeks, from the date of the declaration of war, to clear out of German ports, and would be permitted, during that period, to load or unload. The German Government, at the request of England, gave a formal recognition to the Declaration of Paris, 1856, respecting the right of navigation in time of war. The French Government did the same, and added that, although Spain and the United States did not adhere to the Declaration of Paris, the Government would not seize enemy's property on board a vessel of those nations, unless such property was contraband of war; nor would the Government confiscate the property of the subjects of those nations which might be found on board an enemy's vessel.-(Journal Officiel, July 25.) The French Government, moreover, directed that merchant vessels, belonging to the enemy, which might actually be in the ports of that Empire, or which might enter such ports in ignorance of the state of war, should have a delay of thirty days for leaving these ports; that safe conducts should be delivered to them to enable them to return freely to their ports of despatch, or to the port of their destination; that the vessels, which might take in cargoes destined for France and on French account, in enemies' or neutral ports, before the declaration of war, should not be subject to capture, and that they might freely disembark their freights, in the ports of the Empire, and would receive safe conducts, in order to return to their ports of despatch. (Journal Officiel, July 21.) ` The French Government strictly limited the last-mentioned advantage to such vessels, when bound to French ports with French cargoes, and refused the request of England that a temporary exemption from capture should be granted to such vessels when bound with neutral cargoes to neutral ports (i.e. to British ports, with British owned cargoes). In the opinion of the English law officers this refusal did not involve any violation of neutral right, by reason of France having granted such an exemption to enemy's vessels, bound with French cargoes to French ports.