Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/206

INTEKNATIONAL LAW and America in 1871 was mors glorious to its promoters, and will be more fruitful of benefit to mankind, than fifty victorious campaigns. It is through the establishment of the principle of arbitration that we may ultimately hope to see the question of justice or injustice in war take its place among the topics of international law. Short of war, certain preliminary measures of hostility are recognized. These are "embargo," or the seizure in port of vessels belonging to a foreign nation with which we have a difference, in order to bring it to justice ; " retorsion," or retaliating on the foreign nation or its subjects, by similar injuries to those inflicted on us; and "reprisals," or the seizure of foreign property in retaliation for wrongs done to us. These are now of little importance. The right of " pacific blockade," i.e., the blockade of ports belonging to a nation with which we profess not to be at war, has been asserted in a few doubtful instances, but such interference ought to be treated as an act of war. A state of war transforms the nations engaged into two hostile camps, every man in either being the enemy of all in the other, and entitled to slay and capture as best he can. Such at least is the " natural " theory of war, which international law has reduced to much smaller proportions. First, hostile acts are strictly reserved for the soldiers or others acting under direct public authority ; non-combat ants are to be regarded as neutrals so far as actual warfare is concerned ; they must abstain from hostile acts, and they must be left unharmed by the enemy. Property taken in war belongs to the state, not to the individual captor ; and, on the other hand, subject to modifications to be pointed out hereafter, only the property of the state and not private property should be liable to capture. War is thus reduced to an open armed strife between two states carried on by means of a definite and unmistakable set of agents, viz., the fleets and armies. That the non-combatant por tions of the two communities should remain as though they were in a state of peace is the principle towards which international law appears to be tending. The movement against privateering is an illustration of this tendency. In wars carried on by land, non-combatants are as far as possible kept out of the sphere of operations, persons only under public military command being regarded as combat ants. In naval warfare it has long been recognized as a valid mode of conducting hostilities to grant "letters of marque" to private vessels, owned, manned, and officered by private persons. Its analogy on land would be a roving commission to private gangs of freebooters. These letters commission the privateers to prey upon the commerce of the hostile nation, the reward for their services being t the plunder they may chance to gain. The privateer may belong to a neutral nation or to the nation granting the commission. The practice is defended on the ground that it enables a power having weak naval resources to cope with a great naval power on sudden emergencies. On the other hand the loose discipline of privateer crews, and the fact that their object is simply plunder, are serious evils. The treaty of Paris of 1856 contains the famous declaration that " privateering is and remains abolished," and the adhesion of the United States to this principle would go far to make the practice illegal by the law of nations. Hitherto they have declined, preferring the more compre hensive policy of prohibiting the seizure of private property of all kinds by ships of war. This point conceded, the United States would assent to the abolition of privateering. Contracts entered into between the subjects of hostile states are void. Plights already created by contracts entered into before the war are not destroyed, but the remedy is suspended, an alien enemy having no redress in courts of law. All commercial intercourse between the tvro peoples is interdicted, according to the maxim that there cannot be at the same time " a war for arms and a peace for commerce." Partnerships between a citizen and an alien enemy existing before the war are ipso facto extinguished by the war. All nations, in fact, are agreed in pronouncing illegal during a time of war the ordinary commercial intercourse which prevails between them in time of peace. The principle extends to giving one of two allies a right to prohibit intercourse carried on with or without licence by the subjects of the other with the common enemy. Contracts for the ransom of captured property are valid by the law of nations, but may be and sometimes are restricted by the provisions of a municipal law. And a state may of course grant special licences to its own subjects to trade with the enemy. The effect of war on the persons and property of alien enemies within the dominions of the state, and on debts due to them by the state or its subjects before the war, has been greatly softened in modern practice. In strict theory the debts and property would be liable to confiscation, and the persons themselves to detention as prisoners of war. Such is the rule laid down by Bynkershoek, but later writers have held that the guarantees to a contrary effect contained in commercial treaties and even in voluntary declarations by belligerent powers have altered the law of nations on this point. This question was expressly decided in an important American case (Brown v. the United States), in which the supreme court held that the ancient rule still remained unimpaired as a right recognized by the law of nations, however much it might have been mitigated in practice. In that case, however, its exercise was held to require a special Act of Congress. The confiscation of debts and the confiscation of property seem to stand on the same footing, and in both cases it may be said that the law of nations has not yet formally recognized the rule established by universal practice. The Act of the Con federate Congress in 1861, confiscating all property and debts (except public debts) due to an alien enemy, may be taken as the exception which proves the rule. It has been unequivocally condemned, and was vigorously pro tested against at the time by Earl Russell as a violation of the spirit of modern law. Even the Confederate Act did not profess to confiscate public debts, and it may be taken as the settled rule of law that no state is justified in repudiating its own public obligations to the subjects of a state with which it may be at war. The laws and usages of actual war exhibit the same tendency to substitute a milder and more humane code for the unrestrained licence of earlier times. The inspiring idea of Grotius was in fact to introduce the spirit of law into the conduct of hostilities, to enforce the principle that there was a lawful as well as an unlawful way of waging war. Between the time of Grotius and our own the sphere of law in war has greatly widened. No nation claiming to be civilized would now venture to conduct a campaign otherwise than according to the rules of civilized warfare, unless against savages from whom no reciprocal treatment is to be expected, or rebels to whom they refuse the status of belligerents. Besides the influence of international law systematically studied as a science, and the general growth of humaner modes of life and action, a specific cause of this improvement in the law of war is the fact that battle is now for the most part the business of professional soldiers scientifically equipped, and accustomed to stringent disci pline. For the best historical view of this interesting subject we may refer to Mr Mountague Bernard s paper " On the Growth of Laws and Usages of War," in the volume of Oxford Essays for 1856. The actual laws and usages of civilized warfare can scarcely be brought within the scope of the present article, but we may refer to a summary of them contained in the