亨利-梅因：国际法Lecture 5

that the uncertainty of this law gave rise to differences of opinion which might occasion serious differences and even conflicts， the plenipotentiaries at Paris， seeking to introduce into international relations fixed principles on the subject before them， declare that they have adopted the following summary of the rules which they wish to see carried into practice： First， privateering is abolished； second， the neutral flag covers enemy's goods with the exception of contraband of war； third， neutral goods， with the exception of contraband of war， are not liable to capture under the enemy's flag； fourth， blockades in order to be binding must be elective； that is to say， maintained by a force sufficient really to prevent access to the coast of the enemy. The net result shows that the rule， free ships make free goods， was adopted； but the other rule which has so often been coupled with it， enemy ships make enemy goods， was not adopted.

　　This Declaration was adhered to by all the Powers who had joined in the Crimean war， and it seemed for awhile that it would receive the assent of the whole of the civilized world， thus forming the first great example of a reform of the Law of Nations resting on the basis of expressly pledged faith instead of the older foundation of precedent and ancient rule. But on the Declaration being submitted to the United States， the Government of that country objected to the first article， 'Privateering is abolished.' A privateer is an armed private ship commissioned by belligerent sovereign to depredate on the commerce of his enemy， and rewarded by a share of the capture， which in recent times has amounted nearly to the whole of it. The reason given for the refusal of the United States by Mr. Marcy， the Secretary of State， was plausible enough.

　　'The United States consider powerful navies and large standing armies as permanent establishments to be detrimental to national prosperity and dangerous to civil liberty. The expense of keeping them up is burdensome to the people； they are in some degree a menace to peace among

nations. A large force ever ready to be devoted to the purposes of war is a temptation to rush into it. The policy of the United States has ever been， and never more than now， adverse to such establishments， and they can never be brought to acquiesce in any change in International Law which may render it necessary for them to maintain a powerful navy or large standing army in time of peace. If forced to vindicate their rights by arms， they are content， in the present aspect of international relations， to rely in military operations on land mainly upon volunteer troops， and for the protection of their commerce in no inconsiderable degree upon their mercantile marine. If this country were deprived of these resources it would be obliged to change its policy and assume a military attitude before the world. In resisting an attempt to change the existing maritime law that may produce such a result， it looks beyond its own interest， and embraces in its view the interest of such nations as are not likely to be dominant naval Powers. Their situation in this respect is similar to that of the United States， and to them the protection of commerce and the maintenance of international relations of peace appeal as strongly as to this country to withstand the proposed change in the settled Law of Nations. To such nations the surrender of the right to resort to privateers would be attended with consequences most adverse to their commercial prosperity without any compensating advantages. . .

　　'It certainly ought not to excite the least surprise that strong naval Powers should be willing to forego the practice， comparatively useless to them， of employing privateers， upon condition that weaker Powers agree to part with their most effective means of defending their maritime rights. It is in the opinion of this Government to be seriously apprehended that if the use of privateers be abandoned， the dominion over the seas will be surrendered to those Powers which adopt the policy and have the means of keeping up large navies. The one which has a decided naval superiority would be potentially the mistress of the ocean， and by the abolition of privateering that domination would be more firmly secured. Such a Power engaged in a war with a nation inferior in naval strength would have nothing to do for the security and protection of its commerce but to look after the ships of the regular navy of its enemy. These might be held in check by one-half or less of its naval force， and the other might sweep the commerce of its enemy from the ocean. Nor would the injurious erect of a vast naval superiority to weaker states be much diminished if that superiority were shared canons three or four great Powers. It is unquestionably the interest of such weaker states to discountenance and resist a measure which fosters the growth of regular naval establishments.'

　　It is at the same time to be remarked that this opinion， though intelligible， had not always prevailed， and that early in their history the United States had negotiated， through Benjamin Franklin， a treaty with Prussia in 1785 by which it was stipulated that in the event of war neither Power should commission privateers. On the other hand， an early president of the American Union， Monroe， had laid down that it was unworthy of civilised states to prey upon private property when in transit at sea. The result of the refusal of the United States to assent to the Declaration of 1854 was that this Declaration has not become part of the general law of other civilisations， for the assent of a state which is perhaps destined to be the most powerful in the world， and certainly the most powerful neutral state in the world， has been withheld from it. But the United States Government expressed its willingness to join in a modified form of the Declaration， if all private property at sea should be exempted from capture， as President Monroe had argued that it ought to be； and there is good reason to believe

that if the signatories of the Declaration would agree to this exemption of private property， the United States would withdraw their objection to the abolition of privateering.

　　The first article of the Declaration was invoked in a dispute which arose between the French and Prussian Governments， then at war， during the contest of 1870. The Prussian Government， soon to be merged in that of Germany， proposed to raise a volunteer navy. All German seafaring men were to over themselves for service in a Federal navy for the whole period of the then proceeding war. The French Government objected to this as a breach of the first article of the Declaration. They declared that it was a species of revival of privateering. Some writers， including Mons. Calvo， and to a certain extent Mr. Hall， have supported these views； but some conditions of the service proposed to be established， as for example the necessity for the volunteers wearing a uniform， the incorporation of the new force with the existing navy， and an oath to articles of war， seem to me to take these naval volunteers out of the class of privateers. As a matter of fact， the Decree was never practically acted upon.

　　It will be seen from the text of the Declaration of Paris， which is set forth above， that its rules do not apply in two cases： first， where contraband of war is carried in a ship； and next， in the case of a ship endeavouring to obtain entrance to a blockaded town. Therefore the law of contraband of war and the law of blockade are not touched by the reform under the Declaration of Paris， except so far as a principle long contended for is applied to blockades.

　　From the very beginning of International Law a belligerent has been allowed to prevent a neutral from supplying his enemy with things capable of being used immediately in war. Such things are called technically 'Contraband of War，' and may be condemned independently of all question as to the neutrality of the owner. The ship and cargo are taken into a port of the captor； the contraband is condemned in a prize court， but the fate of the ship itself varies. If the ship belongs to the owner of the contraband， or if the owner of the ship is privy to the carriage of the contraband， the ship is condemned； but not so if the ship belongs to a different owner， who knows nothing of the destination of the contraband commodities. This branch of International Law is complex and difficult， but it owes its intricacy and difficulty to one special question： what are the articles stigmatised as contraband？ From the very first， Grotius had laid down that things directly used in war —— for example， weapons —— were contraband. He also ruled that things useless in war， articles of luxury as he described them， were not contraband. But outside these categories there were a great number of things capable of employment both in war and peace —— res ancipitis usus —— and it is in regard to these that innumerable questions have arisen. Are articles of naval construction —— for example， the raw materials of sails and cordage —— contraband？ Do they become so at any particular stage of manufacture？ Are iron， brass， steel， etc. contraband？ Are coals and horses？ Are provisions contraband？ To these questions all sorts of answers have been given. In many special treaties the list of contraband and non-contraband commodities is given， and the practice of states is extremely various. On the whole the most general rule which can be laid down is that， with the exception of weapons or munitions of war， the contraband， or non-contraband， character of the cargo must depend on its destination， and on the nature of the particular war which is going on. The commodity most recently sought to be brought into the list as contraband is coal. England， the great exporter o

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