THE CAPTURE OF PRIVATE PROPERTY

AT SEA

As things stand at present,' writes Professor Perels in the last edition of his Internationale Seerecht, we cannot count on the exemption of private property at sea from capture in the near future. The main factor is that the British Government since the Declaration of Paris has maintained an attitude of persistent and determined resistance to all movements for reforming the laws of maritime warfare.' Publicists of almost all countries, including our own, have been expressing themselves in similar terms, and we are warned by some of our best international lawyers that there is growing up abroad a mass of hostile opinion on the subject which it is unsafe for us to ignore. Professor Perels' words conveniently focus for us that alleged mass of opinion, and since he was formerly Admiralitätsrath and is now Departements Direktor in Reichs-Marine Amt and Professor in the Berlin University, we may take his formula as something like our official arraignment at the bar of Europe. But before examining the charge with a view to preparing a defence it is wise at once to enter a claim to vary the indictment. We do not deny the 'persistent and determined resistance.' We merely beg to submit that our persistent and determined resistance has been to all movements for reforming the laws of maritime warfare in the interests of the great military States.'

It is true that some of our most respected authorities would persuade us that the exemption of private property at sea from capture is particularly to our own interests, because we possess the largest, and therefore, as they assume, the most vulnerable mercantile marine, and because we rely for our sustenance more than any other nation on seaborne supplies. But this is a military question, on which our publicists are not safe guides. It involves strategical considerations, which clearly they have not taken into account, and their view is not shared by the Navy. It is a view, however, which is seriously urged by serious people, and we must return to it. For the present it is enough to claim that the leading facts in the history of the movement create a prima facie case that exemption is for the benefit of weak fleets and powerful armies. Started originally by a French abbé,

the idea was first embodied in a treaty by Frederick the Great, a man who had had practical experience of how gravely the vulnerability of commerce at sea may affect the progress of a Continental war. When he was in alliance with Great Britain it did not occur to him to make the suggestion. It was the newborn Republic of America that proposed it to him; and he wisely agreed, since the arrangement made it impossible for the United States ever to make war on him at all. Similarly, the United States was wise to get the sanction of so great a figure to the principle of immunity, since her budding commerce was always at the mercy of her one enemy so long as capture was permitted. With material advantages so great and obvious in hand it can convince nobody to talk of lofty and disinterested ideals.

Next it was Napoleon who put forward the new doctrine, and · sought to establish it by the revolutionary violence of his 'Continental System.' In 1866, Austria, cooped up in the head of the Adriatic by the menace of a superior Italian fleet, declared for it. Italy, similarly threatened by France, had already done so. Again, in 1870 Prussia magnanimously intimated that, true to the sublime principles of Frederick the Great, it was her intention, whatever France did, to treat as sacred all innocent private property at sea.

When the buffalo found the lion in his path, he exclaimed, with a superb gesture, For my part, I mean to remain true to my vegetarian principles.'

Now to examine the charge more seriously and with what temper we can. For it must be understood that our friends abroad make their accusation opprobriously. We are represented as standing in the way of human progress, of obstructing for our own selfish ends the march of civilisation, of seeking to perpetuate the methods of barbarism, of thwarting the disinterested aspirations of nobler nations to mitigate the severity of war and humanise its practice. And all this because, as they say, we refuse to complete the work of the Declaration of Paris by consenting to give to private property at sea that complete sanctity which it is unblushingly alleged to enjoy in warfare on land. So shocking does such depravity sound that in many cases our serious and high-minded journalism, which is so dear to us, is beginning to ask, in its most moving and conscientious tones, if we are to be the last of all nations to recognise this sacred duty to humanity.

Were it not that this particular attitude towards the question was so ludicrous it would be difficult to treat it with patience. Such a charge against ourselves is peculiarly hard, seeing that we have to our credit a record in respect of the mitigation of war which no nation can pretend to rival. There is no nation that can point to such a concession to the public opinion of the world against interest as we made in consenting, in 1856, to the doctrine of Free ships, free goods.' At the time it was widely regarded, and is still so regarded, as depriving us of one of the most powerful weapons in our armoury;

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and yet for the sake of goodwill amongst nations, for the sake of softening the hardships of war to neutrals, we surrendered that right. For centuries we had clung to it as essential to the maintenance of our sea power; yet a higher and more farsighted wisdom pressed for the almost quixotic sacrifice, and it was done. Can any nation show a sacrifice beside it? Let him who can cast the first stone at us now. To add to the unreasonableness of our accusers, instead of acknowledging handsomely the lengths to which we went on that occasion, they rail at us because we will not extend the principle to the complete immunity of private property at sea. As though the one principle had anything to do with the other. said Sir William Harcourt during a debate on the point in 1878-and surely he, whether as a Liberal humanitarian or an international lawyer, should carry weight enough—' You might as well say that the extension of the Great Western Railway would be an extension of the Great Northern. They do not go in the same direction, they have not the same object, they are not parallel in any respect.' Nothing can serve better for clearing the subject of fallacies and exhibiting the true grounds of the British attitude than to follow out the line of reasoning which the great international jurist indicated in opposing the idea on that occasion.

You might as well say,'

If the ideas which determined the status of private property in war be traced back to the dawn of modern international law, we shall find Grotius, in 1625, and Bynkershoek a century later, giving as an axiom the right to confiscate or destroy all property whatsoever belonging to an enemy wherever found. The axiom was quickly modified by Vattel, who wrote during the Seven Years' War. While admitting the abstract right, he maintained that its exercise should only be permitted as far as it is called for by the purposes of war. Here we have the first application of the true theory of war to the question. We make war not for the purpose of doing the enemy all the harm we can, but to bring such pressure to bear upon him as wil! force him to do our will-that is, will convince him that to make peace on our terms is better than continuing to fight. Now, the indiscriminate plunder of private property and its wanton destruction, while causing an immense amount of individual suffering, do not contribute in the most forcible way to the kind of pressure that is needed. Consequently, it had already become the practice for an invading enemy to treat private property with a certain respect, or rather, perhaps, economy, and to endeavour to set some restraint upon its indiscriminate plunder and destruction.

It is to this movement is due the oft-repeated but wholly unfounded assertion that private property ashore, unlike private property at sea, has been made generally immune from capture. It is further asserted that this immunity was due to a growing sense of humanity and a Christian desire to mitigate the horrors of war. Now, this is the kind of

assertion which makes plain and practical people impatient with international law and blinds them to its value and reality. It is just one of those expressions which jurists let slip from a mere habit of the pen. Of this particular statement, that the restrictions in question were due to a growing sense of humanity, there is no real evidence whatever. Humanity may have been a contributory cause, but, if we turn from the loose expressions of jurists to the dry light of the orders actually promulgated by invading generals, we see at once that the real reason of the restrictions was strategical and military, and not moral at all. Take, for instance, the earliest case as typical-the rule of Gustavus Adolphus against plundering: 'If it so please God that we beat the enemy either in the field or in his leaguer, then shall every man follow the chase of the enemies; and no man give himself up to fall upon the pillage so long as it is possible to follow the enemy,' etc. This germ idea that pillage actually lessens your power to exert the necessary pressure was further developed by the rules of Frederick the Great; but he took a long step further. For that great master of war recognised not only that pillage demoralised and weakened the weapon with which the pressure had to be exerted, but that pillage and destruction were not the most profitable or effective ways of exercising your rights over the enemy's property. To deprive the enemy's people of their power to produce was both to destroy the value of your conquest and its power of maintaining your troops. To protect the goose and enable her to continue laying her golden eggs was the only sound policy. He therefore insisted on the method of exercising his war right by levying contributions and making requisitions. By this means he at once maintained the temper of his weapon and made the pressure of the occupation more lasting, more powerful, and more directly coercive to the collective life of the enemy. To say that he abandoned his right over enemy's property is to play with words. If an army is in winter quarters in an enemy's country,' he writes in his General Principles of War, 'the soldiers receive gratis bread, meat, and beer, which are furnished by the country.' And again: The enemy's country is bound to supply horses for the artillery, munitions of war, and provisions, and to make up any deficiencies of money.' The truth is that no restraint of the old rule of Grotius. and Bynkershoek is to be found that does not operate to the military or strategical benefit of the belligerent, not one that does not directly increase the pressure which the invading force is seeking to exert to achieve its end. The principle reached its clearest expression during the Franco-German war, where it was absolutely essential to German success that they should not goad the French people into guerilla warfare, as Napoleon had done in Spain, by permitting irresponsible exercise of belligerent rights over private property. By the German orders of 1870 no requisition could be made except by general officers or officers in command of detached corps.

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The system worked admirably, and, on the whole, as mercifully and with as little individual suffering as is possible in war. The object of an invasion-the means by which it exerts the necessary pressure -is to produce a stagnation of national life. This the German invasion did effectively, and the stagnation grew deeper and more intolerable the more it was prolonged, till submission was recognised to be the lesser evil. But all this was not done merely by the victories of armies. It was done by the exercise of belligerent rights over enemy's property of the right to seize and consume it; of the right to control roads and railways and inland waters, so as to prevent its flow and render commerce impossible except in so far as it suited the belligerent; and of the right to carry military execution against it in case of resistance by its owners. Without the right to requisitions and contributions, without the right to control civil communications, it could not be done. War, as is universally admitted, would become impossible. Nations cannot be brought to their knees by the mere conflict of armies, any more than they can by the single combats of kings. It is what follows victory that counts the choking of the national life by process of execution on property, the stagnation produced by the stoppage of civil communications, whether public or private.

Here is a picture of what the process meant, drawn by the able pen of a man who saw it face to face in 1870:

In occupied towns officials receive no salaries, professional men no fees. The law courts are closed. Holders of house property can get no rent. Holders of land can neither get rent, nor can they cultivate the soil or sell their crops. The State funds pay no dividends, or, if they do, all communication between occupied and unoccupied districts being broken off, the dividends cannot be touched. Railway dividends are equally intangible, and perhaps the line on which the shareholder has especially counted is in the hands of the enemy.

This is what conquest of territory means-the prostration of the national life; and this is why conquest of territory is the means by which land warfare seeks to gain its end.

With this picture in our minds of the way in which private property is dealt with ashore, and the way in which it is made to contribute to the victor's object, let us turn to the sea, and inquire in what manner its treatment there is less moral, less human, or less necessary, if war is to be waged at all. To begin with, we note that in some respects private property has never been so badly treated at sea as it has been on land; at least, in modern times and in regular warfare it has never been the subject of indiscriminate plunder. The ruthless scramble for loot, which led to the acutest suffering and cruelty ashore, was no part of sea capture. Prizes were taken by orderly act of war, were regularly condemned, and the proceeds divided amongst the captors in cool blood and by authority. Again, at sea immediate military execution was never the penalty for resisting interference