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enemy on the high seas,-a custom which on land is called pillage, and as such banished from the practices of war among civilized Nations.
This anomaly in the usages of war of a civilized generation is due to the tenacity with which some Nations persist in adhering to the ancient practices sanctioned at one time by the barbaric propensities of former generations. This anomalous practice is the more surprising as it is maintained side by side with a military code characterized by the most conspicuous marks of an advanced civilization. The cause of this partial barbarism is to be looked for in certain influences predominating in State government, which are maintained by traditional national prejudices, and fostered by narrow minded selfishness, and this notwithstanding all the most able and conscientious efforts made, from within and without, with a view to overcome these prejudices. *
All barbaric practices in war are the result of the mischievous assumption that war is a relation between individual members of the belligerent States, and not simply a relation between States only, as we have endeavoured to explain in paragraphs 170 & 175.
*The writers of the last and present centuries, who have most effectually opposed the usage of capturing private property on the high sea are the following:
MABLY. Le Droit Public de l'Europe, fondé sur les traités. Vol. II. p. 310. LINGUET. Annales politiques. Anno 1779. Vol. V. p. 506. Prof. F. MARTENS. De la propriété privée en temps de guerre. Dr. AEGIDI & KLAUHOLD. Frei Schiff unter Feindes Flagge. 1867. ERCOLE VIDARI. Del rispetto della proprieta privata fra gli Stati in Guerra. Pavia. 1867. EUGÈNE CHAUCHY. Du respect de la propriété privée dans les guerres maritimes Paris, 1866. BLUNTSCHLI. Du droit du butin en général et spécialement du droit de prise maritime. Revue de Droit Intern. Vol. IX. (1877) p. 539 and Vol. X (1878). p. 60. E. DE LAVELEYE. Du respect de la propriété privée sur mer en temps de guerre. Revue de Droit Intern. Vol. VII (1875). p. 560. PIERANTONI. Les prises maritimes d'après l'école et la législation Italienne. Revue de Droit Intern. Vol. VII (1875). p. 618. FIORE. Nouv. Droit Intern. Part II. Chapts. VII, VIII. G. MASSÉ. Le Droit commercial dans ses rapports avec le droit des gens. Paris
It is true, that there are instances in which private citizens have taken an active share in a war waged between their respective Governments, and many may sacrifice their fortune on the altar of the common country and give freely their life-blood in its defence, thus contributing, at their own private risk, to the success of their country's cause, but can these single cases of heroism and devotion be used as arguments to upset all principles of Justice and Benevolence, or as motives to arrive at the conclusion that the war must be waged against every individual member of the enemy State? If this were so, there could be no legal reason against admitting the belligerent right to murder every single member of the enemy State, to plunder indiscriminately and to declare all that we can lay hand on, belonging to our enemy, to be legal prize, and this in order to reduce the whole enemy population; thus securing peace through the extermination or at least utter prostration of the enemy. A doctrine from which such conclusions could be derived is really intolerable. Its principal argument, that war will be the sooner terminated if the enemy is mercilessly attacked in his home industry, in his foreign trade and in every private interest of the individual members of the enemy, has no reasonable ground. All the wars which during this century have devastated Europe serve more or less to prove that general hatred and animosity on the part of the mass of a people
1874. Vol. II. Livre II. ERNEST NYS. La Guerre Maritime. Etude de Droit International. Brussels, 1881. In Chapter VIII of this valuable essay we find a very clear and instructive review of the different efforts made, during the last and the present centuries, to establish the rules of maritime warfare, with regard to the private property of the individuals of an enemy State, in conformity with the usages of war as waged on land. "La contradiction est flagrante," says the learned Judge of the Brussel Tribunal, "et il n'est pas besoin de démontrer que l'état actuel des chôses réclame impérieusement une réforme." (1. c. p. 134.)
is invariably the natural result of hardship unjustly inflicted on the private individuals and that a general desire to make peace is not brought about by cruel reprisals. Truly, Goethe was inspired by his good genius when he conceived it as characteristic of Mephistopheles to rejoice in the doctrine that commerce was ever a fruitful source of war and piracy. When tempting Faust by exhibiting before him the glorius array of plunder which his piratical crafts had collected through war waged against peaceable commerce, Mephistopheles used, with a cleverness worthy of an evil spirit, the ingenious expedient of placing the victim on the same level of morality occupied by its spoilers. "Krieg, Handel und Piraterie, dreieinig sind sie, nicht zu trennen," is the doctrine of a Mephistopheles. How often do we not find this Mephistopheles policy practised, under different forms, when plunder of the defenceless is advocated.
But whence comes this desire, as unjustifiable as it is inefficient, to plunder peaceable commerce? For both parties are unavoidable sufferers in the long run, for there exists in reality no such thing as an exclusively enemy commerce amongst civilized Nations. † Are the merchants of the belligerent States the most clamorous for war? Are they the instigators to upset the state of peace which is the element of their existence? No, certainly not. With the exception of individual speculators fond of hazards, the body of the commercial population is naturally adverse to war. But the politicians, backed by those who prefer to fish in troubled water, the aggressive military
* RAYNEVAL. Liv. III. Chapt. V. § 1. PORTALIS, Le père Discours au conseil des prises du 14 flor. an. VIII. MASSÉ. Le Droit Comm. etc. Vol. I. p. 221. Lord Palmerston's speech at Liverpool on the 7th November, 1856.
† MASSÉ. I. p. 221.
party, and those who are fattened by the plunder of commerce, through privateering, prize-money or lawyer-fees, they are the instigators of war, for they alone have nothing to lose but all to gain, whether in glory or in the shape of other more substantial acquisitions, reaped by plunder, through the prize court or from the public treasury.
Is it then to be wondered at, that at the present stage of development reached by the European International Spirit of Law, which has worked already such marked progress in the manner of waging war, that we still find the capturing of private property on the high seas an acknowledged usage of war? The cause of the persistency of this usage of war is to be looked for, not so much in the exigencies of war (Kriegsraison) as in the tenacity of national prejudice fostered by individual selfishness.
Dr. Woolsey says, "there has long been a difference between the treatment of enemy property, -including in this term the property of individual subjects of the hostile State,-on land and on the sea, or more generally between such as falls within the power of invading armies, and such on the sea and along the coast as falls within the power of armed vessels. The former is to a certain extent protected. The latter, owing to the jealous feelings of commercial rivalship, hardened into a system by Admiralty Courts, has been extensively regarded as lawful prey.'
Make commerce as free in times of war as is possibly consistent with the actual means of defence and with an effective carrying on of the war, abolish completely the ignominious systems of booty and prizes, as not worthy a place in the procedure of modern civilization, lop the excrescences of aggression from the noble stem of Na
* WOOLSEY, Edit. 1879, p. 207.
tional Defence, you will then have cut off the main stays of the instigators of war, and the object of war, which is peace, will be more speedily accomplished.
Attack the arch-instigators of war, and not the noble apostles of peace, who, as your own conscience ever tells you, are leaders on the right road to true civilization, such as the Moral Law of Nature indicates, though they be perhaps too far in advance of the present generation, to serve as practical guides.
When narrow-minded jealousy aroused by the enemy's progress in commerce,-which has been the only cause of so many maritime wars of the last century, and is not less threatening in our days, has no chance of enforcing its malevolence, when the military creed is purified from notions of aggression, when prize-money is no more to be easily pocketed as the reward for the hunting down of defenceless merchant vessels on the high seas, and lawyers desert the prize courts, you will be nearer to peace than ever Nations were in the golden age of plunder, general reprisals and privateers, enhanced by prize court lustration.
§ 199. In conformity with the principles noted Instances of in the preceding paragraphs, we find in modern cation of the history several instances of practical application of the doctrine, that the private property of individual members of the enemy State should be regarded as inviolable, on the high seas as on land.
In the treaty between the then newly formed republic of the United States of North-America and Frederic the II of Prussia, signed at The Hague on 10th September, 1785, * (called, after its negotiator, the treaty of Franklin), the principle of inviolability of peaceable commerce was
* Recueil, Martens. II, 566,