T..

Germany of the right of capture, so long, at any rate, as England is a probable enemy. This may perhaps be taken as symptomatic of a continuation of that change in the attitude of German writers towards the right of capture which accompanied the rise of Germany to naval power. It may be surmised that a similar change of opinion will take place in the United States now that that country has relinquished its attitude of aloofness from world-politics and is becoming one of the first of naval powers. A writer in the American Historical Review' for April 1917 hints at the growth of such a change in opinion. Speaking of the failure of the United States in 1907 to procure an alteration in the law on this subject, he says, 'The defeat . . . was viewed by many of our naval officers with unconcealed delight; in 1856 we had a large merchant marine and no navy, in 1907 we had a large navy and a small merchant marine.' Is the enlarged American fleet, we may ask, intended, so far as attack is concerned, to be no more than an accessory to land-operations in an enemy's country? If the United States was at war with Mexico, would it allow the seaborne commerce of its enemy not only to continue as before but to be swollen by the novel demands of war? Would it grant a free passage through the lines of its fleet to German shipping laden with goods for its enemy because the cargo was to be discharged in San José?

The present war has taken most of the force out of the three arguments on which the advocates of the abolition of the right of capture are wont to rely. One of these arguments is that the capture of private property at sea is incompatible with the recognised distinction between combatants and non-combatants. This argument is implied in Franklin's letter cited above, but it does not hold now that war is no longer waged by professional soldiers only and has become a struggle between all the forces, military, economic, and moral, of the hostile peoples. Men and women working in a Lancashire cotton mill in order to produce cloth to be sold abroad so as to support our foreign exchange,' said a writer in The Nation' (London), July 14, 1917, are contributing to fight the war as much as those who are at the front.' How, then, could immunity be claimed for the British ship which brings the raw cotton from New Orleans to

Liverpool or that which carries the finished product from Liverpool to Calcutta?

Another argument for the abolition of the right make war on private shipping is that commerce-destro ing can never have a decisive influence on the issue a war; there is, however, reason to believe that only th superb devotion and resourcefulness of our navy save us from furnishing a lamentable illustration of the wea! ness of this argument. The remaining argument-th private property should be respected at sea because it respected on land*—is not likely to be urged after t recent experience of Belgium, France, Serbia, Russia al other countries. On the other hand, the present war h produced-from the standpoint of British interests-o new argument in favour of the proposed reform. private shipping is no longer to be captured mere because it is enemy property, destruction by submari without warning, at any rate outside a prohibited are would be doubly illegal. Without the right to captu enemy merchantmen,' Triepel admits (p. 23), 'the whc of our U-boat warfare would have been impossible, would in all cases have been robbed of its strongest leg basis.' Subject to one condition, this novel argume might indeed deserve the consideration of our statesme that condition is that the creation of a prohibited ar (Sperregebiet) in the open sea by means of mine and su marine should be declared illegal by all States.

The demand for the Freedom of the Seas in time war for private enemy property covers not only enen shipping but also enemy goods on neutral vessels. In letter written by Franklin two days after that referr to above he says (loc. cit.), ‘I am for respecting the ship (i.e. neutral ships) as the house of a friend, though co taining the goods of an enemy.' At that time, 1780, tl position was as follows. England adhered to the o rule of the Consolato del Mare that enemy property w

* It has been pointed out in recent discussion that different conside ations apply to private property in an occupied country (say, clocks in château or machinery in a mill) from those which apply to an enemy private property which is on the sea in connexion with commerce (h ships and his cargoes); the latter kind of private enemy property, unlik the former, is being actively used for building up his economic strength and is therefore a fit object of capture.

་

confiscable everywhere; and she took it out of neutral ships, without, however, condemning the neutral carrier. France, who until a year or two previously had adopted a more stringent rule, not only seizing enemy property on neutral ships but also condemning the neutral carrier and the rest of the cargo, had just accepted the principle, long contended for by the Dutch as the carriers of Europe, that 'free ships make free goods.' France thus won the favour of neutrals at the cost of a small sacrifice; and it was in assertion of this principle that some years later she inscribed on her banners the words, directed against England, Liberté des mers.' So matters continued until the Crimean war. For the purposes of that war England accepted the French doctrine as part of a wider compromise, so as to secure uniformity of action with her ally; and this with the less reluctance that the st common enemy, Russia, was a country with such limitless internal resources that the confiscation of her goods when found on neutral ships would have been but a scratch. After the war, however, the temporary compromise took permanent shape in the Declaration of Paris of 1856. In the extraordinary manner described by Mr Gibson Bowles in his book on the subject and, more recently and in the light of fresh information, by Sir F. Piggott in articles in the Nineteenth Century,' Great Britain accepted a curtailment of the right, on which she had so long insisted, to capture all enemy cargoes at sea on all ships and whatever their destination. She assented to the proposition that a neutral flag protects enemy goods: 'Acte grave,' says M. Dupuis (op. cit., p. 69), ‘fait pour étonner.' Grave indeed, and not to be erected into a precedent for the further surrender of a belligerent's right to strike at his enemy's trade, but less grave than it appeared because of the qualification 'except contraband of war.'

Subject, then, to the derogation from the common law of maritime war thus constituted-whereby an enemy's goods, if innocent, may be carried on a neutral ship without liability to capture-the conclusion at which we arrive is that war deprives each belligerent, as regards his enemy, of all freedom of the seas in every sense which can reasonably be given to that expression. This is indubitably so as regards public ships; and, as Triepel

says (p. 40), 'war on an enemy's trade cannot be abolishe without abolishing sea-war itself.'

What, next, about the Freedom of the Seas as regarċ neutrals? Those who demand that neutrals should enjo the same freedom in time of maritime war as in time peace implicitly make two assertions. The first assertic is that a belligerent is not to aim any blow at his enem which impairs a neutral's right to sail and use the sea safety. This, by itself, would suffice to render sea-wi as hitherto known impossible; for it would not on abolish Blockade, but would also prevent a naval batt being fought in any part of the open sea where a neutr ship might be or wish to come. The second impli assertion is that a belligerent is not in any way to inte fere with a neutral's maritime dealings with his enem even when those dealings add to the fighting streng of the enemy community and nullify the pressure means of which the belligerent aims at victory. Th would abolish Contraband; would enable a neutral, eve between the lines of a belligerent squadron, to transpo in the interests of its enemy all manner of noxio persons (e.g. enemy reservists or sedition-mongers) ar of noxious articles (enemy despatches or seditious liter ture); and would keep open to the enemy under a neutr flag those seas which a belligerent may have closed him under his own flag.

These considerations are enough to show that se war must inevitably curtail* the Freedom of the Se for neutrals. Experience, further, shows that th tendency is ever to curtail it more and more. Thus, regards the blows which are aimed primarily at a enemy but indirectly prejudice neutrals, the Hague Co ference of 1907 allowed--with disastrous consequence and against the protest of Great Britain-the use mines in the open sea; and, as regards the restraint which war entitles a belligerent to impose on a neutr

This curtailment involves the exercise of the belligerent right of Vis and Search; it might be possible to minimise the inconvenience th caused to neutral shipping by a system of consular certificates issued at th port of departure, especially if supplemented by the presence of a repr sentative of the belligerent on board the vessel during the voyage, as w sometimes the case on a cartel-ship.

directly, we may refer to the prohibition imposed in the Russo-Japanese war on the use of 'wireless' by neutral ships when in the 'war-zone.' This tendency has been intensified in the present war. Under cover of reprisals desperate combatants have resorted, as in the Napoleonic wars, to desperate measures, whereby the neutral has suffered not only in his intercourse with belligerents but also in his intercourse with other neutrals.

On the one hand, the industry and sea-borne commerce of Germany have been stricken, under the Embargo of the Allies, by measures, affecting neutral shipping and the import and export trade of neutral ports, which could find no warrant in the ante-bellum law of Contraband and Blockade; and, in furtherance of this Embargo, the Allies, by means of their control of coaling and banking and other facilities, and by the issue of sea-passes and certificates, have compelled neutrals to submit their shipping to an unprecedented system of supervision and regulation. On the other hand, neutral shipping has been subjected in all parts of the sea which the German Admiralty chose to declare versperrt, and not in those parts only, to the peril of destruction by mine and submarine. Involving, as it did, not only the destruction of neutral ships, without proof of any conduct which up to that time would have been ground for condemnation as prize, but also the killing of neutral citizens, this was an innovation which differed in kind and not merely in degree from any form of pressure brought to bear on neutrals in any previous war. The innovations first-named were interferences with neutral freedom on the seas of the same order as Visit and Search, and Blockade, and seizure of Contraband; but the last-named innovation broke entirely new ground n its wanton defiance of the neutral's right to safety in ife and limb. It is no good to blink the facts of the

Destruction at sight and in lieu of capture had never been deemed dmissible even in the case of a ship detected in the act of running a Mockade. If the claim of Germany that belligerent necessity overrides all ther considerations be sound, how comes it that the right to sink a lockade-runner at sight was denied in the law which regulated sea-war efore she became a sea-power? Prof. Soley, in The Navy in the Civil far' (New York, 1885), tacitly admits that the old rule was as just stated. le says (p. 165), It is a question whether, in a blockade so persistently roken as that of Wilmington, the ordinary rules of action for belligerent