The proposal that nations should recognise the immunity of private property at sea has also been discussed by many writers in England and France. Yet profound disagreement prevails among writers and statesmen as to the form progress in this branch of International Law can take.

The Institute of International Law, at its meeting in 1877 at Zürich, declared: "Private property, whether neutral or enemy, sailing under enemy flag or neutral flag, is inviolable." 1

Professor Lorimer went the length of holding this to be the rule of law of Europe, and its non-recognition as the exception.2

We frequently read in humanitarian writings on the rights of belligerents at sea, that the object of reform should be to assimilate property at sea to property on land, on the assumption that the natures of war at sea and war on land are identical, and that immunity of private property on land is already admitted as a principle of International Law.

1 The following declaration on the assimilation proposed by the Institute was made a the time by Professor Montague Bernard:

"To place the ships and property of enemies on the same footing with those of neutrals, to treat both alike as entitled to the same immunity in all respects, is in my opinion an error. It confounds together things which are essentially different. A belligerent may, if he will, refrain from capturing, under ordinary circumstances, the ships and property of private persons, subjects of his enemy; but he has, and must I think retain, the right to take possession of them whenever the necessities of war require it. The circumstances out of which such a necessity may arise cannot, I conceive, be precisely defined; certainly they do not appear to me to be satisfactorily provided for in these propositions. On the other hand, the right of neutrals to immunity from capture is absolute, except in circumstances specified and defined by usage. This error runs through all the propositions to which the Resolution refers. Regarded as solely applicable to neutrals, the propositions appear to me to be defective and incomplete, to be in some respects incorrect, and on almost all the points as to which controversies have arisen, to be susceptible of different interpretations. The adoption of them, therefore, would not secure uniformity of practice: I apprehend that, on the contrary, it would multiply disputes.”—(Annuaire de l'Institut de droit international for the year 1877, p. 95.)

2 Lorimer's Institute of the Laws of Nations, vol. ii. p. 94.

The subject requires careful discrimination.

War is an armed conflict between communities or nations, the object of which is that the antagonist be forced to sue for peace. These communities or nations are represented in the modern world by constituted authorities and armies, but war can not be confined to these authorities and armies.

An invading army, before the practice of war became more refined, lived by foraging and pillage in the invaded country. Attenuations followed on the rise of standing and regular armies, and the consequent more marked distinction between soldier and civilian. They have now taken the form of compounding for plunder, systematic requisitions and contributions, the confining of the right of levying these to generals and commandersin-chief, the institution of quittances or bills drawn by the belligerent invader on the invaded Power and handed in payment to the private persons whose movable belongings have been

The considerations which have led mankind to systematise the practice of war in regard to private property on land, do not arise in the same form in connection with private property at sea. Here there is no question of seizing the live-stock or the bedding, or the food, or the utensils of the private citizen. ship and cargo are captured, it may be hard upon the merchant, but such captures do not directly deprive him of the necessaries. of life. Yet, as in the case of war on land, its hardships have been attenuated, and progress has been made by developing a more systematic procedure of capture of private property at sea. Thus exemption from capture is now allowed by belligerents to enemy merchant ships which, at the outbreak of war, are on the way to one of their ports, and they also allow enemy merchantmen, in their ports at its outbreak, a certain time to leave them.1 A somewhat similar practice exists as regards pursuit of merchant ships which happen to be in a neutral port at the same time with an enemy warship.2 Privateering has been abandoned by the Powers which signed the Declaration of Paris of 1856; and so strong is public opinion in Europe against it, that neither the United States nor Spain in their late war, though not signatories of the Declaration, resorted to it. Lastly has grown up, on grounds similar to those which have led to the indulgence shown to private property on land, a now generally recognised immunity from capture of small vessels engaged in the coast fisheries, provided they are in no wise made to serve the purposes of war.+

1 In the Franco-German War of 1870, the commanding officers of the French Fleet were ordered to grant thirty days' respite to enemy's trading vessels to leave French ports in case they should be there, or enter in ignorance after outbreak of war. The Germans allowed a respite of six weeks for the same purpose.

2 It has become a general rule that in this case the local authorities detain the warship till twenty-four hours after the departure of the other.

3 Comp. p. 204.

4 Ships of discovery or ships employed on scientific missions are also exempt from capture. See also instances of exemption under Chap. IX. Comp. Arts. I. to IV. of Convention as to application of Geneva Convention to Naval War, on hospital ships, p. 243.

The object of these improvements has been to make the operations of war systematic, to enable the private citizen to estimate his risks and take the necessary precautions to avoid capture, and to restrict acts of war to the purpose of bringing it to a speedy conclusion.

It is seen that there is no general immunity for private property yet known to the laws of war. It may be asked whether a war, by its very nature, does not seem to prevent the growth of any such immunity. The object of each belligerent is to break the enemy's power, and force him to sue for peace. To break his power it is not enough to defeat him in the open field; he must be prevented from repairing his loss both in men and in munitions of war. To bring the war to an end may imply crippling his material resources, his trade, and his manufactures.

To capture at sea raw materials used in the manufacturing industry of a belligerent State, or products on the sale of which its prosperity, and therefore its taxable sources, depend, may be viewed as one of the least cruel objects which the belligerents pursue. Moreover, to capture the merchant vessels which carry these goods, and even to keep the seamen navigating them prisoners, is to prevent the employment of the ships by the enemy as transports or cruisers, and the repairing, from among the seamen of the mercantile marine, of losses of men in the official navy.1

1 The Rev. T. J. Lawrence in his Principles of International Law (1898) takes a different view. The present practice, he says, "carries with it the retention as prisoners of war of the crews of the captured ships, though they are as truly non-combatants as the artisans and niners of an occupied province, whom no one dreams of reducing to captivity," With all deference for the hardly ever failing clearness of vision of my able col league, I think he has missed the main consideration. I have pointed it out in the text. See Lord Chancellor Loreburn on the same subject, p. 176.

p. 414.

The assimilation of private property at sea to private property on land, it is seen, would mean that the State to which the captured vessels belonged should indemnify the ship and cargo owners for their loss, which, be it observed in passing, is not only a matter of international law, but is also a question of domestic regulation.2 In naval war, however, the circumstances are not exactly the same. After the outbreak of war, every shipowner and shipper belonging to a belligerent State knows the risk he incurs in sending ships or goods across sea. He has, moreover, the option of keeping ship or cargo in port, or of paying war rates of insurance, or again the shipper has the option of sending his goods under the protection of a neutral flag. If he exposes his ship or cargo to the risks of capture, it is that he has calcu

2 In special Note on proposal of a "national indemnity" for captures, p. 200.

lated the chances of escape, and chosen to run the risks. To indemnify him for losses incurred might be to relieve the shipowner or shipper from the consequences of his want of foresight and caution.

Whether it is expedient for England at the present day to agree to the immunity of private property at sea from capture, must be dictated by the circumstances of the particular war in which she might be engaged. It is quite conceivable that dif ferent considerations would weigh with her in a war with the United States1 from those which would arise in a war with France or Germany. In the case of the United States, it might be in the interest of both parties to localise the operations of war, and to interfere as little as possible (perhaps for the joint exclusion of neutral vessels) with the traffic across the Atlantic. In the case of a war with France or Germany, England might consider the closing of the sea to all traffic by the merchantmen of the enemy very much to her own interest.

1 The following thoughtful passage in Capt. A. T. Mahan's great book on Sea Power is worth meditation in this connection:

recur.

"The circumstances of naval war have changed so much within the last hundred years, that it may be doubted whether such disastrous effects on the one hand, or such brilliant prosperity on the other, as were seen in the wars between England and France, could now In her secure and haughty sway of the seas, England imposed a yoke on neutrals which will never again be borne; and the principle that the flag covers the goods is for ever secured. The commerce of a belligerent can therefore now be safely carried on in neutral ships, except when contrabrand of war or to blockaded ports; and as regards the latter, it is also certain that there will be no more paper blockades. Putting aside, therefore, the question of defending her seaports from capture or contribution, as to which there is practical unanimity in theory and entire indifference in practice, what need has the United States of sea power? Her commerce is even now carried on by others; why should her people desire that which, if possessed, must be defended at great cost?"-Influence of Sea Power upon History (1660–1783), 5th ed., London, p. 84 (no date). (Ref. dated Dec. 1889.)

Whether England would be benefited by the immunity of her commerce from capture is a question which it is difficult to decide in the abstract. She might no doubt be exposed to a combination of the Powers against her, and thus be prevented from exercising such a protection over her maritime trade as would render its transference to neutral bottoms needless.2 On the other hand, there is the consideration of whether transfers of ships to neutral flags, which are not bona fide, are valid against a belligerent. In case of doubt, the rates of insurance might be almost as heavy under the neutral as under the belligerent flag. Belligerent cargo-owners, having the alternative of using a ship liable to capture or one not so liable, would naturally choose the latter; but would this affect the great mass of traffic of a carrying country like England, which alone possesses the means of doing its own trade? 3

Apart from expediency, necessity of war, that is, the necessity in which, by the nature of things, a commander is placed of preserving his own forces against destruction, and of defeating the forces of the enemy, might frustrate the operation of the bestdevised rules for the protection of private property.

2 It is interesting in this connection to read another passage in Capt. Mahan's Influence of Sea Power upon History, London, 1889:-"There was . . . an impression largely held by French officers of that day" (i.e. end of 18th century), "and yet more widely spread in the United States now, of the efficacy of commerce-destroying as a main reliance in war, especially when directed against a commercial country like Great Britain. . . . The harassment and distress caused to a country by serious interference with its commerce will be conceded by all. It is doubtless a most important secondary operation in naval war, and is not likely to be abandoned till war itself shall cease; but regarded as a primary and fundamental measure, sufficent in itself to crush an enemy, it is probably a delusion, and a most dangerous delusion, when presented in the fascinating garb of cheapness to the representatives of a people. For two hundred years England has been the

great commercial nation of the world. More than any other, her wealth has been entrusted to the sea in war as in peace; yet of all nations she has ever been most reluctant to concede the immunities of commerce and the rights of neutrals. Regarded not as a matter of right but of policy, history has justified the refusal; and if she maintain her navy in full strength, the future will doubtless repeat the lesson of the past."-Pp. 539-540.

This passage, by the bye, answers the question put in a letter to the Times, signed Pax (March 30, 1907), in which the distinguished writer asks if there is any known instance in which destruction of private property at sea-blockades excepted-has seriously affected the result of a war, probably in the sense he wishes to elicit.

3 The question has been dealt with very fully by the International Law Association in papers by Mr. Charles H. Butler, of the New York Bar, and the present writer at the Buffalo meeting in 1899; by Mr. Justice Phillimore, Mr. Wood Renton, M. Georges Marais, and Mr. C. C. Hyde on behalf of an American committee on the subject, at the Rouen meeting in 1900; and by Mr. Justice Kennedy at the Berlin meeting in 196.

See also articles in the June Nos. (1907) of the National Review. by Capt. Mahan, and Nineteenth Century, by Mr. Julian S. Corbett against, and of the Albany Review, by Mr. Francis W. Hirst, in favour of, Immunity.

Prof. Oppenheim, in his International Law (1906, vol. ii. p. 186), observes that "whereas formerly continental opinion was nearly unanimous in postulating the abolition of the rule (e.g. liability to capture), the number of those is increasing who defend its preservation."

Lastly, a question of contraband is involved. Contraband is necessarily and for obvious reasons excepted from the proposed immunity. Therefore the presence in the cargo of unconditional contraband (also enemy troops) would cancel the immunity of the ship and entail all the existing inconveniences, except confiscation, against innocent1 ship-owner and innocent cargoowners. The presence in the cargo of conditional contraband would entail the same inconveniences for the non-contraband cargo. The contractual adoption of the British rules as to pre-emption might, however, dispense with trial by a Prize Court in the case of conditional contraband.

2

1 The proposers of immunity do not seem to have dealt with the consequences for the ship-owner of knowingly carrying unconditional contraband.

2 See p. 92, note 1.

The advocates of immunity have hitherto confined themselves to the vague enunciation of a desire to see it adopted. The subject, however, can only be satisfactorily considered in connection with all its working conditions. For the purpose of ascertaining them, moreover, it is necessary to determine what is meant by immunity. Is the immunity that which is practised in regard to neutral private property at sea, or is it the supposed immunity of enemy private property on land? The consequences of the one point of view are very different from those of the other. The annexed draft forms of treaty treat the subject first from the one and then from the other. The note on the proposal of turning the difficulty by a system of National Indemnification, though beyond the scope of International Law and Practice, is added to enable the reader to take a comprehensive view of the question in its domestic as well as its international bearings.

4

See p. 172 et seq. and 176 et seq.

5 See p. 2:0.