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they are citizens of the United States both in the international sense and the broad constitutional sense. They are not "citizens of the United States" only as to that term is given a narrow and peculiar constitutional meaning.

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In conclusion of this paper it may be pointed out that, given an international world of states, each claiming absolute and exclusive legal authority over all persons and property situated within their respective territorial limits, and at the same time asserting the right to protect, in certain respects, its citizen-subjects when abroad, conflicts of jurisdiction are unavoidable conflicts which necessarily have to be settled by international agreements expressed either in the form of general custom or specific treaties. These conflicts have, however, been made unnecessarily frequent by the unfortunate fact that the nations of to-day have not been able to unite upon one general rule for determining citizenship. Nor are they in agreement with reference to the subjects of expatriation and naturalization. Furthermore, there is not a little indefiniteness with reference to the circumstances under which one state will interfere to protect its citizens residents abroad, as well as to the extent to which they are released from the control of local law, as, for example, compulsory service in the army.

A general international agreement upon these points would tend greatly to minimize the number of troublesome, even if not often irritating, controversies between friendly powers.

Johns Hopkins University.




This subject is a timely one from the fact that we are on the eve of the meeting of the second international conference at The Hague, the first conference in 1899 having voted that

The conference expresses the wish that the proposal which contemplates the declaration of the inviolability of private property in naval warfare may be referred to a subsequent conference for consideration.

The present programme for this coming conference includes this question of the immunity of private property as one agreed upon for discussion.

Before entering into a discussion of the subject, it may be well to make a résumé of the historical status of the question up to the present time so far as the United States, Great Britain, and other civilized countries are concerned.

First, as to the United States:

The first mention of the question in a definite shape was made. by Benjamin Franklin in an article to Richard Oswald in 1783, of which he said: "I rather wish than expect that it will be adopted." As a matter of fact it was not adopted.

The pertinent part of this article - which begins with the words, "If war should hereafter arise between Great Britain and the United States, which God forbid "was, however, incorporated by Franklin in a treaty made later with Prussia.

This treaty between the United States and Prussia, of 1785, in Article XXIII did definitely provide, however, that

All merchant and trading vessels employed in exchanging the products of different places and thereby rendering the necessaries, conveniences and comforts of human life more easy to be obtained and more general,

1 This address was delivered by Admiral Stockton at the first annual meeting of the Society, held at Washington in April last.

shall be allowed to pass free and unmolested; and neither of the contracting powers shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such commerce. (Treaties and Conventions, 1776-1887, pp. 905-906.)

This provision did not, however, reappear in the treaty of 1799, which took the place of the treaty of 1785.

In 1808, Mr. Charles J. Ingersoll, a representative in Congress from Pennsylvania, advocated the exemption of private property at sea from capture, and renewed his advocacy of this exemption during the war of 1812.

In 1823, President Monroe, in his annual message, stated that instructions had been given to ministers of the United States accredited to the leading maritime powers to make proposals to these governments which would look to "the abolition of private war on the sea." The same attitude was taken in the annual message of December 7, 1824. No results followed these proposals, England and France declining to entertain the question and Russia making her acceptance conditional upon that of the other maritime powers.

In 1856, President Pierce, in his message of December the 2d, stated that the Government of the United States was desirous to secure "the immunity of private property on the ocean from hostile capture. To attain this object it was proposed to add to the Declaration of Paris of 1856, as an amendment to the rule that "privateering is and remains abolished," the words

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that the private property of subjects and citizens of a belligerant on the high seas shall be exempt from seizure by public armed vessels of the other belligerent, except it be contraband.

Italy, Prussia, and Russia were at that time ready to accede to the wishes of the United States. Some of the leading men of France were also favorably inclined, but Great Britain, true to her traditional policy, was, however, unwilling to consent to the proposed amendment, and the proposition fell through.

In 1871, a treaty was entered into between the United States and Italy, dated February 26, 1871, which provided in Article XII,

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The High Contracting Parties agree that in the unfortunate event of a war between them the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas or elsewhere by the armed vessels or by the military forces of either party, it being understood that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either party. (Compilation of Treaties in Force, 1778-1904, p. 453.)

In the instructions to the delegates from the United States to the first Hague conference, dated April, 1899, they were directed to bring the subject of the immunity of private property at sea from capture in war time before the conference, with the result, given at the beginning of this paper, of the reference of the subject to a future conference, a few of the powers abstaining from a vote upon the question. In the annual message of President McKinley in 1898, and of President Roosevelt in 1903, an advocacy of this exemption from capture was again presented, and subsequently action was taken by the Senate and House of Representatives as follows:

That it is the sense of the Congress of the United States that it is desirable in the interest of uniformity of action by the maritime states of the world in time of war that the President endeavor to bring about an understanding among the principal maritime powers with a view of incorporating into the permanent law of civilized nations the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction by belligerents.

The resolution of Congress just read was incorporated by Secretary Hay in his despatch of October 31, 1904, sent to the representatives of the United States accredited to the governments signatories to the acts of The Hague Conference of 1899 with reference to the summoning of a new and second peace conference at The Hague.

The policy advocated by the Government of the United States in regard to the proposed immunity of private property at sea may be said to be continuous and uniform, but it must not be understood that the voices of its publicists and statesmen have always been in accord with that of the Government. As a representative both of dissent and of both of the classes of writers just referred to, I will quote from the writings of Mr. Richard Henry Dana. Discussing the distinction between enemy property at sea and on land, he says:

Where private property is taken it is of such a character or so situated as to make its capture a justifiable means of coercing the power with which we are at war. If the hostile power has an interest in the property which is available to him for the purposes of war, that fact makes it prima facie a subject of capture. The enemy has such an interest in all convertible and mercantile property within his control, or belonging to persons who are living under his control, whether it be on land or at sea, for it is a subject of taxation, contribution, and confiscation. The humanity and policy of modern times have abstained from the taking of private property not liable to direct use in war when on land. Some of the reasons for this are the infinite varieties of the character of such property from things almost sacred to those purely merchantable; the difficulty of discriminating among these varieties; the need of much of it to support the life of non-combatant persons and animals; the unlimited range of places and objects which would be opened to the military, and the moral dangers attending searches and captures in households and among non-combatants. But on the high seas these reasons do not apply. Strictly personal effects are not taken. Cargoes are usually purely merchandise. Merchandise sent to sea is sent voluntarily, embarked by merchants on an enterprise of profit, taking the risks of war; its value is usually capable of compensation in money, and may be protected by insurance; it is in the custody of men trained and paid for the purpose; and the sea upon which it is sent is res omnium, the common field of war as well as of commerce. The purpose of maritime commerce is the enriching of the owner by the transit over this common field and it is the usual object of revenue to the power under whose government the owner resides.

The law of prizes of merchant vessels has been uniformly followed by us in war time, by the Navy Department in capture and the courts in condemnation.2

Let us pass, now, to the historical policy of Great Britain upon this matter. The Government of Great Britain and, until recent times, its publicists have been as uniformly in favor of the continuance of the policy of the capture of private property at sea as the Government of the United States has been opposed to its continuance. Without favorable action on the part of Great Britain

2 Prize money for such captures was, however, abolished by act of Congress in 1899, shortly after the Spanish-American war.

As to the severity of land warfare towards private property, extreme cases have taken place in our history, such as the freeing of private slave property as a war measure in the Civil War and also the devastation of the Shenandoah Valley by Sheridan, while on the part of the South there was the confiscation of private debts owed to Northern creditors during the same war.

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