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its clutches by force of arms {reprise, recousse).
This axiom, first maintained by the consolato del
mare, has been advocated among experts by
Grotius, Pufendorf, Bynkershoek, Vattel, and others.
On the other hand, in certain countries the " rule
of twenty-four hours " is recognised by which even
such a brief retention implies the acquisition of
ownership of vessel and cargo. Special difficulties

1 P. 298.



BRINGING-TO AND SEARCH. 107

of interpretation arise where several recaptures
follow one another {rescousse, or recousse).

In certain countries since the end of the
seventeenth century so-called redemption [ran^on)
by the enemy is customary, and even writers like
Phillimore and Gessner regard such a compact as
permissible. Yet most Powers rightly do not
recognise such redemption. For the object of the
right of prize is the destruction of the enemy's
commerce and by compacts permitting redemption,
what is mainly attained is enrichment at the
expense of the enemy. This is also deducible from
the remarkable fact that in England, for instance,
the captors are allowed to insure their interest in
the captured ships.

The prizes are, as a rule, to be brought for
adjudication to the nearest home ports where a
Prize Court sits. Under certain circumstances,
however, a ship and its cargo may be at once
applied to its own purposes by the captor State,
should the necessity of war demand it. In that
case, however, the Prize Court must at once be
informed.

By Art. 10 of the " Agreement concerning the
rights and duties of neutrals in case of war at sea"
(1907), a warship which is carrying off a prize
does not violate neutrality by passing through
neutral territorial waters. Witness Renault's
report^ : " It by no means deprives a neutral Power
of the right to prevent all passage of belligerents
» Prot. I., pp. 304, 305.



io8 CAPTURE IN WAR.

through neutral territorial waters, nay, more, the
mere passage under normal circumstances might not
be regarded as in itself a breach of neutrality."

A prize may never be taken into a neutral har-
bour. Otherwise, by Art. 22 of the above-mentioned
agreement the neutral Power must bring about the
releasing of the prize. Several Powers wanted in
1907^ to place prizes on a level with ships of war
and grant them a brief sojourn in neutral ports.
But, in the end, the opposite view prevailed, with
two important exceptions.

Firstly, by Art. 21 of the said agreement, prizes
may be taken into a neutral port on account of
unseaworthiness, because of adverse weather or
want of fuel or provisions. But even in these cases
they must put out again as soon as the cause which
forced them to put in is removed. If they do not
put out of their own accord, there ensues a summons
to do so from the neutral Power, and in case of non-
compliance the forcible ejection of the prize
with her officers and crew, nay even the seizure,
of the prize-crew put on board by the captor.

Next, by Art. 23, a neutral Power may not refuse
prizes entrance into its ports, if they are brought
there for safe-keeping until the Court arrives at a
decision. But it can also have the prizes taken
to another port.^ If the prize is convoyed by a

^ Prot. I., p. 320.

* " With a view to preventing the inconvenience which
might be caused in a small port," as v. Beaufort suggested
particularly with regard to colonial harbours. Prot. Ill ,
p. 637.



BRINGING-TO AND SEARCH. 109

warship the officers and men placed by the captor
on board the prize have the right to proceed on
board the convoying vessel. If the prize voyages
alone, the crew placed on board by the captor is to
be allowed to go free.

In formulating this last Article the object was " to
lessen, if not to prevent, the destruction of prizes." ^
Where a belligerent Power, owing to distance or
other causes, cannot carry a prize into a home port,
and would be forced to sink it, the prize is to be
allowed harbourage in a neutral port. This
article, however, must not be taken to mean also
that the neutral Power must in all circumstances
allow the prize to put in ; on the contrary, that is a
matter for its own decision. But if it grants entry
to a prize under the stipulations named, no breach of
neutrality is to be found in such action. In spite
of the strong opposition of England this clause was
passed, but only in 1907. Van den Heuvel,^ the
Belgian, pointed out with great eloquence the
importance of the clause " which would be a
first stage, warranting the hope that two great
reforms, the prohibition of the destruction of
neutral prizes and respect for the enemy's
private property at sea would some day eventuate."
It cannot in truth be denied that Art. 23 may yet
acquire paramount importance. As almost all
the Powers have given their adherence to it, in
case of war, they will act accordingly, and the

^ Prot. I., p. 320.

- Prot. III., p. 481 ; I., p. 321.



no CAPTURE IN WAR.

sinking of prizes will thus probably become much
rarer. For that matter it exempts not only neutral
but hostile vessels from being sunk. In the protocol
in 1907, it was expressly laid down that the Prize
Court mentioned in Art. 23 meant the national
and not the international tribunal/ so that even the
Powers which voted against the " Agreement as to
the establishing of an International Prize Court"
can accept Art. 23.

In all cases the neutral Power must, in accordance
with Art. 9 of the " Agreement as to the rights and
duties of neutrals in case of naval war," apply
equally to both belligerents, the conditions, limita-
tions or prohibitions touching the admission to its
harbours, roadsteads, or territorial waters of prizes
made by them.

The great want of clearness which, as I have
shown, prevails on many points of the law of
bringing-to and of search would be best removed
by international definition. It should not be
difficult to arrive at some agreement, as it is
mainly a question of purely formal acts. Then at
last, in place of the many National Prize Regula-
tions, one International Code would be framed, and
the cause of many disputes between nations removed
from the world.

1 Prot. III., p. 651.



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

CHAPTER VIII.

REASONS FOR RETENTION OF THE LAW.

The glory of having always upheld the idea of
the inviolability of private property attaches to the
United States. They have always remained true
to that principle since they first enunciated it in
1785 in their famous treaty with Prussia. It is,
however, true that they have never been able to
apply the principle in practice, because their
opponents in war have not consented to forego the
right of prize. When the abolition of privateering
was declared in 1856, Rlarcy, the American Minister
for Foreign Affairs, issued that famous declara-
tion in which he made America's adherence
dependent upon the total abrogation of the right
of prize.^ Recently America has endeavoured,
both at the first and second Hague Conferences, to
do away with the right, and supported its proposal

* Cf. on the endeavours of America to abolish the right of
prize, particularly the speeches of Choate and Barbosa in
1907, also White, " My Life as a Diplomat," pp. 370 et seq.



112 CAPTURE IN WAR

by explicit memorials. Unfortunately many of the
Great Powers adopted an adverse attitude towards
this endeavour. In 1907 the following were against
the American proposal : France, England, Japan,
Russia, Spain, Mexico, Colombia, Montenegro,
Panama and San Salvador. Chili refrained from
voting,^ Germany and Portugal were in favour of
the adoption, on condition that the questions of
contraband of war and blockade were decided first,
which is what actually took place in London in
1909.

A great number of reasons adduced in support of
the right of prize will not bear even a superficial
test.

I. Merely on account of its peculiarity let me
first quote one of the contentions repeatedly
made by writers of an earlier day. Grotius,
for instance, quoted what the Bible relates as
to God Himself having allowed and bidden His
people to smite their enemies and take all that
was theirs, and appealed further to the numerous
testimonies of Greek and Roman authors.

II. We take Grotius more seriously when he
says that the combatant has the right as victor to
demand compensation from the vanquished foe for
the expenses and losses caused by war. This
view, however, stands in contradiction to the
modern conception that the expenses of war may
be imposed upon the hostile State, but certainly
not on hostile individuals.

1 Cp. Prot. III., pp. 834-835-



REASONS FOR RETENTION OF LAW. 113

III. The Englishman Wheaton regards prize as
a kind of contribution : in Tetens' view it has the
nature of a war-tax. But these conceptions cannot
be retained owing to the point of view adopted
towards contributions and the like to-day. For
how are they to justify the seizure of all
the ships by comparing it with contributions .-•
In war on land contributions are levied only to
meet wants, but when a ship is seized in naval
warfare that principle is not observed. Besides,
in contrast to the regulations of the law of prize,
compensation ensues in the case of contributions.
In passing it should be remembered that in naval
warfare also contributions and requsitions may be
levied in seaside towns.

IV. Some defenders of the law of prize contend
that war should be made as terrible as possible, so
that it may end the sooner, and that, therefore, the
right of prize should be retained. This view was
supported in 1907 by Renault, Larreta, Fry and
Satow, among others.^ Barbosa, Choate and Foster
rightly insisted, on the contrary, that the Paris,
Geneva, St. Petersburg and Hague Conventions
aimed at a mitigation of the cruel customs of war,
and that the barbarities which they abolished had
been abolished in order to frighten the nations
out of war, or to end it more speedily.^ Moreover, it
has not yet been proved that the law of prize

1 Cp. Prot. III., pp. 793. 800, 810, 832.

2 Prot. III., pp. 763, 785, 803. Cf. also, Schlief (pseudo-
nym for Shafter), " Hohe Politik," p. 42, 2nd edition, 1902.

C.W. I



114 CAPTURE IN WAR.

really leads to a material curtailment of war.
Without such proof — which, as will be shown later,
cannot be given — that theory breaks down. The
American Rose,^ on the contrary, especially with
reference to the predatory wars of Louis XIV. and
the struggle of the Netherlands for independence,
showed in 1907 that wars had often lasted longer
the more fiercely they were waged.

V. Fried ^ and others adopt the standpoint that
the dread of the confusion brought about by prize
at sea will be a deterrent from war, and thus the
retention of the right can only be conducive to
peace. This conception, which was also upheld at
the Hague ^ in 1907 by Nelidow, Renault, Larreta
and others, is wholly erroneous. It cannot be con-
tended that under present-day conditions, where
modern Governments only have recourse to wars
in cases of absolute necessity, the mere thought of
the crippling of commerce will exercise a decisive
influence. War always brings many evils in its train,
and it is untrue to maintain that the injury to
commerce can be accounted one of the worst of
these. A nation offers a far heavier and more
costly sacrifice to its honour in the many thousands
of its youth who fall in battle, and the possibility
of sullying the fame of its forefathers by its defeat
in the struggle will admonish every people to be
prudent, and to take the sword in hand only in defence

^ Prot. III., pp. ^(^S et seq.

' Second Hague Conference, p. 213: " Friedenswarte,"
1907, pp. 122, 123.
3 Prot. III., pp. 765, 793. 810.



REASONS FOR RETENTION OF LAW. 115

of its highest interests. Should it really be regarded
as possible that a Government could abstain from
war, not because of the possible slaughter of so many
human beings, but because of the imperilling of its
commerce ? If a nation enters on a war, it reckons
with the fact that the flower of its youthful man-
hood will fall, and such material considerations as
the unhinging of commerce cannot carry weight in
comparison with those great issues of life and
honour.

Similarly, the argument that the continuance
of the law of prize will induce traders to use their
best endeavours to prevent war cannot be accepted.
In contradiction to this, Choate aptly observed
in 1907,^ "Commerce and business are always
hostile to war, but they have little influence
either to provoke or prevent it. The need of
avenging the national honour, accidents, the passion
and thirst for conquest, the redressing of alleged
wrongs, such are the causes that lead to war, and
the commercial interests which it compromises have
seldom, if ever, availed to avert it." Further, the
same American diplomatist pointed out with great
justice, in answer to the above-mentioned conten-
tions, that many nations had been prompted to
wage war by the desire of destroying their
enemy's trade, especially when they had a small
mercantile marine, and an opportunity of inflicting
damage on the opponent by means of a few

* Prot. III., p. 764 ; so also the American Rose, Prot. III.,
pp. 797 et scq.

I 2



ii6 CAPTURE IN WAR.

cruisers. This was demonstrated, for instance, in
the War of Secession.

VI. Here and there the view was also upheld
that the enemy's ship must be seized because it
might be used for military purposes. This was
especially dwelt on by Count Caprivi in the
German Imperial Parliament in 1892. As a matter
of fact, it is true that all the seafaring Powers
have respectively made agreements with their
great shipping companies to turn ocean-going
steamers into cruisers. The English and other
Governments grant subsidies to their companies
on condition that even in building vessels considera-
tion is given to their prospective transformation.

Section 23 of the German Law of June 13th,
1873, as to Military Contracts, says that shipowners
must place their ships and vessels at the disposal
of the military authorities for war purposes
from the day of mobilisation. The Hamburg-
American Line, ^.^., had its fastest \\ner,the Deutsck-
land^ built expressly as an auxiliary cruiser, and
her armament lies always in readiness. Besides
this, five vessels of the North-German Lloyd, with
more than 18 knots' speed, are fitted as auxiliary
cruisers. As against these six ships of the German
companies, England has twenty-seven at her dis-
posal ; the United States, six ; France, five ; and
Russia, four, of like speed. Vessels of less speed
can, of course, be used as auxiliaries, though
in this case obviously only for such subsidiary
military purposes as the carrying of men, ammuni-



REASONS FOR RETENTION OF LAW. 117

tions and supplies, scouting and hospital duties
and use in guerrilla warfare against the enemy's
commerce.^

Touching the rules to be observed in transforming
merchant ships into warships, a special agreement
was arrived at, at the Hague, in 1907^: but it
neither settled the question of whether such
transformation might take place on the high
seas, nor whether merchantmen so transformed
might during the course of the war be re-
transformed into merchantmen. Even the London
Conference on Naval War^ was unable to arrive
at any conclusion on the point. Let us mention
here also Art. 5 of the " Compact as to the
treatment of the enemy's merchant ships on the
outbreak of hostilities," by which no period
of grace is granted to ships " the structure
of which makes it plain that they are intended
for transformation into ships of war," and
Art. 8 of the " Compact concerning the Rights
and Duties of Neutrals in War at Sea," which
runs as follows: "A neutral Government is
bound to employ the means at its disposal
to prevent within its suzerainty the equipment
or arming of any vessel as to which it has
valid grounds to suppose that it is intended for
cruising or participation in hostile undertakings
against a Power with which it is at peace. It is

' Cf. also the arguments of Bars in " Maiz," 1907, p. 403.
^ Cf. also V. UUniann, pp. 506, 507.
* " Actes," pp. 340, 341.



ii8 CAPTURE IN WAR.

further bound to use the same supervision to prevent
any vessel intended for cruising or participation in
hostile enterprises, and that has been wholly or
partly equipped for military uses within its juris-
diction, from leaving its jurisdiction.

But all this is far from justifying the seizure of
the enemy's mercantile marine. At the beginning
of a war every Power will detain in harbour, with-
out exception, precisely those ships which count in
naval warfare, and will never let them reach the
high seas. It therefore stands to reason that,
broadly speaking, no ships which put to sea after
the outbreak of war are in any way used for such
purposes by the Power controlling them. Armed
merchantmen, however, can be seized by the enemy
even without applying the law of prize. To this it
cannot be objected that ships are mostly out of
port on the outbreak of war.

The distance to America, for instance, to which
steamers sail regularly, is not so great but that a
Power would have an opportunity of summoning
such ships to return on the approach of war.
Besides which, is the value of merchant ships turned
into men-of-war really so great as to justify the
destruction of an enemy's seafaring trade in order
to obviate their transformation? Is it not, moreover,
quite a matter of course that much fewer merchant-
men will be turned into auxiliary cruisers if the
right of prize is abolished ? For in that case the
great shipping companies can ply their trade on a
larger scale, and the State, out of consideration to



REASONS FOR RETENTION OF LAW. 119

the trade of the nation, will not take from them so
many vessels. Much care has recently been given
to the construction of special men-of-war for the
above-mentioned subsidiary purposes/ so that in
the near future assistance of this kind from the
merchant service will be a negligible, or less con-
siderable, factor.

In order that the possible transformation of
merchantmen into cruisers might be no reason for
abrogating the right of prize, Holland, in 1907,^
made the proposal that only ships which carried a
certificate from their country of origin that they
would be put to no military uses should enjoy
exemption. But this met with no acceptance
because the advocates of the right of prize are
moved by considerations quite other than the use
of merchantmen as cruisers.

VII. To justify the law of prize many authors
adduce the fact that in time of war ships often play
the same part as railways, i.e., carry coals and the
like. If, therefore, it is permissible in land warfare
to seize railways, that must also be the case in war
at sea. But this conclusion is not correct. It is
only necessary to remember that on land there are
quite other possibilities ofconveyance than railways,
which merely represent the quickest method of
transport and the one most suited to war. But
for traffic at sea carriage by ships is the only means
available. How different is the effect of the

1 Cf. V. Halle, " Mercantile Marine and Navy," p. 41.
'^ Prot. III., pp. 810 f/ seq.



120 CAPTURE IN WAR.

impounding of railways and of ships ! Moreover,
it is not permissible to defend the law of prize on
the plea of the slight possibility of some merchant
ships carrying coal, etc., to the fighting fleet.
The advantage which accrues to the enemy's fleet
by the conveyance of coal is too small in com-
parison with the great injury to commerce. Bonfils^
is therefore wrong when, asserting this reason, he
declares pathetically : " What more is needed to
justify the law of prize?" It must also be con-
sidered that in war on land only the seizure of
the railways is permitted, and they must be restored
when the war is over. How then can the seizure
of ship and cargo be defended ?

VIII. Numerous writers, such as Hautefeuille,
Ortolan and Westlake, justify the seizure of ships
by the argument that by capturing the crews the
enemy is weakened. This defence is futile. The
two things are entirely separate. Also we must
object, with Geffcken, to the contention on the
ground that the recruiting of merchant sailors
for the Navy is probably more successful when
the mercantile marine is forced to lie idle than
when, as before, it subserves commerce and traffic.
But recently this objection has been invalidated,
thanks to Art. 58 of the 1907 "Compact as to
certain limitations in the exercise of the right of
prize in naval war." For these lay down that
the crew of the enemy's ship may not be made

^ No. 1,331



REASONS FOR RETENTION OF LAW. 121

prisoners of war.^ With regard to citizens of
neutral States, Art. 5 lays down that the men are
to be set free at once, but the captain and officers
only when they have given a formal written under-
taking not to take service during the war on board
any ship of the enemy, whether merchantman or
man-of-war. To my mind, this decision is not
quite in order. The neutral officers should be
forbidden also to take service in the army of the
enemy. Satow very rightly declared, in 1907,^ that
" such officers must not enrol themselves under the
flag of a belligerent." I believe also that unless there
is a desire to observe only the letter of the compact,
there will be no warrant for the assumption that
this article allows neutral officers to enter the
enemy's land forces. Hence the written under-
taking extends to that as well. That this prohibi-
tion also includes service on board the enemy's
merchant ships is explained by the endeavour to
injure the enemy's commerce as far as possible.
It was at first desired that a similar pledge should
be exacted from neutral crews also, but this was
at last relinquished because, as Fromageot's report ^
says, the sailors would often be unable to realize
the extent of such a promise, and also because its
enforcement would be too difficult. It was at first

* Up to 1907 the making prisoners of the crew, as is also
insisted on in Prot. I., p. 26, was not unlawful. This is
contrary to Fitger, " The Reflex Effect of the War in East
Asia on International Law," p. 21, but must be maintained.

2 Prot. III., p. 959.

3 Prot. I., p. 268.



122 CAPTURE IN WAR.

desired that an oath should be exacted from the
officers. But this rule could not have been carried
out in practice in view of the variety of usages in
the various countries. It is, of course, open to the
capturing Power to recruit the neutral officers or
men for its own Navy.^

In the case of subjects of hostile Powers, by Art.
6 an assurance is demanded of the men as well
and the promise must in this case be to the effect that
during the continuance of hostilities they will not
accept any military duties connected with military
enterprises. Fromageot's report enumerates among
military enterprises " embarking on board a ship of
war, service on land in arsenals or land forces, or
any other services, military or naval." The enemy's
men and officers are not forbidden to serve on
board his merchant ships, because that vi^ould
deprive them of their means of subsistence. This
humane consideration overcame the principle of
injuring the enemy's commerce to the utmost. The
non-extension of the prohibition to this instance
lends the article its high practical significance. The
protocol makes special provision for cases in which
a seaman is unable to write. His undertaking is
then to be set down in writing before witnesses of
his own nationality and in presence of the captain.
Particulars of this instance were not included in
the regulations.

Fusinato and Satow proposed in 1907^ that in

1 Prot. III., 960.

2 Prot. III., pp. 958 et seq.



REASONS FOR RETENTION OF LAW. 123

accordance with the rules of land warfare officers
and men should be released on parole, but detained
if the laws of the hostile Power did not allow them
to give such an undertaking. This proposal fell
through. Kriege drew attention to the fact that
States with such laws as, for instance, Austria-
Hungary, would then be worse off, since their sub-
jects would not be released. These States, however,
would, if they wished to enjoy the benefit of that
decision, alter their legislation. It would therefore
have been best if they had pledged themselves in
that year to abolish the prohibitions concerning the
taking of an oath, as far as they still obtained, as
well as not wittingly to employ the released indi-
viduals for purposes of war. As a matter of fact,


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