EXEMPTION FROM CAPTURE
'55
EXEMPTION OF PRIVATE PROPERTY AT SEA FROM CAPTURE By EDWIN MAXEY THE United States has for nearly a the English, which, because of the strength century contended for the principle of of its navy, feels that it would be poor policy the exemption from capture of ail private to give up the means of crippling an enemy property at sea, contraband excepted. The which the present rule affords. Yet England acceptance of this principle by the powers may come to see that the present rule cuts of Europe was urged by Secretary Marcy both ways, as it would tend materially to when the United States was invited to adhere cut off her food supply during a war between to the declaration of Paris. Yet for some her and a country possessing a reasonably reason his counter-proposition was rejected. strong fleet of commerce destroyers. The In 1870 Mr. Fish urged the acceptance of change would render the cutting off of her this "as another restraining and humanizing supply of food and raw materials for manu influence imposed by modern civilization facture impossible, except by a blockade of on the art of war." The following year a her coast. Therefore, selfishness, which, it treaty was concluded between the United is claimed by England, is the motive which States and Italy embodying this principle. has impelled the United States to champion It has also been applied by Prussia and the new rule, may yet impel England to Austria, and accepted in principle by Russia, abandon the old. provided it was accepted by the other states That England is gradually coming to this of Europe. But it cannot as yet be said to opinion is shown by the conclusions of the be a part of international law. The reason Royal Commission appointed in 1893 for the ableness of the rule, together with the fact purpose of investigating the question of the that it has been successfully applied to war supplies of food and raw material during a fare on land among all civilized nations, will naval war. These, they concluded, were undoubtedly secure its extension to warfare endangered in the following ways : " (i) The on sea. It is true that certain very able seizure by the enemy of ships and cargo writers, particularly Hall, argue for a con belonging to this country; (2) The possible tinuance of the present rule; but their argu establishment of a blockade of our coasts; ments are by no means conclusive. The and (3) The possibility that certain food gist of the arguments of this school is that stuffs might be held by certain nations to the present rule is the established law, that come under their definition of contraband." it is not as bad as confiscations of private Of these, they considered the first to be property on land, and no worse than some by far the most important; and upon this other things now practiced in war. This, basis a very respectable minority reached the however, does not touch the real question, logical conclusion that "if the proposed which is, Would the exemption contended conference were to result in the abrogation for be a substantial improvement over the of the existing rule, all the difficulties we present rule? That it accords with the have been instructed to consider would dis theory that war is a conflict between states — appear, and all proposed remedies would a theory that has contributed much toward disappear. In our opinion the evidence ameliorating the harsh conditions of war — laid before us tended to show that the rule does not admit of doubt. The'nation'which no longer does, if it ever did, subserve the stands the most in the way of'a change is real interests of this country. We desire
