war, is for the sake of the belligerent right, and to prevent secret transfers from the enemy to neutrals, in fraud of that right, and upon conditions and reservations which it might be impossible to detect. (b) So property shipped from a neutral to the enemy's country, under a contract to become the property of the enemy on arrival, may be taken in transitu as enemy's property; for capture is considered as delivery. The captor, by the rights of war, stands in the place of the enemy. (c) The prize courts will not allow a neutral and belligerent, by a special agree- * 87 ment, 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, though valid in time of peace, are in time of war, or in peace, if made in contemplation of war, and with intent to protect from capture, 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. These principles of the English admiralty have been explicitly recognized and acted upon by the prize courts in this country. 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 private property while sailing on the ocean. (a) 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

(b) Vrow Margaretha, 1 C. Rob. 336; Jan Frederick, 5 C. Rob. 128. See also 1 C. Rob. 1, 101, 122; 2 C. Rob. 137; 1 C. Rob. 16, note; 4 C. Rob. 32; The Boedes Lust, 5 C. Rob. 233; Story, J., in The Ann Green, 1 Gallison, 291.

(c) The Anna Catharina, 4 C. Rob. 107; The Sally Griffiths, 3 C. Rob. 300, in

notis.

(a) The Francis, 1 Gallison, 445; 8 Cranch, 335, 359, s. c.

Kearsarge and other United States vessels, which were in search of her. While in port, she was bona fide dismantled, and sold to a British subject for commercial purposes. But she was watched and

seized as soon as she came out. The Supreme Court affirmed a decree condemning her as good prize. The Geor gia, 7 Wall. 32; s. c. 1 Lowell, 96.

to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost. (b) All reservation of risk to the neutral 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 to preserve candor and good faith in the intercourse between belligerents and neutrals. (c) 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. (d) 2

(b) The Josephine, 4 C. Rob. 25; The Tobago, 5 id. 218; The Marianna, 6 id. 24; and the American cases, ubi supra. It is the general rule and practice in the admiralty, on questions depending upon title to vessels, to look to the legal title, without taking notice of equitable claims. The Sisters, 5 C. Rob. 155; The Valiant, 1 Wm. Rob. 64.

(c) The prize law, as declared by the English admiralty as early as 1741, and by the decisions of the prize courts in this country, in the case of property in transitu, during war, is clearly and correctly stated and ably enforced by Mr. Duer in his Treatise on Insurance, i. 478-484.

(d) The purchase of ships is a branch of trade neutrals may lawfully engage in, when they act in good faith, though from its nature it is liable to great suspicion, and the circumstances of the case are examined in the prize courts with a jealous and sharp vigilance. Duer on Insurance, i. 444, 445, 573.1

LECTURE V.

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 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. (a) 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 * 90 equally useless and injurious; and it controls the violence of war by the energy and severity of its reproaches.

1. Moderation a duty. - Grotius, even in opposition to many of his own authorities, and under a due sense of the obligations of religion and humanity, placed bounds to the ravages of war, and mentioned [maintained?] that many things were not fit and commendable, though they might be strictly lawful; and that the law

(a) Grotius, b. 3, c. 4 and 5; Puff. lib. 2, c. 16, sec. 6; Bynk. Q. J. Pub. b. 1, c 1, 2, 3; Burlamaqui, pt. 4, c. 5.

of nature forbade what the law of nations (meaning thereby the practice of nations) tolerated. He held that the law of nations prohibited the use of poisoned arms, or the employment of assassins, or violence to women, or to the dead, or making slaves of prisoners; (a) 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 notwithstanding some subsequent writers, as Bynkershoek and Wolfius, restored war to 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 (b) that the laws of war gave no other power over a captive than to keep him safely, and that all unnecessary rigor was condemned by the reason and conscience of mankind. Rutherforth (c) has spoken to the same effect, and Martens (d) enumerates several modes of war and species of arms as being now held unlawful by the laws of war. Vattel (e)

*

has entered largely into the subject, and he argues with *91 great strength of reason and eloquence against all unnecessary cruelty, all base revenge, and all mean and perfidious warfare; and 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. (x)

(a) B. 3, c. 4, 5, 7.
(c) Inst. 2, c. 9.
(e) B. 3, c. 8.

(x) The sentiment of the age condemns the employment of such instruments or weapons as will cause a useless shedding of blood. It is now considered a violation of right if weapons of war are turned against non-combatants or unfortified cities or towns, or if a captured city is sacked or demolished; and the bombardment of forts and other fortified places is regarded as a measure of extreme rigor, justifiable only when it is impossible to secure a surrender

(b) Esprit des Louis, b. 15, c. 2.
(d) Summary, b. 8, c. 3, sec. 3.

by other means. Wheaton says that usage, which has acquired the force of law, excepts from the operations of war churches, public edifices exclusively devoted to the civil service, monuments of art, museums, and scientific establishments. Modern usage does not permit the use of barbarous weapons, as bar-shot, poisoned weapons, explosive bullets, or balls so shaped as to make death the result of a wound. So the assassination of commanders, poison

There is a marked difference in the right of war, carried on by land and at sea. The object of a maritime war is the destruction of the enemy's commerce and navigation, in order to weaken and destroy the foundations of his naval power. The capture or destruction of private property is essential to that end, and it is allowed in maritime wars by the law and practice of nations. But there are great limitations imposed upon the operations of war by land, though depredations upon private property, and