ton, who declared it to be "our interest to narrow upon all occasions as much as possible the list of contraband."26

The order in council was afterwards modified, and full compensation for any losses occasioned by the seizures under it was obtained through the mixed commission under Article VII of the Jay treaty of 1794.

As has already been intimated, the distinction between what in very recent years has, in phraseology not altogether happy, been styled "conditional contraband," and articles absolutely contraband, never rested on logic, in the sense that it was imagined that "conditional con- i traband," which includes foodstuffs, was not of military value, potentially of even capital military value, to belligerents. Without undertaking to cover a wider range, one may readily find during the past three hundred years numerous situations in which the question of food supply in war was of capital importance; and yet, as has heretofore been observed, no one ever imagined that foodstuffs imported into a belligerent country could not be immediately consumed, or that the government could not or would not take for military use whatever it might need, whether imported or of domestic origin. The longaccepted rule, so clearly and forcibly reaffirmed by Lord Salisbury in 1900, that foodstuffs bound to a belligerent country could be treated as contraband only if it were shown that they were, at the time of their seizure, actually destined for the military forces, never was capable of reconciliation with a fancied belligerent right to seize whatever might possibly be useful to the enemy for purposes of war. A distinguished judge has lately quoted from a great legal oracle the classic statement that "the life of the law has not been logic; it has been experience.' "27 Had the rule been accepted on the supposition.

37

Works of Alexander Hamilton (Lodge's ed.), Vol. V. pp. 168-169. The Nature of the Judicial Process. By Judge Benjamin N. Cardozo: Yale University Press, 1922, p. 33.

that it could be reconciled with the right of a belligerent to seize as contraband whatever might be militarily useful to his enemy, it would have made a laughing stock of logic. In truth, the rule represented and has continued to represent a compromise between two claims, either of which, if carried to its logical conclusion, would have destroyed the other, being in this particular like most other legal rules. But it further represented and still represents the advance painfully made, through centuries of struggle, toward greater freedom of commerce in time of war.

In 1795, in the earlier stages of the wars growing out of the French Revolution, Alexander Hamilton had occasion to comment upon the argument that confiscatory practices were to be attempted, or even imitated, because the prevailing war afforded examples of them. The titanic conflict then raging was to endure yet twenty years, and with reference to its effect on established principles, Hamilton, speaking with the vision of a seer, declared:

"The present war of Europe is of so extraordinary a complexion, and has been conducted, in all respects, upon such extraordinary principles, that it may truly be regarded as an exception to all general rules, as a precedent for nothing. It is rather a beacon, warning mankind to shun the pernicious examples which it sets, than a model inviting to imitation. The human passions, on all sides, appear to have been wrought up to a pitch of frenzy, which has set reason, justice, and humanity at defiance."28

Is the recent great war to differ in its effects from previous great wars, in that extraordinary measures which hard-pressed belligerents, as the struggle grew more intense, adopted generally on the professed ground of retaliation, are to be considered as having changed the established law, and as having created in its stead a system essentially based on the concession of belligerent "Works of Alexander Hamilton (Lodge's ed.), Vol. V, p. 439.

pretensions? Is there reason to believe that the recent war will differ in this respect from the wars growing out of the French Revolution and the Napoleonic Wars, whose decrees and orders in council were regarded twenty years later only as the passing expedients of a contest desperately waged? Is it more likely now than it was a hundred or two hundred years ago that nations will find their general and continuing interests to be in accord with what they did in an exceptional exigency?

In reflecting upon the answer to be made to these inquiries, it is pertinent to consider the report, signed by the late Sir John Macdonell, on behalf of the British Maritime Law Committee, August 1, 1919, on the laws of naval warfare. In this report, made even less than a year after the conclusion of the Armistice, we find the distinction between absolute and "conditional" contraband preserved, with a right of "interception and requisition," conditioned upon payment of the value of the merchandise to the owner, substituted for the right of capture, which it is proposed shall be wholly renounced. This is, in effect, in different phraseology, the so-called right of preemption asserted in 1794, and previously, in mitigation of, or as a substitute for, the claim of belligerent capture which neutrals so firmly opposed; and it is needless to point out how incomparably more favorable it is, in principle and in practice, to freedom of commerce than the suggestion that a belligerent should "enjoy the right" to "intercept and condemn all articles capable of assisting the enemy," on the mere proof that they were "destined by land or by sea to the domain of the enemy." It is superfluous to point out that the concession to belligerents of a right to "seize and condemn" all articles "capable of assisting the enemy" would mean the virtual end of the right to trade with countries at war; for, by the very terminology of the subject, every article of commerce in the "conditional" list, which embraces the great

bulk of articles not distinctively military, is an article "capable of assisting the enemy." Is any government today proposing to go to such a length either in claim or in concession?

No less pertinent to these inquiries is the comment made by the late Sir Erle Richards, Chichele Professor of International Law at Oxford, who, but for his untimely death, would have been one of the representatives of his government on the recent Commission of Jurists at The Hague, by which rules of warfare for Aircraft and Radio were drawn up and adopted. The last paper he published was on the subject of contraband. After examining the practices and contentions of the various governments during the war, he concluded his review with this circumspect but significant statement:

"This final observation remains. The new conditions which have brought into being these new developments of international law have been the outcome of a world's war: that is, of a contest in which all the most powerful nations were engaged on the one side or the other, and in which, therefore, the force of neutral opinion was reduced to the lowest point. And, by reason of the fortunes of war and the geographical position of their enemies on the continent, it happened that the question of supplies by sea to the Central Powers assumed an importance beyond normal expectation. It may well be thought that the law of contraband as it stands today will be found appropriate to deal with neutral trade in other less extensive wars, if unhappily other wars there be. And if that be so, the argument for change loses proportionately in force."20

The continued existence of the distinction between articles absolutely and articles conditionally contraband is specifically recognized in the report of the Commission of Jurists on rules for Aircraft and Radio, signed at The Hague on February 19, 1923, by the representatives 20 The British Year Book of International Law, 1922–23, p. 16.

of the United States of America, the British Empire, France, Italy, Japan and The Netherlands.30

We often hear the raucous taunt that international law no longer exists, and if the rules of international law were paradoxically to be sought in its infringements, this taunt would not be wholly groundless. Great circumspection should therefore be exercised before conceding that old and established distinctions have either succumbed to 1 change or permanently fallen before the expedients hazarded by belligerents in a conflict desperately waged. Let us rather ponder the following well-considered judicial utterance, in an international case:

"A law may be established and become international, that is to say binding upon all nations, by the agreement of such nations to be bound thereby, although it may be impossible to enforce obedience thereto by any given nation party to the agreement. The resistance of a nation to a law to which it has agreed does not derogate from the authority of the law because that resistance cannot, perhaps, be overcome. Such resistance merely makes the resisting nation a breaker of the law to which it has given its adherence, but it leaves the law, to the establishment of which the resisting nation was a party, still subsisting. Could it be successfully contended that because any given person or body of persons possessed for the time being power to resist an established municipal law such law had no existence? The answer to such a contention would be that the law still existed, though it might not for the time being be possible to enforce obedience to it."81

But there are those who exhort us to discard the halfway measures, the feeble expedients, of the past, by which the peaceful propensities of peoples have been tricked and thwarted. Recalling the picturesque Rooseveltian

20 General Report, Art. 60, infra, p. 283.

81

Judgment of Acting Chief Justice Sir Henry Berkeley, Case of the Prometheus (1906), Supreme Court of Hongkong, 2 Hongkong Law Reports, 207, 225.