38. Seizure of Private Property at Sea

The essence of the question involved in the seizure of “private property” at sea is transportation; and with three such conspicuous instances within a century its effectiveness is historically demonstrated. The belligerent state, in the exercise of a right as yet conceded by international law, says in substance to its adversary, “I forbid your citizens the maritime transportation of their commercial property. Articles of whatever character, including the vessels which carry them, violating this lawful order will be seized and condemned.” Seizure is made contingent upon movement; otherwise the property is merely bidden to stay at home, where it will be safe. All this is in strict conformity with the execution of law under common conditions; and the practice is now regulated with a precision and system consonant to other legal adjudication, the growth of centuries of jurisprudence directed to this particular subject. Its general tendency I have indicated by certain specific instances. It is efficient to the ends of war, more or less, according to circumstances; and by distributing the burden over the whole community affected it tends to peace, as exemption from capture could not do. If the suffering of war could be made to fall only on the combatants actually in the field, the rest of the nation being protected from harm and loss by the assured ability to pursue their usual avocations undisturbed, the selfishness of men would more readily resort to violence to carry their ends.

In support of the widespread effects of interruption to transportation, I gladly quote one of the recent contendents for immunity of “private property” from maritime capture. Having on one page maintained the ineffectiveness of the seizure, because individual losses never force a nation to make peace, he concludes his article by saying:

“The question interests directly and vitally thousands of people in every country. It is of vital importance to those who go down to the sea in ships, and those who occupy their business in great waters. It appeals not only to every shipowner, but also to every merchant whose goods are shipped upon the sea, to every farmer whose grain is sent abroad, to every manufacturer who sells to a foreign market, and to every banker who is dependent upon the prosperity of his countrymen.”

I can do little to enhance this vivid presentation by an opponent; yet if we add to his list the butchers, the bakers, the tailors, shoemakers, grocers, whose customers economize; the men who drive drays to and from shipping, and find their occupation gone; the railroads, as the great common carriers, whose freights fall off; the stockholders whose dividends shrink; we shall by no means have exhausted the far-reaching influence of this intermeddling with transportation. It is a belligerent measure which touches every member of the hostile community, and, by thus distributing the evils of war, as insurance distributes the burden of other losses, it brings them home to every man, fostering in each a disposition to peace.

It doubtless will not have escaped readers familiar with the subject of maritime prize that so far I have not distinguished between the interruption of transportation by blockade and that by seizure on the high seas. The first, it may be said, is not yet in question; the second only is challenged. My reason has been that the underlying military principle—and, as I claim, justification—is the same in both; and, as we are dealing with a question of war, the military principle is of equal consideration with any other, if not superior. The effect produced is in character the same in both. In efficacy, they differ, and their comparative values in this respect are a legitimate subject for discussion. In principle and method, however, they are identical; both aim at the stoppage of transportation, as a means of destroying the resources of the enemy, and both are enforced by the seizure and condemnation of “private property” transgressing the orders.

This community of operation is so evident that, historically, the advocates of exemption of private property from confiscation in the one case have demanded, or at the least suggested, that blockade as a military measure cannot be instituted against commerce—that it can be resorted to only as against contraband, or where a port is “invested” by land as well as by sea. This was Napoleon’s contention in the Berlin Decree; and it is worthy of grave attention that, under the pressure of momentary expediency, the United States more than once, between 1800 and 1812, advanced the same view. This I have shown in my history of the War of 1812. Had this opinion then prevailed, the grinding blockade of the War of Secession could not have been applied. If we may imagine the United States and the Confederate States parties to a Hague Conference, we can conceive the impassioned advocacy of restricted blockade by the one, and the stubborn refusal of the other. This carries a grave warning to test seeming expediency in retaining or yielding a prescriptive right. There is no moral issue, if my previous argument is correct; unless it be moral, and I think it is, to resort to pecuniary pressure rather than to bloodshed to enforce a belligerent contention. As regards expediency, however, each nation should carefully weigh the effects upon itself, upon its rivals, and upon the general future of the community of states, before abandoning a principle of far-reaching consequence, and in operation often beneficent in restraining or shortening war.

It has been urged that conditions have so changed, through the numerous alternatives to sea transport now available, that the former efficacy can no longer be predicted. There might be occasional local suffering, but for communities at large the streams of supply are so many that the particular result of general popular distress will not be attained to any decisive degree. Has this argument really been well weighed? None, of course, will dispute that certain conditions have been much modified, and for the better. Steam not only has increased rapidity of land transit for persons and goods; it has induced the multiplication of roads, and enforced the maintenance of them in good condition. Thanks to such maintenance, we are vastly less at the mercy of the seasons than we once were, and communities now have several lines of communication open where formerly they were dependent upon one. Nevertheless, for obvious reasons of cheapness and of facility, water transport sustains its ascendancy. It may carry somewhat less proportionately than in old times; but, unless we succeed in exploiting the air, water remains, and always must remain, the great medium of transportation. The open sea is a road which needs neither building nor repairs. Compared with its boundless expanse, two lines of rails afford small accommodation—a circumstance which narrowly limits their capacity for freight.

[It is shown that water transportation still plays an immense part in commerce, even in the case of inland watercourses in competition with railroads, and that any interruption of commerce throws a heavy burden on the nation involved.—Editor.]

Such derangement of an established system of sea transportation is more searching, as well as more easy, when the shipping involved has to pass close by an enemy’s shores; and still more if the ports of possible arrival are few. This is conspicuously the case of Germany and the Baltic States relatively to Great Britain, and would be of Great Britain were Ireland independent and hostile. The striking development of German mercantile tonnage is significant of the growing grandeur, influence, and ambitions of the empire. Its exposure, in case of war with Great Britain, and only in less degree with France, would account, were other reasons wanting, for the importunate demand for naval expansion. Other reasons are not wanting; but in the development of her merchant shipping Germany, to use a threadbare phrase, has given a hostage to Fortune. Except by the measure advocated, and here opposed, of exempting from capture merchant vessels of a belligerent, with their cargoes, as being “private property,” Germany is bound over to keep the peace, unless occasion of national safety—vital interests—or honor drive her, or unless she equip a navy adequate to so great a task as protecting fully the carrying-trade she has laboriously created. The exposure of this trade is not merely a matter of German interest, nor yet of British. It is of international concern, a circumstance making for peace.

The retort is foreseen: How stands a nation to which the native mercantile shipping, carrying-trade, is a distinctly minor interest, and therefore does not largely affect the question of transportation? This being maintained by neutrals, the accretion of national wealth by circulation may go on little impaired by hostilities. The first most obvious reply is that such is a distinctly specialized case in a general problem, and that its occurrence and continuance are dependent upon circumstances which frequently vary. It lacks the elements of permanence, and its present must therefore be regarded with an eye to the past and future. A half-century ago the mercantile marine of the United States was, and for nearly a century before had been, a close second to that of Great Britain; to-day it is practically non-existent, except for coasting-trade. On the other hand, during the earlier period the thriving Hanse towns were nearly the sole representatives of German shipping, which now, issuing from the same harbors, on a strip of coast still narrow, is pressing rapidly forward under the flag of the empire to take the place vacated by the Americans.

With such a reversal of conditions in two prominent examples, the problem of to-day in any one case is not that of yesterday, and may very well not be that of to-morrow. From decade to decade experience shifts like a weather-cock; the statesman mounted upon it becomes a Mr. Facing-Bothways. The denial of commercial blockade, the American national expediency of 1800, suggested by such eminent jurists as John Marshall and James Madison, would have been ruinous manacles to the nation of 1861–65. A government weighing its policy with reference to the future, having regard to possible as well as actual conditions, would do well before surrendering existing powers—the bird in the hand—to consider rather the geographical position of the country, its relation to maritime routes—the strategy, so to say, of the general permanent situation—and the military principles upon which maritime capture rests. In that light a more accurate estimate will be made of temporary tactical circumstances, to-day’s conditions—such, for instance, as set forth by the present Lord Chancellor of Great Britain. In his letter, favoring immunity from capture for “private property,” disproportionate stress is laid upon the dangers of Great Britain, the points which make against her; a serious tactical error. The argument from exposure is so highly developed, that the possible enemies whose co-operation is needed to secure the desired immunity for “private” property might well regard the request to assist as spreading the net in the sight of the bird; a vanity which needs not a wise man to detect. On the other hand, the offensive advantage of capture to Great Britain, owing to her situation, is, in my judgment, inadequately appreciated.

The writer has fallen into the mistake which our General Sherman characterized as undue imagination concerning what “the man on the other side of the hill” might do; a quaint version of the first Napoleon’s warning against “making a picture to yourself.” The picture of Great Britain’s dangers is overdrawn; that to her enemies—“the full measure of the mischief we could do to a Continental nation”—is underdrawn. It would seem as if, in his apprehension, “the disastrous consequences which would flow from even slight depredations by commerce destroyers on British shipping” could find no parallel in the results to a Continental trade from British cruisers. France or Germany, for example, shut off from the sea, can be supplied by rail from, say, Antwerp or Rotterdam; but it is apparently inconceivable that, in the contingency of a protracted naval war, the same ports might equally supply Great Britain by neutral ships. Alternate sea routes close, apparently automatically; only alternate land routes stay open. Thus undue weight is laid upon defensive motives, where the offensive requires the greater emphasis. The larger merchant tonnage of Great Britain involves a greater defensive element, yes; but are not defensive conditions favorably modified by her greater navy, and by her situation, with all her western ports open to the Atlantic, from Glasgow to Bristol and round to Southampton? And is not the station for such defense identical with the best for offense by maritime capture? The British vessels there occupy also a superior position for coal renewal; the difficulty of which for an enemy, threatening the Atlantic approaches to Great Britain, seems too largely discounted by imaginations preoccupied with hostile commerce destroyers.

The concluding sentence of Lord Loreburn’s letter contains a warning familiar to military thought. “Great Britain will gain much from a change long and eagerly desired by the great majority of other Powers.” The wish of a possible enemy is the beacon which suggests the shoal. The truth is, if the British Navy maintains superiority, it is to the interest of her enemies to have immunity from capture for “private property;” if it falls, it is to their interest to be able to capture. The inference is safe that probable enemies, if such there be, and if they entertain the wish asserted, do not expect shortly to destroy the British Navy.

While unconvinced by the reasoning, it is refreshing to recognize in this letter a clear practical enunciation which sweeps away much sentimental rhetoric. “I urge [immunity for private property] not upon any ground of sentiment or humanity (indeed, no operation of war inflicts less suffering than the capturing of unarmed vessels at sea), but upon the ground that on the balance of argument, coolly weighed, the interests of Great Britain will gain much from the change.” I more than doubt the conclusion; but its sobriety contrasts pleasantly with the exuberances, “noble and enlightened action,” “crown of glory,” and the like, with which it pleases certain of our American advocates to enwreathe this prosaic utilitarian proposition.

A possibility which affects the general question much more seriously than others so far considered, is that of neutral carriers taking the place of a national shipping exposed to capture under present law. This is one phase of a change which has come over the general conditions of carrying-trade since the United States became a nation, and since Great Britain, three quarters of a century afterwards, formally repealed her Navigation Acts. The discussion preceding this repeal, together with the coincident Free Trade movement, preceded by but a few years the Treaty of Paris in 1856, and gave an impulse which doubtless facilitated the renouncement in that treaty by Great Britain of the right to capture enemy’s property under a neutral flag. The concession was in the air, as we say; which proves only that it was contagious, not that it was wise. Like many hasty steps, however, once taken it probably is irreversible.

The effect of this concession has been to legalize, among the several great states signatory to the treaty, the carriage of belligerent property by neutral ships, in which previously it had been liable to seizure. In its later operation, the condemnation of the enemy’s property had not involved the neutral carrier further than by the delays necessary to take her into port, adjudicate the question of ownership, and remove the property, if found to be belligerent. Such detention, however, was a strong deterrent, and acted as an impediment to the circulation of belligerent wealth by neutral means. It tended to embarrass and impoverish the belligerent; hence the removal of it is a modification of much importance. Neutral shipping thus is now free to take a part in hostilities, which formerly it could only do at the risk of loss, more or less serious. To carry belligerent property, which under its own flag would be open to seizure, is to aid the belligerent; is to take part in the war.

In considering such an amelioration, if it be so regarded, it is possible to exaggerate its degree. If a nation cherishes its carrying-trade, does a large part of its transportation in its own vessels, and is unable in war to protect them, the benefit of the innovation will be but partial. Its own shipping, driven from the sea, is an important element in the total navigation of the world, and the means to replace it will not be at once at hand. Neutrals have their own commerce to maintain, as well as that of the weaker belligerent. They would not undertake the whole of the latter, if they could; and, if they would, they will not at once have the means. Steamships driven off the sea, and for the moment lost to navigation, cannot be replaced as rapidly as the old sailing-vessels. Moreover, neutral merchants have to weigh the chances of hostilities being short, and that the banished shipping of the belligerent may return in its might to the seas with the dawn of peace, making their own a drug on the market. In short, while the belligerent profits from a change which gives him free use of neutral ships, whereas he formerly had only a limited use, a considerable embarrassment remains. The effect is identical in principle and operation with that before indicated, as resulting from blockading a few chief harbors. A certain large fraction of transportation is paralyzed, and the work done by it is thrown upon ports and roads which have not the necessary facilities. It is as though a main trunk line of railroad were seized and held. The general system is deranged, prices rise, embarrassment results, and is propagated throughout the business community. This affects the nation by the suffering of thousands of individuals, and by the consequent reduction of revenue.

It would seem, therefore, that even under modern conditions maritime capture—of “private” property—is a means of importance to the ends of war; that it acts directly upon the individual citizens and upon the financial power of the belligerent, the effect being intensified by indirect influence upon the fears of the sensitive business world. These political and financial consequences bring the practice into exact line with military principle; for, being directed against the resources of the enemy, by interrupting his communications with the outer world, it becomes strictly analogous to operations against the communications of an army with its base—one of the chief objects of strategy. Upon the maintenance of communications the life of an army depends, upon the maintenance of commerce the vitality of a state. Money, credit, is the life of war. Lessen it, and vigor flags; destroy it, and resistance dies. Accepting these conclusions, each state has to weigh the probable bearing upon its own fortunes of the continuance or discontinuance of the practice. From the military point of view the question is not merely, nor chiefly, “What shall our people escape by the abandonment of this time-sanctioned method?” but, “What power to overcome the enemy shall we thereby surrender?” It is a question of balance, between offense and defense. As Jefferson said, when threatened with a failure of negotiations, “We shall have to begin the irrational process of trying which can do the other most harm.” As a summary of war, the sentence is a caricature; but it incidentally embodies Farragut’s aphorism, “The best defense is a rapid fire from our own guns.” For the success of war, offense is better than defense; and in contemplating this or any other military measure, let there be dismissed at once, as preposterous, the hope that war can be carried on without some one or something being hurt; that the accounts should show credit only and no debit.

For the community of states a broader view should be taken, from the standpoint that whatever tends to make war more effective tends to shorten it and to prevent it.