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PROPOSED IMMUNITY OF PRIVATE PROPERTY AT SEA FROM CAPTURE BY ENEMY1.
HE proposal that nations should recognize the immunity of private property at sea has been discussed by many writers in England, the United States, and France. It was also warmly advocated by the United States at the Congress of Paris in 1856, when she declined to sign the Declaration on Maritime Law unless a provision on this subject were added, and it was recently brought forward at the Hague Conference, though ruled beyond the scope of its deliberations. It has been introduced into several treaties 2. Still 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 meetings in 1874, 1875, and 1877 declared itself in favour of the principle that private property, whether neutral or enemy, sailing under enemy flag or neutral flag, should be inviolable.
Professor Lorimer has gone the length of holding this to be the rule of law of Europe and its non-recognition as the exception 3.
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.
I shall in this paper endeavour to clear away some of the obscurity which has resulted from a too desultory treatment of the subject, to examine it in its connexion with the recognized laws of war generally, to discuss whether indeed, in itself, immunity is desirable and whether there is any likelihood of a great maritime country like England agreeing to the alienation of a right of capture, necessarily of greater importance to it than to a country whose power and interests are territorial.
1 Read at the Conference of the International Law Association at Buffalo, N. Y. U. S. and Italy-Treaty of February 26, 1871. In the Austro-Prussian War of 1866 the principle of inviolability was adhered to by both parties. Germany proclaimed the same principle in 1870 but afterwards abandoned it.
Lorimer's Institutes of the Laws of Nations, vol. ii. p. 94.
OF WAR GENERALLY.
War is an armed conflict between communities or nations as such. These communities or nations may be represented by constituted authorities and armies-but it is. not a duel confined to these authorities and armies. Armies are recruited from the communities and nations behind them, and it is on the vitality and material resources of these communities or nations that the continuance of the war depends.
It is a temporary suspension of the usages of peace and it brings into play another set of usages, called the laws of war. Originally the belligerent exercised the right of life and death over the whole armed and unarmed population against which he was warring, and he claimed the same absolute power of disposition over all their property.
An invading army, before the practice of war became more refined, lived by foraging and pillage in the invaded country. Pillage, in fact, was one of the inducements held out to the adventurers who formed part of the fighting forces, either as officers or as common soldiers, down to comparatively recent times.
Attenuations naturally followed from the rise of standing and regular armies and the consequent more marked distinction between soldier and civilian. They have taken the form of compounding for plunder, systematic requisitions and contributions, the confining of the right of levying these to generals and commanders-in-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 appropriated or used and of war indemnities. All these are methods of lessening the hardships of war as regards the private property on land of the subjects of belligerent states.
Now if we look into the tendency of these attenuations we find that it is not to arrive at immunity, but to develop an organized system by which damage and losses to individuals, whom the fortune of war has brought into immediate contact with the enemy, are spread over the whole community. Those, therefore, who speak of the immunity of private property in warfare on land do not accurately describe the existing state of things 1.
To substitute systematic for chaotic seizure and plunder on land was obviously in the interest both of invader and invaded, and
We must take care not to attach much importance to isolated exceptions, such as the invasion of France in 1813 and that of Mexico by the United States, which prove nothing.
humanity in this as in many other cases has only been another term for the common interest of mankind.
Grotius describes war in his time as the letting loose of some fury with a general licence for all manner of wickedness,' and indeed we can imagine the terrors of an invasion which meant the seizure of the food on which the natives of the invaded country were dependent for existence, the carrying away of bedding, implements, and horses, the slaughter of livestock, the appropriation of the stored seed grain. We know how long it took Germany to recover from the devastation of the Thirty Years War, and if we compare the state of things in that period with the revival of France after the war of 1870, we may well rejoice that the common interest of states has substituted orderly-plunder' though it be for the wanton seizures of a time when the common interest of mankind had not yet become a matter for consideration among the motives of a nation's conduct.
TENDENCIES AS REGARDS NAVAL WARFARE.
The considerations which have led mankind to systematize the practice of war in regard to private property on land do not arise in the same form in connexion with private property at sea. Here there is no question of seizing the livestock or the bedding, or the food or the utensils of the private citizen.
Here we have to deal with mercantile ventures. If 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 them1. 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 cruiser 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 the United States and Spain in their late
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 is a general rule that when two vessels of hostile nations meet in a neutral port the local authorities are to detain one till twenty-four hours after the departure of the other.
war, though not signatories of the Declaration, both spontaneously waived the right to resort to it. Yet the only difference the abolition of privateering makes is the substitution for amateur or irregular warships of vessels officered and enrolled as a part of the official navy1.
Lastly has grown up, on grounds similar to those which have led to the indulgence shown to private property on land, a now generally recognized immunity from capture of small vessels engaged in the coast fisheries, provided they are in no wise made to serve the purposes of war.
This has all been done with the object of making the operations of war systematic, and enabling the private citizen to estimate his risks and take the necessary precautions to avoid capture, and of restricting the acts of war to the purpose of bringing it to a speedy conclusion.
IS IMMUNITY OF PRIVATE PROPERTY AT SEA IN ITSELF
We have seen that there is no immunity for private property yet known to the laws of war. War, by its very nature, prevents the
1 The Declaration of Paris contains another historical acknowledgment of the common interest, not this time of belligerents, but of mankind generally in exempting from capture the property of the neutral in enemy vessels. It also exempted from capture the property of the enemy in neutral ships. These were victories of the neutral interest over that of belligerents. The latter exemption assumes that, just as the private property of the citizens of a belligerent state is protected from capture on neutral land, it should also be protected from capture on the neutral ship which is held to be under the territorial sovereignty of the state whose flag it carries. It is significant that, in spite of the Declaration of Paris, necessity of war has been held to justify the destruction of neutral property on an enemy's merchant vessel without compensation. Thus, in 1870, the French cruiser Desaix captured the German vessels The Ludwig and The Vorwaerts and burned them on the day of capture. Part of the cargo of these vessels belonged to British subjects (neutrals). The owners claimed compensation, but the Conseil d'Etat held that, though the Declaration of Paris exempts the goods of a neutral on board an enemy's ship from confiscation, and entitles the owner to the proceeds in case of a sale, yet it gives him no claim to compensation for any damage resulting from the lawful capture of the ship, or from any subsequent and justifiable proceedings of the captors (Wheaton, P. 493; Dalloz, Jurisprudence Générale, 1872, Pt. III. p. 94).
Hall (International Law, p. 722), commenting on the above case, says: 'It is to be regretted that no limits were set in this decision to the right of destroying neutral property embarked in an enemy's ship. That such property should be exposed to the consequences of necessary acts of war is only in accordance with principle, but to push the rights of a belligerent further is not easily justifiable, and might under some circumstances amount to an indirect repudiation of the Declaration of Paris. In the case for example of a state the ships of which were largely engaged in carrying trade, a general order given by its enemy to destroy instead of bringing in for condemnation would amount to a prohibition addressed to neutrals to employ as carriers vessels the right to use which was expressly conceded to them by the Declaration in question. It was undoubtedly intended by that Declaration that neutrals should be able to place their goods on board belligerent vessels without as a rule incurring further risk than that of loss of market and time, and it ought to be incumbent upon a captor who destroys such goods together with his enemy's vessel to prove to the satisfaction of the prize court, and not merely to allege, that he has acted under the pressure of a real military necessity.'
growth of any such immunity. The tendency in war on land has been to spread its effects over the whole community, to keep a faithful record on both sides of all confiscations, appropriations and services enforced against private citizens, but beyond this no protection has thus far been given to private property on land.
War, we have said, is an armed conflict between communities or states. 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 the 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, is necessarily one of the objects, and one of the least cruel, which the belligerents pursue.
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.
Is it then desirable that war should be made less a calamity than it thus is—that is, beyond the elementary principle that individuals should be made as little as possible to suffer for the act of the community?
Until war is brought home to the civilian it has few terrors. If its abolition is an object to be striven for--and we must assume that it is till the arguments to the contrary are supported by more irrefutable evidence than we yet possess-we can see from the evidence around us of the armed nations of Europe that conscript armies, in which every civilian is also a regular soldier, tend to the preservation of peace, and in this respect they are not an unmitigated evil.
On a recent occasion it was instructive to contrast the readiness of English politicians to plunge England into war with the quiescence of the French, who have come to look upon war only as the terrible last resource for the most vital of national questions, to whom war means that the men who declare it must be prepared to sacrifice themselves, their sons and kindred to it. It does not make for peace to confine the hardships of war to the fighting of a professional soldiery on land or to the fighting of professional warships at sea.