submitted with the recognition that they are likely to be modified by the circumstances of an actual state of war. On the other hand, the alignment of friends and enemies in the present war is not to be regarded as a proper basis for general conclusions as to the advantages and disadvantages of capture for the separate states involved.

(2) If Great Britain is the only Power which may count upon ultimate supremacy at sea in any probable war, other countries may regard capture, used as an offensive weapon for the destruction of British commerce, as of sufficient effectiveness to compel a considerable rise in British freight and insurance rates, and an appreciable transfer of British cargoes to the neutral flag. Germany, France, the United States and Japan each possess the requisite naval strength to interrupt British commerce and cause appreciable loss before the seas could be cleared of their cruisers. The United States, with a small body of shipping to protect, might be able to maintain sufficient strength at sea to be a continuous menace to British commerce. As navies and mercantile marines now stand, the balance of advantage would remain with Great Britain. In the present war it seems that her commerce has had more to fear from the lack of ships requisitioned for military uses than from losses by capture and destruction. The fate which overtook the few German cruisers found at sea by the British navy has evidently been regarded by the Germans as too high a price to pay for the advantages of the destruction which similar expeditions of theirs might cause to British shipping. Excepting those of the United States, Great Britain is undoubtedly in a position to bottle up the ports of her possible opponents as she has done in the present war, thereby rendering their fleets ineffective through forced inactivity or through destruction, and it is not inconceivable that in the end she could bring the same pressure to bear upon the United States. At the same time she can diffuse the isolated losses likely to result from new methods of attack directed against her widespread foreign trade and prevent the undue rise of insurance rates, as she has done in the present war, by a system of state insurance of ships and cargoes similar to that now in operation in Great Britain. 12 The war appears to demonstrate that so long as

12 The Times, London, August 4, 1914, p. 2.

Great Britain retains her maritime supremacy, she need not fear the transfer of her cargoes to the neutral flag. And since Parliament has made it a criminal offence to treat contracts of insurance upon the ships and cargoes of alien enemies as "debts of honor," British insurance companies will undergo losses due to the exercise of the right of capture upon the property of the enemy by British warships only when they have reinsured neutral companies, which have taken risks on captured property.13

On the other hand, the advantages which Great Britain's opponents might have drawn from the legal immunity of enemy goods under neutral flags have not been realized, but have been rendered illusory by methods which have been sufficiently discussed on previous pages. Thus, whereas the right of and limitations upon capture have been of no military value to the Central Powers, to Great Britain the right of capture has been the nucleus about which she has developed her system for the control of enemy trade, while evading the limitations upon that right.

(3) Alone among the great Powers, Great Britain depends for a sufficient food supply upon her ability to import by sea. To her, therefore, the right of capture presents, in this respect, a peculiar danger, a fact which she has used with good reason as an argument in justification of her claim that maritime supremacy should be hers of right. Because, however, of the protection afforded by her navy, the effects of the right of capture upon prices of food in Great Britain have not been important enough in the present war to affect the strategic situation. By keeping the seas open, the Allies have been able to import foodstuffs at will, so that the continued high prices in France and the United Kingdom are to be credited principally to other factors than the liability of French and British vessels to capture.14 At the same time, so strict has been the Allies' blockade of

13 See, for contrary views upon the question of the illegality of payments by British insurance companies to alien enemies, a leading article in the Manchester Guardian, July 4, 1913, which deals with a statement of Sir Edward Beauchamp, Chairman of Lloyd's, to the effect that "all such contracts will be faithfully carried out during war as in time of peace," and an article by N. Bentwich, Trading with the Enemy," this JOURNAL, Vol. 9 (1915), pp. 352–372.

66

Ed., "Trade in War Time," The Political Quarterly, No. 7, March, 1916, pp. 99-121.

German and Austro-Hungarian ports, and their supervision of trade to adjacent neutral ports, that Germany was compelled early in 1915 to place under government control the distribution of the supply of grain and flour.

It is fair to assume the possibility of conditions in which, being confronted by a combination of maritime Powers of greater strength, Great Britain would find the harassing of her commerce in food supplies much more inconvenient, in fact extremely dangerous. War with a country possessed of a large fleet and ordinarily the source of a large part of British supplies of grain and meat would present such a situation. It is obvious, however, that only by a blockade of her ports could Great Britain be starved into submission. So that while the possible shortage of foodstuffs is for Great Britain the most serious element in the question of capture, it is more to be feared as an influence tending to excite panic than as one likely to become an actuality of sufficient importance to compel discontinuing military operations.

(4) The relation of the question of capture to contraband, blockade, and continuous voyage was dwelt upon at the Second Hague Conference. The recognition of the results of practice during the previous fifty years prevented the delegates of certain Powers, to which immunity was desirable in principle, from voting in favor of a proposal which they knew would be ineffective in practice. Boeck had foreseen the difficulty when he wrote: "It is useless to establish the principle of the inviolability of private enemy property at sea in positive international law, if the limitations which contraband of war and blockade impose upon that principle must be aggravated beyond measure by the doctrine of continuous voyage." 15

The extended application of the concept of blockade, with its modern corollary, continuous voyage, present special advantages to Great Britain as being the means whereby she can use her superior naval power to offset the advantages of overland importation which continental states enjoy. To Great Britain the right of capture would be reduced, if the application of the principles of blockade and continuous voyage were rendered impossible, to the smaller value which 15 Charles de Boeck, op. cit., p. 695.

it has for France or Germany or the United States. On the other hand, the abolition of contraband is favored in England, since that would assure to Great Britain supplies of food and munitions.

To continental states the abolishing of capture is a desideratum in itself (since the presumption must be that the British navy will always be able to do a proportionately greater amount of injury through capture than will its opponents), but one more to be favored if blockade is simultaneously outlawed. To render shipping invio

lable on the high seas would be to perform a service of small value to Germany or France so long as a hostile blockade could be placed in operation, not only before their own ports, but virtually also before the ports of neighboring neutral countries.

The reluctance of continental Powers to consent to the abolition of contraband is likely to diminish in view of the tendency to regard the destruction of prizes as the normal alternative to be adopted by a belligerent whose opponent has gained practical command of the sea. Under a regime of destruction the non-contraband character of neutral goods carried under the British flag is a matter of indifference to the captains of hostile commerce destroyers. Should any considerable bulk of British commerce come to be carried in foreign vessels, the possibility of profitable destruction would proportionately decrease, and with this the interest of continental states in a contraband list that should contain foodstuffs and raw materials would again increase.

The contraposition of the major interest of Great Britain in the abolition of contraband and that of the continental Powers in the abolition of blockade appears to present the opportunity for a compromise which would render it possible to abolish capture with the reasonable expectation that such action would have practical effect. The outlook is the more encouraging in that the Second Hague Conference did not discuss the ways and means of meeting the difficulty which the continuance of contraband and blockade would place in the way of any attempts to render the abolition of capture effective. (5) The history of the steps by which inviolability has been secured for certain classes of private property in war at sea has always illustrated the conflict between belligerent and neutral interests. At

no time since the Declaration of Paris, by which the neutral flag was permitted to cover any non-contraband cargo, have neutrals been able to render secure the validity of this safeguard. The sincerity with which they have upheld the law when neutrals has been belied by their actions when themselves at war. Even when, as neutrals, they have protested successfully against encroachments, they have not hesitated when themselves belligerents to extend the practice of the same or similar limitations upon neutrals.

The British argument at The Hague in 1907 presented the abolition of contraband as a measure that should be taken in the interest of neutrals. During the present war Great Britain has exhibited a willingness to preëmpt rather than confiscate conditional contraband; similarly she has requisitioned enemy goods and released neutral goods captured while destined to blockaded ports. If it must be admitted that the belligerent who extends the contraband list and enforces the principle of continuous voyages is acting within his rights as interpreted under the necessities of modern warfare, these moderations of penalty are demanded in the interest of neutrals and are to be regarded as the logical corollaries of the expansion of the belligerent field of action, and it should be within the province of neutrals to assure their permanence.

The publicists of all countries urge consideration for neutrals, dwelling upon the economic interdependence of states and pointing out that the danger of making enemies of neutral Powers increases directly with the amount of interference with their trade. Great Britain has found it expedient to compensate neutral owners for the destruction of their innocent cargo with enemy merchant vessels, a standard of procedure which no other country has yet adopted. In the light of practice, however, the conclusion is inevitable that belligerents unfailingly have subordinated neutral rights to their own interests. The situation of the Declaration of Paris today demonstrates that in previous wars, as well as in that now being waged, neutrals have been inclined too readily to acquiesce in the progressive degradation of their lawful rights.

The investigation of practice and the evaluation of recent tendencies toward or away from immunity for private property from