under contract made during or, it may be supposed, in anticipation of war, are by the law of nations primâ facie liable to hostile capture (i). This position must, however, owing to the Declaration of Paris (k), be regarded as now essentially modified; for, by the Declaration, all permissive goods under a neutral flag are to be free from condemnation.

During the Crimean war a question arose as to the ownership of cargo on The Abo (1), which had been brought in as a prize. The cargo, claimed as neutral property, had been shipped flagrante bello, and the bills of lading did not show on whose account the shipment had been made. In other respects, also, the shipping documents were incomplete. Dr. Lushington, in ordering further proof as to ownership, observed that Lord Stowell had, in The Cousine Marianne (m), laid it down as a settled principle of the Court that, in order to constitute an effectual transfer of the property, there must be either an order for the goods or an acceptance of them by the consignee prior to the capture. That, whatever the common law might be, the Court of Admiralty acted independently, and must be satisfied that the title to the property was substantiated by the Court's own rules and practice (»).

The real ownership of goods has in each case to be established by the documentary evidence and depositions at the port or place of adjudication in the captor's territory. Whatever may be the practice or law in times of peace, no transfer is recognized by the captor which has taken place during the transit of the goods, if war was at that time either actually existent or imminent, and if the goods have borne a hostile character at the commencement of the

(i) 5th ed. Arnould's Insce. 613.

(k) P. 27, infra.

(1) 24 L. T. 5.

(m) Edw. 347.

(n) Cf. The Hannah M. Johnson, Blatch. Pr. Ca. 37.

voyage (o). For it is obvious that in the absence of such a rule no limit could be placed upon colourable transfers effected with the express object of defeating the rights of captors (p). Efforts to evade this restriction are frequent in time of war, but it in all cases lies upon the claimants of the goods to prove the ownership; so that the question becomes purely one of evidence.

Sales to neutrals must be absolute and unconditional in their nature, and any equity of redemption or other reservation in favour of the seller will be held fatal to the bona fides of the transaction (g).

Any reservation of risk on the part of the neutral consignor of goods until their delivery to a belligerent consignee is similarly held to be void; for otherwise all shipments of the kind would doubtless have such a stipulation attached to them. The result would be to defeat the right of capture until, delivery having been effected, it was too late to exercise it (†).

The title of the captors, on failure of the claimants to establish neutral ownership, is absolute; and no claim can be set up against it on the part of any persons asserting equitable rights over the property (s). A bill of lading transmitted to a party to cover his advances on cargo shipped, does not pass the title to the cargo (t). And property consigned by an enemy to his creditor to be applied in payment of a debt, is regarded by captors as enemy property (u). A

(0) The Soglasie, 2 Spinks, Ecc. & Adm. 101; The Danckebaar Africaan, 1 Rob. 107; The Herstelder, 1 Rob. 114; The Jan Frederick, 5 Rob. 128. (p) The Vrow Margaretha, 1 Rob. 337; The Negotie en Zeevaart, 1

Rob. 111.

(q) The Anoydt Gedacht, 2 Rob. 137; The Sechs Geschwistern, 4 Rob. 100; The Sally, 5 Rob. 300.

(r) The Atlas, 3 Rob. 299; The Anna Catharina, 4 Rob. 107, 113, note. But see note in 5 Arnould's Insce. 613, as to the view of the U. S. Courts.

(8) The Josephine, 4 Rob. 25; The Tobago, 5 Rob. 218; The Mariana, 6 Rob. 24; The Francis, 1 Gall. 445; The Sisters, 5 Rob. 155; The Mersey, Blatch. Pr. Ca. 187.

(t) The Lynchburg, Blatch. Pr. Ca. 49; The Winifred, ib. 33.
(u) The Hannah M. Johnson, ib. 97; The Mary Clinton, ib. 556.

lien upon a captured vessel for repairs effected prior to the hostilities will similarly be disregarded (x). If a vessel be transferred at the time of hostilities, satisfactory evidence will be required as to bonâ fide payment of the purchasemoney, and as to the character of the transaction generally (y); but any sale by a belligerent to a neutral will be regarded with great suspicion, and, to save from condemnation property so transferred, the good faith of the transfer will have to be clearly established. Several cases of this kind occurred during the Crimean war. Thus, in The Johan Christophe (z), the vessel, seized as enemy property, was claimed by a Russian subject, setting himself forth as a Dane. He had, in fact, become a burgher of Altona, and taken the oath of allegiance to the King of Denmark, but with the express object, as it would seem, of qualifying himself to buy the vessel in the latter capacity. The Court decided that no such adoption of neutral nationality would invest him with the character claimed by him. In all such cases the Court will closely examine the claim to neutral nationality, and will not accept the claim if it should appear that an enemy subject has, under the guise of neutrality, gone into neutral territory in order to purchase an enemy ship. And in The Ernst Merck (a), seized at Hull whilst sailing under the Mecklenburg colours, the Court condemned the vessel, which had been sold by a Russian owner very shortly before the outbreak of war. The real ownership of the vessel was not established: there were deficiencies in the evidence; and the Court, in reference to this circumstance, declared that it "was not required to declare affirmatively that the enemy's interest remained; it was sufficient to bar restitution if the neutral claim was not unequivocally sustained by the evidence."

(x) The Nassau, Blatch. Pr. Ca. 665.

(y) The Soglasie, 2 Spinks, Ecc. & Ad. 101.

(z) 24 L. T. 52.

(a) Ibid. 303.

In The Industrie (b), where the vessel was seized whilst sailing under the Russian flag, and carrying Russian papers, it was held that these conditions imprinted a hostile character on the whole ship. Three-fourths of the latter were Russian owned, and one-fourth was claimed by the master, who alleged himself to be a native of Denmark; but the Court declined, in the above circumstances, to regard the property as other than that of an enemy.

In 1870, during the Franco-Prussian war, The Sophia Rickmers (e), having been captured by the French in the China Seas, the owner, P. A. Rickmers, as a British subject, petitioned the British Government to interfere to obtain the release of his vessel. This latter, he declared, he had bought at Singapore shortly before her capture, she being then registered at the port of Geestemunde, and he claimed that, as neutral property, her seizure was unjustifiable. The following is an extract from the reply to this petition :

"It is for the Prize Court of the captors to determine whether The Sophia Rickmers is a good prize of war; and Lord Granville is of opinion that the French Prize Courts, if they observe their long-established practice, will not recognise the sale of an enemy's vessel made in a neutral port after the commencement of the war: the necessity of such sale being caused by the exigencies of the war, and the object of such sale being to defeat the exercise of the belligerent right as regards the capture of enemy's property on the high seas.'

In the United States Courts it has also been clearly laid down that the sale of vessels in an enemy port to neutrals during or in contemplation of hostilities, by persons domiciled and trading there, does not pass the title, the property still remaining subject to capture as prize (d).

(b) 1 Ecc. & Ad. Rep. (Spinks) 444.

(c) State Papers, 61 (1870-1), 1092. See also The Minerva, 6 Rob. 396. (d) The Sarah Starr, Blatch. Pr. Ca. 69; The Cheshire, ib. 151; The Mersey, ib. 187; The Stephen Hart, ib. 388. See also The Georgia, and relative note, p. 402, infra.

(The subject of transfer in transitu, in presence of hostilities, is exhaustively discussed in Story's Practice of Prize Courts, p. 63 et seq. Wheaton's International Law, 2 Eng. ed. p. 427, may also be referred to in this connexion.)

Having thus endeavoured to clear the ground with a view to the due consideration of the question of rights and obligations as between belligerents and neutrals, a brief space may fitly be devoted to the consideration of a highly important modern treaty, by which such rights and obligations are largely affected, viz., the Treaty, or, as it is more commonly termed, the Declaration, of Paris.