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tire proceeds while with public vessels the prize should be restored with one-tenth salvage. A statute of 1800,125 substantially embodied in the revised statutes of 1878, decrees salvage of one-eighth to the recaptors upon restoration of vessels to the original owner. The principle upon which restoration or condemnation is decreed in cases of recaptured vessels has been considered under obligations of abstention.126

The methods adopted for enforcing the obligations of naval forces, have been (1) punishment by court martial for violation of articles for the government of the navy, (2) assessment of damages by prize courts, (3) forfeiture of prize money. In addition to these legal methods of control the conduct of naval forces can be and is ordinarily controlled by executive action exercisable by the president as commander in chief and subordinate naval officers with delegated authority. The abolition of prize money has also been a measure tending toward the protection of neutral rights. The abolition of privateering with the stimulus which it gave toward disregard for the rights of merchantmen, by offering chances for personal gain, has called attention to the fact that prize money created a similar situation in the navy itself. There can be no doubt but that the quest of prize money acts as an incentive to the making of un justifiable seizures,127 and when it was allowed its forfeiture in case of unwarranted seizures was used as a means of enforcing observance of neutral rights among naval vessels. By the abolition of prize money and prize bounty the incentive toward illegal captures has been removed and the movement in the direction started by the abolition of privateering continued.

In the second Hague Conference of 1907, a proposal was made to abolish prize money,128 which was still given by all nations except the United States and Japan. It was not accepted, even the United States voting against it on the ground that the matter was a subject proper for local regulation and that it was not desirable to take emphasis from the broader question of abolishing the right to capture private property at sea which the United States was advocating. In the present war, Great Britain has by order in council abolished prize money, ,129 and it seems probable that in course of time it will be acted on internationally as was done in the case of privateering.

125 Act March 3, 1800, 2 stat. 16. The Act June 30, 1864, 13 stat. 306, 314, Rev. Stat. sec. 4652, leaves the determination of the amount of salvage to the court.

126 Supra, pp. 169 et seq.

127See Article by C. C. Binney, The latest chapter of the American Law of Prize and Capture, Am. Law Reg., Sept. 1906, and Editorial Comment, Am. Jour. Int. Law, 1907, 1;484.

128 Deuxième Conference Internationale de la Paix, Actes et Documents, 3 vols., The Hague, 1907, 3:1148. English translation of this proposal, J. Westlake, International Law, 2 vols., Cambridge, 1910, 2;313. Discussion of the "voeu” which was proposed by the French delegation, in the Acts and Documents, 3;792, 809, 842, 845, 206, 909.

12'Order in Council, Aug. 28, 1914, abolished prize money and established a prize fund to be divided among the whole navy at the end of the war.

See Norman Bentwich, International Law as applied by England in the War, Am. Jour. Int. Law, Jan. 1915.




In their dealings with neutral states, the rights of belligerent states are much in excess of the ordinary rights of states at peace. This is even more true in their dealings with enemies. The recognized rights of a belligerent against its enemy are so great that it sometimes seems impossible to define their limits at all. Yet the establishment of these limits is the purpose of the law of war. As soon as we recognize the existence of such limits to legal rights, we recognize the legal obligations not to exceed them. It is therefore possible to speak of the obligations of a belligerent to its enemy.

The obligations of states have been classified under the five heads, (1) abstention, (2) acquiescence, (3) prevention, (4) vindication, (5), reparation.

(1) Obligations of abstention can be made effective, for the most part, only by act of the sovereign authority of the state. In so far as this is true, municipal law can have no effect in their enforcement. As in the case of obligations of belligerents toward neutrals, the practice of prize courts does furnish a check upon the infraction of some of these duties. By legally adjudicating enemy property captured at sea according to the rules of international law, prize courts interpose between their own government and the enemy owner of the prize, thus compelling observance of the belligerent duty to abstain from confiscation of enemy property declared immune by international law. In this case, therefore, municipal law may aid in the enforcement of the belligerent's obligations of abstention.

(2) Acquiescence seems to be contradictory to the very nature of war. Non-acquiescence, the effort to overcome, appears to be the very essence of the relationship between belligerents. This is true so far as the belligerent state itself is concerned, but the duty of acquiescence is recognized as obligatory upon the non-combatant inhabitants of occupied territory. This duty obviously can not be enforced by the belligerent state claiming de jure sovereignty of the territory, but by the occupying belligerent who has de facto sovereignty. The law of the United States does, however, recognize the duty, in that it enforces ordinary commercial acts of individuals, not of direct aid to the enemy, which were performed in pursuance of this duty of acquiescence, even when contrary to the law of the United States. This duty, however, relates to the general subject of the succession of states and the rights of inhabitants of transferred territory which is considered in the chapters dealing with obligations in time of peace.”

(3) The obligations of prevention require a state to prevent certain acts by its officers of government and the inhabitants of its territory which would amount to infractions of international law. It is by enforcing these duties that municipal law can be most effective in enforcing international obligations. The belligerent state comes in contact with its enemy largely through its army and navy. Through municipal regulations preventing infractions of international law by such agencies, this obligation of international law may be made effective.

(4) Vindication, however, is foreign to the law of war. In. ternational law does not put a belligerent under an obligation to vindicate illegal acts by its enemy. It does, however, give him a right to retaliate to a limited extent. Retaliation is a right to vindicate, not a duty. The belligerent is, however, under an obligation not to carry retaliation beyond a certain limit.3 The limit is not fixed or enforceable by any authority. The legitimacy of any particular measure of retaliation is left to the discretion of the sovereign. Municipal law can not control it.

(5) Reparation should also theoretically be a duty of belligerents. Individuals of either belligerent state ought to be able to recover compensation for injuries due to illegal acts of the enemy state. In practice such a condition is impossible. The victor will

Thorington vs. Smith, 8 Wall. I, (1868).

Supra, pp. 62-63.
3The right of retaliation is recognized in Lieber's Instructions, art.

27, 28.

4It should be said, however, that there has been authority in British prize court decisions for the view that courts may refuse to recognize retaliatory measures of their own government so far as they injuriously affect neutrals. See The Recovery, 6 Rob. 348, (1807); The Minerva, (1807) Life of Sir J. Mackintosh, 1:317; Phillimore, Int. Law, 3; section 436; Holland, Studies in Int. Law, pp. 197-198.

gain full reparation in the treaty of peace, but there is no legal recourse for the loser. The treaty of peace definitively settles the matter, and its terms are fixed according to policy and the result of the confiict. There have, however, been treaties requiring each party to indemnify the other for the care of its prisoners of war, specifically stating that this indemnity shall be considered entirely apart from general indemnities demanded by the conqueror. The Hague conventions also require compensation for breaches of the law of war.5 So far as such treaties are enforceable by municipal law, and so far as enemy individuals are assisted by municipal law in obtaining indemnity for injuries, the general rules of the subject of reparation considered under the law of peace will apply.

We shall therefore consider the duties of belligerents toward their enemies under the two heads, (1) obligations of abstention, and (2) obligations of prevention. In the enforcement of the former class of duties, municipal law enforces international law directly. The rules of municipal law bearing on this point are therefore rules of international law at the same time. In the second case, the means employed for controlling the conduct of persons and officers are a matter left to the discretion of the governments. International law does not say how individuals shall be controlled, only what they must be prevented from doing. The municipal law in this class will therefore consist largely of rules supplementary to international law.

5Treaties with Prussia, 1785-1796, art. 24, Malloy, p. 1484; 1799-1810, revived 1828, art. 24, p. 1494; Mexico, 1848, art. 22, p. 1118; Hague Conventions, 1907, iv, art. 3.

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