immune from capture, so long as they carry no contraband of war, and are not attempting to violate a blockade, is the assumption that the same rules should govern naval and terrestrial warfare. It is alleged that in war on land private property may not be seized and appropriated by a belligerent, and that the same rule ought to be extended to maritime war.

The most notable enunciation of this theory of the identity of the two forms under which war must necessarily be conducted occurs in the Berlin Decree of November 21, 1806, in which Napoleon asserts 'que le droit de la guerre est un et le même sur terre que sur mer'; from which he deduces, among other things, the consequence 'qu'il ne peut s'étendre ni aux propriétés privées, quelles qu'elles soient, ni à la personne des individus étrangers à la profession des armes,' etc. But the conditions of terrestrial and maritime warfare are by no means identical. In land-warfare the arena is usually the territory of one of the combatants; and the victor remains in at least temporary possession. In naval war the arena is the open sea, of which no one can take possession.

The conception of 'contraband,' absolute and conditional, is peculiar to maritime war; for the merchant who sells and transports arms and ammunition, or furnishes one belligerent State with clothing or food for its soldiers, so long as he effects the transport by land, cannot be interfered with by the other belligerent unless he tries to transport it through the territory belonging to or occupied by that other belligerent. The Convention respecting the Rights and Duties of Neutral Powers and Persons in case of War on Land,' signed at the Second Hague Conference, expressly says:

'A neutral Power is not called upon to prevent the export or transit, on behalf of one or other of the belligerents, of arms, munitions of war, or in general of anything which can be of use to an army or a fleet' (Art. 7).

This forms a vital distinction between the two kinds or departments of warfare. If a continental Power is at war with an adjacent State, the probabilities are that there will be at least one friendly neighbour from whom articles for use in war may be procured without limit or hindrance; as happened, for instance, during the Crimean

war, when Prussia, as is well established, supplied weapons to Russia.

When a continental Power is invaded by a neighbour, the invader takes possession of the means of communication, interrupts the ordinary operations of internal commerce between the occupied and unoccupied portions of territory, billets his troops on private householders, requisitions food, means of transport and any other article necessary for the use of his army, tramples down or ruins the crops on the line of march; and, whenever the opposing forces come into violent contact, private houses, whole villages even, may be set on fire and destroyed if necessary for the success of the operations. As Dr Wehberg says (p. 3):

'In the face of military necessity every other law of war has to give way, as, for instance, even the principle of the inviolability of private property. Where the assumption of military necessity exists, all measures, even the most extreme, are permitted.'

In maritime war the worst injury that can be inflicted by the stronger belligerent (apart from the destruction of his enemy's war-fleet in naval encounters) is to blockade his ports; capture and confiscate his merchantmen and their cargoes (so far as the latter are not proved to be neutral property), or shut them up in port; arrest and bring into port neutral vessels engaged in the transport of contraband of war for the use of the enemy; and, if a landing force is included among the means at his disposal, he may achieve the occupation of his enemy's colonies and settlements.

In terrestrial warfare, when the day of reckoning comes, the victor can demand either a cession of territory or the payment of a war-indemnity, or both. The defeated party, whose territory is occupied by his successful adversary, must submit to almost any terms in order to free the soil of his country from the presence of the invader. He may be crippled in his resources for many years to come by the burden of the war-indemnity. He may be deprived of important fortresses or other military positions necessary to his safety from future attack, and so remain exposed to invasion or the threat of invasion whenever he appears to be reorganising his

forces. He loses perhaps valuable mines or other sources of national prosperity; and long years may elapse before the ravages of war are made good. Moreover, populations are subject to be deprived of the nationality to which they are attached, with the alternative of migrating from their homes and sacrificing their property in order to retain it. No such consequences can ever follow from maritime warfare, unless in very exceptional circumstances.

In the case of defeat at sea by an insular Power, unless followed by a successful landing and invasion, the worst that can befall the vanquished belligerent is the loss of his war-fleet. His ports can be defended by mines or submarines or forts beyond the possibility of attack; his merchant-ships are in a position of security so long as they do not put to sea. The result then is simply that his sea-borne commerce is interrupted for a time. He loses no territory unless the victor has combined successful land operations with those of his naval forces. Except when his territory is occupied he cannot be compelled to pay a war-indemnity, because there is nothing to ransom. If naval warfare is to be deprived of one of its most efficient weapons, so much the more difficult will it be for the successful belligerent to bring the war to an end. The beaten party has only to sit still, and to wait until the burden of maintaining his superiority at sea wearies out his antagonist.

So much for the alleged identity of the laws of war by land and by sea, and of the effects which the two kinds of warfare respectively produce. The 'Regulations concerning the Laws and Customs of War on Land,' adopted at the Hague in 1899 and 1907, form the latest attempt to define the international law governing this matter by international agreement. Let us see what are their provisions affecting private property. By these regulations a town or place, even when captured by assault, may not be handed over to pillage; private property may not be confiscated; and pillage is formally prohibited. The occupying force may not levy contributions in money except for the needs of the army or the administration of the territory; no contribution can be exacted except in virtue of a written order and on the

responsibility of a commander-in-chief; and a receipt must be delivered in payment for all contributions. Requisitions in kind and services cannot be demanded of the inhabitants except for the needs of the army of occupation. Requisitions in kind are, so far as possible, to be paid for in cash; if not, receipts are to be given, and payment of the amounts due is to be made as soon as possible. All appliances, whether on land, at sea, or in the air, adapted for the transmission of news or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and generally all kinds of munitions of war, may be seized, even if they belong to private persons, but must be restored and compensation arranged for when peace is made.

Pillage, i.e. the appropriation of the personal effects of private individuals, is of course equally prohibited in naval warfare; but cargoes of merchant-ships are not the private effects of the persons in whose charge they are. In both kinds of warfare a broad line of distinction is drawn between goods used for trade, or stored for that purpose, and those which are really private, i.e. personal property. It is the appropriation of the latter which is prohibited, for the purpose of maintaining discipline. But commercial goods stand on a different footing, and on land are liable to requisition when they are accessible. Sir John Macdonell objects that....

'certain writers seek to make light of or nullify this point (i.e. the identity of private property at sea and on land) by declaring that a cargo of wheat which is on land private property somehow becomes when on sea public property. . . . This distinction, which is not very intelligible, appears to be unknown to economists or lawyers.'

We are not aware that any writer of repute has alleged that a cargo of wheat or any other merchandise which is on land private property somehow becomes when on sea public property.' What Admiral Mahan and others following him have argued is as follows:

'Property belonging to private individuals embarked in the process of transportation and exchange, which we call commerce, is like money in circulation. It is the life-blood of national prosperity, on which war depends, and as such is national in its employment, and only in ownership private.

To stop such circulation is to sap national prosperity; and to sap prosperity, on which war depends for its energy, is a measure as truly military as is the killing of the men whose arms maintain war in the field. Prohibition of commerce is

enforced at will when an enemy's army holds territory.'

And Professor Westlake observes that what is struck at is not primarily enemy's property, but the trade.' Mr Bowles reminds us in his recent book 'Sea Law and Sea Power' (p. 27) that the advocates of the innovation shrink from the application of their own principle to contraband of war, which is of course privately owned, 'thereby avowing what they too feel, that the test is not whether the property is private, but whether its transport is of material assistance to the enemy in the war.' We regret that space does not permit of our quoting more at length from this writer's first three chapters, which merit attentive study by all those who interested in questions relating to naval war.

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According to the Regulations above-quoted, receipts are to be given for contributions in money or kind, and payment is to be made as soon as possible.' There is no guarantee that these payments will ever be made. Possession may be taken of railways and rolling-stock, of canals and barges, of telegraphs, of carts, waggons, pack-animals, of arms and munitions of war, even if they belong to private persons; but these must be restored when peace is made, and compensation must be arranged for. The successful belligerent will certainly so fix the amount of the war-indemnity as to cover all these payments and compensations, so that the stipulation in question cannot be regarded as giving any real sanction to the view that private property is inviolable in land warfare. The war-indemnity itself is provided by taxes extracted from the savings of private persons. After the war of 1870-71, France paid to private persons an enormous sum in compensation for the damage done to their property during the war; but these persons themselves, along with others not directly injured, had to pay, through increased taxes, for the compensation. It seems clear that the so-called immunity of private property in terrestrial warfare does not and cannot exist. Thus the assump

* Quoted by Mr Corbett in 'Some Neglected Aspects of War,' p. 141.