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THE LAW 

OF 

PRIVATE PROPERTY IN WAR, 

WITH A CHAPTER ON CONQUEST. 
(BEING THE YORKE PRIZE ESSAY FOR 1906.) 



BY 

NORMAN BENTWICH. 

{Sometime Scholar of Trinity College, Cambridge, and TFliewell Scholar 
of International Law.) 



Lux Gentium Lex. 
" Les peuples doivent en paix se faire le plus de bien, et en puerre le moins de mal 

possible."— MOKTESQUIKU. 



LONDON: 

SWEET & MAXWELL, LIMITED, 

3, CHANCERY LANE, 

1907. 



Ihe 



^^^^SS-i^*-^^* 






Tl- Clareiiaoiit Colibiges Libraries 



^ HOC OPUSCULrM 

JURISPRUDENT!^ PRIMITIAS ME^ 

SUMMA CUM VERECUNDIA 

DEDICO 

F1LIU8 PATRI 

TIRO JURIS-PERITO. 



-*- O vJ J_ X 



PREFACE. 



This book is based upon the Essay which won the Yorke Prize 
at Cambridge University in 1906 ; and the Author's chief excuse 
for adding to the already unwieldy mass of literature, which is 
being piled up about International Law, is that, by the regula- 
tions which govern the Prize, publication has been thrust upon 
him. It is hoped, however, that the treatise may find some 
small justification beyond this compulsion. Undoubtedly the 
subject with which it deals is " in the air." The events of the 
war between Russia and Japan aud the approach of the meeting 
of the second Hague Conference, which it is hoped will form a 
code of the laws of war on sea, have combined to arouse public 
interest in the development of the International Law of War 
and Neutrality. Public opinion has greater influence in deter- 
mining changes in this branch of jurisprudence than in any other, 
because these changes depend finally on the common consent of 
nations, which is but the expression of the united opinion of 
the people; and this in turn must be guided by the expositions 
of jurists. The aim of this book is to formulate, from a study 
of the chief authorities, the general principles which imderlie 
modern usages, to point out where particular practices are 
obsolete and violate those principles, and to suggest the lines 
upon which reform may proceed. It may seem by its title to 
clash with an elaborate treatise which has recently been written 
on " "War and Commerce " by Mr. Atherley-Jones, but its 
scope is at once narrower and wider. It avoids as far as 
possible lengthy historical disquisitions, and it does not seek to 
trace a path through "the wilderness of single instances." It 
is more concerned with present usages and tendencies, and it 
covers the effects of war in all its relations to private property, 
as well of enemies as of neutrals, and both on land and on sea. 



( vi ) 

It is clearly differentiated also in scope from the standard 
treatises on International Law, for it deals exclusively with 
that part of the law which affects private persons, and aims 
rather at interesting the student than satisfying the lawyer. 

Nevertheless, most of the substance of the Essay is derived 
from the standard English treatises of Westlake, Hall, Wheaton 
and Oppenheim. From among the vast number of foreign 
publicists I selected Nys and Despagnet as my chief guides to 
Continental theories of war, and I have found the " Droit 
International " of the one and the " Droit International 
Public" of the other very suggestive. For the case-law 
upon the subject I depended in the first instance largely upon 
Snow's Leading Cases in International Law and on Tudor's 
Leading Cases in Marine and Mercantile Law, but references 
are given generally to the original reports. I have made 
considerable use of American decisions, partly because the 
history of the United States has given special opportunities for 
the development of International Law, partly because the 
American Courts have from the beginning of the national life 
shown a whole-hearted acceptance of the Law of Nations. 

Finally, it is my pleasant duty to thank my teacher and 
friend, Professor Westlake, for the help he has given me in 
the publication of this Essay. He instilled my fii-st interest 
in International Law, and, having shared the adjudication 
of the Yorke Prize with Lord Justice Ivomer, he went over 
my manuscript with me, pointing out the errors which the 
Examiners had noticed, and making many helpful suggestions ; 
and, lastly, he has done me the further kindness of reading 
parts of the book in proof. 

NOEMAN BENTWICH. 



Lincoln's Inn, 
^pril, 1907. 



CONTENTS. 

» 

OHAP. PAGE 

I. Historical Introduction 1 

n. The Sanction of tlie Law 16 

III. Private Property on Land 26 

rV. Compensation for War Losses 41 

V. Commerce between Belligerents 47 

VI. Conquest and Private Property 62 

Vn. War and Property on Sea 79 

Vin. War and the Property of Neutrals (Historical) 97 

IX. War and Neutral Commerce at Sea ] 08 

X. Proposed Changes in the Laws of War at Sea 132 

Appejstdix I.— The Hague Peace Conference, 1907 141 

Appendix II. — Enemy Character and Domicil 142 

Index 149 



LIST OF CHIEF WORKS CONSULTED. 



Hall's International Law. 5tli Edition. 

Westlake's International Law. Vol. I., " Peace." 

Westlake's Chapters on the Principles of International Law. 

Eeport of the Eoyal Commission on Food Supply in Times of War, 1905. 

Eeport of the Transvaal Concessions Commission, 1902. 

Dr. Lawrence's Principles of International Law. 2nd Edition. 

Dr. Lawrence's Studies in International Law. 

Wheaton's International Law, edited by Atlay. 4th Edition. 

Oppenheim's International Law. Vol. 11. 

Holland's Studies in International Law. 

Holland's Laws and Customs of War on Land. 

Sir H. Maine's Ancient Law. 

Sir H. Maine's Lectures on International Law. 

L. A. Atherley- Jones's War and Commerce. 

Grotius, De Jure Belli ac Pacis. 

Vattel's Droit des Gens. 

Nys' Droit International et Droit Politique. 

Nys' Origines du Droit International. 

Carver's Carriage by Sea. 

Arnould's Marine Insurance. 

Walker's History of International Law. 

Dr. Baty's International Law in South Africa. 

Smith and Sibley's International Law in the Russo-Japanese War. 

Lawrence's War and Neutrality in the Far East. 

Despagnet, Droit International Public. 

Twiss, The Law of Nations. 

Note. — The abbreviation L. Q. E. is used for the Law Quarterly 
Eeview. 



( ix ) 



TABLE OF CASES. 



A. 

PAGB 

Acteon, The, 2 Dods. 48 - - - - - - 111 

Albrechtt'. Susman. 2 Ves. & B. 323- - - - - 79 

Antonia Johanna, The, Snow, pp. 336, 337 ; 1 Wheaton, 159 - 80 

Att.-Gen. v. Sillem, L. R. 2 H. L. C. 431 - - - - 130 

Aubert v. Gray, 3 B. & S. 163 - - - - - 52 



B. 

BeU V, Eeid, 1 M. & S. 726 - - - - - - 80 

Benita Estanger, The, 176 U. S. Eeports, 568 - - - 82 

Bentzcn v. Boyle, Snow, p. 331 ; 9 Cranch, 191 - - - 81 

Bermuda, The, Snow, p. 813; 5 Wallace's Eeports - - - 113 

Betsey, The, 2 Eob. 93 - - - - - - 109 

Betsy, The, 1 C. Eob. 92 - - - - - - 125 

Blackburne v. Thompson, 3 Campbell, 61 - - - - 50 

Boedes Lust, The, Snow, p. 249 ; 5 C. Eob. 245 - - - 52 

BouBsmaker, Ex parte, 13 Ves. jun. 71 ; Snow, p. 267 - - 54 

Brandon v. Curling, 4 East, 410 - - - - -55 



c. 

Charming Betsy, The, 2 Cranch, 64 - - - - - 23 

CSrcassian, The, 2 Walliioe, 138 _ _ _ _ 124,125 

Clementson t;. Blessig, 11 Exch. 135 - - - - - 48 

Cohen /;. New York Life Insurance Society, 50 N. Y. 641 - - 55 

Columbia, The, 1 C. Rob. 154 - - - - - 125 

Cook (;. Sprigg, (1899) A. C. 572 - - - - 20, 22 

Cornu V. Blackburne (17S1), 2 Doug. 640 ; Snow, p. 310 - - 48 



D. 

Danckebaar African, The, 1 Eob. 107 - - - - 81 

De Walsh v. Brauno, 25 L. J. N. S. Ex. 343 - - - - 54 

Dorsey v. Kyle, Amor. Decisions, Vol. XCVI. p. 617 - - 54 

Dos liermanos. The, 10 Whoaton, 510 - - - - 80 

Doss ;;. Secretary of State of India, L. R. 9 Eq. 509 - - 22 

Dreifontoin Mines Co. y. Janson, (1902) A. C. 496 - - 24,52,61 

B. b 



Table of Cases. 



E. 

PAQB 

Egerton v. Brownlow, 4 H. L. C. 123 - - - - 24 

Esposito V. Bowden, 24 L. J. Q. B. 210; 4 E. & B. 763 - - 49 

Elector of Hesse Cassel, Case of, Snow, p. 381 - - - 64 



F. 

Fanny, The, 1 Dods. 448 - - - - - - 121 

Felicity, The, 2 Dods. 383 - - - - - - 94 

Ferdinand Moltke, The, Tudor, p. 1011 ; 1 C. Eob. 85 - -^127 

Franciska, The, Moore, 10 P. C. C. 37 ff. - - - - 127 

Frau Howina, The, Calvo, 2761 - - - - -114 

Freundschaft, The, 4 Wheaton, 105 - - - - - 81 

Friendship, The, 6 C. Eob. 420 - - - - - 119 

Furtado v. Eogers (C. P. 1802), 3 Bos. & Pull. 191 ; Snow, p. 303 - 51 



G. 

Gauntlet, The, 4 P. C. C. 184 - - - - - 130 

General Armstrong, Snow, pp. 393 — 398 - - - - 84 

Griswold v. Waddington, Snow, p. 274 ff. ; 15 Johnson, 57 - - 54 



H. 

Hanger v. Abbott, 6 Wallace, 532 - - - - - 54 

Harcourt v. Gaillard, 12 Wheaton, 523 - - - - 77 

Hardy, Le, Snow, p. 337 - - - - - - 81 

Harmony, The, Snow, p. 32 ; 2 C. Eob. 322 - - - - 80 

Hay V. South African Gold Eecovery Co., (1904) A. C. 437 - - 7b 

Helen, The, 1 Snow, p. 497 ; L. E. 1 Adm. 1 - - - 128 

Hoare v. Allen, 2 Dallas, 102 - _ - . _ 59 

Hobbs V. Heuning, 17 C. B. 791 ; 34 L. J. C. P. 117 - - 114 

Hoop, The, 1 C. Eob. 196 - - - - - - 48 



Imina, The, 3 Eob. 167 - - _ _ . 113,115 

Immanufl, The, Snow, p. 503 _____ 102 

Indian Chief, The, Snow, p. 315; 3 C. Eob. 12 - - - 80 

International, The, 3 A. & E. 32 - - - - - 131 



Jacob and Johanna, The Young, 1 Eob. 20 - - - - 83 

Jenny, The, 4 Eob. 31 - - - - - _ 82 

Johanna lOmilie, Spiuks' Prize Cases, 14 - - - 14, 82 

Johanna Maria, The, Moore, 10 P. C. C. 37 ff. - - - 127 

Jonge Pieter, 4 C. Eob. 79 - - - - - - 4ft 



Table of Cases. xi 



PAOB 

Kershaw v. Kelsey, Snow, p. 295; 100 Massachiisetts Eeports, 561 - 56 

L. 

Leucade, The, Spinks' Prize Cases, 221 - - - 94, 109 

Lisette, The, 3 Kob. 390 - - - - - - 125 

Luke V. Lyde, 2 Burr. 882 - - - - - - 5 

M. 

Marais, Exparte, (1902) A. C. 109 - - - - - 30 

Maria, The, 1 C. Eob. 350; Snow, p. 55 - - 17, 120, 139 

Marianna, The, 6 C. Eob. 24 - - - - - - 79 

Mashona, The, Joiu'nal of Society of Comparative Legislation, N. S. 

Vol. II. 326 _.---_ 51, 115 

Medeiros v. Hill, 8 Bing. 231 - _ _ _ . i28 

Mercurius, The, 1 C. Hob. 80 - - - - - 124 

Meteor, The, Snow, p. 418 - - - - - - 129 

Menzell, The, (1904) Law Magazine, XXX. 207 - - - 131 

N. 

Neptunus, The, Snow, p. 490 ; 2 C. Eob. 110 - - - 125 

Nercide, The, 9 Cranch, 388 - - - - - - 121 

Netherlands South African Eailway Case, L. Q. E. Vol. XIX. - 66 

Neutralitet, The, 3 C. Eob. 296 - - - - - 111 

New York Life Insurance Co. v. Clopton, 7 Bush, 179 - - 55 
New York Life Insurance Co. v. Stathem, Snow, pp. 278 — 282; 

93 U. S. Eeports, 24 - - - - - - bb 

0. 

Ocean, The, Snow, p. 495; 4 C. Eob. 5 - - - - 126 

Omnibus, The, 4 Eob. 71- - - - - -82 

Orozembo, The, 6 C. Eob. 430 ; Snow, p. 483 - - - 119 

Ostsee, The, Spinks' Prize Cases, 174, 217- - - -109 



Panama, The, 176 U. S. Eeports - - - - - 84 

Paquete Ilabana, The, 175 U. S. Eeports, 677 - - - 83 

Peterholl', The, Snow, p. 813 ; 5 Wallace's Eeports - - 113,114 

B. 



Eapid, The, Snow, p. 480 ; Edwards' Eeports, 228 
Eapid, The, Snow, p. 288 ; 8 Cranch, 155 



- 117 

. . , - - 50 

Ecg. V. Annand, 9 Q. B. 801 - - - - _ - 74 

Eichardson v. Marino Insurance Co., 6 Mass. 112 - - _ 128 

Eingendo Jacob, The, 1 C. Eob. 90 - - - - - HI 

Eobinson, «S:c. v. Alliance Insurance Co., (1904) A. C. 489 - - 52 



xii Table of Cases. 



PAOH 

Santissima Trinitlacl, Snow, p. 408 - - - - - 129 

Scotia, The, 4 WaUacc, 170 - - - - - - 15 

Seton V. Low, Snow, p. 475 ------ 128 

Seymour v. London and Provincial Marine Insurance Co., 41 L. J. 
C. P. 193 - - - - - - - - 114 

Society for Propagation of the Gospel v. "VMieeler, 2 Gallison, 105 - 74 
Springbok, The, Snow, p. 813 ; 5 "Wallace's Reports- - 113, 126 

Stephen Hart, The, Snow, p. 813; 5 Wallace's Reports - - 113 

Stert, The, 4 C. Rob. 65 - - - - - - 126 

St. Lawrence, The, Snow, p. 290 ; 8 Cranch, 434 - - - 80 



Teutonia. The, 2 Snow, p. 250 ; 4 P. C, R. 171 - - - 53 

Tobago, The, 5 C. Rob. 218 - - - - - - 79 

Tonteng v. Hubbard, 3 B. & B. 291 - - - - - 53 

Twee Gebroeder, 3 Rob. 339, 340 - - - - - 84 

U. 

U. S, V. De Repentigny, 5 WaUace, 213 ff. ; 2 Snow. p. ;#<1 - 64, 77 

U. S. V. Hughes, 70 Fed. Reports, 973 - - - - 130 

U. S. V. Moreno, Snow's Cases, p. 22, 375 - - - - 23 

U. S. V. Penn, 69 Fed. Reports, 983 - - - - - 130 

U. S. V. Percheman, Snow, p. 22 ; 7 Peters, 51 - - - 70 

U. S. V. Quincey, Snow, p. 412 - - - - - 129 

U. S. V. Soulard, 4 Peter's Amer. Report, 512 - - -71 



Venus, The, 8 Cranch, 53 - - - - - - 50 

Vigilantia, The (1798), 1 C. Rob. 1 - - - - - 81 

Vigilantia, The, 6 C. Rob. 122 - - - - - 127 

Vrow Judith, 1 C. Rob. 151 - - - - - - 127 



W. 

West Rand Central Mines Co. v. Rex, (1905) 2 K. B. 391 - 20, 21, 22, 70 

William, The, Snow, p. 505; 5 C. Rob. 385 - - - 104, 113 

Woolf V. Oxholm, Snow, p. 268 ; 6 M. & S. 92 - - - 8 



Y. 

Young Jacob and Johanna, The, 1 Rob. 20 - - - - 83 

Z. 

Zee Star, The, 4 Rob. 71 - - - - - - HI 



THE LAW 



OF 



!ri&ate "pro^ettjr iit Winx m §Iini^ u^ ^ea:. 



CHAPTEE I. 

HISTORICAL INTRODUCTION. 



Sir Henry Maine lias pointed out that of the Koman titles 
" Occupancy " is pre-eminently interesting, on the score of 
the service it has been made to perform for speculative juris- 
prudence in furnishing a supposed explanation of the origin of 
private property. It was an almost universal belief at one 
time that in the supposed state of nature in whicli mankind 
had originally lived, the institution of private property had 
not existed ; but tliat before the organisation of civil societies 
it had grown up through natural acquisitions of what hitherto 
had been res nullius, or "no man's goods." The Eoman 
jurists, who developed the idea of a state of natm-e which was 
anterior to civil society, regarded " occupatio " as the chief 
natural mode of acquisition.^ As it is briefly put in the 
Institutes of Justinian : " Quod enim ante nullius est, id 
naturali ratione occupanti conceditur." Among the kinds of 
res nullius to be appropriated by occupatio, which Justinian 
goes on to mention, is the property of enemies. "Item ea 
qua3 ex hostibus capimus jure gentium statim nostra fiunt." 
Sir Frederick Pollock has brouglit forward e\ddenee that this 
proposition rofeiTcd specially to moveable property found in 
Roman territory, and not to captures of realty made in the 
country of the enemy ; but it is certain that things captured 

» Just. Instit. 11, 12. 



2 Law of Private Property in War on Land and Sea. 

in war g-enerally were held to give a pre-eminently good title 
even wliere occupatio did not apply. " Maximo sua esse 
credebant qua3 ex hostibus cepissent," ^ says Gains. 

The theory of the later jurists, however, was of small 
practical import, for at the time that it was evolved the Romans 
were rulers of all the ci\Tlised world. While they had been 
building up their empire, they had set no limits to their 
rapacity, their maxim being that war must furnish the means 
of war (bellum alit bellum). Their provincial governors, when 
their finances were straitened, not infrequently made war in 
order to enrich themselves. Save for a few political thinkers 
who devised counsels of perfection, which were not followed, 
the ancient world knew of no restraint in the violence of war. 

Conquest in the same way implied to the Greeks and E/omans 
the complete appropriation by the conqueror of all the private 
property of the conquered subjects. Grotius quotes the state- 
ments of the chief classical authors, beginning with Xenophon, 
who, in the Cyropsedia, says : " There is an eternal law among 
mankind, that when a city of the enemy is conquered all the 
property therein belongs to the captors," ^ Plato, Aeschines, 
Plutarch, Cicero and Livy are cited to the same effect. The 
Eomans, indeed, made a distinction between hostile property 
taken from the enemy on his own soil and that taken within 
Roman territory. To the latter alone they applied the rule of 
occupatio by individuals : " Quae res hostiles apud nos sunt 
non publico) sed occupantium fiunt." ^ The former became, in 
the first place, the property of the State, and was afterwards 
either let out by it to its original owners at a fixed rent, or sold, 
or granted to individual citizens of Rome. The general 
principle, however, was maintained in both cases that all the 
private property of the enemy subjects as well as of the enemy 
States was forfeited by war ; and tliat conquest or surrender, 
unless special conditions were made, reduced the people to the 
condition of slaves and transferred their property bodily to the vic- 
torious State. Livy quotes the early Roman formula of surrender 

1 QaiuslDBtit. 1. 4, 16. 

a Grotius De Jure Belli, III. C, 13. 

^ Dig, 41. 1, 5, 



Historical Introduction. 3 

thus : " Deditisne vos populumque lubemque, agros aquam 
terminos, delubra, utensilia, divina humanaque omnia in meam 
populique Eomani dicionem ? " " Dedimus." " At ego recipio." 
The Eoman soldier, when he surveyed his broad acres, which 
he held by right of conquest, tilled by the serfs whom he had 
conquered, might well have exclaimed : " My strong arm has 
gained for me all this wealth." 

The barbarian peoples who overthrew the Eoman Empire 
maintained alike the practices of the old Eoman soldiery and 
the theories of the imperial jm'ists. They regarded war as the 
natural means for securing property and wealth, ravaged and 
laid waste the country of the enemy, pillaged any city which 
they took after storm or siege, and demanded a heavy ransom 
from those which surrendered. So far as theory at all affected 
practice, it was considered that by the outbreak of war mankind 
retui-ned to the state of nature, that the private property of 
enemies fell into abeyance, and that the natm'al modes of 
acquisition revived between belligerents. War was begun by 
"diffidatio," a severing of the tie of faith between the 
belligerent sovereigns ; and thereafter the subjects of either side 
were empowered " courir sus aux ennemis," i.e., to spoil and 
harry the foe. In practice, as well as in theory, there was 
often " Bellum omnium contra omnes." The combatants in 
particular were invested with the right of '* encha," or com- 
pensation, which is explained in the famous Castilian Code of 
the thirteenth century, " Siete Partidas." Each soldier could 
recompense himself for any physical suffering or any actual 
loss in war by seizing a certain amount of plunder, and to this 
end a fixed tariff of woimds was di'aA\Ti up. 

Not only any corporeal property of an enemy which could 
be seized by land or sea, but also incorporeal rights, such 
as debts, were straightway confiscated upon tlie outbreak of 
war. Tliere was supposed to be complete soHdarity betAveen all 
the subjects of the same prince, so that they were each liable to 
any member of anotlier State for any ANTongdoing. In a few 
cases more enlightened ideas were entertained. Thus by the 
English " Great Charter" (1215)^ it was laid down that the 

^ Cf. Ta=!xvrll-Langmeacl's Constitutional History of England, p. 108. 

1(2) 



4 Lmo of Private Property in War on Land and Sea. 

property of enemy merchants resident in England should not 
be confiscated at the outbreak of war except by way of reprisals 
for the confiscation of English property in their State. The 
growth of a common mercantile law between States encouraged 
milder usages in "Western Europe. But leniency was the excep- 
tion in the wars — often virtually private wars — between feudal 
lords, which went on unceasingly dming the early Middle Ages. 

At sea, indeed, we can trace from the twelfth centmy the 
rudiments of a law which regulated the practice of war in 
relation to the enemy's property. Up to this time the custom 
had been to allow private captains who deemed themselves 
wronged " currere supra malefactorem donee plenarie f uerit 
emendatum."^ This license was termed special reprisals; when 
the sovereign power or the State considered itself an injured 
party and seized, by embargo or otherwise, enemy vessels, it 
employed what was called general reprisals. These have 
endured in a modified form to om^ own time. In the early 
history of European nations sovereigns had no naval forces of 
theii' own, and for this reason they licensed private captains to 
destroy enemy commerce or capture it. The license inevitably 
affected the innocent property of neutrals which was mixed up 
with enemy property, and during war piracy reigned practically 
without check. The first effective protests against this scom-ge 
were made by the important mercantile cities of the Mediter- 
ranean. The maritime codes of tlie twelftli century, the 
Consolato del Mare and the Laws of Oleron, became the basis 
of a European customary maritime law, which hold sway as well 
in war as in peace. They allowed the capture of the enemy's 
property on neutral ships and of an enemy vessel carrying 
neutral cargo ; but they made proper provision for the neutral 
property and for freight in each case, and Courts were estab- 
lislied to try disputed cases. 

Maritime war, owing to conditions of space, is bound to affect 
the rights of neutrals more tlian land war, and it was much 
earlier found necessary to regulate it and introduce some kind 
of judicial control over captui-c. Special Prize Com-ts, the first 

' Cf . Sietc Portidas, quoted by Nys. 



Historical Introduction. 5 

Courts where anything in the nature of international law was 
administered, date from the thirteenth century, Richard I. is 
said to have introduced some of the customs of the Consolato 
del Mare into England after his return from the Crusades, but 
until the reign of Edward III. — and, it may be, later — questions 
of lU'ize, etc. were dealt with by the Common Law Courts or 
the Chancellor in the form of " causa3 spolii." Piracy, reprisals, 
and letters of marque were, according to Hale, " the most noble 
and eminent piece of the Chancellor's jurisdiction." Letters of 
marque or royal licenses to privateers to prey upon enemy com- 
merce were introduced into naval warfare about the same time 
as tlie customary laws of capture, and were originally an 
additional element of order devised in the interests of the 
sovereign. Only vessels which had the royal Hcense were 
privileged to capture, or at least to take the profits of capture ; 
and they had to resign a portion of their gains to the king, and 
to have their captures adjudicated by his Courts. 

Belligerent rights may be maintained in their stringency 
longer upon the sea than on land, but they liave always been 
more subject to order on that element. For the sea is the 
highway of commerce of all nations, belhgerent and neutral 
alike ; and before respect for the property of enemies had been 
established, sovereigns found it necessary to regulate capture 
juridically in order not to irritate neutrals. The laws of mari- 
time capture were part of the mercantile law or " law merchant," 
which was administered in all the civilised countries of Europe. 
Though the incidents differed in each war, certain broad prin- 
ciples became fixed, so that even in war time it was partially 
true that '* Maritime law was not the law of a particular country 
but the general law of nations." ' 

On land progress was slower because there was less oppor- 
tunity for the influence of common consent, and because the 
institution of private property was not fully established. The 
supreme lord's right of eminent domain was widely enforced in 

> Per Lord MausliclJ iu Lulio v. ' ' The law of the sea rests upon the 
Lydo, 2 Burr. 882 ; cf. the dictum of common consent of civilised conimuni- 
tho U. S. Supreme Court in 1771: ties." (The Scotia, 1 Wallace, 170.) 



6 Laio of Private Property in War on Land and Sea. 

war-time, and in case of need he could commit any destruction 
lio pleased upon the property of his own individual subject, 
while his enemy ''jure belli" could do the same. Private 
property was molested equally by the belligerent enemy and by 
the national sovereign, and the regard which the latter paid to 
the rights of his subjects affords some measui'e of the respect 
which could be expected from an enemy. As late as 1633 the 
rights of the King of England in time of war were stated by the 
advocate of Hampden in the case of ship-money as follows ^ : — 
" I shall admit not only his Majesty, but likewise every man 
that hath power in his hands may take the goods of any within 
the realm, pull down their houses or burn their corn ; to cut off 
victuals from the enemy and to do all other things that conduce 
to the safety of the kingdom without respect to any man's 
property." The rights of offence balanced the rights of defence, 
and between the two private property had no protection in time 
of war. 

As nations became more settled and private war was gradually 
abolished, the conception of private property became more fixed. 
Protests were raised against the prevailing outrages of war, 
which, especially in the fierce religious wars that followed the 
Peformation, involved the utter negation of law and the extreme 
of savagery. Grrotius was the first to make an effective attack 
upon the practice of indiscriminate plunder and confiscation, 
when he declared it to be contrary to the " Law of Natiu-e," and 
proved the existence and efficacy of such a law to the satis- 
faction of his contemporaries. During the Dark and Middle 
Ages the belief in the law of natm-e had not died out, but it 
had become clouded and confused. It had been identified with 
the actual practice of nations, which was in effect unrestrained 
violence and cruelty. Grotius reformed this view, and revived 
the idea of a law of nature which should regulate the conduct 
of mankind when released from national law and acting again in 
a state of natm-e. His age demanded ancient authority for all 
reform, and Grotius found the necessary sanction of his prin- 
ciples in ancient literature, beginning with the Bible. In the 

' Cf . 3 State Trials, 828. 



Historical Introduction. 7 

■writings of the world's greatest tliinkers, he urged, there 
appeared a law of natui'e wliich prescribed certain restrictions 
to the cruelties of warfare and to the complete denial of the 
rights of private property which war and conquest were sup- 
posed to produce. He distinguished between the " jus gentium " 
and the " jus naturco." Thus he admitted that the practice of 
nations permitted the capture of all the property of enemies, 
but the law of nature ^ only admitted the taking of so much as 
would satisfy the just grievances or the actual damages of the 
belligerent ; and he set forth a number of " temperamenta," or 
corrections based upon humaner ideas, which he proposed to 
introduce into existing usage. His work was really an appeal 
to natural reason to check the violent passions of combatants. 

Grotius, except that he neglected the law of neutrality, pro- 
duced a fairly complete body of international law at the moment 
when the international society for which it was to serve was 
assuming a stable form. From the time of the Peace of West- 
phalia it may be said that a continually developing series of 
rules, dependent for their authority on custom and the common 
consent of nations, has regulated the actions of European States 
to one another in war as well as in peace. The rules of war on 
land have not been administered in any court or possessed any 
other coercive sanction, but none the less they have continuously 
modified practice in the direction of humanity. The usages of 
war at sea, on the other hand, during the seventeenth and 
eighteenth centuries received the form of positive law, as the 
decisions of Prize Com'ts in each nation, defining the rights of 
maritime capture over the property of belligerents and neutrals, 
were reported and collected. 

The immediate practical effect of Grotius' work, " Do 
Jure Belli et Pacis," was remarkable. In the wai' of the 
Palatinate — which was fought while it was being written — 
pillage and spoliation were carried to their extreme. Mansfeld, 
Brunswick and Wallenstein vied with ouo another in their 
excesses, and they all supported their armies on robbery of the 
countryside. Gustavus Adolphus of Sweden, however, who was 

' Cf. Grotius Dc Jure Belli, III. ^^. 1. 



8 Lav) of Private Fropertij in War on Land and Sea. 

an enthusiastic admirer of Grotius, made his soldiers pay for 
everything they took, and organised a regular commissariat. 
His remarkable military successes proved that the old practice 
was as demoralising for the spoiler as it was ruinous for the 
spoiled ; and in the War of the Spanish Succession, at the begin- 
ning of the eighteenth century, non-combatants were largely 
able to carry on their peaceful pursuits without fear of plunder 
and rapine, and the armies refrained from ravaging the country 
save in cases of military necessity, and from the destruction of 
towns surrendered after a siege. The old custom of pillage, how- 
ever, was still retained where a besieged town was taken after 
having been stormed ; but this was byway of penalty for obstinacy. 
The immoveable property of private persons was for the most 
part not interfered with, and it became unusual to seize the 
moveable property of domiciled enemies on land or to confiscate 
the debts of enemy subjects. Bynkershoek, who maintained the 
old doctrine of confiscation, added that it was relaxed in practice : 
" Utilitas fere jus belli, quod ad commercium attinet, subegit." 
Upon one point, indeed, a fixed usage was set up by the 
middle of the eighteenth century which showed a peculiar 
regard for certain private property of enemy subjects. The 
Silesian loan controversy^ between England and Prussia in 
1752 decided that a sovereign cannot confiscate in time of war 
the shares of the public debt of his State held by foreign 
creditors. The case itself did not turn upon the rights of enemy 
creditors, but the principle that these were indefeasible by war 
was laid down by the English advocates, and has not been 
challenged. It is based, not so much on any theoretical 
inviolability of public faith, as on tlio fact that, were any 
confiscation countenanced, it would be impossible for States to 
raise loans upon reasonable terms in foreign countries. Tliis 
indulgence was therefore imperatively called for by the interests 
of the public credit, and has added vastly to the security of 
investments in national stock. Not only can the loan not be 
confiscated, but interest is paid on it during the war. A 
decision of Lord Ellenborough, in the case of Woolf r. Oxholm^ 

' Cf. Snow, p. 2G8. 

2 Snow, p. 268 ; 6 M. & S. 92. 



Historical Introduction. 9 

(1817), declared that this immunity was extended by the law of 
nations to private debts, and that their confiscation by the Danes 
during the war with England was in conflict with the usage 
of nations. Although, however, opinion was tending in this 
direction, England still herself preserved the old custom of 
embargo and seized any craft of her enemies in her ports, and 
could hardly, in equity, require them to abandon an analogous 
right. There was no good reason to distinguish between the 
confiscation of debts and of other property of the enemy found 
in the country at the outbreak of war ; and it was the exercise 
of the latter usage by England which had led to reprisals by 
Denmark in 1807 against the debts payable to EngHshmen 
from her subjects. Lord Ellenborough's decision was therefore 
premature, but the practice which he had declared illegal at the 
beginning of the century did in fact become obsolete during its 
course ; and it was held in Hanger t\ Abbott^ " that while in 
strictness it may still be said to exist, it may well be considered 
as a bare and impolitic right, condemned by the enlightened 
conscience of modern times." 

In the case of contract debts between enemy subjects the 
remedy is now only suspended during the war, and revives on 
the return of peace. Immunity, too, is granted to enemy 
property on land found within the State of the other belligerent. 
Since the end of the Napoleonic wars there has been only one 
case of confiscation, which was supplied by the Confederate 
States in the American Civil War. Their Government passed 
an Act in August, 1861, which declared "that property of 
whatever natiu-e, except public stocks, held by an ahen enemy 
since May, 1801, shall bo sequestrated and appropriated." 
This action was reprobated by European opinion, and Lord 
llussell protested against it on behalf of Englishmen domiciled 
in the States. 

During the eighteenth century the idea was gaining ground 
that the private property of enemies in the land of tlie other 
belligerent was not to be wantonly confiscated. At tlie same 
time, however, little regard was paid to property at the sphere 

» Tliis was a caco in the Supreme Court of the U. S. A., 18G7, ariaiu" out of 
the Civil A\'ar. 6 Wall. y,Vl. 



10 Laio of Private Property in War on Land and Sea. 

of operations. The indiscriminate ravaging and pillage, which 
had been the rule before Grotius, had indeed disappeared, but 
it had been replaced by a systematic and organised plunder, 
which was hardly less oppressive upon private property. By 
means of requisitions and contributions, a means was found of 
making war pay itself, and of destroying the wealth of the 
enemy without demoralising the army and driving the people 
to despair. The introduction of the system of requisitions has 
been attributed to George Washington, but Professor Nys ^ has 
shown that he unwillingly resorted to a system, which was 
abeady common on the continent of Europe, at the peremptory 
bidding of Congress, and at a moment of urgent need, when the 
State was bankrupt and the army starving. The kings of 
France and Louvois, the minister of Louis XIV., were the real 
organisers of this systematic spoliation, which has left its traces 
upon the laws of war up to our own day. They supplied tlieir 
armies by the provisions which they requisitioned from the 
country, and they replenished their treasury by the contri- 
butions which they levied from conquered cities. According to 
Albert Sorel, war was " un moyen d'alimentcr le tresor et de 
pourvoir aux guerres futures ; et I'extraordinaire des guerres 
etait une des ressources les plus surcs des financiers du temps." 
England paid her sailors largely by the proceeds of maritime 
capture. Franco supported her armies by her demands from 
the towns of the invaded country, and had a surplus left. 
Eequisitions comprised not only objects necessary for the army, 
but everything which was of any use whatever ; so that they 
were nearly tantamount to the appropriation of all the moveable 
property of the enemy. 

Until the end of the eighteenth century the common opinion 
held that one of the aims of war was to enrich the State and 
impoverish the enemy by despoiling liis individual subjects. The 
French Revolution brought into prominence again the idea of 
natural law and a state of nature, and asserted throughout 
Europe the rights of the individual man against the powers of 
government. This great change in thought brought with it a 

' Ruvuc du Droit Intcrualional, 190G. 



Historical Introduction. 11 

new conception of the proper purpose of "belligerents. In the 
widesj)read awakening of the human race, and in the question- 
ing of all law and all existing ideas, a new theory of the 
relation of war and conquest to private property was enunciated. 
Its basis has remained to the present day, wliile its full develop- 
ment has not yet been achieved in practice. The change is 
foreshadowed in Montesquieu's Esprit des Lois, but it received 
its most emphatic utterance in the works of Rousseau. In a 
famous passage in the "Contrat Social" he wrote : " War is not 
a relation of man to man, but of State to State, in which indi- 
viduals are enemies only accidentally, not as men nor even as 
citizens but as soldiers ; not as members of their country but as 
its defenders." It is easy to point out the crudeness and a 
certain confusion of mind which this passage shows. For a 
State consists only of its individual citizens, and when one State 
attacks another the individuals of one must attack the indi- 
viduals of the other. Nevertheless, Rousseau's root idea that 
belligerents should primarily attack only State property and do 
the least possible harm to private property, which is consistent 
with military necessity, is the foundation of the modem law 
of war. 

The Revolutionary Government of France showed at first a 
desire to give practical effect to the new humanitarian outlook 
of theorists. When war was threatening with England in 1790, 
the following rules were proposed as part of a code of war in the 
National Assembly : — 

(1.) " Que I'assemblee nationale regarde I'universalitc du 
genre humain comme ne formant qu'une seule et memo 
societe dont I'objet est la paix et lo boulieur de 
tons ses membres. 
(2.) *' Que dans cette grande societe generale les peuples et les 
etats consideres comme individus jouissent des momes 
droits naturels . . . quo les individuels des societes 
particulieres. 
('}.) " Par consequent nul pcuple n'a droit d'envahir la pro- 
priety d'uu autre peuple." 
These ideas were more advanced than any lutherto put for- 
ward by the great publicists, and though alioad of general 



12 Laiv of Private Property in ^Var on Land and Sea. 

opinion they marked the way along whicli it Avas tending. 
Again in 1793, in a proposed " Declaration du droit des Gens," 
introduced by L' Abbe Gregoire to correspond to the " Eights of 
Man," we find among the four articles the following : — *' Les 
peuples sont entre eux dans I'etat de la nature : ils ont pour lien 
la loi universeUe. Les peuples doivent en paix se f aire le plus de 
bien, et en guerre le mains de mat possible." It is true that these 
ideas^ were for a long time mere theories which were travestied 
in action, but their utterance marks the beginning of a change 
of feeling which in the nineteenth century has had far-reaching 
eifeets on practice. We may take it that the general principle 
which governs modern usage is to eliminate all wanton violence 
and damage from war, and to restrict the passions of greed and 
cruelty in belligerents. The French Revolution heralds and 
ushers in the democratic age in Europe, and the democratic 
principle in war is to pay regard to the private property of the 
peaceful inhabitants. The absolute monarchs who went to war 
to enrich themselves maintained spoliation. The sovereign 
peoples regard peace as the normal and desii'able condition of 
mankind, and only resort to war to secure some great national 
end, which is not furthered by seizures of private wealth. Hence, 
very largely, have arisen the humanitarian spirit in warfare and 
the mitigation of belligerent rights. 

An expression of modern theory, which shows the ideas of 
Rousseau in a more reasonable form, is to be found in the 
United States Instructions to their Armies in the Field, Articles 
20 — 22, wliich are as follows : — 

(20) Public war is a state of armed hostility between 

sovereign nations or governments. It is a law and 
requisite of civilised existence that man lives in 
political societies forming organised units called States 
or nations, whose constituents bear, enjoy, and suffer, 
advance and retrograde, together in peace and in war. 

(21) The citizen or native of a hostile country is tlms an 

enemy as one of the. constituents of the hostile State, 
and as such is subjected to the hardships of war. 

^ These proposed articles were based upon tlicorics Avliich Montesquieu liad 
set forth in his " Esprit des Lois." 



Historical Introduction. 13 

(22) Nevertheless, as civilisation has advanced during the last 

centuries, so has likewise steadily advanced, especially 

in war on land, the distinction between the private 

individual belonging to a hostile country and the 

country itself with its men in arms. The principle 

has been more and more acknowledged that the 

unarmed citizen is to be spared in person and property 

as much as the exigencies of war will admit. 

The Crimean War illustrated the new attitude of belligerents 

to one another's property ; and in the last year of the nineteenth 

century the floating theories were transformed into a positive 

code which has as its leading conception that the property of 

belligerents is immune on land, except in so far as military 

necessity disturbs it. 

The history of war on sea does not show the same progress 
in the seventeenth and eighteenth centuries as the history of 
war on land, nor a corresponding reform in the nineteenth. 
Throughout the former period the right of capturing enemy 
vessels and enemy cargo was maintained in almost all its 
severity. The Dutch, indeed, in the seventeenth century varied 
the time-honoured and logical usage of the " Consolato Del 
Mare," which confiscated enemy goods on neutral vessels and 
let free neutral goods on enemy vessels, by an illogical principle 
expressed in the jingle of " free ships, free goods • " " enemy 
ships, enemy goods." In reparation for their infringement of 
neutral rights in the one case, they relaxed their severity to 
belligerents in the other. Their purpose was to protect their 
own carrying trade, and thoy called in a high-sounding principle 
of "vis attractiva," by which the natui'e of the ship was 
supposed to infect the goods, to give a legal colour to their self- 
seeking innovation. They were followed by France, Spain, 
Portugal and Sweden, though none of these powers held firmly 
to any rule ; and England, though as part of her law she kept 
the old rule, admitted the new principle, " free sliips, free goods," 
in numerous treaties with Continental powers, starting with tliat 
made between the Xing of Tortugal and Oliver Cromwell in 
1654. It was the almost invariable rule of our amicable relations 
with Franco from 1G77 to 175)-'], and it was accepted by all the 



14 Lato of Private Property in War on Land and Sea. 

parties to the treaties of Ryswick and Utrecht. Nevertheless, 
the theory of the great maritime powers as expressed in treaties 
was at variance "udth their practice dui'ing war. Here we have 
an instance of what must qualify the whole division of inter- 
national law with which we are dealing, viz., that " during peace 
men's minds conform to what ought to be the rule of inter- 
national law, but in war passion, hatred and seeming necessity 
are apt to determine the actions of powerful belligerents who set 
at defiance the best established rules of war."- 

This contrast between professions and actions was particularly 
true untn the middle of last century ; and the rules which 
appear in the text books of Grotius, Wolf, and Yattel were 
less a guide to practice than a stimulus to the reforming states- 
man. Despite treaties and professions, all nations habitually 
confiscated enemy property at sea whenever they found it, and, 
so far from letting the neutral flag exonerate the goods, often 
made enemy merchandise inculpate the unoffending ship accord- 
ing to the hard ruling of the French ordinances of the seven- 
teenth century. 

The theorists of the French Revolution proposed the abolition 
of the capture of private property on sea as well as on land, 
and under the enlightened guidance of Benjamin Franklin, the 
United States almost from the beginning of their independence 
agitated for this reform. But these ideas failed to produce any 
change in practice, not only in the Napoleonic wars, when 
belligerent rights of self-preservation were stretched to the 
utmost, but in the reforming age which followed them, when the 
usages of land war were largely modified. Sailors are habitually 
conservative, and the usages of the sea, moreover, are difficult to 
change, because they pass into law administered by the Civil Courts, 
the most conservative of institutions. When the Crimean War 
broke out, the old practices of maritime war towards belligerents 
were still unchallenged, including embargo, i.e., the seizui'e of 
all enemy vessels found at the outbreak of war, or even at the 
threatened outbreak of war, as Droits of the Admiralty. Dr. 
Lushington, in 18'j4, in condemning the Russian-owned ship 

' Sir Wm. Molcsworth, quoted in Macquoen's Report of Houfo of Commons 
Debate on tlie Declaration of Paris, July 4th, 1854. 



Historical Introduction. 15 

" Johanna Emilie," said : " With regard to any property of the 
enemy coming to any part of the kingdom or being found there 
being seizable, I confess I am astonished that doubt should exist 
on the subject."^ 

The alliance of England and France led indeed to one great 
correction of existing practices. France had the rule of " free 
ships, free goods," England the rule that neutral goods on 
enemy ships were free. These two complementary mitigations 
were continued provisionally, and after the war received 
legislative validity by the Declaration of Paris, which opens 
the modern history of maritime war in relation to private 
property. The other great reform of the Declaration was the 
abolition by the European powers of privateers. Duiing the 
last two centuries, as the naval forces of the State became more 
important, the use of privateers had diminished, and it was 
practically discontinued after the Napoleonic wars. 

It has been argued that the abolition of privateering should 
be the prelude to a more thorough reform of maritime warfare, 
and that the capture of private property other than contraband 
should be entirely abolished. The United States Government 
has urged this view repeatedly during the last century, and a 
movement in its favour has gained continuously in support. 
England to-day is almost the sole great naval power which 
opposes the change. Her opposition, of course, is of command- 
ing importance, and the arguments in favour of the existing 
practice are set out in a later chapter. But this agitation shows 
that the conception of war which originated with the thinkers of 
the French Revolution period is steadily gaining ground. 

* Spinks' PrLse Cases, p. 1 1 . 



( 16 ) 



CHAPTER n. 

THE SANCTION OF THE LAW. 

The progress of the international law of war has been towards 
a more thorough recognition of the rights of private property in 
the violent relations of States. Originally there was abeyance, 
then suspension, then systematised forfeiture, leading to for- 
feiture only in cases of military necessity ; and to-day publicists 
are advocating, and statesmen granting, compensation in oases 
where military necessity has caused interference. It is 
important, also, to notice that rules which were originally 
unwritten customs, more honoured in the breach than the 
observance, and were gradually developed in the books of 
jurists, are now being embodied in formal conventions to which 
are attached the sanctions of the most solemn international 
treaties. The laws of war on land were codified at the first 
Hague Conference, and there is every prospect that at the next 
tlie laws of war on sea will be similarly standardised. And the 
laws of war on sea, be it remembered, include the rights of 
neutrals. 

If we turn from the substantive part of international law, 
which declares what are the rights that exist in the dealings of 
States, to the adjective part, which shows how those rights are 
enforced, we do not find the same progress in the last three 
centuries. No law, it has been said, is certain, and the law of 
nations is the least certain branch of all law, and the law of war 
is the least certain part of the law of nations. International 
law is for the most part to-day, as it was in the time of Grotius, 
a body of customary rules, and its sanctions are moral and 
indeterminate. Rousseau declared that in default of a coercive 
sanction the laws of war were chimeras, weaker even than the 
law of nature. Like most of Rousseau's statements, that is an 
exaggeration, but nevertheless it contains a measure of truth. 



The Sanction of the Laiv. 17 

One great part of the international law of war, the law of 
maritime capture, is indeed administered by regular Courts and 
incorporated into the law of the laud, not as local but as inter- 
national law. In the words of Lord Stowell: ^ " The seat of 
judicial authority is locally here in the belligerent countiy 
according to the known law and practice of nations, but the 
law itself has no locality. It is the duty of the judge sitting 
in an Admiralty Court not to deliver occasional and shifting 
opinions to serve present purposes of particular national inte- 
rest, but to administer with indifference that justice which the 
law of nations holds out without distinction to independent 
States, some happening to be neutral and some belligerent." 
This view is, to some extent, an ideal presentation of the fact, 
for the law is not in fact always administered impartially in 
Prize Courts. So long as the tribunal which has to decide upon 
the rights of neutrals and enemies is the national Court of one 
of the belligerents, the guiding juridical principle that "nobody 
can be a judge in his own cause" is violated. And the viola- 
tion of the principle too frequently involves injustice towai'ds 
the individual. The honour of nations is not safely entrusted 
to all Prize Courts. As one of the latest Royal Commissions 
reported, with the memory of the Vladivostock Court decisions 
fresh in its mind : - " There is no absolute guarantee behind 
international law to insure that its rules will be enforced." 
War, too, is apt to blunt the moral sense of the judges of a 
belligerent nation as well as of the combatants, so that the fine 
aspirations of Lord Stowell in the case from which we have 
already quoted, " that a Prize Court sitting in England should 
administer the law of nations in exactly the same way as if it 
were sitting in Stockholm," is not realised in practice. 

An International Court of Appeal on prize cases sitting at 
the Hague would certainly seem to be one of the most pressing 
needs of international jmisprudence, and seeing that the ques- 
tions it would have to doe-ido would be purely legal, it cannot 
be objected that it would bo derogatory to the sovereignty of 

1 Tlio Maria, 1 C. Rob. 3r)0. 

- Report of R^yal Commission ou Food Supply in Times of War. 
B. 2 



IS Law of Private Propertij in War on Land and Sea. 

States. Not only would it tend to greater justice to neutral 
traders, but it would help the progressive development of inter- 
national maritime law to meet changing views and changing 
circumstances. Upon the vexed questions of conditional contra- 
band and continuous voyages, it would be able to lay down 
rules which would be binding. As things are at present, we 
have a one-sided development of the law by a belligerent in his 
own interest, wliile the claims of neutrals are seldom effectively 
voiced till the war is over and the damage of unjust decisions 
has been done. When finally heard, they come through the 
despatches of ambassadors or the books of publicists, which 
cannot carry the same weight as the decisions of a Court ; and 
in the result they have to be reasserted afresh at the end of each 
war. Prize law, in fact, owing to the nature of the Court 
which administers it, lags behind opinion, and each belligerent 
nation endeavom-s during war to resist the reforms in mari- 
time capture it had approved and advocated as neutral, or 
stretches in its need rights which before and after war it 
endeavours to limit. 

The laws of war which regulate the relations of belligerents 
to enemy private property on land have a still weaker sanction ; 
for they are applied by martial authority at tlie seat of fighting, 
and depend uj)on the honour of nations and conventional under- 
standing. But these are weakest when a nation is struggling 
for self-preservation, and are continually liable to be overridden 
by the plea of "force majom-e." It is of the very nature of 
war to suspend the sanctity of law between the belligerents and 
to loosen its hold ; and the fierce passion aroused by fighting 
cannot be restrained adequately by rules which frequently 
appear to conflict with a " necessity " of which the pleader is 
the judge. "Inter arma leges silent" is a maxim still largely 
true, llence the theoretical inviolability of private property on 
land is circumvented on the Continent by a liberal interpretation 
of tlie necessities of war, and the Grerman Staff -rules actually 
recognise and give legal validity to a number of harsh practices 
under the title of Kriegsmanier, which temper, or rather whittle 
away tlie law of nations (Kriegsraison) on the ground that 
military necessity brooks no restraint. Continental writers 



The Sanction of the Laiv. 19 

frequently indulge in fine theories about the philosophical or 
ideal law of nations, but their ideal is as intangible as the old 
" Law of Nature" of the Middle Ages, and has not, perhaps, as 
much weight upon opinion. The laws of war upon land have 
been codified, but they have not yet been put to a severe test, 
for the circumstances of the only war fought under them, the 
Russo-Japanese war, did not give an opportunity for the 
infringement of the rights of the private property of belli- 
gerents. But while the spirit of war survives violence towards 
property must endure. And when nations have adopted a 
complete respect for their enemies' possessions, they will no 
longer be willing to kill their enemies' soldiers, and we shall 
have reached the days of compulsory international arbitration 
and "the Federation of the World." So long as nations let 
slip the dogs of war there must be havoc. 

The law of conquest varies in the effectiveness of its sanction 
according as it relates, on the one hand, to the rights of neutrals 
in the conquered country or to conquered subjects of a province 
whose original State still preserves its sovereign power, and, on 
the other, to the rights of subjects of a State whose sovereignty 
is extinguished. In the fii'st two cases the general opinion of 
nations and the pressui'e of external Grovernments is able to 
secure respect for the progressive usages of nations ; in the last 
case the treatment depends upon the unilateral will of the 
conqueror, and the sanctity of private property is apt to depend 
upon his interest. Certain recent English decisions in this 
regard are particularly interesting and deserving of special 
notice, because they raise the whole question of the bindingness 
of international law. The English prize law is perhaps the 
most remarkable and admirable body of case-law which the 
history of international jurisprudence has to show; and the 
English military authorities have continuously treated the 
private property of enemies with a strict observance of the laws 
of war, and have even shown a regard for it beyond what is 
demanded by them. But the English Com'ts, in several decisions 
arising out of the Transvaal war, have taken up an attitude 
upon the rights of conquest which involves not only a disregai'd 

'2 (2) 



20 Laio of Private Property in War on Land and Sea. 

of the rights of private property, but also a disregard of tlio 
place of international law in the law of the land. 

The law applied by the conqueror to his new subjects is 
naturally his own municipal law; for once his conquest is 
complete he is dealing with members of his own State. But he 
stands in a peculiar position to them. It is in his option to 
apply the general rule of law to them only from the time that 
he actually perfected his title, i.e., from the date of peace or the 
extinction of his predecessor ; or, on the other hand, frankly 
accepting the idea of State succession, to recognise the obligations 
handed down to him by the former sovereign power in tlie 
conquered country. Now international j mists of to-day have 
almost unanimously agreed that conquest implies a State- 
succession which is analogous to the succession of individuals, 
and involves con-esponding rights and duties. And foreign 
Governments, notably the Grovernment of Italy, have given 
legal effect to this idea by their conduct to conquered provinces. 
They accept the common consent of nations, expressed by its 
jurists and evidenced by treaties, conventions, etc., as binding 
upon them and as authority for their Courts. In the United 
States, again, the law of nations is, by an article of the Consti- 
tution, part of the law of the land, and mimicipal law is to be 
interpreted in relation to it. In England, however, an opposite 
doctrine has held, and continues to hold, force. International 
law, as such, has no binding force and is not part of the common 
law, but is regarded as mere opinion ; only when its rules are 
embodied in some statute or treaty need it be regarded by the 
Courts, and in interpreting existing statutes or acts of tlie 
executive they are not to be influenced by it. 

This attitude is exemplified in the two recent cases of Cook 
v. Sprigg and West Hand Central Mines Co. v. Rex.^ lu 
both the question was whether the Courts had power to adju- 
dicate upon an act of State-succession which violated rights of 
private property. The foi-mer case dealt with cession and not 
conquest, but the principles involved are the same, and the 
judges declared there in wide terms : "It is no answer to the 

• (1899) A. C. 572 ; (1905) 2 K. B. 391. 



The Sanction of the Law. 21 

plea of Act of State to say that by the ordinary principles of 
international law private property is respected by the sovereign 
who accepts the cession and assumes the legal duties and 
obligations of the former sovereign with respect to such private 
property within the ceded territory. All that can be properly 
meant by such a proposition is, that according to the well 
understood rules of international law, a change of sovereignty 
by conquest ought not to affect private property ; but no 
municij)al tribunal has authority to enforce such an obligation." 
As Professor "Westlake has remarked, that is a statement that 
one would rather have expressed otherwise ; and Sir Frederick 
Pollock has said of this decision that it impHes that " there is 
no rule or presumption that private property is to be respected 
in cases of annexation, of which any Coui-t must or indeed can 
take notice." ^ And this corollary is clearly in opposition to 
the current law of nations. 

In the case of the West Eand Central Mines Co, t\ Eex, which 
was tried in 1905, the Divisional Court upheld this interpretation 
of an Act of State, and Alverstone, C. J., went on to question 
the bindingness of international law in our municipal Courts. 
Furtlier, he entirely neglected the gradual progress of inter- 
national usage, for he quoted with approval an opinion of the 
Privy Council given in 1722: "When the king of England 
conquers a country it is a different consideration ; for then the 
conqueror, by saving the lives of the people, gains a right and a 
property in such people, in consequence of which he may 
impose upon them what law he pleases." Now these doctrines 
may have been very admirable in the eighteenth ceutuiy, but it 
is as reasonable to quote them to-day for the conqueror's rights 
over the subject's property as it would be to quote the old Roman 
law of conquest. The English judges tend to neglect the 
development of international law in the last century which has 
revolutionised the laws of conquest and war in regard to their 
effect upon private rights and private property. The plea of 
'' an Act of State," which they call in to bar the appeal of tlie 
conquered subject, becomes in this way a device to enable the 

1 Cf. PoUock on Torts, 7th ed. 108, 109 ; L. Q. K. Vol. XVI. pp. 1, 2. 



22 Lmv of Privcde Property in War on Land and Sea. 

English sovereign to evade his international obligations towards 
the subjects of an extinguished State. 

An Act of State was defined by Fitzjames Stephen as " An 
act injurious to the person or property of some person who is 
not at the time of that act a subject of Ilis Majesty, which act 
is done by any representative of His Majesty's authority, civil 
or military, and is either previously sanctioned or subsequently 
ratified by His Majesty."^ This prerogative of the Crown has 
been applied to mean that persons who by an act of State, e.g., 
annexation or State succession, become British subjects, are not 
entitled to complain in a British municipal Court of anything 
incident to such action.- Such an interpretation has as its 
effect that the Crown in dealing with a conquered or ceded 
territory holds a position which is the exact reverse of its con- 
stitutional powers at home. In the one case it is placed 
completely above the law, while in the British Isles it is com- 
pletely subject to the law of the land. And the interpretation 
appears to be based on a misconception. It is true that no 
subject can challenge the act of State itself, e.g., the act of 
annexation. But if that act carries by international law certain 
consequences, surely the subject has the right to appeal to the 
honom* of the sovereign that these consequences be not dis- 
regarded ; and the municipal Coui't may give effect to the inter- 
national obligation. And if modern international law lays 
down that annexation is not to interfere with the rights of 
private property, then surely the conquered subject must be able 
to get redress from some Court when his rights of private 
property are violated. " Where there is a wrong there is a 
remedy," is one of the guiding principles of our law, and if 
the subject is debarred from challenging the incidents of an act 
of State in the ordinary municipal Courts, it would seem 
desirable to create some new jurisdiction of the Crown, perhaps 
a new committee of the Privy Council, which could grant him 



' Cf. Stephen's History of Criminal Spritrg', (1S99) A. C. 572 ; "West Rand 

Law. Central Mines Co. f. Rex, L. R. (1905) 

2 Cf. DosH V. Secretary of State of 2 K. B. 391. 
India, L. R. 9 Eq. 509; Cook r. 



The Sanction of the Lavj. 23 

his just and proper redress from " the fountain of English 
justice." 

The present attitude of the English Courts seems to betray 
another trace of the lingering prejudice of which om' jurists 
have never entii'ely rid themselves since the old days of Austin : 
that international law is not really law at all. The words of 
Lord Alverstone rejflected the temper of Lord Salisbury, who 
once declared of the law of nations, that " It depends generally 
upon the prejudice of writers of text- books, it can be enforced 
by no tribunal, and to apply to it the word ' law ' is to some 
extent misleading."^ What is particularly unsatisfactory in 
the conduct of England, is that she in practice acts upon this 
attitude only in her dealings with the subjects of a conquered 
State. When the subjects of a neutral State are concerned, who 
have a powerful Grovernment to support their claims, she has 
either voluntarily, or on protest, accepted the usages of inter- 
national law and refrained from interfering with private 
property. The rights of the conquered are indeed a part of 
international law most capable of legal definition and most 
deserving of legal treatment, for when war is over the secmity 
of property should at once revive. English Courts might in 
this matter well follow the practice of the United States, who 
have always shown a frank acceptance of the limitations 
imposed upon the rights of the conqueror. In the case of 
TJ. S. V. Moreno it was said: — " That cession {i.e., of California) 
did not impair the rights of private property ; they were con- 
secrated by the law of nations. . . . The treaty stipulation 
was but a formal recognition of a pre-existing sanction in the 
law of nations."- An Act of State in England, like an Act of 
Congress in tlio United States, according to the celebrated 
dictum of Marshall, C. J., " ought never to bo construed to 
violate the law of nations if any other possible construction 
remains."^ 

Professor Westlake has stated conceruinf:: the law that should 



^ Quoted in the Encyclopsedia of tho - Snow's Cases, pp. 22, 37o. 

Laws of England, s. v. International •'' In The Charming Betey, 2 Cranch, 

Law. CI. 



24 Lmv of Private Projicrty in War on Land and Sea. 

regulate English action : " English Courts must enforce the 
rights given by international law as well as those given by the 
law of the land so far as they fall within their jurisdiction in 
respect of parties or places; subject to the rules that the king 
cannot direct or modify private right by treaty, and that the 
Courts cannot question acts of State." (Cf. Westlake in 
L. Q. R. January, 1906.) The last proviso of this rule no 
doubt is necessary to cover the existing practice of the Courts, 
but a more equitable condition would be that an act of State 
should not be construed to conflict with international obligations. 
When an offence has been committed by the sovereign against 
the law of nations, " act of State " is as bad a plea for him as is 
" public policy " for a subject when he has broken the strict 
law of the land. The words which Baron Parke used in a 
famous case about public policy, and which Lord Ilalsbury 
quoted in Driefontein Mines Co. v. Janson,^ apply "mutatis 
mutandis " to the plea of act of State. " To allow public policy 
to be a ground of judicial decision would lead to the greatest 
uncertainty and confusion. It is the province of the judge to 
expound the law only, the -written from the statutes, the un- 
Avritten or common law from the decisions of our predecessors 
and of oiu' existing Courts, and of text- writers of acknowledged 
authority ; and upon principles to be clearly deduced from them 
by sound reason and just inference." 

The backwardness of England in accepting the progressive 
ideas of the law of nations is doubtless due in part to the very 
merits of the English legal system. We adhere so loyally to 
the remarkable body of our case-law, that we are chary of 
admitting the authority of external jurisprudence. We trust 
in custom broadening out from precedent to precedent, and to 
some extent we fall into a certain insularity and offer resistance 
alike to the principles of natural reason and to the consensus of 
nations. Wlierever international usage is applied through 
municipal law, the English Courts are excessively conservative 
and lag behind Continental tribimals. What renders the 
practice of our Courts so striking is that it contrasts strongly 

1 (1902) A. C. 49G ; cf. Egcrton v. Lord Brownlow, 4 H. L. C. 123. 



The Sanction of the Laio. 25 

■with the progressive views of the military authorities ; and not 
only of the military authorities, but of extraordinary judicial 
bodies like Royal Commissions, The rules of war on land have 
now the bindingness of a solemn treaty upon civilised nations ; 
the rules of war on sea will probably soon have the same 
sanction. The rules of conquest can have no greater binding- 
ness than the regidar courts of the land can give to them. 
But seeing that they have to be applied when the \'iolence of 
war is over and the rule of law has been reasserted, there is the 
more reason that they should be honestly accepted and judi- 
cially supported. The Rule of law, which characterises the 
English Constitution, should extend to the relations of the 
sovereign power with its conquered subjects. It is the paradox 
of England's present attitude to international law that where it 
is judicial it is most backward. 



( 26 ) 



CHAPTER III. 

WAR AND PRIVATE PROPERTY ON LAND. 

During the ninetoenth centuiy tlie theory was continually 
growing stronger which makes war primarily a relation between 
States, and therefore leaves the rights of private property intact, 
except so far as they are disturbed by the necessities of war. 
This theory found its expression in the laws which were drawn 
up by the representatives of the Powers at the Hague in 1899, 
and ratified by their Governments. 

Comparing the strife of nations to the litigation of individuals, 
it may be said that, while of old a nation exacted its damages 
and costs from the enemy subject as well as fi'om the enemy 
State, he now claims them only from the latter. But at the 
same time he may interfere with the goods of the non- 
combatant subject, when military exigencies demand it. 

The principle of modern usage, according to Hall, is that 
propertj'' can be appropriated of which immediate use can be 
made for warlike operations by the belligerent seizing it, or 
which, if it reached his enemy, would strengthen the latter 
either directly or indirectly ; but that property not so caj)ablo 
of immediate or direct use, or so capable of strengthening the 
enemy, is insusceptible of appropriation.^ Bluntschli puts the 
same idea more concisely when lie says : " Le vainqueiu' doit 
respecter la propri«ite privce, et il ne pent y porter attcinto que 
lorsque les operations railitaires I'exigent." 

We shall see that the practice even of the latest times gives 
such a wide interpretation of military operations and " imme- 
diate use " that the spirit of the principle of exemption is partly 
violated ; nevertheless, it represents an ideal towards which the 
usage of nations has steadily developed from the Napoleonic 

I Cf. Hall's International Law, p. 420. 



War and Private Property on Land. 27 

wars, and wliich has received legal validity in the Hague Code 
of the Laws of War. 

From the middle of the nineteenth century attempts were made 
to form a code of the laws of war, so that usages should no longer 
be changeable at the caprice of the belligerent. The Conventions 
of St. Petersburg and Greneva, and the unratified articles of the 
Brussels Conference of 1874, represented steps in this direction ; 
and finally the Hague Conference of 1899, premising that " the 
assembled representatives of the States were animated by a 
desire to save, even in war, the interests of humanity and the 
ever increasing requirements of civilization," drew up a code for 
war on land which, ratified us it is by all the Powers, must be a 
standard for future conduct, though its only sanction is the 
honour of nations. 

The Institute of International Law in their proposed code of 
1880, which was the groundwork of the Hague Code, laid down 
as its principle that the only legitimate end that a State may 
have in war is to weaken the military strength of the enemy ; 
and Professor Holland, in his expansion of the Code for the use 
of British forces, interprets the principle thus : " The object of 
war is to bring about a complete submission of the enemy with 
the least possible damage to property." 

Nevertheless land war has still very serious effects upon tlie 
private property of enemies and of neutrals which is situated 
permanently in the territory of the enemy. On land the pro- 
perty of neutrals is not treated differently from that of enemies, 
nor has the neutral any more legal right to compensation for 
damage done incidentally, for it is not the disposition of the 
owner but the location of the property which is decisive. Even 
when the property of domiciled neutrals is taken possession of 
or destroyed for strategic reasons by either belligerent, compen- 
sation need not be paid to the owners for the loss they have 
sustained. But the property of neutrals temporarily in the 
country when seized in such circumstances is entitled to com- 
pensation. The injuries, hoAvever, caused by the events of war, 
battles, sieges, and bombardments — tliose are considered as due 
to necessity and force indjcure, and akin to the losses caused by 
acts of God, storms, earthquakes, etc. ; and neither belligerent 



28 Law of Private Proper ffj in War on Land and Sea. 

considers himself liable to compensate the private owners affected. 
As an act of grace a State may, after peace, consent to compen- 
sate its subjects for their losses ; by raising taxes or loans to 
enable it to do this, it disperses equably over the whole nation 
the loss which had originally ruined the few. 

Pillage is now formally prohibited even when a town is taken 
by storm ; ^ but the laws of war still permit an invading army, 
on the ground of military necessity, to devastate whole tracts of 
country, burn dwelHngs, and clear a district of supplies.^ The 
famous campaign of General Sherman in 1865 through Georgia is 
a notable instance of such devastation. A belligerent may employ 
this extreme measure also when his enemy has ceased regular 
military operations and obstinately continues a guerilla warfare, 
as was the case with the bands of the South Afi-ican Eepublic after 
the English proclamation of annexation in September, 1900. 
Their irregular warfare was met by what has been called the 
" process of attrition." The devastation of large tracts of 
country and the systematic destruction of habitations were 
employed as the only effective means of bringing about the 
submission of the desperate remnants of what had been the 
enemy's army. The Hague Laws of War contain no provision 
for emergencies of this kind. In their preamble it is stated that 
the provisions are destined to serve as general rules of conduct 
for belligerents in relation to each other and to the population. 
" It has not, however, been possible to agree on provisions em- 
bracing all circumstances wliich may occur in practice." Belli- 
gerents, therefore, have sometimes to return to the older methods 
of warfare ; with this difference, that their destructive operations 
must never be wanton or i^piteful but must have a clear military 
justification. Military necessity, however, may have a very 
•wide connotation. According to Lieber, it allows of all destruc- 
tion of property and obstruction of ways and channels of traffic, 
travel or communication, and of all withholding of sustenance 
or means of life from the enemy, or appropriation of whatever 
an enemy country affords, necessary for the sustenance and 
safety of an army. 

1 Cf. Hague Laws of War, 28, 47. 

2 Cf. Holland, Laws of War on Land, p. 4. 



War and Private Property on Land. 29 

Until tlie Hague laws were drawn up, the soldiery preserved 
the right to take as booty any property which they could 
capture from the combatant enemy, and the State used to 
divide the proceeds of such captured goods equally among the 
army. Now, however, they are prohibited from doing this,^ so 
that they may have no taint of fighting for private gain ; and 
all the personal belongings of prisoners of war, except horses 
and military papers, remain their property.- Further protec- 
tions for private property are provided in the general prohibitions 
" to destroy or seize the enemy's property unless its destruction 
and seizure be imperatively demanded by the necessities of war; 
and to attack or bombard towns, villages, habitations, or build- 
ings which are not defended."- This article, of course, does not 
prejudice the right of the belligerent to destroy buildings for 
military reasons ; and no right to compensation from his own 
State can be set up in this case by the private owner, as was 
pointed out by Sir Edward Thornton, the arbitrator iu a 
Commission established by the United States and Mexico in 
1868 to settle differences arising out of the war between 
them. 

Wherever armies are present, and more particularly when hostile 
armies are face to face, the sovereign of the invaded laud, as 
well as the sovereign invading, imposes martial law upon the 
inhabitants in the place of the law of the land, and applies it to 
all persons and all projierty in the district over which it is in 
force.^ The ordinary law of the land is thereby suspended, or 
at least subject to be overruled, by military requirements. 

Martial law was well described by the Diie of Wellington 
as "neither more nor less than the will of the general who 
commands the army"'; and such a law or absence of law 
involves a disregard of the rights of private property whenever 
they conflict, or are deemed to conflict, in the slightest degree 
with military needs. The commander who administers it is 
subject only to the customs of war. 

The rights of" the invader are supreme over all rights of 

» Cf. Hague Laws, 7. * Ibid. 23, 25. 

* Cf. IlollanJ, op. cit. p. 5. 



80 Law oj Private Property in War on Land and Sea. 

private contract. In the words of tlie United States army 
instructions (art. 32), *'A victorious army, by the martial 
power inherent in it, may suspend, change, or abolish the 
relations which arise from the ser\ices due, according to the 
existing laws of the invaded country, from one citizen subject 
or native of the same to another." And the army of the 
invaded country has corresponding powers over the rights of 
peaceful citizens. When the preservation of the whole State is 
at stake, the rights of individual members of it must give way. 

The State at war may seize or destroy any property whatsoever 
if necessary, and its oflBcers are the judges of that necessity. 
Nor, when the war is over, are the actions of the military autho- 
rities, however violent, justiciable by the ordinary tribunals. In 
England this was decided in a case which arose out of the 
Boer war (Ex parte Marais^), which dealt with the liberty of 
the subject. A fortiori, the principle of non-liability will apply 
to cases of property. Nevertheless, a belligerent sovereign 
to-day could hardly demand of his own subjects such sacrifices 
as William the Silent in 1573, when he flooded part of the 
Netherlands to drive ofi the Spaniards ; or, again, such a 
devastation as the Tsar Alexander imposed in 1812, when he 
made his country a desert and fired Moscow for the reception of 
Napoleon. Vattel held that there should be a limit to the 
rights of a belligerent Government in tliis way,^ and even the 
plea of imperious necessity would not allow such wholesale 
destruction of private property to-day. 

Certain States retain by statute or the articles of the 
Constitution a right to commandeer in preparation for war any 
private property of its subjects which may be of service to it. 
The Transvaal Constitution included such a right, and the 
Government applied it in 1900 to quantities of gold belonging 
to companies registered and working on the land. The Govern- 
ment really forms a contract with the person or corporation 
from wliicli the property is seized, but it may not bo in a position 
to hououi' that contract at the end of the war ; and its successor 

' ri902) A. C. 109. 

« Droit des Gchh, Book III. Ch;ip. IX. 



War and Private Proper tij on Land. 31 

may not think itself bound by it, so that a loss will result to 
private citizens or domiciled neutrals. Similarly, a belligerent 
Government often levies forced loans of money from its subjects 
immediately before and during the war, and it enforces payment 
from resident neutrals as well as from its own subjects. 
Englishmen residing in the Southern States were much affected 
by the exactions of the Confederate Government during the war 
with the Federal States; but Lord Russell refused to interfere 
on their behalf in eases where they were genuinely settled for 
purposes of trade. The United States Government itself pro- 
tested against the usage when it pressed upon its own subjects 
resident in Peru in 18G9. But it seems equitable that domicile 
should determine the disabilities of neutrals in regard to contri- 
butions, just as it does in regard to trade or destruction of 
property. 

Apart from the damage to property induced by the necessities 
of war and the substitution of civil by martial law, it is further 
menaced by a survival in a modified form of the old usages of 
spoliation and confiscation. They pass now under the fau'er 
names of requisitions and contributions, and they apply par- 
ticularly to territory in military occupation ; but the former, at 
any rate, are imposed also on any territory through which an 
invading army is marching. The requisitions, contributions 
and fines of the French kings, and later of Napoleon, represented 
a systematising of the earlier practices of plunder, and in the 
course of the last century a more careful limitation of these 
lights was gradually reached, while, finally, the Hague laws 
endeavour to confine the appropriation within the limits of 
military necessity. Still, these practices remain a real, if not a 
formal, violation of the modern theory of the immimity of 
private property on land, and they call for stricter regulation 
than is at present enjoined. 

It will be convenient to treat them in relation to the general 
rights of the military occupant over property, with which they 
are most frequently associated. The earefid distinction between 
Buch occupation and conquest is one of the great improvements 
in modern warfare, and prevents the premature disturbance of 
property and legal relations which resulted from the old con- 



32 Law of Private Property in War on Land and Sea. 

ception that the invader had conquered the territory as soon as 
he was in occupation of it. To-day conquest does not result 
until there has been the complete subjugation or extinction of 
one of the belligerents. A treaty may not always be necessary 
to perfect the condition ; e.g., Lower Burmah was annexed to 
India without any formal cession ; but there must be, de facto, a 
complete subjugation and cessation of resistance. Until this 
occurs there is only occupation. A territory is held to be 
occupied when it is placed, as a matter of fact, under the authority 
of the hostile army which has exclusive possession. The national 
Government is provisionally driven out, and the invader must 
set up some authority in its place ; and according to the Hague 
rule, " he shall take all steps in his power to re-establish and 
ensure as far as possible public order and safety, while respecting, 
unless absolutely prevented, the laws of the country."^ This 
stipulation, which prevents him from interfering with private 
law as to property or contracts, is supported by another which 
says that " the private property of individuals must be respected 
and cannot be confiscated." ^ The duty of the occupier to 
respect the existing political order in his provisional Government 
is further marked by the rule which directs the assessment and 
incidence of taxes and customs to be carried on by the occupant 
according to existing practice. 

The Hague laws, having thus provided for the general security 
of property, go on, however, to legitimise the imposition of 
requisitions and contributions by the occupant without requiring 
payment for tbem. It may be argued that requisitions, at any 
rate, are only rights of the sovereign State, exercised pro- 
visionally by its substitute in occupation, and even tliat con- 
tributions are only a special war tax, such as either the regular 
sovereign or his deputy has a right to enforce duiiug hostilities. 
The hardship upon the subject is that he has often to pay both 
Governments, the temporary and the permanent, the first in 
order to supply it with the means of fighting his own country, 
the second in order to enable it to procure peace. 

A requisition is defined by Littre as " la demaude faite par 

' Hague Laws, 43. * Ibid. 40. 



War and Private Property on Land. 33 

I'autorite pour avoir a sa disposition des hommes et des choses." 
Nys quotes a definition of Lewal whicli is more illuminating of 
present practice : " Requerir, c'est militairement demander, 
exiger non a vertu d'un droit mais au nom de 1' obligation de 
vivre." There is in fact no jural foundation to requisitions, but 
they are justified by that necessity, the instinctive right of self- 
preservation, which is anterior to, and paramount over, all civil 
law. And only so far as they are justified in this way are they 
permitted to the invader by the modern laws of war. The 
national Government may, of course, by its municipal law have 
special rights of requisitioning from its citizens which go beyond 
what is demanded by necessity. In England, indeed, the State 
has no right to billet soldiers in private houses or demand 
supplies for them from private owners, though it may do so for 
a proper (statutory) payment in the case of innkeepers and 
licensed victuallers. But on the Continent the State maintains 
wide rights of this character in times of peace in order to 
provide shelter and food for its vast conscript armies. And 
these rights it extends in war. The French law of 1877 
empowers the French commanders to make requisitions in times 
of war not only on French soil but also abroad, and prescribes 
payment or State liability only in the former case. The 
requisitions which a belligerent makes in the country of its 
enemy are considered commonly to be a proper burden upon its 
enemy. But they may not in future, as they have been in the 
past, be used as an indirect means of spoKation. 

Thus, during the Franco-Prussian war, when the practice 
was most systematically canied out, in spite of their fine 
proclamations that thoy made war only on the State and not 
on the citizens, the Germans organised the whole of Alsace- 
Lorraine and, in fact, the whole of France as far west as Paris, 
as a vast requisitioning ground. It has been reckoned that 
property to the value of 16,000,000/. was thus seized. Each 
commandant had the right of ordering from the inhabitants 
lodging and the necessary supplies for his army. And the 
inhabitants had either to meet these specific demands made 
upon them, or they could redeem tlie obligation of keeping the 
soldiers who were billeted proportionately among tliem for two 

B. u 



oi Law of Frivaie Properl/j in War on Land and Sea. 

francs a day per soldier — a clear proof that it was not only 
necessity which produced the demands. 
The law as it stands now is that — 

'"Neither requisitions iu kind, nor services, can be 

demanded from localities or inhabitants except for the 

needs of the army of occupation. They must be in 

proportion to the resources of the country, and of such a 

nature as not to imply any obligation upon the population 

to take part in military operations against theii' country. 

These requisitions shall only be demanded on the authority 

of the commander in the locality occupied. Supplies in 

land shall as far as possible be paid for on the spot ; if 

not, the fact that they have been taken shall be established 

by receipts."^ 

Unfortunately the terms of this law do not impose very 

definite limitations upon the actions of commanders. So much 

depends upon what they consider to be " the needs of the army 

of occupation." The phrase was substituted for "the necessities 

of war," which occurred in the rule proposed at Brussels ; but it 

is not much more favourable to the inhabitants. It is difficult 

in calm deliberation to make a proper differentiation between 

respect for private property and the necessity of the army ; in 

war it is impossible. Requisitions in kind could not now cover 

articles of luxury, but they may include any quantit}' of 

provisions, vehicles, clothing, tobacco, and horses, and, according 

to the German staff publication, such seemingly harmless things 

as printing presses. Colonel Hammer, at Brussels, proposed to 

allow the invader to demand only such supplies from the 

population of the occupied country as he could demand from 

the inhabitants of liis own country by his national law. Such 

a regulation would have honestly met the claims of private 

property and have brought the law of war into relation with 

the ordinary law of the land, but it was rejected at Brussels; 

and in the desire to come to an agreement at any price, it was 

not pressed at the Hague. 

The last part of the Hague law which deals with payment 

' Hague Law, 52. 



War and Private Property on Land. 35 

for requisitions, loses all its effect by reason of the qualifying 
" as far as possible." This practically leaves the matter to the 
discretion of the invader. The receipts given are evidence, 
indeed, that goods have been exacted, but they do not imply 
any promise from the occupant to pay at some future time, and 
a provision to this effect was deliberately rejected at the Hague. 
The treaty of peace may enact whether the Grovernment of the 
occupying or of the occupied country shall honour these receipts, 
or the question may be left open, in which case the ov^oiers will 
depend on the grace of their Government for compensation. 
In the Transvaal war Lord Eoberts issued a proclamation 
(February, 1900),^ saying that " Eequisitions for food, forage, 
or shelter made on the authority of officers in command of Her 
Majesty's troops must be complied with, but everything will 
be paid for on the spot, prices being regulated by the local 
market rates. If the inhabitants of any district refuse to 
comply with this demand, supplies will be taken by force, a 
full receipt being given." Later, in May, 1900, he announced 
that " any property that it may be necessary to take will be 
paid for"; and again (September 14th, 1900), that "the stock 
of burghers who surrender voluntarily is to be paid for, or a 
receipt will be given stating the value of it, if it is taken for the 
use of troops." These proclamations may be taken to represent 
the most generous treatment of an invading army, and may 
have been influenced by the determination to annex the occupied 
territory. But England has always taken a liberal attitude 
towards the people of the country invaded ; witness the conduct 
of Wellington in Spain and Franco, 1810 — 1814. 

The more oppressive methods of making requisitions are — 

(1.) To take them at a price fixed by the commandant, which 
may or may not be equal to the value of the article. 

(2.) To take them without any payment at all, and to give a 
receipt which has no bmding force upon the requisi- 
tioner. 

The Hague laws do little to check this last method, which 
creates the most serious injury to private property. Continental 

' Cf. Stoerk's Collection des Traites Modcrnes, Vol. XXXII. p. 137. 



36 Law of Private Property in War on Land and Sea. 

generals are likely in the future as in tlie past to regard requi- 
sitions as military necessities whicli the invader has the right to 
take, leaving the enemy Government to pay for them, if they 
choose, when the war is over. 

The retention of the system of contributions in the laws of 
war is a further menace to private property on land. Contribu- 
tions are defined by Hall as " such payments in money (levied 
by the occupying army) as exceed the produce of the taxes " ; 
i.e., they are a kind of special war tax levied on localities in the 
possession of the invader. Continental armies, during the last 
century, continued the practice of levying large sums upon 
occupied districts and captured towns, if not to enrich themselves 
yet at any rate to indemnify themselves for the general expenses 
of the war. Here, again, the Hague laws recognize the usage 
but endeavour to limit it, and are, perhaps, more successful than 
in their treatment of requisitions. 

The law is now, that, besides the taxes " the occupant may 
levy money contributions only for the needs of the army or of 
the administration of the occupied territory. The contributions 
must be levied under a written order, and on the responsibility 
of a commander-in-chief, and shall be regulated by the rules in 
force for the assessment and incidence of taxes. In every case 
a receipt is to be given to the payer." ^ 

The effect of these provisions, if they are observed, is to 
restrict contributions to particular military needs. And the 
limitations seem to be strictly required by the modern conception 
of war in its relation to private property. The old theory of 
pillage, either indiscriminate or systematised, as a means of 
recompensing the army for its toil or enriching the victorious 
State, has been abandoned. Towns have no more to ransom 
themselves from spoliation. Private property may be appropriated 
only by way of military necessity, and this only allows the 
invader to levy money in one place in order to buy provisions, 
etc. at another for the subsistence of the army. Contributions, 
in fact, are only justifiable in lieu of requisitions, and as a 
means of making the incidence of requisitions equitable. They 

' Hague Laws, 49 — 51. 



War and Private Property on Land. 37 

should no longer be demanded from the same place in addition 
to requisitions, unless it is by way of a fine for some violation 
by the inhabitants of the laws of war or the order of the occupier. 
For a belligerent exercises a severe penal law of his own, and 
where he resorts to retaliation against an unscrupulous opponent 
or to punishment for offences against his legitimate commands, 
he has larger rights over private property than are allowed by 
the normal laws of war. He may no longer " inflict a general 
penalty, pecuniary or otherwise, on the population on account 
of violent acts for which it cannot be regarded as collectively 
responsible." ^ But on the other hand, when the armed forces 
of the enemy violate the laws of war, or where the non-com- 
batant population in general refuses to obey the proper demands 
made upon it, the belligerent may on his side apply extraordinary 
measures to bring them to reason. Lord Roberts accordingly 
warned the inhabitants of certain districts which he had occupied, 
that " in the event of their committing any further act of 
hostility they will be treated, as regards their persons and pro- 
perty, with the utmost rigom*." ^ The imposition of fines and 
the confiscation of private property on land as a penalty for 
misconduct correspond to the confiscation of enemy property at 
sea after a belligerent has implicitly forbidden his enemy to 
trade. The actions in either case are more properly to be classed 
as forfeiture than as appropriation ; and, viewed in this light, 
they are not inconsistent with the general inviolability of private 
l>roperty. The provision that fines may be only imposed by 
a commander-in-chief provides some security to the private 
owner that the right will not be abused. 

The imposition of requisitions and contributions by an 
occupying army within certain limits may be justified not only 
by historical tradition but by the necessities of the case. Both 
reasons are almost entirely absent in a proposed extension of 
the usage to naval squadrons attacking unfortified towns on the 
sea coast. It is true that the laws of some Continental powers, 
e.(j.^ Franco, permit the State to make requisitions of its citizens 
for its naval as well as for its military forces, and if a belligerent 

' Hague Laws, oO. - Stoerk. op. tit. p. 140. 



38 Laiu of Private ProjJerty in War on Land and Sea. 

fleet were in need of supplies of food, clothing, or coal, it would 
not be open to objection if it should demand them of the coast 
towns of its enemy. The risk of being attacked while it was 
collecting its demands would be sufficient protection against the 
abuse of such a right. But the proposal that a naval force 
should have the right to demand money contributions under 
threat of bombardment can find no justification from the practice 
of land war. And in view of the published scheme of the French 
minister, Admu-al Aube, in 1882, wherein he proposed that 
armoured fleets in possession of the sea should "mercilessly hold 
the coast towns of the enemy to ransom," and of the divulged 
secret that the Bussian fleet at Vladivostock intended in 1878, 
in the event of war with England, to sail to tlie undefended 
Australian ports and lay them under contribution — it is a 
practice which should be directly prohibited by the Hague 
Conference when it draws up the laws of war on sea. It 
practically amounts to the systematisation of pillage, and is 
directly repugnant to the Hague law forbidding pillage on land. 
It would be a wanton confiscation of private property, and it 
can find no basis in the necessities of war. The Anglo-Saxon 
Powers who would have the greatest opportunity of employing 
such a measure of warfare have shown no disposition to approve 
of it, and an article inserted by Captain Stockton in the Code of 
Naval War of the United States, 1900, represents the better 
opinion on the subject. It prohibits the naval bombardment of 
an unfortified place, or the threat of it, " except where it is 
incidental to the destruction of military and naval establishments, 
or when demands for reasonable requisitions of provisions 
essential for the navy are forcibly resisted." 

In addition to requisitions, which are an indii'ect appro- 
priation of private property, an occupying belligerent may 
directly seize moveable private property which is immediately 
useful for war, and which on sea woidd be absolute contraband 
of war. The Hague law runs as follows : " Railway-plant, 
land telegraphs, telephones, steamers and other ships, apart 
from cases governed by maritime law, as well as depots of arms, 
and generally all kinds of war material, even thougli belonging 
to companies or to private iicrsons, are means for conducting 



War and Private Proper tjj on Land. 39 

military operations (and may be taken) ; but they must be 
restored, and the compensation to be paid for them shall be 
arranged, on the conclusion of peace." (Rule 53.) 

The German rules of war include in this category all objects 
of locomotion and such things as field glasses and printing 
presses, so that the effects of an invasion upon the usufruct 
of private property in this way may be very considerable. 
According to the text of the Hague laws, " Eailway-plant 
coming from neutral States, whether it be the property of the 
State, or of companies, or of private persons, shall be sent back 
to them as soon as possible." (Rule 54.) The protection given 
by this law is largely reduced by the qualifying words at the 
end, which practically leave the ancient right of angary un- 
disturbed. " Angary " was the name originally given to the 
rights of the Roman governor to provide himself and his suite 
with means of locomotion from the provincials ; and in inter- 
national law it came to be used for the right of the belligerent 
to seize or destroy for military purposes unoffending neutral 
property which is temporarily present in the enemy country. 
The distinction must be carefully kept between the property of 
domiciled and the property of passing neutrals in the enemy 
country. The former is regarded as identified with the enemy, 
and is subject to all the incidents of war without compensation ; 
the latter is regarded as remaining in neutral ownership, is only 
subject to the exactions which are impelled by necessity, and is 
entitled to compensation. 

Treaties permitting angary were not uncommon at the end of 
the eighteenth century, and Napoleon transported his army to 
Egypt in neutral vessels seized in French ports under this right. 
In the nineteenth century a few treaties with South American 
States have provided for compensation in case of sciziu'e ; between 
European countries this condition is well imderstood and has 
not to be specially stipulated for. An instance of the usage 
occurred in 1871, when the Germans seized and sank some 
English colliers at Duclair, on the Seine, to prevent French 
gunboats steaming up the river to assist Rouen ; and Bismarck 
in that case did not deny the general right of the neutral to 
iudemnification. In spite of the Hague law it may be con- 
jectm'ed that a belligerent would not hesitate to-day on the plea 



40 Law of Private Property in War on Land and Sea. 

of militarj' necessity to detain neutral rolling-stock, wliicli was 
passing tlirough the occupied territory, until the end of war; 
while recognising his obligation to pay compensation for his 
user. The only advantage, then, that such neutral private 
property has over that of belligerents in land war is that it can 
claim compensation for detention or destruction as of right, 
while the other only has it of grace, and may not have it at all. 

It may be added here that an occupying army can only take 
possession of cash, funds and realisable securities (" valeurs 
exigibles ") which are substantially and in fact State property. 
This certainly excludes private deposits in savings banks which 
are only under State protection, and probably debts or con- 
tractual obligations of individuals to the State of which the 
occupant secures the record. These are personal rights, and 
should not pass to the temporary sovereign unless he con- 
solidates his position by definite conquest. When this occurs, 
the conquering sovereign can justify retroactively confiscation 
which he has made in excess of liis proper powers as military 
occupant. 

Seizure in war does not give the belligerent any general legal 
right of succession to the property of his enemy, but only a 
right of user based upon grounds of necessity and self-pre- 
servation, and it extends only to things which are in de facto 
possession. In this way it is radically different from conquest, 
which does provide a jural right of succession, so that an 
occupant who becomes a conqueror succeeds to the incorporeal 
assets of the dispossessed sovereign. Property divested by an 
occupant in excess of his rights returns to the original owner, 
so far as possible, upon tlie restoration of the old sovereign 
power, by the so-called law of postliminium. Tliis is a sort of 
international equity which considers as not done, what should 
not have been done. 

Summing up we may say that the Hague laws of war on land 
deny the rights of belligerents to seize private property as a 
profit of war, and permit it only as part of military operations 
or military necessity. At the same time their recognition of 
requisitions clearly modifies the inviolability of property which 
numerous foreign publicists claim to be establislied on land, 
and which they contrast with the sun'ival of maritime capture. 



( 41 ) 



CHAPTER IV. 

COMPENSATION FOE WAR LOSSES. 

Hitherto we have examined the injuries which belligerents 
are allowed to inflict on private property. In view, however, 
of modern usage it remains to consider the final incidence of 
the loss. For the most progressive nations have shown a 
disposition during the last century not to allow the loss to 
remain entirely upon the individual originally affected, but to 
distribute it more equably over the State by a system of national 
compensation. Though the practice in this direction is only 
modern, the argument in its favoiu: goes back to the founder 
of international law. In the seventeenth century Grotius 
endeavoured to refute the opinion which held that the State 
need provide no indemnity or compensation in alleviation of 
the loss of the citizen. He pointed out that the ties of society 
which bound together the members of a political community, 
should induce the whole body to bear the burden imposed on a 
part. Yet he had to admit at the same time that the municipal 
law of nations did not give the subject a right to claim relief 
from his sovereign, however much his loss had been incm-red 
on behalf of the State. In fact, his was a bare right of nature 
or reason, which lacked even the sanction of custom. Yattel, in 
the next century, drew a careful distinction between the different 
kinds of war losses, and distinguished the subject's rights a "-ainst 
his State in respect of them. On the one hand there were losses 
caused by the enemy, on the other those caused by his own 
State ; and the latter he further subdivided into — 

(1.) Losses caused by the voluntary and dehberate action of 
the army by way of precaution or strategy. 

(2.) Inevitable accidents of war caused either by stress of 
circumstances or without premetlitation. 



42 Lcwj of Private Fropcrbj in War on Land and Sea. 

For the second class the State incuiTecl no strict obhgation, 
though, if its finances allowed, it was equitably called upon to 
give compensation to the citizen ; but for the first it was under 
a clear obhgation to give an indemnity at the close of the war. 
For example, if the army destroyed buildings or bridges, or set 
fii'e to granaries in places where the enemy were not actually 
present, it must repay the private o"v\Tiers. For these were acts 
done with the free will of the State ; torts, as it were, committed 
by it against its members, which involved liability, because 
they could not be ascribed to an imperious necessity. As 
regards losses inflicted by the enemy army the State had no 
obligation ; though here, too, if it could afford it, and especially 
if it received a war indemnity, it was equitably called upon to 
compensate the sufferer. 

These distinctions of Yattel are founded on general reason, 
and have been the basis of modern practice. They were first 
applied by the French National Assembly diu'ing tlie revolu- 
tionary wars. The National Convention of 1793, which laid 
down the modern conception of war in its relation to private 
property, declared that the State would make good all the losses 
incurred by citizens for the national defence. In this sense 
it interpreted the third principle of the French Revolution, 
" Fraternity," and gave expression to the doctrine of the 
solidarity of the State which has characterised the democratic 
Governments of Europe in the nineteenth century. In point 
of fact, it found its finances insufficient to give a complete 
indemnity to the citizens affected by the invasion of i\\Q Allies, 
but it gave substantial relief to them and ushered in a new 
practice which has been regularly followed in France. 
Napoleon, by the enormous exactions which he made in foreign 
countries, was able to compensate his own people for their 
sacrifices ; and the Government of Louis XVIII., at the end 
of the Napoleonic wars, voted from the national funds 
100,000,000 francs for the relief of the subjects' war losses, in 
addition to a sum of 40,000,000 francs which came out of the 
royal treasury. Again, in 1871 the French National Assembly, 
asserting broadly tlie principle of fraternity, proposed a law 
taking upon the State the burdens which had been imposed by 



Compensation for War Losses. 43 

the German invaders upon the French people. " Les contri- 
butions de guerre, les requisitions soit en argent soit en nature, 
les amendes et les dommages materiels dii-ects que la guerre a 
fait subir aux habitants, aux communes et aux departements 
d'une partie de territoire francais seront supportes par toute la 
nation." 

This was a comprehensive and generous proposal of the 
Assembly, but on behalf of the national credit Thiers interceded 
for and carried a more moderate resolution, granting limited 
relief to all who had suffered. In place of indemnity a 
sum of 100,000,000 francs was put at the disposal of the 
Ministers of the Interior and Finance, and in 1873 this was 
supplemented by another State grant of 120,000,000 francs. 
But it appeared that the total losses to individuals by the 
German occupation amounted to nearly 700,000,000 francs, 
of which 134,000,000 were for requisitions, 102,000,000 for 
billeting troops, and 29,000,000 for contributions. Many 
losses, therefore, could only be partially compensated. Those 
who had advanced contributions on behalf of the community 
were repaid in full, and it was laid down in the French Courts 
that it was tlie law of the land that payments, whether in money 
or kind, by individual citizens, when demanded by a properly 
commissioned officer of the enemy, were to be considered as 
made for the general body, and were not losses incidental to 
war for which the subject could not claim redress.^ In default 
of payment by the invader, his o^vn State was pledged to 
indemnify him, and to the same effect a law was passed in 1877 
pledging the responsibility of the State for requisitions made on 
French soil by a French army. In their disposition of the 
relief granted by the Assemblies of 1871 and 1873 the French 
drew no distinction between their own subjects and domiciled 
neutrals who had suffered by the invasion, and therein thoy 
offered a splendid contrast to the German Government, which 
refused to give any compensation to the Swiss at Strasburg who 
had suffered by their bombardment. Despite the enormous 
indemnity which they received from France, the Germans gave 

' Cf. Dalloz, Jurisprudence, Supplement, Vol. XV. p. 4;')7 ff. 



44 Law of Private Property in War on Land and Sea. 

compensation only to persons who were domiciled on Grerman soil 
in 1871, and of these to subjects of those neutral States only 
who promised reciprocal treatment in a similar case. Bismarck 
refused compensation to Grermans settled in France who had 
suffered by the war, and who, of course, could get no relief 
from the Government of their domicile, on the ground that if 
citizens carried on business abroad they must take the risks of 
losses as well as the prospect of greater gains which such trade 
offered. 

France, then, has shown the way towards a more generous 
usage and a fuller recognition of the solidarity of the State ; 
while Prussia, from motives of policy, in 1866 indemnified in 
part the subjects of Saxony, upon whom it had imposed requi- 
sitions during the war, and in the Franco-German war 
recognised, though grudgingly, the duty of the State to pay 
back to its own citizens some of their war losses. 

The most generous practice, however, hitherto recorded is to 
be found in England's conduct towards the conquered Boers 
after the South African war of 1900 — 1902. Here was not so 
much a case of a country compensating its own loyal citizens as 
of a victor charging itself to relieve the conquered subjects. 
And her action in this way forms a fitting pendant to England's 
general conduct of war on land, which has always been most 
progressive and regardful of individual rights. By the 
Treaty of Yereeniging she covenanted to set aside the 
sum of 3,000,000/. for repatriating the Boers, and beyond 
this " to allow all notes made under Law 8 of 1900 of the 
South African Republic, and all receipts given by officers on 
the field of the late Hepublic or under their orders, to be pre- 
sented to a Judicial Committee, and if such notes and receipts 
are found to have been duly issued in return for valuable 
consideration they will be received by the Commissioners as 
evidence of war losses, and will give a right to compensation," 
In other words, England took on herself to honour not only the 
obligations of her own officers, but those of the enemy's officers. 
She followed here the example set by Italy in Lombardy 
in 18o0; but Italy's action was perforce, whereas hers was 
voluntary. 



Cominnsation for War Losses. 45 

As regards other precedents of conquest, the United States 
Government had refused to give any compensation for the 
damage caused in Alabama by Shearman's raid, and Germany 
had refused to compensate Danish subjects for requisitions in 
Schleswig-Holstein after the war of 1863 — 1864. England's 
action was then a forward step in the recognition of State re- 
sponsibility for war losses, all the more remarkable in that it was 
an obligation which was assumed as an Imperial one by the mother- 
country, whose taxpayers were called upon to pay 4,500,000/. 
sterling for the exactions of the contending armies upon 
conquered subjects thousands of miles away ! Nor did England's 
generosity stop at the payment of requisitions. The Government 
made a voluntary gift of 2,000,000/. towards relieving the other 
war losses of loyal subjects and neutrals, excluding only from a 
share of this subvention limited liability companies and large 
firms. It has been said that " Solomon himself, even if backed 
by the purse of Fortunatus, would probably make more enemies 
than friends if he had to give compensation for war losses,"^ 
And doubtless the commissioners did not satisfy everybody in 
their adjudication of the money. Over two thousand claims 
of foreigners alone were considered, and, though claimants only 
received a dividend, the compensation paid to conquered subjects 
and strangers was greater in proportion to the loss than that 
paid by the French Government to theii- own subjects in 
1871. 

England's generous example in the South African war can 
hardly be regarded as a precedent for future international usao-e, 
for few other nations would pursue so enliglitened a policy 
towards theii* late enemies. But at the same time, taken in 
combination with the French practice during the nineteenth 
century and other indications, it shows that tlie State is now 
willing to assume part responsibility for the war losses of 
subjects, to compensate them fidly for regular exactions, and, so 
far as it can, for exceptional damage. The habit of compensa- 
tion may be considered as the recognition in national law and 
policy of the modern international conception of war which is 

' Bcale, Aftcrmatli of War. 



46 Law of Private Proijertij in War on Land and Sea. 

embodied in the laws drawn up by the Hague Conference. 
Just as the belligerent must direct his attack upon the State 
and not on the citi2;en, so each nation itself must at the end of 
war make the burden of loss as far as possible national, and 
reinstate private persons in their property. Viewed in relation 
to the broad curi'ents of political development in modem times, 
it illustrates the introduction of State Socialism into the sphere 
of war and international law. The solidarity of the nation, 
which in the Middle Ages justified the destruction of the 
property of the individual enemy subject, now has as its 
corollary the compensation of the individual by his own State 
for losses incurred on its behalf. 



( 47 ) 



CHAPTER Y. 

WAR AND COMMERCE BETWEEN BELLIGERENTS. 

Besides its interference with private property in the way of 
destruction and appropriation, war affects the production of 
wealth between enemy subjects ; for the general law of nations 
is taken to put a stop to all intercoui'se between them on the 
outbreak of war. Bynkershoek stated the principle which since 
his time has been considered binding : " Ex natura belli 
commercia inter hostes eessare non est dubitandum." The 
reason of the law is that it is incongruous for States to be at 
war and their citizens to continue theii' ordinary peaceful 
intercourse, which may in^■olve mutual service and enrichment. 
The aim of a belligerent is to weaken his enemy by every 
possible means, so as to impair his powers of resistance ; if he 
had the power he would prohibit all trade with him altogether. 
For commerce provides the sinews of war either directly, by the 
supply of war material, or indu'ectly, by the creation of wealth. 
The former kind of commerce the belligerent, in view of his 
overbearing necessity, has a right to interdict altogether against 
neutrals and his own subjects alike. The latter he forbids by 
his sovereign power to his subjects, to his enemies Jure belli; 
but except as a part of military operations, i.e., by siege or 
blockade, he cannot enforce the prohibition on neutral subjects. 
A further reason for annulHng contracts between enemy 
subjects is that the alien enemy has no locus standi in the 
Courts during war: he is ex lex, outside the law, and cannot 
sue on any contracts or torts either personally or by attorney 
during hostilities. 

It is through his municipal law that a belligerent sovereign 
enforces these rights against his subjects, and he may, in his 
own interest or with a view to obtaining certain commodities, 
or, again, by way of comity, exempt by royal licence specific 
kinds of trading, or all trading for a limited time from the 



48 Law of Private Froperbj in War on Land and Sea. 

general prohibition. " Prout e re sua subditoriunquo siiorum 
esse censent principes," as Bynkershoek says. But otherwise 
the prohibition occurs de facto on the outbreak of war. The 
English Government waived its strict rights at the opening 
of the Crimean war, when, by an Order in Council after the 
declaration of war, six weeks were given to all vessels trading 
with the enemy to load and depart, and all trade and contracts 
between enemy subjects which could be carried out dm'ing that 
time were held to be valid. ^ 

The illegality of trading with the enemy was not at first 
recognised by the English common law ; but Lord Stowell's 
judgment in the case of Hoop- was taken as authoritative, and 
from this time the doctrine of the Admiralty Court, which had 
always maintained the illegality, may be considered to liave 
been incorporated into the general law of the country. 
The effect of the law is : — 

(1.) That any goods seized after the outbreak of war by 

an Eughsh cruiser, which prove to be proceeding to 

or from an alien enemy trader, are confiscated to 

the captor. 
(2.) That any contract made upon such trading is illegal 

and invalid, and will not be enforced by the Courts 

either during or after the war. 
(3.) That all contracts made between people residing in 

the belligerent countries are void. 
A theoretical exception to this last rule exists in favour of 
contracts arising out of the state of war, as ransom bills given 
by the master of a captured merchantman to his captor in con- 
sideration of release;^ but as these transactions have been dis- 
coimtenanced by all the chief European Powers during the last 
century, they need not be seriously regarded. Apart from 
contracts arising upon trade between enemy subjects, war 
theoretically dissolves all executed and all executory contracts 

* Cleraentflon v. Blessig, 11 Exch. 135. An indulgence of this nature will 
probably be the rule in future, in order to avoid ruinous interference with half- 
completed transactions. 

* 1 C. Rob. 19G. 

3 Cf. Comu r. Blafkburae (1781), 2 Doug. GIO ; Snow, p. 310. 



War and Commerce between Belligerents. 49 

existing between them, which require further acting upon 
(luring hostilities, and suspends all executory contracts which 
do not require to be acted upon, the rights of the parties 
reviving at the termination of hostilities. There are in modern 
practice several exceptions to this rule which will be examined, 
but the general law holds good, that where the nature of the 
contract is inconsistent with suspension the effect is to dissolve 
the contract and absolve both parties from the further perform- 
ance of it. The leading case on the subject is Esposito v. 
Bowden.^ A neutral ship had been chartered in 1854 to 
proceed to Odessa and there load a cargo for English freighters. 
Before the ship arrived, war had broken out between England 
and Russia, and the contract could not be proceeded with, without 
involving a trading with the enemy and possible forfeiture of 
the cargo upon that ground. It was held, therefore, that 
though the contract was with a neutral shipper it was dissolved 
by the outbreak of war, being of a nature which did not permit 
of suspension. 

In the struggles at the beginning of the nineteenth century, 
when the prize law of England and the United States was for 
the most part built up, the rule against trading with the enemy 
was applied mth very great severity; with such severity, indeed, 
as occasionally to defeat the true purpose of the law and to lose 
any rational justification. There was great bitterness between 
the parties in those wars, which were struggles for existence 
and self-preservation, and this feeling tended to the undue 
extension of belligerent rights. But beyond this, it was the 
policy of Governments then to offer every possible encourage- 
ment to privateers so as to destroy the enemy's commerce, and 
in order to effect this object it was regular for Prize Courts to 
press the law in favour of the captors. The onus of proving 
innocence was heavily laid upon the owners of the vessel or 
cargo. A modern Court might agree that no specious sale to or 
from a neutral should save the subject's goods from confiscation 
if the transaction was in fact and substance a trading -with an 
alien enemy.- But it would hardly approve of the reasoning 

> 24 L. J. Q. B. 210 ; 4 E. & B. 7G3. 
'^ Jongo Pietcr, 4 C. Rob. 79. 



50 Laiv of Private Property in War on Land and Sea. 

by which country in the military occupation of the enemy 
was for purposes of trade regarded as enemy country, and 
goods in transit between it and England were confiscable.^ 
Harshest of all were the American sentences against property 
which a subject shipped on the outbreak of war from the 
enemy country in which he had been domiciled to his own 
land ; ^ and against property which an American domiciled in 
the enemy country had shipped to his own country for com- 
mercial [purposes before the declaration of war had been 
made, but which was intercepted after hostilities had broken 
out.' This verdict of a majority of the United States 
Supreme Court was an application of the letter which entirely 
defeated the spirit of the law, and almost a rcdudio ad 
ahsurdum ; for it amounted to impoverishing loyal subjects who 
in the interests of their country's trade had migrated, without 
giving them the option of showing whether in changed circum- 
stances they would return to their country of origin. As 
Marshall, C. J., in his dissenting opinion said, " Reason and 
justice required that question to be left open to be decided before 
the goods were condemned." 

A large part of the authority about trading with the enemy 
is really obsolete, but imfortunately, being embodied in case 
law, it has not been swept away. But it applied to times when 
privateering was regular and looked on with favour. By the 
Declaration of Paris, wliich abolished privateering, circumstances 
have radically changed. The same International Declaration 
has also exempted from capture all goods carried in neutral 
vessels save contraband of war, and the rights of the belligerent 
against the property of his own subjects are limited accordingly^ 
together with his rights over the property of his enemy. 
Previous to the Declaration, during the Crimean war, all trade 
between subjects and enemies, save contraband and blockade 
trade, was allowed by the three belligerent powers so long as it 
was conducted in neutral bottoms ; and since the Declaration 
the right to confiscate is barred under these conditions. 

' Blackburne t'. Tliompson, 3 Campbell, Gl. 

- The Rapid, Snow, p. 288 ; 8 Cranch, 165. 

- Tlie Venus, 8 Cranch, 53. 



TF«r and Commerce hetiveen Belligerents. 51 

The tendency in certain Continental nations is to legalise 
such commerce generally, on the ground that it will yield a 
balance of advantage to the country. By German law, a 
license to trade is presumed, and explicit notice is required to 
forbid specific kinds of commerce. But contraband trading, of 
coui'se, is always prohibited, and the participation of a German 
citizen in the Morgan (English) war loan to France in 1870 
was held illegal and invalid. In France and England the older 
principle prevails that all commerce is interdicted by the mere 
declaration of war, and that special licenses are required to 
permit any limitation of the rule. Both nations granted a 
general license to all trade during the China war of 1860, but 
the circumstances were exceptional. In theory the prohibition 
of communication extends to postal or telegraphic con'espond- 
ence (cf. Despagnet, Droit des Gens, 715 E.), but it may be 
presumed that correspondence would not be severely restricted, 
unless it was suspected of being concerned with military secrets. 
It is interesting to note that in the only prize case which was 
decided in tlie South African war ("The Mashona"), the 
Supreme Court in the Cape condemned the cargo of English 
merchants destined for the Transvaal, including goods con- 
signed to domiciled neutrals, on the ground that it offended 
against the law of trading between enemy subjects.^ 

The old law in regard to contracts made upon trade or other- 
wise with enemies appears also to remain good in England and 
the United States, save for certain modifications necessitated by 
new economical conditions. It is most clearly illustrated by 
the rules governing maritime contracts. Thus, an insurance of 
a vessel or cargo made with an English company cannot be held 
to cover captm'e by an English cruiser during war with the 
country of the insured owner. This was decided originally in 
the case of Furtado r. Eogers (C. P. 1802),- when Lord Al- 
vanley, C. J., held that " the insurance was illegal, because it is 
in contravention of his Majesty's object in making war, which 
is by the capture of the enemies' property and by the prohibition 

' The case is reported in the Journal of the Society of Comparative Legisla- 
tion, N. S. Vol. II. 32G-341. 

■ 3 Bos. k Pull. 191 ; Snow, p. 303. 

4C2) 



52 Luiv of Private Property in War on Land and Sea. 

of any beneficial intercourse between them and his own subjects 
to cripple their commerce." The insurance is in fact a protec- 
tion and enrichment of the enemy, and, even if the money is 
not payable till the end of the war, the encouragement to trade 
may have produced an adverse effect during liostilities. 

The guiding principle is stated in Bynkershoek: "Hostium 
enim pericula in se suscipere quid est aliud quam eorum com- 
mercia maritima promovere ? " The judgment of the House of 
Lords in Janson and Driefonteiu Mines Co.^ suggests that the 
old law about insurance is still valid, but will be strictly limited 
to insurance covering losses of the king's enemies dming the 
war itself ; i.e., it will not extend to acts done in contemplation 
of war, and the policy is valid to cover any losses incurred by 
the insured tlu'ougli the action of a sovereign wlio is preparing, 
but has not declared, war against this country. In this case 
gold commandeered by the Transvaal Government was held 
properly insured. " It is war, aud war alone," said Lord 
Halsbury, " and not the probability of war, wliich makes trade 
illegal." 

This decision is to some extent a correction of the judgment 
in Aubert v. Gray,- justified by the different conditions of land 
and naval war. In the case just cited it was held that an 
embargo placed by the Government of the insm-ed owner for 
pm-poses connected with imminent hostilities against the Govern- 
ment of the insui'ed was not within the policy. For in naval 
war a precautionary embargo laid on hostile ships is — or rather 
was at the time of the decision — retrospectively tm-ned into a 
valid capture of enemy property by the outbreak of war. (Of. 
"The Boedes Lust." ^) Hence it can be considered as an act 
of hostility, and not covered by an insm'ance contract between 
enemy subjects. This is not the case with commandeering on 
land, nor with an embargo laid upon neutral vessels, which, 
therefore, are incidents properly covered by English policies, 
unless they contain special warranty against detention."* 

' (1902) A. C. p. 484 fF. 

2 3B. &S. 163. 

» Snow, p. 249 ; 5 C. Rob. 245. 

♦ Cf. Robinson v. Alliance Insurance Co., (1904) A. C. 489. 



War and Commerce hetiveen Belligerents. 53 

The law of charter-parties in war time is analogous to that of 
marine insurance.^ Any charter-party which becomes illegal 
by war, i.e., which involves the transport of English goods to an 
enemy port or vice vena is dissolved ; so, too, is one which 
compels the ship of a subject to enter the port of an enemy, and 
thus makes it liable to confiscation. Even though the charterer 
is a neutral and his goods are neutral, the master has the right 
to dissolve the contract, for he runs the same risk of capture. 
In the case of " The Teutonia,"^ it was held that the contract of 
a German shipowner to deliver goods to Dunkirk was dissolved 
by his reasonable (though eiToneous) belief that war had broken 
out between his country and France. Nor can a shipmaster 
recover his freight, if he carried the goods of an English 
merchant to the agreed destination, on the release of his vessel 
from an embargo laid upon it by the Government as a measure 
of hostihties. This was held in the case of Tonteng v. Hubbard,'^ 
where a Swedish vessel had been detained, and afterwards trans- 
ported English goods as agreed. 

In regard to contracts, then, which are or require to be acted 
upon dmiug war, or profess to cover the effects of war, it is clear 
that they are not valid between enemy subjects, and are there- 
fore dissolved. It is only reasonable that English commerce 
should not be endangered or hostile commerce safeguarded by 
contracts of these two kinds, and neutral shippers or owners of 
cargo have no preference over belligerent where English cargo 
or English ships are concerned. The considerations, however, 
are different with executed contracts which do not require to be 
acted on during the war. Here there appears no good reason 
why war should do more than suspend the rights of the parties 
without annulling the contract, till they are in a position to sue 
again in the courts of one of the belligerents. This, in fact, is 
the general principle of modern usage. Except in the case of 
the American civil war, where tlie situation was aggravated 
because one of the belligerents was regarded as a rebel State, 
contract debts are not now regarded as confiscated by war. 

' Cf. Carver, p. 280 ff. 

- Suow, p. -JoO; I P. C. R. 171. 

^ 3 B. & P. 291. 



54 Law of Private Property in War on Land and Sea. 

A subject of the belligerent can in his own courts actually sue 
an enemy subject during- war upon them, and in this case the 
latter in his absence can have all the necessary means of defence, 
e.g., representation by attorney. This was held in the American 
case of Dorsey r. Kyle,^ on the ground that it was not against 
public policy for a creditor to proceed against the property of 
an alien enemy debtor by attachment or otherwise. He has all 
the usual remedies against a non-resident debtor. When an 
English creditor could get execution against the property of his 
enemy debtor, he might do so during hostilities. Otherwise his 
right revives at the end of the war.- But the right of an enemy 
creditor does not revive till the end of the war in any case, and 
the better opinion is that the Statute of Limitations does not 
nm during war. (Hanger i\ Abbott.^) The English autho- 
rities, semb/e, are the other way. (Cf. Anson on Contracts, 
10th ed. p. 220, and Lindley on Companies, 6th ed. p. 83.) 
The only case, however, upon the point is De Walsh v. Braune.* 
There, a married woman during the Crimean war claimed a right 
to sue for debt as o^feme sok, while her husband was a domiciled 
enemy in Russia, on the ground that he would be barred by 
statute on his return. Bramwell held " the inconvenient operation 
of the Statute of Limitations is no answer and does not take the 
case out of the general rule." This is only an obiter diction and 
probably would not be upheld now in view of the later and 
more reasonable American practice. 

Where a contract, though not necessarily requii'ing to be 
acted upon during the war, could not be resumed at its termina- 
tion in the same position as it stood when broken off, it is held 
to be straightway dissolved. Tliis is done to avoid injustice to 
one or other of the parties. Thus, commercial partnerships 
between citizens of two States are dissolved by the breaking out 
of war between those States, and the declaration of war itself 
furnishes the necessary legal notice of such dissolution. (Cf. 
Griswold V. Waddington.*) As Spenser, J., said there : " the 

' Amor. Decisions, Vol. XCVI. •' G Wallace, 532; cf. p. 9, aupra. 

p. 617, &c. * 25 L. J. N. S. Ex. 343. 

= Ex parte Bou88maker( 1806), Snow, * Snow, p. 274 ff. ; 16 Johnson, 57. 
V. 2H7. 



War and Commerce lehveen Belligerents. 55 

state of war creates disabilities, imposes restraints, and exacts 
duties altogether inconsistent with the continuance of the rela- 
tion . . . and the rule prescribed by Roman law is applicable : 
Si alicujus rei societas sit et finis negotio impositus est, finitur 
societas." There are, however, certain cases on the border-line 
where it is not quite clear whether it would be fairer to allow 
the contract to stand or to dissolve it ; upon these the decisions 
vary, though the tendency in modem times is to uphold them. 
In the case of a life insurance contract, when premiums have to 
be paid from year to year on pain of forfeiture of the policy, a 
majority of the United States Supreme Court held in 1876 that 
the outbreak of war which made the payments impossible 
between enemy subjects annulled the policy,^ and did not permit 
of its revival at the completion of hostilities; "though the 
insurer has an equitable light to have the amount of the 
premiums already paid up, subject to a deduction for the value 
of the assurance enjoyed by him while the policy was in 
existence." Two of the judges, however, dissented from this 
decision on the ground that : "When the parties to an executory 
money contract live in different countries, and the Governments 
of those countries become involved in public war with each 
other, the contract between such parties is suspended dm-ing 
the existence of the war and revives when peace ensues. And 
that rule in our judgment is as applicable to the contract of life 
insurance as to any other executory contract." 

A decision in accordance with this view had been given in the 
Kentucky Supreme Court in 1869, in the case of the New York 
Life Insurance Co. i\ Clopton,- when it was declared that a 
contract of life insurance is not dissolved against technical 
enemies even thougli the last three premiums were not paid. 
The judge considered the rule laid down by Lord Ellenborough 
in Brandon v. Curling," which, extending the dissolution of 
contracts to insurances of all enemy persons and property, stated 
that a policy should not extend to cover anij loss happening 
during hostiKtios between the country of the assured and the 

> Cf. New York Lifo Insurance Co. * 7 Bush. 179; cf. Cohen v. New 

V. Stathem, Snow, pp. 278—282 ; 93 York Life Ins. See, 50 N. Y. 641. 
U.S. Ttep. •.>!. ' 4 Eu.st. 410. 



56 Laio of Private Property in War on Land and Sea. 

assurer. But he refused to follow it on the ground that it was 
unfair and unnecessary in the case of an insurance on property 
or persons exempted by law from the belligerent power. In 
other words, he was of opinion that the new conception of war 
which makes it primarily a relation between States affected 
contracts between enemy subjects. He held, too, that con- 
tinuing performance was not essential to a life insurance, and 
awarded the claimant the payment of the policy loss the amount 
of the three unpaid premiums. This is only one of several 
examples of the relaxation of the rule against intercourse 
between enemy subjects which were provided by the United 
States Courts after the civil war. No doubt the cu'cumstances 
Avere peculiar, because many individuals in the closest relation 
and kinship with subjects of the Federal States had become 
technical enemies for a time in vii'tue of residence within the 
area of the Confederates' authority. At the end of the war 
they returned to their old condition, and the Courts in some 
States showed themselves as unwilling after the war as they 
had been willing during the war to press against them the full 
rights of a belligerent State. 

These decisions, therefore, cannot be accepted as certain 
precedents because of the special circumstances ; nevertheless 
the practice and dicta of the United States Courts mark a 
definite change in the attitude to contracts between enemy sub- 
jects made before war, when those contracts do not in fact imply 
any actual enrichment or strengthening of the enemy during 
the continuance of the war. The new commercial conditions 
of the world demand that war shall not interfere with the 
incorporeal any more than with the corporeal private property 
of belligerent subjects, save when the ujiholding of a right of 
action would add to the secm-ity or strength of the enemy 
during the contest, as in the case of marine insurance con- 
tracts. The extent of prohibition and the tendency to limit 
the area of restriction were well expressed by Gray, J., in the 
case of Kershaw and Kelsey,^ when he held that as between 
lessor and lessee there was not necessarily trading between 

' Cf. Snow, p. 295 ; 100 Massachusetts Reports, 561. 



War and Commerce hettveen Belligerents. 57 

enemies, and that covenants which implied trade made by them 
during war were in certain cases valid : 

" The law of nations as judicially declared prohibits all 
intercourse between citizens of two belligerents which is 
inconsistent with the state of war between their countries ; 
and this includes . . . any act or contract which tends 
to increase his resources, and every kind of trading or 
commercial intercom'se, whether by transmission of goods 
or money, or by orders for the delivery of either between 
the two countries, directly or indirectly, or through the 
inters'ention of third persons or partnerships, or by con- 
tracts in any form looking to or involving such transmission, 
or by insurances upon trade with or by the enemy. 
Beyond the principle of these cases the prohibition has 
not been carried by judicial decision. The more sweeping 
statements in the text books are taken from the dicta which 
we have already examined, and in none of them is any 
other example given than those just mentioned. . . . 

" At this age of the world," he continued, " when all the 
tendencies of the law of nations are to exempt individuals 
and private contracts from injury or restraint in con- 
sequence of war between their GTovernments, we are not 
disposed to declare such contracts unlawful as have not 
been heretofore adjudged to be inconsistent with a state of 
war." 
The war in South Africa pro^dded examples of a different 
kind of relaxation of the rule about contracts between enemy 
subjects which, however, manifests the same spirit. It dealt 
with the relations of limited companies — a sphere of law which 
continually increases in importance, and in which the effect of 
war has not yet been clearly determined. Here again the 
special circumstances of the war preclude us fi'om accepting the 
English usage as authoritative for all times and countries, but 

it affords at least an indication that in dealing with the trading- 

... ^ 

rights of companies, a belligerent will take account of the real 

natui-e of the shareholders' position rather than of their technical 

character. Theoretically the rights of shai'eholders in a limited 

company are contract rights, and war should dissolve the con- 



58 Latu of Private Propertij in War on Land and Sea. 

tracts wliich exist between either an enemy shareholder and an 
English company, or an English shareholder and an enemy 
company ; seeing that they involve (technically) a continuing 
liability on the one side for calls on the shares, and an obligation 
on the other to pay a half-yearly or yearly interest, to say 
nothing of the shareholder's nominally continuing right to help 
in the control of the business. Some English authorities have 
accepted the strict technical view of a shareholder's contract, and 
approved accordingly the application of the ordinary laws of 
war. Lord Lindley, e.g.^ is of opinion that the rights and 
liabilities of an enemy member of an incorporated company are 
suspended during the war.^ Dr. Baty goes so far as to suggest 
that they should be abrogated altogether at the outbreak of 
war, allowing the holder only an inchoate right to a share 
of the company's assets at that moment.- lie advances the 
doctrine on the analogy of the effect of war upon partnerships, 
faihng to realise the real difference between the two sets of 
conditions. Mr. Chadwick, in an article which appeai'ed in the 
*' Law Quarterly Eeview," points out that shareholders differ 
fi"om partners in the following among other points : — ^ 

(1.) Their limited liability. 

(2.) Their absence of real control over the concern, wliich is 
practically in the hands of directors. 

(3.) In being members of a corporation, which is a distinct 
legal person. 

These differences suggest that there should be a difference of 
treatment in the event of war, and this suggestion is supported 
by the consideration of the enormous inconvenience which Avould 
ensue in case of the abrogation of their rights, "an incon- 
venience far greater than the hypothetical injustice caused by 
their remaining members and continuing their liability." And 
apart from the consideration of expediency it may be pointed 
out that shares in a company, though technically contractual 
rights, are substantially and in fact rights of property, and 
viewed in this light they cannot be confiscated at the outbreak 

* Treatise on Companies, p. 63. 

» Int. Law in South Africa, Chap. VI. 

3 C£. L. Q. R. Vol. XV. p. 170, etc. 



War and Commerce between Belligerents. 59 

of war. For belligerents have now resigned the power they 
once exercised of seizing the property of alien enemies in their 
own temtory, and this rule must equitably extend to incorporeal 
property. 

The law, as Lord Stowell once said, looks to the fact and not 
to the fiction, and in fact shares are property. The only change 
which is logically rendered necessary in the position of share- 
holders of public companies is the suspension of payment of 
interest till after the war. Nor need suspension imply dis- 
continuance, for the interest (if any) might be allowed to 
accrue till the end of hostilities. In the eighteenth century it 
was recognised that holders of stock in a public debt of an 
enemy country should receive their interest even during the 
war, and it is perhaps equally reasonable that shareholders 
should take theii' interest from an alien enemy company even 
during the war. Moreover, the desirability of giving security 
to foreign investors even in times of war is almost as great in 
the case of big trading corporations as in the public funds. To 
attract foreign capital to big business enterprises, it is necessary 
that it should not be endangered by the outbreak of war 
between the country of the investor and the country of the 
company in which he invested his money. It may be other- 
wise with a company which provides a belligerent with the 
means of war ; for in such a case it is inexpedient that an 
enemy subject should assist its operations, in however small a 
degree, by retaining his capital therein. But ^^dth ordinary 
public commercial imdertakings this consideration does not 
apply, and to these the principle of the " Silesian loan question " ^ 
might be applied. 

So, too, there seems no reason, in view of the conditions of 
modem finance, for applying to enemy debentui'e holders an 
American decision of last century, whereby a mortgagee could 
not sue for arrears of interest accrued during hostilities.- The 
ground of this decision was that the creditor could not have 
recovered liis principal during the war and therefore was not 
entitled to his interest. Even if we accept the argument, it 

' See above, p. 8. 

- Hoaro v. Allen, 2 Dallns, lOJ. 



GO Law of Private Projmif/ in War on Land and Sea. 

would not apply to interest due until the loan matured, because 
the right to such interest vested in fact before the war began. 
Again, in the case of perpetual debenture stock, interest should 
run during the whole war, and be payable upon the completion 
of hostilities, if the company has adequate receipts. 

All that is required by the prohibition of commercial relations 
between enemy subjects during war is that payments should not 
be made during hostilities which could aid the enemy State in 
his struggle. The structure of modern commerce, and the vast 
number of companies which comprise shareholders of all nations, 
demand that the old thumb-rule about the abrogation of 
executory contracts, which was never meant to apply to these 
new circumstances, should not arbitrarily and unreasonably be 
extended to them. The interests of England, whose people 
has so much capital invested in foreign companies, would be 
severely prejudiced if such a scheme as Dr. Baty suggests, or 
even the rule of Lord Lindley, were universally adopted against 
us in case of war. In cases of private companies only, when a 
director is a domiciled, or a natural, enemy subject, it would 
seem desirable to rescind his rights and give him an equitable 
compensation at the outbreak of war, or if necessary wind up 
the whole concern ; for the director of a private company is very 
much in the position of a partner. The article in the treaty 
between England and the United States of 1795, " that neither 
debts due from the individuals of one nation to another, nor the 
shares nor the monies which they may have in public funds or 
in private or in public banks shall in any event of war be 
sequestrated or confiscated," might well be extended now to the 
shares in public or private companies. And, further, it seems 
ad\isable to allow interest on shares and debentures held by alien 
enemies to run during Avar, even though it be not paid till the 
end of the war ; and in retiu'n to maintain the liability of alien 
shareholders during war, unless there are special reasons against 
this. An exception would be made in favour of enemy share- 
holders when some peculiar hardship would result. Hero the 
Courts might grant equitable relief and give the holder the 
estimated value of his share before war. Postponement in the 
place of confiscation seems to provide the solution required by 



War and Commerce between Belligerents. 61 

new commercial conditions. The treatment of companies during 
the Transvaal war points, at any rate, to a new custom, even 
though the precedents cannot be pressed ; because in this case 
the companies, though nominally enemy, were largely British 
in membership. 

There was no insistence in our courts upon the forfeiture of 
membership by English shareholders in companies incorporated 
in the Transvaal ; and, in fact, the Driefontein Mining Company 
repaid to English creditors without protest, during the war, the 
instalments of a loan incurred before it. Further, the Grovem- 
ment, as successor to the Transvaal Government, paid all arrears 
of debenture interest to English shareholders of an enemy 
company, viz., the Pietersburg-Pretoria Railway Company, Ltd., 
at the end of the war. The desire for stability of commerce 
and maintenance of credit will, no doubt, in future induce all 
Governments to make the suspension of private rights in war 
time as small as possible, and to insist on abrogation only 
when it is clearly necessary. The basis and the purpose of the 
belligerent's prohibition of commerce between enemy subjects is 
to weaken the enemy, or at any rate to prevent his power of 
resistance being increased by any act of his own people. In cases 
where these ends are not advanced there is no reason to prohibit 
trading, or to annul contracts. And so delicate is the organism 
of modern commerce that all gratuitous interference \a\h. it 
should be avoided. The harm done to national prosperity by 
sweeping restraints on trade may far outweigh the harm done 
to the enemy. 



( 62 ) 



CHAPTER VI. 

THE EFFECT OF CONQUEST ON PRIVATE PROPERTY BY LAND. 

It has been shown that the Roman and medlteval theory of 
conquest involved the complete forfeiture of all private property 
by the conqueror, who obtained full dominion over the con- 
quered territory. The law of force was permitted to reign 
after the termination of hostilities, or rather, conquest was 
considered to amount to a new acquisition. Grotius^ recognises 
the right of the conqueror to take the land of the conquered ; 
but he marks an advance upon the old theory of complete for- 
feiture arising straightway out of the existence of war, when he 
declares that such appropriation must be made by the State and 
not by the individual ; and, further, he establishes a dis- 
tinction between the well-established conqueror and passing 
military occupier, and does not concede to the latter a right of 
expropriation. Yattel- marks a further appreciation of the 
right of private property. He admits that the victor may 
retain as an " expletio juris " so much moveable private property as 
will satisfy his just claim ; but when he takes a town he 
cannot justly acquire over it any other rights than such as 
belonged to the sovereign against whom he has taken up arms. 
He describes as monstrous the suggestion that the conqueror is 
absolute master of his conquest, and may dispose of it as his 
property. He has rights only against the conquered sovereign 
rather than over the conquered people, and the limit of his 
proper dominion is to lay burthens on the conquered nation to 
indemnify ])imself for the expenses or damages which he has 
sustained. Similarly, Montesquieu, iii his " Esprit des Lois," 
says that not only does the law of nature counsel a moderate 

» De Jure Belli, III. vi. 11. 

- Vattel, Droit des GeuH, Bk. III. Ch. 13. 



Effect of Conquest on Private Proiierttj by Land. G3 

use of conquered land, but that conquest, being in nature a form 
of acquisition, implies, like other acquisitions, the conservation 
of what is acquired. In the nineteenth century the old title of 
conquest based on force, by which the conqueror claimed the 
lands and the moveable property of the conquered people as the 
prize of war, has been abandoned. The municipal laws of 
civilised countries have given effect to the general consensus that 
the right of forceful seizure expires at the close of hostilities, 
and, therefore, private property in the conquered land is subject 
to the law which the conqueror applies to private property in 
his own land. 

A fresh jural basis has been discovered, which is thus stated 
by Professor Westlake ^ : *' The idea of the succession of State 
to State, as an institution of international law, comparable to 
succession on death as an institution of private law." Moreover, 
the distinction between conquest and military occupation has 
now been made perfectly definite, and their effects are no 
longer confused. The condition of conquest is now considered 
to arise in two ways and in two ways only : — 

(1.) When there is a complete extinction of a State as an 
organised body performing the functions of govern- 
ment (as in the case of the South African Republic at 
the end of 1900). 
(2.) When a province of a sovereign State, already held in 
military occupation, is ceded at the treaty of peace, 
and the rights of the original sovereign are definitely 
resigned (as in the case of Port Arthur, wliich was 
ceded by Ilussia to Japan by the treaty of 11)05). 
The main principle which underhes the modern conception 
of conquest in either case is that the State in succession must 
not interfere with the continuance of ordered civilised life in the 
territory, and must disturb as little as possible the rights of 
private property. Until recently one peculiar survival of the 
old right of appropriation remained to the conqueror. Pie 
habitually claimed the right to forfeit the property of any 
inhabitants of the conquered territory who would not accept the 

' Cf. Westlako, International Law, Vol. I. p. G8 ff. 



64 Laiv of Private Property in War on Land and Sea. 

new allegiance imposed on tliem, and chose to adhere without 
special treaty stipulation to their former State. Even as late 
as 1866, in the case of U. S. v. De Eepentigny,^ it was laid down 
that, " It is a rule of public law that tlie conqueror who has 
obtained permanent possession of the enemy's country has the 
right to forbid the departure of his new subjects or citizens 
from it, and to exercise his sovereign authority to them." And 
this exercise of authority may include the seizure of their 
landed property. The circumstances of the case were peculiar, 
referring as they did to the effect of events a century back ; and 
the decision is not altogether applicable to modern times. 
Le Sieur de Repentigny had received a large concession of land 
from the French king in the French-American provinces. When 
these were conquered by the English in 1760 and ceded by tlie 
Peace of 1762, he refused to change his allegiance, and failed 
also to fulfil the conditions of a proclamation of Greorge III., 
which allowed a conquered subject to dis]50se of his land to an 
English subject, and carry off his personal belongings within 
eio-hteen months if he was not willing to change his allegiance. 
By his default the United States, as successor to the rights of 
the English Crown through the cession of Michigan in 1784 to 
them, claimed that the lands had been forfeited to the State. 

The classical case upon the old rights of the conqueror is that 
of the Elector of Hesse- Cassel,- whose kingdom was occupied by 
Napoleon I. after the battle of Jena. Napoleon remained in 
possession for seven years, and, assuming the right of a con- 
queror, he forfeited the private property of the Elector, who had 
fled from his dominion. The validity of his action was raised 
on the restoration, in 1815, of the Elector; and after long con- 
sideration the ultimate judgment of the German doctors upon 
this point was that Napoleon had in fact effected a conquest, 
and had a right as sovereign to confiscate the property of an 
enemy of the State who had refused to do allegiance. 

In modem times, however, although the conquered subject 
can hardly be considered to have a right de jure of withdrawal 
from the new allegiance, it is usual to insert in the treaty of 

1 5 Wallace, 213 ff. 

2 Snow, 381. 



Effect of Conquest on Private Propertij hj Land. 65 

peace a clause securing the liberty of the inhabitants of a ceded 
territory to retain their old nationality,^ and their right to arrange 
their affairs and dispose of their property within a certain time. 
By the Treaty of Frankfort (1871) natives of Alsace- 
Lorraine who chose to retain their French nationality were 
allowed to keep their landed property in the ceded territory. 
This liberality is again evidenced by the terms of the treaty of 
peace between Russia and Japan.- By Ai-ticle V., which deals 
with the cession of Port Arthur, " The Grovernment of Japan 
undertakes that the proprietary rights of Russian subjects in the 
territory above referred to shall be perfectly respected." And 
by Article X., which deals with the cession of part of the 
island of Sakhalien : — 

"It is reserved to Russian subjects inhabitants of the 
territory ceded to Japan to sell their real property and 
return to their country ; but if they prefer to remain in the 
ceded territory, they will be maintained and protected in 
the full exercise of their industries and rights of property 
on condition of submitting to Japanese laws and jurisdic- 
tion. Japan shall have full liberty to withdraw the right 
of residence in or deport from such territory any inhabitant 
who labours under a political or administrative disability ; 
she engages, however, that the proprietary rights of such 
inhabitants shall be fully respected." 
Here we see that the conquering Government has given up 
all the rights of forfeiture of private property in a ceded 
territory that used to be considered to belong to it. And the 
history of the development of International Law proves that 
rights first secured by treaties gradually pass into rights de jure. 
The report of the Transvaal Commissioners shows that 
the same broad principles are coming to be recognised in 
the case of State extinction.'' It is true that, following a 

' Cf. Hall, International Law, 572, this report as a standard of English 

673, and notes. usage at the present time. The 

' Cf. Stoerk's Collection of Modem appointment of the Commission and 

Treaties, Vol. XXXIII. its operations are a good example of 

3 Pari. Papers, 1901, Report of the modern treatment of private pro- 
Transvaal Concessions Commission ; perty in conquered land. 
General Principles. I have taken 

li. 5 



66 Law of Private Pvopcrtij in War on Land and Sea. 

common English attitude, the Commissioners say "that the 
principle of the immunity of private property is one of ethics 
rather than law " ; but, at the same time, they recognise 
that "the area of war and suffering should be, as far as possible, 
narrowly confined, and that non-combatants should not, when 
it is avoidable, be disturbed in their business." And in 
Ai'ticle XI. they say : — 

"In the case of the annexation of Hanover to Prussia 
(which affords the nearest parallel to the present case), a 
principle was proclaimed by the conquerors which His 
Majesty's G-overnment will imitate : ' We will protect 
everyone in the possession and the enjoyment of his duly 
acquired rights.' We are convinced that the best modem 
opinion favom^s the view that, as a general rule, the 
obligation of the annexed State toward private persons 
should be respected, subject to certain qualifications: e.g., 
an insolvent State could not by aggression, which practically 
left to a solvent State no other course than to annex it, 
convert its worthless into valuable obligations. Again, the 
annexing State would be justified in refusing to recognise 
obligations incurred by the annexed State for the imme- 
diate purposes of war against itself ; and probably no 
State would acknowledge private rights, the existence of 
■which caused, or contributed to cause, the war which 
resulted in annexation." 
These exceptions to the succession of State responsibility in 
cases of conquest seem well justified in theory and substantiated 
in practice, and must be regarded as limitations upon the com- 
plete immunity of private property after conquest. The United 
States, after the conquest of Cuba from Spain, refused to take 
over the Cuban debt, ^ which had been mainly raised by the 
Spaniards for the purpose of fighting the rebels and afterwards 
of carrying on the war against the Americans. Similarly, 
England with reason refused to recognise the sale by the 
Transvaal Government of its shares in the Netherlands South 
Afi'ican Railway Company - after the proclamation of annexa- 

» Cf. Hall, p. 98, note. 

2 Cf. L. Q. R. Vol. XXIX. Netherlands South African RaUway Case. 



Effect of Conquest on Private Property hy Land. G7 

tion had been made, A country, as Prof. Westlake has said, 
cannot pledge the credit of its enemy as well as its own in case 
of being conquered and annexed. Still less can a country 
virtually conquered do so for the purpose of carrying on a 
guerilla warfare. Before the declaration of annexation had 
been made, but when it was obvious what would be the result 
of the war, Lord Roberts issued a proclamation that " Her 
Majesty's Government will refuse to answer any promissory 
notes issued by the South African Eepublic on the security of 
the immovable property of the State that may be hereafter 
presented for payment, and expressly repudiate all liability in 
respect of them whatsoever." ^ At the date of this notice, it 
was reasonable to assume that anybody who pledged his pro- 
perty to the enemy on such security was making a personal 
contract at an extreme risk ; he had only a right in pemonam 
and not in rem whatever the form of his contract, because the 
Transvaal Government had no longer possession of the land. 
The conqueror need not recognise such rights against his pre- 
decessor which were obtained during war. 

The obligation of the conqueror to take up the national debt 
of the conquered country or province is one of the imdecided 
questions of international law. It is necessary to draw a 
careful distinction between different circumstances of conquest, 
for different usages apply in three different cases : — 

(1) When the conquering State has completely extinguished 

its rival ; 

(2) When the conquering State has acquired only a province 

from its enemy, and retains this province as a separate 
fiscal unit ; 

(3) Where the conquering State absorbs a ceded province into 

its general political and financial system. 

In the first case the ordinary national debt of the State is 

taken over by the conqueror, saving only his right, already 

mentioned, of disowning debt incurred for the purposes of war 

against him. England, cjj.^ has taken over the old debt- of the 



' Cf. Stoerk, op. cit. Vol. XXXII. 

- Cf. Transvaal Ordinance, 100".. p. 182. 

5 (2) 



6S Law of Private Projoerty in War on Land and Sea. 

Boer Republics, amounting to 2,500,000/., and also the deficit 
of the Transvaal Government for 1901 — 1902, amounting to 
1,500,000/., though as to this she had no liability. At the 
same time, a conqueror need not change the security of the 
debt, or pledge his own revenues in any way to meet the claims 
of bondholders. He is only liable to creditors so far as the 
assets of his acquisition extend, although those assets may have 
been seriously diminished by war. The British Treasury did, 
however, in fact guarantee the Transvaal Loan, which was 
taken over. 

In the second case, again, the conqueror need strictly only 
assume the local debt of the province, i.e., the debt specifically 
secured upon its land or its revenues, and this, too, only so far 
as the assets cover the obligation. Thus, if the interest be 
secured upon the Customs of the province, and these Customs, 
wliich are retained by the conqueror, do not suffice to pay the 
interest, the acquiring State is not liable for any deficiency. 
He takes, as it is said, with " right of inventory," provided 
always that he maintains in the province a separate fiscal 
system. 

On the other hand, he is under no legal obligation to assume 
the proportion of the general debt of the country ceding the 
province, which should be borne by it. No doubt moral pro- 
priety would urge him to do so, but there is no legal rule to 
bind him. European conquerors have, during the nineteenth 
century, several times given elfect to the moral claim on them 
when it suited their interest. After the cession of Schleswig- 
Ilolstein in 1866, Prussia divided the general debt of Denmark 
between that country and the ceded provinces. Italy, in the 
same year, assumed a part of the Papal debt, proportionate to 
the Papal territory she had appropriated. But the Italian 
Government assumed no part of the general debt of Austria 
after the acquisition of Lombardy and Venetia, but only the 
local debts of the ceded provinces ; and Germany assimied no 
part of the French national debt after the cession of Alsace and 
Lorraine in 1871. The interests of bondholders were, however, 
hardly prejudiced in these cases, as the defeated nation, even 
with its lessened resources', could meet all its liabilities. It was 



Effect of Conquest on Private Property hy Land. 69 

different with Peru wlien, after her war with Chili (1879 — 
1882), she was compelled to give up certain provinces rich in 
guano and nitrates. Chili was unwilling at first to take upon 
herself any part of the Peruvian debt, although this debt was 
partly secured upon these natural products of the whole country. 
But the United States, which exercises a kind of protecting 
influence over the South American States, intervened and 
brought strong pressure upon the conqueror to recognise an 
obligation which was here almost a legal one.^ Mr. Freling- 
huysen, the Secretary of State, wrote to the United States 
Minister in Peru : " If Chili appropriates the natural resources 
of Peru as compensation for the expenses of war, she should 
recognise the obligations which rest on those resources, and take 
the property with a fair determination to meet all the just 
incumbrances which rest upon it." 

In the third case the obligation of the conqueror extends to 
any liabilities secured locally, irrespective of the assets which 
he takes over. He has changed the natui'e of the seciu-ity by 
changing the fiscal system, and hence he is bound to accept 
responsibility. The United States Government, which, in the 
ease of Peru, was so eloquent about the rights of national 
creditors, defaulted itself when it incorporated the independent 
State of Texas with the Union (1843). This was indeed 
strictly a case of peaceful annexation, and not of cession or 
conquest ; but the same principles apply. The annexing State 
abolished the Texan Customs, set up her own fiscal system over 
the country, and declared that she would reserve the imappro- 
priated lands of the territory to satisfy the demands of foreign 
bondholders. But these lands proved insufficient, and the 
English bondholders brought a claim, which was decided upon 
by a mixed Anglo-American Commission of Claims (1853). 
The decision of the umpire in the matter was adverse to their 
claim, but most publicists — among them the American, Dana — 
recognised that the United States had not fairly met her 
liabilities. *' By the annexation she has changed the nature of 
the thing pledged, and is boimd generally to do equity to the 
creditor." 

' Digest of Wheaton, Vol. I. p. 369. 



70 Lmv of Private Property in War on Land and Sea, 

To sum up, we may say that, subject to his right of disclaimer 
of debt incurred for the purposes of war, a conqueror is bound 
to take over the general debt in cases of complete subjugation, 
and the local debt, either without qualification or with right of 
inventory, in cases of cession of a province. And neutral 
holders of stock of the conquered country can call upon their 
Governments to interfere if these liabilities are not accepted by 
the conqueror. The rights of enemy subjects, whether they 
belong to the territory ceded or the territory of the ceding 
State, depend upon the honour and grace of the conqueror. 

The State acquiring territory is bound generally to take over 
the contractual obligations of the previous sovereign to indi- 
viduals or corporations. But its right to disclaim contracts 
made du-ectly for the purposes of war, which is stated by the 
Transvaal Commissioners, seems to be an equitable exception to 
the rule. The English Divisional Court in 1905 ^ refused a 
petition of right in which a mining corporation of the conquered 
Transvaal sought to recover from the Crown the value of gold 
that had been commandeered in contemplation of war by the 
Boer Government, on the ground that the conqueror had no 
contractual liabilities at all. Had the decision in this case of 
the West Band Central Mines Co. v. Rex been given against 
the company on the ground that the contract claimed upon was 
one that the conquered State had made for the purpose of 
carrying on war against the British Government, there would 
have been little cause for finding fault with it. But it went 
further than this, and denied the liability of the successor on 
contracts generally. The English judges, however, seem to 
have made an unwarrantable distinction when they restricted 
the doctrine of the immunity of private property in cases of 
cession or conquest to property situated locally in the annexed 
country, and held that it did not apply to incorporeal rights or 
personal rights by contract. They were referred to, and noticed, 
Marshall, C. J.'s, decision in U. S. v. Percheman,- where it was 
said: "The people change their allegiance, but their relations 
to each other and their rights of property remain undisturbed"; 

» (1906) 2 K. B. 391. - Cf. Snow, p. 22 ; 7 Peters, 61. 



Effect of Conquest on Private Projierty hj Land. 71 

but they held that his words only applied to land property, 
the subject-matter in question in that case. 

The Transvaal Commissioners lay down a better opinion when 
they say, following the American case U. S. v. Soulard, that 
"after annexation the rights of property remain undisturbed, 
and include those rights which lie in contract."^ In that case, 
which arose out of the cession of Louisiana to the United 
States, Marshall, C. J., declared that " property is supposed to 
embrace rights which lie in contract : those which are executory 
as well as those which are executed." The Italian Government, 
after the acquisition of Venetia and Lombardy by the Treaties 
of Zurich and Lombardy, in which it undertook to satisfy all 
the local obligations of the provinces,- gave the widest possible 
interpretation to its contractual obligations as the successor of 
the Austrian Government. It offered to consider the compensa- 
tion for requisitions regularly made by the Austrians as a 
charge upon the State ; and the Coiirt of Cassation at Florence, 
in March, 1877, held that by public law the State which 
succeeds to part of the territory of another is bound, indepen- 
dently of special convention, by obligations legally contracted by 
the latter in relation to the territory. In May, 1896, the same 
Court upheld its previous principle in an action brought against 
the Ministry of Finance by a contractor for the price agreed 
upon with the Austrian Government for the execution of certain 
fortifications round Venice. The practice of Italy shows a most 
thoroughgoing acceptance of the judicial rule without any 
saving provisions based on expediency. It is very generous, but 
it is probably a little ahead of common international usage. 

The practice of England, on the contrary, shows a neglect 
of the juridical rule, combined with a half -recognition of its 
authority, and is probably a little behind international usage. 
In the terms of peace between England and the Boers she 
covenanted to devote 3,000,000/. to cover war losses, which 
included losses by requisition and sei/Aire of ]iroperty by the 
enemy State ; or, in other words, contracts made by the conquered 

^ 4 Peters' Amer. Rcpoi-t, 012. 

2 Cf. Wcstliiko, Interaatidnal Law, Vol. I. "Peace," and an article by him, 
"Title by Conquest," in L. Q. R. Vol. XXI. 



72 Lato of Private Projjerty in War on Land and Sea. 

Government. But Mr. Cliamberlain declared, in the House of 
Commons, that this was "an act of grace without admitting 
any liability." Finally, there has come the declaration of the 
Divisional Court that " there is no principle of international law 
by which, after conquest, the conqueror becomes liable, in the 
absence of express stipulation to the contrary, to discharge the 
financial liabilities of the conquered State incurred before the 
outbreak of the war .... " — the exact converse of the Italian 
Court's statement. It should be said, however, that the opinion 
of English judges is much harsher than the practice of the 
English Government, which, as has been noted, has acted with 
peculiar generosity. 

The true position of international usage at the present day 
would appear to be somewhere between the English and the 
Italian decisions. The guiding principle is that the conqueror 
who succeeds to the assets of the conquered State succeeds also 
to its liabilities, especially when they are directly connected with 
the assets. The maxim " Res transit cum suo onere " applies 
to State as well as to private acquisitions. But this principle 
should be qualified by the following exceptions : — " The successor 
is not responsible for liabilities arising from — 
" (1) The torts of its predecessor. 
" (2) Contracts for war and the costs of war."^ 

In regard to the mixture of private and public rights which 
appear in concessions, a different principle is admitted by nearly 
all publicists. The question of public policy here intervenes, 
and " their continuous existence depends upon their not being 
in conflict with the public law and policy of the annexing 
State." 2 By proclamation or otherwise the successor declares 
his public law, and calls on concessionnaires to justify their 
claims before him at some judicial process. He may modify 
them, if he thinks fit, as the English Commission did with the 
National Bank of the Transvaal.'' If they are cancelled, the 
persons interested are entitled to equitable compensation. 

1 Cf. Richards, in Law Magazine, Vol. XXVIII. p. 129 ff. 
- WcHtlake, op. cit. p. 69. 

2 Cf. Transvaal Ordinances, 1903. pp. 195, 352. 



Effect of Conquest on Private Pro^oerty hy Land. 73 

And the rule laid down by Hiiber is that " if such a corporation 
is extinguished, the new sovereign, in assigning compensations, 
must proceed as if it had already existed in his own country 
and he were now legislating for its suppression." This was 
recognised by the Transvaal Concessions Commission in its 
report. By Article II. of its General Principles, compensation 
is provided for upon this footing ; and it was given, e.g., in the 
case of the Hatherley Distillery Company when its monopoly 
was cancelled.^ 

The French claim made against Venezuela a few years back, 
that the conqueror in a civil war cannot confiscate for political 
offences concessional rights given to a domiciled neutral, cannot 
be upheld; it represents an attempt of a powerful neutral 
Government to extract more than its due from a weak conqueror. 
Legally domiciled neutrals have not better legal riglits from the 
conqueror than enemies. For the purposes of war and conquest 
rights depend, in the main, upon domicile. Tlie domicile of 
the neutral makes him liable to the same incidents as the hostile 
subject, and the conqueror will only recognise towards him the 
same liabilities as he recognises towards any other inhabitant. 
He may, however, be better situated than the conquered subject 
as regards his remedy, inasmuch as any grievance which he 
urges can be backed up by his Government, whereas the other 
depends only on the grace of the conqueror. Nor, again, have 
neutral owners of property in the conquered coimtry, though 
not domiciled there, any special legal rights. The experience 
of tlie Transvaal annexation, indeed, seems to show that special 
favour may be extended to neutral corporations as regards the 
contractual rights of semi-public character. It is, perhaps, 
unwise to regard the action of the English Government towards 
such corporations as a precedent, because it happened that in 
several of the cases the membership of the companies affected, 
which were technically neutral corporations, was largely Engli>h. 
In earlier cases it has been held that the nationality of share- 
holders does not affect the character of a company and the fate 
of its property, which are decided by its locality or place of 

1 Cf. Transvaal Ordinances, 1903, pp. 195, 352, 



74: Law of Private Properiij in War on Land and Sea. 

registration (cf. Reg. v. Annand/ a case under the Merchant 
Shijipiiig xlct). And Mr. Justice Story declared in the last 
century that " there is no legal difference as to the plea of an 
alien enemy between a corporation and an individual." ^ 

By tlie old law, then, a neutral corporation which carried on 
its operations in the enemy country would have been held by 
domicile to be an alien enemy. But the economical features of 
the world have changed since then, and make it desirable to 
pay regard to the real rather than the nominal character of 
companies in war time. The latest practice points to a change 
in this direction, but some definite pronouncement upon the 
position of enemy and neutral corporations in war is much to 
be desired. The English practice, however, so far as it goes, 
is instructive. When a concession was not considered to be 
against the public policy of England, the full succession to the 
liabilities of the Transvaal Government has been recognised by 
the new sovereign. Thus the Pretoria-Pietersburg Railway 
Co., Ltd., was formed to work a railway concession in the 
Transvaal and incorporated in London, with a capital of 
500,000/., of which 300,000/. was subscribed by the Transvaal 
Grovernment, who guaranteed the principal and yearly interest 
of 4 per cent. The Transvaal Government defaulted in 
January, 1900, and the British Government took over the 
shares which it had originally subscribed, and admitted its 
liability to pay all the arrears of interest due on debentures 
and shares as from January, 1900, when it was last paid, 
although the annexation was only made in September, 1900. 
Again, in the case of the Selati Railway Co., a Franco-Belgian 
corporation, the English Government took over the liability of 
the Transvaal Government to redeem the debentures at a 
certain rate.^ 

The English Commissioners showed a disinclination to press 
against neutral shareholders the technical enemy character 
which a company may acquire by being incorporated and 



» 9 Q. B. 801. 

2 Society for the Propagation of the Gospel t'. "Wheeler, 2 Gallison, 105. 

' Cf . Transvaal Ordinance, 1905, p. 89. 



Effect of Conquest on Private Property hj Land. 75 

registered and carrying on its operations in the conquered 
country. And Lord Lindley stated {obiter) in the Driefoutein 
Mines case that, " when we are considering questions arising 
with an alien enemy, it is not the nationality of the person but 
his place of business during war which is important." This 
gives a loophole for liberal treatment to companies which have 
their offices in England. The needs of modern commerce 
encourage as lenient a treatment as possible towards limited 
companies which are involved in the incidents of war, and this 
consideration will affect future decisions. 

It is true that the Transvaal Commissioners held that the 
property of the neutral shareholders in the Netherlands South 
African Eailway Company had been legally forfeited by the 
un-neutral service of the company's dii-ector in the Transvaal. 
But this was an extreme case of identification with the enemy 
which could not be excused. On the admission of their manager, 
the company officials had made cannon and ammunition, 
blown up bridges on English territory, and refrained fi'om dis- 
charging their staff on commando.^ " We have been," he said, 
^^ plus roijaliste que Ic roi." The Commission held that, in the 
face of such aggressive action, the rule of confiscation for 
un-neutral carriage by sea was applicable. It has been objected 
to this that the confiscation of private property or land is for- 
bidden,^ but on the other hand it may be urged that if after 
military occupation a neutral domiciled in the territory heljDs 
the enemy, his property is as liable to confiscation as that of 
any enemy subject, and such confiscation may be confirmed at 
the end of the war. It seems, then, that the decision of the 
Commission that the property of the neutral shareholders had 
been confiscated by reason of aggressive enemy service was good, 
though no doubt their recommendation to compensate boiui fdc 
neutral pm-chasers before the outbreak of war or before annexa- 
tion w^as equitably necessaiy. The English Government, at any 
rate, finally made a full recognition of the equities of neutral 
shareholders, and paid V6bl. for each share and each debenture 



' Cf . Report of Transvaal Concessions Commission ; South African Railway Co. 
- Westlake in L. Q. R. Vol. XXI. 



76 Law of Private Property in War on Land and Sea. 

of a bond fide purcliaser for value before tlie proclamation of 
annexation. 

It has been contended by Sir Thomas Barclay that the 
English Grovernment was not justified in confiscating the rights 
of purchasers of shares after that date, because the notice that it 
would not recognise any alienation of property issued by the 
High Commissioner in September, 1900, could not be regarded 
as an effective notice to the world, and because the conquest of 
the Transvaal was not complete till the Treaty of peace, 1902. 
But, on the analogy of the notice of blockade to neutrals, the 
proclamation on the annexation in September, 1900, was good 
notice to all, and it is impossible to contend that the Transvaal 
Government was carrying out the duties of a sovereign State for 
long after this declaration of annexation. England was in 
de facto possession of the whole country, and had the right to 
declare it annexed. Sales of railway shares by the Transvaal 
Government after that date come under the class of contractual 
liabilities incurred for the purposes of war which the conqueror 
is not bound to take over. 

With the exceptions here discussed, conquest to-day does not 
disturb the private property owned by either belligerent or 
neutral subjects in the conquered or ceded territory. The 
rights are not changed, but the remedies are. The new 
sovereign introduces, if he so chooses, his own laws in place of 
those of his predecessor, and he may apply the new judicial 
system to determine those suits whicli had begun before the 
outbreak of war. No doubt an enhghtened Government will 
not press this power so as to create injustice, but tlie bare right 
remains to him. All rights of action, whether between two 
subjects of the conquered State, or between a subject of the 
conquering and an inliabitant of the conquered State, revive as 
soon as the conquest is complete, but the new Government vaW. 
not re -open a case finally decided already by the Comis of his 
predecessor.^ 

The conqueror, too, while recognising all the titles to pro- 
perty admitted by his predecessor, when the person has seisin or 

1 Hay V. South African Gold Recovery Co., (1904) A. C. 437. 



Effect of Conquest on Private Frojicrty ly Land. 77 

possession, will compel all claimants to property in the con- 
quered or ceded country to make good their titles according to 
his own law, and not according to that of his predecessor. 
Thus in the case of U. S. v. Do Repentigny, already commented 
upon, the United States Court held that as they had succeeded 
by conquest to the sovereign rights immediately of England, 
and through her mediately to the rights of France in the 
territory of Michigan, their land laws must be applied to test 
the validity of a claim originally acquired from the French 
Grovemment. 

Further, the conquering Government will not recognise grants 
of land made in the territory to which it succeeds by the old 
sovereign, either to belligerent or neutral subjects, after it has 
once announced its succession. The case of Harcourt v. 
Gaillard^ decided that a grant by the British governor of 
Florida to a British settler, of land within the limits of the old 
thirteen (English) colonies, which was made after the Decla- 
ration of Independence and during the progress of the war in 
1777, was invalid and gave no title. The Court declared 
that the States attained sovereignty by the Declaration of 
Independence, and applied the general principle that grants of 
soil in disputed territory made Jiagrante bello by the party that 
fails can only derive validity from treaty stipulations. 

The conqueror may, it is submitted, appoint a date from which 
he claims to have succeeded to the territory, and he need not 
give effect to any alienation of land which his predecessor pur- 
ports to make after this date. This principle will apply not 
only to land, but to all rights of property whatsoever, and to 
all contracts, and it forms the complement to the rule that the 
conqueror will not recognise as binding upon him liabilities 
incurred by his enemy for the express purpose of carrying on 
the war. All alienations made after the sovereignty has been 
virtually changed may bo regarded as hostile acts, and therefore 
invalid against the victor. The English High Commissioner 
in South Africa issued proclamations in March, 1900, and again 
in September, 1901, that: "Her Majesty's Government would 

> 12 Wlieatou, b'l'i. 



78 Laiu of Private Property in War on Land and Sea. 

not recognise as valid any alienation of property, whether of 
lands, railways, mines, or mining rights, within the Transvaal 
and Orange Free State, and any interest therein of whatsoever 
nature, or any charge and incumbrance thereon charged or 
made by the late Government of the South African Kepublic 
subsequent to the date of the said proclamation." 

The first proclamation may have been somewhat premature, 
but certainly between March, 1900, and September, 1901, the 
sovereignty of the Republic had been in fact displaced, and the 
English forces were in control of the country. There comes a 
point when the military occupant has the right to declare that 
he intends to effect a conquest, and to act on that assumption ; 
and he thereupon gives notice that he will not recognise 
sovereign acts of the enemy within the occupied territorj'. If 
we make an analogy between State and individual succession, it 
must be remembered that the former is not a peaceful but a 
violent process carried out in strife. The successor need not, 
and usually will not pay regard to liabilities incurred with 
private individuals for the purpose of defeating his inheritance, 
after he has once entered into the process of succession. The 
treaty of peace only perfects the conquest ; the first stage of it 
was the military occupation. 



( 79 ) 



CHAPTER YII. 

WAR AND PROPERTY AT SEA. 

Between belligerents the rule is that private property at sea is 
subject to capture, conditioned by the Declaration of Paris. 
Capture is legitimate on the open sea or in the territorial waters 
of either belligerent ; and the enemy vessel or cargo is acquired 
by the captor free of all equities. The Prize Court will not 
recognise a lien on the freight or bottomry on an enemy ship 
which would have been effective as against the original owners.^ 
The basis of the existing practice is that the object of maritime 
war is to cripple the commerce and shipping of the enemy as 
well as to destroy his naval forces. But at the same time 
respect for innocent private property is shown by its immunity 
when conveyed in a neutral vessel. The reforms accepted at 
Paris in 1850 by the Powers, in effect limit capture to the 
mercantile marine of the foe. For the Declaration prescribes 
four rules, which are binding upon all the chief nations of 
Europe in their wars with one another, and curtail the ancient 
usages of promiscuous capture of enemy property at sea : — 

(1.) Privateering is and remains abolished.- 

(2.) The neutral flag covers enemy goods with the exception 
of contraband of war. 

(3.) Neutral goods are not liable to capture under the 
enemy's flag. 

(4.) Blockades to be binding must be effective ; that is to say, 
maintained by a force sufficient to prevent access to 
the coast of an enemy. 

It is true that a few nations have made treaties mutually 
abandoning their rights of capture, but the general rule remains 
as stated ; and the rule extends to all private property which 
has enemy character, whether it is the property of an enemy 
subject or not. Enemy character depends on domicile, the 

1 Tho Marianne, 6 C. Rob. 24 ; and The Tobago, 5 C. Rob. 218. 

- Under this riilo only lawfully commisaioued men-of-war of the belligerent 
State have a right of capture, though voluntary cruisers, wliich are in reality 
converted merchantmen, come apparently within the rcqxxired category. 



80 Latv of Private Proper in hi ^Yar on Land and Sea. 

question being whether there is war with the country in which 
the owner is voluntaril}^ resident.^ A person domiciled in a 
neutral country, though in fact a British subject or a subject of 
a State at war with England, is regarded for purposes of 
maritime capture, and in fact for general commercial purposes, 
e.g., for the right to trade with the enemy, as a neutral.'^ Com- 
mercial domicile for war purposes is distinct from civil domicile. 
The latter requires such a permanent residence in a country as 
makes that country the person's home. The former is such a resi- 
dence in the country for the purpose of trading as makes his trade 
contribute to, or form part of, the resources of such country.^ 

The difPeience presses hardly upon the neutral merchant. In 
war a man is taken to be domiciled in the country where he in 
fact resides, the two salient facts being (1) " factum manendi," 
(2) " animus manendi " ; he must prove afRrmatively that he 
has the intention of not continuing to reside there.^ " The 
character gained by residence ceases by residence. It is an 
adventitious character which no longer adheres to him from 
the moment that he puts himself in motion ho}m fide to quit 
the country sine animo revertencli." On the other hand, the 
American and the English Courts have held that a citizen 
cannot by emigration from his country during hostilities acquire 
such a foreign domicile as to protect his trade during war 
against the belligerent claims either of his own country or of a 
hostile power.'^ And, further, a subject resident in the enemy 
country must withdraw his property from there within a short 
time after the outbreak of war, if at all, or it will be confiscable 
by the cruisers of his own State.'' 

The Anglo-American practice is very rigorous in every direc- 
tion. It has been held by the United States Courts that the share 
of a partner in a neutral house is subject to confiscation when his 
own domicile is in a hostile country ("The Antonia Johanna""), 
and that the property of a house of trade established in the enemy's 
country is condemnable whatever may be the personal domicile of 

1 Albrecht v. Susman, 2 Vcs. & B. 3 C. Rob. 12. 

323. 5 The Dos Hermanos, 10 Wheaton, 

■- Bell V. Eeid, 1 M. & S. 72G. 310. 

3 The Harmony, Snow, p. 32 ; •"' The St. Lawrence, Snow, p. 290 ; 

2 C. Rob. 322. 8 Cranch, 434. 

* The Indian Chief, Snow, p. 315; ' Snow, pp. 330,337; lWheaton,159 



War and Properbj at Sea. 81 

the partners. (" The Freundschaft."^) The judgment in the 
English case of " The Vigilantia" (1798), is to the same effect.^ 
Further, in the case of Bentzen v. Boyle,^ the American Court 
condemned the produce of the soil in the military occupation of 
the enemy, though the owner of it had a neutral domicil. 
Here they followed the rule of Lord Stowell, " That the pos- 
session of the soil does impress upon the owners the character of 
the country, whatever the local residence of the owner may be." 
The usage seems very hard upon the neutral owners ; and the 
law of enemy character, like the law of trading between enemy 
subjects, is in many ways obsolete, and not applicable to 
modern conditions. The property of a neutral in an occupied 
territory is subject on land, according to the old cases, to the 
requisitions of the occupant ; on sea, to capture by the other 
belligerent, because its fate is determined by its locality and 
actual commercial quality respectively, and not by the nationality 
or the personal intentions of the owner. 

It is, however, an inconsistent piece of harshness to condemn 
the property of an enemy after the port or country from which 
it comes, or to which it is consigned, has fallen into the military 
occupation of the belligerent who seizes it ; but in the case of 
"Danckebaar African,"* Lord Stowell did condemn a vessel 
belonging to Cape merchants captured after the conquest of the 
Dutch colony by England, on the ground that the ship, ha^'ing 
sailed as a Dutch ship, could not change her character on the 
voyage. In those days belligerents pressed their rights up to 
and beyond the letter of the law, and this is always the 
tendency during the stress of war. But the rules of 1856 
greatly lessen the risks to-day, and the abolition of privateering 
removes to a large extent the basis of the old severity. 

The French rule about enemy character is less severe upon 
neutrals than the English. In the old case of "Le Hardy "^ 
(An IX.), it was held that a neutral merchant domiciled in a 
belligerent country does not thereby acquire a belligerent 
character, and his property at sea is neutral property. The 

> 4 Wheaton, 105. « 1 Rob. 107. 

2 1 C. Rob. 1. " Snow, p. 337. 

» Snow, p. 331 ; 9 Crancb, 191. 
B. 6 



82 Law of Private Property in War on Land and Sea. 

principle o£ nationality is given a wider application on tlie 
Continent than it receives in England, and it determines the 
status of the subject in war as well as in peace. England 
maintains the old principle that domicil may change character 
as well in public as in private international law ; but the Latin 
races lay stress mainly on the national tie, and confiscate 
the goods of their own nationals, though domiciled in neutral 
countries.^ As a counterbalance to their indulgence to neutral 
commerce coming from the enemy country, may be set the 
rigorous French usage which refuses, once war has been 
declared, to recognise any transfer of a vessel from a belligerent 
to a neutral owner. The English custom is to respect it if a 
bond fide sale can be proved to have taken place to neutral 
owners, but the onus of proving this clearly is on the trans- 
feree.- The flag is the general test of the enemy or neutral 
character of the ship, but the manning and employment of a 
ship and the fraudulent character of the transfer may stamp it 
as enemy despite its neutral flag. In general, then, the flag is 
final evidence against a ship, but not final evidence in its 
favour, and the captor may go behind it.'^ On the other hand, 
where the subjects of non-littoral States, e.g., Switzerland, have 
been compelled to navigate under the flag of another State, the 
flag will not necessarily condemn the vessel if the owner can 
prove their neutrality. Thus, the French Conseil d'Etat, in 
1871, released the " Palme," a vessel belonging to the 
Missionary Society of Basle, which had been brought in flying 
the Grerman flag, because the Swiss had no flag of theii* own, 
and the vessel was genuinely neutral property. 

While the old practice of capture of enemy property still 
prevails on the sea, certain mitigations have been introduced. 
In the first place, the embargo, which used to be laid upon 
enemy shipping within the ports of the other belligerent at the 
opening of war or in contemplation of it, has now been prac- 
tically abandoned ; and belligerents regularly allow a certain 

' Cf . Dcspag'net, Droit International the Spanish Amorican war, The Bcnita 

Public, p. G52 ff. Estaugor, 170 U. S. Reports, 568. 

2 The Jenny, 4 Rob. 31 ; The •'' The Jolianna Ernilie, Spinks' 

Omnibufi, 4 Rob. 71 ; and a late case in Prize Caflcs, 14. 



Wa?- and l*i'opcrtij at Sea. 83 

period of grace in which merchant vessels of the enemy may 
load their cargo and depaii. At the outbreak of the Crimean 
war six weeks were granted, the Ottoman Porte giving the lead 
to the European powers by refusing to lay an embargo against 
Russian shipping in her declaration of war. The French, in 
1870, allowed German merchants one month ; the Americans, 
in 1898, gave Spanish vessels the same time ; but the Spanish 
only allowed their enemies five days. The Japanese, again, 
allowed Russian merchants one month in 19U2, while the 
Russians only gave their opponents three weeks. ^ But though 
it is possible the period may be even more limited in future, the 
practice itself may be taken as having received that general 
consent which changes the law of nations. It follows from the 
general j)rinciple that capture must not be wanton or based on 
any right of spoliation, but only enforced by way of penalty. 

In the second place, in-shore fishing-boats are exempt from 
capture. Lord Stowell, the English authority, held that the 
exemption is a matter of comity only and not of right, and it 
might be annulled in case of necessity, e.g., if a foreign power 
proposed to use trawlers as transports. The English practice 
varied according to circumstances in the Napoleonic wars.^ 
Nevertheless, the general freedom from capture is conceded, 
and in a late American case, "The Paquete Habana,"^ arising 
out of the Spanish- American war, it was held to have passed 
into the law of nations. Deep-sea fishing-boats have still no 
immunity. Private vessels of discovery or engaged in scientific 
exploration are by custom immune, and hospital ships or any 
engaged in tending and transporting the sick are so by the 
Geneva Convention, as extended to the sea. A movement is 
growing up for extending immunity to regular mail-boats ; a 
convention between England and France, in 1903, prescribed it 
as between the two nations, but recognised tlie right of either to 
rescind the immunity upon giving notice to the other. The 
general comity of nations demands the extension of this privi- 
lege, and no doubt the future will see the immunity of mail- 

' Cf. Lawrence's War and Neutrality in the Far East. 
■ Cf. The Young Jacob and Johanna, 1 Rob. 20. 
3 175 U. S. Reports, 677. 

G(2) 



Si Law of Private Property/ in War on Land and Sea. 

steamers from both searcli and capture, provided, of course, that 
thej are carrying out their proper functions. In the Spanish- 
American war the United States Court properly condemned a 
Spanish mail-boat, the *' Panama," which was fitted up as a 
man-of-war, and was ready to be turned into a cruiser.^ 

It is now clearly understood that enemy vessels may not be 
captured within the territorial waters of a neutral ; though the 
capture is good as between belligerents, it is the duty of the 
neutral to protest against a violation of its sovereignty.- Nor, 
again, may a belligerent vessel moored in neutral waters send 
out an expedition to capture. 

It was one of the pious " voeux " of the Hague Peace Confer- 
ence of 1899 that the abolition of the capture of private property 
at sea should be considered at the next Conference, and the 
question will certainly be one of the main subjects of discussion 
at the forthcoming meeting. 

It cannot be denied that the movement for abolition has 
gained great favour upon the Continent, and that it is the 
continuous opposition of England to the change which is the 
main obstacle to its success. At Turin in 1882, the Institute of 
International Law passed a resolution against the retention of 
the present practice by ten votes to seven ; at the Hague in 1899, 
although tlie English delegation protested, the resolution was 
actually passed without any division at all. And Nys, De 
Maartens, von Bar, and Despagnet, to mention but a few of the 
most considerable living writers on international law, strongly 
advocate inviolability. The opinion then of the publicists may 
be taken to be steadily increasing in favour of the proposal, but 
the progress of practice in this direction is less marked. In the 
two last important wars between leading sovereign States, i.e., 
in the Spanish-American and the liusso-Japanese wars, the 
private property of the enemy was regularly captured and 
condemned, when found upon enemy merchantmen. 

The exemption from capture was, it appears, first mooted by 
a French publicist, L'Abbe de Mably, who wrote in the middle 
of the eighteenth century, and based his thesis mainly upon 

> 176 U. S. ReportH, 535. Tho Anna, Snow, pp. 393—398 ; and 

- Cf. The General Armstrong and The Twee Gebroeder, 3 Rob. 339, 340. 



Wai' and Propert/j at Sea. 85 

considerations of expediency. The originator of the movement 
in practical politics was the American statesman, Benjamin 
Franklin, In tlie treaty of peace made between England and 
the United States in 1783, he urged the inclusion of a clause 
that merchant ships of the two countries in case of future wars 
should pursue their voj^ages unmolested. Great Britain refused, 
but Franklin was successful in the following year in making a 
treaty with Prussia including a clause to this effect. The 
French National Assembly of 1792, which had declared the 
modern conception of war in its relation to private property 
generally, voted in favour of a similar measure, and invited the 
powers to enter into agreements according to its principles. 
The United States, Hamburg and the Hanseatic Towns 
announced their adhesion ; no other States returned an answer. 

The Revolutionary and Napoleonic wars showed no miti- 
gation — to say the least — of the old practice, and the treaty 
between America and Prussia remained till the middle of the 
nineteenth century the sole example of the new view ; and 
seeing how remote was the possibility of war between the two 
powers, it was of sentimental rather than of practical value. 
The United States Government has, however, steadily agitated 
against the caj)ture of private property at sea, and m-ged their 
protest \'igorously but unsuccessfully at Paris in 1856. They 
refused to assent to the abolition of privateering till the larger 
proposal was adopted. Their theory has remained constant, 
but their practice in the Civil War, 1862 — 65, showed that 
when their own self-preservation was in question, they were 
prepared to extend to its farthest point the regular law of 
capture. Similarly Napoleon, who declared that " belligerents 
ought to wage war without giving rise to the confiscation of 
their mercantile marine," imposed the Berlin and Milan decrees 
to bring England over to his view ! And he stretched the 
penalty of confiscation against English commerce far beyond 
what the law allowed. The only occasions when the old law 
has been relaxed in actual warfare, have been when maritime 
capture played, or would have played, an insignificant part in 
the struggle. After the Schleswig-IIolstein war between 
Germany and Denmark, the 13th article of the treaty of peace 



86 Lata of Private Proj)erty in War on Land and Sea. 

provided for the restoration of or compensation for private 
vessels captured. By Article 3 of the Peace of Zurich, 1850, 
France restored any Austrian vessels which had not yet been 
adjudicated upon by her Courts. During the hostilities them- 
selves of 1866 between Austria and Italy, innocent property 
was regarded as inviolable at sea, but this is the first and — save 
for the one-sided action of Prussia in 1870 (when she had 
nothing to lose by it) — the last instance in practice. Italy, 
which has become the European champion of the doctrine, 
made a treaty in 1871 with the United States establishing 
the usage between them in case of war, but the treaty has not 
been put to the test. The same country, too, in her marine 
code of 1865, declared that the capture of mercantile vessels of 
hostile nations was abolished wherever a State would give 
reciprocity of treatment. In the last fifty years a vast amount 
of literature and an endless number of resolutions have been 
passed by parliaments, legal associations and chambers of 
commerce in favour of the change ; but in the Franco-Prussian 
(on one side) and the Russo-Turkish wars, as well as in the latest 
struggles that have been mentioned, the old usage was resumed. 
Such being the practice, let us examine the theory advanced 
to recommend that private property at sea, unless it be 
contraband, should not be liable to capture. It is argued, in 
the first place, that the modem idea of war recognises the 
inviolability of private property on land ; — in the words of the 
Brussels Declaration, " La propriete privce doit etre respect^e " : 
— and that it is unreasonable to make a distinction between 
military and maritime warfare. To this it may be replied, that 
even under the now Hague laws of war, requisitions, or con- 
tributions in lieu of them, are permitted to the land belligerent, 
and also the seizure of property immediately useful in war. 
Now the private vessels of the enemy are objects immediately 
useful for war, and as the military occupant is in fact allowed 
to requisition all means of locomotion, so it is equitable that the 
belligerent on sea should bo allowed to capture and utilize all 
the ships of his enemy. If the ship is ca[)tured, the cargo must 
be detained ; and if the enemy cargo is useful to the captor, it 
may fairly be seized by him, as it would be by a land army. 



War and Propcrtf/ at Sea. 87 

"When it is not useful in itself, there is some logical reason from 
the analogy of land war for sequestrating it instead of con- 
demning it, though practical objections may be raised to this 
course. But this is the only change in the present usage which 
can fairly be demanded from the parity of sea and land 
argument. It should be noted also that whereas property on 
land is for the most part useless for a hostile purpose, property 
at sea is almost always merchandise, and thus part of the 
enemy's strength. 

Then, it is said, requisitions, etc. on land are excused by 
military necessity ; maritime capture implies a wanton attack 
upon private property. Now this argument, as Captain Mahan 
points out, involves a confusion of ideas arising out of a play 
upon words which entii-ely vitiates it. The play of words is 
upon '* private property," which means one thing when applied to 
war on land and another when applied to capture on sea. 
Private property fixed locally and at a standstill is one thing ; 
private property upon ships and in process of transportation is 
another. It is in the latter case not only private property but 
also a part of the national commerce, and it is in this, its 
national character, that it is confiscated. It is exactly equivalent 
to money in circulation, and it is the life-blood of a nation's 
prosperity, upon which, in the end, war depends. " It is 
national in its employment, only in its ownership is it private."^ 
This is the crux of the whole question, and it should be fairly 
recognised that maritime capture is directed not against private 
property but against national commerce. Further, it is rather to 
be regarded as forfeiture than as seizure, as penalty more than as 
pillage. The enemy subject has full warning not to carry on 
his commerce, and he does so voluntarily and well knowing 
the risk which he runs. If, in order to increase his own wealth 
and the resources of his country, he runs that risk, he must 
expect to suffer the consequences when ho is intercepted. On 
land no less than on tlie sea the belligerent endeavours to sti'ike 
at the commerce of his opponent and to cut off his com- 
munication with the neutral world. He seizes or destroys rail- 

' Maluiu, "War of 1812." 



88 Laiv of Private Property in War on Land and Sea. 

ways, he blocks the main roads, and he primarily occupies 
enemy territory to prevent internal as well as external com- 
merce. jMaritime capture is a corresponding right at sea, not 
inconsistent with the inviolability of private possessioAn land. 

It has been argued that the modern practice of granting 
days of grace to enemy traders at the outbreak of war, within 
which to leave the ports of the other belligerent or to deliver 
their cargo there, makes the subsequent maritime capture in- 
consistent. But this argument betrays the misunderstanding 
which lies at the bottom of the question. To confiscate in the 
first case would be to seize private property for its own value, 
and in order to cause loss maliciously to the enemy ; to con- 
fiscate in the second is to penalise the commerce of the enemy 
after fair warning to the subjects has been given. Then it is 
said that the practice is valueless to a modern belligerent, 
creating injury to individuals without gain to himself. This, 
no doubt, is a question for naval experts, and Captain Mahan, 
at any rate, holds that commerce-destroying, regarded as a 
secondary operation to the destruction of the enemy's war- 
fleet, is justified by the experience of centuries ; and the immense 
depredations of the " Alabama " support his view. " To sap 
the prosperity upon which war depends for its energy is a 
measure as truly military as is killing a man whose army 
maintains war in the field." 

Attention also may be called to the lavish bounties with 
which Continental Governments foster the growth of their 
mercantile marine. If they, in peace time, regard the prosperity 
of their shipping as so important for the country's welfare, 
surely an enemy may claim that the destruction or the crippling 
of that shipping is a vital blow. 

But it is argued on the other side that the Declaration of 
1856, by which enemy property under a neutral flag is immune 
from capture unless it be contraband, has taken all the value out 
of commerce-destroying by sporadic maritime capture. The 
enemy's commerce, it is said, will go into neutral ships, and the 
right of maritime capture will be of small value to a strong 
naval power. No doubt there is something in this assertion, 
and tlie old conditions, when the operations of maritime war 



War and Property at Sea. 89 

were compared to a flight of carrier pigeons pursued by a flight 
of hawks, have passed away. At the same time it must be 
remembered that the transference of commerce in this way is 
not an easy thing to carry out, and to a nation with a large 
sea-borne trade only partially possible. l^Ioreover, the carrying 
out%of such a change to avoid capture would involve the 
country in a great loss and would reduce its commercial power ; 
and in this way the reserve of the potential right to capture 
would have assisted the other belligerent. If he was successful 
again in frightening off the sea his opponent's commercial 
marine, he would then be able to concentrate his forces upon a 
blockade of his coasts, and the experience of the last century 
shows that blockade is the more oppressive and the more 
effectual method of warfare. 

This suggests an objection of a different kind to a change in 
practice. There can be little doubt that the abandonment of 
maritime capture of enemy's property would lead to an extension 
or a greater application of the right to blockade, and this involves 
a greater restriction upon neutral as well as upon belligerent 
trade. The Paris Eules of 18otP have already led to consider- 
able extension of the usages of capture for contraband. If a 
Hague Convention abolished the right of maritime capture, we 
may be sure that belligerent exigencies would call into being 
some new compensatory device to redress the balance against 
commercial freedom. Some of the supporters of the immunity 
{e.(/., Signer Ferrato-) are prepared to allow a belligerent to 
seize enemy merchantmen for his service, and to destroy them 
when military operations render it necessary. But to abolish a 
law in order to introduce the principle of necessity, which really 
knows no law, is hardly a forward step. " Ohne Hast Ohne 
Rast " is the golden rule in international law, and when theory 
gets ahead of practice, there is danger of an extreme revulsion. 
The experience of the world has hitherto shown that a strong 
naval power has a powerful commercial marine ; and as long as 
that is so, a war between two naval powers will involve an 
attempt to destroy their sea-borne trade. If the right of 

• See next chapter. 

* Article in the Political Science Quarterly for 1905. 



90 Lcnv of Private Propert'j in War on Land and Sea. 

maritime capture is prohibited, some perliaps more " barbarous 
measure," such as blockade by mines, will take its place. 
Lorimer has pointed out that the present usage is the least 
inhuman act of war, because capture is nearly always bloodless 
and losses are spread over the whole community owing to their 
being covered by insurances.^ This opinion was upheld two 
j^ears ago by the present Lord Chancellor, who, though in 
favour of the proposed reform, admitted that " no operations of 
war can inflict less suffering than the capture of unarmed 
vessels at sea." 

The proposed immunity would really give an unfair preference 
to marine over land trading ; for on land, as has been shown, 
an invading and occupying army effectually prevents internal 
trade. In this connection the words of Lord Selborne when, as 
Solicitor-General, he opposed the principle in the House of 
Commons in March, 18G2, are worth quoting. "He dreaded 
to think what might be the effect of admitting the principle of 
a political war and a commercial peace. If anything could sap 
the patriotism of a nation, it would be such a state of things. 
If a system of war were introduced which would admit of 
carrying on war without burdens, could it be supposed that the 
interests of merchants would be the same as now in preventing 
war or in bringing about the restoration of peace ? " 

The right to capture enemy property at sea corresponds with, 
and is supported by, the same reasoning as the right to forbid 
commerce between enemy subjects. In either case the belligerent 
is aiming at the commercial prosperity of his enemy and not at 
the property of individuals ; he applies his sovereign rights to 
his own subjects and belligerent rights to the subjects of the 
enemy. But the two powers must logically stand or fall 
together; and the proposed change would legalise all trading 
between belligerents save contraband. 

Apart from the general moral and legal sides of the question, 
it may be argued that England has more to gain than to lose 
by accepting the proposal of continental publicists. It is 
repeatedly represented that we stand to sulfer most severely in 

' Cf. Revue du Droit International, 18R?,. 



War and Frojperty at Sea. 91 

a great war with maritime powers under the present rule of 
capture, because of our dependence for our food supply upon 
sea-borne trade and because of our enormous mercantile marine, 
which is far greater than that of any other nation. And it is 
said that if war broke out " there would immediately be a 
wholesale transfer of British mercantile shipping to neutral 
flags," which would mean the loss of our carrying trade. 
Professor Westlake,^ however, has shown how diflBcult such a 
course would be, and how unlikely to be carried out. Still, it 
may be admitted that this country, having the largest mercantile 
marine, runs the greatest risk by adhering to the present rule. 
But what the advocates of the change have to prove is that we 
would suffer less risk if it were made. That is not at all clear. 
Until the nations have made some common declaration about 
contraband, it is always possible, and even probable, that a power 
fighting against England would declare all provisions to be 
contraband ; and then our food supply would be even more 
endangered than it is now, for it could be confiscated on neutral 
as well as national ships. Again, it cannot be denied that the 
change will increase the chance of blockade, setting free as it 
would the swift cruisers on either side from the duty of watching 
the trade routes ; and although England might gain something 
by increased powers of blockading, her small coast-line, compared 
to that of the other gi-eat maritime powers, and her complete 
dependence upon her sea-borne trade, render blockade — even 
partial blockade — a far more pressing danger to her than any 
nation. The intentions of foreign publicists may be excellent, 
but the support of the change by foreign Governments is based 
only upon interest, and should therefore be regarded with 
circumspection. 

Professor Westlako thinks that England at the commence- 
ment of a war might offer her enemy to enter into a convention 
terminable on short notice "for mutual abstention from maritime 
capture, except under the heads of blockade and contraband." ^ 
One cannot take exception to such a moderate proposal, and the 
convention on similar terms which has been made with France 

' Principles of Intornational Law, pp. 252, 253. 



92 Latv of Private Property in War on Land and Sea. 

to refrain from seizing or searching mail-boats is a good pre- 
cedent for such a course. But, as a general rule, both from a 
moral and from a practical standpoint, England is justified in 
adhering to the present rule. However, one modification may 
be suggested. When the captured ship and cargo are not actually 
required for the service of the State, they should be sequestrated 
and not confiscated, as is the habit already in pacific blockades. 
"When they are required, they may be taken by the State in the 
same way as contraband is taken, either by confiscation or 
pre-emption. But, in other cases, the whole purpose of the 
capture, which is to stop the commerce of the enemy, is served 
by confiscation of the ship and detention of the cargo till the 
war is over ; and the loss thereby incurred by the owner may be 
considered a sufficient penalty and a sufficient deterrent for his 
hardihood. The present custom of dividing among the captors 
the proceeds of sale after adjudication by a Prize Court preserves 
in maritime war that taint of belligerent greed and of interested 
attack upon private property, which is against the spirit of 
modern warfare, and which has been declared illegal in land 
operations. It would be unfair to give sea-borne commerce a 
complete immunity which land commerce does not possess in 
war ; but, on the other hand, it is undesirable to inflict losses 
upon private owners which are not justified by the necessities of 
war. And if it is found to be impracticable to detain the enemy 
cargo for a long j)eriod, then the State might give the owner 
the proceeds of the sale at the end of the war, provided his 
goods were innocent and his vessel unarmed. The old penalty 
would be kept for any aggravated case not complying with 
these conditions. 

When this indulgence on the part of the captor's state is 
considered impracticable, and when vessels and cargo at sea are 
confiscated, it would seem consistent with general principles 
that the State whose citizen has suffered should compensate him 
for his loss, which has been largely incurred on behalf of the 
whole body.^ There is at present not so much practice in this 
direction as is the case with losses on land. The French 

' Cf . Chapter IV. 



War and Propertji at Sea. 93 

Legislative Assembly of 1792, which passed the resolution 
advocating the abolition of maritime capture, also proposed to 
indemnify private owners for the losses they suffered through 
the capture of privateers. But the proposal was not carried 
into efPeet. A more reasonable proposition has been mooted by 
Lorimer : that the captor should give the captain of the captured 
vessel a receipt which the Government of the owner would 
honour as soon as the prize was adjudicated. This would 
invest maritime capture with the same character as the impost 
of requisitions and contributions on land, and in default of the 
more liberal change suggested above, would bring the usages of 
war on the sea into closer correspondence with the usages on 
land. The Report of the English Royal Commission upon our 
Food Supply in Time of War,i published last year, recommends 
the principle that the State should indemnify its subjects for 
the losses they may suffer in maritime war. It considered 
several proposals : that the State should (1) either insure all 
merchantmen itself, or (2) pay an indemnity upon all losses, 
or (3) that it should pay the premium for war risks to the 
insurance company, or at least give a guarantee to the pro- 
prietor of the cargo and make the shipmaster insure his vessel ; 
and it came to the decision that national indemnity was 
preferable to national insui'ance.^ 

Some action of the State upon these lines seems desu-able, not 
only to keep down prices of food in war, but also to maintain 
the carrying trade, in view of the growing practice of belli- 
gerents of destrojing their enemy prizes, which often contain the 
property of neutrals as well as of enemies. If the Government 
undertakes the insurance or the indemnity against war risks, 
neutrals as well as subjects will be less anxious to withdraw 
their trade from belligerent bottoms, and so war will involve a 
smaller loss to the carrying trade of the country. That a 
captor has the riglit to sink an enemy vessel cannot be doubted, 
though it is always preferable to bring it iu for adjudication. 
But the property of an enemy vests in the other belligerent as 
soon as the capture is made; his conquest is then and there 

» ParUamentary Papers, 1906. ■ Ibid. Report, p. 62. 



9-i Laiv of Private Property in War on Land and Sea. 

complete, tliougli it may be reversed, if it is retaken, in favour of 
the original owner. But the captor can do what he wills with 
his own. In the words of Lord Stowell, the captors cannot 
properly permit "enemy's property to sail away unmolested. 
If impossible to bring in, their next duty is to destroy enemy 
property." ^ During the Crimean war, Dr. Lushington declared 
(obiter) that " it may be justifiable or even praiseworthy of the 
captors to destroy an enemy's vessel." - But both he and 
Stowell held that compensation must be paid, if neutral pro- 
perty on the vessel be destroyed in such circumstances. The 
French Government, however, in 1871 refused compensation to 
neutral owners of cargo on board the two Grerman ships — 
the " Ludwig " and the " Vorwiirts " — which had been 
destroyed on the ground of necessity of war. "When there is a 
question of real necessity, e.g., when the prize is not navigable, 
such a plea maybe valid; but when it is a matter of convenience, 
it would be unjust to refuse compensation to the neutral owner : 
for destruction cannot then be considered an inevitable incident 
of war. And owing, as Hall points out, to the Avide range of 
modern commerce, the inability of modern cruisers to spare 
prize crews, and the growing indisposition of neutrals to admit 
prizes within their ports, convenience and self-interest are con- 
tinually inducing belligerents to exercise more frequently their 
rights of destruction, instead of bringing vessels in. The 
Institute of International Law in 188^3 di-ew up rules for 
regulating the practice which are fairly wide ; but it may be 
doubted whether a belligerent in the future will consider 
himself bound by them. The considerations urged by the 
United States Government in 1812 in the directions to their 
officers 2 apply with greater force to-day : " A single cruiser, if 
ever so successful, can make but few prizes, and every prize is 
a serious diminution of force ; but a single cruiser destroying 
every captured vessel has the capacity of continuing in full 
vigour her destructive power, so long as her provisions and 



1 The Felicity, 2 Doda. 383. ^ The Leucade, Spiuks, 221. 

' Quoted by Hull, p. 457. The Eoport of the Commission already referred 
to recogTiises this now departure in naval war, and partially ju8tifie.s it. 



War and Froperbj at Sea. 95 

stores can be replenished either from friendly ports or from the 
vessels captured."^ 

So far from disappearing, commerce-destroying, indeed, has 
been carried out in its full severity in all recent naval wars, and 
this itself suggests that the agitation for its abolition is in reality 
somewhat hollow. Even if it achieved a formal success, some 
extension of belligerent rights in another direction would place 
enemy commerce under its old disabilities. The Declaration of 
Paris, which exempted neutral goods under an enemy flag from 
capture, has been followed by the practice of prize-destroying ; 
necessities of war would probably follow in the wake of legal 
exemption of enemy vessels. It is urged by Professor Von Bar 
that the reform lies along the line of development of culture, 
because the present practice produces great disturbances without 
directly influencing the issue of war.^ But civilisation and 
humanity can hardly demand the abolition of a custom which 
inflicts losses on enemy subjects that are diffused through the 
State without causing suffering and bloodshed. And though it 
may be true that the commerce of the world to-day is a very 
sensitive organism which feels the blows struck at any member, 
and that neutrals are often involved in captui'es of enemy vessels, 
neutral traders have not on this account any better right to 
enjoy immunity during belligerent operations at sea than they 
have on land. On land they accept, perforce, the disturbances 
caused by war ; on sea, provided no unnecessary outrages are 
committed upon their own merchandise, they must do the 
same. 

The modifications required in the existing practice of maritime 
capture seem, therefore, to be — 

(1) The abolition of prize-money ; 

(2) The acceptance by the State of its obligation to recoup its 

own citizens for their losses by sea; 

(3) The relaxation of the old laws of enemy domicil by 

the English and American Courts,^ and the general 

' The constant practice of the Confederate destroyers in sinking their prizes 
during the Civil War fully substantiates tliis remark. 
2 Cf. Die Nation, December, 1906. 
' See Appendix II. 



96 Laiv of Private Vroi-crhj in ]Yar on Land and Sea. 

adoption of tlie French standpoint, not on logical 
reasons, but from comity to neutrals ; 

(4) The acceptance by the State of its obligation to com- 

pensate neutral owners, when innocent cargo is 
destroj^ed on an unarmed enemy vessel ; 

(5) The exemption of mail-steamers from capture ; and 

(6) Most important of all ; the classification of contraband by 

an international body. 
With these changes maritime war would be at least as 
humane and as respectful of the private property of enemies 
as war on land, and beyond that it cannot be fairly claimed that 
it should go. 



( 97 ) 



CHAPTER VIII. 

WAR AND THE PROPERTY OF NEUTRALS (HISTORICAL). 

The true idea of neutrality was late in developing, and the 
duties of neutral States, as well as the rights of neutral subjects, 
though now the most certain part of international law, were the 
last part to he formulated. The law of neutrality cannot exist 
until a permanent body of sovereign States has been established, 
which exerts a definite common opinion upon its members ; and it 
cannot be properly secui'ed until the peaceful commercial inter- 
course of nations is as important as their belligerent intercourse. 
These two conditions were not satisfied before the eighteenth 
century, and hence the law is largely the growth of the treaties 
and practices of the last two hundred years. It owes very 
little to what is the root of the greater part of international 
jurisprudence — Roman law. In the great world-empire of 
Rome, outside of which were only barbarian tribes, no proper 
doctrines of neutrality could grow up. When there was war, 
the whole civilised world was involved, and the maxim upon 
which the Romans acted was: "Who is not for me is against 
me." The one doctrine which they developed at all jm-ally was 
the prohibition, even in times of jieace, of certain kinds of 
trading with their- enemies, the analogue of the modern law of 
contraband. Grotius quotes the dictum of Justinian : " lu 
hostium esse partibus qui ad helium necessaria hosti administrat." 
And the forty-first article of Justinian's Code runs : " Ad bar- 
baricam transferendi vini et olei et liquaminis nullam quisquam 
habere facultatem ne questus quidem causa aut usus commer- 
ciorum."^ Then follow prohibitions of traffic in arms and war 
implements : " Perniciosum namque Romano imperio et pro- 

' Quoted in Mr. Atherley- Jones' " Commerce and. War." 
B. 7 



98 Laio of Private Propertij in War on Land and Sea. 

ditioni proximum est barbaros quos indigere convenit telis eos ut 
validiores reddantur instruere." 

The penalty for the violation of the law was the proscription 
of the offender's goods and, in certain cases, capital punishment. 
Similar articles appear in the Constitutions of Yalentinian, 
Grratian, and Honorius. The Roman law of trading with 
enemies was really more akin in effect to the prohibitions of 
modern European States against importing certain articles into 
native areas than to proclamations of contraband issued by belli- 
gerents to neutral powers, but it formed a prototype of these 
latter documents. The policy of the Emperors was followed by 
the Popes in regard to the Saracens, and the Lateran Council 
promulgated a canon in the twelfth century excommunicating 
those who supplied the infidels with arms and money. And in 
the fifteenth and sixteenth centuries belligerent nations began 
liabitually to specify, at the outbreak of war, the kinds of 
commerce which they would confiscate if they captured it on its 
way to the enemy ; a custom which took the place of a total 
prohibition of trade that they had in earlier times endeavom'ed 
to impose upon all neutral nations. 

It was on sea that neutral States first began effectively to 
provide for their proprietary rights. The sea is the great 
highway of all nations, and as soon as commerce had begun to 
establish itself in the mediiBval society, it was felt to be impos- 
sible to allow the piratical captains of belligerents to work what 
havoc they pleased on the trade of all other peoples. In all 
civilised ages there has been a customary international law upon 
the sea in peace, and so the conception of a law in maritime war 
was made easier. Hence it is that the rules which regulate the 
relations of belligerents and neutrals deal almost entirely with 
sea-borne commerce. On land little difference is made between 
enemies and neutrals. 

From the eleventh century the independent city-States of the 
Mediterranean banded themselves together to resist the pre- 
tensions of belligerents, and, borrowing probably from the old 
maritime laws of the llliodians, framed a code of customs to 
regulate the relations of belligerents and neutrals over the 
Mediterranean Sea. The most famous of these collections of 



War and the Froperty of Neutrals [Historical). 99 

customs was the Consolato del Mare, formulated by the jurists 
at Barcelona in the thirteenth century, and applied by a Constdar 
Court established at Barcelona 1279. They were first printed 
in 1494, and were soon translated into the chief European 
languages ; but they had been spread among the chief nations 
before then. The two most important rules of the Code were : — 

(1.) If the captured vessel was neutral and the cargo enemy, 
the captor might compel the vessel to carry the cargo to a place 
of safety, paying her the freight she was to have received from 
the owner of the goods, but could not confiscate the vessel. 

(2.) If, on the other hand, the vessel was enemy and the 
cargo neutral, the owners of the cargo might ransom the vessel 
from the captors, and, if they refused, the captor could send the 
vessel to a port of his own country and make the owners of the 
cargo pay freight. The logical princii^le upon which these 
rules were based was that the fate of the goods depended on the 
character of the owner. In theory these rules prevailed until 
the eighteenth century, but in practice they received scant 
regard in the violent usages of war, and that, too, despite the 
institution of Prize Courts which were set up in maritime 
countries in order to make better provision for the rights of 
neutrals than the Consolato directed. Instead of holding his 
enemy prize to ransom or sending his enemy cargo to a place of 
safety, the privateer brought in his prize to be adjudicated by a 
national Court, which was supposed to apply the common 
maritime customs, and decreed the fate of the vessel or the 
cargo. 

In the seventeenth century, the law of contraband trading 
began to be defined ; and by a series of treaties and proclama- 
tions some kind of rule was introduced to determine which 
articles were allowed to be carried by neutrals to the enemy, 
and which the belligerent would hold confiscable. The word 
contraband is first used in its modern sense in the Treaty of 
Southampton in 1625 between England and the United Pro- 
vinces ; and Grotius, though he does not know the word, has 
set forth a full doctrine of the thing, lie recognises the 
clashing exigencies of neutral trade and belligerent necessity, 

7 (2) 



100 Laiv of Private Property in War on Land and Sea. 

and di\ides all goods for tlie pui'poses of war into three 
classes : — 

(1.) Things used only in war, e.g., arms which the belligerent 
may always prohibit and confiscate in case of capture. 
(2.) " Ees ancipitis usus," or ambiguous articles useful both 
in war and peace, among which he places ships and 
pro%'isions, which a belligerent may prohibit according 
to the condition of the war. If their detention is 
necessary to his safety, the belligerent may detain 
them, though Grrotius holds that he should only 
sequestrate, and not confiscate, articles in this category. 
(3.) Things useless in war, as articles of luxiu-y, which the 

belligerent may not jirohibit or confiscate. 
Grotius left it to Yattel to found an exact science of 
neutrality, but by his doctrine of contraband he made a most 
important contribution to this branch of International law. 
England has consistently followed his threefold division of 
goods and his directions upon them, though she has varied 
considerably the context of his thi'ee classes. She has extended 
the first class cover to things not used in, but only useful for, 
war, e.g.^ naval stores ; and she has regarded the second class as 
legally a proper subject for confiscation instead of mere deten- 
tion, though as a matter of practice she has fi'equently resorted 
to pre-emption or purchase at a fair market rate.^ Other 
nations, however, of which France is typical, have recognised 
only two classes of goods in their relations to neutral traders : — 
(1.) Goods absolutely prohibited, and always confiscable. 
(2.) Goods allowed, and never confiscable. 
But this has not implied any greater respect for neutral trade 
than the English usage ; rather, it has involved a more complete 
interference with it, because the list of absolute contraband has 
been greatly enlarged by these nations, when belHgerent, to 
suit their convenience.^ From the seventeenth century it has 
been the practice of belligerent nations to issue at the beginning 
of war a list of the goods which it intended to regard as con- 

• The United States and Japan follow the English practice, and recognise 
three classes of goods in war. 
- Cf . Hall's International Law. 



War and the Froperti/ of Neutrals {Historical). 101 

traband absolutely and, where such a class was admitted, 
conditionally. Unfortunately, however, no custom grew up 
fixing the character and range of contraband ; the lists of each 
nation varied from war to war, and neutrals were unwilling or 
powerless to protest for fear of restricting their own rights 
when they themselves became belligerent ; or causing a complete 
prohibition of trade, such as was still at times resorted to. 

When this extreme measure of belligerent interference with 
neutral trade came to be viewed with disapproval, it was 
modified into the practice of blockade, which began to take 
definite form in the seventeenth century. Blockade is a total 
prohibition of trade with the enemy, limited by time and space ; 
and it can be supported by the plea of military necessity, so 
that it is not contrary to modern conceptions. It has been 
defined by Lord Stowell as a " maritime cireumvallation round 
a place," and it corresponds very largely to the siege of a town 
on land, and is ensured and enforced by the same methods, the 
presence of a sufficient force to make ingress and egress perilous. 
In the first stages, however, of the development of the practice, 
the belligerent power was apt to turn blockade into a general 
restriction of trade. In 1630, the Dutch issued a notice that 
all ports in the Netherlands remaining to the Spaniards were 
deemed to be besieged, though in fact they were not. When 
the rights of neutrals were more thoroughly appreciated, it was 
demanded of belligerents that they should not exclude neutral 
commerce unless they possessed a sufficient naval force to 
prevent adequately access to the ports. But during the seven- 
teenth and eighteenth centuries, " paper," or fictitious blockades, 
w^ere the rule rather than the exception, and the belligerent 
claimed the right of prohibiting trade when he only had the 
power of terrorising neutrals without that of effectually cutting 
off communication. 

The Dutch, who had developed the doctrine of blockade, 
popularised about the same time another doctrine which, on its 
face, was a relaxation of the old rule towards neutral property ; 
but, in view of the practice of belligerents to omit during 
hostilities all relaxations and press all severities, it veiled a 
further means of attack and a retrogression to the old spoliation. 



102 Laio of Private Property in War on Land and Sea. 

At the beginning of the seventeenth century they were the 
carriers of the world; and in the interests of theii' trade they made 
frequent conventions with other States to substitute for the old 
rules of the Consolato del Mare the twin maxims : " Free ships, 
free goods," and " enemy ships, enemy goods." They were 
indeed, in theory, an amelioration of the extreme belligerent 
practice exhibited in the French Ordonnances of 1538, 1543 
and 1584, by which not only w^ere enemy goods confiscated 
on neutral vessels, but their presence infected the vessel itself 
and extended the penalty to it. But a change in law did not 
by any means imply a change in practice. 

England, though by treaty in many cases she adopted the 
principle of free ships, free goods, maintained throughout her 
belligerent relations the old doctrines of the innocence of neutral 
merchandise on enemy vessels. In the eighteenth century, 
however, England originated herself a fresh restriction upon 
neutral trade based upon the same spirit as the French 
ordinances, viz. : to put a stop to the commerce of the enemy. 
At that time, as Montesquieu wrote, " commercial monopoly is 
the leading principle of colonial intercourse " ; and what was 
called the liule of 1756 — because it was first practised in that 
war, though it endured to the end of the Napoleonic struggle — 
forbad neutrals under penalty of confiscation to take part in war 
time in the colonial and coasting trade of enemy countries from 
which they were debarred in times of peace. It was argued that 
such action amounted to an interference in the war by a neutral 
on behalf of one side. " It is a trade," said Lord Stowell,^ 
" which he can obtain in war by no other title than by the 
success of one belligerent against the other, and at the expense 
of that very belligerent under whose success he sets up his 
title." The principle involved was really that belligerent 
exigencies prevail over any advantages which the neutral may 
gain through the existence of a contest. The neutral was only 
allowed to suffer losses, and not to make gains in war. 

England's innovation prejudiced her still further in the eyes 
of Continental nations who already feared and hated her mari- 
time supremacy. A favourable opportunity for asserting neutral 

• The Immanuel, Snow, p. 503. 



War and the Property of Neutrals [Historical). 103 

rights presented itself when England, in 1780, found herself 
at war alone with the United States, France, Spain and Holland. 
Russia, not for the last time foremost in enunciating loftj prin- 
ciples which had the additional merit of serving her interest, 
drew up with the smaller Northern Powers a declaration of 
neutral rights, to which the other heUigerents willingly 
assented, because they thought that they would press most 
heavily on the great maritime power of England, who largely 
depended for her success on destroying the commerce of her 
rivals. The first Ai-med Neutrality of 1780 demanded a reform 
of the usages of blockade and contraband, and in place thereof 
a natural system, founded on principles of justice which should 
have permanent validity ; the abandonment of the Rule of 1756, 
the adoption of the maxim of free ships, free goods, and the 
freedom of all vessels under neutral convoy from search. All 
these provisions were limitations of belligerent rights, and, had 
they been accepted, would have made a vast reform in maritime 
warfare. The combined States covenanted to observe them, but 
their sanction was only a passing expediency, and the great 
European struggle in which almost all the great nations were 
plunged from 1792 — 1815 provided a striking commentary upon 
their terms, and showed how helpless were small neutral powers 
when their privileges were attacked by powerful belligerents. 
Still, the demands of the armed neutralities were a " Petition of 
Eight " which, though unrealised at once, remained the ideal 
towards which practice during the last centuiy approximated. 

In the history of neutrality, as in the history of belligerency, 
the declaration of modern principles was followed by a reaction 
in practice to the most utter violence, owing to the fierce 
character of the Titanic strife which convulsed Europe after 
the French Revolution. 

The Napoleonic struggle marked at once the beginning of a 
true appreciation of neutral duties, and the extreme depreciation 
of neutral rights ; and the power which elucidated the one and 
suffered the other was the United States, the only considerable 
nation of European civilisation that was not involved in warfare. 
Against them the Rule of 1756 was extended by England to 
prohibit any trade whatsoever, ordinaiy or extraordinary, between 



10-4 Laio of Private Froiierty in War on Land and Sea. 

a neutral and the colonies of an enemy, and in order to prevent 
evasion of the law a new principle was enunciated which has 
since played a large part in the law of contraband. 

By the doctrine of " continuous voyages," propounded by 
Sir W. Grant in the case of " The AVilliam," ^ no mere touching 
at a neutral port could prevent the confiscation of a neutral 
vessel if its voyage was really from a colony to the enemy's 
country. The Court looked to the voyage as a whole and the 
true intention of the trader, and not at his colourable pretensions. 
Against the United States again, in particular, were du-ected the 
Milan and Berhn decrees of Napoleon and the retaliatory 
Orders in Council of England in 1812. These decrees practically 
declared the whole English coast and the whole coast of the 
French Empire respectively under blockade, and involved the 
absolute cessation of neutral commerce. 

The enormous armies employed on both sides were not 
deemed sufiicient weapons in the Titanic struggle ; a ruthless 
war on commerce upon both sides was entered upon, and in that 
war the neutral was threatened on either side by extreme 
penalties if he interfered. As Mahan says of Napoleon's 
Continental decrees: "Having settled the business of belli- 
gerents, with the exception of England, very much to his liking, 
he was now on the point of settling that of neutrals in the 
same way." ^ And England, in reply, as a matter of self- 
preservation, adopted a like policy, so that the one neutral 
that possessed an important commerce was fairly caught between 
the devil and the deep sea. In fact, the demand of either 
belligerent had come now to be, not that the neutral should 
refrain from helping his enemy by extraordinary warlike com- 
merce, but that he should actually help him against the foe by 
desisting from his ordinary commercial relations with him. Such 
a demand was more than a self-respecting neutral could tolerate, 
and the United States, which, under Jefferson, had laid down 
the essentials of neutral duty, became, imder Madison, the cham- 
pion of neutral rights. Tlie war of 1812 — 1814, though in its 
result indecisive, had at least this great consequence, that it led 

' Snow, p. 505 ; 5 C. Rob. 385. "• Mahan, "War of 1812—1814." 



War and the Property of Neutrals {Historical). 105 

the nations to recognise that there was a limit to belligerent 
demands and to neutral acquiescence. 

As the French Revolution had enunciated the principles 
which govern the relations of belligerents to the private property 
of an enemy, so at the end of the wars which sprang from the 
French Revolution a clearer idea had dawned of the principles 
which should govern the relations of belligerents and neutrals. 
These principles were given legal form and almost universal 
validity in 1856 at the end of the next considerable European 
war, when the representatives of the great European powers 
signed the Declaration of Paris. 

With this charter, which sealed the work begun by the Armed 
Neutrality, begins the history of the modern usage of war in its 
relation to neutral property. The United States did not sign 
the Declaration because their representatives held that it did not 
go far enough ; but in practice during the Spanish- American war 
of 1898 they followed its rules. Its provisions may, therefore, 
be considered as the accepted /t^s gentium, though, as will be seen, 
the ingenuity of belligerent nations has contrived to whittle away 
some of the safeguards that they intended to give to neutral com- 
merce. Even the first article of the Declaration, the apparently 
absolute abolition of privateering, has been to some extent evaded 
by the formation of " Volunteer na\aes " by nations at war. 
Prussia invented this device in 1870, and it was followed and 
improved upon by Russia in its war with Japan, when the 
" Smolensk" and the " St. Petersburg," sailing through the Dar- 
danelles as merchantmen, suddenly transformed themselves into 
cruisers and started to prey upon neutral shipping. To-day, the 
chief maritime powers have arranged to tm-n parts of their mer- 
cantile marine into commerce-destroyers at the outbreak of war. 
The second provision of the Paris Declaration, which makes the 
neutral flag cover enemy goods when they are not contraband, 
is partially defeated by the extension of contraband and the 
enforcement against neutral vessels of the continuous voyage 
principle. The third provision, which exempts neutral goods 
from capture on enemy vessels, is threatened by the growing 
habit of sinking enemy prizes. 



106 La^o of Private Projicrfy in War on Land and Sea. 

The law has changed, hut the determination of the belli- 
gerent not to allow nentral individuals to interfere at all with 
his rule of force against his enemy is as firm as ever. The rights 
of neutrals are, indeed, always in a position of unstable equili- 
brium. In their very nature they are the results of a compro- 
mise, and, like most compromises, they have little stability. On 
the one side, the neutral desires and thinks it is his right to 
carry on his trade with either belligerent without any change 
from the conditions of peace time ; and he may even hope to 
increase it through the greater need of his customer and his 
greater demand for imported goods. On the other hand, either 
belligerent wishes to impair the resistance of his adversary as 
far as possible, and to prevent him from receiving not only 
military supplies but sustenance of any kind. In the case of his 
own subjects and the subjects of the enemy, ho endeavours to 
cut off all trade by confiscating their goods and their vessels 
which are engaged in it. But in the case of neutrals he is 
compelled by the common opinion of nations to reduce his 
demands to the penalising of all trade which directly conflicts 
with his military operations, or directly assists the operations of 
the enemy. In the stress of war, however, he is always apt to 
give the rights which remain to him the widest possible exten- 
sion, and to limit very closely the indulgences which neutrals 
have won. There is, then, the more need that the laws prescribing 
the relations of neutrals and belligerents should be clearly 
defined and fixed by an international jural body, and revised 
from time to time when the experience of war has proved the 
need for revision. The next Hague Conference will doubtless 
consider the law of neutrality carefully, and will probably be 
able to draw up a code which will be binding upon civilised 
nations. Even so, however, the position of neutrals will still be 
inadequately secured, for in the stress of war laws are distorted 
and evaded and openly violated unless they have a coercive 
sanction. 

It is, perhaps, not too much to hope that the Hague Confer- 
ence will be able to insist upon the institution of an Inter- 
national Court of Appeal or Prize Court, to which neutral 



War and the Property of Neutrals {Historical). 107 

owners who feel themselves aggrieved by the sentence of the 
belligerent tribunal may, at their own risk, carry their cause. 
But the broader improvement in the position of neutral 
traders can only come from the fostering and growth of a 
popular opinion which will limit the belligerent's inter- 
ference to commerce which clearly and directly conflicts 
with his military necessity. 



( 108 ) 



CHAPTER IX. 

WAR AND NEUTRAL COMMERCE AT SEA. 

The primary belligerent right which may be exercised against 
all the world is the right of self-preservation. When one 
nation is fighting for life, the convenience of the rest is sub- 
ordinate to his necessity. The consent of the ages allows him 
to interpret that necessity broadly. All neutral commerce, even 
when it is being carried on with another neutral State, is subject 
to molestation in wai', owing to the belligerent's right of search, 
which is the chief instrument of his/Hs belli, and which overrides 
temporarily the exclusive sovereignty of the shipowner's state. 
With certain kinds of trading the belligerent's interference is 
complete, for by his right of self-preservation he may confiscate 
neutral property in so far as it affects his military operations 
and the course of the war ; and, by way of penalty and 
warning, he may attach the offence of the cargo in certain cases 
to the vessel. He has the right to prevent a neutral subject 
from suppljdng his enemy with the means of offence or 
resistance, and if he is able to effectually watch the whole or 
part of the coast line of the enemy, he may further forbid 
neutrals, under severe penalties, to have any communication 
with that part of the hostile territory. Lastly, he may forbid a 
neutral to employ his ships for certain services which directly 
assist his enemy. These belligerent rights comprise the three 
heads of interference with neutral subjects, kno■\^^l as contraband 
trade, blockade, and unneutral service. To give full effect to 
his rights, the belligerent's properly commissioned cruisers have 
the power of visit and search over all private neutral vessels, 
and his sanction is the power of confiscating the offending 
vessel or cargo after it has been condemned in his own Prize 
Court. 



War and Neutral Commerce at Sea. 109 

The belligerent's right of search and visit, and, even more, the 
right of detaining any suspected vessel, is one of his most far- 
reaching privileges, and also one of the most oppressive upon 
neutrals; for it involves the innocent trader as well as the 
carrier of noxious cargoes. So far as the present practice goes, 
it enables his man-of-war to hold up a neutral vessel in any 
quarter of the globe, to examine its papers, and, if it thinks fit, 
to bring it in to one of its own ports for stricter examination. 
Resistance to this right involves the vessel in confiscation. 
Even when it turns out that the suspicion of the belligerent 
was unfounded, and that the vessel is innocent, the Prize Court 
mil seldom award the neutral damages for the delay or even 
the costs of the enquiry. The English rules upon this point 
were elaborately argued in the case of two vessels seized during the 
Crimean war,^ the " Ostsee " and the " Leucade," whicli were 
heard respectively before the Vv'vry Council and the Admiralty 
Com-t, presided over by Dr. Lushington. The former Com-t did, 
in fact, award damages and costs to the owner where his vessel 
had been brought in on the charge of an attempt to violate a 
blockade that never existed. But Dr. Lushington declared that 
this was only to be done where the belligerent cruiser had no 
reasonable ground whatsoever for bringing a vessel in. But 
where the captor had any probable cause for detention he is 
considered to be a bond fide possessor, and is not responsible for 
any losses or injuries subsequent to capture arising from acci- 
dental causes.^ This rule may obviously inflict very considerable 
losses on neutral trade of a perfectly innocent character. England's 
demand for an apology in regard to the detention of the P. 0. 
steamer "Malacca" by the Eussians in 1902, and Germany's 
claim against us for the detention of the "Bundesrath " in 1900, 
point to a growing dissatisfaction among the neutral powers at 
wanton interference, and their anxiety to make a belligerent 
pay for the losses caused to their innocent subjects. The same 
tendency is shown by the demand for the restriction of the right 
of search, which is dealt with later. It is really remarkable that 
such a stringent burden upon neutrals has remained to our day in 

> Cf. Spinka' Prize Casc8, 174, 217. « Tlio Betsey, 2 Rob. 93. 



110 Laio of Private Properly in War on Land and Sea. 

almost all its severity. So far from diminishing, the aggressions 
on neutrals of nations at war tend to become more vexatious, 
partly because steam-power gives cruisers greater chances of 
interference than they had in the days of sailing vessels, partly 
because international commerce is to-day more sensitive than it 
was a hundred years ago to any check. 

In the modern development of contraband •we can clearly 
trace the encroachment of belligerent pretensions upon the legal 
limitations now imposed on them. From the time of Bynkers- 
hoek there has been a continuous movement on the Continent 
against the retention of the class of conditional contraband; but 
the action of the French Government in declaring rice con- 
traband of war during their " sort of war" with China in 1884, 
and the decisions given by Russian Prize Courts during the 
war with Japan, show that the Continental limitation to two 
classes weighs more hardly upon neutral traders, and its 
universal adoption would certainly not be to their good. It is 
the English rule that absolute contraband may be seized if 
consigned to any belligerent port, but conditional contraband 
only if consigned to a belligerent naval port, so that it may be 
presumed that the goods are destined for the enemy's forces. 
But the Russians, holding as absolute contraband what the 
English regulations admit to be only conditional contraband — 
i.e., what is only contraband according to its quality or its 
destination — condemned cargoes of coal, flom*, cotton and rail- 
way material wherever they were seized and whatever their 
place of discharge,^ despite the fact that each of these commo- 
dities can very well be used for peaceful as well as warlike 
purposes. As Mr. Secretary Hay pointed out in his protest at 
the confiscation of an United States vessel, the " Arabia," for 
carrying flour and railway material, " tliey broke down the 
distinction between contraband and blockade." Moreover, their 
conduct in condemning the vessel as well as the cargo in these 
cases of conditional contraband was an absolute illegality. The 
regular penalty for contraband is confiscation of the contraband 

' Cf. the cases of Tlio Allanton, The Caklias, The Kiiight Commander ; Smith 
& Sibley, International Law in the Rug30-Japanc.se War. 



War and Neutral Commerce at Sea. Ill 

cargo. If, however, the contraband part of the cargo consists of 
three-fourths of the whole, or if the owner of ship and cargo is 
the same, or if the ship has sailed with false papers or used some 
other fraud, or lastly, if the cargo is peculiarly noxious, e.g., 
ammunition, then the ship as well as the goods are confiscated. 
The ship, otherwise, which carried contraband loses its freight 
and expenses, but is released.^ The French naval instructions 
of 1870, indeed, permit the confiseation of the vessel carrying 
contraband ; but this, according to the most reliable international 
practice, should only be done in the aggi-avated cases mentioned 
above. 

Far more serious, however, than the Eussian aberrations in 
regard to sentences for contraband trade was their habit of 
destroying neutral prizes instead of bringing them into port for 
adjudication. Here they professed to be exercising what was a 
regular right of the belligerent ; and they do, in fact, find 
support from some modern jurists. Their Naval Regulations 
of 1895 (art. 21) and of 1901 (art. 40) permit the destruction 
of neutral prizes. Similarly, the French code permits it, while 
the English, American and Japanese manuals discourage it, but 
do not positively prohibit it. But putting aside pleas of neces- 
sity, on general principles the practice is wrong and should be 
prohibited, saving only special cases. Where a neutral vessel, 
seized for carrying contraband, cannot, owing to some genuine 
necessity, be brought into port by her captor, it is not unreason- 
able that she should be sunk, provided always that her caro-o is 
clearly and certainly contraband and her papers are secured, so 
that there may be proper evidence of her character. But in 
such cases full compensation is to be paid to her owners unless 
the ship, as well as the cargo, would have properly been con- 
demned by a Prize Court. In the cases of " The Acteon " and 
"The Zee Star,"- Lord Stowell made it clear that when the 
innocent neutral vessel is destroyed by the captor, the owner is 
entitled not only to restitution but to damages and costs ; 
unless the conduct of his vessel is partly responsible for the 
destruction, when he is entitled to restitution only. The 

1 Cf. The Kiugcudo Jacob, 1 C. Rob. 'JO ; and The Neutralitat, 3 C. Rob. 296. 
» Cf. 2Dod8. 48; 4 Rob. 71. 



112 Laiv of Private Froj)er/// in War on Land and Sea. 

award of damages to the neutral implies that the destruction is a 
tort, which, as against the neutral, cannot be excused by the 
plea of necessity. So far only is the practice of sinking neutral 
vessels at sea justifiable. "When the vessel carries doubtful 
contraband, or where there is no pressing necessity, the practice 
is utterly reprehensible. It involves a misunderstanding of the 
nature of belligerent rights over neutral property. His conquest, 
to express it so, is not legally complete till the ship or the cargo 
which he has seized has been condemned by a competent Court. 
Until that event, only the necessity of war, strictly interpreted, 
can give him a right to dispose of his capture. 

No doubt the considerations which impel modem cruisers to 
destroy their enemy prizes — the preciousuess of coal and the 
difficidty of sparing prize crews, etc. — impel them also to sink 
neutral prizes, but they have not the same right in the one case 
as in the other. At the best the captor has a right to seize or 
destroy the cargo if it is absolutely contraband ; and if it is 
conditional contraband he may equitably exercise a right of 
pre-emption at a fair market price. But the ship is not his 
property to deal with. Dr. Baty has proposed a rule which 
might well form part of the laws of war on sea : " In no case 
is it permissible to sink or otherwise destroy a neutral prize ; 
but absolute contraband may be removed to another vessel or 
jettisoned in case of necessity."^ It might be advisable to 
substitute " certain " for " absolute," for a clear case of condi- 
tional contraband should be under the same conditions as a case 
of goods absolutely prohibited. The excesses of the Russian 
navy in sinking the English vessels the " Knight Commander," 
the " St. Kilda," and the " Hipsang," show a more flagrant 
violation of neutral rights than has been perpetrated since the 
Napoleonic wars, and they cannot be palliated by the plea of 
necessity, which has usually been the scapegoat of all belligerent 
violence. It is only fail* to add that the Supreme Prize Court 
at St. Petersburg has reversed the sentences in the two last 
cases, and awarded compensation to the neutral owners. 

Besides the sinking of prizes, modern na^•al war has exliibited 
another innovation which, though it is a fresh encroachment 

' Law Magazine, 1906. 



War and Neutral Commerce at Sea. 113 

upon neutral trade, is based upon the general principles of 
belligerent right to stop contraband trade, and is so far justi- 
fiable. This is the doctrine of continuous voyages or continuous 
transport, which was first extended to contraband in the 
American Civil "War. In the revival of the rule of 1756, during 
the Napoleonic wars, which proliibited neutrals from engaging 
in the colonial trade of a belligerent, the Enghsh Admiralty 
judges, Lord Stowell and Sir Wm. Grant, laid dowTi that a 
colourable landing^ of the cargo at a neutral port did not 
protect a neutral vessel engaging in such trade from confiscation, 
if the cargo was afterwards shipped to the enemy's country. 
During the American Civil War of 1862 — 4, many English 
vessels endeavoured to run the blockade of Southern ports, or 
to convey munitions of war to the Confederates ; and in order 
to avoid detention in the course of their ocean voyage, their 
papers were frequently made out to one of the neutral ports off 
the coast of the United States, in the Bermudas or Mexico. 
Sometimes there was only a colom'able calling at the neutral 
port, sometimes a genuine transhipment ; but in cither case the 
Federal Courts refused to pay respect to the fiction, and they 
condemned the vessels brought in despite their neutral destina- 
tion, if there was any reasonable suspicion that their contraband 
cargo was destined for the enemy. This was the basis of their 
decision in the cases of " The Stephen Hart," " The Bermuda," 
"The Peterhoff," "The Springbok." ^ In the first of these 
cases the Court held that " contraband goods are to be con- 
demned if destined for the use of the enemy, and that the 
offence is in the destination and intended use of the property 
laden on the vessel and not in the incidental ancillary voyage 
of the vessel." This was a departiu-e from the rule of Lord 
Stowell, who said, obiter, that a ship can only be condemned out 
of her own mouth ; and in the leading case of " The Imina" ^ he 
laid down that goods going to a neutral port cannot come under 
the description of contraband, even if they are probably destined 



» Cf. The William, etc., Snow, p. 505. 
- Suow, p. 813 ; 6 Wallace's Reports. 
3 3 Rob. 1G7. 



114 Law of Private Proper I g in War on Land and Sea. 

for the enemy's service, because the vessel must he taken " in 
delicto " in the actual prosecution of a voyage to an enemy's port. 

There was, however, at least one precedent for the American 
action in the condemnation by a French Court in 1854 of the 
" Frau Howina," ^ a Hanoverian ship captured on a voyage from 
Lisbon to Hamburg with a cargo of saltpetre, on the ground 
that the real destination of its cargo was Russia. There was 
also an obiter dictum of the distinguished American judge, 
Story, delivered during the English-AmericanWar of 1812 — 14, 
that if contraband goods were destined to a neutral port for the 
direct and avowed use of the enemy's army or navy, they would 
be confiscable. And he gave as example the case of goods 
assigned to a Spanish harbour where the British fleet might be 
lying. 

The action of the Federal Courts during the Civil War was 
doubtless an extension of this principle, and much was written 
at the time, and more has been written since, against their 
" Guesses at Truth." In England especially much feeling was 
aroused by the condemnation, and in the case of Hobbs v. 
Henning,- which dealt with an insurance contract on a part of 
the cargo of the " Peterhoff," Erie, C. J., spoke disparagingly 
of the American judge's verdict based on an allegation of 
mental processes. But his decision that the insurance on the 
cargo was good cannot be taken as authority against the 
American decision, because in the following year the Court of 
Common Pleas, in the case of Seymour v. The London and 
Provincial Marine Insurance Co.,^ held that a policy upon 
another part of the cargo of the " Peterhoff," with warranty 
against contraband of war, was invalid, thus overruling the 
former case upon this point. Mr. Justice Willes declared that 
the criterion of contraband was the intention that the goods 
should, in the course of the same transaction, go on to the Con- 
federate States, agreeing therein with the American judges. 

The distinction must be clearly made between the evidence 
upon which the American , Courts condemned the neutral 
vessels and the principle which they applied. As regards the 

1 Calvo, sect. 2761. " 17 C. B. 791 ; 34 L.J. C.P. 117. » 41 L. J. C. P. 193. 



Wa?- ami Neutral Commerce at t^'ea. 115 

first, they may have been at fault; as regards the second — 
continuous transport in contraband trading — later practice 
and the general reasoning of the case justify them. Much 
has been made^ of Lord Stowell's decision in " The Imina " 
and on other cases where he acquitted noxious cargoes con- 
signed to Emden, a neutral port in Prussia which was 
notoriously a place where contraband was smuggled by canal 
traffic to Holland. But Lord Stowell's decision and dicta, 
great as they are, are not binding rules for all times and all 
circumstances. 

In this connection it is interesting to note that in the latest 
English prize case, " The Mashona," already referred to,- the 
criterion of ultimate destination was applied to merchandise 
seized on the ground that it was trade with alien enemies. The 
boat was destined for Lorenzo Marques, a neutral port, but 
the goods were proceeding to the Transvaal, and were, therefore, 
condemned. The conditions of modern commerce, and more 
particularly the spreading of the network of international 
railways, which makes it easy to transport contraband goods 
from a neutral port to a belligerent destination, have justified a 
change, and the two Governments whose publicists formerly 
considered the practice reprehensible have followed in the last 
years of the nineteenth centiuy the American precedent. 
International law ia a progressive thing, and it is not to be 
expected that its progress will always tend to the greater 
security of property and the respect of neutral trade. The 
Prize Courts of throe great maritime powers have held within 
the last fifty years that the ulterior hostile destination of 
contraband goods entitles a belligerent to seize them though the 
vo^'age of the ship will end at a neutral port, and this goes far 
to establish a new usage. In 1897 the Italians were at war 
with Abyssinia, which has no sea-port, but in the Ped Sea one 
of their cruisers seized a Dutch ship, the " Doeljuik," laden 
with contraband of war, and proceeding to the French port of 
Djiboutil ; aud the Court condemned it on the ground that the 
goods were destined for Abyssinia. This case was the more 

' Cf. Atherley-Jones, War ami Conimeice. - Cf. p. 51, supra. 

S {2) 



IIG Laiv of Private Proper tij in War on Land and Sea. 

remarkable because tliere had been no declaration of war, and 
neutrals are not generally bound to recognise a state of war till 
the belligerents have made a declaration, or issued a proclamation 
to them. 

Still more significant of the change in practice was the action 
of the British Grovernment during the Transvaal War in 
stopping and searching vessels for contraband in African waters. 
The South Afiucan Eepublic possessed no sea-board, but it was 
a matter of notoriety that they received munitions of war from 
neutrals through the Portuguese port of Lorenzo Marques in 
Delagoa Bay. In December, 1899, and January, 1900, three 
German vessels, the " Herzog," the " General," and the 
" Bundesrath," were seized on suspicion of carrying contraband, 
but after search they were set free as there was no evidence of 
contraband trade. The German Government, however, strongly 
protested, but Lord Salisbury maintained in the face of the 
English Admiralty Manual that the seizure was perfectly 
justifiable, and quoted the opinion of Bluntschli, " Si les navires 
ou marchandises ne sont expedies a une destination d'un port 
neutre que pour mieux venir en aide a I'ennemi, il y aura 
contrebande de guerre et la confiscation sera justifiee." In this 
particular case compensation for delay was paid to the neutral 
owners because the suspicion was unfounded, but the new 
principle may be taken to have been accepted by England. 
Seeing that the offence of contraband lies in the goods and not 
in the ship, the disregard of the ship's destination is defensible ; 
for the basis of the belligerent right against the neutral trade is 
that he may prevent articles of an offensive nature being 
carried to his enemy. Twiss' rhetoric about the doctrine 
of prospective continuity " opening wide the floodgates of 
visitation and search which it was one object of the Declaration 
of Paris to close partially " is beside the mark. The search of 
vessels may take place in any case : the new doctrine merely 
permits the result of the search to be acted upon when there is 
suspicion amounting to certainty. 

The principle of continuous transport, though not extended 
by Lord Stowell to contraband, was applied by him to what has 
been known as " analogues of contraband," and what is better 



War and Neutral Commerce at Sea. 117 

called '' unneutral service." A neutral vessel is forbidden to 
carry soldiers or officers for the belligerent, to transmit messages, 
or carry official despatches which may deal with the conduct of 
war ; and the penalty for a breach of this rule is the confiscation 
of the neutral's ship, and any part of the cargo which belongs 
to him. In the case of "The Eapid,"^ an American vessel 
bound from New York to Tonningen, two neutral ports, Lord 
Stowell suggested that the neutral destination would not protect 
the master if he had reason to think that he was carrying offen- 
sive despatches. To-day the offence of unneutral service may 
be incurred by the transmission not only of signals but of "tire- 
less telegraph messages, and during the Russo-Japanese War 
the Russians seized the j^acht of the special correspondent of 
the " Times " (the " Haimun ") on the suspicion that it was 
being employed to send messages of their movements to the 
Japanese fleet. They issued a note to the Powers that they 
would treat correspondents whom they caught in the act as 
spies, and confiscate their vessels and apparatus. The first part 
of the threat was unwarranted, but the second seems justified 
on the general rules of unneutral service. The spread of sub- 
marine cables and of wireless telegraphy is creating a new 
question in the relation of belligerents to neutral property, 
which has not yet been authoritatively treated either by con- 
ventions or Prize Courts. The old law and the old cases about 
the carriage of despatches are almost obsolete, owing to the 
change in the method of communications, but the principles 
embodied in them may be applied in part to the new conditions : 
and, for the rest, the rules of military occupation in its relation 
to private property on land apply. It is submitted that the 
practice of nations should proceed on the following lines, making 
no distinction in all cases between public and private cables : — 

(1) Cables uniting two neutral countries should in all cases 

bo inviolable. 

(2) The belligerent should have the right of cutting cables 

uniting a neutral and the enemy country, either if he 
has military occupation of the coast where the cable 

' Snow, p. 480 ; Ed-wards' Reports, 2-28. 



118 Laio of Private Property in War on Land and Sea. 

reaches the land ; or if he is blockading the port and 
can raise the cable, then within the territorial waters of 
the enemy, or on the high seas. The cable should be 
restored as soon as military needs permit. 

(3) The belligerent may cut and destroy the cables between 

his G\\n and the enemy country. 

(4) Whenever the cable of a neutral country is damaged, the 

belligerent should pay compensation. 

These are practically the rules which were recommended by 
the Institute of International Law in 1902, and their guiding 
principle is that the belligerent may interfere with cables when 
they seriously affect his military movements, but then only. 
Upon the same principle he may seize all public and private 
wireless telegraj)hy stations iu the enemy's territory, or seize 
any neutral vessels which endeavour to send wireless messages 
to a port which he is blockading or to the enemy's fleet. For 
such conduct is an unwarrantable interference with his military 
operations, and subjects the wrongdoer to the full penalticsof 
unneutral service. 

In this direction, then, the belligerent's control over neutrals 
will probably receive extension. On the other hand, there is a 
growing movement for exempting regular mail steamships from 
search and detention by belligerents, who have by existing law a 
technical right to overhaul their bags on the chance of finding 
some incriminating document. Seeing that the mutual inter- 
course of large parts of the world depends upon the regular 
service of these lines, and also that the messages of a belligerent 
to-day almost invariably go by telegraph and not by letter, the 
gains to be obtained from such interference are quite incom- 
parable with the injury caused to neutrals. The detention of 
the German mail-boat, the " Priuz Hoinrich," iu 1903 was of a 
piece with the other reactionary tendencies in Russian naval 
practice. They applied also the old prohibition to neutrals of 
engaging in the coasting trade of the enemy during war in the 
case of the German vessel " Thea." The ship was destroyed 
before condemnation, but after the war compensation was paid 
to the owners.^ 

' Cf. Tho Times, March, 1907. 



War and Neutral Commerce at Sea. 119 

The Japanese likewise put into practice the old rule, when 
their Courts, in 1905, condemned the United States steamer 
" Montara," which during the war had taken out goods to 
Alaska, and was proceeding thence with a cargo of sealskins to 
Russian ports. It was alleged that this trade was conducted 
with the special permission of the Russian Government, that it 
amounted to the carrying on of trade hy a neutral which was 
closed to him in peace time, and that thereby the neutral ship 
had identified itself with the enemy service.^ The Japanese 
judges here applied in a new form the rule of 1756, which had 
been neglected for a century, and indeed declared obsolete, and 
applicable only in forgotten corners of the earth's surface. The 
revival of protective bounties to national shipping has to some 
extent justified the revival of the old belligerent practice, and 
nations at war will always look with suspicion upon the con- 
version of neutral vessels to the use of the enemy. 

The same Japanese Court condemned the British ship " Aus- 
tralia," because it had been actuall}'' chartered to the Russian 
Government or their agents. Yet, the mere fact of a belligerent 
charter does not make a ship qno facto confiscable. It is only when 
the chartered ship passes under the physical control of the 
belligerent and is employed in the furtherance of hostilities or 
participates in the actual fighting that condemnation is regular. 
Thus, in the old case of " The Orozembo," the neutral vessel 
which was condemned was conveying high officers of the 
enemy (Holland) from Lisbon to the Dutch colony of Batavia ;- 
and in the case of "The Friendship," ^ decided about the same 
time, the condemned vessel was acting as an enemy transport. 
In both these circumstances there was more than the act of 
chartering by the enemy, and sufficient evidence to warrant 
confiscation on the ground of voluntary identification of the 
neutral with hostile service. The Japanese Court showed a 
tendency to extend the old rule against imneutral service 
beyond the old standpoint, not only to where there is no 
mens rea, but to where there is only possible identification 



> The Times, Dec. 22, 1905. • Snow, p. 4S3 ; 6 C. Eob. 430. 

=> 6 C. Rob. 420. 



120 Laiv of Private Propertj in War on Land and Sea. 

with the enemy. lu this aspect, it is only one of many 
indications given in the Russo-Japanese War that "belligerents 
will in future stretch the rights left to them against neutral 
trade to their extreme limit. This is one of the indirect results 
of the Paris Declaration, which makes it impossible to attack 
enemy property under a neutral flag. The belligerent being 
unable to touch the property as such, tries to incriminate the 
neutral ship wherever he can stretch the law to that effect ; and 
in the result the neutral owner, in particular cases, is made to 
pay for the indulgence granted generally to the neutral flag. 

Ever since the first Armed Neutrality of 1780 there has been 
a strong movement on the Continent in favour of exempting 
neutral merchantmen from the belligerent's right of search 
when under the convoy of ships of war of their own nation. 
The claim was first made by Queen Christina of Sweden in 
1653,^ during the war between England and the United 
Provinces, and it was repeated by the Dutch in 1654, when 
they were themselves neutral during the war between England 
and Spain. At the end of the eighteenth century the demand 
for the indulgence had become strong, and treaties embodying 
it were common, but England steadfastly refused to yield to it. 
Lord Stowell condemned a number of convoyed Swedish mer- 
chantmen who had resisted the search by British cruisers, and 
laid down the law upon the subject in the leading case of " The 
Maria." 2 "The authority of the sovereign of the neutral 
country being interposed in any manner of war force cannot 
Icgnlh/ vary the rights of lawfully commissioned belligerent 
cruisers, and the penalty for the violent contravention of this 
right is the confiscation of the property so withheld from search." 
English Admiralty judges and English statesmen have always 
refused to recognise that the presence of a neutral ship of war 
is a guarantee that the convoyed vessels are innocent ; as Lord 
Brougham put it,'' " the presence of the convoy ship, so far from 
being a sufficient pledge of their innocence, is rather a circum- 
stance of suspicion." The United States till recently followed 



» Cf. Hall, op. cit. p. 718 ff. ^ Snow, p. 51.5 ; 1 C. Rob. 350. 

•' Hall's International Law, p. 72o. 



War and Neutral Commerce at Sea. 121 

the English rule, but their naval code of 1900 exempts convoyed 
merchantmen from search. This is a significant indication of 
the trend of modern opinion, in view of their earlier usage. 
The English attitude in this, as in other questions of contraband, 
is in favour of individualism, i.e., of leaving the belligerent 
Government to deal with the individual neutral trader ; the 
Continental publicists and Governments alike agitate for inter- 
ference of the neutral State, so as to eliminate the interference 
of the combatants. The difficulty of transporting a number of 
vessels of different rates of speed in one body will possibly make 
the question of convoy in future mainly an academic one ; but 
in the interests of comity and good feeling with neutrals, 
England would probably be willing to adopt the attitude which 
she held towards Eussia in 18Ul, when she agreed to accept the 
guarantee of the neutral officer in charge of the convoy, unless 
there was ground for suspicion ; and in such a case the belli- 
gerent commander was to search the vessel in the presence of 
the officer. This is a limitation of the light of search which it 
is not unreasonable to concede. 

The legitimate converse of the freedom of convoyed mer- 
chantmen is the confiscation of cargo of a neutral owner upon 
an armed merchantman of a belligerent. The American 
decisions allow confiscation only when the neutral owner is 
found guilty of complicity in the resistance of the vessel ; (the 
" Nereide " ^) ; while Lord Stowell held that complicity was 
implied by the very act of placing the goods on such a vessel.- 
His severe rule seems jiist, and it is worth recalling in these 
days of liners convertible at short notice into war-ships. 
Property captured on an armed Nord-Deutseher Lloyd steamer 
during war with Germany would be fair prize, for the neutral 
shipper must be regarded as having intended resistance. 

The most oppressive restriction which a belligerent to-day 
may exercise over neutral trade is his right to blockade a port 
or a portion of coast-line whenever he can do so effectively. 
AVhen blockade by sea forms a part of siege operations against 
an enemy's town, the prohibition of all neutral trade with the 

' 9 Cranch, 388. 2 The Fanny, 1 Dods. 448. 



122 Law of Private Property in War on Land and Sea, 

town, and the confiscation of any vessel which endeavours to 
violate the blockade are the perfectly natural and intelligible 
rights of the belligerent. His ships at sea only perform the 
same office as his troops upon land. This is equally true when 
his purpose is to prevent any supplies from the sea reaching a 
hostile land force. Here the ships are virtually cutting off 
lines of communication. ]3ut the case is very different with 
what are called commercial blockades. Here the belligerent 
claims the right of barring access of all innocent trade to any 
port — and in fact any length of coast, which he can guard by his 
fleet — even although he is conducting no other military operations 
in that area, and is not directing the movement against any 
land force of the enemy. It is really an operation peculiar to 
maritime warfare, which unfortunately presses even more on 
neutrals than enemies. The right in some cases can hardly be 
justified by military necessity, but it is said to be impossible to 
distinguish in practice a commercial from a military blockade, 
and the results of the two shade into one another. It is also 
argued that a nation strong in naval power should have equal 
rights of besieging with a predominant military nation. Modem 
conventions have not disputed the general legality, but they 
have defined the conditions of this right. Since the Declaration 
of Paris, 1856, a blockade, to be binding, must be effective, i.e., 
the blockading power must be able substantially to prevent any 
neutral trade from approaching the prohibited area. Con- 
tinental powers, since the time of tlie Armed Neutralities, 
have tried to lay down fixed rules for the number and disposi- 
tion of sliips necessary to maintain a legal blockade ; but the 
Anglo-American practice has always been more elastic and has 
recognised a valid blockade whenever the force employed does in 
fact make it dangerous for neutrals to enter. The vague nature 
of the Paris Declaration and the practices of the American 
Civil War and the Danish war of 1863 — 1864 suggest that 
our interpretation of blockade will be generally followed. 

Commercial blockade very seriously affects the trade of the 
enemy, especially when applied to a large port, and it may 
indirectly be of immense value to military operations and the 
general operations of the war. This was admirably illustrated 



War and Neutral Commerce at Sea. 123 

in the American Civil War. Until that struggle American 
statesmen had questioned the legality of commercial blockade ; 
and John Marshall, C. J., ^vTote in 1800 : ^ "It is difficult to remit 
the conviction that the extension of blockade to towns invested by 
sea only is an unjustifiable encroachment on the rights of 
neutrals," And Mr. Cass, in the middle of the nineteenth 
century, on the breaking out of the Italian war, issued a circular 
to the United States representatives in Europe to the same 
effect. Yet less than ten years later his own Government owed 
its preservation very largely to the exercise of that right which 
he condemned. The blockade of the whole coast-line of the 
Confederate States by the Federal fleet, which was the largest 
blockade known to historj^, was the chief means of weakening 
the position of the South, and was as important a military 
operation as Grant's or Sherman's campaigns. Captain Mahan 
says : " If the principle of Marshall had been established in 
International law before 186-J, innocent private property would 
have gone freely to the Southern ports ; commerce, the source 
of national wealth, would have flourished in full vigour ; and 
the price would have been the killing of hundi-eds of thousands 
more men in an attempt to maintain the Union, which would 
probably have failed, to the irreparable loss of both sides." 

Besides historical testimony, which vouches for its military 
value, commercial blockade is supported by the fact that to 
destroy the communications with neutrals by sea is not less 
justifiable than to destroy them by land, and to do the latter is 
one of the first duties of an invading army. The imposition of 
blockade is, in fact, the counterpart upon the sea of the regula- 
tions issued by the army in military occupation which prevent 
the trade of the inhabitants with the outer world. The inter- 
ference with neutrals is the same in either case ; but upon the 
sea it appears harder, partly because it is less rigid. Owing to 
the less firm hold of the maritime belligerent, violation of his 
orders is attempted, and is followed by confiscation if unsuc- 
cessful ; on laud it is scarcely attempted. Any maritime power 
which may fight England in the future will certainly make one 

> Quoted in Mahan's War of 1812. 



124 Laio of Private Froperti) in War on Land and Sea. 

of its chief objectives the blockade of part if not of all our 
coasts, even if he lias not landed a single regiment upon our 
shores ; and neutrals will have no proper ground of complaint, 
because, in doing so, he will be executing a decisive operation 
of war. 

Of course, it may be a question whether torpedoes and sub- 
marines have not made large blockades impossible in the future. 
The investment, however, of Port Arthur by the Japanese fleet 
partly gainsays this objection, and the modern invention of 
wireless telegraphy has given the blockading power great 
assistance, which may counterweigh his added difficulties. 
Whether belligerents would have a right to blockade a place by 
means of floating or stationary mines is doubtful. In the case 
of " The Circassian,"^ it was held that a blockade may be made 
effectual by batteries on shore, if supported by ships afloat 
sufficient to Avarn off traders ; but a belligerent would appear to 
have no right to lay mines, except in his own or his enemy's 
territorial waters, and then only stationary mines; and this 
restriction would probably prevent him from enforcing a 
blockade by such means. The rights of belligerents in regard 
to laj'ing mines are still undecided, but it is submitted that it is 
an unwarrantable encroachment to lay them in the open sea. 

Blockade has proved in the past one of the severest incidents 
of war upon neutral commerce not only by reason of its 
thoroughgoing prohibition of trade, but also by reason of the 
penalties for its violation. Strictly, the offence of blockade- 
running is an offence of the ship, and primarily involves the 
confiscation of the ship, but the ship contaminates the cargo 
when knowledge of the blockade can be brought home to the 
OAATier of the cargo {v. " The Mercurius ") - ; and in modem 
times the knowledge of the owner is always presumed, and 
strong evidence is required to rebut it. In effect, therefore, the 
penalty is the confiscation of ship and cargo. Moreover, by the 
Anglo-American practice, as soon as a belligerent has publicly 
notified a blockade to neutral Governments, any ship sailing for 
the place blockaded is in delicto, and can be seized, and brought 

» 2 Wallace, 138. 2 1 C. Rob. 80. 



War and Neutral Commerce at Sea. 125 

in for condemnation. The offence is committed from the 
moment of sailing for the forbidden place. Even if the master 
of the ship is ignorant of the notice, that does not excuse him 
to the belligerent, though he may raise a claim of compensation 
from his own Government.^ The notice is held to involve a 
presiffnpfio Juris ct dc jure. The English practice distinguishes, 
indeed, between blockades by notice and blockades de facto, 
which arise when the commander of a station establishes with- 
out notice a practical investment. In this case, a neutral vessel 
cannot be seized unless it has, after warning from the outlying 
ships, still endeavoured to enter the place. But even if there be 
wrongful seizure in such a case, the captor is not held respon- 
sible for any loss which may befall the neutral by detention 
unless such loss is irreparable.^ 

The French, and the usual Continental, rule requires individual 
notice to the neutral vessel from the blockading squadron before 
an offence can be committed ; this usage certainly shows more 
consideration for the trader, but in view of the facilities afforded 
to blockade-runners by steam power and the notorious gains to 
be made by the enterprise, the indulgence seems somewhat 
uncalled for. Something between the English and the French 
rule would be equitable. Where there is a possibility of a 
neutral having no knowledge of a public blockade, or a reason- 
able hope of the blockade having been raised owing to the 
time which has elapsed since he left port, it seems only just 
that he should not be condemned without warning. The 
proclamation of President McKinley in 1898 laid down that 
this should be done dming the Spanish- American War. 

By the strict rule, a blockade by notice is taken to continue 
till notice of its removal is given by the belligerent, and any 
vessel sailing to the port before such notice is given is /// delicto;^ 
at the same time, if the invested place has fallen before the 
seizure is made, the best opinion is that the offence has not 
been committed, even if there was a wrongful intention origin- 
ally.'* In the case of " The Cii'cassian," already cited, the 
American Court, (Judge Nelson dissenting), held " that the 

1 The Noptunus, Snow, p. 490 ; 2 s The Columbia, 1 C. Rob. 15i. 

C. Rob. 110. * Tho Lisette, 3 Rob. 390. 

' Tho Bot8y, 1 C. Rob. 92. 



126 Law of Private Property in War on Land and Sea. 

occupation of a city by a blockadiDg belligerent does not 
terminate a public blockade if it previously existed," but this 
decision involves the strange consequence that a belligerent can 
blockade his own ports against neutral trade. Compensation for 
wrongful capture was subsequently awarded by the Mixed 
Commission on British and American Claims, so that it cannot 
be regarded as a legal precedent. 

This is true also of the American decision during the same 
war in the case of " The Springbok," ^ an English vessel bound 
from Liverpool to Nassau, in the Bermudas. The District 
Court of New York condemned the vessel with its cargo, on the 
ground that her true destination was one of the blockaded ports 
of the Confederates; but in 18G6 the Supreme Court released 
the vessel but confirmed the condemnation of the cargo because 
they maintained that it was a case of continuous transportation. 
To apply this doctrine to blockade is unfair and unreasonable, 
for the offence is in tho ship and not in the goods, as in the 
case of contraband. And unless the ship be taken in delido, 
the goods upon it, except they be contraband, cannot properly 
be confiscated. " Blockade by interpretation " is as gross a 
violation of neutral rights as the old paper blockades. The 
decision of the United States Court has been repudiated by the 
Institute of International Law, and cannot be recognised as a 
valid authority. The reverse principle is embodied in Lord 
Stowell's decision on " The Ocean " - and " The Stort." In 
the first case, merchandise which had gone by inland navigation 
from a blockaded port (Amsterdam) had been shipped from 
Rotterdam, which was not blockaded ; in the second, there was a 
shipment to Emden, whence the goods were to proceed to 
Amsterdam. Both seizures were held to have been improperly 
made by English cruisers. Seeing that the belligerent can 
check blockade-runners off the port itself, or otherwise has no 
right to declare a blockade at all, it is unfair to institute 
blockade by interpretation of neutral ports in the vicinity, on 
the ground that there is to be continuous transportation to the 
j)rohibited places. This, of course, does not prcijudico the right 
of the belligerent to confiscate auy noxious cargo upon tho 

' a Wallace, 1 ff. * Snow, p. 495 ; 4 C. Rob. 6, 6a. 



War and Neutral Commerce at Sea. 127 

vessel seized as contraband, and to enforce the principle of con- 
tinuous voyage against such trading if the evidence of ultimate 
destination is decisive. 

The laws and penalties of blockade apply equally to the 
egress and to the ingress of enemy and neutral ships, with this 
relaxation that a neutral vessel is usually permitted to leave the 
port with any cargo which it has loaded before the proclamation 
of blockade, or in ballast. A period of grace, usually fixed at 
fifteen days, is allowed for egress. Enemy property cannot 
leave it in any case, and therefore any transfer of a ship or 
cargo to a neutral after a blockade has been announced will be 
rigorously examined. If there is any fraud ^ confiscation will 
take place. Further, a vessel which has successfully run the 
blockade will be confiscated if it is caught in making its egress 
with or without cargo, and it is held to be vi delicto and liable 
to capture until the completion of its return voyage.- This is 
the French rule as well (cf. Ortolan, 2, 355) ; the offence is not 
" deposited " till the offending vessel has finished the journey. 
All these incidents make blockade a far more oppressive right of 
the belligerent than seizure of contraband. 

During the Crimean war an attempt was made to distinguish 
between the vessels of belligerents and neutrals in the case of 
blockade to the detriment of the latter. By an Order in 
Council a period of grace had been allowed to enemy traders, 
with cargo bound to or from the Russian ports on the Baltic, 
within which they might pass freely through the EugHsh 
squadron after a blockade had been proclaimed. Several vessels 
belonging to neutral owners were seized during this period and 
tried for violating the blockade. In the test-cases of " The 
Franciska " and " The Johanna Maria," however, it was held 
that such discrimination was unlawful, that a blockade implied 
a " universal prohibition of all vessels not privileged by law," 
and that limited blockades were illegal. In the words of the 
Privy Council judgment:^ "It is a gross \iolation of neutral 

» The Vrow Judith, 1 C. Rob. 151 ; Vigilantia, G C. Rob. 122. 
• Tho Ferdiuaiid I\Ioltko, Tudor, p. 1011. 
3 Moore, 10 P. C. C. 37 tf. 



128 Law of Privale Propoiij ia War on Land and Sea. 

rights to prohibit their trade and to permit the subjects of this 
country to carry on unre^tricted commerce at the same ports 
from which neutrals are exckided." This principle would seem 
to exclude the practice of giving licences to the ships of certain 
neutral powers to assist the blockade which was at one time 
recognised. The bare right to licence trade of a specific kind 
remains, but is almost unknown in practice. 

The special military needs of the belligerent power give him 
the special military right of penalising certain kinds of trade 
with the enemy, but at the same time they do not have the 
effect of making them illegal. As regards all other persons such 
trading remains as legal in war as it would be in peace ; and 
contracts dealing with it, in the absence of special provisions in 
the contract itself, are perfectly good and valid. The leading 
case of "The Helen "1 fixed the effect of a breach of blockade in 
this aspect, and follomng a series of former English decisions 
to the same effect laid down that contraband trade and blockade- 
running are not illegal acts according to the laws of the neutral 
country, but merely involve confiscation by a belligerent power 
Jure belli. The decision in this case was that a contract between 
" master and owners of a ship to run a blockade was valid, and 
could be enforced in the Courts." It had been decided in 
pre\ious decisions that a contract of partnership in blockade- 
running is valid by municipal law ; {Lx parte Chavasse, re 
Grazebrook),- that the insurance of contraband goods by a 
neutral trader is a good contract and can be recovered upon,^ 
and that a charter-party to carry contraband or goods to a 
blockaded port is one that must be carried out : because the 
master is prima facie as cognisant of the blockade as the owner, 
and there is nothing illegal in the adventure. (Medeiros v. Hill.) * 
It was said in the American case of Seton v. Low : " A neutral 
nation has nothing to do with the war, and is under no moral 
obligation to abandon or abridge its trade, and yet from the law 
of necessity the powers at war have a right to seize and confis- 

' Snow, p. 497; L. R. 1 Adm. 1. ^ Richardson v. Marine Insurance 

* 34 L. J. 17; cf. Seton v. Low, Co., 6 Mass. 112. 

Snow, p. 475, and Tyssen'a Marine ^ 8 Biiig. 231. 
Insurance, 105 £E. 



War and Neutral Commerce at Sea. 129 

oate the contraband goods, and this they may do from the 
principle of self-defence. The right of the hostile power to 
seize does not destroy the right of the neutral to transport." 
It is in fact a right of necessity clashing with a right of trade ; 
not a conflict of laws. 

These decisions make it quite clear that the principles of 
contract, which a belligerent applies against the trade of his own 
subjects with the enemy, have no effect over neutral trade with a 
belligerent. A policy of laissez-faire is pursued between a neutral 
and his own Government ; but this rule is subject, in modern 
States, to one important exception. One particular kind of 
contraband trading with a belligerent is exempted from the 
conditions of other commercial adventure, and is regarded by 
the neutral power as an infringement of its sovereignty. It 
subjects the property of the subject to detention and sometimes 
to confiscation, and the subject himself to fine or imprisonment. 
The modern conception of neutrality recognises the duty of a 
•neutral State to prevent its subjects taking an active part in a 
war upon a big scale ; and although the State does not interfere 
with ordinary contraband commerce, because such interference 
would throw an impossible burden upon it, it can and ought to 
interfere with an extreme kind of contraband trading which is 
tantamount to organising a hostile expedition — the despatch of 
an armed vessel of war to one of the belligerents. To com- 
mission ships of war is the function of the sovereign State ; and 
no individual may be properly allowed to despatch a ship from 
a neutral port in belligerent ownership and belligerent service, 
under the pretence that it is a trading transaction. 

The United States was the fii-st to give legal expression to 
this neutral duty, and their Neutrality Acts of 1794 and 1818 
empower the officials of the Government to detain any vessel 
manifestly built for warlike purposes when circumstances make 
it probable that the vessel is intended to commit hostihties 
against a friendly power. The leading cases of " The San- 
tissima Trinidad"; United States v. Quincey ("The Bolivar"), 
and " The Meteor," ^ show that the United States Courts will 

> Snow, pp. 408, 412, 418. 



130 Laiv of Private Property in War on Land and Sea. 

not condemn a subject when lie despatches an armed vessel to 
a belligerent port for sale as a bond fide commercial transaction, 
but that if there is the intention to despatch her in order to take 
part in hostilities, even though she be not armed, she may be 
detained. The decisive consideration is whether the ship, when 
she leaves the neutral port, should be considered a hostile ex- 
pedition or merely a commercial ventm'e.^ The old English 
Foreign Enlistment Act of 1819 was based on the same principle 
as the United States Acts ; but the history of the " Alabama " 
and the other cruisers that left English ports to prey upon 
Federal shipping in the American Civil War, proved that the 
powers given to the Home Grovernment to detain suspected 
vessels were not stringent enough. The case of the Att.-Gen. v. 
Silletn^ decided that the municipal Act did not prohibit the 
building of ships for belligerent powers, though this, by the 
consent of nations, was a breach of neutrality. Warned by the 
Geneva Arbitration, which involved the country in a loss of 
some millions, the British Government passed in 1870 another 
Foreign Enlistment Act, which puts upon the State an excessive, 
just as the earlier Act had not placed a sufficient, obligation. 
It makes it an offence, and provides for seizm'e, if any person 
builds any ship " with intent or knowledge, or having reasonable 
cause to believe, that the same will be employed in the service of 
a foreign State at war with any friendly State, or equips or 
despatches the ship." To penalise the expectation of an indi- 
vidual trader is to go beyond what a neutral State should or, in 
fact, can properly do. The English law exceeds in stringency 
the provisional rule made to govern the Geneva Award by the 
Treaty of Washington, 1871, where it was laid down that "the 
neutral Government is to use due diligence to prevent the 
fitting out ... of any vessel which it has reasonable ground 
to believe is intended to cruise or carry on war against a power 
with which it is at peace, such vessel having been specially 
adapted in whole or in part within such jurisdiction to warlike 
use." 



1 Cf. U. S. V. Penn, U. S. v. Ilughes, 69 & 70 Fed. Reports, pp. 983, 973. 

2 2H. L. C. 431. 



War and Neutral Commerce at Sea. 131 

The English Government has interpreted the clause in the Act 
of 1870 about '* despatching a ship with intent that she shall be 
employed in the belligerent's service " to cover the case of tugs ^ 
sent out to tow belligerent prizes off a sandbank, and also the case 
of colliers of another neutral nationality chartered in English 
ports to carry coal ^ to the belligerent country, when there was a 
strong suspicion that they were destined for a war fleet. 
During the Franco-Prussian war a vessel was detained,^ which 
was putting out to lay cables along the northern shores of 
France; but upon it being proved that this was a genuine 
commercial venture it was released. Foreign countries have no 
permanent statutes dealing with this aspect of neutrality ; but 
France, Holland, and Italy have issued regulations at times of 
war forbidding their subjects, under penalties, to assist in any 
way the equipment or armament* of a vessel of war for either 
belligerent. It may be taken, then, as the modem international 
usage that a neutral State will seize the private property of its 
subjects during war, if it consists of a vessel which it reasonably 
suspects is intended for the warlike service of either side. 

Of late years there has been a considerable agitation for a 
much wider intervention of the neutral State in the commerce of 
its subjects with belligerent powers ; and it is now customary for 
the neutral State to issue to its subjects, at the outbreak of a 
war, a proclamation, warning them of the proper penalties of 
contraband trading. But now more is asked for. It is proposed 
that the State should contiscate contraband goods which it detects 
within its jurisdiction, or any vessels which it has reason to 
believe are about to proceed to blockaded ports ; in other Avords, 
that it should assume the special rights which the belligerent 
now exercises. Tlie feasibility and desii'ability of such a change 
in international relations will be discussed in the next chapter. 



1 Tho Gauntlet, 4 P. C. C. 184. » The International, 3 A. & E. 32. 

2 Tho Mouzell and Tho Caroline, * Hall, International Law, p. C14. 
Vol. XXX. Law Magazine, p. 207. 



9(2) 



( 132 ) 



CHAPTER X. 

PROPOSED CHANGES IN THE LAWS OF WAR AT SEA. 

The Hague Conference of 1899 produced, as one of its chief 
results, a code of the laws of war on land. That code is not quite 
complete, and may require additions in the sections which deal 
with neutrals. By common consent one of the chief tasks of the 
next Hague Conference will he to endeavour to prepare a code 
of the laws of war upon the sea, especially so far as they aflect 
neutrals. Maritime usages have already attained a considerable 
amount of certainty and of legal sanction by reason of the 
institution of Prize Courts and the record of their decisions; but 
there is still much disagreement on points of principle, as well as 
of detail, in the conduct of the different nations, and more par- 
ticularly in the varying practice of England and America on the 
one hand, and the Continental powers on the other. It is to be 
hoped that a clear understanding may be reached upon these 
controversial topics at the Hague, and also that the deter- 
mination to come to some formal agreement at any price will 
not induce the Conference to frame laws so vague as to be no 
index to future action, and no sure restraint upon the caprice of 
belKgerents. 

Here it is proposed only to mention and discuss the 
suggestions most frequently canvassed for the reform of 
maritime warfare which affect private property. 

With the agitation for giving immunity to the private 
property of belligerents at sea, not being contraband of war, 
■we have already dealt; and reasons have been given for 
thinking that it cannot be fairly demanded on legal or moral 
grounds, or on any arguments drawn from the conditions of 
land-war. And as long as England keeps its maritime pre- 
ponderance, and experts like Captain Mahan are convinced 



Proposed Changes in the Laws of War at Sea. 133 

that " the blows struck at an enemy's commerce are the most 
deadly of all warlike measures," so long it is unlikely that this 
country will bo convinced by the argument from expediency. 
The enormous damage inflicted by the "Alabama" and her 
few companions during the American Civil War are an index of 
the efficacy of commerce-destroying, even after the Declaration 
of Paris. It is, then, improbable that there will be an 
unanimous declaration against the capture of private property 
at sea, but certain modifications of existing practice on other 
points may well be agreed to. 

(1.) Mail and passenger steamers, both belligerent and 
neutral, should be protected from seizure, and, at the same 
time, it should be made illegal by the municipal laws of every 
nation for such vessels to carry contraband or noxious despatches. 
A resolution to this effect was carried by the International Law 
Association at Christiania, 1905, and the reform seems called for 
by the economic structure of modern international society. 
Exemption was, in fact, granted during the Franco-Prussian 
and Spanish-American wars, and is provided for by treaty 
between England and France in case of war between them. 
The gain to the belligerent by the enforcement of his full 
rights in these cases is quite out of proportion to the general 
loss, and the burden thi-own upon neutral Governments of 
examining the vessels is not an impossible one to bear. 

(2.) Some limit might be set to the area over which a 
belligerent may exercise his right of search and visitation. 
During the South African war Great Britain, despite Germany's 
protest, exercised her right at any distance from the scene of 
operations; but when, in the war of 1904-5, Russia exercised 
the same privilege, Great Britain, "now feeling the pinch 
herself," protested. The present license certainly seems to 
involve an imnecessary interference with the world's commerce ; 
for the right of search and detention at a distance from military 
operations involves incalculable loss to innocent traders, for 
which no reparation can bo gained, and at the same time does 
little to protect the belligerent. On the other hand, it is 
difficult to put forward any limitation of the right which will 
not be too restrictive upon the belligerent powers. It was 



134 Laio of Private Property in War on Land and Sea. 

suggested at the Peace Conference at Milan of 1906 that 
certain parts of the ocean or the world's great trade routes 
might be neutralised in the same way as the Suez Canal is 
neutralised ; but, apart fi'om the indefiniteness of these pro- 
posals, they seem likely to impose too great a check to be 
accej)ted in the heat of war. It has been suggested again that 
at the outbreak of war either belligerent should proclaim a 
certain area around the scene of operations within which vessels 
should be subject to belligerent rights. But here there arises 
the difficulty of determining beforehand what will be the scene 
of operations. Doubtless there would be some gain to neutrals 
if the suggestion were acted upon, however meagrely ; just as it 
was a gain to neutrals when belligerents, in place of a universal 
prohibition of trade with their enemies, began to proclaim lists 
of articles which duiing that war they would regard as con- 
traband. But it is a relief which must be left to the discretion of 
belligerents. The only jural changes in present procedure that 
seem feasible are : — 

(1) The immunity from search of vessels under neutral 

convoy, unless there are suspicious circumstances to 
warrant examination. 

(2) The extension of territorial waters for the purpose, 

which would neutralise several straits that are the 

highways of the world's commerce. On the other 

hand, the proposal of Germany to close the Baltic 

Sea to other nations during war (which has recently 

been mooted) would appear to be an unjustifiable 

retrogression to the old attitude of Denmark, which 

the jurists of the seventeenth century, Grotius and 

Selden, demolished, it was thought, once for all. 

The law of contraband appears to be that part of maritime law 

which is in greatest need of being systematised. Probably a 

proposal will be made at the Hague Conference to abolish 

capture of neutral merchantmen for contraband altogether ; for 

on the Continent there is a considerable opinion in favour 

of rescinding the belligerent's right of interference with 

neutrals, and of imposing upon the Government of the neutral 

State the task of searching all vessels proceeding to belligerent 



Proposed Changes in the Laws of War at Sea. 135 

parts, and detaining any contraband goods that they may find 
thereon. It is argued that the neutral State akeady penalises 
its subjects for participation in an extreme kind of contraband 
trade, and forcibly prevents such traffic, and that it should 
extend this principle to make all contraband trading illegal. 
Such action would render unnecessary the belligerent right of 
search which is so irksome. The suggestion is one of the 
indications in International society of that increasing demand 
for State interference, which in internal relations takes the form 
of State Socialism. National Conscrijition has accustomed the 
peoples of Continental States to continued submission to officials, 
and hence it seems natural enough to them that State officials 
should control trade in times of war. But, on the other hand, 
the feehng for individualism and for adventure remains strong 
in the great maritime nations. A sea-going people always has 
a love of liberty and independence, not to say of adventm-e ; 
and so long as this spirit abides in England and the United 
States there is little likelihood of an international agreement 
abolishing the right of search, and imposing upon neutral States 
the task of detecting contraband. Moreover the proposed change 
would immeasurably increase the chances of international 
embroilment during war, when the belligerent may suspect 
certain neutral Governments of collusion with the enemy. The 
proposed reform is an uncalled-for extension of the privilege 
long claimed for convoyed merchantmen, and would impose, if 
it were strictly carried out, an excessive burden upon neutral 
powers ; if laxly, an excessive curtailment of a belligerent's rights, 
which in many cases ho would not brook. The self-preservation 
of one State must overweigh the convenience and profit of the 
subjects of many, where the two things are really in conflict. 

The experience of the last century suggests that this pro- 
posal is one which may find approval in peace time, but would 
soon bo abandoned in the stress of war. But if the abolition of 
contraband capture is an undesirable aspiration, its more careful 
regulation and more certain definition are a pressing need. At 
present the practice of nations shows most awkward discrepancies 
in the lists of forbidden articles ; and at the beginning of each 
war it is left to the caprice of either belligerent to impose new 



136 Laio of Trivate Property in War on Land and Sea. 

restrictions upon neutrals which it has not recognised, and may 
even have forcihly opposed, itself hitherto. Till 1904, Russia 
had always protested against regarding coal as contraband ; at 
the outbreak of war, however, she at once proclaimed it as absolute 
contraband, together with flour and cotton. Neutral Govern- 
ments can, of course, object ; but the correspondence ^ which 
passed between the Russian and English Governments during 
and after the war of 1904-5 shows the difficulty of reaching any 
satisfactory solution of differences when war is raging. What 
seems to be required is a definite international pronouncement 
upon the different heads of contraband trading and the penalties 
to be attached to them. 

The inter-Parliamentary Conference of 1906 passed a reso- 
lution that the Hague Conference, in their next session, — 

(1) " should by treaty define contraband of war as being 

restricted to arms, munitions, and explosives ; 

(2) re-assert and confirm the principle that neither the ship 

carrying contraband nor other goods on board such 
ship, not being contraband of war, may be destroyed." 
The second proposal comprises a not unreasonable safeguard 
of neutral rights. It is, however, too much to hope that belli- 
gerents would yet agree to the first. So many other articles 
than those specified may be immediately useful to the enemy, 
and must therefore be placed under the ban. But it should not 
be too much to expect that an international agreement will 
declare that such other ai"ticles are conditional and not absolute 
contraband; ^.f., only confiscable when their destination or 
quality suggests use for the military purposes of the enemy. 
Provisions bound for a port of military or naval equipment and 
steam-coal would como within the category of forbidden and 
confiscable articles. It was unanimously voted at the Inter- 
national Law Association meeting, at Christiania, 1905, that 
coal should be declared conditional contraband only, and the 
Ilague Conference might draw up a list of the general heads of 
conditional contraband, which the Powers would covenant to 
respect. 

^ Cf. Smith & Sibley's International Law in the Eusao- Japanese War, 
Appendices; and Parliamentary Papers, 1905. 



Proposed Changes in the Laws of War at Sea. 137 

The recent decision of the Russian Prize Court at St. Peters- 
burg, which revised the sentence passed upon the " Calchas " by 
the Court at Vladivostock in 1904, provides an excellent inter- 
pretation of contraband, which, possessing, as it does, the 
authority of Professor De Maartens, perhaps the greatest law- 
making international jurist alive, might well pass into the law 
of nations. The Court declared that " ' Contraband ' is applic- 
able only to specified articles when they are transported on 
account of or are destined for the enemy, that is, the enemy's 
Government, contractors, army or navy, and not for private 
individual subjects of the enemy's country, and more especially 
for neutral Governments or private individuals of the neutral 
country." 

If legal effect could always be given to this interpretation, 
neutral traders could have little reason for complaint ; for it 
embodies the guiding principle of the modern law of war, that 
the belligerent may confiscate only what immediately and dii'ectly 
assists his enemy and strengthens his power of resistance, and 
may not interfere with private property which does not fall 
under these categories. 

The Institute of International Law, which, in 1896, discussed 
reform of contraband rules, considered a proposal for the aboli- 
tion of conditional contraband, but did not accept it. It sug- 
gested, however, that belligerents should only have the right of 
pre-emption in place of confiscation over this class of contraband 
goods, and this proposal provides a likely basis for international 
agreement. Conditional contraband is really part of the ordinary 
trade of the neutral which happens to conflict with the belligerent's 
need ; it is hard to throw a complete loss upon the trader 
because of this clasliing of interests. Absolute contraband, on 
the other hand, is commonly an extraordinary species of com- 
merce, and so it is properly punished by confiscation ; for it is 
really an attempt by the neutral individual to make large 
profit at the expense of a belUgerent nation's need. 

It is to be hoped also that an agreement may be reached upon 
the laws of blockade, oven if it means that the traditional 
English standpoint is given up. The English claim is that 
capture of a vessel is legal where there is an original intention 



138 La20 of Private Property in War on Land and Sea. 

to break the blockade ; the French claim is that it is legal only 
when, after notice, there has been an actual attempt to do so. 
It is altogether undesirable that neutrals should have to submit 
to varying restrictions in different wars, and the English practice 
seems to err in severity upon neutrals. In the case of long 
voyages it is certainly hard to inculpate a vessel which has a 
guilty destination from the inception of the venture. For 
circumstances may well have changed before the destination 
is reached. Even if a thorough agreement upon principle is 
not attained, it might be reached upon certain incidents ; e.g., 
that in the case of a public blockade notice to an offending 
vessel should not be an irrebuttable presumption, that seizure 
should only be permitted within a certain distance of the 
blockaded area, and that a vessel may only be seized when 
its own destination is an invested port. Something might 
also be done to determine more exactly what is an effective 
blockade, and especially whether the use of mines is legitimate 
in blockade. 

These " temperamenta " are perhaps all that are to be expected 
in the laws of maritime capture from the next Hague Confer- 
ence. Professor Nys^ has suggested that the time is not far 
distant when the private property, whether of belligerent or 
neutral owners, will be immune from capture on the sea. He 
says that the experience of the past has proved how legal 
arrangements are gradually extended from the land to the sea, 
and he instances the extension of the Geneva Convention to 
ships. He takes it to be the accepted principle of modern war- 
fare that private property is immune on land, and he looks 
forward to the adoption of this imagined principle by sea. His 
judgment, however, neglects the important j)art which "necessity 
of war " is allowed even in theory to play in the laws of land 
war, and the larger part wliich it will certainly play in practice ; 
and it also neglects the essential difference between stationary 
private property and national commerce carried on by private 
individuals. It may be tliat the future will see the grant of 
immunity on the sea to " innocent " private goods, but it is 

' Cf. Nys, op. cit. ; and alao in the Revue du Droit International, 1906. 



Proposed Changes in the Laivs of War at Sea. 139 

inconsistent with the idea of war that there shall be immunity 
to the commerce of enemy or neutral subjects, which is a direct 
assistance to the piu'poses of war. The brute law of self-preser- 
vation must always assert itself in the strife of nations ; all that 
civilisation can do is to regulate it, and limit its operation to 
cases of real necessity. 

International conferences and the growth of public opinion, 
it is hoped, may succeed in eliminating from belligerent practice 
every kind of wanton destruction and confiscation of private 
property, but they will hardly be able " to introduce a state of 
things not yet seen in the world, that of a military war and 
a commercial peace." ^ Improvement in the near future should 
rather aim at a greater safeguarding of neutral property than at 
sweeping changes in the relations to enemy property. 

The extent to which some Continental theorists press 
the sacredness of private property in their exposition of 
international law as it should be ("Droit des Gens"), almost 
brings their purpose into conflict with the other leading 
aim of the modern laws of war; which is to humanise 
national conflicts and to save unnecessary suffering and loss 
of life. To prevent a belligerent attacking the resources of 
an enemy as well as his armed forces is really to prolong the 
war, to increase the sacrifice of life, and to add to, rather than to 
diminish, the sufferings of national strife. Economical relations 
must always reflect a serious disturbance in the political world, 
and the attempt to avoid this consequence brings the supposed 
law into conflict with fact and makes it of no avail. War in its 
very nature involves \iolcnce, and it is impossible to make its 
economical conditions identical with those of peace. A code 
made in disregard of the violent character of belligerent action 
will not bind belligerents ; it will rather lead to revulsion fi'om 
a too-exacting law into ungovernable licence. There is a limit 
to the obedience of a belligerent to the rules of war in their 
relation to private property, and that limit is that they do not 
seriously interfere with his military necessity, or his efFective 
power against his adversary. This is the limit fixed — if indeed 

' Cf. Lord Stowell in " The Maria," Snow, p. 618. 



140 Lato of Private Property in War on Land and Sea. 

it has been genuinely readied — by the Hague laws of war on 
land ; it is the utmost limit that should be aimed at in framing 
the laws of war on sea. To eliminate all unnecessary and wanton 
loss to private property of belligerent or neutral, to curtail all 
privileges of the combatant which inflict an injury on others 
out of all proportion to his gain — this is the true goal of reform 
in maritime warfare. If this is achieved at the next Hague 
Conference, naval war will be at least as humane as land war, 
and will show more concern to neutral rights of property ; and 
the law will have some chance of becoming a true *' light to 
the nations." 



( 141 ) 



APPENDIX I. 



THE HAGUE PEACE CONFERENCE, 1907. 

Among the vcbux, or pious wishes, wliich were passed at the Hague 
Peace Conference of 1899, and which suggest a part of the work 
that the approaching Conference will have to consider, are the 
following : — 

"The Conference expresses the wish that the question of the rights 
and duties of neutrals should be inscribed in the programme of a 
Conference to be held at an early date. 

" With a few exceptions the Conference resolves that the follow- 
ing questions should be reserved for examination by future Con- 
ferences : — 

** (1) A proposal tending to declare the inviolability of private 
property in war at sea. 

"(2) A proposal regulating the question of the bombardment 
of ports, towns, and villages by a naval force." 

To this programme there will certainly be added the considera- 
tion of a code of the laws of war on sea. 



( 142 ) 



APPENDIX II. 



ENEMY CHARACTER AND DOMICIL. 

At the end of the chapter on the Capture of Private Property at Sea, 
it was suggested that England and the United States might abandon 
their old position, by which domicil determines the fate of captured 
property, and adopt the French, and the general Continental, system, 
which makes nationality the criterion of enemy character. As the 
question will probably be discussed at the forthcoming Hague 
Conference, it will bo well to investigate it a little more closely. 
The old practice of nations, and the practice which is still main- 
tained by England, the United States, and Japan, is that all the 
inhabitants dc facto of the enemy countr}"-, whether natural subjects 
or resident aliens, are enemies de jure, and that their property 
seized at sea may be confiscated as enemy property. Twiss gives 
the rationale of this practice : — ** When the principle of territorial 
sovereignty came to be recognised by the nations of Europe as the 
basis for regulating their mutual relations as nations, the character 
of an individual for international purposes came to be regarded 
from a territorial point of view, and personal allegiance ceased to 
bo an absolute criterion of enemy character. Under this system of 
public law, domicil has become the criterion of national character 
for purposes of war, and accordingly all natural-born subjects of a 
belligerent power who may have abandoned their native country, 
and acquired a domicil in a neutral country before hostilities have 
commenced, will have effectually clothed themselves with the 
character of neutral subjects, precisely as every natural-born 
subject of a neutral power will have clothed himself with the 
character of an enemy subject by long-continued residence, coupled 
with the intention of remaining in the enemy's territory." ' 

> Twiss, Law of Nations, Vol. II. pp. 299—301. 



Appendix. 143 

Twiss gives, as an example of this nile, the case of a British-born 
subject resident in Lisbon, whose trade with Holland (then at war 
with England, but not with Portugal) was held innocent. (The 
Danous, 4 C. Eob. 256.) One exception, however, must be made to 
his statement. Long-continued residence is necessary to create 
domicil for ordinary civil purposes, but it is not necessary for the 
purposes of war. In this case the decisive point is the actual 
commercial use which the alien has made of his residence rather 
than its length. Professor Dicey states the distinction between 
civil and commercial domicil thus : — * 

" A civil domicil is such a permanent residence in a country 
as makes that country a person's home, and renders it there- 
fore reasonable that his civil rights should in many instances 
be determined by the law thereof. A commercial domicil, on 
the other hand, is such a residence in the country for the pur- 
pose of trading there as makes a person's trade or business 
contribute to or form part of the resources of such country, 
and renders it therefore reasonable that his hostile, friendly, 
or neutral character should be determined by reference to the 
character of such country. When a person's civil domicil is 
in question, the matter to be determined is whether he has or 
has not so settled in a given country as to have made it his 
home. When a person's commercial domicil is in question, 
the matter to be determined is whether he is or is not residing 
in a given country with the intention of continuing to trade 
there." 
The difference is neatly expressed in one of the Rules governing 
Maritime Prizes which were promulgated by the Japanese Govern- 
ment at the outbreak of the war with Eussia (March, 1904) : — " The 
domicil of an individual is the place whore he has his permanent 
habitation ; but for the trader the domicil is the place where he 
mainly carries on his commerce." 

The old law, then, affixes enemy character to property according 
to the origin of the property rather than according to the personal 
disposition of its owner. If the goods do in fact form part of the 
commerce of the enemy State, it is immaterial to the other 
belligerent whether the owner is a natural or a de facto subject; 
for he is not attacking the private property of enemy subjects as 
such, but rather the commerce of the enemy nation. On the other 

• Dicey's Conflict of Laws, p. 737- 



144 Appendix. 

hand, he properly regards as neutral any merchandise proceeding 
from a neutral State, whether the owner is a natural-born subject of 
that State or not. A French critic states the English position well : 
"An enemy subject resident in a neutral country, carrying on his 
trade there or living on his income, adds no strength to the State 
whose nationality he preserves ; his labour and his expenditure only 
enrich the State where he lives. Into the coffers of that State he 
poui-s his contributions ; it is the budget of that State which profits 
by his gains or his fortune. Why should the State at war with 
his country regard him as an enemy when he is of no service to it ? 
But, on the other hand, the neutral subject established in an 
enemy country is a source of strength and of profit to it. The 
duties which he pays, the riches which he creates, the income 
which he spends, augment the resources of the State and the 
financial power of the nation. Whether he wishes it or not, at 
least indirectly he helps to support the State ; he aids it in the 
struggle. To exempt him is to spare the enemy ; to strike at him 
is to reach the enemy." ^ 

The practical principle by which domicil determined the character 
of property in war was prevalent throughout Europe till the 
nineteenth century. But among the other effects of the French 
Revolution on war, and indeed on political history generallj'', was 
the emphasising of the idea of nationality. In private and in 
public law this idea was made predominant, and the principle of 
domicil as a basis of rights lapsed upon the Continent. 

We have examined already the dictum of Rousseau which makes 
war a relation of State and State. This may be regarded as a 
concise expression of the new theory upon which jurists worked; 
and one of the corollaries which they deduced from it was that a 
State can only have as its enemies other States, and not individuals, 
and therefore the individual could only be attacked by a belli- 
gerent in virtue of his allegiance to the enemy State. " Residence 
in a strange country," said the French Court,^ (when laying down 
the law upon the subject of enemy character in the case of Le 
Hardy, 1802), " does not prevent an individual from belonging to 
the country of his birth. To cease to belong to his country, he 

1 C. Dupuis, " Le Droit de la Guerre Maritime," p. 124. Quoted by Nys in 
an article in the Revue do Droit International, 1907, to which I am greatly 
indebted throughout this Appendix. 

2 Le Hardy, Snow, p. 3138. 



Appendix. 145 

must have voliintarily chosen, and been regularly adopted by, a 
new country. Without that renunciation of his original country, 
without that adoption by another which he prefers, he remains 
always what he originally was — the friend of the friends, the enemy 
of the enemies, of his native country. And when that country is 
neutral he remains neutral himself, and should enjoy for his person 
as well as for his property all the advantages of neutrality." 

When we add to the growth of the feeling for nationality and 
the new conception of war the idea of fraternity among nations, 
which was enunciated at the French Revolution, we have the basis 
and the motives of the now principle that was first appHed by the 
French Conseil des Prises in 1802, and which has since passed into 
the prize law of the land. 

"War being a relation between States," continued the Court in the 
case cited, "a man cannot be compelled to take part in it unless he has 
manifested the express wish of incorporating himself with the belli- 
gerent power in whose land he is domiciled. Publicists in times past, 
when force still held, more or less, the place of law, may have pro- 
fessed opposite principles, but the continuous progress of civilization, 
the need universally felt of the growth and the liberty of commercial 
relations between peoples, have introduced juster notions and have 
brought into prominence more liberal ideas, which the Government 
to-day hastens to proclaim as the standard of its policy and the 
token of its love of humanity." 

This language is somewhat rhetorical, but the broad principles 
there proclaimed imderlie the agitation for the general adoption 
of the French practice, which is supported to-day by nearly all 
Continental publicists of note. It is urged that the comity of 
nations demands that the Anglo-Saxon peoples shall give up the 
conservative usage " which introduces divergences and confusion 
into the solution of the questions of neutrality, and takes no 
account of the modem jural notions upon the true nature of the 
bonds which unite the citizen to the State," while it cannot add to 
the effective weapons of the belligerent. Characteristically, our 
present practice looks to the practical result, and shows a disregard 
of general reasoning ; while the Continental practice sacrifices 
practical considerations for the consistent appHcation of broad 
principles of jurisprudence. In the interests of international 
society one principle should prevail. Which of the two systems 
must yield ? 

K. 10 



146 Appendix. 

Doubtless some good arguments may be advanced to support the 
old principle of domicil. It may be said that in land war domicil 
determines necessarily the fate of property, and that an invading 
army makes no distinction between native-born enemy subjects or 
resident aliens when making its requisitions. Why, then, in naval 
war should a belligerent discriminate ? But there is a difference, 
at least in theory, between taking goods by right of necessity and 
confiscating them in cold blood, as it were, and by an alleged legal 
right ; and while neutrals accept the one loss with such equanimity 
as may be, they are embittered by the other. It may be argued, 
too, that it would be anomalous for England to keep the principle 
of domicil in private international law and abandon it in public 
international law ; but the argument from consistency cannot be 
allowed much weight in this country. 

The argument already touched upon, that enemy character is 
applied to goods in their character of national commerce and in view 
of their commercial value, contains the root principle of the existing 
English rule ; but sound as it is from the common-sense point of 
view, it undoubtedly conflicts with modern conceptions of neutral 
rights. Stated very broadly, the claim of neutrals is to-day that 
their property shall not be interfered with save where military 
necessity justifies it, and it is difficult to prove military necessity 
for our present practice. And it may well be a question for our 
Government whether the gains, which may possibly result from the 
attachment of enemy character to the goods of neutrals domiciled 
in enemy country, are not more than counterbalanced by the con- 
sequent ill-will of neutral powers. 

By the Declaration of Paris these gains must be greatly reduced ; 
and it is submitted that every restriction of the right to capture 
innocent commerce is to be recommended, except where restriction 
would conflict effectively with the purposes of war. The reasons 
advanced in Chap. VII. for the retention of the right of maritime 
capture against enemy subjects do not apply to domiciled neutrals. 
The question is as much one of expediency as of law and of 
comity, and on all grounds we could adopt the Continental prin- 
ciple without impairing our efficiency as a belligerent. And there- 
fore, for the good of the international society, we might consent to 
the change. 

The change logically involves the result that the goods of enemy 
subjects domiciled in neutral countries would receive enemy 
character. In practice, however, this would make little difference 



Appendix. 147 

to-day, since by the Declaration of Paris the neutral flag covers 
innocent enemy cargoes, and the merchandise of such domiciled 
subjects would be carried for the most part in neutral ships. 

Possibly the nations might consent to adopt our present practice 
in regard to such trading, and release it of enemy character on the 
ground of its origin and its result. If we adopt their system in the 
interests of their subjects, we could fairly ask them to adopt that 
part of our present usage which is based on common principles of 
justice, and which would protect, in however small degree, the trade 
of our subjects domiciled abroad, if at any time we should be 
engaged in war. 



10(2) 



INDEX. 



Act of State in international law, 21, 22, 

24. 
Alabama, The, 88, 130, 133. 
Alienation, 

of land property by enemy during 
war, 77, 78. 

of ships during war, 82. 
Allegiance, change of, after conquest, 64. 
Angary, right of, 39. 
Armed Neutrality, the, 103. 



Berlin decrees, 104. 

Billeting on private houses, 33. 

Blockade, 

nature of, 101. 

limitation of, 138. 

commercial, 122. 

penalties for, 123 ff., 137. 
Blockade-running, oflfence of ship, 124, 

127. 
Blockade by interpretation, 126. 
Bliintschli on contraband, 116. 
Bombardment, naval, of imfortified 

towns, 38. 
Booty abolished, 29. 
Bynkershoek on commerce in war, 47, 52. 



Cables, submarine, rights of enemy over, 

117, 118. 
Calchas, The, 110, 137. 
Charter-parties in war, 53. 
Coal as contraband, 136. 
Colonial trade prohibited to neutrals, 102. 
Commandeer, right to, 30. 
Commerce, 

between belligerents, 47 fl. 

war on enemy, 89. 
Companies, character of, 57 ff., 74. 
Compensation, 

for losses on land, 41 flp. 

for private losses at sea, 93. 

for destruction of neutral property 
at sea, 94, 111. 
Concessions, treatment of, by conqueror, 

72. 
Conditional contraband, 100, 110, 137. 
Consolato del Mare, 4, 99. 



Conquest, 

legal effect of, on property, 19. 

modem notion of, 63. 
ContinTious voyages, 104, 113. 
Contraband, 

origin, 97. 

jural development of, 99 ff. 

modem extension of, 110. 

penalty for, 111. 

legality of, 129. 
Contracts, 

on trade between belligerents, 48 ff. 

executed and executory, 53 — 57. 

obligation of conqueror for enemy, 70. 
Contributions, 

right to demand, on land, 36, 37. 

right of naval squadron to demand, 
38. 
Convoyed merchantmen, immunity of, 
120, 134. 



Debenture-holders, rights of enemy, 59. 
Debt, public, immunity from confiscation, 

8. 
Debt, private, immunity from confiscation, 

9, 54. 
Debt, conqueror and national, 67 — 70. 
Declaration of Paris, 15, 79. 

effect of, on commerce between bel- 
ligerents, 50. 
evasion of, 105. 
Destination determines contraband, 1 14 — 

116. 
Destruction, 

of enemy prizes, 93 — 95. 
of neutral prizes. 111, 112. 
Domicil, 

governs neutral rights, 73. 
determines enemy character, 79, 80, 

142—147. 
commercial, 80. 
Dutch originate blockade and rule of 
" enemy ships, enemy goods," 13, 101. 



Embargo, old rule of, 14. 
abolition of, 83. 
effect of, on insuranoe contract, 62. 



150 



Index. 



Enemy character, 79, 81. 

difference of French usage, 82. 
Enemy, identification of vessel Tvith 

service of, 119. 
"Enemy ships, enemy goods," rule of, 

13, 102. 

Fines, imposition of, by enemy army, 37. 

Fishing-boats, immunity of, 83. 

Flag test of ship, 82. 

Food supply in war affected by rights of 
capture, 91. 

Foreign Enlistment Act, 130. 

Forfeiture in conquered territory, 65. 

"Free ships, free goods," rule of, 13, 102. 

French National Assembly and compensa- 
tion, 42 — 44. 



Geneva Arbitration, rule of, 130. 
Geneva Convention, 83. 
Grace, 

days of, at outbreak of war, 82. 

granted to neutral vessels in blockaded 
port, 127. 
Grotius, 

establishes international law of war, 
6—8. 

on compensation for war losses, 41. 

on contraband, 100. 

on rights of conqueror, 62. 



Hague Code of Laws of War on Land, 

27 ff. 
Hague Conference, 1907 programme, 132, 

141. 
Herzog, case of the, 116. 
Hospital ships, immunity of, 83. 



Incorporeal property not to be appro- 
priated, 9, 40. 
Lxsurance, 

of enemy vessels, 61, 52. 
life, contracts of, with enemy com- 
pany, 55. 
national, of shipping, 93. 
Interest, payment of, to enemy during 

war, 59, 60. 
Interference of State with contraband 

trade, 129, 135. 
International law, 

uncertainty of, 16. 

disregarded by English Courts, 20 — 
24. 
International Court of Appeal on prize 

cases, 17, 106. 
Italy and capture of private property at 
sea, 8G. 



" Jus naturee," 7. 
Justinian, 

on capture from enemiee, 1. 

on contraband, 97. 



Mahan 

on neutral rights, 104. 

on capture of property at sea, 87, 133. 

on commercial blockade, 123. 
Mail-boats, 

immunity of, 83, 133. 

freedom from search, 118. 
Man-of-war, despatch of, from neutral 

port, 129. 
Maritime law, international, 6. 
Martial law, 29, 30. 
Military necessity, 

overrides law, 18. 

definition of, 28. 
Mines, use of, in blockade, 124. 



Necessity of war, 18. 

how far justifies destruction of prizes, 
112. 
Netherlands South African Railway, 66, 

75. 
Neutrality Acts, 129, 130. 
Neutralisation of trade routes, 134. 
Neutral companies in conquered land, 74. 
Neutral shareholders in enemy company, 

75. 
Neutral property on land, 27. 

right to compensation for loss, 27, 43, 
73. 



Occupatio, title by, 1, 2. 

Occupation distinct from conquest, 3lf 62. 

Occupier's right, nature of, 40. 



Partnerships, efltect of war on, 55. 
Payment for requisitions, 35, 45. 
Pillage, prohibition of, 28. 
Postliminy, 40. 

Prctoria-Pietersburg Railway, 61, 74. 
Pre-emption, 100, 137. 
Private property at sea, 

proposed abolition of capture, 14, 84, 
133. 

present rule, 79. 

arguments for and against immunity, 
86 ff. 
Privateers abolished, 15. 
Prize Courts, 

foundation of, 6, 99. 

national character of, 17. 



rf!il,Jlhi.«<iH%^ 



T^e <^"^ 



•nnAfI 



Index. 



151 



Property on land, 

when, may be seized, 26, 38. 
how far immune, 40. 



RaUway-plant, when may be seized, 38. 
Requisitions, 

origin of, 10. 

legality of, 31. 

limitation of, 34. 
Revolution, French, effect of, on theory 

of war, 11, 12. 
Roman law, 

of capture, 1 — 3. 

of neutrality, 97. 
Rousseau, theory of war, 11, 16, 
Rule of 1756.. 102, 119. 



Sanction of laws of war on land, 18. 
Sea, 

origin of laws of capture at, 4. 

history of war on, 13 — 15. 

modification of war on, 95. 

differences of capture upon, 87 ff. 

neutral rights on, 98. 
Search, right of, 108—110, 133—135. 
Self-preservation, basis of belligerent 

rights, 108. 
Sequestration of innocent enemy cargoes, 

92. 
Shareholder, position of enemy, 58. 
Succession of States, 

in conquest, 63. 

to contractual liabilities, 72 ff. 



Telegraph, wireless, 117. 
Territorial waters, 

capture in, 84. 

extension of, 134. 
Title to property in conquered territory, 

77. 
Trading with enemy, 49. 
Transfer of enemy vessels to neutrals, 82. 
Transvaal, 

debt adopted by England, 68. 

compensation to sufferers by war, 
44 ff. 

Concessions Commission, report, 65 ff. 



United States, 

and capture of private property at 
sea, 85. 

and commercial blockade, 123. 

and continuous voyages, 113. 

and privateering, 85. 
Unneutral service, 10, 117. 

effect of, on neutral companies, 75. 

and wireless telegraphy, 118. 



Vattel, 

on compensation for war losses, 41, 
42. 

on rights of conqueror, 62. 
Volunteer navies, 79, 105. 



War, 



general object of, 27. 
object of, on sea, 79. 
and commerce, 47, 139. 



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