of war.

inconsistent with the idea of war that there shall be immunity to the commerce of enemy or neutral subjects, which is a direct assistance to the purposes The brute law of self-preservation must always assert itself in the strife of nations; all that civilisation can do is to regulate it, and limit its operation to cases of real necessity.

International conferences and the growth of public opinion, it is hoped, may succeed in eliminating from belligerent practice every kind of wanton destruction and confiscation of private property, but they will hardly be able "to introduce a state of things not yet seen in the world, that of a military war and a commercial peace."1 Improvement in the near future should rather aim at a greater safeguarding of neutral property than at sweeping changes in the relations to enemy property.

The extent to which some Continental theorists press the sacredness of private property in their exposition of international law as it should be ("Droit des Gens"), almost brings their purpose into conflict with the other leading aim of the modern laws of war; which is to humanise national conflicts and to save unnecessary suffering and loss of life. To prevent a belligerent attacking the resources of an enemy as well as his armed forces is really to prolong the war, to increase the sacrifice of life, and to add to, rather than to diminish, the sufferings of national strife. Economical relations must always reflect a serious disturbance in the political world, and the attempt to avoid this consequence brings the supposed law into conflict with fact and makes it of no avail. War in its very nature involves violence, and it is impossible to make its economical conditions identical with those of peace. A code made in disregard of the violent character of belligerent action will not bind belligerents; it will rather lead to revulsion from a too-exacting law into ungovernable licence. There is a limit to the obedience of a belligerent to the rules of war in their relation to private property, and that limit is that they do not seriously interfere with his military necessity, or his effective power against his adversary. This is the limit fixed-if indeed

Cf. Lord Stowell in "The Maria," Snow, p. 518.

it has been genuinely reached-by the Hague laws of war on land; it is the utmost limit that should be aimed at in framing the laws of war on sea. To eliminate all unnecessary and wanton loss to private property of belligerent or neutral, to curtail all privileges of the combatant which inflict an injury on others out of all proportion to his gain-this is the true goal of reform in maritime warfare. If this is achieved at the next Hague Conference, naval war will be at least as humane as land war, and will show more concern to neutral rights of property; and the law will have some chance of becoming a true "light to the nations."

APPENDIX I.

THE HAGUE PEACE CONFERENCE, 1907.

AMONG the vœux, or pious wishes, which were passed at the Hague Peace Conference of 1899, and which suggest a part of the work that the approaching Conference will have to consider, are the following:

"The Conference expresses the wish that the question of the rights and duties of neutrals should be inscribed in the programme of a Conference to be held at an early date.

"With a few exceptions the Conference resolves that the following questions should be reserved for examination by future Conferences:

“(1) A proposal tending to declare the inviolability of private property in war at sea.

"(2) A proposal regulating the question of the bombardment of ports, towns, and villages by a naval force."

To this programme there will certainly be added the consideration of a code of the laws of war on sea.

APPENDIX II.

ENEMY CHARACTER AND DOMICIL.

At the end of the chapter on the Capture of Private Property at Sea, it was suggested that England and the United States might abandon their old position, by which domicil determines the fate of captured property, and adopt the French, and the general Continental, system, which makes nationality the criterion of enemy character. As the question will probably be discussed at the forthcoming Hague Conference, it will be well to investigate it a little more closely. The old practice of nations, and the practice which is still maintained by England, the United States, and Japan, is that all the inhabitants de facto of the enemy country, whether natural subjects or resident aliens, are enemies de jure, and that their property seized at sea may be confiscated as enemy property. Twiss gives the rationale of this practice :-"When the principle of territorial sovereignty came to be recognised by the nations of Europe as the basis for regulating their mutual relations as nations, the character of an individual for international purposes came to be regarded from a territorial point of view, and personal allegiance ceased to be an absolute criterion of enemy character. Under this system of public law, domicil has become the criterion of national character for purposes of war, and accordingly all natural-born subjects of a belligerent power who may have abandoned their native country, and acquired a domicil in a neutral country before hostilities have commenced, will have effectually clothed themselves with the character of neutral subjects, precisely as every natural-born subject of a neutral power will have clothed himself with the character of an enemy subject by long-continued residence, coupled with the intention of remaining in the enemy's territory."1

1 Twiss, Law of Nations, Vol. II. pp. 299–301.

Twiss gives, as an example of this rule, the case of a British-born subject resident in Lisbon, whose trade with Holland (then at war with England, but not with Portugal) was held innocent. (The Danous, 4 C. Rob. 256.) One exception, however, must be made to his statement. Long-continued residence is necessary to create domicil for ordinary civil purposes, but it is not necessary for the purposes of war. In this case the decisive point is the actual commercial use which the alien has made of his residence rather than its length. Professor Dicey states the distinction between civil and commercial domicil thus :— 1

"A civil domicil is such a permanent residence in a country as makes that country a person's home, and renders it therefore reasonable that his civil rights should in many instances be determined by the law thereof. A commercial domicil, on the other hand, is such a residence in the country for the purpose of trading there as makes a person's trade or business contribute to or form part of the resources of such country, and renders it therefore reasonable that his hostile, friendly, or neutral character should be determined by reference to the character of such country. When a person's civil domicil is in question, the matter to be determined is whether he has or has not so settled in a given country as to have made it his home. When a person's commercial domicil is in question, the matter to be determined is whether he is or is not residing in a given country with the intention of continuing to trade there."

The difference is neatly expressed in one of the Rules governing Maritime Prizes which were promulgated by the Japanese Government at the outbreak of the war with Russia (March, 1904):—“The domicil of an individual is the place where he has his permanent habitation; but for the trader the domicil is the place where he mainly carries on his commerce."

The old law, then, affixes enemy character to property according to the origin of the property rather than according to the personal disposition of its owner. If the goods do in fact form part of the commerce of the enemy State, it is immaterial to the other belligerent whether the owner is a natural or a de facto subject; for he is not attacking the private property of enemy subjects as such, but rather the commerce of the enemy nation. On the other

1 Dicey's Conflict of Laws, p. 737.