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world owed much to the Declaration of Paris, consistency required the adoption of the Marcy amendment in toto. In 1859, by the treaty of Zurich, France restored the Austrian vessels captured during the war." In 1860 England 3 and France 4 together proclaimed the principle in their war with China. In 1865 France restored vessels captured during the Mexican War. In the Seven Weeks' War of 1866 the immunity of private property at sea was declared by all three powers-Austria, Italy and Prussia; 5 Italy in fact having adopted a permanent rule of immunity, on condition of reciprocity. Innumerable German diets, and chambers of commerce the world over, have resolved in favor of the new principle. In 1870, at the outbreak of the Franco-Prussian war, the King of Prussia announced the exemption of French merchantmen; but on Jan. 12, 1871, Bismarck sanctioned a relapse into the old practice by way of reprisal. In 1871 the United States again embodied the immunity principle in a treaty, this time with Italy; the treaty is still (1897) in force. 8

i British and For. State Papers, Vol. 48, p. 137.
2 Art. 3. (Except such as had already been condemned.)
3 Order in Council, March 7th, 1860.
* Dépêche du ministre des affaires étrangères du 28me Mars, 1860.

6“ Les navires marchands et leur cargaisons ne pourront être capturi's que s'ils portent de la contrebande de guerre ou s'ils essaient de violer un blocus effectif et déclaré."

Codice per la marine mercantile, Art. 211 (1865).

? They are all collected in Aegidi, Einleitung, p. 24 n. The principal cities represented are London, Bremen, Lübeck, Rotterdam, Breslau, Bordeaux, Marseilles, Stuttgart, St. John's (N. B.), Liverpool, New York, Baltimore, Triest, Riga. The Bremen resolution is thus worded

“ * * * Beschliesst die Versammlung:

"(1) Die Unverletzlichkeit der Person und des Eigenthums in Kriegszeiten zur See, unter Ausdehnung auf die Angehörigen kriegführender Staaten, so weit die Zwecke des Kriegs sie nicht nothwendig beschränken, ist eine unabweisliche For.. derung des Rechtsbewusstseins unserer Zeit. * * * "

8 Art. 12. (Feb. 26, 1871.)

In 1877 the Institute of International Law, at Zurich, fully recognized the principle of immunity. And finally, in the code of the Institute for wars on land, recommended in 1880, the theory of individual enmity is distinctly negatived."

In view of all these facts, it is respectfully submitted that Heffter cannot sustain his statement that the hope of abolition of capture at sea is a “pious chimera.” Pious, yes. Chimera, no.

Tart.

CHAPTER III

THE ENGLISH SCHOOL

The continental writers, then, maintain that the theory of war has changed; that individuals who take no part in the war are no longer enemies; and that, consequently, the right of capture of private property at sea is no longer recognized in International Law.

English writers, on the contrary, are for the most part of the opinion that the theory of war has not changed; that individuals are still enemies; and that all the positive immunities which non-combatants enjoy owe their origin simply to humanity, and must be regarded as exceptions to a rule which, where not expressly suspended, still controls.

Perhaps the ablest, because the most serious, attack upon the continental theory is that of Mr. Hall. He maintains that the relation of enmity between individuals must still exist, because otherwise certain practices which are still recognized would be illegal. These practices are chiefly five-(1) the replacing of the civil government of an invaded state by military control, and the “ making of any changes necessary” for the invader's "safety and success;” (2) the bombardment of fortified towns; (3) the right of contribution and requisition; (4) the right of compelling the personal service of members of the enemy state, and (5) the destruction of buildings and fields for military purposes."

The first and fifth of these practices are, however, justified on the simple ground of military necessity. It is not because

" Hall (Ed. 1880), p. 59.

32

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individuals are enemies—that is shown by the fact that no more damage may be done than is reasonably necessary for military operations. They are simply in the way, and so long as they remain in the way they must endure the temporary consequences. Such a relation is very far from a relation of enmity. It is as if I have a quarrel with X, and give notice to the world that I am going to shoot him, and thereupon A, B and C come and stand about X, and are accidentally hurt by the bullets.

The second practice is explained in substantially the same manner. Bombardment is a weapon aimed at individuals only incidentally. If the latter are enemies, why not bombard unfortified towns as well as fortified ones? Then the right of contribution and requisition has already been explained, and besides, there is, as has been seen, a strong tendency at the present time to pay for what is taken; and the supposed fourth practice, of compelling personal service, is, to say the least, of very doubtful legality. Certainly the citizens of either state cannot any longer be forced into the other's army or navy; and if they are occasionally compelled to hew wood and draw water, it does not follow that the compulsion is just and legal.

There are two reasons, concludes Mr. Hall, against the adoption of the continental theory. First, it is a fiction, for "to separate the state from the individuals which compose it, is to reduce it to an intangible abstraction.": A railroad company is an "intangible abstraction," but is that any reason for confusing it with its stockholders? It is the second reason of Mr. Hall, however, which is particularly worthy of note—the continental doctrine is mischievous, he says, because it is the argumentative starting-point of attack upon the right of capture of private property at sea."? And

(Ed. 1880), p. 60.

? (Ed. 1880), p. 61.

this, it is conceived, is the trouble with the whole English school; and it is for this reason that a thoroughly unprejudiced opinion of the French theory of war is rarely obtained from an English publicist. The latter, in starting out to discuss the legitimacy of capture at sea, invariably begins by assuming it.

The late Sir Travers Twiss, therefore, is perhaps not entitled to as much weight on this subject as on most others. Besides, Twiss, like Hautefeuille, maintains the general confiscability of property on land,' and naturally, therefore, is not yet converted from the theory that “all the individual members of the one nation are enemies of the individual members of the other nation." Similarly Phillimore, though calling war a “conflict of societies, that is, of corporate bodies recognizing and governed by law,"3 evidently believes in individual enmity, and declares the person of the “enemy," strictly speaking, liable to seizure and his property to confiscation. The other theory he considers to have a tendency toward the prolongation of the war.5

Phillimore, Twiss and Hall may be said to be fairly representative of the English school; but even in England there are dissenting voices. An early number of the Edinburgh Reviewo contains a striking appeal for the abolition of mari

Law of Nations in Time of War, p. 122.

? Ibid., pp. 80, 82. % Commentaries, III., 79.

* Id., Preface, p. 37. 5 Mr. Phillimore refers, with a frivolity which may be pardoned on account of its intrinsic humor, to the “famous but perhaps legendary precedent of the two Dutch admirals, who, commanding antagonistic fleets, sold powder to each other, and, commercially, contributed to their own destruction.” (Preface, p. 39.) Phillimore differs from Bluntschli, who refuses to excuse a barbaric practice because it shortens the war (Das Mod. Völk., p.45). If it were the theory of nineteenth century statesmen to render wars barbarous in the hope of rendering them infrequent, it would have been false humanity to sign the Declaration of St. Petersburg or the Convention of Geneva.

6 No. 15, p. 14.

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