Page images

is dedicated. “Your happy idea,” he says, " of giving the American army a brief code which should temper the wild passions of warfare with the admonitions of law, first suggested to me this attempt to state the principles of the Law of Nations in the form of a code, and your letters have encouraged my efforts to accomplish my task.” This generous acknowledgment accords to Dr. Lieber the high distinction which belongs to the pioneer in this new and difficult enterprise, while it maintains for America, which has adopted him, her wonted place in the front of the reform of public law.

The topics of the introduction which Dr. Bluntschli affixes to his code illustrate the great advance which has been made in public law. Slavery, which was the foundation of ancient social order, and which rested securely upon the most undoubted maxims of the law, is declared to be a violation of the Common Right of mankind. Religious freedom is placed under the protection of the community of nations. The duty to open her doors to foreigners, and to afford them complete protection during their sojourn, is imposed upon every civilized power. The liberty of commerce is insured by the hard-won doctrine of the freedom of the seas; and the inviolability of private property in war, afloat as well as on shore, is urgently insisted upon. These modern doctrines have only been secured by the severest struggles, and it marks an era in international law when they can be safely claimed as characteristic features of the new code of nations. Bluntschli, indeed, pushes his zeal for maritime liberty a little far when he claims for navigable rivers the same rule which applies to the oceans and seas. It is doubtless true that the policy of opening great streams to the navigation of all mankind is usually, in a politico-economical view, wise and useful. But it seems impossible to deny the full sovereignty of every State over the waters which are wholly within its territory, from their source to the sea; and, if this be conceded, the right to control their use follows as a matter of course. Because the Rhine and the Danube, which flow through various countries, have been placed under the protection of the public law of Europe, it does not follow that we have no exclusive rights! in the Mississippi or the Hudson. “Why," he asks,“ should foreign ships, which have the right to use freely the waters of a river so long as it runs through several territories, lose that right when those territories are consolidated into one sovereignty?” The change in circumstances affords the obvious answer. An international right of way by necessity, perishes with the exigency which created it. And, conceding that a river which has once become free can never be closed, a doctrine which has for itself neither reason nor precedent, — is it not pushing an extreme rule a great way to apply it to rivers which have never been open at all ?


It is not so easy to criticise his argument against the present doctrine of maritime capture. In contemplation of the law of nations, war is a legal proceeding to remedy a wrong. The parties are the belligerent States in their corporate capacity. The inhabitants of the countries at war are also parties to the controversy, in their political capacity as citizens or members of the State ; but as private persons, engaged in agriculture, commerce, or the arts, and acquiring and holding property, they are not deemed enemies. It is true that this is not the language of the Common Law, but it is easy to show that it is the theory of the accepted usages of modern warfare. It is lawful to destroy or capture the person or property of an enemy, because injuring the enemy is the mode of proceeding to obtain the desired remedy; but it is now universally held that the person and property of non-combatants are under the protection of the Law of Nations. Title by capture rests upon the fact that the person from whom the property was taken was a party to the war, against whom, as such, the remedy is sought; and if it be taken from any person not thus involved in the controversy, it is a mere international trespass, for which reparation is due. An instance of the recognition of this theory is afforded by the Treaty of Ghent, in which England agreed to pay damages for private property destroyed or carried away during the war of 1812. The same distinction was recognized by the Cour de Cassation of Paris, where it held that “the right of conquest affects only the property of princes which they hold by virtue of their rank, and does not impair their rights in that which they hold as private persons.” To this rule, now generally accepted by modern writers, there are but two recognized exceptions, - a species of right in rem against contraband of war, which rests securely on an obvious and reasonable necessity inherent in warfare, and the practice of maritime capture.

That this practice should still subsist, in defiance of reason and logic, is easily understood. It enables the great maritime powers to wage a profitable and harassing, though inglorious, warfare against States of inferior power on the seas. So long as there was a marked inequality in the navies of the great States, the stronger powers were naturally reluctant to relinquish the great advantage they then enjoyed ; but the remarkable progress of science in the manufacture of artillery, and the invention of ironclad ships, are fast bringing all nations to a level, and thus removing the motive which has so long sustained this anomaly in the law. It is almost impossible to state an argument in its defence. The property of a merchant stored at the dock and ready for shipment is indisputably free from capture ; but the same property removed a few feet from the warehouse to the ship is as certainly deemed to be lawful prize of war.

Mr. Dana very ingeniously suggests that this distinction may be explained by the fact, that cargoes are merchandise embarked for profit, the capture of which coerces the enemy, and which add to his revenues by duties and taxes, so that the belligerent government has a prima facie interest in them which makes them justly liable to become prize of war. But the same argument applies a fortiori to private property on land. It would equally coerce the enemy to destroy. large warehouses of goods and merchandise; and the prima facie interest of government in property as a source of revenue and a subject of taxation is clearly greater when it is no longer exposed to the perils of the sea, and is thus more certainly within its reach as a resource in case of need. The doctrine of maritime capture seems then to be utterly indefensible upon any modern theory of public law. It levies an international execution upon the property of those who are not parties to the proceeding; it is in glaring violation of the principles which regulate the contests of States upon land; it is repugnant to the spirit of humanity and justice which has subdued the ancient violence of war; and, with Bluntschli, we cannot doubt that it must soon be repudiated by the consent of all civilized powers.

We have already remarked that Dr. Bluntschli's book is an attempt to create a code of international law. Each proposition is stated in the form of positive law, and in clear and concise terms. It is divided into brief paragraphs, each of which lays down a rule, and is followed by a note explaining, illustrating, and sometimes protesting against its doctrine ; for he refrains with singular candor and caution, from attempting to abolish well-settled usages which he deems at war with the spirit of the age. To thus state so complicated and fragmentary a body of law is a task of the highest difficulty, and it has been performed with admirable fidelity and accuracy. His legal style is very felicitous, and clothes his topic with the same charm with which Wheaton and Dana have invested it in our own tongue. The single defect which we have observed is his failure to cite authorities more freely ; but this is a fault common to all German jurists, and belongs rather to his school than to himself. It was doubtless his purpose to state rather than to debate the law; but the brief specimens of his method of discussion, which his preface and his notes have given us, create a keen appetite for more. We cannot pass from the estimate of the manner in which his book is written without a word of praise for its impartial and judicial temper. The most subtle temptation which besets a law writer is the opportunity which his book affords him to bring out his pet hobbies with effect. Dr. Bluntschli has resisted this most captivating of weaknesses with Roman firmness. We have arisen from the perusal of his book wholly unable to discover any exhibition of bias or national prejudice. Apparently without party feeling upon the open points of European diplomacy, he writes with an American impartiality. His code is fully abreast with the progress of the age ; but no sympathy with movements or tendencies not yet part of the practice of States has led him beyond the generally recognized law. Insisting with force and strong logic upon subordination of dynastic to national interests, the right of populations to be consulted in regard to changes of sovereignty, and the American doctrine of emigration, he deals with questions still fairly open with candor and sobriety of judgment. We rise from his book convinced that he is an enlightened, safe, and prudent lawgiver.


The space allowed for this article forbids any attempt to do justice to the many striking passages in which this book abounds. We take a single chapter only, to illustrate the strength and caution with which it deals with difficult questions. There are few topics of international law more vexed or more dangerous than that of the duties of neutrals, and there are certainly none more important to the welfare of mankind. After defining neutrality, and stating the familiar modifications to which it has been subjected, Bluntschli proceeds to point out that it is not a question of sympathy or of party feeling, but merely of a de facto abstinence from all aid to either belligerent in waging the war. It is immaterial how warmly a nation may desire the success of one party, or how firmly it may intend to remain aloof from hostilities, for it is a pure question of fact whether neutrality has been preserved or not. Neutrals are forbidden to raise troops, to allow territory to be used for purposes of war, or to furnish subsidies to carry it on. If private citizens choose to take part in the hostilities, the neutrality of their government is not impaired. The private and ordinary traffic in arms and munitions of war is not an infringement of neutral duty ; but when this commerce rises to a magnitude which denotes a purpose to give succor to one or the other party, it is immaterial whether the motive be profit or sympathy, or, as is apt to be the case, both, for the fact of a breach of neutrality exists. The same rule would govern a loan openly sought for war purposes; but it would be difficult to close the great money markets to States seeking to borrow in the ordinary manner, merely because they happened to be at war. It is the duty of the State, not only to refrain in its corporate capacity from all violations of neutral duty, but to enforce the same prohibition upon its citizens by its laws, and it is liable to the injured party for its failure to do so. The so-called Foreign Enlistment Acts thus become topics of the Law of Nations, and are to be judged in the light of that system, and if they are inefficient or inoperative it is the duty of the State to reform them. The failure to restrain its citizens from breaches of neutrality by efficient legislation is not a question of internal policy or of constitutional obligation, but an international wrong, for the consequences of which every nation must answer. If therefore the territory of a neutral State is used by a belligerent power as a base of military or naval operations, a storehouse of arms, or a recruiting station, it is no defence to the complaint of the other party that the existing laws, are powerless and that the Constitution forbids measures of repression without such changes in them as it is impossible to obtain. A State, as a member of the community of nations, must have proper laws to enable it to perform its duties to other States, and if it has them not, indemnity may be demanded, the refusal of which is just cause of war. This is of course a very brief and imperfect sketch of Bluntchli's statement of this important topic, but it will serve to illustrate the great advance which the Law of Nations has made in his work. It is very difficult to believe, as we read his clear

« PreviousContinue »