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In an article entitled “ The Proposed Codification and Reform of the International Law," which appeared in the January number of the Law Review for the present year, the following changes in the portions of that law which have reserence to the conduct of actual hostilities were enumerated; and it was stated that their adoption by the family of civilized states, as most important reforms, was urged by a large and influential school of publicists, of statesmen, and of philanthropists: (1) The abolition of the capture of private property at sea ; (2) The prohibition of trade in contraband between citizens of neutral states and the belligerents; (3) The acceptance of the “three rules” contained in the Treaty of Washington ; (4) The propositions of the Russian Code laid before the conference at Brussels; and, finally, (5) The introduction of arbitration in the place of war as an ordinary and necessary mode of terminating controversies between nations. Most of these suggested modifications are regarded by their advocates as the connected parts of one general scheme, as the natural consequences resulting from the introduction of a single universal principle, so that their enactment as a whole is recommended by the same considerations of justice and of policy. M. Charles Calvo, in a recent monograph upon the Three Rules of the Treaty of Washington, has expressed this opinion in very
1 Examen des Trois Règles de Droit International proposées dans le Traité de Washington. Memoire présenté à l'Institute de Droit International (session de Genève, 1874), par M. Charles Calvo.
explicit language, which we quote. In his discussion of these three rules, after pronouncing very decidedly in favor of their universal adoption, he declares them to be insufficient to accomplish the purposes designed, unless accompanied by most of the other reforms which have already been mentioned. “It is necessary,” he says, 6 to ascend to the source of the evil, and to cut off its development at its very origin. ... We believe, then, that the most efficacious means of remedying the evil will be the universal abandonment by the nations of privateering, and the interdiction of commerce in contraband of war, and the completion of these reforms by the adoption of a principle which is, in our opinion, at the same time their foundation and their guaranty, and which the United States proposed as the condition of their acquiescence in the Declaration made at Paris, April 16, 1856,
we mean the principle of the inviolability of private property in time of war.” Notwithstanding this emphatic expression of opinion by this distinguished publicist, it is very plain, upon the slightest examination, that all of these measures of reform which he regards as so important do not flow as consequences from the one principle that he pronounces fundamental, — the inviolability of private property on the sea. Beyond a doubt, if the right to capture the ships and cargoes of belligerent citizens is abandoned, privateering must necessarily fall with it, even without any express municipal legislation or inter-state conventions to produce that effect; and it is equally true that all the functions of a national navy, as a part of the armed force under the control of the government, would be reduced to the single one of coast defence. The adoption of the principle that private property on the sea is inviolable is therefore the inevitable surrender of every warlike advantage possessed by maritime states. Nothing could by any possibility be gained from purely naval combats ; the preeminence of one navy over another could confer no appreciable superiority in the conduct of war; the only offensive use to which armed vessels could be put would be the attack of seaports and coasts, and their defensive use would be limited to the repelling of such attacks ; and as the means of defence would always be vastly superior to the means of attack, the practical result would certainly be the loss of all military power which has hitherto been incident to the possession of maritime resources, and the declension of the great maritime nations into a condition
of absolute inferiority, unless their governments and peoples should be willing to act upon the continental theory of maintaining vast standing armies. The abolition of the right to capture private property on the sea, and the consequent disuse of privateering, plainly tend to the unrestricted pursuit of commerce ; they are the natural outcome of the principle of absolute commercial freedom, which lies at the foundation of the modern theory of international law. A school of publicists, embracing among its members writers of most eminent ability, - of whom Hautefeuille may be regarded as the leader, - have taken this grand principle of absolute commercial freedom as the very corner-stone of their system, and from it have deduced most of the rules which regulate the intercourse of states during time of peace, and the entire body of those rules which define the rights and duties of neutrals during time of war. It must be conceded that the results which they have reached are in accordance with the dictates of abstract justice, and are perfect in their logical completeness and symmetry. Since this principle of commercial freedom has been wrought out into a system which acknowledges and protects the rights of neutral nations and of their citizens in the pursuit of their lawful trading enterprises, against the demands of belligerent states, it was natural that the same principle should be extended by certain theorists and made to apply to the commerce of the belligerents themselves. We do not now speak of the propriety of this extension. There may be, and we think there are, other considerations which must intervene and prevent its proper application to the case of belligerent commerce ; we simply affirm that this use of the general principle is natural, and is nothing more, when viewed by itself unconnected with any other considerations and motives of policy, than an endeavor to render it absolutely universal, and in this manner to remove all commerce, whether neutral or belligerent, from the restrictive and destructive effects of actual warfare. The tendency has been to push the theory to even greater lengths, and to remove all obstacles from commercial exchanges. Thus, Mr. Secretary Marcy, in his despatch to the French government, declining to join in the declaration made at Paris unless further
1 It may be remarked in passing that Hautefeuille utterly repudiates this extension of the principle, and opposes the doctrine that private belligerent property should be exempt from capture.
modifications were made in the laws of war, proposed not only that private property of an enemy should be free from capture on the sea, but that all restriction upon commerce in contraband should be removed, the right of visit and search should be surrendered, and all interference with the freedom of trade should be limited to the maintenance of effective blockades. At the same time, assemblies of merchants in Bremen and Hamburg, while adopting these suggestions, insisted that blockades should be restricted to fortified places, and should prevent only the introduction of contraband articles. There is an evident consistency in all these conclusions; and unless other reasons of policy exist to prevent their acceptance, their introduction into the international law is eminently desirable. Being logical deductions from one grand principle, they would render the law symmetrical and harmonious; and by recognizing the complete freedom of commerce at all times and in all places, they would tend to confine the immediate destructive effects of war within narrow bounds. Through its earlier periods of development the international law was chiefly concerned with the external marks of honor due to sovereign princes and their representatives, the claims of dynasties, and the rights of the belligerents in time of war. In its latest period of development that law has been principally concerned with the assertion and the establishment of neutral rights, by extending and protecting their facilities for carrying on commercial intercourse uninterrupted by the existence and conduct of hostilities between belligerents. It has been shown that the proposal to free the property of enemy citizens from capture on the sea is but an extension of the same notion, an application of the same principle to a different subject matter. The proposed modification is therefore supported by strong and, to many publicists, convincing arguments in its favor ; and its adoption would result in a certain rounded completeness in the system as a whole, which is very attractive to minds that delight in logical processes and conclusions.
The other proposed changes in the law of maritime warfare which have already been mentioned, — the prohibition of trade in contraband between citizens of neutral states and the belligerents, and the acceptance of the "three rules” contained in the Treaty of Washington, -- are movements in exactly the opposite direction; and it is simply astounding that M. Calvo and other jurists of the
modern school should venture to assert that they are embraced within the same principle as the inviolability of private property. While every improvement in the international law during the past generation has been towards the promotion of increased freedom of neutral commerce, and while writers and statesmen of eminent ability have urged that this freedom should be made complete, it is now proposed, through the means of a general convention or code, to introduce rules which shall place hitherto unknown limitations upon this freedom, and which shall subject both neutral states and neutral citizens to new and heavy burdens. The “ three rules” of the Treaty of Washington impose upon neutral nations responsibilities and obligations which may tax to the utmost their governmental resources and powers to fulfil; while the interdiction of all trade in contraband, which is now permitted subject only to the risk of capture, will not only destroy a vast commerce by private citizens, but will create duties resting upon their governments from which they have hitherto been entirely free. We do not now affirm nor deny the propriety of these proposed innovations, but merely point out their essential nature and their direct tendency. The scheme of reform taken as a whole contains, therefore, two entirely distinct and, in principle, antagonistic kinds or groups of measures affecting the conduct of maritime war. One is in the interest of free commerce, and extends the immunities which had been obtained for neutral citizens to the citizens of each belligerent; the other attacks these very neutral immunities themselves, restrains their commercial activities within limits narrower than had ever before been suggested, and imposes obligations and inflicts penalties upon neutral states which may sometimes render their position more onerous even than that of the belligerents. It is strange that publicists and jurists who have been leaders in the school which upholds the rights of neutrality should now be found earnestly advocating both of these groups of measures, so diametrically opposed in their essential nature ; it is amazing that any such writers should insist that both are the results of one common principle.
Of the five several reforins stated at the outset of this article, that in relation to arbitration stands upon a separate footing from all the others. It has no connection with either of them individually, nor with all of them considered as parts of one scheme,