transitu.

Sales and of ships during

transfers

enemy's country, under a contract to become the pro- Assignperty of the enemy on arrival, may be taken in transitu ments in as enemy's property, for capture is considered as delivery. The captor, by the rights of war, standing in the place of the enemy, [and the capture being considered as delivery, the captor is entitled to a condemnation of the goods passing under such a contract, as of enemy's property']. The prize courts will not allow a neutral and belligerent, by a special agreement, to change the ordinary rule of peace, by which goods ordered and delivered to the master are considered as delivered to the consignee. All such agreements are held to be constructively fraudulent, and if they could operate, they would go to cover all belligerent property, while passing between a belligerent and a neutral country, since the risk of capture would be laid alternately on the consignor or consignee, as the neutral factor should happen to stand in the one or the other of those relations. [In the ordinary course of affairs, as is well known, valid sales of ships and cargoes at sea are frequent; but, in times of war, all property at sea liable to confiscation, owing to hostilities either continued or broken out since its despatch, would be affected by colourable transfers in fraud of the belligerent's rights. It is a general rule, therefore, that transfer of the property, without actual delivery of the subject, is insufficient, under these circumstances, to change the rights and liabilities attaching thereto. Hence it follows, that if the subject of sale and transfer actually reach the hand of the purchaser anywhere, the transitus for this purpose is thereby determined, and the ownership ef fectually changed. But prize courts investigate claims. founded on titles of that kind with great jealousy; and if they find that no reasonable proof in support of the genuineness of the transaction is adduced, or such proof only as is inadequate to satisfy the demand which the practice of the court and its rules require; if, in fact, it turns out that there is no sale but a transfer in transitu flagrante bello, all the authorities denounce such a transaction as illegal'.

1 The Anna Catharina, 4 Rob. 107. The Sally Griffiths, 3 Rob. 300, in notis. The Danckebaar Africaan, 1 Rob. 107.

The Soglasie, 2 Ecc. and Adm., 106; The Ocean Bride,

war.

Transfers

of ships during

war.

These rules of maritime jurisprudence are strictly

con

strued.

Transfers of ships during war, or whilst it is imminent, from the enemy to a neutral, are transactions closely scrutinized by prize courts, and on the claimant lies the onus of proving the sale to be bona fide'. If bona fide title be shewn and the court be satisfied therewith, although it be acquired by gift from an enemy father to a neutral son, the absence of pecuniary consideration, or in case of a sale the fact of part of the money being still unpaid, is not a valid objection.]

These principles of the English admiralty have been explicitly recognised and acted upon by the prize courts in the United States. The great principles of national law were held to require, that, in war, enemy's property should not change its hostile character in transitu; and that no secret liens, no future elections, no private contracts looking to future events should be able to cover hostile property while sailing on the ocean3. Captors disregard all equitable liens on enemy's property, and lay their hands on the gross tangible property, and rely on the simple title in the name and possession of the enemy. If they were to open the door to equitable claims, there would be no end to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost. All reservations of risk to the neutral Spinks (Prize Cases), 72; and see Story on Prize Courts, by Pratt, pp. 64, 65.

1 See MacClachlan's Treatise on the Law of Merchant Shipping, p. 478, and the cases cited in note 7, beginning with the Christine, Spinks' Prize Cases, 82, and ending with the Soglasie; Story on Prize Courts, p. 63.

2 The Benedict, Spinks' Prize Cases, 314, and Sorensen v. the Queen, 11 Moore, 118. As to colourable transfers see the Johanna Christoph. 2 Spinks (Ecc. and Adm.), 2; and see also the American view of the subject under discussion, viz. sales and transfers of ships during war, exhibited in the 7th Vol. of the Opinions of Attorneys-General, p. 538, where Mr C. Cushing's explanation of the law will be found to be identical with that of the English authorities. Mr Lawrence has collected some of the more recent cases, American and English, in a note (182) to Wheaton's Elements, Vol. II. p. 581, edn. 1863, and contrasted the doctrines enunciated in them with the somewhat opposite doctrine of the French law on this subject; cf. Pistoye et Duverdy, Traité des Prises Maritimes, T. II. pp. 1 et 502.

3 The Frances, 1 Gallison, 445. 8 Cranch, 335, 359, S. C. (American), and see the whole subject discussed in Vol. III. p. 539 of The Opinions of Attorneys-General (American).

4 The Josephine, 4 Rob. 25. The Tobago, 5 Rob. 218. The

consignors, in order to protect belligerent consignees, are held to be fraudulent, and these numerous and strict rules of the maritime jurisprudence of the prize courts, are intended to uphold the rights of lawful maritime capture, and to prevent frauds, and preserve candour and good faith in the intercourse between belligerents and neutrals. The modern cases contain numerous and striking instances of the acuteness of the captors in tracking out deceit, and of the dexterity of the claimants in eluding investigation.

Marianna, 6 Rob. 24. The Aina, Spinks, Prize Cases, 81. The Ida, ib. 26. And the American Cases ubi sup.

CHAPTER VI.

OF THE RIGHTS OF BELLIGERENT NATIONS IN RELATION TO EACH OTHER.

THE end of war is to procure by force the justice which cannot otherwise be obtained; and the law of nations allows the means requisite to the end. The persons and property of the enemy may be attacked, and captured, or destroyed, when necessary to procure reparation or security. There is no limitation to the career of violence and destruction, if we follow the earlier writers on this subject, who have paid too much deference to the violent maxims and practices of the ancients, and the usages of the Gothic ages. They have considered a state of war as a dissolution of all moral ties, and a license for every kind of disorder and intemperate fierceness. An enemy was regarded as a criminal and an outlaw, who had forfeited all his rights, and whose life, liberty, and property, lay at the mercy of the conqueror. Everything done against an enemy was held to be lawful. He might be destroyed, though unarmed and defenceless. Fraud might be employed as well as force, and force without any regard to the means'. But these barbarous rights of war have been questioned, and checked, in the progress of civilization. Public opinion, as it becomes enlightened and refined, condemns all cruelty, and all wanton destruction of life and property, as equally useless and injurious; and controls the violence of war by the energy and severity of its reproaches.

1 Grotius, Bk. III. ch. iv. and v. Puff., lib. II. ch. xvi. § 6. Bynk., Q. J. Pub. Bk. 1. ch. i. ii. iii. Burlamaq., Part Iv. ch. v.

2 De Hautefeuille, Droits et Devoirs des Nations Neutres, T. J. tit. 111. § 1, and Heffer, Droit International, § 125.

Ancient

demned.

Grotius, even in opposition to many of his own au- War. thorities, and under a due sense of the obligations of rules of religion and humanity, placed bounds to the ravages of war conwar, and mentioned that many things were not fit and commendable, though they might be strictly lawful; and that the law of nature forbade what the law of nations (meaning thereby the practice of nations) tolerated. He held that the law of nature prohibited the use of poisoned arms, or the employment of assassins, or violence to women, or to the dead, or making slaves of prisoners'; and the moderation which he inculcated had a visible influence upon the sentiments and manners of Europe. Under the sanction of his great authority, men began to entertain more enlarged views of national policy, and to consider a mild and temperate exercise of the rights of war, to be dictated by an enlightened self-interest, as well as by the precepts of Christianity. And, though some subsequent writers, as Bynkershoek and Wolfius, contended for the restoration to war of all its horrors, by allowing the use of poison, and other illicit arms, yet such rules became abhorrent to the cultivated reason and growing humanity of the Christian nations. Montesquieu insisted that the laws of war gave no other power over a captive than to keep him safely, and that all unnecessary rigour was condemned by the reason and conscience of mankind. Rutherforth [whose great-grandson is now (A.D. 1877) noticing his views] has spoken to the same effect, and Martens enumerates several modes of war, and species of arms, as being now held unlawful by the laws of war. Vattel' has entered largely into the subject, arguing with great strength of reason and eloquence, against all unnecessary cruelty, or base revenge, and all mean and perfidious warfare; he recommends his benevolent doctrines by the precepts of exalted ethics and sound policy, and by illustrations drawn from some of the most pathetic and illustrious examples.

1 Bk. III. ch. iv. v. vii.

3 Inst. Bk. II. ch. ix.

Esprit des Lois, Bk. xv. ch. ii.

4 Summary, Bk. VIII. ch. iii. § 3 (translation by William Cobbett, 1802); and see also the last edition of Martens' Droit des Gens, by Vergé, T. 11. §§ 273, 274, with Pinheiro Fereira's notes. 5 Bk. III. ch. viii.

[ In an admirable Essay on the Growth and Usages of War, by Professor Montague Bernard, published in the Oxford Essays