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manner in which the German ordinance was carried out, but French writers admit that instances are not lacking in which Frenchmen were allowed to maintain actions and appear as defendants.99 Nevertheless, the practical difficulties encountered in exercising the privilege granted appear to have been insurmountable in many cases.100

The Reichsgericht rendered a decision on July 8, 1915, in which it upheld the right of English subjects domiciled in the Empire to sue in the German courts for the recovery of money due them on contracts, notwithstanding the English prohibition in respect to payments due German subjects.101 German writers in fact assert that no restrictions were placed upon the right of enemy subjects domiciled in the Empire to bring actions in the courts, that no question was ever raised as to the right of German attorneys to take the cases of such persons and that there were no instances in which members of the German bar refused to defend enemy persons against whom suits were instituted.102

Austrian Policy.—The Austrian Government appears to have pursued a liberal policy. By an ordinance of October 7, 1915, enemy enterprises were allowed to bring actions with the consent of the

Matters,” in Law Notes for June, 1915, p. 48, and the Jour, of the Soc. of Comp. Leg., January, 1915, p. 55, which thus described German policy:

“Suffice it to say that the emergency provisions, taken as a whole, are creditable to Germany and its jurisprudence. They exhibit no spirit of vindictiveness. If there is retaliation, it is only resorted to where the rights conceded by Germany are refused by us. The disabilities and prohibitions, in a word, are no more that the reasonable safeguards which a belligerent may exact in the presence of that hideous anomaly-War."

99 See Barthélemy in 43 Clunet, p. 1446, and Clunet, ibid., T. 42, p. 567, and T. 43, p. 1131. See also an article by Dr. Arthur Curti, a Swiss jurist, entitled De la Condition des Sujets Ennemis Selon la Législation et la Jurisprudence Allemandes, 42 Clunet, pp. 785 ff.

100 G. F. in an article entitled Accés des Sujets Ennemis aux Tribunaux Allemands, in 44 Clunet, pp. 48 ff., calls attention to various other difficulties which made recourse to the German courts by enemy subjects, either as plaintiffs or defendants, even where the right was accorded by law, a practical impossibility.

101 Soergel, Kriegsrechtsprechung und Kriegsrechtlehre, pp. 99, 111.

102 See an article dealing with the right of enemy aliens to sue in German courts and to employ attorneys, by Dr. Haber, of Leipzig, in the Juristische Wochenschrift of April 15, 1916, reprinted in French in 44 Clunet's Journal, pp. 448 ff.

surveillant. In the case of Attenbach v. Kornfeld, a French haberdasher of Vienna, who returned to France at the outbreak of the war, was allowed to hire an attorney and bring an action against an Austrian for the recovery of a debt incurred before the war. The State was interested, said the court, in seeing that Austrian debtors performed the stipulations of their contracts with enemy houses. Judgment was decreed in favor of the Frenchman although the amount decreed was placed in the hands of the surveillant to be held by him until the end of the war.103

Italian Policy. By a decree of June 24, 1915, the Italian Government prohibited the bringing of suits in the Courts of Italy by persons of Austrian or Hungarian nationality or persons resident in Austria or Hungary. All pending suits were suspended during the duration of the war and the statutes of limitation were likewise suspended. By a decree of July 18, 1916, the provisions of the abovementioned decree were extended to all persons who were the subjects of any state at war with Italy, to all persons resident in such a state and to all persons who were subjects of or resident in the territory of the ally of an enemy. 104


103 Communication by Professor Basdevant of Grenoble, in 44 Clunet, pp. 114 ff.

104 Huberich, Trading with the Enemy, p. 12.


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.


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 proposed by Continental reasoners—of two things one"—then it is possible to justify not merely the auto da , 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 modia 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.


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

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