in such proceedings, thereby reversing the court below. Referring to the decision of that court, Justice Swayne remarked:

It is alleged that he was in the position of an enemy, and hence could have no locus standi in that forum. If assailed there he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and our civilization. We cannot hesitate to doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.

This decision was cited with approval in the recent British case of Merten's Patents,58 in which the Court of Appeals permitted an alien enemy to commence action on appeal. The court distinguished the right of bringing suit and the right of defending when sued. Although it did not sustain the appellee's contention that a provision of the Hague conventions 59 required a complete abandonment of all restrictions upon the legal status of alien enemies, and consequently affirmed the traditional view that such persons could not commence an original action, yet it admitted that an alien enemy could be sued, in which case he "could appear and be heard in his defense," and take all such steps as may be necessary for the proper presentment of his defense. To deny him these rights, said the court, "would be to deny him justice and would be quite contrary to the basic principles guiding the King's courts in the administration of justice."'60

In prize courts a similar tendency to admit alien enemies to a limited status in court has developed as an accompaniment of the exemption from seizure of certain types of enemy property at sea, required under modern international law.61 The extreme doctrine of the Hoop has undoubtedly been much limited in both Common Law and Admiralty courts by the progress of international law. The

58 In re Merten's Patents, Porter v. Freudenberg, Krelinger v. Samuels, 112 L. T. 313, 321 (1915).

59 Hague Convention, 1907, IV, Art. 23 (h).

60 For cases making other exceptions to the disabilities of alien enemies, see L. Oppenheim, International Law, 2nd ed., New York, 1912, 2: 133.

61 The Möwe, L. J. (1915), p. 57, this JOURNAL, 9: 547.

disabilities of alien enemies have been entirely removed in Germany,62 and remain to but a limited extent in France.63

In conclusion, it may be said that, while customary international law will generally be overruled when coming in conflict with definite written sources of municipal law such as written constitutions, statutes, and executive orders, the presumption will ordinarily exist that no infraction of international law is intended and such instruments will be interpreted in accordance with its principles. International law will furnish a basis for modifying judicial precedents in Great Britain and the United States, and in these countries, especially the former, prize courts assert an authority to ignore executive orders in conflict with international law.

QUINCY WRIGHT.

"The newspapers reported that on Feb. 15, 1916, the Reichsgericht handed down a decision upon an action commenced by a French citizen serving at the front, and appearing through attorney. The decision of the court below, declaring the plaintiff's patent right confiscated, was reversed.

63

Oppenheim, op. cit., 2: 133.

THE IMMUNITY OF PRIVATE PROPERTY FROM

CAPTURE AT SEA

THE history of the development of the law of maritime capture is a record of progress. Throughout the series of overlapping changes from the time of indiscriminate capture, changes which brought successively into operation the rules of hostile infection, of the Consolato del Mare, of free ships, free goods, and finally of the Declaration of Paris of 1856, the movement has been continuously in the direction of relieving neutral property owners from the strictures imposed upon them by maritime war. "In spite of the interruptions and temporary backward movements in all these various reforms of the law of capture, one cannot fail to trace the red thread which runs through them all: the tendency, advancing in spite of obstacles and efforts at resistance, toward exempting private life from the influence of war." 1

Nevertheless the failure to comprehend or the reluctance to accept the plain conclusions to be drawn from history tend to obscure the elements which at any given time enter into the question of immunity of private property in war at sea. It is easy to regard the establishment of partial limitations upon the right of capture as examples in evidence of a movement toward complete freedom of private property. This is especially encouraged by the existence of the principle of immunity in warfare on land. The advocates of inviolability for the ships and cargoes of maritime entrepreneurs proceed from the argument that war at sea should be assimilated in this respect to war on land to the assertion that the developments which mark the history of the law of capture constitute not only the beginnings of that assimilation but its practical realization in principle. Whether or not immunity for private enemy property rests upon. any fundamental postulate of international law will be considered 1 R. Kleen, Lois et Usages de la Neutralité, Paris, 1898–1900, II, p. 675.

hereafter. It is submitted that whatever may be the status of the principle of immunity in land warfare, in war at sea the rule of capture remains, subject to important limitations in the interest of neutrals and to relatively minor exceptions of certain forms of private enemy property. Neither of these classifications of restriction may be viewed as altering the question of principle. The latter is based upon special considerations of humanity for the advancement of science and art and does not raise the principal question. The former has reached legal standing not through the influence of a theory of protection for private rights per se, but through the continuous pressure of forces differently combined at different periods, among which theoretical dialectic is not to be overlooked, for the recognition of the rights of neutrals. At no period has there been a general acceptance among nations of the desirability of exempting enemy ships and enemy goods from the operation of the law of prize.

Immunity and neutral rights are entirely different questions when viewed from the standpoint of theory. The defence of inviolability for all private property at sea so far exceeds in difficulty that of exemption of neutral property as to preclude the drawing of any conclusions regarding the former from the establishment of the latter. But greater than the influence of theory has been the power of neutral governments to enforce observance of rights which they have at different periods considered to be lawfully theirs. The latest step taken by belligerents in acknowledgment of such rights is one which permits the transportation in neutral vessels, without fear of confiscation, of non-contraband cargoes owned by belligerents. The Dutch origin of this, the free ships, free goods principle; the record of its maintenance by the Armed Neutralities; and finally the voluntary incorporation of the principle by Great Britain in her rules. for the conduct of maritime operations in the Crimean War; render it impossible to regard this final advance as anything but a concession to neutrals.

The establishment of complete inviolability as a principle of maritime warfare remains, therefore, an ideal. The two avenues of approach to an adequate understanding of the present tendencies

toward or away from a realization of the ideal in practice are: (1) the appreciation of practice under the legal limitations upon capture that now exist and (2) the estimation of the present status of the movement for immunity.

Dealing first with the observance of the existing law of capture, attention is necessarily centered upon the second and the third rules of the Declaration of Paris. The latter of the two rules, which provides for freedom from confiscation for neutral goods on enemy vessels, may be the more briefly considered.

In placing his goods on board an enemy ship a neutral must anticipate the possibility of the capture of the ship and consequent loss of time and profit. Lengthened contraband lists, a feature of modern practice which will be considered immediately, affect such ventures as well as those upon neutral ships. The most serious though not peculiar liability which neutral cargoes undergo upon enemy vessels is one which follows upon the continuance of the ancient practice of destruction. While Great Britain maintains the rule of compensation for neutral property destroyed with enemy merchant vessels, the usual determination of prize courts has been in the contrary sense. Such decisions are based upon the law of military necessity and pay no heed to the logical alternative of compensation when neutral property, granted immunity from capture by the Declaration of Paris, has been destroyed. Although the right to destroy must be admitted, it appears reasonable to demand that the fact of the presence of neutral property on board be taken into account in the judicial determination of the degree of military necessity. Bentwich, however, goes further than is justified by the facts regarding the destruction of enemy ships conveying neutral goods, when he foresees the general destruction of enemy vessels should they be rendered legally free from capture. It is more probable that, if the ships themselves were not regarded as contraband, the practice would follow that now put in operation against neutral ships, which may be destroyed only upon justifiable suspicion of certain illegalities.

The increased importance of submarine warfare has emphasized 2 N. Bentwich, War and Private Property, London, 1907, p. 95.