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PRIVATE PROPERTY ON THE HIGH SEAS

War, therefore, is an act of violence intended to compel our opponent to fulfil our will.

If our opponent is to be made to comply with our will, we must place him in a situation which is more oppressive to him than the sacrifice which we demand.

As long as the enemy is not defeated he may defeat me; then I shall be no longer my own master; he will dictate the law to me as I did to him.-Clausewitz on War.

INTRODUCTION

The impulses of a people are, as a rule, the result of intuition rather than of reason, and at a very early period of the recent war the German people adopted as a national creed that they were at war with Anglo-Saxonism, with the Anglo-Saxon civilization as the opponent and enemy of German Kultur. They have made many mistakes, most of them the fruit of this self-same Kultur, but in this matter instinct, intuition, or impulse, whichever it may be, has proved a truer guide than the learning of their professors or the pronouncements of their statesmen. They are right. This was a war of two distinct and opposing civilizations, of two different mentalities—the mechanism of the Anglo-Saxon mind differs from the mechanism of the German mind, it differs indeed from the mechanism of the Continental mind.

For an Anglo-Saxon, in so far as he reasons at all, reasons inductively. He begins with a fact, whilst the Continental, as a rule, reasons deductively, that is, from a principle or a maxim.

The Anglo-Saxon loves a compromise, which is never logical, and distrusts logical conclusions. For his whole history has been a history of compromises between opposing claims advanced and supported by opposing factions.

If the major premise be admitted, the iniquities of the Inquisition were the truest mercy, and if we are to accept the test so often pro

posed by Continental reasoners "of two things one"-then it is possible to justify not merely the auto da fé, but every form of judicial torture and every extreme exercise of the Divine right either of Kings or Majorities.

It is the saving virtue due to a distrust of the obviously logical conclusion, and unshakable belief in the via media, and the possibility of compromise, that lie not merely at the root of all Anglo-Saxon legislation but inspire all Anglo-Saxon policy, and are the secret of its

success.

There is nothing more illogical than the British Empire. It is neither British nor an Empire. No word can be found in the dictionary of any language which describes the ramshackle collection of governments and nationalities which, for want of a better phrase, we call the British Empire. It is a medley, illogical and unsymmetrical: but it works. It has worked with wonderful efficiency for four years, and in its working has staggered and upset the logic of all the learned men of all the learned bodies; and the policies of all the politicians who, arguing from the principles laid down by constitutional publicists, prophesied disruption at the sound of the first gun fired in

anger.

This conflict of mentalities is not a new development, it has existed throughout all history. And in judging the record of our race in the matter of their interpretation and administration of the Laws of War at Sea we must not look for a logical appeal to principles, but for a compromise between opposing rights. It is this constant effort to find the via media between conflicting claims or rights that is the secret of the British Empire. The Anglo-Saxon recognizes that a right may be pushed so far as to become a wrong-and the failure to secure an acceptable compromise-which provoked the American Revolution, is the exception which proves the rule, that the British Empire British legislation-and British policy are based on successful compromise. This system of compromise is the fruit of experience and of experiment, of mistakes fruitful of instruction, and successfully corrected because equitably remedied though solved illogically.

So much by way of introduction or caution. For it is not the purpose of this paper to expound a logical system of the Laws of War at

Sea. Nor is it proposed to enunciate any legal principle derived from the maxims of Continental Codes. All war is illogical. It is brutal, a brutal appeal to strength. It is an act of violence which though it may originate in the noblest motives can never be anything but cruel, and must inevitably inflict suffering on innocent persons.

But until some means can be devised for averting war it is necessary to recognize that wars must come, and to define and limit the rights that are created by a state of war. The best guide in this matter will be found in the teaching of history. For although nations have asserted as neutrals, rights which they have subsequently repudiated as belligerents, and vice versa, nevertheless, this very conflict of claims may be of service in finding the equitable compromise that we seek. In International Law as in Municipal Law and policy, experience is a safer guide than theory or maxims, or phrases masquerading as principles.

CAPTURE AT SEA

In the consideration of the question of Capture at Sea, we at once find ourselves in the presence of two claims which are frequently in conflict. Phillimore (Vol. III, p. 450) says, "All property belonging to the enemy found afloat upon the high seas and all property so afloat of subjects or neutrals conducting themselves as belligerents may be lawfully captured."

On the other hand the same author says, p. 238, Vol. III, "There is no more unquestionable proposition of International Law than the proposition that neutrals are entitled to carry on upon their own account a trade with a belligerent.'

What is the justification for these claims?

It has been urged that the danger involved to private property tends to deter nations from war. But this thesis cannot be supported by any evidence derived from history, and it is only mentioned here to be put aside as untenable. Similarly the capture of enemy property as a means of enriching a belligerent is also put aside as no longer tenable. It may have been a motive influencing belligerents in times past. It may even be a motive influencing them today. It certainly influenced privateersmen. But it is not a motive that is

avowable or that can be adduced in support of the undoubted belligerent right.

The true and only justification of the right of capture is that all war is a struggle for life or death between nations, and that the sinews of war are provided by property. If a belligerent deprives his enemy of his property, he prevents him from fighting as effectively as he otherwise would, and so saves himself from being overcome, whilst he increases his own chances of overcoming his enemy. The seizure of enemy property is a weapon of war, and can only be justified as a weapon of war.

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But when we come to neutral rights we find ourselves in presence of claims which conflict with belligerent rights, and it is here that we find a fruitful source of controversy. Grotius says, "Verum est dictum in hostium esse partibus qui ad bellum necessaria hosti administrat." No one disputes that if two persons or two nations. are fighting, each combatant has the right to prevent his enemy from receiving arms or succor or support from third persons who call themselves neutral. The neutral right to trade is not disputed. But the controversy has constantly raged, and for the matter of that, still rages on the extent or limitation of the right to intercept or capture supplies sent in the exercise of this neutral right by private persons. It is not possible to do more than review very briefly the law and controversies on this subject, but it must always be remembered that the existence of the right of capture is not disputed. The controversies have always turned on two points: (1) The restriction or limitation of an admitted right or (2) The proposal to abolish that right altogether.

The oldest code of law still surviving is the Consulat de la Mer or Consolato del Mare which dates from the fourteenth century. Like most successful laws it was a codification of customs or practices which had grown up by common consent and not a system deduced from legal maxims for principles. The following are the rules of the Consolato del Mare:

1. Enemy goods on the ship of a friend are good prize.

2. In such a case the captain of the neutral ship should be paid freight for his cargo so confiscated, as if he had taken it to its primitive destination.

3. The property of a friend on an enemy vessel is free.

4. That the captors who have seized an enemy vessel and brought it into one of their ports should be paid freight on the neutral merchandise as if it had been carried to its primitive destination.

The above rules were framed when the motive of plunder was more prominent in respect to enemy property than it is today. There is a clear distinction between neutral and belligerent property, but the principle running through the rules is that a belligerent may confiscate his enemy's property, but must respect neutral property and neutral rights.

The aspect of trade or commerce as a means of succor and support of an enemy is not apparent as a governing motive, and indeed the war material of the fourteenth century was so restricted that the question of contraband in the modern sense must have been a minor matter. All men were armed or possessed arms of some sort, and the arms were such as could be carried on the person. The Consolato del Mare was the code of Europe up to the sixteenth century.

By ordinances of 1543 and 1584 the French Government declared that the property of a friend in an enemy's ship, and also the ship of a friend having the property of an enemy on board were lawful prize. It is doubtful if these ordinances were ever acted on. Sir Leoline Jenkins thought not: but in the seventeenth century divergence from the code of the Consolato del Mare became common. By the Treaty of Westminster of 1654 money and provisions as well as war material were declared contraband by agreement between England and Holland.

In 1681 the famous ordonnance de la marine, drawn up by Colbert in the name of Louis XIV of France was published. Article VII of that ordonnance, Titre des Prises, reads as follows:

Tous navires qui se trouveront chargés d'effets appartenans à nos ennemis, et les marchandises de nos sujets ou alliés qui se trouveront dans un navire ennemi, seront pareillement de bonne prise.

On this the commentator makes the remarks:

D'effets appartenans à nos ennemis. La même chose étoit défendue chez les romains. L Mercatores au cod de commerciis et mercatoribus.

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