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and unchristian. The only ground upon which war was justifiable at all, from a Christian point of view, was that of self-defense; the very etymology of the word depends upon this idea. It is unnecessary to dwell upon the fact that no principle of self-defense can require us to predicate enmity of non-combatants. “ The foundation of a just war is a wrong," says Franciscus à Victoria, “but wrong does not proceed from the innocent, therefore it is not lawful to make war upon them.” That which was most important of all, however, and which assisted most the decay of the old theory on the Continent, was the change in the practice, which had in fact been so great as fairly to take the kernel out of it and leave little except the bare shell.
Briefly to sum up, if individuals taking no active part in the war were enemies, they were enemies (1) who could not be killed, (2) who could not in any manner be molested in their
persons (except in a few cases on the ground of military necessity), and (3) whose property on land was exempt from seizure 3 except by way of contribution and requisition. What, then, was left of the jus hostilis?
Calvo, Droit International (Paris, 1880), III., II. “Le mot guerre dérive de l'allemand wehr . qui signifie défense."
* Relect. Theol., VI. Quoted by Hall, Intern. Law (Ed., 1880).-"Fundamentum justi belli est injuria, sed injuria non est ab innocente; ergo non licet bello uti contra illum."
* If, for example, England and France are at war. and X is a French subject, his personal property on land may be divided into three classes: (1) Property in France; (2) Property in England; (3) Property on land elsewhere. The first class is exempt from seizure except by way of contribution and requisition. The second and third classes are exempt absolutely in practice, though the Eng. lish writers say, as a sort of sop thrown to consistency, that they are “ theoretically subject to seizure.” The real property everywhere is exempt, though it may, of course, be occupied by either army during military invasion. The irreconcilability of these exemptions with the old theory that X is the enemy of the English Crown and of every individual Englishman can hardly fail to be apparent.
* The right of contribution and requisition is not a hostile right, but depends
Theoretical progress is made in a straight line, but the paths of practical progress are devious. It is not surprising, therefore, that something really was left of the jus hostilis in regard to non-combatants. The different methods of warring upon harmless individuals had been falling out of use by degrees, not abolished by one happy stroke; and there was one method which was in use still, for no other reason than that it had not yet been abolished. The capture of private property was still allowed on the high seas. That is to say, if England is at war with Prussia, a bale of Prussian goods is safe on an English wharf, but the same bale found by an English cruiser outside the three-mile line is good and lawful prize. Mably, in 1754, called attention to this unfair discrimination. “We should regard with horror," says he, “an arıny which made war on citizens and robbed them of their goods;
How, I ask, can that which is infamous on land be just or at any rate permissible at sea?”:
A few years later Rousseau, in his Social Contract, found the words to express the great principle toward which the laws of war had been tending. "War," said he,? " is not at
upon the principle that the invader displaces, temporarily, the sovereignty of the invaded state over the territory invaded. It is a right analogous to that of the original sovereign to levy war taxes. It is a right exercised by superior over political inferior--not by belligerent over belligerent. Cf. Ercole Vidari, Del rispetto della proprietà privata fra gli Stati in guerra (Pavia, 1867), III., 3.
Moreover, England now pays for her contributions, and the United States has evinced an intention to do the same. (Cf. Am. Instr. for the Government of Armies in the Field, Art. 37, providing for "forced loans; ” and Treaty of Guadalupe Hidalgo with Mexico, 1848, Art. 22.) See also Art. 55 of the Code of the Institute of International Law for wars on land, providing for restitution of things requisitioned.
"Droit Public de l'Europe fondé sur les traités, II., 310.
? " La guerre n'est donc point une relation d'homme à homme, mais une relation d'état à état, dans laquelle les particuliers ne sont ennemis qu' accidentellement; non point comme hommes, ni même comme citoyens, mais comme soldats; non point comme membres de la patrie, mais comme ses défenseurs.”Du Contrat Social (1762), I., IV.
all a relation of man to man, but a relation of state to state, in which individuals are enemies only accidentally-not as men, not even as citizens, but as soldiers; not as members of their state, but as its defenders.” Principles, he says, which are not those of Grotius, and are not founded on the authority of poets, but which spring from the nature of things and are based on reason.
Obviously the logical result of this theory is the abolition of capture of private property at sea. So clear, indeed, is the connection, that the English claim that it was invented for that purpose. The dilemma was difficult for the supporters of the old system. If non-combatants are enemies, why spare their persons and property on land? If they are not, why interfere with them at sea ?
The spread of the new doctrine was very rapid in France. Linguet adopted it in 1779. Portalis substantially quoted Rousseau in his opening speech to the Conseil des Prises on the 14th floréal, an VIII. (1801).3 From this time on there is a perfect chorus of French writers and diplomatists laying down the Rousseaunian principle as established, and treating the theory of individual enmity as fallen into innocuous desuetude. Vergé, the celebrated annotator of Martens, says that " for a long time” (longtemps) war was waged between individual and individual, but that to-day states only are enemies, and consequently private property at sea is no longer justly subject to capture.4 Talleyrand, writing to Napoleon in 1806, declared that, “in consequence of the principle that war is not a relation of man to man, but of state to state,
* the law of nations does not permit the right of war
| Hall, Intern. Law (1880), pp. 60, 61.
2 Annales Politiques, V., 506, quoted by Laveleye, Rev. de Dr. Intern., VII (1875), 560.
Quoted Ibid. • V'ergé, note to Martens, $ 289.
and the resulting right of conquest to extend
to private property, to merchandises of commerce, word, to private persons and their goods.”; Napoleon himself expressed an ardent wish for the coming of a time “when the same liberal ideas should be extended” to both maritime war and terrestrial, and when private merchant vessels and harmless sailors should no longer be subject to capture.? Cauchy, writing after the Declaration of Paris, and holding the same views, for the same reasons as his predecessors, dilates with perhaps a shade too much optimism on the step taken toward their realization by the abandonment of privateering. In the same breath with the French writers may be mentioned the celebrated Argentine publicist Calvo, who writes in French as well as in Spanish, and who says positively that “war exists between states, and not between individuals," and that as a consequence the practice of capturing private property, even at sea, “tends to-day to give way to a more liberal doctrine.” 5
Modern French support of the right of capture at sea is practically confined to Hautefeuille and Ortolan. It is to be observed, however, that the theory of the former depends upon the now false premise that private property on land is also subject to seizure. The case of Ortolan is more peculiar, for while thoroughly Rousseaunian about the theory of war, and the exemption of private property on land, he attempts to distinguish the latter from property at sea, in a laborious and at times amusing way. He says, for example,
Quoted by Hall from the Moniteur of Dec. 5th, 1806. ? " Il est à désirer," etc. Mémoires de Napoléon, t. 3, ch. 6, p. 304. The preamble of the Berlin decree is much more positive in its language. Cf. infra.
3 Ed. 1862, II., 472.
5 Ibid., § 1994.
that at sea "no conquests or requisitions are possible. Yet the enemy must be injured in some manner” (il faut bien nuire à l'ennemi d'une manière quelconque). This certainly cannot be an argument in favor of the capture of private property, for, as M. Ortolan himself admits, war is not a relation of individual to individual, and hence private merchants cannot be the enemies whom “il faut nuire." He says, again, that seizing a ship and its cargo is a very different proceeding from seizing a man's household goods;a waiving which—it is not so very different after all-it must be remembered that it is not only the household goods, but factories, and stores, and things of a wholly professional kind, which are spared on land. Next, M. Ortolan refers to the fitness of the merchant marine of a state, both as to matériel and personnel, for immediate belligerent use.3 But this argument, in these days of iron-clads, is obsolete as to the ship, and explains nothing about the confiscation of the cargo; while as for the crew, if they are to be made prisoners of war because they may at any moment join the navy, why not capture farmers on land on account of their intrinsic fitness for the army? Finally, M. Ortolan suggests that, were capture at sea abolished, a belligerent with a weak navy
Cf. Rigles Internationales et Diplomatie de la Mer (1864), II., 42. There is something humorous about M. Ortolan's theory that the absence of our real enemy justifies the beating of an innocent person who happens to be present. In the language of Bluntschli—“Allein niemals kann die Schwäche der recht. mässigen Kriegsmittel ein Crund sein, um die Zulässigkeit unrechtmässiger Kriegsmittel zu rechtfertigen." (Das Mod. Völk., 45.) And Lavaleye says (Rev. de Dr. Intern., infra.): “C'est comme si sur terre on bralait syst' matiquement des fabriques, parce qu'elles sont une source de richesse pour l'ennemi.”
In 1870 the wine in the cellars of Champagne was valued at 50,000.000 f., yet no one ever thought of it as subject to seizure by the Germans. Would M. Ortolan embrace the wine-casks within his description of household goods, or as he expresses it, “ objets servant à l'usage d'un habitant paisible
où il a son foyer domestique?” Dip. de la Mer., II., 49.