LETTERS UPON WAR AND NEUTRALITY

(1881-1920)

LETTERS TO "THE TIMES"

UPON

WAR AND NEUTRALITY

(1881-1920)

WITH SOME COMMENTARY

BY

SIR THOMAS ERSKINE HOLLAND

K.C., D.C.L., F.B.A.

FELLOW OF ALL SOULS COLLEGE
SOMETIME CHICHELE PROFESSOR OF INTERNATIONAL LAW
MEMBRE (PRÉSIDENT 1913) DE L'INSTITUT DE DROIT INTERNATIONAL
ETC., ETC.

THIRD EDITION

LONGMANS, GREEN, AND CO.

39 PATERNOSTER ROW, LONDON
FOURTH AVENUE & 30TH STREET, NEW YORK
BOMBAY, CALCUTTA, AND MADRAS

1921

PREFACE TO THE FIRST EDITION

For a good many years past I have been allowed to comment, in letters to The Times, upon points of International Law, as they have been raised by the events of the day. These letters have been fortunate enough to attract some attention, both at home and abroad, and requests have frequently reached me that they should be rendered more easily accessible than they can be in the files of the newspaper in which they originally appeared.

I have, accordingly, thought that it might be worth while to select, from a greater number, such of my letters as bear upon those questions of War and Neutrality of which so much has been heard in recent years, and to group them for republication, with some elucidatory matter (more especially with reference to changes introduced by the Geneva Convention of 1906, The Hague Conventions of 1907, and the Declaration of London of the present year) under the topics to which they respectively relate.

The present volume has been put together in accordance with this plan; and my best thanks are due to the proprietors of The Times for permitting the reissue of the letters in a collected form. Cross-references and a full Index will, I hope, to some extent remove the difficulties which might otherwise be caused by the fragmentary character, and the chances of repetition, inseparable from such a work.

T. E. H.
EGGISHORN, SWITZERLAND,
September 14, 1909.

PREFACE TO THE SECOND EDITION

I have again to thank The Times for permission to print in this new edition letters which have appeared in its columns during the past four years. They will be found to deal largely with still unsettled questions suggested by the work of the Second Peace Conference, by the Declaration of London, and by the, unfortunately conceived, Naval Prize Bill of 1911.

I have no reason to complain of the reception which has so far been accorded to the views which I have thought it my duty to put forward.

T. E. H.
OXFORD,
January 10, 1914.

PREFACE TO THE THIRD EDITION

This, doubtless final, edition of my letters upon War and Neutrality contains, by renewed kind permission of The Times, the whole series of such letters, covering a period of no less than forty years. To the letters which have already appeared in former editions, I have now added those contained in the "Supplement" of 1916 (for some time out of print) to my second edition; as also others of still more recent date. All these have been grouped, as were their predecessors, under the various topics which they were intended to illustrate. The explanatory commentaries have been carefully brought up to date, and a perhaps superfluously full Index should facilitate reference for those interested in matters of the kind. Such persons may not be sorry to have their attention recalled to many questions which have demanded practical treatment of late years, more especially during the years of the great war.

Not a few of these questions are sure again to come to the front, so soon as the rehabilitation of International Law, rendered necessary by the conduct of that War, shall be seriously taken in hand.

T. E. H.
OXFORD,
April 25, 1921.

CONTENTS

CHAPTER I

SECTION 1

THE PETITION TO THE PRESIDENT OF THE UNITED STATES

(2) The article, if it were in force, would impose no duty of offering good offices, but amounts merely to the expression of opinion that an offer of good offices is a [003]useful and unobjectionable proceeding, in suitable cases (en tant que les circonstances s'y prêtent). It cannot for a moment be supposed that the President would consider that an opportunity of the kind contemplated was offered by the war in South Africa.

(3) One would like to know at what date, if at all, the Prime Minister of the British colony of the Cape was pleased, as is alleged, to follow the lead of the Presidents of the two Boer Republics in bestowing his grateful approval upon the petition in question.

COMMISSIONS OF ENQUIRY AND THE HAGUE CONVENTION

Sir,—It is just now [1904] especially desirable that the purport of those provisions of The Hague Convention "for the peaceful settlement of international controversies"[004] which deal with "international commissions of enquiry" should be clearly understood. It is probably also desirable that a more correct idea should be formed of the effect of that convention, as a whole, than seems to be generally prevalent. You may, therefore, perhaps, allow me to say a few words upon each of these topics.

Art. 9 of the convention contains an expression of opinion to the effect that recourse to an international commission of enquiry into disputed questions of fact would be useful. This recommendation is, however, restricted to "controversies in which neither honour nor essential interests are involved," and is further limited by the phrase "so far as circumstances permit." Two points are here deserving of notice.

In the first place, neither "the honour and vital interests clause," as seems to be supposed by your correspondent Mr. Schidrowitz, nor the clause as to circumstances permitting, is in any way modified by the article which follows. Art. 10 does not enlarge the scope of Art. 9, but merely indicates the procedure to be followed by Powers desirous of acting under it. In the second place, it is wholly unimportant whether or no the scope of Art. 9 is enlarged by Art. 10. The entire liberty of the Powers to make any arrangement which may seem good to them for clearing up their differences is neither given, nor impaired, by the articles in question, to which the good sense of the Conference declined to attach any such obligatory force as had been proposed by Russia. It may well be that disputant Powers may at any time choose to agree to employ the machinery suggested by those articles, or something resembling it, in cases of a far more serious kind than those to which alone the convention ventured to make its recommendation applicable; and this is the course which seems to have been followed by the Powers interested with reference to the recent lamentable occurrence in the North Sea.[005]

As to the convention as a whole, it is important to bear in mind that, differing in this respect from the two other conventions concluded at The Hague, it is of a non-obligatory character, except in so far as it provides for the establishment of a permanent tribunal at The Hague, to which, however, no Power is bound to resort. It resembles not so much a treaty as a collection of "pious wishes" (voeux), such as those which were also adopted at The Hague. The operative phrases of most usual occurrence in the convention are, accordingly, such as "jugent utile"; "sont d'accord pour recommander"; "est reconnu comme le moyen le plus efficace"; "se réservent de conclure des accords nouveaux, en vue d'étendre l'arbitrage obligatoire à tous les cas qu'elles jugeront possible de lui soumettre."

It is a matter for rejoicing that, in accordance with the suggestion contained in the phrase last quoted, so many treaties, of which that between Great Britain and Portugal is the most recent, have been entered into for referring to The Hague tribunal "differences of a juridical nature, or such as relate to the interpretation of treaties; on condition that they do not involve either the vital interests or the independence or honour of the two contracting States." Such treaties, conforming as they all do to one carefully defined type, may be productive of much good. They testify to, and may promote, a very widely spread entente cordiale, they enhance the prestige of the tribunal of The Hague, and they assure the reference to that tribunal of certain classes of questions which might otherwise give rise to international complications. Beyond this it would surely be unwise to proceed. It is beginning to be realised that what are called "general" treaties of arbitration, by which States would bind themselves beforehand to submit to external decision questions which might involve high political issues, will not be made between Powers of the first importance; also, that such treaties, if [006]made, would be more likely to lead to fresh misunderstandings than to secure the peaceful settlement of disputed questions.

THE LEAGUE OF NATIONS

(1) Subtract from the Treaty of Versailles, Parts I. and XIII., the former constituting a League of Nations, the latter, in pursuance of a recital that universal peace "can be established only if it is based upon social justice," wholly occupied with a sufficiently ambitious scheme for the [008]regulation by the League of all questions relating to "Labour" which may arise within its jurisdiction.

(2) Let Part I., with Part XIII. annexed, constitute a new and independent Treaty; to be, as such, submitted to the Powers for further consideration. (The opportunity might be taken of ridding it of all references to a system of "mandates," which might very probably lead to jealousies and misunderstandings.)

(3) Parts II. to XII., XIV., and XV. would then constitute the real Treaty of Peace, in which it would, however, be necessary in the numerous articles attributing functions, for the most part of a temporary character, the "League of Nations," to substitute for any mention of the League words descriptive of some other authority, yet to be created, such as, for instance, "a Commission to be constituted by the principal Allied and Associated Powers."

It can hardly be necessary also to assure Lord Robert that I am fully aware of the formidable, though perhaps not insuperable, difficulties which would beset any efforts to carry out my suggestions. He may have inferred so much from my letter of the 16th, in which, treating the question whether it is now too late to attempt a remedy for the existing state of things as beyond the competence of an outsider, I describe it as one which can be answered "only by the diplomatists whose business it is to be intimately in touch with the susceptibilities of the various nations concerned."[009]

On a point of detail, I am surprised that Lord Robert is unwilling that the contents of Part XIII. should be removed to their natural context, on the ground that the Labour organisation might be annoyed if this were done. I am, however, confident that the organisation is too intelligent not to see that it would lose nothing if the articles in which it is interested were made an integral part of a Convention constituting a League of Nations; the League being already solely charged with giving effect to the articles in question.

SECTION 2

THE BLOCKADE OF THE MENAM

In this case, since there is no belligerency there is no neutrality, and the ships of States other than that to which the pressure is being applied are not liable to be interfered with. The particular mode of applying pressure without going to war known as "pacific blockade" dates, as is well known, only from 1827. It has indeed been enforced, by England as well as by France, upon several occasions, against the vessels of third Powers; but this practice has always been protested against, especially by French jurists, as an unwarrantable interference with the rights of such Powers, and was acknowledged by Lord Palmerston to [011]be illegal. The British Government distinctly warned the French in 1884 that their blockade of Formosa could be recognised as affecting British vessels only if it constituted an act of war against China; and when the Great Powers in 1886 proclaimed a pacific blockade of the coasts of Greece they carefully limited its operation to ships under the Greek flag.

The Subject has been exhaustively considered by the Institut de Droit International, which, at its meeting at Heidelberg in 1887, arrived at certain conclusions which may be taken to express the view of learned Europe. They are as follows:—

If the French wish to reap the full advantages of a blockade of the Siamese coast they must be prepared, by becoming belligerent, to face the disadvantages which may result from the performance by this country of her duties as a neutral.

PACIFIC BLOCKADE

Sir,—The letter signed "M." in your issue of this morning contains, I think, some statements which ought not to pass uncorrected. A "blockade" is, of course, the denial by a naval squadron of access for vessels to a defined portion [012]of the coasts of a given nation. A "pacific blockade" is one of the various methods—generically described as "reprisals," such as "embargo," or seizure of ships on the high seas—by which, without resort to war, pressure, topographically or otherwise limited in extent, may be put upon an offending State. The need for pressure of any kind is, of course, regrettable, the only question being whether such limited pressure be not more humane to the nation which experiences it, and less distasteful to the nation which exercises it, than is the letting loose of the limitless calamities of war.

The opinion of statesmen and jurists upon this point has undergone a change, and this because the practice known as "pacific blockade" has itself changed. The practice, which is comparatively modern, dating only from 1827, was at first directed against ships under all flags, and ships arrested for breach of a pacific blockade were at one time confiscated, as they would have been in time of war. It has been purged of these defects as the result of discussions, diplomatic and scientific. As now understood, the blockade is enforced only against vessels belonging to the "quasi-enemy," and even such vessels, when arrested, are not confiscated, but merely detained till the blockade is raised. International law does not stand still; and having some acquaintance with Continental opinion on the topic under consideration, I read with amazement "M.'s" assertion that "the majority in number," "the most weighty in authority" of the writers on international law "have never failed to protest against such practices as indefensible in principle." The fact is that the objections made by, e.g. Lord Palmerston in 1846, and by several writers of textbooks, to pacific blockade, had reference to the abuses connected with the earlier stages of its development. As directed only against the ships of the "quasi-enemy," it has received the substantially unanimous approbation of the Institut de Droit International at Heidelberg in 1887, after a very interesting debate, in which the advo[013]cates of the practice were led by M. Perels, of the Prussian Admiralty, and its detractors by Professor Geffken. It is true that in an early edition of his work upon international law my lamented friend, Mr. Hall, did use the words attributed to him by "M.": "It is difficult to see how a pacific blockade is justifiable." But many things, notably Lord Granville's correspondence with France in 1884 and the blockade of the Greek coast in 1886, have occurred since those words were written. If "M." will turn to a later edition of the work in question he will see that Mr. Hall had completely altered his opinion on the subject, or rather that, having disapproved of the practice as unreformed, he blesses it altogether in its later development. With reference to the utility of the practice, I should like to call the attention of "M." to a passage in the latest edition of Hall's book which is perhaps not irrelevant to current politics:—

THE VENEZUELAN CONTROVERSY

Sir,—Apart from the practical difficulty, so ably described by Sir Robert Giffen in your issue of this morning, of obtaining compensation in money from a State which seems to be at once bankrupt and in the throes of revolution, not a few questions of law and policy, as to which misunderstanding is more than probable, are raised from day to day by the action of the joint squadrons in Venezuelan waters. It may therefore be worth while to attempt to disentangle [014]the more important of these questions from the rest, and to indicate in each case the principles involved.

1. Are we at war with Venezuela? Till reading the reports of what passed last night in the House of Commons, I should have replied to this question unhesitatingly in the negative. Most people whose attention has been directed to such matters must have supposed that we were engaged in the execution of "reprisals," the nature and legitimacy of which have long been recognised by international law. They consist, of course, in the exertion of pressure, short of war; over which they possess the following advantages: They are strictly limited in scope; they cease, when their object has been attained, without the formalities of a treaty of peace; and, no condition of "belligerency" existing between the Powers immediately concerned, third Powers are not called upon to undertake the onerous obligations of "neutrality." The objection sometimes made to reprisals, that they are applicable only to the weaker Powers, since a strong Power would at once treat them as acts of war, is indeed the strongest recommendation of this mode of obtaining redress. To localise hostile pressure as far as possible, and to give to it such a character as shall restrict its incidence to the peccant State, is surely in the interest of the general good. That the steps taken are such as would probably, between States not unequally matched, cause an outbreak of war cannot render them inequitable in cases where so incalculable an evil is unlikely to follow upon their employment.

2. The justification of a resort either to reprisals or to war, in any given case, depends, of course, upon the nature of the acts complained of, and upon the validity of the excuses put forward either for the acts themselves, or for failure to give satisfaction for them. The British claims against Venezuela seem to fall into three classes. It will hardly be disputed that acts of violence towards British subjects or vessels, committed under State authority, call for redress. Losses [015]by British subjects in the course of civil wars would come next, and would need more careful scrutiny (on this point the debates and votes of the Institut de Droit International, at its meeting at Neuchâtel in 1900, may be consulted with advantage). Last of all would come the claims of unpaid bondholders, as to which Mr. Balfour would seem to endorse, in principle, the statement made in 1880 by Lord Salisbury who, while observing that "it would be an extreme assertion to say that this country ought never to interfere on the part of bondholders who have been wronged," went on to say that "it would be hardly fair if any body of capitalists should have it in their power to pledge the people of this country to exertions of such an extensive character.... They would be getting the benefit of an English guarantee without paying the price of it."

3. Reprisals may be exercised in many ways; from such a high-handed act as the occupation of the Principalities by Russia in 1853, to such a mere seizure of two or three merchant vessels as occurred in the course of our controversy with Brazil in 1861. In modern practice, these measures imply a temporary sequestration, as opposed to confiscation or destruction, of the property taken. In the belief that reprisals only were being resorted to against Venezuela one was therefore glad to hear that the sinking of gunboats by the Germans had been explained as rendered necessary by their unseaworthiness.

4. Pacific reprisals should also, according to the tendency of modern opinion and practice, be so applied as not to interfere with the interests of third Powers and their subjects. This point has been especially discussed with reference to that species of reprisal known as a "pacific blockade," of which some mention has been made in the present controversy. The legitimacy of this operation, though dating only from 1827, if properly applied, is open to no question. Its earlier applications were, no doubt, unduly harsh, not only towards the peccant State, but also towards third States, [016]the ships of which were even confiscated for attempting to break a blockade of this nature. Two views on this subject are now entertained—viz. (1) that the ships of third Powers breaking a pacific blockade may be turned back with any needful exertion of force, and, if need be, temporarily detained; (2) that they may not be interfered with. The former view is apparently that of the German Government. It was certainly maintained by M. Perels, then as now the adviser to the German Admiralty, during the discussion of the subject by the Institut de Droit International at Heidelberg in 1887. The latter view is that which was adopted by the Institut on that occasion. It was maintained by Great Britain, with reference to the French blockade of Formosa in 1884; was acted on by the allied Powers in the blockade of the coast of Greece, instituted in 1886; and is apparently put forward by the United States at the present moment.

5. If, however, we are at war with Venezuela (as will, no doubt, be the case if we proclaim a belligerent blockade of the coast, and may at any moment occur, should Venezuela choose to treat our acts, even if intended only by way of reprisals, as acts of war), the situation is changed in two respects: (1) the hostilities which may be carried on by the allies are no longer localised, or otherwise limited, except by the dictates of humanity; (2) third States become ipso facto "neutrals," and, as such, subject to obligations to which up to that moment they had not been liable. Whatever may have previously been the case, it is thenceforth certain that their merchant vessels must respect the (now belligerent) blockade, and are liable to visit, search, seizure, and confiscation if they attempt to break it.

6. If hostile pressure, whether by way of reprisals or of war, is exercised by the combined forces of allies, the terms on which this is to be done must obviously be arranged by previous agreement. More especially would this be requisite where, as in the case of Great Britain and Germany, different [017]views are entertained with reference to the acts which are permissible under a "pacific blockade."

7. When, besides the Power, or Powers, putting pressure upon a given State, with a view to obtaining compensation for injuries received from it, other Powers, though taking no part in what is going on, give notice that they also have claims against the same offender; delicate questions may obviously arise between the creditors who have and those who have not taken active steps to make their claims effective. In the present instance, France is said to assert that she has acquired a sort of prior mortgage on the assets of Venezuela; and the United States, Spain, and Belgium declare themselves entitled to the benefit of the "most-favoured-nation clause" when those assets are made available for creditors. What principles are applicable to the solution of the novel questions suggested by these competing claims?

8. It is satisfactory to know, on the highest authority, that the "Monroe doctrine" is not intended to shield American States against the consequences of their wrongdoing; since the cordial approval of the doctrine which has just been expressed by our own Government can only be supposed to extend to it so far as it is reasonably defined and applied. Great Britain, for one, has no desire for an acre of new territory on the American continent. The United States, on the other hand, will doubtless readily recognise that, if international wrongs are to be redressed upon that continent, aggrieved European Powers may occasionally be obliged to resort to stronger measures than a mere embargo on shipping, or the blockade (whether "pacific" or "belligerent") of a line of coast.

THE VENEZUELA PROTOCOL

WAR AND REPRISALS

Sir,—Professor Westlake's interesting letter as to the measures recently taken by the Netherlands Government in[019] Venezuelan waters opportunely recalls attention to a topic upon which I addressed you when, six years ago, our own Government was similarly engaged in putting pressure upon Venezuela—viz. the desirability of drawing a clear line between war and reprisals. Perhaps I may now be allowed to return, very briefly, to this topic, with special reference to Professor Westlake's remarks.

In any discussion of the questions involved, we ought, I think, clearly to realise that The Hague Convention, No. iii. of 1907, has no application to any measures not amounting to war. The "hostilities" mentioned in Art. 1 of the Convention are, it will be observed, exclusively such as must not commence without either a "declaration of war," or "an ultimatum with a conditional declaration of war"; and Art. 2 requires that the "state of war" thus created shall be notified to "neutral Powers." There are, of course, no Powers answering to this description till war has actually broken out. Neutrality presupposes belligerency. Any other interpretation of the Convention would, indeed, render "pacific blockades" henceforth impossible.

In the next place, we must at once recognise that the application of the term "reprisals," whatever may have been its etymological history, must no longer be restricted to seizure of property. It has now come to cover, and it is the only term which does cover generically, an indeterminate list of unfriendly acts, such as embargo, pacific blockade, seizure of custom-houses, and even occupation of territory, to which resort is had in order to obtain redress from an offending State without going to war with it. The pressure thus exercised, unlike the unlimited licentia laedendi resulting from a state of war, is localised and graduated. It abrogates no treaties, and terminates without a treaty of peace. It affects only indirectly, if at all, the rights of States which take no part in the quarrel.

The questions which remain for consideration would seem to be the following:—[020]

1. Would it be feasible to draw up a definite list of the measures which may legitimately be taken with a view to exercising pressure short of war?—I think not. States differ so widely in offensive power and vulnerability that it would be hardly advisable thus to fetter the liberty of action of a State which considers itself to have been injured.

2. Ought it to be made obligatory that acts of reprisal should be preceded, or accompanied, by a notification to the State against which they are exercised that they are reprisals and not operations of war?—This would seem to be highly desirable; unless indeed it can be assumed that, in pursuance of The Hague Convention of 1907, no war will henceforth be commenced without declaration.

8. Ought a statement to the like effect to be made to nations not concerned in the quarrel?—This would, doubtless, be convenient, unless the non-receipt by them of any notification of a "state of war," in pursuance of the Convention, could be supposed to render such a statement superfluous.

On the ambiguous character sometimes attaching to reprisals as now practised, I may perhaps refer to an article in the Law Quarterly Review for 1903, entitled "War Sub Modo."

CHAPTER II

COUNT VON MOLTKE ON THE LAWS OF WARFARE

Sir,—You may perhaps think that the accompanying letter, recently addressed by Count von Moltke to Professor[024] Bluntschli, is of sufficient general interest to be inserted in The Times. It was written with reference to the Manual of the Laws of War which was adopted by the Institut de Droit International at its recent session at Oxford. The German text of the letter will appear in a few days at Berlin. My translation is made from the proof-sheets of the February number of the Revue de Droit International, which will contain also Professor Bluntschli's reply.

PROFESSOR BLUNTSCHLI'S REPLY TO COUNT VON MOLTKE

THE UNITED STATES NAVAL WAR CODE.1

Sir,—The "Naval War Code" of the United States, upon which an interesting article appeared in The Times of Friday last, in so well deserving of attention in this country that I may perhaps be allowed to supplement the remarks of your Correspondent from the results of a somewhat minute examination of the code made shortly after its publication.

One notes, in the first place, that the Government of the United States does not shirk responsibility. It puts the code into the hands of its officers "for the government of all persons attached to the naval service," and is doubtless prepared to stand by the rules contained in it, as being in accordance with international law. These rules deal boldly with even so disagreeable a topic as "Reprisals" (Art. 8), upon which the Brussels, and after it The Hague, Conference preferred to keep silence; and they take a definite line on many questions upon which there are wide differences of opinion. On most debatable points, the rules are in accordance with the views of this country—e.g. as to the right of search (Art. 22), as to the two-fold list of contraband (Arts. 34-36), as to the moment at which the liability of a blockade-runner commences (Art. 44), and as to the capture of private property (Art. 14), although the prohibition of such capture has long been favoured by the Executive of the United States, and was advocated by the American delegates at The Hague Conference. So also Arts. 34-36, by apparently taking for granted the correctness of the rulings of the Supreme Court in the Civil War cases of the Springbok and the Peterhoff with reference to what may be described as "continuous carriage," are in harmony with the views which Lord Salisbury recently had occasion to express as to the trade of the Bundesrath and other German vessels with Lorenzo Marques. It must be observed, on the other hand, that Art. 30 flatly contradicts the British rule as to [030]convoy; while Art. 3 sets out The Hague Declaration as to projectiles dropped from balloons, to which this country is not a party. Art. 7 departs from received views by prohibiting altogether the use of false colours, and Art. 14 (doubtless in pursuance of the recent decision of the Supreme Court in the Paquete Habana), by affirming the absolute immunity of coast fishing vessels, as such, from capture.

On novel questions the code is equally ready with a solution. It speaks with no uncertain voice on the treatment of mail steamers and mail-bags (Art. 20). On cable-cutting it adopts in Art. 5, as your Correspondent points out, the views which I ventured to maintain in your columns when the question was raised during the war of 1898.2 I may also, by the way, claim the support of the code for the view taken by me, in a, correspondence also carried on in your columns during the naval manoeuvres of 1888, of the bombardment of open coast towns.3 Art. 4 sets out substantially the rules upon this subject for which I secured the imprimatur of the Institut de Droit International in 1896.

Secondly, the code is so well brought up to date as to incorporate (Arts. 21-29) the substance of The Hague Convention, ratified only in September last, for applying to maritime warfare the principles of the Convention of Geneva. Art. 10 of The Hague Convention has been reproduced in the code, in forgetfulness perhaps of the fact that that article has not been ratified.

Thirdly, the code contains, very properly, some general provisions applicable equally to warfare upon land (Arts. 1, 3, 8, 12, 54).

Fourthly, it is clearly expressed; and it is brief, consisting of only 54 articles, occupying 22 pages.

Fifthly, it deals with two very distinct topics—viz. the mode of conducting hostilities against the forces of the enemy, and the principles applicable to the making prize of merchant vessels, which as often as not may be the [031]property of neutrals. These topics are by no means kept apart as they might be, articles on prize occurring unexpectedly in the section avowedly devoted to hostilities.

It is worth considering whether something resembling the United States code would not be found useful in the British Navy. Our code might be better arranged than its predecessor, and would differ from it on certain questions, but should resemble it in clearness of expression, in brevity, and, above all things, in frank acceptance of responsibility. What naval men most want is definite guidance, in categorical language, upon those points of maritime international law upon which our Government has made up its own mind.

A NAVAL WAR CODE

Before issuing such a code our authorities would have to decide—first, what are the classes of topics as to which it is desirable to give definite instructions to naval officers; and, secondly, with reference to topics, to be included in the instructions, as to which there exist international differences of view, what is, in each case, the view by which the British Government is prepared to stand.

CHAPTER III

INTERNATIONAL TERMINOLOGY

Sir,—Demands for the punishment of the ex-Kaiser have produced many "curiosities of literature," sometimes even over the signatures of men deservedly respected as authorities upon subjects which they have made their own; but ne sutor supra crepidam. A.B.,4 for instance, wrote of the Kaiser as guilty of "an indictable offence." X.Y.4 naturally protests against this misuse of terminology, which is, indeed, far more specifically erroneous than was the popular application, which you allowed me to criticise, of the terms "murder" and "piracy" to certain detestable acts perpetrated under Government authority.5 He goes on to give an elaborate, though perhaps hardly necessary, explanation that breaches of that generally accepted body of rules to be followed by States inter se, which is known as "international law," can be enforced, in the last resort, [034]only by hostile State action—a fact which he seems to suppose may entitle him to qualify the rules as "a mockery."

X.Y.4 then proceeds to give an account of the so-called "private international law" which surely needs revision for the benefit of any "man in the street" who may care to hear about it. X.Y.4 defines it as "that part of the law of each separate country, as administered in its own Courts, which deals with international matters," and he enumerates as such matters "prize, contraband, blockade, the rights of ambassadors." In fact none of these matters are within the scope of "private international law," but are governed by "(public) international law," non-compliance with which by the Courts or subjects of any State is ground of complaint for the Government of any other State thereby wrongfully affected.

The so-called "private international law," better described as "the conflict of laws," deals, in reality, with the rules which the Courts of each country apply, apart from any international obligation, to the solution of questions, usually between private litigants, in which doubt may arise as to the national law by which a given transaction ought to be governed—e.g. with reference to a contract made in France, but to be performed in England. There is here a "conflict," or "collision," of laws, and it is decided in accordance with rules adopted in the country in which the litigation occurs. These rules have no "international" validity, and the term is applied to them, merely in a popular way, to indicate that a Court may have in some cases to apply the law of a country other than that in which it is sitting. The unfortunate opposition of "public" to "private" international law has to answer for much confusion of thought. "International law," properly so called, has, of course, no need to be described as "public" to distinguish it from rules for solving the "conflicts" of [035]private laws, which are "international" rules only in the sense that laws are sometimes applied in countries other than those in which they are primarily binding.

CHAPTER IV

GOVERNMENT BILLS AND INTERNATIONAL CONVENTIONS

Sir,—You have already allowed me to point out how singularly ill-adapted is the resuscitated "Naval Prize Consolidation Bill"6 to inform Parliament upon the highly technical points as to which a vote in favour of the Bill might be supposed to imply approval of the Government policy.

Two other Bills have now been presented to the House of Commons in such a shape as to raise a doubt whether the wish of the Government, or of the draftsman, has been that the topics to which they relate shall be discussed en pleine connaissance de cause.

The "Geneva Convention Bill"7 is intended to facilitate [037]the withdrawal of reservations subject to which the Convention was ratified by Great Britain. These reservations, upon which I insisted at Geneva, somewhat to the surprise of my French and Russian colleagues, relate to Arts. 23, 27, and 28 of the Convention, one of the effects of which would have been to impose upon our Government an obligation to carry through, within five years, an Act of Parliament, making the employment of the Geneva emblem or name, except for military purposes, a criminal offence. Any one who knows something of the difficulties which beset legislation in this country, especially where commercial interests are involved, will see that the performance of such an undertaking might well have proved to be impossible. Though myself strongly in favour of placing, at the proper time and in an appropriate manner, legislative restrictions upon the general use of the emblem and name, I can hardly think the Bill now before Parliament to be well adapted for its purpose. The "Memorandum" prefixed to it ought surely to have stated, in plain language, the effect of the articles in question and the reasons which prevented them from being ratified together with the rest of the Convention. Instead of this, only one of those articles is cited, and few members of Parliament will be aware that an omitted paragraph of that article requires that the use of the emblem or name should be penalised by British law at the latest five years and six months from the date of the British ratification, which was deposited on April 16, 1907—i.e., not later than October 16, 1912. This requirement is not satisfied by the Bill, which, even if passed in the present Session, would preserve intact till 1915 the rights of proprietors of trade-marks, while somewhat harshly rendering forthwith illegal the user of the emblem or name by all other persons.

On the drafting of the "Second Peace Conference Conventions Bill," I will only remark that neither in the preamble nor elsewhere is any information vouchsafed as to the[038] Conventions, out of thirteen drafted at The Hague, which are within the purview of the Bill. The reader is left to puzzle out for himself, supposing him to have the necessary materials at hand, that certain clauses of the Bill relate respectively to certain articles which must be looked for in the Conventions numbered I., V., X., XII., and XIII.

THE PRESENT BILL IN PARLIAMENT

As now resuscitated, the Bill is accompanied by a memorandum containing information which will enable [039]the reader, even though no specialist, supposing him to have the necessary documents at hand, though probably only after several hours of labour, to ascertain what would be the result of passing it. Is it too much to hope that similar aids to the understanding of complicated legislative proposals will be systematically provided in the future?

THE FOREIGN ENLISTMENT BILL

I would also venture to suggest that, in Article 1 (1) (b) of the Bill the words "or allows to depart," carried over from the old Act, should be omitted, as of doubtful interpretation. Would it not also be desirable to take this opportunity of severing the enlistment articles of the overgrown principal Act from those forbidding the despatch of [040]ships fitted for hostilities and restricting the hospitality which may be extended to belligerent war ships?

Upon quite a different subject, I should like to answer the question propounded in your article, as to the weight now to be given to the Declaration of London, by saying that no weight should be given to it, except as between Powers who may have ratified it or may have agreed to be temporarily bound by its provisions. One has of late been surprised to read of vessels carrying contraband being allowed to continue their voyage after surrendering the contraband goods, in accordance with a new rule suggested by the Declaration, whereas, under still existing international law, the duty of a captor is to bring in the vessel together with her cargo, in order that the rightfulness of the seizure may be investigated by a Prize Court.

CHAPTER V

SECTION 1

THE SINKING OF THE KOWSHING

Sir,—The words of soberness and truth were spoken with reference to the sinking of the Kowshing in the letter from Professor Westlake which you printed on Friday last. Ignorance dies hard, or, after the appearance of that letter and of your remarks upon it, one might have expected that leading articles would be less lavishly garnished with such phrases as "act of piracy," "war without declaration," "insult to the British flag," "condign punishment of the Japanese commander." But these flowers of speech continue to blossom; and, now that the facts of the case seem [042]to be established beyond reasonable doubt by the telegrams of this morning, I should be glad to be allowed to state shortly what I believe will be the verdict of international law upon what has occurred.

If the visiting, and eventual sinking, of the Kowshing occurred in time of peace, or in time of war before she had notice that war had broken out, a gross outrage has taken place. But the facts are otherwise.

In the first place, a state of war existed. It is trite knowledge, and has been over and over affirmed by Courts, both English and American, that a war may legally commence with a hostile act on one side, not preceded by declaration. How frequently this has occurred in practice may be seen from a glance at an historical statement prepared for the War Office by Colonel Maurice à propos of the objections to a Channel tunnel. Whether or no hostilities had previously occurred upon the mainland, I hold that the acts of the Japanese commander in boarding the Kowshing and threatening her with violence in case of disobedience to his orders were acts of war.

In the second place, the Kowshing had notice of the existence of a war, at any rate from the moment when she received the orders of the Japanese commander.

The Kowshing, therefore, before the first torpedo was fired, was, and knew that she was, a neutral ship engaged in the transport service of a belligerent. (Her flying the British flag, whether as a ruse de guerre or otherwise, is wholly immaterial.) Her liabilities, as such ship, were twofold:—

1. Regarded as an isolated vessel, she was liable to be stopped, visited, and taken in for adjudication by a Japanese Prize Court. If, as was the fact, it was practically impossible for a Japanese prize crew to be placed on board of her, the Japanese commander was within his rights, in using any amount of force necessary to compel her to obey his orders.[043]

2. As one of a fleet of transports and men-of-war engaged in carrying reinforcements to the Chinese troops on the mainland, the Kowshing was clearly part of a hostile expedition, or one which might be treated as hostile, which the Japanese were entitled, by the use of all needful force, to prevent from reaching its destination.

The force employed seems not to have been in excess of what might lawfully be used, either for the arrest of an enemy's neutral transport or for barring the progress of a hostile expedition. The rescued officers also having been set at liberty in due course, I am unable to see that any violation of the rights of neutrals has occurred. No apology is due to our Government, nor have the owners of the Kowshing, or the relatives of any of her European officers who may have been lost, any claim for compensation. I have said nothing about the violation by the Japanese of the usages of civilised warfare (not of the Geneva Convention, which has no bearing upon the question), which would be involved by their having fired upon the Chinese troops in the water; not only because the evidence upon this point is as yet insufficient, but also because the grievance, if established, would affect only the rights of the Belligerents inter se; not the rights of neutrals, with which alone this letter is concerned. I have also confined my observations to the legal aspects of the question, leaving to others to test the conduct of the Japanese commander by the rules of chivalrous dealing or of humanity.

SECTION 2

FOREIGN SOLDIERS IN ENGLAND

[046]Vattel, is it true (1758), ventures to lay down that—

And he has been followed by some recent writers. There is, however, I venture to hold, no ground for asserting that this indulgent system is imposed by international law. I am glad, therefore, to find the Attorney-General laying down that—

And I should be surprised if, under all circumstances, as the learned Attorney-General seems to think probable—

The doctrine of Vattel has, in fact, become less plausible than it was before universal liability to military service had become the rule in most Continental countries. The peaceably engaged foreign resident is now in all probability a trained soldier, and liable to be recalled to the flag of a possible enemy.

There may, of course, be considerable practical difficulties in the way of ascertaining the nationality of any given foreigner, and whether he has completed, or evaded, the military training required by the laws of his country. It may also be a question of high policy whether resident enemies would not be a greater danger to this country if they were compelled to remain here, than if they were allowed, or compelled, to depart, possibly to return as invaders.

I am only concerned to maintain that, as far as inter[047]national law is concerned, England has a free hand either to expel resident enemies or to prevent them from leaving the country, as may seem most conducive to her own safety.

Civil Disabilities of Alien Enemies

THE NAVAL PRIZE BILL

CIVIL DISABILITIES OF ENEMY SUBJECTS

I lose not a moment in asking to be allowed to state that my view of the question is, and always has been, the reverse of that attributed to me by my friend Mr. Cohen. No less than three views are entertained as to the meaning of Art. 28 (h). (1) Continental writers, e.g., MM. Fauchille, Kohler, and Ullmann, with the German Whitebook, assert, in the most unqualified manner, that Great Britain and the United States have under this clause abandoned their long-established doctrine as to the suspension of the private rights and remedies of enemy subjects; (2) Our own Government, in a non-confidential reply to an inquiry from Professor Oppenheim, asserts categorically, as does General Davis in the United States, that the clause relates only to the action of a commander in a territory of which he is in occupation; while (3) most English and American writers look upon the meaning of the clause as doubtful. If Mr. Cohen will look at p. 44 of my Laws of War on Land,[048] 1909, he will find that I carry this sceptical attitude so far as to include the clause in question in brackets as "apocryphal," with the comment that "it can hardly, till its policy has been seriously discussed, be treated as a rule of international law." I have accordingly maintained, in correspondence with my Continental colleagues, that the clause should be treated as "non avenue," as "un non sens," on the ground that, while, torn from their context, its words would seem ("ont faux air") to bear the Continental interpretation, its position as part of a "Règlement," in conformity with which the Powers are to "issue instructions to their armed land forces," conclusively negatives this interpretation. I will not to-day trouble you in detail with the very curious history of the clause; which, as originally proposed by Germany, merely prohibited (a commander?) from announcing that the private claims ("réclamations") of enemy subjects would be unenforceable. It is astonishing that no objection was raised by the British or by the American delegates to the subsequent transformation of this innocent clause into something very different, first by the insertion of the words "en justice," and later by the substitution of "droits et actions" for "réclamations." The quiescence of the delegates is the more surprising, as, at the first meeting of the sub-committee, General de Gundel, in the plainest language, foreshadowed what was aimed at by the clause.

Art. 23 (h) is, I submit, incapable of rational interpretation and should be so treated by the Powers. If interpreted at all, its sense must be taken to be that which is now, somewhat tardily, put upon it by our own Government.

Enemy Ships in Port

ENEMY SHIPS IN PORT

CHAPTER VI

SECTION 1

"THE FREEDOM OF THE SEAS"?

SECTION 2

THE SUEZ CANAL

Sir,—Your correspondent "M.B." has done good service by calling attention to the misleading nature of the often-repeated [052]statement that the Suez Canal has been "neutralised" by the Convention of 1888. Perhaps you will allow me more explicitly to show why, and how far, this statement is misleading.

In the first place, this Convention is inoperative. It is so in consequence of the following reservation made by Lord Salisbury in the course of the negotiations which resulted in the signature of the Convention:—

Being thus unaffected by the treaty, the canal retains those characteristics which it possesses, under the common law of nations, as a narrow strait, wholly within the territory of one Power and connecting two open seas. The fact that the strait is artificial may, I think, be dismissed from consideration, for reasons stated by me in the Fortnightly Review for July, 1883. The characteristics of such a strait are unfortunately by no means well ascertained, but may perhaps be summarised as follows. In time of peace, the territorial Power is bound by modern usage to allow "innocent passage," under reasonable conditions as to tolls and the like, not only to the merchant vessels, but also, probably, to the ships of war, of all nations. In time of war, the territorial Power, if belligerent, may of course carry on, and is exposed to, hostilities in the strait as elsewhere, and the entrances to the strait are liable to a blockade. Should the territorial Power be neutral, the strait would be closed to hostilities, though it would probably be open to the "innocent passage" of belligerent ships of war.

It may be worth while to enquire how far this state of things would be affected by the Convention of 1888, were [053]it to come into operation. The status of the canal in time of peace would be substantially untouched, save by the prohibition to the territorial Power to fortify its banks. Even with reference to time of war, several of the articles of the Convention merely reaffirm well-understood rules applicable to all neutral waters—e.g. that no hostilities may take place therein. The innovations proposed by the Convention are mainly contained, as "M.B." points out, in the first article, which deals with the position of the canal when the territorial Power is belligerent. In such a case, subject to certain exceptions, with a view to the defence of the country, the ships of that Power are neither to attack nor to be attacked in the canal, or within three miles of its ports of access, nor are the entrances of the canal to be blockaded. This is "neutralisation" only in a limited and vague sense of the term, the employment of which was indeed carefully avoided not only in the Convention itself but also in the diplomatic discussions which preceded it.

THE SUEZ CANAL

It is impossible to accept his suggestion that the article which he quotes from the Treaty of Paris can be taken as containing "an international official definition of neutralisation as applied to waters." The article in question, after declaring the Black Sea to be "neutralisée," no doubt goes on to explain the sense in which this phrase is to be understood, by laying down that the waters and ports of that sea are perpetually closed to the ships of war of all nations. It is, however, well known that such a state of things as is described in the latter part of the article is so far from [054]being involved in the definition of "neutralisation" as not even to be an ordinary accompaniment of that process. Belgium is unquestionably "neutralised," but no one supposes that the appearance in its waters and ports of ships of war is therefore prohibited. The fact is that the term "neutralisée" was employed in the Treaty of Paris as a euphemism, intended to make less unpalatable to Russia a restriction upon her sovereign rights which she took the earliest opportunity of repudiating.

THE SUEZ CANAL

2. All the signatories of the convention having thus become parties to it after express notice of "the conditions under which her Majesty's Government have expressed [055]their willingness to agree to it," must, it can hardly be doubted, share the view that the convention is operative only sub modo.

3. Supposing the convention to have become operative, and supposing the territorial Power to be neutral in a war between States which we may call A and B, the convention would certainly entitle A to claim unmolested passage for its ships of war on their way to attack the forces of B in the Eastern seas.

4. The language of the convention, being as it, is the expression of a compromise involving much re-drafting, is by no means always as clear as it might be. But when Mr. Gibson Bowles is again within reach of Blue-books he will probably agree with me that the treaty need not, as he suggests, be "read as obliging the territorial Power, even when itself a belligerent, to allow its enemy to use the canal freely for the passage of that enemy's men-of-war." The wide language of Art. 1 (which is substantially in accordance with Mr. Gibson Bowles's reminiscence of it) must be read in connection with Art. 10, and without forgetting that, in discussing the effect of an attack upon the canal by one of the parties to the convention, Lord Salisbury wrote in 1887, "on the whole it appears to be the sounder view that, in such a case, the treaty, being broken by one of its signatories, would lose its force in all respects."

THE CLOSING OF THE DARDANELLES

Sir,—Now that the pressure upon your space due to the clash of opposing views of domestic politics is likely to be for the moment relaxed, you may, perhaps, not think it inopportune that attention should be recalled to a question of permanent international interest raised by the recent [056]action of the Turkish Government in closing the Dardanelles to even commercial traffic.

I cordially agree, as would, I suppose, most people, with your leading article of some weeks since in deprecating any crude application to the case of the Dardanelles and Bosporus of dicta with reference to freedom of passage through straits connecting two open seas. It would, indeed, be straining what may be taken to be a general principle of international law to say that Turkey is by it prohibited from protecting her threatened capital by temporarily closing the Straits.

A good deal of vague reference has, however, been made in the discussions which have taken place upon the subject to "Treaties" under which it seems to be thought that trading ships enjoy, in all circumstances, rights of free navigation through the Straits in question which they would not have possessed otherwise. I should like, therefore, with your permission, to state what seem to be the relevant Treaty provisions upon the subject, whether between the Powers constituting the European Concert collectively, or between Russia and Turkey as individual Powers.

As to what may be described as the "European" Treaties, it is necessary, once for all, to put aside as irrelevant Art. 10 of the Treaty of Paris of 1856 and its annexed Convention; Art. 2 of the Treaty of London of 1871; and the confirmatory Art. 63 of the Treaty of Berlin of 1878. These articles have exclusive reference to the "ancient rule of the Ottoman Empire," under which, so long as the Porte is at peace, no foreign ships of war are to be admitted into the Straits. There are, however, two articles, still in force, of these "European" Treaties which may seem to bear upon the present inquiry. By Art. 12 of the Treaty of Paris:—

And by Art. 3 of the Treaty of London:—

It is submitted that these provisions relate solely to commerce carried on by vessels already within the Black Sea, and contain no covenant for an unrestricted right of access to that sea.

As between Russia and Turkey individually, Treaties which are still in force purport, no doubt, to give to the former a stronger claim to free passage through the Straits for her mercantile marine than that which can be supposed to be enjoyed by other Powers. By Art. 7, for instance, of the Treaty of Adrianople of 1829, the Porte recognises and declares the passage of the "Canal de Constantinople," and of the Strait of the Dardanelles, to be entirely free and open to Russian merchant vessels; and goes on to extend the same privilege to the merchant vessels of all Powers at peace with Turkey. Art. 24 of the Treaty of San Stefano is still more explicit, providing that "the Bosporus and Dardanelles shall remain open in time of war as in time of peace to the merchant vessels of neutral States arriving from or bound to Russian ports." The rest of the article contains a promise by the Porte never henceforth to establish a "fictitious blockade, at variance with the spirit of the Declaration of Paris"; meaning thereby such a blockade of ports on the Black Sea as had been enforced by Turkish ships of war stationed at the entrance to the Bosporus.

It may well be doubted whether these articles, containing concessions extorted from Turkey at the end of wars in which she had been defeated, ought not, like so many other provisions of the Treaty of San Stefano, to have been abrogated by the Treaty of Berlin. They are of such a character that, in the struggle for existence, Turkey can hardly be blamed for disregarding them. As was said [058]long ago, "Ius commerciorum aequum est, at hoc acquius, tuendae salutis." The imperious necessities of self-preservation were recognised both by Lord Morley and by Lord Lansdowne in the debate which took place on May 3, although Lord Lansdowne intimated that

It is, I think, clear that the solution of a question at once so novel and so delicate must be undertaken, not by any one Power, but by the Concert of Europe, or of the civilised world, which must devise some guarantee for the safety of any littoral Power which would be called upon in the general interest to restrict its measures of self-defence. In the meantime, we may surely say that the case is provided for neither by established international law nor by "European" Treaties; and, further, that the Treaties between Russia and Turkey, which do provide for it, are not such as it is desirable to perpetuate.

THE CLOSING OF THE DARDANELLES

The earlier Treaties, however, which were revived beyond [059]question by Art. 10 of the Treaty of 1879, grant to Russian merchant vessels full rights of passage between the Black Sea and the Ægean, exercisable, for all that appears, in time of war as well as of peace, although these Treaties contain no express words to that effect. Such rights, I would again urge, if enjoyed by one Power, should be enjoyed by all; upon terms to be settled, not by any pair of Powers but by the Powers collectively.

SECTION 3

THE GERMAN THREAT

2. These promised, and already perpetrated, atrocities [060]consist in the destruction of merchant shipping without any of those decent preliminary steps, for the protection of human life and neutral property, which are insisted on by long established rules of international law. Under these rules, the exercise of violence against a merchant vessel is permissible, in the first instance, only in case of her attempting by resistance or flight to frustrate the right of visit which belongs to every belligerent cruiser. Should she obey the cruiser's summons to stop, and allow its officers to come on board, they will satisfy themselves, by examination of her papers, and, if necessary, by further search, of the nationality of ship and cargo, of the destination of each, and of the character of the latter. They will then decide whether or no they should make prize of the ship, and in some cases may feel justified in sending a prize to the bottom, instead of taking her into port. Before doing so it is their bounden duty to preserve the ship papers, and, what is far more important, to provide for the safety of all on board.

This procedure seems to have been followed, more or less, by the submarines which sank the Durward in the North Sea, and several small vessels near the Mersey, but is obviously possible to such craft only under very exceptional circumstances. It was scandalously not followed in the cases of the Tokomaru, the Ikaria, and the hospital ship (!) Asturias, against which a submarine fired torpedoes, off Havre, without warning or inquiry, and, of course, regardless of the fate of those on board. The threat that similar methods of attack will be systematically employed, on a large scale, on and after the 18th inst., naturally excites as much indignation among neutrals as among the Allies of the Entente.

SECTION 4

THE DEBATE ON AERONAUTICS

In the Règlement annexed to The Hague Convention of 1899, as to the "Laws and Customs of War on Land," Art. 23, which specifically prohibits certain "means of injuring the enemy," makes no mention of aerial methods; but Art. 25, which prohibits "the bombardment of towns, villages, habitations, or buildings, which are not defended," was strengthened, when the Règlement was reissued in 1907 as an annexe to the, as yet not generally ratified, Hague Convention No. iv. of that year, by the insertion, [062]after the word "bombardment," of the words "by any means whatever," with the expressed intention of including in the prohibition the throwing of projectiles from balloons.

The Hague Convention No. ix. of 1907, also not yet generally ratified, purports to close a long controversy, in accordance with the view which you allowed me to advocate, with reference to the naval manoeuvres of 1888, by prohibiting the "naval bombardment of ports, towns, villages, habitations, or buildings, which are not defended." The words "by any means whatever" have not been here inserted, one would incline to think by inadvertence, having regard to what passed in Committee, and to the recital of the Convention, which sets out the propriety of extending to naval bombardments the principles of the Règlement (cited, perhaps again by inadvertence, as that of 1899) as to the Laws and Customs of War on Land.

But the topic was first squarely dealt with by the first of the three Hague Declarations of 1899, by which the Powers agreed to prohibit, for five years, "the throwing of projectiles and explosives from balloons, or by other analogous new methods." The Declaration was signed and ratified by almost all the Powers concerned; not, however, by Great Britain.

At The Hague Conference of 1907, when the Belgian delegates proposed that this Declaration, which had expired by efflux of time, should be renewed, some curious changes of opinion were found to have occurred. Twenty-nine Powers, of which Great Britain was one, voted for renewal, but eight Powers, including Germany, Spain, France, and Russia, were opposed to it, while seven Powers, one of which was Japan, abstained from voting. The Japanese delegation had previously intimated that, "in view of the absence of unanimity on the part of the great military Powers, there seemed to be no great use in binding their country as against certain Powers, while, as against the rest, it would still be necessary to study and bring to perfection [063]this mode of making war." Although the Declaration, as renewed, was allowed to figure in the "Acte final" of the Conference of 1907, the dissent from it of several Powers of the first importance must render its ratification by the others highly improbable; nor would it seem worth while to renew, for some time to come, a proposal which, only two years ago, was so ill received.

I may perhaps add, with reference to what was said by one of yesterday's speakers, that any provision on the topic under discussion would be quite out of place in the Geneva Convention, which deals, not with permissible means of inflicting injury, but exclusively with the treatment of those who are suffering from injuries inflicted.

THE AERIAL NAVIGATION ACT

PRACTICAL DIFFICULTIES

In the meantime, it may interest your readers to have some clue to what has taken place, with reference to the more theoretical aspects of the questions involved, in so competent and representative a body as the Institut de Droit International. The Institut has had the topic under consideration ever since 1900, more especially at [064]its sessions for the years 1902, 1906, 1910, and 1911. In the volumes of its "Annuaire" for those years will be found not only the text of the resolutions adopted on each occasion, together with a summary account of the debates which preceded their adoption, but also, fully set out, the material which had been previously circulated for the information of members, in the shape of reports and counter-reports from inter-sessional committees, draft resolutions, and such critical observations upon these documents as had been received by the secretary. The special committee upon the subject, of which M. Fauchille is Rapporteur, is still sitting, and the topic will doubtless be further debated at the session of the Institut, which will this year be held at Oxford. No success has attended efforts to pass resolutions in favour of any interference with the employment of aéronefs in time of war, such as was proposed by The (now discredited) Hague Declaration, prohibiting the throwing of projectiles and explosives from airships. With reference to the use of these machines in time of peace, the debates have all along revealed a fundamental divergence of opinion between the majority of the Institut and a minority, comprising those English members who have made known their views. Both parties are agreed that aerial navigation must submit to some restrictions, but the majority, starting from the Roman law dictum, "Naturali iure omnium communia sunt aer, aqua profluens, et mare," would always presume in favour of freedom of passage. The minority, on the other hand, citing sometimes the old English saying, "Cuius est solum eius est usque ad coelum," hold that the presumption must be in favour of sovereignty and ownership as applicable to superimposed air space.

It is hardly necessary to observe that neither of the maxims just mentioned was formulated with reference to problems which have only presented themselves within the last few years. The Romans, in the passage quoted, were thinking not of aerial space, but of the element which [065]fills it. The old English lawyers were preoccupied with questions as to projecting roofs and overhanging boughs of trees. The problems now raised are admittedly incapable of solution a priori, but the difference between the two schools of thinkers is instructive, as bearing upon the extent to which those who belong to one or the other school would incline towards measures of precaution against abuses of the novel art. This difference was well summed up at one of our meetings by Professor Westlake as follows: "Conservation et passage, comment combiner ces deux droits? Lequel des deux est la règle? Lequel l'exception? Pour le Rapporteur (M. Fauchille) c'est le droit de passage qui prime. Pour moi c'est le droit de conservation."

SOVEREIGNTY OVER THE AIR

Sir,—Mr. Arthur Cohen has done good service by explaining that Great Britain has practically asserted the right of a State to absolute control of the airspace vertically above its territory. I may, however, perhaps be permitted to remark that he seems to have been misinformed when he states that the Institute of International Law has arrived at no decision upon the subject. The facts are as follows: The problems presented by the new art of aerostation have been under the consideration of the Institute since 1900, producing a large literature of reports, counter-reports, observations, and draft rules, to debates upon which no fewer than four sittings were devoted at the Madrid meeting in 1911. Wide differences of opinion then disclosed themselves as to territorial rights over the air, the radical opposition being between those members who, with M. Fauchille, the Reporter of the Committee, would presume in favour of freedom of aerial navigation, subject, as they would admit, to some measures of [066]territorial precaution, and those who, like the present writer ("il se proclame opposé au principe de la liberté de la navigation aérienne, et s'en tiendrait plutôt au principe cuius est solum, huius est usque ad coelum, en y apportant au besoin quelques restrictions," "Annuaire," p. 821), would subject all aerial access to the discretion of the territorial Power.

The discussion took place upon certain bases, and No. 3 of these was ultimately adopted, though only by 21 against 10 votes, to the following effect: "La circulation aérienne internationale est libre, sauf le droit pour les états sous-jacents de prendre certaines mesures à déterminer, en vue de leur sécurité et de celle des personnes et des biens de leur territoire."

The Institut then proceeded to deal with bases relating to a time of war, but was unable to make much progress with them in the time available. The debate upon the "Régime juridique des aérostats" was not resumed at Christiania in 1911, nor is it likely to be at Oxford "in the autumn of the present year," as Mr. Cohen has been led to suppose. Other arrangements were found to be necessary, at a meeting which took place a week ago between myself and the other members of our bureau.

ATTACK FROM THE AIR

THE ENFORCEMENT OF INTERNATIONAL LAW

Sir,—In his interesting and important address at the Royal United Service Institution, Colonel Jackson inquired: "Can any student of international law tell us definitely that such a thing as aerial attack on London is outside the rules; and, further, that there exists an authority by which the rules can be enforced?" As one of the students [067]to whom the Colonel appeals I should be glad to be allowed to reply to the first of his questions.

The "Geneva Convention" mentioned in the address has, of course, no bearing upon aerial dangers. The answer to the question is contained in the, now generally ratified, Hague Convention No. iv. of 1907. Art. 25 of the regulations annexed to this Convention runs as follows:

It clearly appears from the "Actes de la Conférence," e.g. T. i., pp. 106, 109, that the words which I have italicised were inserted in the article, deliberately and after considerable discussion, in order to render illegal any attack from the air upon undefended localities; among which I conceive that London would unquestionably be included.

I cannot venture to ask the hospitality of your columns for an adequate discussion of the gallant officer's second question, as to the binding force attributable to international law. Upon this I may, however, perhaps venture to refer him to some brief remarks, addressed to you a good many years ago, and now to be found at pp. 101 and 105 of the new edition of my "Letters to The Times upon War and Neutrality (1881-1918)."

ATTACK FROM THE AIR

THE RULES OF INTERNATIONAL LAW

Sir,—In reply to Colonel Jackson's inquiry as to any rule of international law bearing upon aerial attack upon London, I referred him to the, now generally accepted, prohibition of the "bombardment, by any means whatever, of towns, &c., which are not defended." This rule has [068]been growing into its present form ever since the Brussels Conference of 1874. The words italicised were added to it in 1907, to show that it applies to the action of aéronefs as well as to that of land batteries. It clearly prohibits any wanton bombardment, undertaken with no distinctly military object in view, and the prohibition is much more sweeping, for reasons not far to seek, than that imposed by Convention No. ix. of 1907 upon the treatment of coast towns by hostile fleets.

So far good; but further questions arise, as to which no diplomatically authoritative answers are as yet available; and I, for one, am not wise above that which is written. One asks, for instance, what places are prima facie "undefended." Can a "great centre of population" claim this character, although it contains barracks, stores, and bodies of troops? For the affirmative I can vouch only the authority of the Institut de Droit International, which in 1896, in the course of the discussion of a draft prepared by General Den Beer Pourtugael and myself, adopted a statement to that effect. A different view seems to be taken in the German Kriegsbrauch, p. 22. One also asks: Under what circumstances does a place, prima facie, "undefended," cease to possess that character? Doubtless so soon as access to it is forcibly denied to the land forces of the enemy; hardly, to borrow an illustration from Colonel Jackson's letter of Thursday last, should the place merely decline to submit to the dictation of two men in an aeroplane.

I read with great pleasure the colonel's warning, addressed to the United Service Institution, and am as little desirous as he is that London should rely for protection upon The Hague article, ambiguous as I have confessed it to be; trusting, indeed, that our capital may be enabled so to act at once in case of danger as wholly to forfeit such claim as it may in ordinary times possess to be considered an "undefended" town. Let the principle [069]involved in Art. 25 be carried into much further detail, should that be found feasible, but, in the meantime, let us not for a moment relax our preparation of vertical firing guns and defensive aeroplanes.

SECTION 5

GERMANY AND THE HAGUE

Sir,—One excuse for German atrocities put forward, as you report, in the Kolnische Zeitung, ought probably not to pass unnoticed, denying, as it does, any binding authority to the restrictions imposed upon the conduct of warfare, on land or at sea, by The Hague Conventions of 1907. It is true that each of these Conventions contains an article to the effect that its provisions "are applicable only between the contracting Powers, and only if all the belligerents are parties to the Convention." It is also true that three of the belligerents in the world-war now raging—namely, Serbia, Montenegro, and, recently, Turkey—although they have (through their delegates) signed these Conventions, have not yet ratified them. Therefore, urges the Zeitung, the Conventions are, for present purposes, waste paper. The argument is as technically correct as [070]its application would be unreasonable; and I should like to recall the fact that, in the important prize case of the Möwe, Sir Samuel Evans, in a considered judgment, pointed out the undesirability of refusing application to the maritime conventions because they had not been ratified by Montenegro, which has no navy, or by Serbia, which has no seaboard; and accordingly, even after Turkey, which also has not ratified, had become a belligerent, declined to deprive a German shipowner of an indulgence to which he was entitled under the Sixth Hague Convention.

Admiral von Tirpitz was perhaps not serious when he intimated to the representative of the United Press of America that German submarines might be instructed to torpedo all trading vessels of the Allies which approach the British coasts. The first duty of a ship of war which proposes to sink an enemy vessel is admittedly, before so doing, to provide for the safety of all its occupants, which (except in certain rare eventualities) can only be secured by their being taken on board of the warship. A submarine has obviously no space to spare for such an addition to its own staff.

"THE PIRATES"

A ship is regarded by international law as "piratical"[071] only if, upon the high seas, she either attacks other vessels, without being commissioned by any State so to do (nullius Principis auctoritate, as Bynkershoek puts it), or wrongfully displaces the authority of her own commander. The essence of the offence is absence of authority, although certain countries, for their own purposes, have, by treaty or legislation, given a wider meaning to the term, e.g., by applying it to the slave-trade. "Murder" is such slaying as is forbidden by the national law of the country which takes cognizance of it.

In ordering the conduct of which we complain, Germany commits an atrocious crime against humanity and public law; but those who, being duly commissioned, carry out her orders, are neither pirates nor murderers. The question of the treatment appropriate to such persons, when they fall into our hands, is a new one, needing careful consideration. In any case, it is not for us to rival the barbarism of their Government by allowing them to drown.

SUBMARINE CREWS

Sir,—My letter in The Times of March 15 with reference to the conduct of certain of the German submarines has been followed by a good many other letters upon the same subject. Some of your correspondents have travelled far from the question at issue into the general question of permissible reprisals, into which I have no intention of following them. But others, by exhibiting what I may venture to describe as an ignoratio elenchi, have made it desirable to recall attention to the specific purport of my former letter. It was to the effect—(1) that the acts of those who, in pursuance of a Government commission, sink merchant vessels without warning are not "piracy," the essence of that offence at international law being that it [072]is committed under no recognised authority; and that neither is it "murder" under English law; (2) that the question of the treatment appropriate to the perpetrators of such acts, even under the orders of their Government, is a new one, needing careful consideration. I was, of course, far from stating, as a general rule, that Government authority exempts all who act under it from penal consequences. The long-established treatment of spies is sufficient proof to the contrary.

MR. WILSON'S NOTE

[I assume that the word "unarmed" here does not exclude the case of a vessel carrying arms solely for defence.]

The Note also recognises, what you some time ago allowed me to point out,

Adding:—

Nothing could be more satisfactory than the views thus authoritatively put forth, first as to the applicable law, and secondly as to the means by which its prescriptions can be carried out.

SECTION 6

GUERILLA WARFARE

1. Mr. Healy seemed to think that something turned [074]upon the date (May, 1898) at which these articles were promulgated. In point of fact they were a mere reissue of articles drawn by the well-known jurist Francis Lieber, and, after revision by a military board, issued in April, 1868 by President Lincoln.

2. To Mr. Morley's enquiry, "Have we no rules of our own?" the answer must be in the negative. The traditional policy of our War Office has been to "trust to the good sense of the British officer." This policy, though surprisingly justified by results, is so opposed to modern practice and opinion that, as far back as 1878-80, I endeavoured, without success, to induce the Office to issue to the Army some authoritative, though simple, body of instructions such as have been issued on the Continent of Europe and in America. The War Office was, however, content to include in its "Manual of Military Law," published in 1888, a chapter which is avowedly unauthoritative, and expressly stated to contain only "the opinions of the compiler, as drawn from the authorities cited."

3. The answer to Sir William Harcourt's unanswered question, "Were there no rules settled at the Hague?" must be as follows. The Hague Convention of 1899, upon "the laws and customs of warfare," ratified by this country on September 4 last, binds the contracting parties to give to their respective armies instructions in conformity with the Règlement annexed to the Convention. This Règlement, which is substantially a reproduction of the unratified projet of the Brussels Conference of 1874, does deal, in Arts. 1-3, with guerilla warfare. It is no doubt highly desirable that, as soon as may be, the drafting of rules in accordance with the Règlement should be seriously taken in hand, our Government having now abandoned its non possumus attitude in the matter. It will, however, be found to be the case, as was pointed out by Mr. Balfour, that the sharp distinction between combatants and non-combatants contemplated by the ordinary laws of war is inapplicable[075] (without the exercise of undue severity) to operations such as those now being carried out in South Africa.

THE RUSSIAN USE OF CHINESE CLOTHING

Sir,—If Russian troops have actually attacked while disguised in Chinese costume, they have certainly violated the laws of war. It may, however, be worth while, to point out that the case is not covered, as might be inferred from the telegram forwarded to you from Tokio on Wednesday last, by the text of Art. 23 (f) of the Règlement annexed to[076] The Hague Convention "on the laws and customs of war on land." This article merely prohibits "making improper use of the flag of truce, of the national flag or the military distinguishing marks and the uniform of the enemy, as well as of the distinguishing signs of the Geneva Convention."

Art. 1 of the Règlement is more nearly in point, insisting, as it does, that even bodies not belonging to the regular army, which, it is assumed, would be in uniform (except in the case of a hasty rising to resist invasion), shall, in order to be treated as "lawful belligerents," satisfy the following requirements, viz.:—

The fact that, in special circumstances, as in the Boer war, marks in the nature of uniform have not been insisted upon, has, of course, no bearing upon the complaint now made by the Japanese Government.

All signatories of The Hague Convention are bound to issue to their troops instructions in conformity with the Règlement annexed to it. The only countries which, so far as I am aware, have as yet fulfilled their obligations in this respect are Italy, which has circulated the French text of the Règlement without comment; Russia, which has prepared a little pamphlet of sixteen pages for the use of its armies in the Far East; and Great Britain, which has issued a Handbook, containing explanatory and supplementary matter, besides the text of the relevant diplomatic Acts.

THE RIGHTS OF ARMED CIVILIANS

An Englishman's Home was a play accurately representing the accepted practice, shocking as it must be. I remember the strength of an epithet which was launched from the gallery at the German officer on his ordering the [078]shooting of the offending householder. It may be hardly necessary to add that nothing in international usage justifies execution of innocent wives and children.

CIVILIANS IN WARFARE

THE RIGHT TO TAKE UP ARMS

In the same letter I wrote that "even in our own favoured country it is most desirable that every one should know [079]exactly how matters stand." There are, however, obvious objections, possibly not insuperable, to this result being brought about, as is proposed by Sir Ronald Ross, by Government action.

CIVILIANS AND A RAID

MISS CAVELL'S CASE

Sir,—The world-wide abhorrence of the execution of Miss Cavell, aggravated as it was by the indecent and stealthy haste with which it was carried out, is in no need of enhancement by questionable arguments, such as, I venture to say, are those addressed to you by Sir James Swettenham.[080]

It is, of course, the case that Germany is in Belgium only as the result of her deliberate violation of solemnly contracted treaties, but she is in military "occupation" of the territory. From such "occupation" it cannot be disputed that there flow certain rights of self-defence. No one, for instance, would have complained of her stern repression of civilian attacks upon her troops, so long as it was confined to actual offenders. The passages quoted by Sir James from Hague Convention v., and from the Kriegsbrauch, relate entirely to the rights and duties of Governments, and have no bearing upon the tragical abuse of jurisdiction which is occupying the minds of all of us.

May I take this opportunity of calling attention to the fresh evidence afforded by the new Order in Council of our good fortune in not being bound by the Declaration of London, which erroneously professed to "correspond in substance with the generally recognised principles of International Law"? Is it too late, even now, to announce, by a comprehensive Order in Council, any relaxations which we and our Allies think proper to make of well-established rules of Prize Law, without any reference to the more and more discredited provisions of the Declaration, the partial and provisional adoption of which seems, at the outbreak of the war, to have been thought likely to save trouble?

SECTION 7

OUR MERCANTILE MARINE IN WAR TIME

Before, however, adopting the measures recommended, with a view to the prevention of this loss, by Sir George Baden-Powell in your issue of this morning, it would be desirable to enquire how far they would be in accordance [082]with international law, and what would be the net amount of the relief which they would afford.

It is hardly necessary to say that non-compliance with the provisions of the Declaration of Paris by a non-signatory carries with it none of the consequences of a breach of the law of nations. The framers of that somewhat hastily conceived attempt to engraft a paper amendment upon the slowly matured product of œcumenical opinion, far from professing to make general law, expressly state that the Declaration "shall not be binding except upon those Powers who have acceded, or shall accede, to it." As regards Spain and the United States the Declaration is res inter alios acta.

It follows that, in recommending that any action taken by privateers against British vessels should be treated as an act of piracy, Sir George Baden-Powell is advocating an inadmissible atrocity, which derives no countenance from the view theoretically maintained by the United States, at the outset of the Civil War, of the illegality of commissions granted by the Southern Confederation. His recommendation that our ports should be "closed" to privateers is not very intelligible. Privateers would, of course, be placed under the restrictions which were imposed in 1870, in accordance with Lord Granville's instructions, even on the men-of-war of belligerents. They would be forbidden to bring in prizes, to stay more than twenty-four hours, to leave within twenty-four hours of the start of a ship of the other belligerent, to take more coal than enough to carry them to the nearest home port, and to take any further supply of coal within three months. We might, no doubt, carry discouragement of privateers by so much further as to make refusal of coal absolute in their case, but hardly so far as to deny entry to them under stress of weather.

The difficulties in the way of accepting Sir G. Baden-Powell's other suggestion are of a different order. Although we could not complain of the confiscation by either of the [083]supposed belligerents of enemy property found in British vessels, as being a violation of international duty, we might, at our own proper peril, announce that we should treat such confiscation as "an act of war." International law has long abandoned the attempt to define a "just cause of war." That must be left to the appreciation of the nations concerned. So to announce would be, in effect, to say: "Although by acting as you propose you would violate no rule, yet the consequences would be so injurious to me that I should throw my sword into the opposite scale." We should be acting in the spirit of the "Armed Neutralities" of 1780 and 1800. The expediency of so doing depends, first, upon the extent to which the success of our action would obviate the mischief against which it would be directed; and, secondly, upon the likelihood that the benefit which could be obtained only by imposing a new rule of international law in invitos would counterbalance the odium incurred by its imposition. On the former question it may be worth while to remind the mercantile community that, even under the Declaration of Paris, neutral trade must inevitably be put to much inconvenience. Any merchant vessel may be stopped with a view to the verification of her national character, of which the flag is no conclusive evidence. She is further liable to be visited and searched on suspicion of being engaged in the carriage of contraband, or of enemy military persons, or of despatches, or in running a blockade. Should the commander of the visiting cruiser "have probable cause" for suspecting any of these things, though the vessel is in fact innocent of them, he is justified in putting a prize crew on board and sending her into port, with a view to the institution of proceedings against her in a prize Court. A non-signatory of the Declaration of Paris may investigate and penalise, in addition to the above-mentioned list of offences, the carriage of enemy goods. This is, no doubt, by far the most important branch of the trade which is carried on [084]for belligerents by neutrals, but it must not be forgotten that even were this branch of trade universally indulged, in accordance with the Declaration of Paris neutral commerce would still remain liable to infinite annoyance from visit and search, with its possible sequel in a prize Court.

The question of the balance between benefit to be gained and odium to be incurred by insisting upon freedom to carry the goods of belligerents I leave to the politicians.

OUR MERCANTILE MARINE IN WAR TIME

Sir George Baden-Powell still fails to see that the Declaration of Paris was not a piece of legislation, but a contract, producing no effect upon the rights and duties of nations which were not parties to it. We did not thereby, as he supposes, "decline to recognise private vessels of war as competent to use force on neutral merchantmen." We merely bound ourselves not to use such vessels for such a [085]purpose. Sir George is still unable to discover for privateers any other category than the "status of pirate." He admits that it would not be necessary for their benefit to resort to "the universal use of the fore-yard-arm." Let me assure him that the bearer of a United States private commission of war would run no risk even of being hanged at Newgate. President Lincoln, it is true, at the outset of the Civil War, threatened to treat as pirates vessels operating under the "pretended authority" of the rebel States; but he was speedily instructed by his own law Courts—e.g. in the Savannah and in the Golden Rocket (insurance) cases—that even such vessels were not pirates iure gentium. It is also tolerably self-evident that we cannot absolutely "close" our ports to any class of vessels. There is no inconsistency here between my friend Sir Sherston Baker and myself. We can discourage access, and of course, by refusal of coal, render egress impossible for privateers. Mr. Coltman would apparently be inclined to carry this policy so far that he would disarm and intern even belligerent ships of war which should visit our ports: a somewhat hazardous innovation, one would think.

It is quite possible that the question of privateering may not become a practical one during the approaching war. Both parties may expressly renounce the practice, or they may follow the example of Prussia in 1870, and Russia at a later date, in commissioning fast liners under the command of naval officers—a practice, by the by, which is not, as Sir George seems to think, "right in the teeth of the Declaration of Paris." See Lord Granville's despatch in 1870.

On Sir George's proposals with reference to the carriage of enemy goods, little more need be said, except to deprecate arguments founded upon the metaphorical statement that "a vessel is part of the territory covered by her flag," a statement which Lord Stowell found it necessary to meet by the assertion that a ship is a "mere movable." There can be no possible doubt of the right, under international [086]law, of Spain and the United States to visit and search neutral ships carrying enemy's goods, and to confiscate such goods when found. They may also visit and search on many other grounds, and the question (one of policy) is whether, rather than permit this addition to the list, we choose to take a step which would practically make us belligerent. This question also, it may be hoped, will not press for solution.

In any case, let me express my cordial concurrence with your hope that, when hostilities are over, some really universal and lasting agreement may be arrived at with reference to the matters dealt with, as I venture to think prematurely, by the Declaration of Paris. A reform of maritime law to which the United States are not a party is of little worth. That search for contraband of war can ever be suppressed I do not believe, and fear that it may be many years before divergent national interests can be so far reconciled as to secure an agreement as to the list of contraband articles. In the meantime this country is unfortunately a party to that astonishing piece of draftsmanship, the "three rules" of the Treaty of Washington, to which less reference than might have been expected has been made in recent discussions. The ambiguities of this document, which have prevented it from ever being, as was intended, brought to the notice of the other Powers, with a view to their acceptance of it, are such that, its redrafting, or, better still, its cancellation, should be the first care of both contracting parties when the wished for congress shall take place.

May I add that no serious student of international law is likely either to overrate the authority which it most beneficially exercises, or to conceive of it as an unalterable body of theory.

OUR MERCANTILE MARINE IN WAR

THE DECLARATION OF PARIS

Mr. Bowles rightly maintains that the United States has not acceded to the Declaration as a whole, or to its second article, which exempts from capture enemy property in neutral ships. He means, of course, that neither the whole nor any part of that Declaration has been ratified [088]by the President with the advice and consent of the Senate. The whole contains, indeed, an article on privateering, to which, as it stands, the United States have always objected, and no part of the Declaration can be accepted separately.

"Anglo-Saxon," on the other hand, is equally justified in asserting that the "officially-recorded policy" of the States, i.e. of the Executive, is in accordance with Art. 2 of the Declaration. This policy has been consistently followed for more than half a century. Its strongest expression is perhaps to be found in the President's Proclamation of April 26, 1898, in which, after reciting that it being desirable that the war with Spain "should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice, it has already been announced that the policy of the Government will not be to resort to privateering, but to adhere to the rules for the Declaration of Paris," he goes on to "declare and proclaim" the three other articles of the Declaration. The rule of Art. 2, as to exemption of enemy goods in neutral ships, was embodied in Art. 19 of the Naval War Code of 1900 (withdrawn in 1904, for reasons not affecting the article in question), and reappears in Art. 17, amended only by the addition of a few words relating to "hostile assistance" in the draft Code which the United States delegates to the Conferences of 1907 and 1908 were instructed to bring forward "with the suggested changes, and such further changes as may be made necessary by other agreements reached at the Conference, as a tentative formulation of the rules which should be considered." (My quotation is from the instructions as originally issued in English.) Such changes as have been made in the Code are due to discussions which have taken place between high naval and legal authorities at the Naval War College. I do not know whether the annual reports of these discussions, with which I am kindly supplied, [089]are generally accessible, but would refer, especially with reference to the Declaration of Paris, to the volumes for 1904 and 1906.

It can hardly be necessary to add that no acts of the Executive, such as the Proclamation of 1898, the order putting in force the Code of 1900, or the instructions to delegates in 1907 and 1909, amount to anything like a ratification of the Declaration in the manner prescribed by the Constitution of the United States.

THE DECLARATION OF PARIS

It may, however, be worth while to point out why it was that no provision was made for the ratification of the Declaration of 1856, or for that of 1868 relating to the use of explosive bullets. At those dates, when the first steps were being taken towards the general adoption of written rules for the conduct of warfare, it was, curiously enough, supposed that agreement upon such rules might be sufficiently recorded without the solemnity of a treaty. This was, in my opinion, a mistake, which has been avoided in more recent times, in which the written law of war has been developed with such marvellous rapidity. Not only [090]have codes of such rules been promulgated in regular "Conventions," made in 1899, 1906, and 1907, but the so-called "Declarations," dealing with the same topic, of 1899, 1907, and 1909 have been as fully equipped as were those Conventions with provisions for ratification. The distinction between a "Convention" and a "Declaration" is therefore now one without a difference, and should no longer be drawn. Nothing in the nature of rules for the conduct of warfare can prevent their expression in Conventions, and the reason which seems to have promoted the misdescription of the work of the London Conference of 1908-9 as a "Declaration"—viz. an imaginary difference between rules for the application of accepted principles and wholly new rules—is founded in error. Much of the contents of The Hague "Conventions" is as old as the hills while much of the "Declaration" of London is revolutionary.

This by the way. It is not very clear whether Mr. Gibson Bowles, in exhorting us to denounce the Declaration, relies upon its original lack of ratification, or upon some alleged "privateering" on the part of the Germans. Nothing of the kind has been reported. The commissioning of warships on the high seas is a different thing, which may possibly be regarded as an offence of a graver nature. Great Britain is not going to imitate the cynical contempt for treaties, evidenced by the action of Germany in Belgium and Luxemburg, in disregard not only of the well-known treaties of 1889 and 1867, but of a quite recent solemn undertaking, to which I have not noticed any reference. Art. 2 of The Hague Convention No. v. of 1907, ratified by her in 1909, is to the following effect:—

The true ground for objecting to the legality of the purchase by Turkey of the German warships which have been forced to take refuge in her waters is no doubt that stated by Sir William Scott in the Minerva, 6 C. Rob. at p. 400—viz. that it would enable the belligerent to whom the ships belong "so far to rescue himself from the disadvantage into which he has fallen as to have the value at least restored to him by a neutral purchaser." The point is not touched upon in the (draft) Declaration of London.

Even supposing the purchase to be unobjectionable, the duty of Turkey to remove all belligerents from the ships would be unquestionable.

THE DECLARATION OF PARIS

In those early attempts at legislation for the conduct of warfare it seems to have been thought sufficient that the conclusions arrived at by authorised delegates should be announced without being embodied in a treaty. Surely, however, what purported to be international agreements [092]upon vastly important topics ought to have been accompanied by all the formalities required for "conventions," and should have been so entitled. In later times this has become the general rule for the increasingly numerous agreements which bear upon the conduct of hostilities. Thus we have The Hague "conventions" of 1899 and 1907, and the Geneva "convention" of 1906, all duly equipped with provisions for ratification. Such provisions are also inserted in certain other recent agreements dealing with aerial bombardments, gases, and expanding bullets, which it has nevertheless pleased their contrivers to misdescribe as "declarations." Equally so misdescribed was the deceased Declaration of London, with a view, apparently, to suggesting, as was far from being the case, that it was a mere orderly statement of universally accepted principles, creating no new obligations.

Is it not to be desired that all future attempts for the international regulation of warfare should not only be specifically made subject to ratification, but should also, in accordance with fact, be described as "conventions"?

THE DECLARATION OF PARIS

I must be excused from following Mr. Bowles into a [093]discussion of the bearing of those rules upon the Order in Council of March 11, 1915—a large and delicate topic, which must be studied in elaborate dispatches exchanged between this country and the United States.

SECTION 8

THE NATAL PROCLAMATION

By Art. 28 (b) of The Hague Regulations, "it is especially prohibited to kill or wound treacherously individuals belonging to the hostile nation or army": words which, one cannot doubt, would include not only assassination of individuals, but also, by implication, any offer for an individual "dead or alive." The Regulations are, of course, technically binding only between signatories of the convention to which they are appended; but Art. 28 (b) is merely an express enactment of a well-established rule of the law of nations. A recent instance of its application occurred, before the date of The Hague Convention, during [094]operations in the neighbourhood of Suakin. An offer by the British Admiral of a reward for Osman Digna, dead or alive, was, if I mistake not, promptly cancelled and disavowed by the home Government.

SECTION 9

BULLETS IN SAVAGE WARFARE

The law of the subject, as embodied in general international [095]national agreements, is to be found in four paragraphs; to which, be it observed, nothing is added by the unwritten, or customary, law of nations. Of these paragraphs, which I shall set out textually, three affirm general principles, while the fourth contains a specific prohibition. The general provisions are as follows:—

The only special prohibition is that contained in the Declaration of St. Petersburg, by which the contracting parties—

No one, so far as I am aware, has any wish to employ a bullet weighing less than 14 oz. which is either explosive or charged as above. So far, therefore, as the generally accepted laws of warfare are concerned, the only question as to the employment of Dum Dum or other expanding bullets is whether they "uselessly aggravate the sufferings of disabled men, or render their death inevitable"; in other words, whether they are "of a nature to cause superfluous injury." It is, however, probable that people who glibly talk of such bullets being "prohibited by The Hague Convention" [096]are hazily reminiscent, not of the Règlement appended to that convention, but of a certain "Declaration," signed by the delegates of many of the Powers represented at The Hague in 1899, to the effect that—

To this declaration neither Great Britain nor the United States are parties, and it is waste-paper, except for Powers on whose behalf it has not only been signed, but has also been subsequently ratified.

GASES

I venture to make a similar remark with reference to any discussion by the Peace Congress of "the freedom of the seas," a topic unfortunately included by President Wilson among his "14 points." The peace delegates will be concerned with questions of regroupings of territory, penalties, [098]and reparation. The rehabilitation and revision of international law is a different business, and should be reserved for a subsequent conference.

SECTION 10

WOUNDED HORSES IN WAR

Sir,—Everyone must sympathise with the anxiety felt by Mr. L.W. Pike to diminish the sufferings of horses upon the field of battle. How far any systematic alleviation of such sufferings may be compatible with the exigencies of warfare must be left to the decision of military experts. In the meantime it may be as well to assure Mr. Pike that the Geneva Convention of 1864 has nothing to do with the question, relating, as it does, exclusively to the relief of human suffering. This is equally the case with the second Geneva Convention, which Mr. Pike is right in supposing never to have been ratified. He is also right in supposing [099]that "the terms of the convention are capable of amendment from time to time," but wrong in supposing that they can be amended "by the setting up of precedents." The convention can be amended only by a new convention.

It is not the case that Art. 7 of the convention, which merely confides to commanders-in-chief, under the instructions of their respective Governments, "les détails d'exécution de la présente convention," gives them any authority to extend its scope beyond what is expressly stated to be its object—viz. "l'amélioration du sort des militaires blessés dans les armées en campagne." While, however, the Geneva Convention, does not contemplate the relief of animal suffering, it certainly cannot be "set up as a bar" to the provision of such relief. Commanders who may see their way to neutralising persons engaged in the succour or slaughter of wounded horses would be quite within their powers in entering into temporary agreements for that purpose.

I may add that the "Convention concerning the laws and customs of war on land," prepared by the recent conference at The Hague, and signed on behalf of most Governments, including our own, though not yet ratified, contains a chapter "Des malades et des blessés," which merely states that the obligations of belligerents on this point are governed by the Convention of Geneva of 1864, with such modifications as may be made in it. Among the aspirations (vœux) recorded in the "Acte final" of the conference, is one to the effect that steps may be taken for the assembling of a special conference, having for its object the revision of the Geneva Convention. Should such a conference be assembled Mr. Pike will have an opportunity of addressing it upon the painfully interesting subject which he has brought forward in your columns.

SECTION 11

INTERNATIONAL "USUFRUCT"

It remains to be seen how the conception of "usufruct" is to be imported into the relations of sovereign States, and, more especially, what are to be the relations of the usufructuary to States other than the State under which he holds. It is, of course, quite possible to adapt the terms [102]of Roman private law to international use. "Dominium," "Possessio," "Occupatio," have long been so adapted, but it has yet to be proved that "Usufructus" is equally malleable. I can recall no other use of the term in international discussions than the somewhat rhetorical statement that an invader should consider himself as merely the "usufructuary" of the resources of the country which he is invading; which is no more than to say that he should use them "en bon père de famille." It will be a very different matter to put a strict legal construction upon the grant of the "usufruct" of Port Arthur. By way of homage to the conception of such a grant, as presumably creating at the outside a life-interest, Russia seems to have taken it, in the first instance, only for twenty-five years. One may, however, be pardoned for sharing, with reference to this transaction, the scruples which were felt at Rome as to allowing the grant of a usufruct to a corporation—"periculum enim esse videbatur, ne perpetuus fieret."

P.S.—It would seem from M. Lehr's Éléments du droit civil Russe that "usufruct" is almost unknown to the law of Russia, though a restricted form of it figures in the code of the Baltic provinces.

REQUISITIONS IN WARFARE

An article in the current number of the Review of Reviews, to which my attention has just been called, contains some extraordinary statements upon the topic under discussion. The uninformed public is assured that "we owe the Boers payment in full for all the devastation which we have inflicted upon their private property ... it is our plain legal obligation, from the point of view of international law, to pay it to the last farthing." Then The Hague Convention is invoked as permitting interference with private [104]property "only on condition that it is paid for in cash by the conqueror, and, if that is not possible at the moment, he must in every case give a receipt, which he must discharge at the conclusion of hostilities." There is no such provision as to honouring receipts in this much-misquoted convention.

SECTION 12

PRIVATE PROPERTY AT SEA

It may be worth while to contrast with the attitude of a writer who seems unable to distinguish between economic pressure and physical cruelty that taken up by a competent body, the large majority of the members of which belong to nations which, for various reasons, incline to the abolition of the usage in question. The Institut de Droit International, encouraged by the weight attached to its Manual[105] of the Law of War on Land by the first and second Peace Conferences, has been, for some time past, working upon a Manual of the Laws of War at Sea. At its Christiania meeting in 1912 the Institut, while maintaining the previously expressed opinion of a majority of its members in favour of a change in the law, recognised that such a change has not yet come to pass, and that, till it occurs, regulations for the exercise of capture are indispensable, and directed the committee charged with the topic to draft rules presupposing the right of capture, and other rules to be applied should the right be hereafter surrendered (Annuaire, t. xxv., p. 602).

The committee accordingly prepared a draft, framed in accordance with the existing practice, to the discussion of which the Institut devoted the whole of its recent session at Oxford, eventually giving its imprimatur to a Manual of the law of maritime warfare, as between the belligerents, in 116 articles. As opportunity serves, the committee will prepare a second draft, proceeding upon the hypothesis that the right of capturing private property at sea has been surrendered, which, in its turn, will be debated, word for word, by the Institut de Droit International.

SECTION 13

THE EXECUTIONS AT PRETORIA

Sir,—No doubt is possible that by international law, as probably by every system of national law, all necessary means, including shooting, may be employed to prevent the escape of a prisoner of war. The question raised by the recent occurrence at Pretoria is, however, a different one—viz. What are the circumstances in connection with an attempt to escape which justify execution after trial by court-martial of the persons concerned in it? This question may well be dealt with a part from the facts, as to which we are as yet imperfectly informed, which have called for Mr. Winston Churchill's letter. With the arguments of that letter I in the main agree, but should not attach so much importance as Mr. Churchill appears to do to a chapter of [107]the British Manual of Military Law, which, though included in a Government publication, cannot be taken as official, since it is expressly stated "to have no official authority" and to "express only the opinions of the compiler, as drawn from the authorities cited."

I propose, without comment, to call attention to what may be found upon this subject in conventional International Law, in one or two representative national codes, and in the considered judgment of the leading contemporary international lawyers.

I. The Hague "Convention on the laws and customs of war on land" (ratified by twenty Powers) lays down:—

The Hague Conference, in adopting this article, adopted also, as an "authentic interpretation" of it, a statement that the indulgence granted to escapes does not apply to such as are accompanied by "special circumstances," of which the instances given are "complot, rébellion, émeute."

II. The United States Instructions:—

Cf. the French Code de Justice Militaire, Art. 204, and other Continental codes to the same effect.

III. The Manuel des Lois de la guerre sur terre of the Institute of International Law lays down:—

THE PETITION OF RIGHT

1. Although, as is common knowledge, the words "in time of peace," so familiar in the Mutiny Acts from the reign of Queen Anne onwards, do not occur in the Petition, they do occur, over and over again, in the arguments used in the House of Commons by "the framers of the Petition of Right," to employ the phraseology of the judgment recently delivered in the Privy Council by the Lord Chancellor.[109]

2. The prohibition contained in the Petition, so far from being "absolute and unqualified," is perfectly specific. It refers expressly to "Commissions of like nature" with certain Commissions lately issued:—

The text of these Commissions, the revocation of which is demanded by the Petition, is still extant.

3. The Petition neither affirms nor denies the legality of martial law in time of war; although its advocates were agreed that at such a time martial law would be applicable to soldiers.

4. A war carried on at a distance from the English shore as was the war with France in 1628, did not produce such a state of things as was described by the advocates of the Petition as "a time of war." "We have now no army in the field, and it is no time of war," said Mason in the course of the debates. "If the Chancery and Courts of Westminster be shut up, it is time of war, but if the Courts be open, it is otherwise; yet, if war be in any part of the Kingdom, that the Sheriff cannot execute the King's writ, there is tempus belli," said Rolls.

THE PETITION OF RIGHT

In the first place I pointed out that the words occurring in a recent judgment of the Privy Council, which were cited [110]by Mr. Jenks as a clear example of an assumption "that the Petition of Right, in prohibiting the exercise of martial law, restricted its prohibition to time of peace," imply, as I read them, no assumption as to the meaning of that document, but merely contain an accurate statement of fact as to the line of argument followed by the supporters of the Petition in the House of Commons. Can Mr. Jenks really suppose that in making this remark I was "appealing from the 'text of the Petition' to the debates in Parliament"?

I then proceeded to deal very shortly with the Petition itself, showing that while it neither condemns nor approves of the application of martial law in time of war (see Lord Blackburn's observations in R. v. Eyre), the prohibition contained in its martial law clauses, so far from being "absolute and unqualified," relates exclusively to "commissions of like nature" with certain commissions which had been lately issued (at a time which admittedly, for the purposes of this discussion, was not "a time of war"), the text of which is still preserved, and the character of which is set forth in the Petition itself, as having authorised proceedings within the land, "according to the justice of martial law, against such soldiers or mariners," as also against "such other dissolute persons joining with them," &c. The description of these commissions, be it observed, is not merely introduced into the Petition by way of recital, but is incorporated by express reference into the enacting clause.

Thus much and no more I thought it desirable to say upon these two topics by way of dissent from a letter of Mr. Jenks upon the subject. In a second letter Mr. Jenks rides off into fresh country. I do not propose to follow him into the history of the conferences which took place in May, 1628, after the framing of the Petition of Right, except to remark that what passed at these conferences is irrelevant to the interpretation to be placed upon the Petition, and, if relevant, would be opposed to Mr. Jenks's contention. It is well known that the Lords pressed the Commons to [111]introduce various amendments into the Petition and to add to it the famous reservation of the "sovereign power" of the King. One of the proposed amendments referred, as Mr. Jenks says, to martial law, forbidding its application to "any but soldiers and mariners," or "in time of peace, or when your Majesty's Army is not on foot." The Commons' objection to this seems to have been that it was both unnecessary and obscurely expressed. "Their complaint is against commissions in time of peace." "It may be a time of peace, and yet his Majesty's Army may be on foot, and that martial law was not lawful here in England in time of peace, when the Chancery and other Courts do sit." "They feared that this addition might extend martial law to the trained bands, for the uncertainty thereof." The objections of the Commons were, however, directed not so much to the amendments in detail as to any tampering with the text of the Petition. "They would not alter any part of the Petition" (nor did they, except by expunging two words alleged to be needlessly offensive), still less would they consent to add to it the reservation as to the "sovereign power" of the King.

The story of these abortive conferences, however interesting historically, appears to me to have no bearing upon the legality of martial law, and I have no intention of returning to the subject.

MARTIAL LAW IN NATAL

Sir,—It seems that in the application made yesterday to the Judicial Committee of the Privy Council, on behalf of Natal natives under sentence of death, much stress was laid upon the argument that a proclamation of martial law cannot have a retrospective application. You will, perhaps, therefore allow me to remind your readers that, so far from [112]the date of the proclamation having any bearing upon the merits of this painful case, the issue of any proclamation of martial law, in a self-governing British colony, neither increases nor diminishes the powers of the military or other authorities to take such steps as they may think proper for the safety of the country. If those steps were properly taken they are covered by the common law; if they have exceeded the necessities of the case they can be covered only by an Act of Indemnity. The proclamation is issued merely, from abundant caution, as a useful warning to those whom it may concern.

This view, I venture to think, cannot now be seriously controverted; and I am glad to find, on turning to Mr. Clode's Military and Martial Law that the passage cited in support of Mr. Jellicoe's contention as to a proclamation having no retroactive application is merely to the effect that this is so, if certain statements, made many years ago in a debate upon the subject, are correct. As to their correctness, or otherwise, Mr. Clode expresses no opinion.

SECTION 14

NAVAL ATROCITIES

THE NAVAL MANŒUVRES

Sir,—In a letter which I addressed to you on the 7th inst. I ventured to point out the discrepancy between the proceedings of certain vessels belonging to Admiral Tryon's fleet and the rules of civilised warfare. Your correspondent on board Her Majesty's ship Ajax yesterday told us something of the opinion of the fleet as to the bombardment and ransoming of defenceless seaboard towns, going on to predict that, in a war in which England should be engaged, privateers would again be as plentiful as in the days of[114] Paul Jones, and assuring us that in such a war "not the slightest respect would be paid to old-fashioned treaties, protocols, or other diplomatic documents." Captain James appears, from his letter which you print to-day, to be of the same opinion as the fleet, with reference both to bombardments and to privateers; telling us also in plain language that "the talk about international law is all nonsense."

Two questions are thus raised which seem worthy of serious consideration. First, what are the rules of international law with reference to the bombardment of open towns from the sea (I leave out of consideration the better understood topic of privateering)? Secondly, are future wars likely to be conducted without regard to international law?

1. I need hardly say that I do not, as Captain James supposes, contend "that unfortified towns will never be bombarded or ransomed." International law has never prohibited, though it has attempted to restrict, the bombardment of such towns. Even in 1694 our Government defended the destruction of Dieppe, Havre, and Calais only as a measure of retaliation, and in subsequent naval wars operations of this kind have been more and more carefully limited, till in the Crimean war our cruisers were careful to abstain from doing further damage than was involved in the confiscation or destruction of stores of arms and provisions. The principles involved were carefully considered by the military delegates of all the States of Europe at the Brussels Conference of 1874, and their conclusions, which apply, I conceive, mutatis mutandis, to operations conducted by naval forces against places on land, are as follows:—

These conclusions are substantially followed in the chapter on the "Customs of War" contained in the Manual of Military Law issued for the use of officers by the British War Office.

The bombardment of an unfortified town would, I conceive, be lawful—(1) as a punishment for disloyal conduct; (2) in extreme cases, as retaliation for disloyal conduct elsewhere; (3) for the purpose of quelling armed resistance (not as a punishment for resistance when quelled); (4) in case of refusal of reasonable supplies requisitioned, or of a reasonable money contribution in lieu of supplies. It would, I conceive, be unlawful—(1) for the purpose of enforcing a fancy contribution or ransom, such as we were told was exacted from Liverpool; (2) by way of wanton injury to private property, such as was supposed to have been caused in the Clyde and at Folkestone, and a fortiori such as would have resulted from the anticipated shelling during the night-time of the south coast of the Isle of Wight.

2. Is it the case that international law is "all nonsense," and that "when we are at war with an enemy he will do his best to injure us: he will do so in what way he thinks proper, all treaties and all so-called international law [116]notwithstanding"? Are we, with Admiral Aube, to speak of "cette monstrueuse association de mots: les droits de la guerre"? If so, cadit quæstio, and a vast amount of labour has been wasted during the last three centuries. I can only say that such a view of the future is not in accordance with the teachings of the past. The body of accepted usage, supplemented by special conventions, which is known as international law, has, as a matter of fact, exercised, even in time of war, a re staining influence on national conduct. This assertion might be illustrated from the discussions which have arisen during recent wars with reference to the Geneva Conventions to the treatment of the wounded and the St. Petersburg declaration against the use of explosive bullets. The binding obligation of these instruments, which would doubtless be classed by your correspondent with the fleet among "old-fashioned treaties, protocols, and other diplomatic documents," has never been doubted, while each party has eagerly endeavoured to disprove alleged infractions of them.

The naval manœuvres have doubtless taught many lessons of practical seamanship. They will have done good service of another sort if they have brought to the attention of responsible statesmen such questions as those with which I have attempted to deal. It is essential that the country should know the precise extent of the risks to which our seaboard towns will be exposed in time of war, and it is desirable that our naval forces should be warned against any course of action, in their conduct of mimic warfare, which could be cited against us, in case we should ever have to complain of similar action on the part of a real enemy.

THE NAVAL MANŒUVRES

The naval historian, Mr. Younge, in commenting on the burning of Paita, in Chili, as far back as 1871, for non-compliance with a demand for a money contribution (ultimately reduced to a requisition of provisions for the ships), speaks of it as "worthy only of the most lawless pirate or buccaneer, ... as a singular proof of how completely the principles of civilised warfare were conceived to be confined to Europe."

Such exceptional acts as the burning of Paita, or the bombardment of Valparaiso, mentioned by Mr. Herries, will, of course, occur from time to time. My position is that they are so far stigmatised as barbarous by public opinion that their perpetration in civilised warfare may be regarded as improbable; in other words, that they are forbidden by international law.

It is a further question whether the rules of international law on this point are to be changed or disregarded in future. Do we expect, and are we desirous, that future wars shall be conducted in accordance with buccaneering precedent, or with what has hitherto been the general practice of the nineteenth century? Your naval correspondents incline to revert to buccaneering and thus to the introduction into naval coast operations of a rigour long unknown to the operations of military forces on land; but they do so with a difference. Lord Charles Beresford (writing early in the controversy) asserts the permissibility of ransoming and destroying, without any qualifying expressions; while Admiral de Horsey would apparently only ask "rich" towns for contributions, insisting also that a contribution must be "reasonable," and expressly repudiating any claim to do "wanton injury to property of poor communities, and still less to individuals." In the light of these concessions, I venture to claim Admiral de Horsey's [119]concurrence in my condemnation of most of the doings mentioned in my first letter, although on the whole he ranges himself on the side of the advocates of what I maintain to be a change in the existing law of war. Whether or no the existing law needs revision is a question for politicians and for military and naval experts. It is within my province only to express a hope that the contradiction between existing law and new military necessities (if, indeed, such contradiction exists) will not be solved by a repudiation of all law as "nonsense"; and, further, that, if a change of law is to be effected, it will be done with due deliberation and under a sense of responsibility. It should be remembered that operations conducted with the apparent approval of the highest naval authorities, and letters in The Times from distinguished admirals, are in truth the stuff that public opinion, and in particular that department of public opinion known as "international law," is made of.

The ignorance, by the by, which certain of my critics have displayed of the nature and claims of international law is not a little surprising. Some seem to identify it with treaties; others with "Vattel." Several, having become aware that it is not law of the kind which is enforced by a policeman or a County Court bailiff, have hastened, much exhilarated, to give the world the benefit of their discovery. Most of them are under the impression that it has been concocted by "bookworms," "jurists," "professors," or other "theorists," instead of, as is the fact, mainly by statesmen, diplomatists, prize courts, generals and admirals. This is, however, a wide field, into which I must not stray. I have even avoided the pleasant by-paths of disquisition on contraband, privateering, and the Declaration of Paris generally, into which some of your correspondents have courteously invited me. I fear we are as yet far from having disposed of the comparatively simple question as to the operations which may be [120]properly undertaken by a naval squadron against an undefended seaboard.

NAVAL BOMBARDMENTS OF UNFORTIFIED PLACES

In the first place, it may be hardly necessary to point out the irrelevancy of the reference, alleged to have been made in the Russian Note, to "Article 25 of The Hague Convention." The Convention and the Règlement annexed to it are, of course, exclusively applicable to "la guerre sur terre." Not only, however, would any mention of a naval bombardment have been out of place in that Règlement, but a proposal to bring such action within the scope of its 25th Article, which prohibits "the attack or bombardment of towns, villages, habitations, or buildings which are not defended," was expressly negatived by the Conference of The Hague. It became abundantly clear, during the discussion of this proposal, that the only chance of an agreement being arrived at was that any allusion to maritime warfare should be carefully avoided. It was further ultimately admitted, even by the advocates of the proposal, that the considerations applicable to bombardments by an army and by a naval force respectively are not identical. It was, for instance, urged that an army has means other than those which may alone be [121]available to a fleet for obtaining from an open town absolutely needful supplies. The Hague Conference, therefore, left the matter where it found it, recording, however, among its "pious wishes" (vœux) one to the effect "that the proposal to regulate the question of the bombardment of ports, towns, and villages by a naval force should be referred for examination to a future conference."

The topic is not a new one. You, Sir, allowed me to raise it in your columns with reference to the naval manœuvres of 1888, when a controversy ensued which disclosed the existence of a considerable amount of naval opinion in favour of practices which I ventured to think in contravention of international law. It was also thoroughly debated in 1896 at the Venice meeting of the Institut de Droit International upon a report drafted by myself, as chairman of a committee appointed a year previously. This report lays down that the restrictions placed by international law upon bombardments on land apply also to those effected from the sea, except that such operations are lawful for a naval force when undertaken with a view to (1) obtaining supplies of which it is in need; (2) destroying munitions of war or warships which may be in a port; (3) punishing, by way of reprisal, violations by the enemy of the laws of war. Bombardments for the purpose of exacting a ransom or of putting pressure upon the hostile Power by injury to peaceful individuals or their property were to be unlawful. The views of the committee were, in substance, adopted by the Institut, with the omission only of the paragraph allowing bombardment by way of reprisals.

SECTION 15

REPRISALS

REPRISALS

SECTION 16

UNDESIRABLE PEACE TALK

Sir,—There has been more than enough of premature discussion by groups of well-meaning amateurs, not unfrequently wirepulled by influences hostile to this country, [125]with reference to the terms of the treaty of peace by which the world-war now raging will be brought to a close.

Movements of the kind have culminated in the action of a body rejoicing in the somewhat cumbrous title of the "International Central Organisation for a Durable Peace," which is inviting members of about fifty societies, of very varying degrees of competence, to a cosmopolitan meeting, to be held at Berne in December next. Lest the unwary should be beguiled into having anything to do with the plausible offer made to them that they should, there and then, assist in compiling "a scientific dossier, containing material that will be of vast importance to the diplomats who may be chosen to participate in the peace congress itself," it may be worth while to call attention to the composition of the executive committee by which the invitations are issued, and to its "minimum programme."

Of the members of this committee (of thirteen), on which Great Britain is represented only by Mr. Lowes Dickenson (mistakenly described as a Cambridge Professor), and America only by Mrs. Andrews, of Boston, the best known are Professors Lammasch, of Vienna, and Schücking, of Marburg. The "minimum programme" demands, inter alia, "equal rights for all nations in the colonies, &c.," of the Powers; submission of all disputes to "pacific procedure," joint action by the Powers against any one of them resorting to military measures, rather than to such procedure; and that "the right of prize shall be abolished, and the freedom of the seas shall be guaranteed." The provenance of this "minimum programme" is sufficiently obvious. What is likely to be the character of such a "maximum programme" as will doubtless be aimed at by the proposed gathering?

CHAPTER VII

SECTION 1

PROFESSOR DE MARTENS ON THE SITUATION

On matters of fact it would appear that he is no better informed than are most of us in this country; and under matters of fact may be included the breaches of neutrality which he is represented as counter-charging against the Japanese. It is exclusively with the views on questions of law which are attributed to Professor de Martens that I am now concerned. He is unquestionably right in saying, as I pointed out in a recent letter, that the hard-and-fast rule, [127]fixing 24 hours as the limit, under ordinary circumstances, of the stay of a belligerent warship in neutral waters, is not yet universally accepted as a rule of international law; and, in particular, is not adopted by France.

But what of the further dictum attributed to Professor de Martens, to the effect that "each country is its own judge as regards the discharge of its duties as a neutral"? This statement would be a superfluous truism if it meant merely that each country, when neutral, must, in the first instance, decide for itself what courses of action are demanded from it under the circumstances. The words may, however, be read as meaning that the decision of the neutral country, as to the propriety of its conduct, is final, and not to be questioned by other Powers. An assertion to this effect would obviously be the negation of the whole system of international law, of which Professor de Martens is so great a master, resting, as that system does, not on individual caprice, but upon the agreement of nations in restraint of the caprice of any one of them. The last word, with reference to the propriety of the conduct of any given State, rests, of course, not with that State; but with its neighbours. "Securus indicat orbis terrarum." Any Power which fails in the discharge, to the best of its ability, of a generally recognised duty, is likely to find that self-satisfaction is no safeguard against unpleasant consequences. Professor de Martens would, I am certain, endorse this statement.

NEUTRALS AND THE LAWS OF WAR

Sir,—The interesting address by Sir Edward Carson reported in your issue of yesterday will remind many of us of our regret that President Wilson, in Notes complaining of injuries sustained by American citizens, dwelt so slightly [128]upon the violations of international law by which those injuries were brought about.

Sir Edward seems, however, to have made use of certain expressions which might be taken to imply a view of neutral responsibility which can hardly be accepted. The United States were warned in the address that they will not "by a mere Note maintain the obligations which are put upon them, as parties to international law, which are to prevent breaches of civilisation and to mitigate the horrors of war." Neutrals were spoken of as "the executives of international law," and as alone standing "behind the conventions" (for humanising warfare). "Abolish," we were told, "the power of neutrals, and you have abolished international law itself."

Is this so? The contract into which a State enters with other States, by adopting the customary laws of war and by ratifying express Conventions dealing with the same subject, obliges it, while remaining neutral, to submit to certain inconveniences resulting from the war, and, when belligerent, to abstain from certain modes of carrying on hostilities. It is assuredly no term of the contract that the State in question shall sit in judgment upon its co-contractors and forcibly intervene in rebus inter alios actis. Its hands are absolutely free. It may remain a quiescent spectator of evil, or, if strong enough and indignant with the wrongdoing, may endeavour to abate the mischief by remonstrance, and, in the last resort, by taking sides against the offender. Let us hope that at the present crisis the United States may see their way to choosing the better part.

SECTION 2

CONTRABAND OF WAR

Articles are "contraband of war" which a belligerent is justified in intercepting while in course of carriage to his enemy, although such carriage is being effected by a neutral vessel. Whether any given article should be treated as contraband is, in the first instance, entirely a question for the belligerent Government and its Prize Court. A neutral Government has no right to complain, of hardships which may thus be incurred by vessels sailing under its flag, but [131]is bound to acquiesce in the views maintained by the belligerent Government and its Courts, unless these views involve, in the language employed by Lord Granville in 1861, "a flagrant violation of international law." This is the beginning and end of the doctrine of contraband. A neutral Government has none other than this passive duty of acquiescence. Its neutrality would not be compromised by the shipment from its shores, and the carriage by its merchantmen, of any quantity of cannon, rifles, and gunpowder.

Widely different from the above are the following three topics, into the consideration of which discussions upon contraband occasionally diverge:—

1. The international duty of the neutral Government not to allow its territory to become a base of belligerent operations: e.g. by the organisation on its shores of an expedition, such as that which in 1828 sailed from Plymouth in the interest of Dona Maria; by the despatch from its harbours for belligerent use of anything so closely resembling an expedition as a fully equipped ship of war (as was argued in the case of the Alabama); by the use of its ports by belligerent ships of war for the reception of munitions of war, or, except under strict limitations, for the renewal of their stock of coal; or by such an employment of its colliers as was alleged during the Franco-Prussian war to have implicated British merchantmen in the hostile operations of the French fleet in the North Sea. The use of the term "contraband" with reference to the failure of a neutral State to prevent occurrences of this kind is purely misleading.

2. The powers conferred upon a Government by legislation of restraining its subjects from intermeddling in a war in which the Government takes no part. Of such legislation our Foreign Enlistment Act is a striking example. The large powers conferred by it have no commensurable relation to the duties which attach to the position of neutrality. Its effect is to enable the Government to pro[132]hibit and punish, from abundant caution, many acts on the part of its subjects for which it would incur no international liability. It does empower the Government to prevent the use of its territory as a base: e.g. by aid directly rendered thence to a belligerent fleet; but it, of course, gives no right of interference with the export or carriage of articles which may be treated as contraband.

3. The powers conferred upon a Government by such legislation as section 150 of the Customs Consolidation Act; 1853, now reproduced in a later enactment, of forbidding at any time, by Order in Council, the export of articles useful in war. The power thus given has no relation to international duty, and is mainly intended to be exercised, in the way of self-protection, when Great Britain is, or is likely to be, engaged in war. The object of the enactment is to enable the Government to retain in the country articles of which we may ourselves be in need, or to prevent them from reaching the hands of our enemies. The articles enumerated—e.g. arms, ammunition, marine engines, &c.—are, neither in the Act of 1853 nor in the Order in Council of the following year, described as "contraband of war."

COAL FOR THE RUSSIAN FLEET

Sir,—The use of coal for belligerent purposes is, of course, of comparatively modern date, and it is hardly surprising to find that the mercantile community, as would appear from your marine insurance article of this morning, does not clearly distinguish between the different classes of questions to which such use may give rise. There is indeed a widely prevalent confusion, even in quarters which ought to be better informed, between two topics which it is essential to keep separate—viz. the shipment of contraband, [133]and the use of neutral territory as a base for belligerent operations.

A neutral Government (our own at the present moment) occupies a very different position with reference to these two classes of acts. With reference to the former, its international duty (as also its national policy) is merely one of acquiescence. It is bound to stand aside, and make no claim to protect from the recognised consequences of their acts such of its subjects as are engaged in carriage of contraband. So far as the neutral Government is concerned, its subjects may carry even cannon and gunpowder to a belligerent port, while the belligerent, on the other hand, who is injured by the trade may take all necessary stops to suppress it.

Such is the compromise which long experience has shown to be both reasonable and expedient between the, in themselves irreconcilable, claims of neutral and belligerent States. So far, it has remained unshaken by the arguments of theorists, such as the Swedish diplomatist M. Kleen, who would impose upon neutral Governments the duty of preventing the export of contraband by their subjects. A British trader may, therefore, at his own proper risk, despatch as many thousand tons of coal as he chooses, just as he may despatch any quantity of rifles or bayonets, to Vladivostok or to Nagasaki.

It by no means follows that British shipowners may charter their vessels "for such purposes as following the Russian fleet with coal supplies." Lord Lansdowne's recent letter to Messrs. Woods, Tylor, and Brown is explicit to the effect that such conduct is "not permissible." Lord Lansdowne naturally confined himself to answering the question which had been addressed by those gentlemen to the Foreign Office; but the reason for his answer is not far to seek. The unlawfulness of chartering British vessels for the purpose above mentioned is wholly unconnected with the doctrine of contraband, but is a consequence of the international duty, [134]which if incumbent on every neutral State, of seeing that its territory is not made a base of belligerent operations. The question was thoroughly threshed out as long ago as 1870, when Mr. Gladstone said in the House Of Commons that the Government had adopted the opinion of the law officers:

British colliers attendant on a Russian fleet would be so undeniably aiding and abetting the operations of that fleet as to give just cause of complaint against us to the Government of Japan. The British shipper of coal to a belligerent fleet at sea, besides thus laying his Government open to a charge of neglect of an international duty, lays himself open to criminal proceedings under the Foreign Enlistment Act of 1870. By section 8 (3) and (4) of that Act "any person within H.M. Dominions" who (subject to certain exceptions) equips or despatches any ship, with intent, or knowledge, that the same will be employed in the military or naval service of a foreign State, at war with any friendly State, is liable to fine or imprisonment, and to the forfeiture of the ship. By section 30, "naval service" covers "user as a store-ship," and "equipping" covers furnishing a ship with "stores or any other thing which is used in or about a ship for the purpose of adapting her for naval service." Our Government has, therefore, ample powers for restraining, in this respect, the use of its territory as a base. It has no power, had it the wish (except for its own protection, under a different statute), to restrain the export of contraband of war.

It would tend to clearness of thought if the term "contraband" were never employed in discussions with reference to prohibition of the supply of coal to a belligerent fleet at sea.

GERMAN WAR MATERIAL FOR TURKEY

SECTION 3

THE BRITISH PROCLAMATION OF NEUTRALITY

1. The rule of international law upon the subject may, I think, be expressed as follows: "A belligerent is entitled to capture a neutral ship engaged in carrying contraband of war to his enemy, to confiscate the contraband cargo, and, in some cases, to confiscate the ship also, without thereby giving to, the Power to whose subjects the property in question belongs any ground for complaint." Or, to vary the phrase, "a neutral Power is bound to acquiesce in losses inflicted by a belligerent upon such of its subjects as are engaged in adding to the military resources of the enemy of that belligerent." This is the rule to which the nations have consented, as a compromise between the right of the neutral State that its subjects should carry on their trade without interruption, and the right of the belligerent State to prevent that trade from bringing an accession of strength to his enemy. International law here, as always, deals with [137]relations between States, and has nothing to do with the contraband trader, except in so far as it deprives him of the protection of his Government. If authority were needed for what is here advanced, it might be found in Mr. Justice Story's judgment in the Santissima Trinidad, in President Pierce's message of 1854, and in the statement by the French Government in 1898, with reference to the case of the Fram, that "the neutral State is not required to prevent the sending of arms and ammunition by its subjects."

2. Neither is carriage of contraband any offence against the law of England; as may be learnt, by any one who is in doubt as to the statement, from the lucid language of Lord Westbury in Ex parte Chavasse (34 L.J., Bkry., 17). And this brings me to the gist of this letter. I have long thought that the form of the Proclamation of Neutrality now in use in this country much needs reconsideration and redrafting. The clauses of the Proclamation which are set out by Mr. Gibson Bowles in your issue of this morning rightly announce that every person engaging in breach of blockade or carriage of contraband "will be justly liable to hostile capture and to the penalties denounced by the law of nations in that behalf, and will in no wise obtain protection from us against such capture or such penalties." So far, so good. But the Proclamation also speaks of such acts as those just mentioned as being done "in contempt of this our Royal Proclamation, in derogation of their duty as subjects of a neutral Power in a war between other Powers, or in violation or contravention of the law of nations in that behalf." It proceeds to say that all persons "who may misconduct themselves in the premises ... will incur our high displeasure for such misconduct." I venture to submit that all these last-quoted phrases are of the nature of misleading rhetoric, and should be eliminated from a statement the effective purport of which is to warn British subjects of the treatment to which certain courses of conduct will expose them at the hands of [138]belligerents, and to inform them that the British Government will not protect them against such treatment. The reason why our Government will abstain from interference is, not that such courses of action are offences either against international or English law, but that it has no right to so interfere; having become a party to a rule of international law, under which a neutral Government waives the right, which it would otherwise possess, to protect the trade of its subjects from molestation.

THE BRITISH PROCLAMATION OF NEUTRALITY

1. The earlier proclamations merely call attention to the English law against enlistments, &c., for foreign service; and command obedience to the law, upon pain of the penalties thereby inflicted, "and of his Majesty's high displeasure." In the proclamation of 1817, the tacit reference is doubtless to certain Acts of George II, which, having been passed for a very different purpose, and having proved inadequate in their new application, were repealed by the Foreign Enlistment Act of 1819. This is the Act to which reference is made in the proclamations of 1823 and 1825; in the former of which we first get a recital of neutrality; while in the latter the clause enjoining all subjects strictly to observe the duties of neutrality and to respect the exercise of belligerent rights first makes its appearance.[139]

2. The proclamation of 1859 is of a very different character, bearing traces of the influence of the ideas which had inspired the action of President Washington in 1793. While carrying on the old, it presents several new features. British subjects are enjoined to abstain from violating, not only "the laws and statutes of the realm," but also (for the first time) "the law of nations." They are also (for the first time) warned that, if any of them "shall presume, in contempt of this our Royal Proclamation, and of our high displeasure, to do any acts in derogation of their duty as subjects of a neutral Sovereign, ... or in violation of the law of nations, ... as, more especially," by breach of blockade, or carriage of contraband, &c., they will "rightfully incur, and be justly liable to, hostile capture, and to the penalties denounced by the law of nations in that behalf"; and notice is (for the first time) given that those "who may misconduct themselves in the premises will do so at their peril, and of their own wrong; and that they will in no wise obtain any protection from Us against such capture, or such penalties as aforesaid, but will, on the contrary, incur Our high displeasure by such misconduct."

The proclamations of 1861 and February and March 1866 complicate matters, by making the warning clause as to blockade and contraband apply also to the statutory offences of enlistment, &c.; but the proclamation of June, 1866, gets rid of this complication by returning to the formula of 1859, which has been also followed in 1870, 1877, 1898, and in the present year.

The formula as it now stands, after the process of growth already described, may be said to consist of seven parts—viz. (1) a recital of neutrality; (2) a command to subjects to observe a strict neutrality, and to abstain from contravention of the laws of the realm or the law of nations in relation thereto; (3) a recital of the Foreign Enlistment Act of 1870; (4) a command that the statute be obeyed, upon pain of the penalties thereby imposed, "and of Our [140]high displeasure"; (5) a warning to observe the duties of neutrality, and to respect the exercise of belligerent rights; (6) a further warning to those who, in contempt of the proclamation "and of Our high displeasure," may do any acts "in derogation of neutral duty, or in violation of the law of nations," especially by breach of blockade, carriage of contraband, &c., that they will be liable to capture "and to the penalties denounced by the law of nations"; (7) a notification that persons so misconducting themselves "will in no wise obtain any protection from Us," but will, "on the contrary, incur Our high displeasure by such misconduct."

The question which I have ventured to raise is whether the textus receptus, built up, as it has been, by successive accretions, is sufficiently in accordance with the facts to which it purports to call the attention of British subjects to be properly submitted to His Majesty for signature. I would suggest for consideration: 1. Whether the phrases commanding obedience, on pain of His Majesty's "high displeasure," and the term "misconduct," should not be used only with reference to offences recognised as such by the law of England. 2. Whether such condensed, and therefore incorrect, though very commonly employed, expressions as imply that breach of blockade and carriage of contraband are "in violation of the law of nations," and are liable to "the penalties denounced by the law of nations," should not be replaced by expressions more scientifically correct. The law of nations neither prohibits the acts in question nor prescribes penalties to be incurred by the doers of them. What it really does is to define the measures to which a belligerent may resort for the suppression of such acts, without laying himself open to remonstrance from the neutral Government to which the traders implicated owe allegiance.

THE BRITISH PROCLAMATION OF NEUTRALITY

With the phraseology of No. 1, reciting British neutrality, and Nos. 2-5, dealing with the duties of British subjects under the Foreign Enlistment Act of 1870, and constituting [142]the bulk of the Proclamation, little serious fault can be found. It is well that such persons should be warned of the penalties which they may incur, including the Royal displeasure.

The remaining two clauses relate, however, to matters of a totally different character from those previously mentioned, and care should therefore have been taken, but has not been taken, to make this perfectly clear. I would further remark upon these clauses: (1) That I agree with Mr. Bowles in regretting the omission here of the specific mention made in 1904 of "breach of blockade," "carriage of contraband," &c., as specimens of the acts undoubtedly contemplated in these two clauses; (2) that it is a mistake to describe acts of this kind as being in derogation of "the duty of subjects of a neutral Power," or "in violation of the Law of Nations," or as "liable to the penalties denounced by such law." Carriage of contraband, and acts of the same class, are notoriously not condemned by English law, neither are they, in any proper sense, breaches of the Law of Nations, which, speaking scientifically, never deals with individuals, as such, but only with the rights and duties of States inter se. What the Law of Nations really does is, as I said in 1904, "to define the measures to which a belligerent may resort for the suppression of such acts, without laying himself open to remonstrance from the neutral Government to which the traders implicated owe allegiance"; (3) that on the other hand, I am glad to find that, in accordance with my suggestion, while it continues very properly to be stated that persons doing the acts under discussion "will in no wise obtain any protection from Us against such capture, &c.," the further statement that such persons "will, on the contrary, incur Our high displeasure by such misconduct," has now been with equal propriety omitted.

THE PROCLAMATION OF NEUTRALITY

SECTION 4

BELLIGERENT FLEETS IN NEUTRAL WATERS

The rule enforced since 1862 by Great Britain for this purpose limits the stay of a belligerent warship, under ordinary circumstances, to a period of twenty-four hours; and the same provision will be found in the neutrality proclamations issued last year by, e.g. the United States, Egypt, China, Denmark, Sweden and Norway. So by[145] Japan and Russia in 1898. This rule, convenient and reasonable as it is, is not yet a rule of international law; as Lord Percy has had occasion to point out, in replying to a question addressed to him in the House of Commons. The proclamations of most of the Continental Powers do not commit their respective Governments to any period of time, and the material clauses of the French circular, to which most attention will be directed at the present time, merely provide as follows:—

Under the twenty-four hours rule, the duty of the neutral Government is clear. Under the French rules, all must evidently turn upon the wisdom and bonne volonté of the officials on the spot, and of the home Government, so far as it is in touch with them. We have no reason to suppose that the qualities in question will not characterise the conduct of the French at the present moment. There can, however, be no doubt that a better definition of the mode in which a neutral Power should prevent abusive use of the asylum afforded by its ports and waters is urgently required. The point is one which must prominently engage the attention of the special conference upon the rights and duties of neutrals, for which a wish was expressed by The[146] Hague Conference of 1899, and, more recently, by President Roosevelt.

THE APPAM

SECTION 5

CONTRABAND OF WAR

Sir,—I fear that the mercantile community will hardly profit so much as the managers of the Atlas Steamship Company seem to expect by the information contained in their letter which you print this morning. It was, indeed, un[148]likely that the courteous reply of the Assistant Secretary of State at Washington to the enquiry addressed to him by the New York agents of the company would contain a declaration of the policy of the United States with reference to contraband of war. The threefold classification of "merchandise" (not of "contraband") quoted in the reply occurs, in the judgment of the Supreme Court in the well-known case of the Peterhoff (5 Wallace, 58), but it is substantially that of Grotius, and has long been accepted in this country and in the United States, while the Continent is, generally speaking, inclined to deny the existence of "contraband by accident," and to recognise only such a restricted list of contraband as was contained in the Spanish decree of April 24 last.

The questions upon which shippers are really desirous of information (which they are, however, perhaps not likely to obtain, otherwise than from decisions of prize Courts) are of a less elementary character. They would like to know what articles ancipitis usus ("used for purposes of war or peace according to circumstances") will be treated by the United States as contraband, and with what penalty the carriage of such articles will be visited—i.e. whether by confiscation or merely by pre-emption.

IS COAL CONTRABAND OF WAR?

Sir,—This question has now been answered, in unmistakable terms, on behalf of this country by Lord Lansdowne in his reply, which you printed yesterday, to Messrs. Powley, Thomas, and Co., and on behalf of Japan by the proclamation which appears in The Times of to-day. Both of these documents set forth the old British doctrine, now fully adopted in the United States, and beginning to win its way on the Continent of Europe, that, besides articles which are absolutely contraband, other articles ancipitis usus, and amongst them coal, may become so under certain conditions. "When destined," says Lord Lansdowne, "for warlike as opposed to industrial use." "When destined," says Japan,[150] "for the enemy's army or navy, or in such cases where, being goods arriving, at enemy's territory, there is reason to believe that they are intended for use of enemy's army or navy."

I may say that the words which I have italicised must, I think, have been mistranslated or mistransmitted. Their intention is, doubtless, substantially that which was more clearly expressed in the Japanese proclamation of 1894 by the words: "Either the enemy's fleet at sea or a hostile port used exclusively or mainly for naval or military equipment."

A phrase in your issue of to-day with reference to the Cardiff coal trade suggests that it may be worth while to touch upon the existence of a widely-spread confusion between the grounds on which export of coal may be prohibited by a neutral country and those which justify its confiscation, although on board a neutral ship, by a belligerent. A neutral State restrains, under certain circumstances, the export of coal, not because coal is contraband, but because such export is converting the neutral territory into a base of belligerent operations. The question of contraband or no contraband only arises between the neutral carrier and the belligerent when the latter claims to be entitled to interfere with the trade of the former.

Since the rules applicable to the carriage of coal are, I venture to think, equally applicable, to the carriage of foodstuffs, I may perhaps be allowed to add a few words with reference to the letter addressed to you a day or two ago by Sir Henry Bliss. I share his desire for some explanation of the telegram which reached you on the 12th of this month from British Columbia. One would like to know: (1) What is "the Government," if any, which has instructed the Empress Line not to forward foodstuffs to Japan; (2) whether the refusal relates to foodstuffs generally, or only to those with a destination for warlike use; (3) what is meant by the statement that "the steamers of the Empress Line belong to the Naval Reserve"? I presume the meaning to be that the line is subsidised with a view to the employment [151]of the ships of the company as British cruisers when Great Britain is at war. The bearing of this fact upon the employment of the ships when Great Britain is at peace is far from apparent. It is, of course, possible that the Government contract with the company may have been so drawn, ex abundanti cautela, as greatly to restrict what would otherwise have been the legitimate trade of the company.

COTTON AS CONTRABAND OF WAR

This notification, promulgated on April 21, 1904, was received with general amazement, not diminished by an official gloss to the effect that it "applied only to raw cotton suitable for the manufacture of explosives, and not to yarn or tissues." It must be remembered that at the date mentioned, and for some months afterwards, Russia stoutly maintained that all the articles enumerated in her list of contraband of February 28, 1904, and in the additions to that list, were "absolutely" such; i.e. were confiscable if in course of carriage to any enemy's port, irrespectively of the character of that port, or of the use to which the articles would probably be put. It was only after much correspondence, and the receipt of strong protests from Great Britain and the United States, that Russia consented to recognise the well-known distinction between "absolute" and "conditional" contraband; the latter class consisting of articles useful in peace as well as for war, the character of which must, therefore, depend upon whether they are, in [152]point of fact, destined for warlike or for peaceful uses. This concession was made about the middle of September last, and it was then agreed that provisions should be placed in the secondary category (as was duly explained in the Petersburg judgment in the case of the Arabia on December 14) together with some other articles, among which it seemed that raw cotton was not included.

The final decision in the Calchas case marks a welcome change of policy. Cotton has now followed foodstuffs into the category of "conditional" contraband, and effect has so far been given to the representations on the subject made by Mr. Hay in circular despatches of June 10 and August 30, 1904, and by Sir Charles Hardinge, in a note presented to Count Lamsdorff on October 9 of the same year.

The question had become a practical one in the case of the Calchas. On July 25 this vessel, laden with, inter alia, nine tons of raw cotton for Yokohama and Kobe, was seized by a Russian cruiser and carried into Vladivostok, where, on September 18, the cotton, together with other portions of her cargo, was condemned as absolutely contraband. The reasons for repudiating this decision, and the notification to which it gave effect, were not far to seek, and it may still be worth while to insist upon them. As against Russia, it is well to recall that, from the days of the Armed Neutralities onwards, her traditional policy has been to favour a very restricted list of contraband; that when in 1877, as again in 1900 and 1904, she included in it materials "servant de faire sauter les obstacles," the examples given of such materials were things so immediately fitted for warlike use as "les mines, les torpilles, la dynamite," &c.; and that what is said as to "conditional contraband" by her trusted adviser, Professor de Martens, in his Droit International, t. iii (1887), pp. 351-354, can scarcely be reconciled with her recent action.

But a still stronger argument against the inclusion of cotton in the list of "absolute" contraband is that this is wholly without precedent. It has, indeed, been alleged that [153]cotton was declared to be "contraband" by the United States in their Civil War. The Federal proclamations will, however, be searched in vain for anything of the kind. The mistake is due to an occasional loose employment of the term, as descriptive of articles found by an invader in an enemy's territory, which, although the property of private, and even neutral, individuals, happen to be so useful for the purposes of the war as to be justly confiscated. That this was so will appear from an attentive reading of the case of Mrs. Alexander's Cotton, in 1861 (2 Wallace, 404), and of the arguments in the claim made by Messrs. Maza and Larrache against the United States in 1886 (Foreign Relations of U.S., 1887). A similarly loose use of the term was its application by General B.F. Butler to runaway slaves who had been employed on military works—an application of which he confessed himself "never very proud as a lawyer," though "as an executive officer, much comforted with it." The phrase caught the popular fancy, came to be applied to slaves generally, and was immortalised in a song, long a favourite among negro children, the refrain of which was "I'se a happy little contraband."

The decision of the Court of St. Petersburg in the case of the Calchas, so far as it recognises the existence of a conditional class of contraband, and that raw cotton, as res ancipitis usus, must be treated in accordance with the rules applicable to goods belonging to that class, has laid down an unimpeachable proposition of law. Whether the view taken by the Court of the facts of the case, so far as they relate to the cotton cargo, is equally satisfactory, is a different and less important question, upon which I refrain from troubling you upon the present occasion.

P.S.—It may be worth while to add, for the benefit of those only who care to be provided with a clue (not to be [154]found in the judgment) through the somewhat labyrinthine details of the question under discussion, a summary of its history. The Russian rules as to contraband are contained in several documents—viz. the "Regulations as to Naval Prize" of 1895, Arts. 11-14; the "Admiralty Instructions" of 1900, Arts. 97, 98, and the appended "Special Declaration" as to the articles considered to be contraband (partly modelled on the list of 1877); the "Imperial Order" of February 28, 1904, rule 6 (this Order keeps alive the rules of 1895 and 1900, except in so far as they are varied by it); the "Order" of March 19, 1904, defining "food" and bringing machinery of certain kinds into the list of contraband; the "Order," of April 21, 1904, bringing "raw cotton" into the list; and, lastly, the "Instructions" of September 30 and October 28, 1904, recognising, in effect, a class of "conditional" contraband, placing foodstuffs in this class, as also, ultimately, other objects "capable of warlike use and not specified in sections 1-9 of rule 6."

COTTON AS CONTRABAND

It is surely regrettable that, by the Order in Council of August 20, 1914, our Government adopted the provisions of the Declaration "during the present hostilities," and "subject to various additions and modifications," the list of which has since been considerably extended. This [155]half-hearted course of action painfully recalls certain vicious methods of legislation by reference, and was additionally uncalled for, since, as has been shown by recent events, about two-thirds of the rules laid down by the Declaration are inapplicable to modern warfare.

The straightforward announcement made by the United States in their Note of January 25 is surely far preferable. It states in plain terms that, "As the Declaration of London is not in force, the rules of international law only apply. As to articles to be regarded as contraband there is no general agreement between nations." In point of fact, the hard-and-fast categories of neutral imports, suggested by the threefold Grotian division, as set forth in the Declaration, are unlikely ever to be generally accepted. Even Grotius is careful to limit his proposals, and Bynkershoek, in commenting upon them, points out that the test of contraband of the most noxious kind must be the, possibly exceptional, importance of objects for hostile use; their being of use also for non-hostile purposes being immaterial ("nec interesse an et extra bellum usum praebeant"). The application of these remarks to the case of cotton is sufficiently obvious.

JAPANESE PRIZE LAW

Upon this paragraph let me remark:—

1. The action of the Japanese is in full accordance with the letter and spirit of all four articles of the Declaration of Paris. ("The Treaty of Paris" has, of course, no bearing upon prize law.)

2. "The general principles" of that Declaration is a phrase which conveys to me, I confess, no meaning.

3. The Japanese have, of course, a prize law of their own, borrowed, for the most part, from our own Admiralty Manual of Prize Law. Neither the British nor the Japanese instructions are in conflict with, or indeed stand in any relation to, the Declaration of Paris.

4. The existing prize law of Japan was promulgated on March 7, 1904, not on August 20, 1894.

Your Correspondent goes on to say that the Japanese definition of contraband "is almost as sweeping as was the Russian definition, to which the British Government took active objection last summer." So far is this from being the case that the Japanese list is practically the same as our own, both systems recognising the distinction between "absolute" and "conditional" contraband, which, till the other day, was ignored by Russia.

The Japanese rules as to the cases in which ships carrying contraband may be confiscated are quite reasonable and in accordance with British views. The third ground for confiscation mentioned by your Correspondent does not occur in the instructions of 1904.

Ships violating a blockade are, of course, confiscable; but the Japanese do not, as your Correspondent seems to have been informed, make the existence of a blockade conditional upon its having been "notified to the Consuls of all States in the blockaded port." Commanders are, no doubt, instructed to notify the fact, "as far as possible, to the competent authorities and the Consuls of the neutral[157] Powers within the circumference of the blockade"; but that is a very different thing.

JAPANESE PRIZE LAW

PRIZE LAW

Sir,—Questions of maritime international law which are likely to give rise not only to forensic argument in the prize Courts which we have established at Durban and at the Cape, but also to diplomatic communications between Great Britain and neutral Governments, should obviously be handled just now with a large measure of reserve. Lord Rosebery has, however, in your columns called upon our Government to define its policy with reference to foodstuffs as contraband of war, while several other correspondents have touched upon, cognate topics. You may perhaps therefore be disposed to allow one who is [159]responsible for the Admiralty Manual of the Law of Prize, to which reference has been made by your correspondent "S.," to make a few statements as to points upon which it may be desirable for the general reader to be in possession of information accurate, one may venture to hope, as far as it goes.

Of the four inconveniences to which neutral trading vessels are liable in time of war, "blockade" may be left out of present consideration. You can only blockade the ports of your enemy, and the South African Republics have no port of their own. The three other inconveniences must, however, all be endured—viz. prohibition to carry "contraband," prohibition to engage in "enemy service," and liability to be "visited and searched" anywhere except within three miles of a neutral coast, in order that it may be ascertained whether they are disregarding either of these prohibitions, as to the meaning of which some explanation may not be superfluous.

1. "Carriage of contraband" implies (1) that the goods carried are fit for hostile use; (2) that they are on their way to a hostile destination. Each of these requirements has given rise to wide divergence of views and to a considerable literature. As to (1), while Continental opinion and practice favour a hard-and-fast list of contraband articles, comprising only such as are already suited, or can readily be adapted, for use in operations of war, English and American opinion and practice favour a longer list, and one capable of being from time to time extended to meet the special exigencies of the war. In such a list may figure even provisions, "under circumstances arising out of the particular situation of the war," especially if "going with a highly probable destination to military use"—Lord Stowell in the Jonge Margaretha (1 Rob. 188); cf. Story, J., in the Commercen (1 Wheat. 382), the date and purport of which are, by the by, incorrectly given by "S." It would be in accordance with our own previous practice and with Lord Granville's [160]despatches during the war between France and China in 1885, if we treated flour as contraband only when ear-marked as destined for the use of enemy fleets, armies, or fortresses. Even in such cases our practice has been not to confiscate the cargo, but merely to exercise over it a right of "pre-emption," so as to deprive the enemy of its use without doing more injury than can be helped to neutral trade—as is explained by Lord Stowell in the Haabet (2 Rob. 174). As to (2), the rule was expressed by Lord Stowell to be that "goods going to a neutral port cannot come under the description of contraband, all goods going there being equally lawful"—Imina (3 Rob. 167); but innovations were made upon this rule during the American Civil War which seem to be demanded by the conditions of modern commerce, and might well be followed by a British prize Court. It was held that contraband goods, although bona fide on their way to a neutral port, might be condemned, if intended afterwards to reach the enemy by another ship or even by means of land carriage—Bermuda (3 Wallace); Peterhoff (5 Wallace). A consignment to Lorenzo Marques, connected as is the town by only forty miles of railway with the Transvaal frontier, would seem to be well within the principles of the Civil War cases as to "continuous voyages."

2. The carriage by a neutral ship of enemy troops, or of even a few military officers, as also of enemy despatches, is an "enemy service" of so important a kind as to involve the confiscation of the vessel concerned, a penalty which, under ordinary circumstances, is not imposed upon carriage of "contraband" property so called. See Lord Stowell's luminous judgments in Orozembo (6 Rob. 430) and Atalanta (ib. 440). The alleged offence of the ship Bundesrath would seem to be of this description.

The questions, both of "contraband" and of "enemy service," with which our prize Courts must before long have to deal, will be such as to demand from the Judges a competent knowledge of the law of prize, scrupulous fairness [161]towards neutral claimants, and prompt penetration of the Protean disguises which illicit trade so readily assumes in time of war.

THE ALLANTON (Continuous Voyage)

(Unqualified Captors)

THE ALLANTON (Unqualified Captors)

One would have supposed it to be notorious that the [163]facts which distinguish the one case from the other are, first, that the capture of the Malacca was effected by a vessel not entitled to exercise belligerent rights; and, secondly, that Great Britain is prepared to claim the incriminated cargo as belonging to the British Government. Capture by an unqualified cruiser is so sufficient a ground for a claim of restoration and compensation that, except perhaps as facilitating the retreat of Russia from a false position, it would seem, to say the least, superfluous to pray in aid any other reason for the cancellation of an act unlawful ab initio.

I have not noticed any statement as to the actual constitution of the prize Court concerned in the condemnation of the Allanton. Under Rule 54 of the Russian Naval Regulations of 1895, a "Port Prize Court" must, for a decree of confiscation, consist of six members, of whom three must be officials of the Ministries of Marine, Justice, and Foreign Affairs respectively. An "Admirals' Prize Court," for the same purpose, need consist of only four members, all of whom are naval officers.

(Note upon the Declaration of London)

SECTION 6

MINES IN THE OPEN SEA

Sir,—The question raised in your columns by Admiral do Horsey with reference to facts as to which we are as yet imperfectly informed, well illustrates the perpetually recurring conflict between belligerent and neutral interests. They are, of course, irreconcilable, and the rights of the respective parties can be defined only by way of compromise. It is beyond doubt that the theoretically absolute [165]right of neutral ships, whether public or private, to pursue their ordinary routes over the high sea in time of war, is limited by the right of the belligerents to fight on those seas a naval battle, the scene of which can be approached by such ships only at their proper risk and peril. In such a case the neutral has ample warning of the danger to which he would be exposed did he not alter his intended course. It would, however, be an entirely different affair if he should find himself implicated in belligerent war risks, of the existence of which it was impossible for him to be informed, while pursuing his lawful business in waters over which no nation pretends to exercise jurisdiction.

It is certain that no international usage sanctions the employment by one belligerent against the other of mines, or other secret contrivances, which would, without notice, render dangerous the navigation of the high seas. No belligerent has ever asserted a right to do anything of the kind; and it may be in the recollection of your readers that strong disapproval was expressed of a design, erroneously attributed to the United States a few years since, of effecting the blockade of certain Cuban ports by torpedoes, instead of by a cruising squadron. These, it was pointed out, would superadd to the risk of capture and confiscation, to which a blockade-runner is admittedly liable, the novel penalty of total destruction of the ship and all on board.

It may be worth while to add, as bearing upon the question under discussion, that there is a tendency in expert opinion towards allowing the line between "territorial waters" and the "high seas" to be drawn at a considerably greater distance than the old measurement of three miles from the shore.

TERRITORIAL WATERS

The three-mile distance has, no doubt, become inadequate in consequence of the increased range of modern cannon, but no other can be substituted for it without express agreement of the Powers. One can hardly admit the view which has been maintained, e.g. by Professor de Martens, that the distance shifts automatically in accord[167]ance with improvements in artillery. The whole matter might well be included among the questions relating to the rights and duties of neutrals, for the consideration of which by a conference, to be called at an early date, a wish was recorded by The Hague Conference, of 1899.

In the meantime it may be worth while to call attention to the view of the subject taken by a specially qualified and representative body of international experts. The Institut de Droit International, after discussions and enquiries which had lasted for several years, adopted, at their Paris meeting in 1894, the following resolutions, as a statement of what, in the opinion of the Institut, would be reasonable rules with reference to territorial waters (I cite only those bearing upon the extent of such waters):—

(Cable-cutting)

SUBMARINE CABLES

SUBMARINE CABLES IN TIME OF WAR

That branch of international law which deals with the relations of neutrals and belligerents is, of course, a compromise between what Grotius calls the "belli rigor" and the "commerciorum libertas." The terms of the compromise, originally suggested partly by equity, partly by national interest, have been varied and re-defined, from time to time, with reference to the same considerations. It is perhaps reasonable that, in settling these terms, preponderant [170]weight should have been given to the requirements of belligerents, engaged possibly in a life-and-death struggle. "Ius commerciorum æquum est," says Gentili; "at hoc æquius, tuendæ salutis." There is accordingly no doubt that in land warfare a belligerent may not only interrupt communications by road, railway, post, or telegraph without giving any ground of complaint to neutrals who may be thereby inconvenienced, but may also lay hands on such neutral property—shipping, railway carriages, or telegraphic plant—as may be essential to the conduct of his operations, making use of and even destroying it, subject only to a duty to compensate the owners. This he does in pursuance of the well-known "droit d'angarie," an extreme application of which occurred in 1871, when certain British colliers were sunk in the Seine by the Prussians in order to prevent the passage of French gunboats up the river. Count Bismarck undertook that the owners of the ships should be indemnified, and Lord Granville did not press for anything further. Such action, if it took place outside of belligerent territory, would not be tolerated for a moment.

The application of these principles to the case of submarine cables would appear to be, to a certain point at any rate, perfectly clear. Telegraphic communication with the outside world may well be as important to a State engaged in warfare as similar means of communication between one point and another within its own territory. Just as an invader would without scruple interrupt messages, and even destroy telegraphic plant, on land, so may he thus act within the enemy's territorial waters, or, perhaps, even so far from shore as he could reasonably place a blockading squadron. It may be objected that a belligerent has no right to prevent the access of neutral ships to unblockaded portions of the enemy's coast on the ground that by carrying diplomatic agents or despatches they are keeping up the communications of his enemy with neutral Governments. But this indulgence rests on the presumption that such [171]official communications are "innocent," a presumption obviously inapplicable to telegraphic messages indiscriminately received in the course of business. It would seem, therefore, to be as reasonable as it is in accordance with analogy, that a belligerent should be allowed, within the territorial waters of his enemy, to cut a cable, even though it may be neutral property, of which the terminus ad quem is enemy territory, subject only to a liability to indemnify the neutral owners.

The cutting, elsewhere than in the enemy's waters, of a cable connecting enemy with neutral territory receives no countenance from international law. Still less permissible would be the cutting of a cable connecting two neutral ports, although messages may pass through it which, by previous and subsequent stages of transmission, may be useful to the enemy.

SUBMARINE CABLES IN TIME OF WAR

Sir,—Will you allow me to refer in a few words to the interesting letters upon the subject of submarine cables which have been addressed to you by Mr. Parsoné and Mr. Charles Bright? In asserting that "the question as to the legitimacy of cable-cutting is covered by no precedent," I had no intention of denying that belligerent interference with cables had ever occurred. International precedents are made by diplomatic action (or deliberate inaction) with reference to facts, not by those facts themselves. To the best of my belief no case of cable-cutting has ever been made matter of diplomatic representation, and I understand Mr. Parsoné to admit that no claim in respect of damage to cables was presented to the mixed Commission appointed under the Convention of 1883 between Great Britain and Chile.[172]

In the course of his able address upon "Belligerents and Neutrals," reported in your issue of this morning, I observe that Mr. Macdonell suggests that the Institut de Droit International might usefully study the question of cables in time of war. It may, therefore, be well to state that this service hat already been rendered. The Institut, at its Paris meeting in 1878, appointed a committee, of which M. Renault was chairman, to consider the whole subject of the protection of cables, both in peace and in war; and at its Brussels meeting, in 1879, carefully discussed the exhaustive report of its committee and voted certain "conclusions," notably the following:—

It was in no small measure due to the initiative of the Institut that diplomatic conferences were held at Paris, which in 1882 produced a draft convention for the protection of cables, not restricted in its operation to time of peace; and in 1884 the actual convention, which is so restricted.

It may not be generally known that in 1864, before the difficulties of the subject were thoroughly appreciated, a convention was signed, though it never became operative, by which Brazil, Hayti, Italy, and Portugal undertook to recognise the "neutrality" in time of war of a cable to be laid by one Balestrini. So, in 1869, the United States were desirous of concluding a general convention which should assimilate the destruction of cables in the high seas to piracy, and should continue to be in force in time of war. The Brussels conference of 1874 avoided any mention of "câbles sous-marins."

The moral of all that has been written upon this subject is obviously that drawn by Mr. Charles Bright—viz. "the [173]urgent necessity of a system of cables connecting the British Empire by direct and independent means—i.e. without touching on foreign soil."

SECTION 7

RUSSIAN PRIZE LAW

Sir,—The neutral Powers have serious ground of complaint as to the mode in which Russia is conducting operations at sea. It may, however, be doubted whether public opinion is sufficiently well informed to be capable of estimating the comparative gravity of the acts which are just now attracting attention. Putting aside for the moment questions arising out of the Straits Convention of 1856, as belonging to a somewhat different order of ideas, we may take it that the topics most needing careful consideration relate to removal of contraband from the ship that is carrying it without taking her in for adjudication; [175]interference with mail steamers and their mail bags; perversely wrong decisions of Prize Courts; confiscation of ships as well as of their contraband cargo; destruction of prizes at sea; the list of contraband. Of these topics, the two last mentioned are probably the most important, and on each of these I will ask you to allow me to say a few words.

1. There is no doubt that by the Russian regulations of 1895, Art. 21; and instructions of 1901, Art. 40, officers are empowered to destroy their prizes at sea, no distinction being drawn between neutral and enemy property, under such exceptional circumstances as the bad condition or small value of the prize, risk of recapture, distance from a Russian port, danger to the Imperial cruiser or to the success of her operations. The instructions of 1901, it may be added, explain that an officer "incurs no responsibility whatever" for so acting if the captured vessel is really liable to confiscation and the special circumstances imperatively demand her destruction. It is fair to say that not dissimilar, though less stringent, instructions were issued by France in 1870 and by the United States in 1898; also that, although the French instructions expressly contemplate "l'établissement des indemnités à attribuer aux neutres," a French prize Court in 1870 refused compensation to neutral owners for the loss of their property on board of enemy ships burnt at sea.

The question, however, remains whether such regulations are in accordance with the rules of international law. The statement of these rules by Lord Stowell, who speaks of them as "clear in principle and established in practice," may, I think, be summarised as follows: An enemy's ship, after her crew has been placed in safety, may be destroyed. Where there is any ground for believing that the ship, or any part of her cargo, is neutral property, such action is justifiable only in cases of "the gravest importance to the captor's own State," after securing the ship's papers and subject to [176]the right of neutral owners to receive fall compensation (Actaeon, 2 Dods. 48; Felicity, ib. 381; substantially followed by Dr. Lushington in the Leucade, Spinks, 221). It is not the case, as is alleged by the Novoe Vremya, that any British regulations "contain the same provisions as the Russian" on this subject. On the contrary, the Admiralty Manual of 1888 allows destruction of enemy vessels only; and goes so far in the direction of liberality as to order the release, without ransom, of a neutral prize which either from its condition, or from lack of a prize crew, cannot be sent in for adjudication. The Japanese instructions of 1894 permit the destruction of only enemy vessels; and Art. 50 of the carefully debated "Code des prises" of the Institut de Droit International is to the same effect. It may be worth while to add that the eminent Russian jurist, M. de Martens, in his book on international law, published some twenty years ago, in mentioning that the distance of her ports from the scenes of naval operations often obliges Russia to sink her prizes, so that "ce qui les lois maritimes de tous les états considèrent comme un moyen auquel il n'y a lieu de recourir qu'à la dernière extrémité, se transformera nécessairement pour nous en règle normale," foresaw that "cette mesure d'un caractère général soulévera indubitablement contre notre pays un mécontentement universel."

2. A far more important question is, I venture to think, raised by the Russian list of contraband, sweeping, as it does, into the category of "absolutely contraband" articles things such as provisions and coal, to which a contraband character, in any sense of the term, has usually been denied on the Continent, while Great Britain and the United States have admitted them into the category of "conditional" contraband, only when shown to be suitable and destined for the armed forces of the enemy, or for the relief of a place besieged. Still more unwarrantable is the Russian claim to interfere with the trade in raw cotton. Her prohibition of [177]this trade is wholly unprecedented, for the treatment of cotton during the American Civil War will be found on examination to have no bearing on the question under consideration. I touch to-day upon this large subject only to express a hope that our Government, in concert, if possible, with other neutral Governments, has communicated to that of Russia, with reference to its list of prohibited articles, a protest in language as unmistakable as that employed by our Foreign Office in 1885; "I regret to have to inform you, M. l'Ambassadeur," wrote Lord Granville, "that Her Majesty's Government feel compelled to take exception to the proposed measure, as they cannot admit that, consistently with the law and practice of nations, and with the rights of neutrals, provisions in general can be treated as contraband of war." A timely warning that a claim is inadmissible is surely preferable to waiting till bad feeling has been aroused by the concrete application of an objectionable doctrine.

RUSSIAN PRIZE LAW

Sir,—From this hilltop I observe that, in the debate of Thursday last, Mr. Gibson Bowles, alluding to a letter of mine which appeared in your issue of August 6, complained that I "had not given the proper reference" to Lord Stowell's judgments. Mr. Bowles seems to be unaware that in referring to a decided case the page mentioned is, in the absence of any indication to the contrary, invariably that on which the report of the case commences. I may perhaps also be allowed to say that he, in my opinion, misapprehends the effect of the passage quoted by him from the Felicity, which decides only that, whatever may be the justification for the destruction of a neutral prize, the neutral owner is [178]entitled, as against the captor, to full compensation for the loss thereby sustained.

RUSSIAN PRIZE LAW

2. I had summarised the effect, as I conceive it, of the group of cases above mentioned in the following terms: "Such action is justifiable only in cases of the gravest importance to the captor's own State, after securing the ship's papers, and subject to the right of the neutral owners to receive full compensation." Here, again, while purporting to quote me, Mr. Bowles omits the all-important words now italicised. I am, however, maltreated in good company. Mr. Bowles represents Lord Stowell as holding that destruction of neutral property cannot be justified, even in cases of the gravest [179]importance to the captor's own State. What Lord Stowell actually says, in the very passage quoted by Mr. Bowles, is that "to the neutral can only be justified, under any such circumstances, by a full restitution in value." I would, suggest that Mr. Bowles should find an opportunity for reading in extenso the reports of the Actaeon (2 Dods. 48), and the Felicity (ib. 881), as also for re-reading the passage which occurs at p. 386 of the latter case, before venturing further into the somewhat intricate technicalities of prize law.

THE SINKING OF NEUTRAL PRIZES

3. In the meantime, to adopt the language of the French instructions, "On ne doit user de ce droit de destruction [180]qu'avec plus la grande réserve"; and it may well be that any given set of instructions (e.g. the Russian) leaves on this point so large a discretion to commanders of cruisers as to constitute an intolerable grievance.

4. In any case, the owner of neutral property, not proved to be good prize, is entitled to the fullest compensation for his loss. In the language of Lord Stowell:—

It may be worth while to add that the published statements on the subject for which I am responsible are contained in the Admiralty Manual of Prize Law of 1888 (where section 808 sets out the lenient British instructions to commanders, without any implication that instructions of a severer kind would have been inconsistent with international law); in letters which appeared in your columns on August 6, 17, and 30, 1904; and in a paper on "Neutral Duties in a Maritime War, as illustrated by recent events," read before the British Academy in April last, a French translation of which is in circulation on the Continent.

SECTION 8

AN INTERNATIONAL PRIZE COURT

In the abstract, and supposing that a tribunal perfectly satisfactory both to belligerents and neutrals could be constituted, whether antecedently or ad hoc, there might be much to be said for the proposal; subject, however, to one condition—viz. that an agreement had been previously arrived at as to the law which the Court is to apply. At the present time there exists, on many vital questions of prize law, no such agreement. It will be sufficient to mention those relating to the list of contraband, the distinction between "absolute" and "conditional" contraband, the [183]doctrine of "continuous voyages," the right of sinking a neutral prize, the moment from which a vessel becomes liable for breach of blockade.

Just as the Alabama arbitration would have been impossible had not an agreement been arrived at upon the principles in accordance with which neutral duties as to the exit of ships of war were to be construed, so, also, before an international Court can be empowered to decide questions of prize, whether in the first instance or on appeal, it is indispensable that the law to be applied on the points above mentioned, and many others, should have been clearly defined and accepted, if not generally, at least by all parties concerned. The moral which I would venture to draw is, therefore, that although questions of fact, arising out of capture of a prize, might sometimes be submitted to a tribunal of arbitration, no case, involving rules of law as to which nations take different views, could possibly be so submitted. One is glad, therefore, to notice that the Prime Minister's reply to Mr. A. Herbert was of the most guarded character. The settlement of the law of prize must necessarily precede any general resort to an international prize Court; and if the coming Hague Conference does no more than settle some of the most pressing of these questions, it will have done much to promote the cause of peace.

A NEW PRIZE LAW

Sir,—The leading articles which you have recently published upon the doings of the Peace Conference, as also the weighty letter addressed to you by my eminent colleague, Professor Westlake, will have been welcomed by many of your readers who are anxious that the vital importance of some of the questions under discussion at The Hague should not be lost sight of.[184]

The Conference may now be congratulated upon having already given a quietus to several proposals for which, whether or not they may be rightly described as Utopian, the time is admittedly not yet ripe. Such has been the fate of the suggestions for the limitation of armaments, and the exemption from capture of private property at sea. Such also, there is every reason to hope, is the destiny which awaits the still more objectionable proposals for rendering obligatory the resort to arbitration, which by the Convention of 1899 was wisely left optional.

Should the labours of the delegates succeed in placing some restrictions upon the employment of submarine mines, the bombardment of open coast towns, and the conversion of merchant vessels into ships of war; in making some slight improvements in each of the three Conventions of 1899; and in solving some of the more pressing questions as to the rights and duties of neutrals, especially with reference to the reception in their ports of belligerent warships, it will have more than justified the hopes for its success which have been entertained by persons conversant with the difficulty and complexity of the problems involved.

But what shall we say of certain proposals for revolutionising the law of prize, which still remain for consideration, notably for the establishment of an international Court of Appeal, and for the abolition of contraband? It can hardly be supposed that either suggestion will win its way to acceptance.

1. The British scheme for an international Court of Appeal in prize cases is, indeed, far preferable to the German; but the objections to anything of the kind would seem to be, for the present, insuperable, were it only for the reason which you allowed me to point out, some months ago, à propos of a question put in the House of Commons by Mr. Arnold Herbert. As long as nations hold widely different views on many points of prize law, it cannot be expected that they should agree beforehand that, when belligerent, they will [185]leave it to a board of arbitrators to say which of several competing rules shall be applied to any given case of capture, or to evolve out of their inner consciousness a new rule, hitherto unknown to any national prize Court. It would seem that the German advocates of the innovation claim in its favour the authority of the Institut de Droit International. Permit me, therefore, as one who has taken part in all the discussions of the Institut upon the subject, to state that when it was first handled, at Zurich, in 1878, the difficulties in the way of an international Court were insisted on by such men as Asser, Bernard, Bluntschli, Bulmerincq, and Neumann, and the vote of a majority in its favour was coupled with one which demanded the acceptance by treaty of a universally applicable system of prize law. The drafting of such a system was accordingly the main object of the Code des Prises maritimes, which, after occupying several sessions of the Institut, was finally adopted by it, at Heidelberg, in 1887. Only ten of the 122 sections of this Code deal with an international Court of Appeal. A complete body of law, by which States have agreed to be bound, must, one would think, necessarily precede the establishment of a mixed Court by which that law is to be interpreted.

2. While the several delegations are vying with one another in devising new definitions of contraband, there would seem to be little likelihood that the British proposal for its total abandonment will be seriously entertained. Such a step could be justified, if at all, from the point of view of national interest, only on the ground that it might possibly throw increased difficulties in the way of an enemy desirous, even by straining the existing law, of interfering with the supply of foodstuffs to the British Islands. I propose, for the present, only to call attention to the concluding paragraph of the British notice of motion on this point, which would seem to imply much more than the abandonment of contraband. The words in question, if indeed they are authentically reported, are as follows:[186] "Le droit de visite ne serait exercé que pour constater le caractère neutre du bâtiment de commerce." Does this mean that the visiting officer, as soon as he has ascertained from the ship's papers that she is neutral property, is to make his bow and return to the cruiser whence he came? If so, what has become of our existing right to detain any vessel which has sailed for a blockaded port, or is carrying, as a commercial venture, or even ignorantly, hostile troops or despatches? No such definition as is proposed of an "auxiliary ship-of-war" would safeguard the right in question, since a ship, to come within that definition, must, it appears, be under the orders of a belligerent fleet.

I would venture to suggest that the motto of a reformer of prize law should be festina lente. The existing system is the fruit of practical experience extending over several centuries, and, though it may need, here and there, some readjustment to new conditions, brought about by the substitution of steam for sails, is not one which can safely be pulled to pieces in a couple of months. Let us leave something for future Hague Conferences.

A NEW PRIZE LAW

It would appear, from such imperfect information as intermittently reaches Swiss mountain hotels, that a con[187]viction of the truth of this proposition is at length making way among the delegates to The Hague Conference and among observers of its doings. In a recent number of the Courrier de la Conférence, a publication which cannot be accused of lukewarmness in the advocacy of proposals for the peaceful settlement of international differences, I find an article entitled "Pas de Code Naval, pas de Cour des Prises," to the effect that "l'acceptation de la Cour des Prises est strictement conditionnelle à la rédaction du Code, qu'elle aura à interpréter." Its decisions must otherwise be founded upon the opinions of its Judges, "the majority of whom will belong to a school which has never accepted what Great Britain looks upon as the fundamental principles of naval warfare." One learns also from other sources, that efforts are being made to arrive, by a series of compromises, at some common understanding upon the points as to which the differences of view between the Powers are most pronounced. It may, however, be safely predicted that many years must elapse before any such result will be achieved.

In the meantime, a very different solution of the difficulty has commended itself to the partisans of the proposed Court. M. Renault, the accomplished Reporter of the committee which deals in the first instance with the subject, after stating that "sur beaucoup de points le droit de la guerre maritime est encore incertain, et chaque État le formule au gré de ses idées et de ses intérêts," lays down that, in accordance with strict juridical reasoning, when international law is silent an international Court should apply the law of the captor. He is, nevertheless, prepared to recommend, as the spokesman of the committee, that in such cases the Judges should decide "d'après les principes généraux de la justice et de l'équité"—a process which I had, less complimentarily, described as "evolving new rules out of their inner consciousness." The Court, in pursuance of this confessedly "hardie solution," would be called upon to "faire le droit."[188]

One may be permitted to hope that this proposal will not be accepted. The beneficent action of English Judges in developing the common law of England may possibly be cited in its favour; but the analogy is delusive. The Courts of a given country in evolving new rules of law are almost certain to do so in accordance with the views of public policy generally entertained in that country. Should they act otherwise their error can be promptly corrected by the national Legislature. Far different would be the effect of the decision of an international Court, in which, though it might run directly counter to British theory and practice, Great Britain would have bound herself beforehand to acquiesce. The only quasi-legislative body by which the ratio decidendi of such a decision could be disallowed would be an international gathering in which British views might find scanty support. The development of a system of national law by national Judges offers no analogy to the working of an international Court, empowered, at its free will and pleasure, to disregard the views of a sovereign Power as to the proper rule to be applied in cases as to which international law gives no guidance. In such cases the ultimate adjustment of differences of view is the appropriate work, not of a law Court, but of diplomacy.

It is hardly necessary to combat the notion that there already exists, in nubibus, a complete system of prize law, which is in some mysterious way accessible to Judges, and reveals to them the rule applicable to each new case as it arises. This notion, so far as it is prevalent, seems to have arisen from a mistaken reading of certain dicta of Lord Stowell, in which that great Judge, in his finest eighteenth-century manner, insists that the law which it was his duty to administer "has no locality" and "belongs to other nations as well as our own." He was, of course, thinking of the rules of prize law upon which the nations are agreed, not of the numerous questions upon which no agreement exists, and was dealing with the difficult position of a Judge [189]who has to choose (as in the recent Moray Firth case) between obedience to such rules and obedience to the legislative, or quasi-legislative, acts of his own Government.

A NEW PRIZE LAW

I may add that it is surely too much to expect that the rules in question will be discussed by the Powers, to [190]use Sir H. Campbell-Bannerman's phrase, "without any political arrière pensêe." Compromise between opposing political interests must ever remain one of the most important factors in the development of the law of nations.

SECTION 9

THE NAVAL PRIZE BILL

Tactical reasons have, no doubt, operated to induce the Government to include in the Consolidation Bill the provisions for which statutory authority must be obtained before it will be possible to ratify the Convention; instead of first introducing a Bill having this sole object in view, and afterwards, should this be passed, inserting the new law in a reintroduced Consolidation Bill.[193]

The course adopted necessitates an otherwise unnecessary preamble, and the qualification of the new Part III. by the words "in the event of an International Prize Court being established" (Clause 23). The reference, by the by, in this clause to "the said Convention" is somewhat awkward, no mention of any Convention having occurred previously, except in the preamble of the Bill. Is not also the statutory approval given by this clause, not only to the Convention of 1907 but also to "any Convention amending the same," somewhat startling, as tending to exclude Parliamentary criticism of such an amending Convention before its ratification?

By Clause 9, the members of the Judicial Committee who are to be nominated to act as the British Court of Appeal in cases of prize are to be described by the novel title of "the Supreme Prize Court." Is not the use made of the term "Supreme" in the Judicature Acts, as covering both the High Court and the Court of Appeal, already sufficiently unsatisfactory?

But the question which, of all others saute aux yeux, in reading the new Part III., is whether the Convention is to be approved as it stands, irrespectively of a general acceptance of the new Code of Prize Law contained in the Declaration of London of 1909. The objections to Art. 7 of the Contention, providing that, in the absence of rules of International Law generally recognised (and on many points of Prize Law there are no such rules), the Court is to decide in accordance with (what it may be pleased to consider) "the general principles of law and equity," are well known. The purpose of the Declaration of London (itself the subject of much difference of opinion) was to curtail this licence of decision, by providing the Court with so much ascertained Prize Law as to render action under the too-elastic phrase above quoted almost inconceivable.

Is it too much of a counsel of perfection to suggest that the debatable questions arising under the Convention of[194] 1907 and the Declaration of 1909 should first be threshed out in discussions on a Bill dealing with those questions only; and that the decision, if any, thus arrived at should be subsequently inserted, freed from hypothesis, in the Consolidation Bill which has so long awaited the leisure of the House of Commons?

THE NAVAL PRIZE BILL

Sir,—The Government has so far yielded to the representations of the Opposition as to have refrained from forcing on Friday night a division upon the Naval Prize Bill. Is it too much to hope that the Government may even now withdraw altogether a measure so ill adapted to place fairly before Parliament the question of the desirability of ratifying two documents held by a large body of competent opinion to be certain, if ratified, seriously to endanger the vital interests of the country? The Bill, as I have already pointed out, as originally drawn, was a careful consolidation of the law and procedure governing British Courts of Prize. Into this has now been incongruously thrust a set of clauses intended to give effect to a novel and highly controversial proposal for the creation of an International Prize Court. About the Declaration of London, alleged to contain a body of law which would adequately equip such a Court for the performance of its duties, not a word is said in the Bill; yet, should approval of the Bill be snatched by a purely party majority, the intention of the Government is to proceed straightway to the ratification both of the Prize Court Convention and the Declaration. Whether they intend also to endeavour to obtain the ratification, as an auxiliary Convention, of the lengthy covering commentary upon the Declaration, supplied by the committee by which the Declaration was drafted, [195]does not yet appear. Of such a step I have already written that it "would be calamitous should a practice be introduced of attempting to cure the imperfect expression of a treaty by tacking on to it an equally authoritative reasoned commentary. The result would be obscurum per obscurius, a remedy worse than the disease."

The alternatives before Parliament on Monday next will be either, by reading the Naval Prize Bill a second time, to bring about, in the teeth of protests from those best qualified to express an independent opinion upon the subject, the immediate ratification of the Convention and the Declaration, or to ask that before, this momentous step is taken the infinitely complex and delicate questions involved should be examined and passed upon by a Commission of representative experts. Which shall it be?

NAVAL PRIZE MONEY

May I venture to recommend that the Bill should contain merely the half-dozen clauses needed for this purpose, leaving untouched for subsequent uncontroversial passage, the Naval Prize Consolidation with Amendments Bill? This Bill, suggested and drafted by myself, in the spacious times of peace, in consultation with the Admiralty and other Government Departments, as also with the Judge of the Admiralty Division and the Law Officers (including the present Lord Chancellor), was twice mentioned in the King's Speech, and several times, after careful consideration, passed by the House of Lords, but still awaits the leisure of [196]the Lower House. It deserved a better fate than to have been used, in 1911, as a corpus vile for facilitating the ratification of the Convention for an International Prize Court and of the Declaration of London; receiving, most fortunately, as so perverted, its coup de grâce from the Lords. It should be passed as an artistic whole, apart from any contentious matter, account having, of course, been taken of recent legislation by which it may have been, here and there, affected.

SECTION 10

THE DECLARATION OF LONDON

With reference to the first answer, it may be worth while to point out that, in Art. 66 of the Declaration, the Powers undertake not only, as in the passage quoted, "to give the necessary instructions to their authorities and armed forces," but also "to take the measures which may be proper for guaranteeing the application of the rules Contained in the Declaration by their Courts, and, in particular, by their Courts of Prize." The "authentic commentary" upon the [197]article in M. Renault's "Report" explains that the measures in question "may vary in different countries, and may or may not require the intervention of the Legislature."

The second answer lays down broadly that "the decisions of the British Prize Courts are founded on International Law, and not on municipal enactments." Our Prize Courts have, no doubt, on most points, decided in accordance with International Law, in the sense of the principles generally followed by civilised nations; but, on not a few points, in accordance with the British view of what is, or ought to be, International Law, in opposition to views persistently maintained by other countries—e.g. with reference to the moment from which a blockade-runner becomes liable to capture. The fact is that, whatever grandiloquent language may have been judicially employed by Lord Stowell in a contrary sense, it will now hardly be denied that a Prize Court sits by national, not international, authority, and is bound to take the view of International Law which, if any, is prescribed to it by the constitutionally expressed will of its own Government.

The Declaration of London is in many ways a great achievement; but one is glad to learn from Mr. McKinnon Wood's third answer that opportunity will be given for discussing all important points in connexion with its rules.

THE DECLARATION OF LONDON

Sir,—Both the Prize Court Convention of 1907 and its complement, the London Declaration of 1909, stand greatly in need of full and well-informed discussion before receiving the Parliamentary approval which ought to be a condition precedent to the ratification of either of them. It is well, therefore, that many Chambers of Commerce have called the attention of Government to the detriment to[198] British interest which may in their opinion result from these agreements if ratified, although the representations thus made exhibit, in some cases, so little technical knowledge as to have been readily disposed of by the Foreign Secretary. For the same reason, I welcome the letter from Mr. Gibson Bowles, which appeared in The Times of yesterday, although it contains some statements the inaccuracy of which it may be desirable at once to point out.

1. The Declaration of Paris is neither implicitly nor explicitly adopted by the Declaration of London, "as a part of the common law of nations which can no longer be disputed." The later makes no mention of the earlier one, and M. Benault's rapport (as to the interpretative authority of which opinions may well differ) applies the words quoted, not to the Paris Declaration as a whole, but to one only of its articles. Mr. Bowles's statement that "the Declaration of London, if adopted, would reaffirm, and its ratification would in effect, for the first time ratify, the Declaration of Paris" cannot be supported.

2. Mr. Bowles asserts it to be "an unquestioned doctrine of the Law of Nations that war abrogates and annuls treaty obligations between belligerents." One would have supposed it to be common knowledge that large classes of treaties are wholly unaffected by war. Such are, for instance, what are called conventions transitoires, because their effect is produced once for all, as in the case of cessions of territory; and, notably, treaties entered into for the regulation of the conduct of war, such as the Geneva Convention, many of The Hague Conventions of 1907, and the Declaration of Paris itself, which Mr. Bowles appears to think would ipso facto cease to be obligatory between its signatories on their becoming belligerent.

It is a pleasure to be able to agree with Mr. Bowles in his wish that the Naval Prize Bill, if reintroduced, should be rejected, though I would rather say "withdrawn." You have already allowed me (on July 10) to point out that [199]if the Convention and Declaration are to be effectively discussed in Parliament they should be disentangled from that Bill, into which the Convention, and, by implication, the Declaration, have been incongruously thrust. This practically non-contentious Consolidation Bill, after several times securing the approval of the House of Lords, has hitherto for several years awaited the leisure of the House of Commons, but was suddenly reintroduced last Session, apparently as an unobtrusive vehicle for the new and highly debatable matter contained in the two above-mentioned documents. May I now repeat my suggestion that "the debatable questions arising under the Convention of 1907 and the Declaration of 1909 should first be threshed out in discussions on a Bill dealing with these questions only; and that the decision, if any, thus arrived at should be subsequently inserted, freed from hypothesis, in the Consolidation Bill"?

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There is, however, a preliminary question upon which, with your permission, I should like to say a few words. My friend justly observes that in dealing with the Declaration "the first necessity is to know what it is that we have before us"; and he devotes his letter of January 31 to maintaining that the Declaration must be read as interpreted by the explanations of it given to the full Conference by the Drafting Committee, of which M. Renault was presi[200]dent. Professor Westlake supports his opinion by a quotation from the reply of the Foreign Office in November last to the Edinburgh Chamber of Commerce (Miscell. 1910, No. 4, p. 21). I may mention that a similar reply had been given, a year previously, by Mr. McKinnon Wood to a question in the House of Commons. The source of these replies is doubtless to be found in a paragraph of the Report, addressed on March 1, 1909, to Sir Edward Grey, of the British Delegates to the London Conference, which runs as follows:—

It is desirable to know upon what authority this statement rests. I am aware of none. The nearest approach to an assertion of anything like it occurred at The Hague Conference of 1899, when the "approval" accorded to "the work of the Second Committee, as embodied in the articles voted and in the interpretative Report which accompanies them" was alleged by M. de Martens to amount to an acceptance of the Report "comme un commentaire interprétatif authentique des articles votés." (Miscell. 1899, No. 1, p. 165.) The drafting Report presented to the Geneva Conference of 1906 is merely said to have been "adopted" (Actes, p. 286); and M. Renault's Report to the Conference of London was similarly merely "accepted," although he presented it as containing

It would seem that in each of these cases the adoption of the Report, and even a suggestion or two for a change [201]in its phraseology, amounted to nothing more than an expression of opinion on the part of the Delegates to the Conference that the Report contained explanations which had satisfied themselves, and might satisfy their Governments, that the Convention which they were about to forward to those Governments might safely be accepted.

So far as Governments are concerned, the adoption of a Report by their Delegates is res inter alios acta. An "authentic interpretation" of a contract can be given only by the parties to it, who, in the case of a treaty, are the States concerned. If these States desire to give to the report of a drafting committee the force of an authentic interpretation of their contract, they can surely do so only by something amounting to a supplementary convention. Writers upon international law naturally throw but little light upon questions to which the somewhat novel practice of argumentative drafting Reports has given rise; but I may cite Professor Ullmann, of Vienna, as saying:—

and Professor Fiore, of Naples, to the effect that what is called "authentic interpretation" is not

and that

I would submit that such a Report as that which accompanies the Declaration of London has no claim to the sort of interpretative authority which has been attributed to it; nor is it desirable that the requisite steps should be taken [202]for giving it that authority. It would be calamitous should a practice be introduced of attempting to cure the imperfect expression of a treaty by tacking on to it an equally authoritative reasoned commentary, likely, as in the present case, to be enormously longer than the test to which it relates.

It is a wholly different question whether Governments or Courts would be inclined to take notice of such a Report, among other facts antecedent to a Convention, or Declaration, which they might be called upon to construe. A British Court would not, I conceive, be so inclined. On the probable inclinations of Continental Courts, and of an International Prize Court, should one be instituted, further expert information would seem to be called for.

The fact is that the vitally important questions of theory and practice raised by the Convention and the Declaration need calmer and better instructed discussion than they have yet received. Ought they not to be referred to a Royal Commission, on which should be placed representatives of the Navy and Merchant Service, of the corn trade, and of the Colonies, together with international lawyers, in touch with the views of their Continental colleagues?

THE DECLARATION OF LONDON

Sir,—Professor Westlake, replying in The Times of to-day to the arguments by which I had endeavoured to show that the Report made to the Conference of London has no pretensions to be treated as an authentic interpretation of the Declaration prepared by the Conference, still maintains that "the essential question will be, what the agreement was that the Conference arrived at." I had maintained, on the contrary, that the essential question will be, What is the agreement entered into by the Powers, as evidenced by their ratifications? anything outside of the [203]ratified agreement being res inter alios acta. I should not be justified in asking you to allow me to repeat the contents of my letter of Monday last in support of this view. The pleadings are, I think, exhausted. "Therefore let a jury come."

I should like, however, to point out that I did not, as my friend seems to think, attribute the acceptance of the Report to the delegates "singly." It was, no doubt accepted by all present without protest. My colleague will, I am sure, pardon me if I add that I cannot concur in his exegesis of my citations from Ullmann and Fiore.

THE DECLARATION OF LONDON

I shall ask leave to add that, if Mr. Cohen will take the trouble to look again at my letters of February 10 and 25, he will cease to suppose it possible that in writing "the pleadings are, I think, exhausted, &c.," I meant to convey that no further discussion of the merits or demerits of the Declaration was required. On the contrary I expressly limited myself to a consideration of the preliminary question, whether interpretative authority would rightly be attributed to the report in question, stating that, while opposed to the ratification alike of the Prize Court Convention and of the Declaration, I did not, for the present, wish to enter upon the demerits of either instrument; and ended my first letter by suggesting the reference to a Royal Commission of[204] "the vitally important questions of theory and practice raised by the Convention and the Declaration," as needing "calmer and better instructed discussion than they have yet received."

THE DECLARATION OF LONDON

To put an end to this confusion, I venture to suggest that, in concert with our Allies, the Declaration should be [205]finally consigned to oblivion. Either let its place be taken by some clear and simple statement of unquestioned prize law, for the use of commanders and officials (something like a confidential document in the drafting of which I had a hand some years ago, but, of course, brought up to date), or let established principles take care of themselves, certain doubtful points only being dealt with, from time to time, by Orders in Council.

While heartily concurring in Lord Portsmouth's description of the unratified "Declaration" as "rubbish," I regret that he seems to relegate to the same category even those generally ratified "Hague Conventions" which, as far as they go, mark a real advance upon previously accepted rules. Still less acceptable is his advice to "sweep away juridical niceties" in the conduct of hostilities. Did he intend thus to describe the whole fabric of the rules by which international law has endeavoured, with considerable success, to restrain barbarity in warfare?

I must mention that this letter was written before seeing this morning the letter of Mr. Gibson Bowles, my worthy ally in attacks upon the Declaration.

THE DECLARATION OF LONDON

Its admirers have, however, too long preserved it, perhaps sub spe rati, in a state of suspended animation, [206]using it by way of, as they supposed, a convenient handbook of maritime law for the purposes of the present war, though subject to such variations as might from time to time be found convenient by the Allies. The mistake thus made soon became apparent. The elaborate classification of contraband had to be at once thrown overboard, and most of the remaining provisions of the Declaration proved to be inapplicable to modern warfare.

In December last I accordingly wrote as follows:—

I need hardly say that to anyone holding the views thus expressed, yesterday's Order in Council must be most satisfactory; getting rid, as it does for good and all, of the unfortunate Declaration, leaving the application of established principles to those acquainted with them and promulgating authoritative guidance on specific novel questions.

I may perhaps add a word or two on the undesirability of describing as "Declarations" documents which, being equipped with provisions for ratification, although they may profess to set out old law, differ in no respect from other conventions. Also, as to the need for greater caution on the part of our representatives than has been shown by their acceptance of various craftily suggested anti-British suggestions, such as were several embodied in the Declaration in question, and notably that of the notorious cl. 23 (h) of The Hague Convention iv., the interpretation of which has exercised the ingenuity of the Foreign Office and, more recently, of the Court of Appeal.

GERMANY WRONG AGAIN

INDEX

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