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.1 time of § 4. For example, the legality or illegality of the capture ownerof goods upon the high seas, will frequently turn upon the ship at question of ownership at the time of capture; for when capture 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.2 1 Duer, On Insurance, vol. i. pp. 420, 421; Kent, Com. on Am. Law, vol. i. p. 74; Bello, Derecho Internacional, pt. ii. cap. v. § 1; Heffter, Droit International, § 139; Merlin, Répertoire, verb. 'Prise Maritime ;' Massé, Droit Commercial, liv. ii. * It was determined, by the Privy Council, in 1857, that the sale of a ship, absolutely and bonâ fide, by an enemy to a neutral imminente bello, or even flagrante bello, is not illegal. A Russian subject, immediately before the war between Russia and England, 1854, sold, absolutely and bona fide, a ship, the 'Ariel,' to a subject of a neutral State. Part only of the purchase money was paid at the time of the purchase, the remainder being agreed to be paid out of the earnings of the ship. Before all the stipulated price was paid, the ship was seized, in a British port, as a prize; and was condemned, by the High Court of Admiralty, on the ground that the enemy's interest in the ship was not divested, as the residue of the purchase money was to be paid out of the earnings. This condemnation was reversed by the Privy Council, because the nonpayment of part of the purchase money did not create a lien on the freight and ship, in favour of the seller, so as to render the ship, in possession of a neutral owner, liable to seizure by a belligerent. Liens, whether in favour of a neutral on an enemy's ship, or in favour of an enemy on a neutral ship, are equally to be disregarded in a British Prize Court. There were six other vessels seized, all belonging to the same appellant. After the delivery of the above judgment, the Crown officers restored these vessels, with the exception of one, the 'Bellica,' which they retained on the ground that the sale of that ship was distinguishable Rule as to § 5. The general rule of law, both international and civil, consignee 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, from the others, her sale having taken place in transitu. On appeal, again, to the Privy Council, that court decided that the sale, though in transitu, was valid, as the transitus had ceased when the vessel had come into possession of the purchaser, which took place before the seizure, and that no distinction could be made between the case of that vessel and the case of the 'Ariel.' (Sorensen v. Reg., 11 Moore, Privy Council Cas., 119.) 1 In 1793 an American ship, the 'Sally,' shipped a cargo of corn of a firm at Baltimore, ostensibly for the account and risk of a firm of Philadelphia (but in reality for the use of the French Republic), and consigned to them or their assigns, and to be delivered at Havre. The form of contract was framed directly for the purpose of obviating the danger apprehended from approaching hostilities between France and England. On the ship being captured by the English, the master, instead of supporting the contents of his bill of lading, deposed 'that on arrival, the goods would become the property of the French Government,' and concealed papers strongly supporting his testimony. It was held that as the corn was to become the property of the enemy on delivery, capture might be considered as delivery. Captors by the right of war stand in the place of the enemy, and are entitled to a condemnation of goods passing under such a contract, as if they were enemy's property. (The 'Sally,' 3 Rob., 300, note. See, also, the 'Anna Catharina,' 4 Rob., 107; and the 'Carl Walter,' ibid. 207.) Condemnation was also made in the case of the property of British merchants, shipped before the war with Spain, but in a Spanish character and in a trade so exclusively peculiar to Spanish subjects as that no foreign name could appear in it (the Princesa Zavala,' 2 Rob., 52), and further in that of an asserted American merchant, who, having gone to France to collect outstanding debts, had invested part of the money so received in sending a cargo of butter to Lisbon. The peculiar circumstances in each case were such as to invest the consignors with an enemy national character pro hac vice. (The 'Drie Gebroeders,' 4 Rob., 232.) As against captors the ownership of property cannot be changed while it is in transitu. (The 'Sally Magee,' 3 Wall., 451.) 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 presupposes 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 recognised and acted upon by the prize courts of the United States, and approved by American writers of the highest authority. in the Courts § 6. No case directly in point has yet been decided by the Doctrine Supreme Court of the United States, but the doctrine has United been affirmed in analogous cases, resting substantially on the States 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 Contract plation of war 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 prevail, 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 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. The prize courts will not allow the 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 constitutionally fraudulent, and, if they would 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 one or other of these relations.' A contrary doctrine has been held by the courts of the State of New York, but as the decisions of State courts are not of authority in questions of prize, the rule, as decided by Justice Story, must be regarded as established in the United States.1 § 7. This rule is not confined to cases where the contract and and shipment are made in time of actual war. If they are shipment made made in time of peace, but in contemplation of war, and with in contem- the manifest intention of protecting the property from hostile capture, they are equally a fraud upon the belligerent power to which the right of capture belongs; and the reasons for the rule of the prize courts, in cases of contract made in time of actual war, given by Sir William Scott and Justice Story, in their decisions, and by Chancellor Kent, in his commen 1 Kent, Com. on Am. Law, vol. i. pp. 86, 87; the 'Ann Green,' I Gallis R., 291; the 'Francis,' 1 Gallis R., 450; Ludlow v. Browne, Johns. R., 1; De Wolf v. N.Y. Ins. Co., 20 Johns. R., 214; the 'Venus,' 8 Cranch., 253, 275; the Merrimack,' 8 Cranch., 317, 327; the 'Mary and Susan,' i Wheaton R., 25; the 'San José Indiano,' I Wheaton R., 208, 212; the Francis,' 8 Cranch., 183; Ilsley v. Stubbs, 9 Mass. R., 65; Chandler v. Sprague, 5 Met. R., 3c6. taries, are equally applicable to contracts made in time of peace, but in contemplation of war. We do not, however, find any decision directly on this point; but the view of this question taken by Mr. Duer seems to be fully sustained by the reasoning of the courts in the cases to which reference is made in the foregoing paragraph. If goods contracted for, and shipped in time of actual war, are liable to capture on the ground of fraud upon the rights of a belligerent, assuredly the same would, for the same reason, apply to the same transactions made with the same intention, in contemplation of war.' peace and § 8. And if the contract is made during a peace, and not Contract in contemplation of war, but the shipment be made after made in hostilities have commenced, and with a knowledge of the shipment war, the private agreement of the parties, by which the neutral in war consignor assumes the risk of delivery, will not be permitted to affect the rights of the capturing belligerent. For it was the duty of the consignor, and within his power in this case, equally as in the former, to guard himself from a contingent loss arising from capture, by requiring a proper security from the consignee. Without such security, he was not bound to make the shipment at all, since, as the contract was not made in expectation of a war, so material a change in its risks, as contemplated by the parties in making the contract, would absolve him from its execution.2 time of peace § 9. But where the shipment of the goods, as well as the If both be contract, laying the risk on the neutral consignor, are both made in made in time of peace, and not in contemplation of war, the legal ownership which was in the consignor, at the inception of the voyage, remains in him until its termination. The property of the consignor is not divested in favour of a belligerent, by the breaking out of the war, before the arrival of the goods, by which the foreign consignee becomes an enemy. The same rule applies where the consignor, at whose risk the shipment was made, is a subject of the belligerent captor, the reason of the exemption being equally applicable to his case. Again, if the contract and shipment be made in time of peace, and not in contemplation of war, and the risk be laid on the 133 1 Duer, On Insurance, vol. i. p. 478. 'Wildman, Int. Law, vol. ii. p. 99; the 'Packet de Bilboa,' 2 Rob., |