CHAPTER VII.

CAPTURE OF ENEMY'S PROPERTY IN NEUTRAL

VESSELS.

THE law of nations allows war for the resistance of aggression and the prosecution of a right, at sea as well as on land, and it consequently must and does allow the effectual prosecution of that war by the infliction of injury on the enemy through the capture of his property. For it allows the destruction of life and cannot therefore but allow the capture of property. If it allows the taking of life it must allow the taking of property. Nor has there ever been, nor is there any dispute that it does allow this.

But the point to be observed is this—that unless a belligerent may take his enemy's property out of neutral as well as hostile vessels, he is practically debarred from taking it at all; since his enemy can, and for the sake of avoiding risk undoubtedly will, ship his goods under the neutral flag so long as the war lasts. When this is remembered the importance of the point becomes at once apparent.

Let us first examine the reason of the matter, next consult the authorities upon it, and finally ascertain what the practice has been with regard to it.

The reason of the matter is this: A nation when at war has the right to injure its enemy, both in his person and in his property, wherever it can find him, and those only can contest this who contest the right

to go to war at all. A belligerent therefore has the right to inflict injury by capturing his enemy's property, for he has the right to inflict it by taking his enemy's life. But while this is admitted, it is said that the neutral has a conflicting right, the right, namely, to carry on his commerce as freely as he is accustomed to do in time of peace.

With this neutral right it is said the belligerent must not interfere any more than the neutral must interfere with the right of the belligerent. And, moreover, it is argued, the belligerent cannot interfere with it since a neutral ship is held to be neutral territory which cannot be violated.

Now if it were true that there were two rights, and if they conflicted as is said, there can be no doubt as to which of the two should have the preponderance. The belligerent has his existence, for that is the final stake in war, to defend; upon the exercise of his powers of offence depends his power to defend it, and just in proportion as he is shorn of these so is he brought near to destruction. Not so the neutral. He is secure since no man assails him; if his right be touched, nay, if it be overthrown altogether, no harm can come to him beyond a temporary loss of profit ending with the war which, if it be so, occasions it. And if it were true that a nation defending its existence by the exercise of a right must by exercising it cause a temporary diminution in the profits of a nation in no peril of its existence, the law of Reason and of Nature must allow and sanction the injury.

But the argument does not rest upon this ground. It rests upon the very nature of neutrality itself. Neutrality consists in standing utterly aloof from taking any part whatever in a struggle between

belligerents. It consists not in impartiality in the conflict but in abstention from it; and this shows us at once that a neutral cannot have any rights at all as a neutral; for no rights can accrue to him out of a conflict with which he has nothing to do. He retains the common rights that all nations have in time of peace; he neither does nor can gain any new rights; but he has also, arising out of the war, the obligation of his neutrality, which lies in this, that he must now exercise his common rights so as not to take any part in the war. He has no new rights, but he has a new duty, that of complete abstention from the conflict, and unless he fulfils that duty he ceases to be neutral.

It is undoubtedly true that the existence of war brings with it certain grave inconveniences to the neutral State, such as before it was not exposed to. It is debarred from entering blockaded ports, it is debarred from free trade with either of the belligerents in war materials, and it is held bound to exercise a diligent watch over its subjects to prevent them from taking active share in the war. These inconveniences and this duty are entirely new, and arise solely out of the state of war; yet by universal consent and practice, as well as by reason and justice, they are sanctioned and declared to be inevitable accompaniments of war. The rights of a State fighting for national existence are admitted and declared to be superior to the convenience of a State trading for individual profit, and no voice has ever yet been raised to claim that, in the instances cited, the convenience of the neutral should be preferred to the rights of the belligerent. The principle is therefore clear, that when a war arises even the common rights of the neutral are subject to limitation in their

exercise so far as that limitation has now become necessary from the new state of things, in order to secure that the neutral shall be neutral and shall abstain from the war.

But while in the cases cited the limitations of the neutral's common right in ordinary times have been admitted, accepted and established, a claim has nevertheless been set up that in one respect, and that the most important, his common right shall be, not merely exempt from limitation, but that by the very event of war which limits all others this shall be exaggerated and receive new and greater proportions than ever before it had. It is conceded that by the event of war, the neutral is bound by new duties with regard to his own commerce; but it is contended that he acquires new rights with regard to the commerce of the belligerents. It is allowed that he is bound henceforth to place new limitations on his own trade, but it is alleged that he is entitled to enjoy new privileges in the trade of the belligerents. It is admitted that he has no right to protect his own subjects or their property from the lawful operations of the war, but it is pretended that he has a right to protect the property of one belligerent against the other.

To this and to no less amounts the claim which has been raised, that a neutral has the right to carry belligerent property over the seas in time of war, and to secure it from capture by the cover of his flag. The question at once arises, whether this is in consonance with the duties of neutrality? A moment's reflection will show that it is a flagrant violation of them.

For it is a claim to extend to property of one or of both belligerents a protection which the belligerent

cannot provide himself. It is a claim to give to neutral bunting a force not found in belligerent arms. It is a claim, not to continue the exercise of the general right to trade peaceably, which existed before the war, but to protect and to transmit property liable to the effects of the war. It is a claim to a traffic which did not exist before the war and which is only made possible by it. It is a claim to withdraw belligerent property from belligerent risks for neutral profit. It is a claim, in short, to protect the most vulnerable part of one or of both belligerents, and therefore to take part in the war, which is the negation of all neutrality.

The right of a neutral to trade with a belligerent, though it has sometimes been denied,' cannot be contested; his right to security against injury in his own property other than contraband of war, even when taken to or brought from a belligerent port not blockaded, is not to be impugned. But that is very different from the claim set up that he shall be

1 "What De Witt himself thought of the rights of neutrals, "when his own country was belligerent, may be collected from "the famous placard published by Holland, in 1652, upon the "approaching war with England. Not content with interdict"ing all carriage by her own subjects of neutral property into "the ports and harbours of her enemy, she gives notice to "neutrals themselves, though in their passage to other neutral "countries, not to be found on the coasts of England, or its de"pendencies, on pain of incurring suspicion; and, if found to "be laden en partie ou entièrement de quelque munition de "guerre ou de bouche,' on pain of being brought into the ports "of Holland, and confiscated by the Dutch Admiralty.". Page 133, A Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs. By Robert Ward, Barrister-at-Law, in 1801. (Reprinted from the original edition by Lord Stanley of Alderley, 1875.)

1 12 Corps Diplom. XXXVII.