But when it comes to an actual or practicable program, there is no agreement among the recent German authorities in respect to maritime law. In general, they seem to agree in denouncing the "unholy trinity" of Niemeyer or the "keyboards" of Triepel,19 but disagree when it comes to details. Indeed, they are not in entire harmony upon basic principles, though for the most part they appear to see clearly what may be regarded as the fundamental condition of the problem, namely, that all belligerent sea rights hang together, and should not be dealt with separately. Whether voted up or voted down, they should be treated as an entire program or unit. Thus, contraband should not be treated without reference to blockade, or the capture of private enemy property at sea without reference to contraband. Each furnishes a series of loopholes through which maritime states can assert belligerent powers at sea even if debarred from the use of other avenues of attack.

As illustrative of the divergencies of opinion among German authorities in this matter, the following examples may be cited: Niemeyer, Perels and Schramm favor an unrestricted use of all proper means of sea warfare. Meurer, Wehberg and Schücking desire the

19 I.e., the rights of the capture of prizes, blockade and contraband. The following passages from Niemeyer and Triepel may serve to illustrate the text:

“If we wish to be honest, then we must admit that the main purpose of our regulations does not lie in the restrictions imposed by the [Paris] Declaration upon the arbitrary will of war, but in the recognition accorded to exorbitant war privileges. These privileges find their highest expression in the following unholy trinity: right of capture at sea, right of contraband and right of blockade. The right of capture at sea sanctions the brutal treatment of private property; the rights of contraband and of blockade accord the same treatment to neutral commerce. The restrictions contained in the Declaration consist in reality in the exclusion of privateering, in the immunity of enemy goods on neutral vessels, and in the demand for effective blockades."-Niemeyer, Die Prinzipien des Seekriegsrechts, 1909, p. 15.

"Capture at sea, contraband and blockade are like three keyboards of an instrument on any of which one may play at will in order always to produce the same sound.

"If necessary, contraband may be given up, if blockade be kept. And one may drop blockade as well as capture at sea, if contraband remains."-Triepel, Die Freiheit des Meeres, 1917, p. 35.

For a fuller exposition of Triepel's views, see note at the end of this article.

abolition of the right of the capture of private enemy property, together with the abolition or serious restrictions upon blockade and the capture of contraband. Triepel and Stier-Somlo, while apparently looking upon these practices as evil, regard the demand for their abolition as Utopian.

When it comes to questions of the abolition or restrictions of the rights of contraband and blockade, there is the same variety and diversity of opinion among German authorities on maritime law. Perhaps the views of Meurer 20 may be regarded as more or less typical and representative, though it cannot be said that the authorities are agreed on any point.

Meurer favors not only the abolition of the right of capture of enemy prizes,21 but he expressly advocates the abolition of commercial blockade,22 and he unreservedly condemns the doctrine of continuous

20 As expressed in his pamphlet entitled, Das Programer Meeresfreiheit, 1918, passim.

21 In reply to the question, "Shall Germany contend for the abolition of the right of capture at sea, or, as an alternative, consent to it?" Meurer (Das Program, etc., p. 49) answers: "Yes, provided a satisfactory and simultaneous regulation of the rights of blockade and contraband shall take place excluding a reappearance of the right of capture at sea in a different form. For the whole world is agreed that there exists a connection between these rights, and knows well that these questions ought not to be segregated by means of waterproof bulkheads."

22 Speaking of commercial blockade, Meurer (op. cit., p. 60) says: "The core of the right of blockade is rotten; the right of blockade is a defiance of neutrality; it is the legal form for brutal acts of violation against neutrals and their trade. Commercial blockade originated at a time when the principle of neutrality was not yet developed, and when a belligerent was the leviathan who swallowed everything in sight. It is high time that the principle of neutrality should begin to assert its natural rights. The belligerent presses the neutral nations into his service by blockading commercial intercourse, and he injures them by placing restrictions upon their trade. The practice of confiscation lends emphasis to the application of blockade, and thus the right of capture at sea and the right of blockade pull on the same string; both constitute rights of capture. The belligerent lays his hands upon private property, in one case in the possession of enemy subjects, in the other, even on the property of neutrals. It is the same spirit, only somewhat more brutal, in the case of blockade, because it is directed even against neutral nations. For that reason whoever is in favor of the abolition of the right of capture at sea can no longer defend the right of blockade."

voyage.23 But he appears to regard the abolition of contraband as impractical.

On this head, Meurer says:

My plan demands, furthermore, that the idea of conditional contraband disappear entirely from international law. While according to my proposal, all articles needed in warfare, hence the objects. which hitherto constituted absolute contraband, can no longer be transported nor shipped in transit, and while the sovereign who fails in his supervisory duties renders himself liable to a breach of neutrality, for which he may be brought to account through diplomatic channels, commerce is to remain absolutely unrestricted in all other respects. It is easily perceived that the stakes involved in the control of war shipments are not too high; the sea becomes really free.

Kleen's plan, too, which was fully discussed in the preceding pages, is in agreement with my own views. He wants to prohibit only the shipment of "actual war munitions" (munitions de guerre properment dites) as constituting the chief articles of military aid. Kleen was of the opinion that it was not advisable to stamp as contraband and to prohibit by means of a contraband law the sale of such articles as were required too much in the course of daily life. According to paragraph 9 of his proposal, the Powers were to come to an agreement concerning a general international convention that would cover only objects of so-called absolute contraband, and likewise any changes in the contraband list that might eventually be required on account of inventions, progress in the art of warfare, or new international principles. For that reason, Kleen, whose far-seeing mind already perceived, as it were, the Hague Peace Conferences, had in view alternating revisions of the lists at periodically convoked conferences. He expressed himself strongly against contraband declarations being issued by the belligerents; these, in his opinion, were never determined by considerations of the general, but invariably of selfish, interests.24

Furthermore, Meurer is of the opinion that international law should impose upon neutral governments the obligation of preventing the shipment of absolute contraband. He strongly favors an international agreement prohibiting the exportation of arms. He cites in support of this view such authorities as Woolsey, Bulmerincq and Kleen; and, as shown in the above citation, endorses Kleen's plan of 23 The theory of continuous voyage, Meurer (op. cit., p. 65) characterizes as a "bluff for the purpose of covering up one's weakness through an artificially created fear among neutral nations."

24 Meurer, Das Program der Meersfreiheit, 1917, pp. 86-87.

1893-a plan which was rejected by the Institute of International Law. He says (p. 89): "The spirit of true impartiality can assert itself freely only through an international embargo against exportation of articles that constitute absolute contraband."

In respect to conditional contraband, Meurer (pp. 91, ff.) proposes that the conception be altogether abandoned by international law, that is, he favors absolute freedom of trade in conditional contraband. (It appears that on land Germany is to act in accordance with the law of military necessity; at sea this law does not apply. There is to be one law for land, and another for sea warfare.)

Meurer does not think much of the plan of an international maritime police force as a means of securing the observance of the freedom of the seas, but rather favors the economic boycott. He looks to the neutral community of nations to achieve this result. Should they fail, there remains the right of self-help. He thinks an international agreement could not make matters worse for Germany, but anticipates improved conditions for her after the war through the demonstrated success of the submarine, though he is honest enough to admit that German mastery would also mean the destruction of the freedom of the seas. Meurer concludes that the most effective safeguard of the freedom of the seas is eventually-not an international agreement, but the absolute certainty that all fresh ambitions for world dominance will be dashed to pieces against the Concert of Powers that will act as guardian of the seas.

There appears to be in Germany at the present time a strong current flowing in the direction of the abolition, or at least the limitation, of belligerent rights at sea under the guarantee of a League of Nations. In other words, under a socialistic or semi-socialistic régime, there is naturally a growing demand for a so-called neutralization or internationalization of the high seas and all international passage

ways.

Whether such schemes be looked upon as practicable or merely desirable but Utopian, whether regarded from the national or international point of view, the writer is convinced that belligerent rights at sea should not be surrendered lightly. They are all of one piece, and their preservation as a whole is certainly desirable from the

standpoint of a nation which is destined to be one of the Great Sea Powers of the world. But their preservation is no less desirable from the point of view of those who believe that the peace of the world and the freedom of the seas can best be secured and maintained through international action.25

AMOS S. HERSHEY.

25 In his pamphlet entitled Freiheit der Meere und der Kunftige Fridensschlus, published in 1917, the German publicist Triepel sets up the following thesis:

"The complete doing away of the rights of contraband and blockade is a Utopia. The abolition of the right of capture of prizes, without at the same time doing away with the rights of contraband and of blockade, would be not only a futile innovation, but one decidedly injurious to Germany. For the rights of capture, contraband and blockade are three fetters of maritime trade so ingeniously welded together, that as soon as one is loosened or destroyed the other lays hold so much the more firmly."

"Triepel dedicates to the proving of this thesis more detailed explanations. He tries to show that, in the first place, there is not the least prospect that the institution of contraband will ever disappear from the law of warfare. If the right of capture should be abolished but that of contraband be retained, then the conception of contraband, which up to the present has referred only to neutral property, would be applied also to that of the enemy. This enemy property would then fall a prey to the opponent, not as booty but as contraband. There would then arise the danger that by the great extension of the idea of contraband sea-booty might again be introduced, by means of which the maritime commerce of the enemy could be crippled just as much as by the right of capture. The abolition of the right of capturing prizes, without the abolition of the right of declaring contraband, would be advantageous to the sea-power which could manipulate the weapon of the capture of contraband goods the more readily. As long as the geographical situation and the proportions of power have not changed, Germany will derive more harm than benefit from such a freedom of the seas. The prospects for an abolition of blockade are just as slight. If, moreover, the right to capture prizes should be abolished but not that of blockade, the result would be ineffectual. For blockade would then signify to the adversary nothing else than capture. Ships would fall a prey The blockade would

to the enemy either as prizes or as blockade-runners. destroy the enemy's commerce by its very existence. Therefore a blockading sea-power could, if necessary, dispense with the right of capture, for one military measure could be substituted for another. The abolition of the right of capturing prizes would have to be followed, as a logical conclusion, by the abolition of the right of blockade. In England the correct deduction was made that, because they could not dispense with blockade, neither could they with the capturing of prizes. At any rate, the retention of the right of blockade would make the abolition of the right of capture an illusion. On the other hand, the abolition of the right of blockade with the retention of the right of capture would not have the least advantage for Germany. Yes, even if both institutions