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The following action was recently taken in the United States:
Resolved by the Senate and House of Representatives in the United States of America in Congress assembled, That it is the sense of the Congress of the United States that it is desirable, in the interest of uniformity of action by the maritime States of the world in time of war that the President endeavor to bring about an understanding among the principal maritime powers with a view of incorporating into the permanent law of civilized nations the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction by belligerents. Approved April 28, 1904.
The position of the United States in the exemption of private property at sea in time of war is not based on the consideration advanced in certain States, viz, that unless private property is exempt the State may be cut off from supplies. The United States' population could subsist without foreign commerce for a considerable time with little inconvenience.
Attitude of other powers.- In the war of 1866 Austria, Italy, and Prussia adopted the principle of immunity of private property at sea. The same principle was not adopted in the Franco-Prussian war of 1870, though Prussia was inclined to urge it on France. The action of Italy in 1866 was in accord with the provisions of her merchant maritime code of 1865, wbich provided that in time of war enemy property on the sea, except contraband, was inviolable. There have also been certain instances, as in the Chinese troubles of 1860, where exemptions have been made on grounds of expediency. Article XII of the treaty between the United States and Italy of February 26, 1871, provides that,
The High Contracting Parties agree that in the unfortunate event of a war between them the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas or elsewhere by the armed vessels or by the military forces of either party, it being understood that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either party. (Compilation of Treaties in Force, 1778–1904, p. 453.)
OPINIONS ON EXEMPTION OF PRIVATE PROPERTY.
These are some of the main cases in which the principle of immunity of enemy private property at sea in time of war has been adopted in practice or treaty.
Neither practice or treaty precedent offer sufficient basis for regarding the principle as in any sense a recognized one.
Opinions on exemption.—The Institute of International Law in its session of 1877 declared that“ Private property, whether neutral or enemy, sailing under enemy flag or neutral fag, is inviolable."
In a letter of Professor Holland, of Oxford, quoted at the meeting of the International Law Association in 1900, the following statement is made:
The question of immunity seems to me to be rather one for politicians and shipowners than for lawyers. It is probable that immunity would now be in the interest of Great Britain, but, if so, the continental Governments, whatever may be continental legal opinion, are not likely to pledge themselves to it, and, even if they did enter into a general convention to that effect could hardly be relied upon to stand by their bargain. I doubt the expediency of making treaties about lines of conduct which may affect national existence. The strain upon them is likely to be too great for endurance, and one is afraid that one's country might be lulled into security by a paper contract which might be torn up on the outbreak of hostilities.
Sir John Macdonell, in writing of England's position in 1904, said:
It appears to me that more and more the interests of England become those of a neutral state and that it would be to her advantage on the whole that private property on sea were exempt from capture
* It is is inconceivable that the destruction of commerce at sea of any rival could determine in our favor the issue of a war in which we were engaged; while the systematic harrying of our trade might in certain circumstances be a serious blow to England. (Nineteenth Century, Nov., 1904, p. 699.)
In another place the same writer, treating of private property at sea, says:
For all concerned, but especially for England, which stands to lose most, it would probably have been well if the offer held out last century by Jefferson and Franklin, and repeated by the United States in 1856 and 1870, to exempt such property from capture had been adopted. (Journal Royal United Service Institution, XLII, pt. 2, p. 796.)
In Atlay's recent edition of Wheaton's International Law, a position opposed to exemption of capture of private property on the high seas is assumed. The arguments are stated as follows:
The indiscriminate seizure of private property on land would cause the most terrible hardship without conferring any corresponding advantage on the invader. It can not be effected without in some measure relaxing military discipline and is sure to be accompanied by violence and outrage. On the other hand, the capture of merchant vessels is usually a bloodless act, most merchant vessels being incapable of resisting a ship of war. Again, property on land consists of endless varieties, much of it being absolutely useless for any hostile purpose, while property at sea is almost always purely merchandise and thus is part of the enemy's strength. It is, moreover, embarked voluntarily and with a knowledge of the risk incurred, and its loss can be covered by insurance. An invader on land can levy contributions or a war indemnity from a vanquished country; he can occupy part of its territory and appropriate its rates and taxes, and by these and other methods he can enfeeble the enemy and terminate the war. But in a maritime war a belligerent has none of these resources, and his main instrument of coercion is crippling his enemy's commerce. If war at sea were to be restricted to the naval forces, a country possessing a powerful fleet would have very little advantage over a country with a small fleet or with none at all. If the enemy kept his ships of war in port, a powerful fleet, being unable to operate against commerce, would have little or no occupation. The l'nited States proposed to add to the declaration of Paris a clause exempting all private property on the high seas from seizure by public armed vessels of the other belligerent, except it be contraband, but this proposal was not acceded to. Nor does it seem likely, for the reasons stated above, that maritime nations will forego their rights in this respect. (Paragraph 355 b).
Edmund Robertson (late civil lord of the Admiralty) summarizes the recent report of the Royal Commission on Supply of Food and Raw Material in Time of War, as follows:
(1) The commission has ascertained the extent of our dependence for supplies of food and raw material on foreign sources. The prime fact is that we import four-fifths of the wheat we consume and that our stocks ou hand may run down so low as seven weeks' supply.
(2) The commission was not instructed to deal with exports, but it is true, both of our exports and our imports, that on the sea, when they are the property of British subjects and are carried in British ships, they are liable to seizure and confiscation by an enemy in time of war.
GENERAL CONCLUSIONS AS TO CAPTURE.
(3) It is quite clear that this condition of things necessitates what is called a strong fleet, and that, even with a strong fleet, trade will be to some extent endangered, supplies to some extent interrupted, prices to some extent increased. To what extent the commission was divided in opinion.
(4) The commission accordingly, or rather various sections of the commission, have suggested various remedies all of which would involve serious public expenditure. But the commission has not found it within its province, as understood by the majority, to deal in any way with the rule of international law, which the report declares to be the cause of all the apprehended dangers.
(5) This rule has been retained in international law mainly by the refusal of Great Britain to consent to its abolition at a time when her economical and even her naval position in relation to other nations was quite unlike what it is now.
(6) The rule has been gradually falling into discredit-partially in this country, generally in most others.
(7) There is good ground for thinking that the right of capture is of no great value to us, and also that it will not, in fact, be exercised to any great extent until the closing stages of the war.
(8) There is also ground for thinking that, apart from the mere question of supplies, the rule, taken in connection with the declaration of Paris, must have the effect of transferring a large portion of our vast carrying trade to neutral flags.
(9) At this very moment the rule has been formally challenged once more by the United States Government in its proposals for the new Hague conference.
General conclusions as to policy of capture.—Great Britain has until recently particularly opposed the principle of the exemption of private property on the sea from capture. There now seems to be a tendency on the part of the British to recognize that in modern warfare the capture of private property may be open to question, the opinion of some of the best of the English authorities being that there is little reason for the continuance of the practice.
There is a growing opinion that the reasons for the capture of the enemy's private property at sea are economic and political rather than military. The immunity to private property should not, however, be so extended as to interfere with necessary military operations. It would not be reasonable to exempt private property to such an extent as to cause the war to be of necessity prolonged or to result in greater destruction of life. Imperative military
necessity, of which the superior officer on the field of action at the time must judge, must override rights of private property. The question of damages may be reserved for subsequent settlement.
Recent wars have shown the course of trade under influence of new conditions.
It has become customary to allow a certain number of days of grace during which the vessels of one belligerent may enter and depart from the ports of the other belligerent. Vessels thus sailing are exempt from capture.
The ease of rapid communication by telegraph and otherwise renders the knowledge of the probable outbreak of war general. Few vessels will be taken by surprise or will start on voyages for ports which will render them liable to capture.
The practical abandonment of privateering makes capture of private property less an object of war.
The abolition of prize money by some States removes one of the stimuli to the capture of private property.
The development of continental carrying trade has made it possible for most States to supply a large portion of their needs by overland carriage. In the early days of capture of property on the sea overland commerce had not received the great impetus due to the development of steam and electricity.
The declaration of Paris of 1856, to the effect that the neutral flag covers enemy's goods, with the exception of contraband of war," has made possible the transfer of a large portion of the enemy sea commerce to neutral flag in time of war. The absence of risk under neutral flag will also make possible cheaper rates under neutral flags. Under ordinary economic laws commerce would thus go to neutrals in time of war.
In recent wars evidence seems to show that the capture of private property has had little influence on the issue of the war and has stirred up enmity against the captor. In the Franco-Prussian war of 1870 it is reported that not more than eighty German vessels were captured. In the Spanish-American war, in 1898, comparatively little influ