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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.
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 méme chose étoit défendue chez les romains. L Mercatores au cod de commerciis et mercatoribus.
Dans un Navire ennemi, car il n'est pas permis de freter un vaisseau ennemi et les marchandises et effets quoi qu'appartenans aux Sujets du Roi ou à ses alliez, ne seroient pas moins de bonne prise que le navire ennemi; cet Art. a été confirmé par un arrêt du conseil du 26 Octobre 1692, et par un autre du 23 Juillet 1704.
The ordonnance of 1704 decreed :
S'il se trouve sur les vaisseaux neutres des effets appartenans aux ennemis de Sa Majesté les vaisseaux et tout le chargement seront de bonne prise.
Here was a gross violation of neutral rights. A flagrant departure from the public law of Europe and from the custom and practice of centuries. That it could be supported by some forgotten rule of Roman Law or by the maxim “que la robe ennemi confisque la marchandise et la vaisseau ami” was no justification for a departure from accepted International Law. But the late sixteenth and early part of the seventeenth centuries were the period of the expansion of commerce. The treaties begin to bristle with commercial stipulations and nations were becoming more and more interdependent. Whilst we may allow full weight to the sordid motives of the privateersmen there was certainly another factor governing the Law of Capture at Sea. The war of exhaustion had become an international weapon. Commerce sustained the strength of a nation, the deprivation of commerce weakened and exhausted a nation.
In the War of the Spanish Succession the exhaustion of France was the governing influence that induced Louis XIV to sign what to him must have been the humiliating Treaty of Utrecht. England was not exhausted, and owed her vigorous vitality to sea power. Yet the 17th Article of the Commercial Treaty of Utrecht between England and France stipulated for free ships, free goods except contraband of war and was a distinct repudiation of the French Law. This article was a British article. Why? Because the Power that has the mastery of the sea has no need for la guerre des courses, or for privateering. Moreover, the British maritime supremacy was not limited to vessels of war, but included a growing mercantile marine. Privateering is always the resource of the weaker naval power. But the weapon of an effective or virtual blockade, amounting to an interruption or prohibition of commerce, is a serious military weapon. The exploits of the Alabama and her consorts in no way influenced the Civil War in America, but the blockade of the southern coasts exhausted the Confederacy. It was as much a factor in the decision of the war as the victories of General Grant.
This is the prominent fact that has influenced the history of Europe from the date of the battle of La Hogue in 1692 to the present day. Sea power is telling every day, and the exploits of the submarine could not and did not, as the Germans expected, decide the war.
The 17th Article of the Commercial Treaty of Utrecht was an attempt to readjust the balance between neutral rights and belligerent claims. It was a departure from the principles of the Roman Law and the clear cut distinctions of the Consolato del Mare; but it was a special contract with France and was not of universal application. It was not the law, but was an exception to the law.
The French Regulation of October 21, 1744, is too long for quotation, but it gave neutral vessels sailing from their own ports the right to carry the goods of their own country to an enemy port, except contraband of war. It also gave neutral ships the right to sail from an enemy port with goods loaded on account of neutral sovereigns for a port of their own sovereign. But otherwise enemy goods on neutral ships were good prize.
On January 18, 1753, the law officers of the British Crown submitted a memorandum of the law in the matter of prize. This memorandum is an annexure to the well-known despatch of the Duke of Newcastle in the matter of the Silesian loan, and is too long for quotation in full. But the following extract gives the pith of the statement:
First as to the Law.
When two Powers are at war, they have a right to make prizes of the ships, goods, and effects of each other upon the High Seas. Whatever is the property of the Enemy may be acquired by capture at sea; but the Property of a Friend cannot be taken provided he observes neutrality. Hence the Law of Nations has established:
That the goods of an Enemy on board the ship of a Friend may be taken.
That the lawful goods of a Friend on Board the ship of an Enemy ought to be restored.
That contraband goods going to the enemy tho’ the Property of a Friend may be taken as Prize; because supplying the enemy with what enables him better to carry on the War is a departure from Neutrality.
This is substantially the Consolato del Mare plus the confiscation of contraband. The law officers were not legislating, they were stating the law, and the law had come to recognize a new factor in war, and a new distinction in the right of a belligerent. The right of plunder, of confiscating enemy property was still present in the law. But a new and competitive motive or justification for belligerent rights appeared.
The law of capture at sea was gradually taking the direction that the right of the belligerent was to intercept succors or aids sent to his enemy, a much nobler and more justifiable right than the right to plunder. The two rights stand concurrently in the law, but it is evident that as between belligerents the path of progress, if motive is to weigh, lies in the replacement of the right to plunder by the right to intercept or control succor. Provided always that full consideration is given to the rights of neutrals.
On February 1, 1793, the French Convention declared war on England, and the British Government at once entered into a series of treaties prohibiting the export to France of naval and military stores or provisions. The signatories to those treaties included Russia, Spain, Naples, Prussia, Austria and Portugal. In fact all Europe except Sweden and Denmark. Here we find the right of control of commerce, as distinct from the right of plunder of commerce, coming into prominence.
And this new right or claim was emphasized when both France and England preempted the cargoes of ships laden with corn, flour Or meat.
England's action gave ground for controversy. For although the Treaty of 1691 between England and Sweden made money, provisions, and horses, with furniture necessary for horses, contraband, Sweden,