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only the latter was laid down in Art. 7, sec. 2, of the
said compact. With regard to neutrals, it should be
noticed that the control of the hostile Power includes
the stipulation that they shall accept no service
on board merchant ships. For particular States
which exercise^ no supervision over shipping com-
panies, the carrying out of this decision presents
difficulties.

If the above proposal of Fusinato and Satow
had passed, we should have had the same state
of the law with regard to prisoners on board an
enemy's merchant ships as to prisoners of war
on land. They could be released only if the
laws of their native country did not stand in the
way. According to the new decision, however,
a belligerent, as soon as the information reaches



124 CAPTURE IN WAR.

him, is forbidden to employ even such individuals
who, having violated the prohibition either through
ignorance or obstinacy, are released in contraven-
tion of the laws of their own land. This is contrary
to reason. The rules of land warfare as to the
release of prisoners are legally stricter, and do not
admit this possibility, because the releasing Power
will definitely know whether the Power opposed to
it allows release on parole. The decision of 1907
should therefore have been extended to the enemy's
subjects on board merchant ships.

If the enemy may not " wittingly " employ those
released, he must, of c6urse, know the names of the
persons concerned. Hence in Art. 7, sec. i, of the
said Compact the obligation was laid on the
capturing State to inform the hostile Power of the
identity of those released. Here the possibility
arises that owing to some circumstance or other the
hostile Power may not learn who are released,
because the information in question goes astray, or
the captor State forgets to transmit it. Is the
hostile State at once to believe those concerned if
they declare they have pledged themselves to
perform no more military duties ? It is to be pre-
sumed that the State must in such a case first seek
information from the enemy. An exception is
permitted in the case of the officers, in whose
declaration implicit confidence may be placed.

Ph. Zorn considers ^ it doubtful whether States
may be parties to such a conditional release, and
' Ibid., pp. 201 et seq.



REASONS FOR RETENTION OF LAW. 125

to the prohibition of the emplo}'ment of such crews,
because they cannot forego the vakiable support of
those in question. The answer to this is that men
of the mercantile marine are unfit for service in
the fighting navy. If, then, the Powers were, with-
out exacting any assurance, to forego the hitherto
acknowledged right of making the men prisoners,
they would indirectly augment the fighting strength
of their opponents, and they cannot therefore be
asked to grant unconditional release. Still, we
may be glad to have attained so much progress,
and to remember that the conditional release of the
men is at least better than keeping them prisoners.
The former, at any rate, is more in accordance
with humanity. Besides, the officers and men, in
so far as they do not belong to a neutral state, will
be convoyed to the merchant ships of the hostile
Powers.

From another point of view — particularly in
comparison with the usual principles of war — one
must, however, plead that the men should be
released unconditionally, because war is carried on
only with the organised troops of the enemy, and
merchant crews form no part of these. Let us just
think what the strict carrying out of the idea
would mean ! Every able-bodied, peaceful
foreigner ^ might, with equal justice, be forced
during a war never to fight against the country

' In this connection let me mention a proposal of Japan,
not adopted in 1907, by which all peaceful inhabitants of the
hostile State might have been interned in case of military
necessity. Cf, Prot. III., p. 114 et seq.



126 CAPTURE IN WAR.

in which he lives. Fromageot ^ also protests,
" It has been criticised, by drawing attention
to the severity of treating as prisoners of
war, private citizens who take no part in hostilities
and most of whom are poor, whose hard calling is
their only livelihood, and who deserve as much
consideration as foreign private citizens under
arms and standing on the enemy's ground."^
Nevertheless, it seems judicious first to content
oneself with the immediate successes, and to try
one's hand later on at the principle of unconditional
release.

Further, let it be particularly noted that in 1907
the proposal not to keep as prisoners the men and
officers of merchant ships emanated from England.
Yet the intention was only to except neutrals. It
was only at the prompting of Belgium that the
ruling was extended to the subjects of hostile
Powers.

It is quite natural that the decisions of Art. 8 as
to making prisoners of the men have no appli-
cation to the ships which take part in hostilities.
An enumeration of the acts which constitute partici-
pation in hostilities was not attempted at the
Hague, and the decision thereupon was left to the
free judgment of belligerents. England wished to
have auxiliary cruisers which convey coal and the
like included among such ships. But Germany
and France in particular opposed this. After

* Prot. I., p. 267.
2 Prot. III., p. 986.



REASONS FOR RETENTION OF LAW. 127

lengthy debates the question was finally left
undecided.

The rule already mentioned, that hospital ships
are excluded from seizure also bears no applica-
tion to the wounded, sick or shipwrecked on board
such ships. So decides Art. 12 of the " Compact
concerning the application of the principles of the
Geneva Convention to war at sea." Yet we
shall, let us hope, some day arrive at exempting
these also in the same manner as the hospital
staff in accordance with Art. 10 of the last-named
compact, because the transferring of the sick from
the hospital ships to the enemy's cruisers is very
dangerous, and the wounded are thereby removed
from the care of their countrymen. Yet in this
instance it is not a question of peaceful seamen,
but of sailors and officers of the hostile Navy, and
the enemy would injure his interests if he gave
those concerned the chance of further fighting
against him.^

As making prisoners of the ship's crew is
now forbidden, we need not more particu-
larly refute Hautefeuille's argument, based on
other premisses, than has already been done
above.

IX. Equally untenable is the view frequently
urged,^ that war on commerce is the most effective
resource for the weak. In the further course of

» Prot. III., p. 565.

^ At the Hague in 1907 by Triana, the representative of
Colombia.



128 CAPTURE IN WAR.

this dissertation proof will be adduced that
such warfare can never bring about a decisive
result, but at best only small minor effects. How
then should the weak Powers in particular reap
any great profit from it ?

It has been shown that the numerous reasons
already adduced for the retention of prize at sea
are untenable, and it is not worth while to dwell
on them longer, even though it is just those reasons
that are set forth at especial length by most writers.



CHAPTER IX.
REASONS FOR ABOLITION OF THE LAW.

The only argument pertinent to our question that
is advanced by those who would retain the right of
prize at sea is the great effect which they ascribe to
the destruction of an enemy's commerce as a means
of ending a war. If, therefore, the right is to be
abrogated, proof must be given that its effect on the
issue of a war is not in the remotest degree so great
as is often maintained.

To this end, let me be allowed first to [point" to
the results which the establishment of the principle,
" Free ship, free cargo " has had on naval warfare.
For thereby it has become possible for the entire
commerce of a belligerent Power to pass into the
hands of neutrals.

Let us, for instance, first leave out of account
the possibility of a blockade. Can there be any
doubt that the commerce of a nation is secure
from destruction by reason of the decision that
an enemy's goods may not be seized from a
neutral ship? If the law of prize was intended
to destroy the enemy's commerce, then the adop-
tion of the maxim, " Free ship, free cargo," was
a violation of that principle, or international

C.W. K



130 CAPTURE IN WAR.

declaration that this should be the first step towards
the abrogation of that ancient right. By the exer-
cise of the right of prize, as apart from recourse
to blockade, it is nowadays impossible to exclude
a country from seafaring trade. For neutral States
are in any case certain to have enough ships left to
obtain desired goods for both belligerent Powers.
Since the belligerents have no choice but to employ
neutrals, the prices for the conveyance of goods
will rise and the neutral Powers, merely from the
incentive of gain, will willingly take over the trade
of the belligerents. It is, moreover, by no means
requisite that the seafaring trade should be carried
on to its former extent. For wars now, as
experience teaches us, do not last nearly so long
as they did, and the supplies still on hand in a
country mostly suffice for a considerable period.
Should a war for once last longer, there would
doubtless soon be fresh ships built by the neutral
States, if those already at their command were
insufficient. Geffi^ken^ expressed himself very aptly
on the point. " The Declaration of Paris is an
untenable half-measure. While it exempts neutral
goods and vessels from seizure, in every war it
throws the trade of the belligerents into the hands
of the nations that are not endangered."

No serious doubt can be entertained as to the

ability of neutrals to take over the commerce of

belligerents. Bear in mind simply the fact that

when it was necessary to convey considerable

1 H. H. IV., p. 597.



ABOLITION OF THE LAW. 131

bodies of troops in 1900, the Hamburg- American
Line and the North-German Lloyd, prompted by
patriotism, were able in a very few days, at the
height of their busy season, to place many of their
largest vessels at the disposal of their country for
the expedition against China.^ If the great
German Companies are thus at all times in a
position to offer a portion of their liners from ideal
motives, then assuredly the neutral States of the
world will be able in time of war to set free a portion
of their mercantile marine, when it is a matter of
earning money. Schroedter ^ mentions that at the
time of the Boer War foreign flags strove very
hard indeed to Avin the control of British sea-
borne trade. When the Russian Fleet in the
winter of 1904-5 made its way from the Baltic
harbours by the Suez Canal to the seat of war, the
Hamburg-American line was amply able to supply
the whole squadron with coals, though the task was
quite suddenly laid upon it.^ As Niemeyer* men-
tions, Japan, in the same war, turned over a portion
of its shipping work to neutral companies, particu-
larly American and English. In 1899 at the
Hague, the American delegate, White,^ pointed to
the fact that during the War of Secession half a
million tons of American merchant shipping sailed
under the English flag.

* Thiess, " Die Hamburg-Amerika Linic," p. 36.
2 P. 36.

' Thiess, ibid.^ p. 36.

* Deutsche ]ur.-Zeitung, p. 41.
' Meurer, Kriegsrecht, p. 268.

K 2



132 CAPTURE IN WAR.

How soon it was realised that the Declaration of
Paris was the first step towards the total abolition
of the right of prize may be seen from the fact
that Phillimore characterised the Declaration as
injurious to his country. As a matter of fact, the
attitude of the English, who gave their adherence
to it in 1856, and now do not wish to abide by the
results of their attitude, is peculiar.

Bonfils/ however, is of opinion that this deduction
entirely overlooks the law of blockade. An
enemy's goods cannot, even if they are stowed on
board a neutral ship, make their way into a
blockaded port, and would be stopped by the
enemy's cruisers. This is absolutely right, in so
far as the blockade is fully sufficient to damage the
enemy's commerce.^

Yet Bonfils leaves out of consideration the force
of Art. 4 of the Declaration : " The blockade, to
be binding, must be effectual, that is, maintained
by a force sufficient really to bar access to the
enemy's littoral." ^ This proviso that it must be
effectual, makes it, in fact, very difficult for the
assailant to bar all the enemy's coastline. For
instance, in a war between France and England,
neither all the French nor all the English coast-
lines could possibly be blockaded. In aiming at
that the two fleets would have to scatter so
much as to incur the risk of being destroyed in

1 Nos. 1327 and 1328.

2 In the same way, White, 1899, and Meurer, p. 268.

^ So also Art. 2 of the London Convention on Laws of
Naval Warfare.



ABOLITION OF THE LAW. 133

detail. Possibly a blockade of the German coasts
by England, or several other great maritime
powers, is conceivable.

Even supposing, however, that such a blockade
came about, the possibility of starving out the
country so menaced would not exist. The tre-
mendous development of the means of communica-
tion on land ensures that the more necessary
commodities can always be brought in b}' a land
route.-^ For how few countries but England — the
blockading of which is impossible — are so cut off
from all contact with others that they can only
import by sea !

Thus Valois,'^ for instance, sa}'s that England, in
a war with France, would never be able to prevent
the latter's intercourse with the five adjoining
countries, and that in any case it could not possibly
force France by such privation into humbly suing
for peace.

The relative proportion of the exports and
imports of the various countries, both by sea and
land, is shown in the following table for the year
1901.^ According to this, the external trafific was
represented in value as follows : —

By Land. By Sea.

T- 1 , (Imports — 100 per cent,

^"g^^"^ (Exports - 100 „

t;, (Imports 31 per cent. 69

^'^"^^ {Exports 35 ,> 65

^ So, also, Barbosa in 1907, Prot. III., p. 783.
' " Seemacht, etc.," pp. 27, 29.
* Cf. Schroedter, pp. 32, 23-






134 CAPTURE IN WAR.

By Land. By Sea.

Germany | il^P°'l' ^o per cent. 60 per cent.

•^ (nxports 50 „ 50

Russia {^"^P^'^^,^ 45 ,, 55

(Jixports 26 „ 74

United ( Imports 6 „ 94

States (Exports 9 it 91

This shows plainly that the various Powers would
be quite unevenly affected by a blockade. Let it
then be noted that precisely those countries which,
next to England, obtain most products by way of
the sea, viz., France and the States, have such
extensive coastlines that their blockading seems
scarcely possible. Especially with regard to the
latter is this at once obvious.

If we look at Germany in particular, she obtains
60 per cent, of her purchases by sea. It should
be noticed here that this proportion includes
very many products not essential to life. For
Germany herself supplies her demand for cattle,
and more than 80 per cent, of that for
grain. Let us further take into consideration that
in case of war, assuredly more than a mere 40 per
cent, could be brought into Germany by land, and,
moreover, in time of war foodstuffs become so
dear that the supply stored in the country, or
flowing into it, would be used more sparingly, and,
therefore, last longer than usual, and at the same
time the production of the most essential means of
subsistence could, by a supreme effort, be somewhat
increased for a short time. So that it will be seen



ABOLITION OF THE LAW. 135

that the starving out of a country like Germany
by means of a blockade is chimerical.^

Thus we see that not only the law of prize but of
blockade as well is based on obsolete conceptions,
the overcoming of which will be the task of the
present century. Though the law of blockade is
not under discussion here, its connection with the
law of prize, upon which the Englishman Satow
very rightly insisted in 1907, made it necessary
that it should be briefly reviewed.

It might further be contended that the destruc-
tion of the mercantile marine would produce
widespread depression, owing to the economical
disturbance of the country involved, and would
thus conduce to the enemy's getting the mastery.
The retort to that, however, is that in reality the
destruction of a mercantile marine is impossible.
At the beginning of a war the ships that are in the
enemy's harbours have, for the most part, the oppor-
tunity of placing themselves in safety. In practice,
the exercise of the law of prize results only in the
paralysation of the enemy's commerce. The
number of ships actually seized is always relatively
small. Niemeyer says quite rightly- as a
corollary to the experiences of the Russo-Japanese,
war that the law works principally as a preventative,
i.e., that not the loss of the actually captured,
material, but the scaring away of commercial

^ Vice-Admiral Galster (retired) takes the same view in
the " Tag," 1909, No. iig.

'- Deutsche Jur.-Zeiiung, 1905, p. 41.



136 CAPTURE IN WAR.

traffic by the risk of seizure is the salient point.
In this direction naval warfare, so long as one party-
has not gained the entire command of the sea,
militates against both parties. In particular, the
raising of the insurance rates, even for freight on
board neutral ships, in so far as they are bound for
the enemy's ports, greatly injures the combatants.

After these arguments, it is not conceivable that
a war at sea can be decided by the application of
the right of prize. For in the application of the inter-
national principles now obtaining, there exists no
means of wholly cutting off supplies from the enemy.
A country cannot be starved out by the right of
prize, and its only result is that a great number of
individuals are robbed of their property.^ The
success and prosperity of a countless number of
traders will be undermined, but the enemy himself
will not be forced into peace. For when the
honour and existence of a nation are at stake,
the Government cannot consider individuals, and
conclude peace in order to please them. War
will still be carried on without regard to the
baneful results of prize-making.

This idea was dwelt on in 1899 ^^ ^^^ Hague
by the American representative. White." " Now-
adays the transit of goods by land is so far
developed that the cutting-off of the transit by
sea emphatically does not serve to hasten the
ending of a war." But, besides this, numerous

' So also White, 1899; Meurer, ibid.
'' Ibid.



ABOLITION OF THE LAW. 137

prominent writers, such as B. Gessner/ Vidari,^

Pelaez,^ v. Martens/ Caudry,' and Bluntschli,^

have expressed the idea in their works.

My contention is, above all, supported by the

fact that for centuries a war has never been

decided by the application of the right of

prize. Nor has there, so far, been any record

of its exerting a predominating influence. In the

War of the Spanish Succession England lost 1,146

merchant ships, of which 300 were recaptured ;

France 1,346. Mahan, in his book, remarks on

this ' that if one compares these figures with the

issue of the struggle, no further proof is needed of

the slight result of a purely commerce-destroying

war. In the Seven Years' War, England lost some

2,500 ships ; the French, on the other hand, only

950. Yet what was the result of the war ? In the

war of American Independence England lost some

1,000 ships, the Americans still more. Here, too,

we get a total failure of such captures to influence

the issue of the struggle. Between the years 1793

and 181 3, 10,871 English vessels were taken by

French ships without materially altering the

military situation, either in favour of the French, or

to the disadvantage of the English.

^ " Das Beuterecht im Land und Seekriege," 1875.
^ " Del rispetto della proprietti privata," etc., 1867.
' " La propriety privata dei sudditi di uno stato belli-
geranle," 1870.

* " Les droits de la propridtdpriv6e pendant la guerre," 1869.
' " Le droit maritime international," 1862.

* " Das Beuterecht im Kriege und das Seebcuterccht
insbesondere," 1878,

' P. 220.



138 CAPTURE IN WAR.

It is true Lieutenant-Commander Goette
expresses the view^ that the struggle between
Napoleon and England showed how, in circum-
stances where every other device of war failed, it
was necessary to have recourse to indirect means
of fighting against commerce and private property if
the war was to be carried to its conclusion. To this
it may, however, be answered that the war between
Napoleon and England was not fought to a
conclusion, but remained undecided.^ Therefore
on the contrary that struggle must be regarded as
a proof, at least, that war on the question of
commerce alone cannot bring about a decisive
issue.

In the same way the law of prize remained
without effect in the Greek War of Independence
of 1821-g : for it was in battles on land and sea only
that the issue was decided. Nor was it otherwise
in the War of Liberation of the Spanish colonies
in America in 1810-25.

The Crimean War also demonstrated the slight
importance of war upon commerce. The Anglo-
French fleet which sailed in August, 1854, for the
Baltic, was forced to recognise that not much was
accomplished by the seizure of a few Russian
merchant vessels, and in the further course of the
war the issue attached mainly to the capture of the
fortress of Sebastopol, and the attacking of trade
therefore played a very subordinate part.

^ " Marine Rundschau," 1901, p. looi.

^ Cf. Rodenberg, " Seemacht in d. Geschichte," p. 19.,



ABOLITION OF THE LAW. 139

The effect of prize has been no greater in wars
since the Declaration of Paris. In the Civil War
of 1 86 1 -5 the cruisers of the Southern States —
especially the Sumter, the Florida, and the
notorious Alaba)Jia — captured 269 vessels, no small
number in the circumstances. This is particularly
the outcome of the fact that since the 'sixties the
American mercantile marine has retrograded
greatly in the transport of merchandise across
the Atlantic. In i860 its share was 66 per cent.,
and in 1870 it had fallen to 35 per cent.^ Although
in that war the Southern States inflicted more
damage on the Northern by prize-making than the
Northern on the Southern, the struggle was eventu-
ally decided on land in favour of the North, as
Choate pointed out in 1907.^^ It is no concern of
ours here that the South at the time was compelled
to undergo a blockade at the hands of the North.
There was then no adequate communication by
land, and the conditions to-day would be quite
different.^ Moreover, the North could never wholly
prevent blockade-running. In any case the War
of Secession serves to demonstrate that in former
times the right of blockade sufficed for the purposes
of naval warfare, and that the right of prize proved
of no considerable importance.

It is well known that in 1864 the superiority of



* Thiess, " Organisation und Verbandsbildung," p. 35.
» Prot. III., p. 758.

3 Cf. Preuss. Jahrb., Vol. 100, "The Blockade of the.
Southern States."



I40 CAPTURE IN WAR.

the Danish fleet made itself very unpleasantly felt.
The share of Prussian ships in harbour traffic sank
at the time from 6go,ooo to 330,000 tons.^ By
all these measures of the Danes the merchants,
indeed, were much injured, but any effect on the
result of the war was as little recognisable as in
1848, when Prussia's harbour traffic fell from 6,913
ships, with 900,000 tonnage, to 4,166 ships, with
610,000 tonnage.'^

The same may be said of the war of 1870-71, in
which France took only 75 German merchantmen.
It would be very erroneous to raise the objection
that this was not a maritime war. For that very
reason the fleet, not having to concentrate for
battle, had all the more chance of inflicting damage
on the enemy's commerce.

In the Russo-Turkish war the fate of Turkey
was essentially decided by the Russian victory
at Plevna, and the attack on commerce was
negligible.

In the struggle between China and Japan in
1894-5, the law of prize played as small a part as
in the Spanish-American War.^ In the latter,
especially, the attack on commerce on both sides
showed little energy, and harassed the neutrals more
than the belligerents. The Americans captured
only some 40 Spanish vessels. There can be no



1 Peters, II., p. 182.

2 Ibid., p. 181.

3 Cf. Preuss. Jahrb., 1899, p. 32; also Pluddeman,
" Marine Rundschau," 1898, p. 1252.



ABOLITION OF THE LAW. 141

doubt that such warfare had absolutely no influence


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