Martens, Precis du Droit des Gens, § 280; Kluber, Droit des Gens Mod., §§ 262-265; Polson, Law of Nations, sec. 6; Phil limore, On Int. Law, vol. 3, § 50; Manning, Law of Nations, pp. 138, 139; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 12; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 6.)

§ 24. The general rule by which we should regulate our conduct toward an enemy, is that of moderation, and on no occasion should we unnecessarily destroy his property. "The pillage and destruction of towns," says Vattel, "the devastation of the open country, ravaging and setting fire to houses, are measures no less odious and detestable, on every occasion when they are evidently put in practice without absoluté necessity, or at least very cogent reasons. But as the perpe trators of such outrageous deeds might attempt to palliate them under pretext of deservedly punishing the enemy, be it here observed that the natural and voluntary law of nations does not allow us to inflict such punishments, except for enormous effenses against the law of nations, and even then, it is glorious to listen to the voice of humanity and clemency, when rigor is not absolutely necessary. Cicero condemns the conduct of his countrymen in destroying Corinth, tô avenge the unworthy treatment offered to the Roman ambassadors, because Rome was able to assert the dignity of her ministers, without proceeding to such extreme rigor." (Vattel, Droit des Gens, liv. 3, ch. 9, §173; Kent, Com. on Am. Law, vol. 1, p. 92; Polson, Law of Nations, sec. 6; Bello, Derecho Internacional, pt. 2, cap. 4, §5.)

§ 25. An English court of admiralty, as will be shown hereafter, does not, merely of its own inherent powers, exercise jurisdiction of questions of booty, or of captures made on land by military forces, without the presence and coöperation of ships or their crews. The federal courts of the United States have never decided directly upon their jurisdiction of such a question, but from the similarity of English and American admiralty and prize jurisdictions, and the opinion of the court in the case of The Emulous, there is little doubt but that our prize courts are limited, in this respect, the same as those of England. It has also been decided in England that a munici pal court has no jurisdiction of cases of hostile seizure; moreover, that the circumstance of the place where the seizure

was made being in the undisputed possession of British power, with a provisional government and organized courts of justice, did not alter the character of the transaction. Wildman remarks: "There is no instance in history or law, ancient or modern, of any question, before any legal judicature, ever having existed about it [booty] in this kingdom. It is often given to the soldiers on the spot, or wrongfully taken by them, contrary to discipline. If there is any dispute it is regulated by the commander-in-chief." As such questions do not come within the jurisdiction of either courts of admiralty or of law, they must be taken cognizance of by the military tribunals, and be governed by military laws and regulations, and by the laws of war. (Le Caux v. Eden, 2 Doug. Rep., p. 594; Lindo v. Rodney, 2 Doug. Rep., p. 113, note; Elphinstone v. Bedreechund, Knap. Rep., p. 316; Alexander v. the Duke of Wellington, 2 Russ. and Mylne Rep., p. 35; The Two Friends, 1 Rob. Rep., p. 225; The Emulous, 1 Gallis. Rep., p. 563.)

§ 26. In speaking of the constitution, authority and functions of the English prize court, and of the wisely formed and admirably developed code of admiralty jurisdiction and rules of procedure, Mr. Phillimore remarks: "It is not surprising that in great maritime kingdoms, the jurisdiction of the admiral's court should have thrown into the shade, the tribunal of the general. But, that the latter should have left such faint traces of its origin and mode of procedure, and should so soon have fallen into desuetude, is a very remarkable fact in the history of jurisprudence." Mr. Knapp, in a learned note to his report of the great case of the Army of the Deccan, argued before the privy council, in 1833, has shown the error of the dicta of Lord Mansfield, in Lindo v. Rodney, repeated in the foregoing extract from Wildman, that "there is no instance in history or law, ancient or modern, of any question ever having existed respecting booty taken in a continental land war, before any legal judicature in this kingdom." It appears from this note of Mr. Knapp, that in very early times, in England, causes respecting booty were determined in the court of chivalry, before the constable and marshal. Lord Hale says: "In matters civil, for which there is no remedy by the common laws, the military jurisdiction continues as well after the war as during the time of

it; for that part of the jurisdiction of the constable and marshal stands still, notwithstanding the war determines, as concerning right of prisoners and booty, military contracts, ensigns, etc." A number of instances are cited, where the court of chivalry took cognizance of cases of goods taken beyond the seas, of prisoners, of hostages, ransom, etc., and where, during the minority of the constable of England, his authority to try such cases was delegated to others by special commission. Since the time of Henry VIII., when the office of constable of England ceased, the jurisdiction of this court was frequently disputed, on the ground that it could not be held before the earl marshal alone, and it finally seems to have fallen into desuetude. The last case tried before it, was that of Sir Henry Blunt, in 1737. The statute of 13 Richard II., chapter second, limited its jurisdiction to cases "which cannot be determined by the common law,” and in its proceedings it was to be governed by "the customs and laws of war." (Phillimore, On Int. Law, vol. 3, § 127; Lord Hale, De Praerogativa, cap. 11, § 3; Lindo v. Rodney, Douglas Rep., p. 593; Army of the Deccan, 2 Knapp Rep., pp. 149-151; Chambers v. Jennings, 7 Mod. Rep., p. 127; Oldis v. Donmille, Shaw Parl. Cases, p. 58; Sir H. Blunt's Case, 1 Atkyn's Rep., p. 296.)

§ 27. As no action can be maintained in an English court of municipal law with respect to booty, and as courts of admiralty have no jurisdiction of the matter, the inquiry arises, what became of this jurisdiction when it ceased to be exercised by the court of the constable and marshal? All booty, as before remarked, belongs to the crown, and is captured under the authority of the crown. The crown must, therefore, ultimately decide upon the legality of the capture and the distribution of the booty. The mode in which it now exercises this jurisdiction, is to refer the claims of those who petition for a share in the distribution, to the lords of the treasury, who lay down the principles which are to govern the case, and a board of trustees are appointed under the royal sign-manual warrant to ascertain, collect and distribute the booty according to the scheme which has been approved and sanctioned by the crown. The privy council have determined that they will not exercise jurisdiction as a court of

appeal from the decisions of the lords commissioners of the treasury, as to grants by the crown of property accruing to it by virtue of its prerogative. They, however, have advised the crown, as in the case of the army of the Deccan, to allow the lords of the treasury to hear council 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 authorized 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. (Phillimore, On Int. Law, vol. 3, §§ 129-135; The Army of the Deccan, 2 Knapp. Rep., p. 106; Sir Jas. Scarlett, Att'y Gen'l., 1 Knapp. Rep., p. 357; Elphinstone v. Bedreechund, 1 Knapp. Rep., pp. 360-361; Case of the Buenos Ayres, 1 Dod. Rep., p. 29; Statutes, 1833, 3 and 4 Will. iv, c. 41, s. 4; Statutes, 1840, 3 and 4 Vic., c. 65, s. 22.)

• CHAPTER XX.

ENEMY'S PROPERTY ON THE HIGH SEAS.

CONTENTS.

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-25. Ownership at time of capture-86. Rule as to consignee - 7. Contract and shipment made in contemplation of war- -38. Contract made in peace and shipment in war -9. If both be made in time of peace-10. Shipment, with risk on heutral 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 transfer17. 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 civilization 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 pri vate 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 consider