INTRODUCTION

WHEN the progressive people of a state wish to bring about a reform in their municipal law, their course, however full of obstacles in practice, is theoretically simple. The sovereign, as represented in the supreme legislature of the land, is appealed to, persuaded of the reality of the grievance, and induced to enact a "law" for its abolition. The grievance disappears instantly; and the historian of that people, tracing the fate of that grievance, can lay his hand upon the hour and the minute when it was eradicated from the law.

A reform in the Law of Nations is a very different proceeding. There is no supreme legislature, because there is no sovereign. There is not even a collective sovereignty, so that the majority may bind the minority; for there is no organization in the concert of the nations. The reformer, therefore, since he can find no one in authority, must seek the consent of all in turn; and instead of being able to point out the exact instant when the reform is effected, he is able to say only this: that the greater the number and weight of the states which have adopted it at a given time, the more fully has it become a part of International Law.

International Law resembles other law in this, that its tendencies are of greater importance than its decisions. It is not what has been decided, but what is likely to be decided next time, that the average litigant is interested to know. And therefore, in estimating the progress of our international reform, we are not confined to the mere enumeration of the states pro and con. Just as the private lawyer can shrewdly

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guess which of his book rules are on the verge of being regarded by the courts as "no longer applicable to existing conditions," and obsolete, so the publicist, weighing two theories between which the nations of the earth are divided, is able to decide which is the theory of the future and which is the theory of the past. And if he is writing about the law of the present, he will be influenced more by the former than by the latter.

The right of capture of private property on the high seas in time of war was once universally recognized. At some time in the future, it will not be recognized at all. In order to appreciate the present state of the question as to the existence of this right, it may perhaps be worth while to glance briefly at the two great theories with regard to the nature of war itself, as they developed and as they exist to-day. And first:

CHAPTER I

THE THEORY OF INDIVIDUAL ENMITY

IN the earliest times there was but one theory with regard to the nature of war; the theory that every subject of one belligerent state was the enemy of every subject of the other. There were two reasons, in early times, for assenting to this theory: one itself theoretical, the other practical.

The theoretical reason was this: the conception of the state as distinct from the king or other legal sovereign had not yet developed. The legal sovereign was also the sovereign of political science. War was waged, not by states, but by kings. As it is impossible to conceive a state of war without enemies on either side, and as the idea of the state as a body politic independent of the absolute monarch in whom was concentrated the power of managing its affairs had not yet arisen, it became necessary to regard the absolute monarchs themselves as the primary enemies in every armed conflict; something which was the more easy because in a great many cases the absolute monarchs did, in point of fact, hate each other-i. e., stood to each other in a relation of actual personal enmity. Given, however, the theory of enmity between the monarchs, it likewise became necessary, on feudal principles, to consider their subjects enemies; for the great crown vassals in each land held their immense territorial grants of the king on the condition, among others, that they should follow him to war-i. e., make his enemies their own; and their tenants held from them on the same principle, and so on. And thus, when war broke out, every one found himself an enemy of every one upon the other side.

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The second and practical reason was that, as wars were in point of fact carried on, the private individuals on each side were always treated as enemies. Military commanders took it for granted that war gave them absolute rights over the persons of all subjects of the foreign prince, and a fortiori over all their property, movable and immovable, wherever found; for, as Cicero logically remarks, "It is not improper to despoil the man whom we have the right to kill."

Both of these principles-the absolute right over (1) hostile persons and (2) hostile property-were firmly established in the time of Grotius. Indeed, it would have been folly to have put forward any other theory at that time, with the Thirty Years' War raging and the sack of Magdeburg going on before the almost indifferent eyes of Europe. According to Grotius, a declaration of war against a prince is a declaration against his subjects, who may lawfully (impune) be killed wherever found, and whose property is all subject to absolute confiscation.3 Not only were these principles considered political axioms in Grotius' time, but they were constantly reiterated by writers in the first half of the succeeding century. Wolf states the theory of individual enmity as something unquestionable, and allows the seizure of private property as a consequence, partly to indemnify the captor (tum ad consequendum debitum), partly to weaken the resistance of the owner (tum ad imminuendum vires agendi).5 Bynkershoek (1751) lays down the doctrine in its extreme form. It is lawful, says he, to put down the enemy by force.

1"Non est contra naturam spoliare eum, quem honestum est necare." Quoted by Grotius, De Jure Belli ac Pacis, III., v., I.