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them after they had acted upon it, any breach
by one of the compact to abandon capture of
commerce would release its antagonists, and
no one would be any worse off than before.
Nothing would have been lost; and even if
all returned to the ancient practice of
plunder, they would in the interim have
been saved much expenditure while remain-
ing relatively as strong as formerly. If, then,
the British Government should succeed in
effecting the kind of agreement called for,
the abandonment of booty-right as a pre-
liminary creates no new danger, and means
no loss of relative power of defence. The
essential thing is that the abandonment of
booty-right should be made the starting-
point, inasmuch as it places before all
Powers alike a rational motive for restric-
tion. A Germany with no fears for her sea-
borne commerce has no need for a burden-



INTRODUCTION. xxiii

some naval programme : a Britain similarly
freed from apprehension can have done with
panics, provided only that she maintains a
sufficient coast defence. Let but the first
step be taken by the two Powers in concert,
and there is no limit to the possible advance.
For it may be taken as certain that all the
naval Powers would follow suit. The
United States, having least ocean-going
commerce, might be supposed to have least
interest in the reform ; but her statesmen
have always been the foremost advocates of
it, and they would certainly not now turn
back.

It is not unlikely to be objected that,
inasmuch as the abolition of booty-right on
land by the Declaration of Paris was not
followed by a restriction of land armaments,
a similar abolition in the case of naval war-
fare may not be permanently followed by
restraint of naval armaments. But the two
problems are fundamentally different. Armies
are maintained not merely to preserve pro-
perty but to keep out a foreign Power :
invasion is the supreme political evil, whether
or not it be followed by loss of territory.
European States, mindful of such experiences,
remain armed to prevent them. But the
simple concerted removal of the risk of
capture of commerce at sea at once removes
the motive for the bulk of the naval arma-
ments of the world. No one can now hope to



xxiv INTRODUCTION.

gain or recover territory by mere naval opera-
tions. Of all military expenditures, that on
navies is thus for most States the most
gratuitous ; yet it goes on increasing in the
face of a growing disposition on all hands to
live neighbourly. For this anomaly the
cause is to be found precisely in the principle
of booty-right, which sets maritime States
on building war ships in proportion to the
increase in their mercantile marine. Given
the abandonment of booty-right, all alike
have every motive to retrench, provided only
that all retrench in proportion ; and if no
State holds out as Britain has done in the
past, a concert is simply a matter of patient
negotiation.

On the other hand, the experience of
Europe as regards the abandonment of
booty-right in land warfare is all in favour
of the proposal to abandon it at sea. Plunder
has been systematically abandoned in land
warfare. Foraging and furniture-burning
are apparently inseparable from war ; but
when the Germans entered Paris they looted
nothing, though they gazed upon much of
the loot taken by Napoleon from Italy.
There is thus the best of reason for believ-
ing that if once the agreement be come to
in naval matters that was come to for land
warfare in 1857, ^^ ^i^^ ^^ respected. It
will be to nobody's interest to break it. The
very risk of loss of commerce is one of the



INTRODUCTION. xxv

main dangers to peace, inasmuch as the
armaments to prevent it are a constant strain
on tempers all round. Let us suppose,
say, that Germany were tempted to inter-
cept British food imports in order to have
Britain at her mercy. She would then
instantly bring the whole naval power of
Britain on her ports to the end of destroying
them and the whole of her commerce. Only
in concert with her neighbours could she
count upon getting her own food imports
and raw materials by land ; and a policy of
gross aggression would put her in jeopardy.
On her part, she could be sure of such a
concert if she were not the aggressor ; and
in that case nothing that Britain could do to
her commerce would be sufficient to force
her to an ignominious peace.

But we tend to darken counsel by putting
such hypotheses. Neither State is ration-
ally to be supposed desirous of aggression
upon the other. On both sides the imputa-
tion of such desire is the contribution of the
fools to the problem. What stimulates the
naval armaments of both is the apprehen-
sion set up by the nature of the subsisting
law of nations as to sea-borne commerce in
war. If we could but fight the sorcery of
mutual distrust with the arms of rational
agreement, all the fears of the past genera-
tion might pass away like a nightmare.

It has been complained on the British side



xxvi INTRODUCTION.

that British proposals for the consideration
of proportional restriction of armaments
have been rejected by Germany in recent
years. But that only brings us once more to
the stumbling-block of booty-right. Let the
Englishman try to put himself in the
German's place. So long as Britain avows
her determination to capture an enemy's
commerce in naval war, Germany has no
more motive to restrict her navy as against
us than to restrict her army as against
France. The more her commerce grows,
the greater her risk, and the greater, there-
fore, the need to protect it. Only when
Britain offers the formerly denied- conces-
sion as to capture of commerce can she
regard German refusal to discuss restriction
as unfriendly in spirit. Even if such a
refusal should still come, it would be much
more likely to be inspired by the sinister
interests which, in Germany as in Britain,
desire armaments for the profits and liveli-
hoods they yield, than by any general ill
will. But not until there is an express
conjoining of the principle of proportional
restriction with that of " no booty in naval
war" will any rational imputation of
hostility be even superficially plausible on
the score of refusal to discuss.

I take it to be a primary philosophic truth
that no criticism of one nation by members
of another rises above the level of tribal



INTRODUCTION. xxvii

jealousy until it is recognised that the only
valid criticism of the kind is that which
assumes community of character. We are
entitled to criticise the conduct or the insti-
tutions of another nation precisely so far as
we appeal to principles by which we criticise
conduct or institutions in our own nation
and our own countrymen — so far and no
farther. And if we ever assume in another
nation a bad total bias of character which
we do not assume in our own, we are merely
airing passion and prejudice. In acting on
such an assumption there is nothing
scientific. If the assumption were sincere,
there would, in the terms of the case, be no
use whatever in stating it : it would be
merely an utterance of vituperation, not
expected or intended to have any good result.
To suppose that the statement could have
any persuasive influence on the nation dis-
paraged would be to suppose that that
nation has not the bias of character assumed
— which is a contradiction in terms. In
short, the clearest teaching of moral
philosophy, no less than the simple common-
sense of ordinary human intercourse,
dictates that in international intercourse —
which always has existed, and must continue
— community of moral principles shall be
taken for granted.

It is doubtless true that individual leaders
remain capable of conduct which does not



xxviii INTRODUCTION.

come under this rule. After the most care-
ful study, Napoleon must be pronounced
responsible for the wilful rupture of the
Peace of Amiens. This does not alter the
fact of the British responsibility for the
previous wars ; but the fact remains that a
British Cabinet could learn moral and
political wisdom where the military autocrat
could not. Napoleon remained unalterably
a conqueror, an aggressor ; so much is now
fully and convincingly set forth on the French
side. But in European politics to-day there
is no Napoleon, and no likelihood of one.
If one did arise, Europe would doubtless
have to revert to the old methods ; but the
bare possibility is no reason for assuming
that any constitutionally governed State is
now to be regarded as a Napoleon incarnate.
Even Bismarck effectually learned the lesson
of Napoleon's fall, and refused to emulate
his poHcy. Those British alarmists, then,
who proceed on the assumption of a total
" German" bias to Napoleonic methods do
but idly invite German recrimination.
When they give their reasons, they break
down utterly. When Mr. Bowles goes about
to show (work cited, p. ii8) that " so
far as Germany is concerned," military
reasons will in time of war " override all
other reasons whatever," including treaties,
he cites official language which conveys the
exact contrary of what he reads into it. The



INTRODUCTION. xxix

German declaration which he quotes is an
express reminder that in war civiHsed powers
may be expected to do more in the way of
humanity than they are bound by treaty to
do, not that they hold themselves free to do
less. Mr. Bowles would make out Germans
in general to be even more fools than knaves
— fools enouo^h to avow their intention of

o ...

knavery. Serious political discussion must
rise above such dialectic as this.

That is to say, reason compels us to
believe that there is no more aggressive
design on the part of Germany or any other
country towards Britain than on the part of
Britain towards Germany or any other
country ; and on such a basis rational
politicians of all countries are in reason
bound to seek a practical agreement which
will concurrently, however gradually, libe-
rate all alike from the penalties of mutual
distrust. The issues are clear. Britain,
necessarily relying mainly on her ships to
guard her from invasion, keeps up a great
navy, and clings to that right of capture
which makes a navy more powerful for
destruction in war. Germany and other
Powers, bent on guarding their commerce,
defensively create navies in which Britons
see possible instruments of invasion. Britain
does not want a naval war ; the other Powers
do not want to invade her : yet each forces
the other to spend enormously on defence,



XXX INTRODUCTION.

thus causing social injury all round, and
this in an increasing degree.

To the rational course of ending the evil
by agreement there remain certain fallacious
objections. Some men argue forensically that
if naval wars are made comparatively harm-
less to commerce they will be more readily
resorted to. This argument also has been
used by the same officials who reason that
surrender of booty-right will lead to the
indefinite prolongation of the state of war.
Putting the two contentions together, we
have this : that where there is no fear of
capture of commerce — a loss falling on indi-
viduals — the nations will lightly enter on
quarrels which mean risking the extremely
rapid destruction of fleets costing many
millions, the loss of which will fall upon the
nation as such. As soon, however, as
they have begun the war, the less powerful
navy will go into its own harbours, there to
remain indefinitely, until it sees some chance
either of invading the enemy or of taking his
ships by surprise in the event of his not
using the same precautions. As invasion
presupposes command of the intervening
seas, the chances of that operation would
seem to be small ; and if, as has been pre-
mised, the nations will be recklessly ready
to fight when commerce is safe, the course
of going into harbour to avoid fighting
reduces the theorem to absurdity. It is in



INTRODUCTION. xxxi

truth a fantastic thesis, imputing to all nations
worse folly than they have committed.
Foolish as they have ever been in the matter
of war, wars are after all made for a purpose.
Since wars of religion have become impos-
sible, wars have been made (as apart from
civil wars) for territory, or for " markets,"
or for the purpose of making or preventing
some change in the "balance of power," so
called. Now, taking all the possibilities In
turn, it will be found to be impossible to
maintain that the abolition of the right of
capture of commerce at sea would Increase
the likelihood of a war upon any one of the
pretexts mentioned. On the contrary, such
abolition would remove one of the possible
motives for a war — the stupid desire to injure
the commerce of a rival.

Some amateurs of war, I understand, con-
sider it irrational to propose to do anything
which would tend to make war less destruc-
tive. It would make war ridiculous, they
argue, to hedge it round with restrictions to
prevent damage ; and the abolition of the
capture of sea-borne commerce would make
a naval war especially absurd. I fear I
could not quash this argument ; for It Is my
own opinion that war in one way or another
is always absurd. But, if we must have
absurdities, let them be of a kind that involves
the minimum of suffering and destruction.
Those who detest absurdity will then have



xxxii INTRODUCTION.

a new reason for avoiding war altogether.
Already, in fact, restrictions have been and
are constantly being put upon the operations
of war. Commerce is already immune in
land wars ; and all manner of limitations
are laid down as to modes of killina;.

Some idealists have in the past objected
to all such steps — in the spirit of the argu-
ment before dealt with — that to limit the
horrors of war is to increase the likelihood
of war. John Stuart Mill so reasoned. But
this is an a priori fallacy, proceeding upon
inadequate premises. In the first place,
the stage of human evolution in which war
is most savagely cruel is precisely that in
which war is most common. In the second
place, Mill's argument takes no account of
actual psychology. On his view, the only
way to stop war would be to carry it to the
worst degree of atrocity, in order to make
all men recoil from it. But this would mean
a transition from the very worst form of war
to that of absolute peace without a passing
through any intermediate stage, a process
which is psychologically unthinkable. It is
true that at certain stages of human history
the evils of war have ostensibly made men
grow weary of certain provocations to war.
The old wars of, religion in France and
Germany did ultimately make men give up
wars of religion. But they did not also give
up national and commercial wars upon other



INTRODUCTION. xxxiii

pretexts; and the atrocity of the religious
wars, while it brought such wars into dis-
credit, was in itself profoundly demoralising.
Finally, it is quite impossible that nations
should planto evolve themselves into a state of
permanent peace by making war as savagely
as possible. In a word, all evolution is by
steps, and to abolish the capture of com-
merce at sea is a step towards the mini-
mising of all war. Given the abolition of
one more barbarism, men, being pro tanto less
barbarous, will be not more but less ready
to go to war upon any pretext whatever.

By this time, happily. Governments have
passed the stage of desiring either war for
war's sake or savagery for the sake of
keeping war more warlike, whatever may be
the formulas traded on by those who still
sing " the song of the sword." The Govern-
ments have made and kept agreements
which aim at reducing war from the primeval
scramble of sheer greed and passion to a
grimly ordered trial of strength, by way of
" last arbitrament" in their disputes. It is
now open to them to take further and more
fruitful steps in the same direction, and so
haply, by a sane agreement as to war at sea,
to open a new chapter in the history of the
evolution towards the prevention of war on
land. It is only by successive and measured
steps that the desired goal will ever be
reached. Those who call for instant and

c.w. c



xxxiv INTRODUCTION.

complete transformation of human motive,
character, and conduct, are vain guides,
whatever be their standing ground. But
far worse guides are those who meet every
plan for a single step by elaborate demon-
stration that any single step towards better
life means ruin. In the words of the
Psalmist, misquoted by one of them to
recommend his own doctrine of unalterable
distrust : " I am for peace, but when I speak
they are for war." In so far as our own
Government is at present promoting the for-
ward movement by agreeing to International
Prize Courts, it is deserving of all support.
National Prize Courts are the negation of the
judicial principle : they make a litigant judge
in his own cause. If there must be prize
courts, let them be International, with some
power to develop international jurisprudence.
By conceding such courts, we take a step on
the way to giving up capture of commerce
altogether, inasmuch as we improve the rela-
tions and extend the reciprocities of States.
If further we abandon altogether the principle
of contraband of war as regards neutrals, we
are minimising the difficulty as to defining
contraband of war as between belligerents.
If neutrals are left free to carry anything
whatever — barring troops — it is we who will
gain most, for we do most importing of
supplies which may subserve war ; and when
neutrals are free to carry what they will, the



INTRODUCTION. xxxv

commerce of belligerents is far on the way
to equal immunity. The principle of blockade
will in that case disappear; and naval arma-
ments will become solely a matter of possible
invasion and the necessary defence. Who,
in that case, has more to gain than we ?
Whom do we dream of invading ? What
Power fears to be invaded by us ? And
who, given immunity of commerce, is likely
to rebuild a formidable fleet solely on the
chance of invading us ? Let every con-
ceivable contingency be faced, and the sanity
of the abandonment of booty-right, with pro-
portional restriction of armaments, becomes
the more clear.

Whatever may be the immediate course
of the question. Dr. Wehberg has rendered
a service to civilisation in setting forth the
situation as he has done, with scholarly
exactitude and perfect sobriety. English
readers now have the means at hand of
thinking out the political problem. Only
one as expert as himself in the technique of
international law could pretend to criticise
his exposition of it. As a non-expert I can
but say that no work of the kind had made
on me a stronger impression at once of
special competence, mental discipline, and
serious recognition of the great human issues
involved.

John M. Robertson.

January, igii.



CONTENTS.



PAGE

INTRODUCTION ....... V

CHAPTER

I. HISTORICAL REVIEW : FIRST PRINCIPLES OF

LAW OF PRIZE ON SEA AND LAND . I

LAW OF PRIZE ON LAND.

II. NATIONAL PROPERTY ..... 25

III. RAILWAYS, ETC. ..... 30

IV. PRIVATE PROPERTY ..... 38

LAW OF PRIZE ON SEA.

V. TIME AND PLACE OF SEIZURE ... 54

VI. OBJECT OF SEIZURE ..... 68

VII. BRINGING-TO AND SEARCH. ... 94

NECESSITY FOR THE ABOLITION
OF THE LAW OF PRIZE AT SEA.

VIII. REASONS FOR RETENTION OF THE LAW . Ill
IX. REASONS FOR ABOLITION OF THE LAW . I2g

X. INDIRECT EFFECTS OF THE LAW UPON

NEUTRALS I46

XI. DIRECT EFFECTS OF THE LAW UPON

NEUTRALS 159

XII. ENGLAND AND THE LAW OF PRIZE AT SEA,
PARTICULARLY IN COMPARISON WITH

GERMANY 172

XIII. SUGGESTIONS FOR REFORM . . . 182

BIBLIOGRAPHY 193

INDEX 203



CAPTURE IN WAR ON
LAND AND SEA.



CHAPTER I.



HISTORICAL REVIEW — FIRST PRINCI-
PLES OF LAW OF PRIZE ON SEA AND

LAND.

The right of appropriating an enemy's property
for the express purpose of enriching oneself, ^ —
the right of booty so called — has been from time
immemorial a practical and exceptionally important
part of the laws of war. We find it in the crudest
form, in the carrying out of a war of extermination
even in the classical times of Greece, while the
Romans in their striving after the lordship of the
world paid more heed to the sparing of their
future subjects. In the Middle Ages practice held
firmly to the old rude principles, as did in theory
Hugo Grotius and his pupils also.^ Only, roughly,
since Justinus Gentilis, who in 1690 published a

^ That the intention to enrich oneself forms part of the
conception of the law of booty is to-day a universally
prevalent view.

'^ P'or a more detailed historical account of the law of
booty I refer the reader to the work of Bluntschli.

C.W. B



2 CAPTURE IN WAR.

bold thesis, " Dissertatio de eo quod in bello licet,"
and since the coming in France of the Abbe de
Mably, have more humane principles been able to
find acceptance among the nations. When, soon
afterwards, the axiom which laid the foundation of
modern laws of war had been admitted, viz., that
war is carried on only between States to the
exclusion of the entire peaceful population,^ we see
from the end of the eighteenth century one step for-
ward after another in the domain of the law of booty.
Let us next mention the Treaty of 1785 between
Prussia and North America, by which both States
insured the inviolability of private property in case
of war. Although this treaty was indirectly
revoked in 1799," at any rate two important States
had displayed their honest intention to show more
regard to the desire of the nations for the ending
of the old horrors of war. Later on this example
found laudable imitation in the treaties between
Brazil and Uruguay (1851), Costa Rica and New
Grenada (1856), the United States and Bolivia,
(1858), Prussia, Austria and Italy (1866), and Italy
and North America (1872). Moreover, Italy in its
Codice per la Marina MercanttVe of June 21st, 1865
renounced the right of prize at sea, taking it for
granted this would be mutual. The Brussels Con-
ference of 1874, for the first time, established the
principle of the inviolability of private property,

^ The contrary and untenable point of view is still
upheld in Lentner, " Das Recht im Kriege," 1880, p. 118.

2 According to the opinion of v. Bar (" Die Nation," 1906,
p. 134), the treaty as far as regards prize at sea is still valid.



HISTORICAL REVIEW. 3

which in practice had long since been recognised,
notabl}' in the campaign of 1870-71. True, the
Treaty of Brussels was not ratified by the Powers,
and it was not until the first Peace Conference at
the Hague that the idea of abandoning the right
of booty in war on land received unanimous
acceptance by the States represented there. Even
before that the law of prize at sea had, in the Paris
Manifesto of April i6th, 1856, been subjected to an
exceptionally important reform. For the future
neither an enemy's property could be taken under
a neutral flag, nor neutral property under a hostile
flag from the enemy, and only warships, not
privateers, were entitled to seize an enemy's goods
under a hostile flag. The second Peace Conference
at the Hague in 1907, and the London Conference
on Naval Warfare also determined some, though
certainly less important, items of the law of prize
both by land and sea, according to international
jurisprudence.

Thus, then, at the first Hague Conference, the
distinguished Swiss Colonel Kiinzli, lately deceased,
might well ascribe^ to the nineteenth century the
glory of having furthered the progress of the laws of
war as no other epoch had done. And certainly it is
an admirable development, that to-day the complete
destruction of the enemy is no longer accounted
the object of war, but only his humbling in as brief
a time as possible with the least possible cost of
life and property. All attacks on the private or

^ Meurer, " Kriegsrecht," p. 19.

B 2



4 CAPTURE IN WAR.

public property of the opponent merely for the sake
of enriching oneself are thereby prohibited, and
are only sanctioned on grounds that are inseparably
bound up with the nature of war. It follows from
this that nowadays the right of booty — leaving
out of the question for the moment the familiar
exception of the law of maritime war — no longer
exists at all, a view that has been expressed in the
most pointed fashion, particularly by Bluntschli,^
Lueder,^ and A. Zorn.^

What I have grouped together in this treatise
under the heading " The Law of Booty in War on
Land " is therefore only an enumeration of the
exceptional cases in which the law of nations sanc-
tions the violation of private or public property.


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