Chapter 13

THE RIGHTS AND DUTIES OF NEUTRALS

SECTION 1

_The Criterion of Neutral Conduct_

The main object of the first of the following letters was to assert, as against any possible misunderstanding of phraseology attributed to a great international lawyer (since lost to science and to his friends by his sudden death on June 20, 1909), the authority by which alone neutral rights and duties are defined.

The letter also touches upon the limit of time which a neutral Power is bound to place upon the stay in its ports of belligerent ships of war; a topic more fully discussed in Section 4.

PROFESSOR DE MARTENS ON THE SITUATION

Sir,--The name of my distinguished friend, M. de Martens, carries so much weight that I hope you will allow me at once to say that I am convinced that to-day's telegraphic report of some communication made by him to the St. Petersburg newspapers fails to convey an accurate account of the views which he has thus expressed.

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, 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 12 (1905).

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 28 (1915).

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SECTION 2

_The Duties of Neutral States, and the Liabilities of Neutral Individuals, distinguished_

The duties of neutral States have been classified by the present writer under the heads, of "Abstention," "Prevention," and "Acquiescence." (_Transactions of the British Academy_, vol. ii, p. 55; reproduced in the _Revue de Droit International_, the _Revista de Derecho International_, and the _Marine Rundschau_.) In the three letters which follow, an attempt is made to point out the confusion which has resulted from failure to distinguish between the two last-mentioned heads of neutral duty; on the one hand, namely, the cases in which a neutral government is bound itself to come forward and take steps to prevent certain classes of action on the part of belligerents, or of its own subjects, e.g. the overstay in its ports of belligerent fleets, or the export from its shores of ships of war for belligerent use; and, on the other hand, the cases in which the neutral government is bound only to passively acquiesce in interference by belligerents with the commerce of such of its subjects as may choose, at their own risk and peril, to engage in carriage of contraband, breach of blockade, and the like.

I. A neutral State is bound to prevent its territory from becoming, in any way, a "base of operations" for either belligerent. Of the various obligations thus arising, the following letters deal with the duty of the State (1) to prevent the departure from its ports of vessels carrying coal intended to supply directly the needs of a belligerent fleet; and (2) to prevent the reception accorded in its ports to belligerent warships from being such as will unduly facilitate their subsequent operations. It is pointed out that the rule adopted by the United States and this country, as well as by some others, when neutral, by which the stay of belligerent warships is limited to twenty-four hours, has not been adopted by the nations of the European continent. The attempt made at The Hague Conference of 1907 to secure the general acceptance of this rule was unsuccessful; and Convention No. xiii. of that year, not yet ratified by Great Britain, which deals with this subject, merely lays down, in Art. 12, that "_In the absence of special provisions to the contrary in the legislation of a neutral Power_, belligerent warships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for more than twenty-four hours, except in the cases covered by this Convention." Art. 27 obliges the contracting Powers to "communicate to each other in due course all laws, proclamations, and other enactments, regulating in their respective countries the _Status_ of belligerent warships in their ports laid waters."

II. A neutral State is not bound to prevent such assistance being rendered by its subjects to either belligerent as is involved in, e.g. blockade-running or carriage of contraband; but merely to acquiesce in the loss and inconvenience which may in consequence be inflicted by the belligerents upon persons so acting. In order to explain this statement, it became necessary to say much as to the true character of "carriage of contraband" (although this topic is more specifically dealt with in the letters contained in Section 5), and to point out that such carriage is neither a breach of international law nor forbidden by the law of England. For the same reason, it seemed desirable to criticise some of the clauses now usually inserted in British Proclamations of Neutrality.

The view here maintained commended itself to the Institut de Droit International, at its Cambridge and Venice sessions, 1895, 1896, as against the efforts of MM Kleen and Brusa to impose on States a duty of preventing carriage of contraband by its subjects (_Annuaire_, t. xiv. p. 191, t. xv. p. 205). It has now received formal expression in The Hague Convention No. x. of 1907, Art. 7 of which lays down that "a neutral Power is _not_ bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet."

CONTRABAND OF WAR

Sir,--As a good deal of discussion is evidently about to take place as to the articles which may be properly treated as contraband of war, and, in particular, as to coal being properly so treated, I venture to think that it may be desirable to reduce this topic (a sufficiently large one) to its true dimensions by distinguishing it from other topics with which it is too liable to be confused.

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 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 prohibit 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."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 5 (1904).

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, 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, 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:

"That if colliers are chartered for the purpose of attending the fleet of a belligerent and supplying it with coal, to enable it to pursue its hostile operations, such colliers would, to all practical purposes, become store-ships to the fleet, and would be liable, if within reach, to the operation of the English law under the (old) Foreign Enlistment Act."

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.

Your obedient servant, T. E. HOLLAND. Oxford, November 7 (1904).

GERMAN WAR MATERIAL FOR TURKEY

Sir,--The _Cologne Gazette_ rightly treats as incredible the rumour, mentioned by your Sofia Correspondent, that a trainload of munitions of war had been despatched by the German Government for the use of Turkey, while admitting that such a consignment may very likely have been forwarded from private German workshops.

It has long been settled international law that a neutral Government, while, on the one hand, it is precluded from itself supplying munitions to a belligerent, is, on the other hand, not bound to prevent private individuals from so acting. The latter half of this rule has now received written expression in Art. 7 of The Hague Convention No. v. of 1907, which deals with "Neutral Powers and Persons in War on Land."

The only fault to be found with the paragraph in the _Cologne Gazette_ quoted by your Berlin Correspondent, supposing it to be correctly transcribed, would be that it seems to imply that the above-mentioned Art. 7 legitimatises the supply of war material to belligerents by "neutral States." It is, however, obvious from the rest of the paragraph that the _Gazette_ is not really under that impression.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 24 (1911).

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SECTION 3

_Neutrality Proclamations_

The criticisms directed against the Proclamation of 1904, in the first two letters which follow, have produced some improvement in Proclamations of later date. See the last two letters of this section. See also Appendix A in F.E. Smith and N.W. Sibley's _International Law in the Russo-Chinese War_ (1905), devoted to a consideration of those criticisms.

THE BRITISH PROCLAMATION OF NEUTRALITY

Sir,--You were good enough to insert in your issue of November 9 some observations which I had addressed to you upon the essential difference between carriage of contraband, which takes place at the risk of the neutral shipowner, and use of neutral territory as a base for belligerent operations, an act which may implicate the neutral Power internationally, while also rendering the shipper liable to penal proceedings on the part of his own Government. I am gratified, to find that the views thus expressed by me are in exact accordance with those set forth by Lord Lansdowne in his reply of November 25 to the Chamber of Shipping of the United Kingdom. Perhaps you will allow me to say something further upon the same subject, suggested by several letters which appear in your paper of this morning. I am especially desirous of emphasising the proposition that carriage of contraband is no offence, either against international law or against the law of England.

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 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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 28 (1904).

THE BRITISH PROCLAMATION OF NEUTRALITY

Sir,--Enquiries which have reached me with reference to the observations which I recently addressed to you upon the British Proclamation of Neutrality induce me to think that some account of the development of the text of the proclamation now in use may be of interest to your readers. The proclamations with which I am acquainted conform to one or other of two main types, each of which has its history.

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.

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 5 (1904).

THE BRITISH PROCLAMATION OF NEUTRALITY

Sir,--I am glad that Mr. Gibson Bowles has called attention to certain respects in which the Proclamation of Neutrality issued by our Government on the 3rd of the present month differs from that issued on February 11, 1904.

In two letters addressed to you with reference to the Proclamation of that year, I ventured to point out what appeared to me to be its defects, alike from a scientific and from a practical point of view. The present Proclamation has slightly minimised these defects, but, as a whole, remains open to the objections which I then raised. I have no wish to repeat in detail the contents of my letters of 1904, especially as they may be now found in my _Letters upon War and Neutrality_, published in 1909, pp. 95 and 98, but am unwilling not to take this opportunity once more to urge the desirability of redrafting the document in question.

The Proclamation just issued still answers to my description of that of 1904, as consisting 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, 1870; (4) a command that the statute be obeyed, upon pain of the penalties thereby imposed, and of "Our high displeasure"; (5) a warning to observe the duties of neutrality and to respect the exercise of belligerent rights; (6) a further warning that any persons presuming, in contempt of the Proclamation, to do acts in derogation of their duty as subjects of a neutral Power, or of the Law of Nations, will incur the penalties denounced by such law; (7) a notice that persons so misconducting themselves will obtain no protection from their Sovereign.

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. The Athenæum, October 9 (1911).

THE PROCLAMATION OF NEUTRALITY

Sir,--May I be allowed to point out that two questions arise upon the recent British Proclamation of Neutrality which were not, as they should have been, in the House of Commons last night, kept entirely distinct?

The Government has surely done right in now omitting, as I suggested in 1904, with reference to certain classes of acts which are prohibited neither by English nor by International Law, a phrase announcing that the doers of them would incur the King's "high displeasure"; while retaining the warning that doers of such acts must be prepared for consequences from which their own Government will not attempt to shield them.

On the other hand, our Government has surely erred in not specifying, as in previous Proclamations, the sort of acts to which this warning relates--viz., to acts such as carriage of contraband, enemy service, and breach of blockade, which differ wholly in character from those violations of the Foreign Enlistment Act against which the bulk of the Proclamation is directed. As the Proclamation now stands, no clear transition is marked between breaches of English law and the unspecified acts which, though perfectly legal, will forfeit for the doers of them any claim to British protection from the consequences involved. Traders are left to find out as best they may the meaning of the general words "any acts in derogation of their duty as subjects of a neutral Power."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, October 31 (1911).

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SECTION 4

_Neutral Hospitality_

The Hague Convention of 1907, No. xiii., not yet ratified by Great Britain, suggests in Art. 12, with reference to the question here raised, that "à défaut d'autres dispositions spéciales de la législation de la Puissance neutre, il est interdit aux navires de guerre des belligérants de demeurer dans les ports et rades ou dans les eaux territoriales de la dite Puissance pendant plus de 24 heures sauf dans les cas prévues par la présente Convention."

BELLIGERENT FLEETS IN NEUTRAL WATERS

Sir,--A novel question as to belligerent responsibilities would be suggested for solution if, as seems to be reported in Paris, Admiral Rozhdestvensky over-stayed his welcome in the waters of Madagascar, although ordered to leave them by his own Government in compliance with "pressing representations" on the part of the Government of France.

A much larger question is, however, involved in the discussion which has arisen as to the alleged neglect by France to prevent the use of her Cochin-Chinese waters by the Russians as a base of operations against Japan. We are as yet in the dark as to what is actually occurring in those waters, and are, perhaps, for that very reason in a better position for endeavouring to ascertain what are the obligations imposed on a neutral in such a case by international law.

It is admitted on all hands that a neutral Power is bound not to permit the "asylum" which she may grant to ships of war to be so abused as to render her waters a "base of operations" for the belligerent to which those ships belong. Beyond this, international law speaks at present with an uncertain voice, leaving to each Power to resort to such measures in detail as may be necessary to ensure the due performance of a duty which, as expressed in general terms, is universally recognised.

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 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:--

"(1) En aucun cas, un belligérant ne peut faire usage d'un port Français, ou appartenant à un État protégé, dans un but de guerre, &c. (2) La durée du séjour dans nos ports de belligérants, non accompagnés d'une prise, n'a été limitée par aucune disposition spéciale; mais pour être autorisés à y séjourner, ils sont tenus de se conformer aux conditions ordinaires de la neutralité, qui peuvent se résumer ainsi qu'il suit:--(_a_) ... (_b_) Les dits navires ne peuvent, _à l'aide de ressources puisées à terre_, augmenter leur matériel de guerre, renforcer leurs équipages, ni faire des enrôlements volontaires, même parmi leurs nationaux. (_c_) Ils doivent s'abstenir de toute enquête sur les forces, l'emplacement ou les ressources de leurs ennemis, ne pas appareiller brusquement pour poursuivre ceux qui leur seraient signalés; en un mot, s'abstenir de faire du lieu de leur résidence la base d'une opération quelconque contre l'ennemi. (3) Il ne peut être fourni à un belligérant que les vivres, denrées, et moyens de réparations nécessaires à la subsistence de son équipage ou à la sécurité de sa navigation."

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 Hague Conference of 1899, and, more recently, by President Roosevelt.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 20 (1905).

THE APPAM

Sir,--It is satisfactory to learn that the United States Neutrality Board has decided adversely to the contention that the _Appam_ is a German ship of war. Her treatment as a prize would then, _prima facie_, seem to be governed by Art. 21 of The Hague Convention, No. xiii., which provides for her being released, together with her officers and crew, while the prize crew is to be interned. This Convention has been duly ratified both by Germany and by the United States. Its non-ratification by Great Britain is, I conceive, irrelevant.

But Germany contends that the situation is governed by Art. 19, the text of which has been several times set out in your columns, of the old Convention of 1799. This may startle those who are acquainted with what occurred at The Hague in 1907, and I have seen no reference to what must be the gist of the German argument on the point. They no doubt argue that the old Convention remains unrepealed by No. xiii. of The Hague, because the latter Convention is of no effect, in pursuance of its common form Art. 28, to the effect that:--"The provisions of the present Convention do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention" (which is by no means the case).

Your obedient servant, T. E. HOLLAND. Oxford, February 4 (1916).

Certain reservations on ratification do not affect Arts. 21 or 22.

The State Department ruled that the case did not fall within the protecting clauses of the Treaty of 1799, which granted asylum only to ships of war accompanying prizes, whereas the _Appam_ was herself a prize. Proceedings by the owners in the local Federal Court for possession of the ship resulted in a decision in their favour, against which the Germans are appealing in the Supreme Court. They do not seem to have raised the objection, mentioned in the letter, as to the applicability of Convention viii.

* * * * *

SECTION 5

_Carriage of Contraband. (Absolute and Conditional Contraband: Continuous Voyages: Unqualified Captors: The Declaration of London)_

The letters included in the preceding sections 2 and 3 touched incidentally upon carriage of contraband, in relation to other departments of the law affecting neutrals. The eight letters which follow, suggested respectively by the Spanish-American, the Boer, and the Russo-Japanese wars, deal exclusively with this topic, which seems likely to be henceforth governed no longer only by customary and judge-made law, but largely also by written rules, such as those suggested by the unratified Declaration of London of 1909.

(_Absolute and Conditional Contraband_)

The divergence which has so long existed between Anglo-American and Continental views upon contraband was very noticeable at the commencement of the war of 1898, which gave occasion to the letter which immediately follows. While the Spanish Decree of April 23 set out only one list of contraband goods, the United States Instructions of June 20 recognised two lists--viz. of "absolute" and of "conditional" contraband, including under the latter head "coal when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs, and money, when such materials or money are destined for an enemy's forces, provisions, when destined for an enemy's ship or ships, for a place besieged."

An answer was thus supplied to the question suggested in this letter, as to articles _ancipitis usus_.

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, unlikely 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 9 (1898).

The four letters which next follow also relate to the two classes of contraband goods, with especial reference to the character attributed to foodstuffs, coal and cotton.

On foodstuffs, see the _Report of the Royal Commission on the Supply of Food, &c., in Time of War_, 1905. _Cf._ also _infra._, pp. 174, 176, 177. They were placed by the unratified Declaration of London, Art. 24, in the class of conditional contraband; as is also coal. By Art. 28 of the Declaration, raw cotton was enumerated among the articles which cannot be declared contraband of war.

The suggestion in the letter of February 20, 1904, that certain words quoted from the Japanese instructions had been mistransmitted or misquoted was borne out by the Regulations governing captures at sea, issued on March 15, 1904, Art. 14 of which announces that certain goods are contraband "in case they are destined to the enemy's army or navy, or in case they are destined to the enemy's territory, and from the landing place it can be inferred that they are intended for military purposes."

The letters of March 10 and 15, 1905, will sufficiently explain themselves. The accuracy of the statements contained in them was vouched for by Baron Suyematsu, in a letter which appeared in _The Times_ for March 16, to the effect that: "In Japan the matters relating to the organisation and procedure of the prize court, and the matters relating to prize, contraband goods, &c., are regulated by two separate sets of laws.... The so-called prize Court law of August 20, 1894, and amendment dated March 1, 1904, which your correspondent refers to, are the provisions relating to the former matters. The rules regulating the latter matters--viz. prize, contraband goods, &c., are not comprised in them. The rules which relate to the latter matters, as existing at present, are consolidated and comprised in an enactment which was issued on March 7, 1904.... Under the circumstances I can only repeat what Professor Holland says ... in other words, I fully concur with the views taken by the Professor."

The distinction between articles which are "absolutely contraband," those which are "conditionally contraband," and those which are incapable of being declared contraband was expressly adopted in Arts. 22, 24, and 28 of the unratified Declaration of London of 1909, as to which, see the comment at the end of this section, as also the whole of Section 10.

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, "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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 20 (1904).

COTTON AS CONTRABAND OF WAR

Sir,--The text of the decision of the Court of Appeal at St. Petersburg in the case of the _Calchas_ has at length reached this country, and we are thus informed, upon the highest authority, though, perhaps, not in the clearest language, of the meaning which is now to be placed upon the Russian notification that cotton is 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 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 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.

I am, Sir, your obedient servant, T. E. HOLLAND.

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 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."

T. E. H. Temple, July 1 (1905).

COTTON AS CONTRABAND

Sir,--Your correspondent "Judex" will rejoice, as I do, that cotton has now been declared to be "absolute contraband." May I, however, suggest that the topic should be discussed without any reference to the fortunately unratified Declaration of London, that premature attempt to codify the law of maritime warfare, claiming, misleadingly, that its rules "correspond in substance with the generally recognised principles of international law"?

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 23 (1915).

JAPANESE PRIZE LAW

Sir,--I hope you will allow me space for a few words with reference to some statements occurring to-day in your Marine Insurance news which I venture to think are of a misleading character.

Your Correspondent observes that--

"Although the Japanese are signatories to the Treaty of Paris, it should not be forgotten that they haw a Prize Court Law of their own (August 20, 1894), and are more likely to follow its provisions, in dealing with the various captured steamers, than the general principles of the Treaty of Paris."

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 Powers within the circumference of the blockade"; but that is a very different thing.

I am, Sir, your obedient servant, T. E. HOLLAND. The Athenæum, March 10 (1905).

JAPANESE PRIZE LAW

Sir,--Let me assure your correspondent upon Marine Insurance that I have been familiar, ever since its promulgation, with the Japanese prize law of 1894, quoted by him as authority for statements made in your issue of March 10, the misleading character of which I felt bound to point out in a letter of the same date. All the topics mentioned by him on that occasion, and to-day, are, however, regulated, not by that law, but by notifications and instructions issued from time to time during 1904.

I make it my business not only to be authoritatively informed on such matters, but also to see that my information is up to date.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 15 (1905).

_(Continuous Voyages)_

The opinion expressed in the letter which immediately follows, that the American decisions, applying to carriage of contraband the doctrine of "continuous voyages," seem to be "demanded by the conditions of modern commerce, and might well be followed by a British prize Court," was referred to by Lord Salisbury in a despatch of January 10, 1900, to be communicated to Count von Bülow, with reference to the seizure of _Bundesrath_. _Parl. Papers_, Africa, No. 1 (1900), p. 19.

The distinction, drawn in the same letter, between "carriage of contraband" and "enemy service," which has sometimes been lost sight of, was established in the case of _Yangtsze Insurance Association_ v. _Indemnity Mutual Marine Company_, [1908] K.B. 910, in which it was held by Bigham, J., that the transport of military officers of a belligerent State, as passengers in a neutral ship, is not a breach or a warranty against contraband of war in a policy of marine insurance. The carriage of enemy despatches will no longer be generally treated as "enemy service" since The Hague Convention, No. xi. of 1907, ratified by most of the Powers, including Great Britain, on November 27, 1909, by Art. 1 provides that, except in the case of breach of blockade, "the postal correspondence of neutrals or _belligerents_, whether of _an official_ or a private character, found on board a _neutral_ or enemy ship on the High Seas is inviolable."

The case of the _Allanton_, which gave occasion for the letter of July 11, 1904, was as follows. This British ship left Cardiff on February 24 of that year, with a cargo of coal to be delivered either at Hong-Kong or Sasebo. On arrival at Hong-Kong, she found orders to deliver at Sasebo, and, having made delivery accordingly, was chartered by a Japanese company at another Japanese port, to carry coal to a British firm at Singapore. On her way thither, she was captured by a Russian squadron and taken in to Vladivostok, where on June 24 she was condemned by the prize Court for carriage of contraband. The Court held, ignoring the rule that a vessel ceases to be _in dilecto_ when she has "deposited" her contraband (since affirmed by Art. 38 of the Declaration of London of 1909), that she was liable in respect of her voyage to Sasebo; as also in respect of the voyage on which she was captured, on the ground that her real destination was at that time the Japanese fleet, or some Japanese port. This decision was reversed, as to both ship and cargo, by the Court of Appeal at St. Petersburg, on October 22 of the same year.

The doctrine of "continuous voyages" was by the Declaration of London, Art. 30, recognised in the case of "absolute," but by Art. 35 was stated to be inapplicable to the case of "conditional" contraband.

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 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 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 towards neutral claimants, and prompt penetration of the Protean disguises which illicit trade so readily assumes in time of war.

Your obedient servant, T. E. HOLLAND. Oxford, January 2 (1900).

THE _ALLANTON_ _(Continuous Voyage)_

Sir,--I venture to think that the letter which you print this morning from my friend Dr. Baty, with reference to the steamship _Allanton_, calls for a word of warning; unless, indeed, it is to be taken as merely expressing the private opinion of the writer as to what would be a desirable rule of law.

It would be disastrous if shipowners and insurers were to assume, that a neutral vessel, if destined for a neutral port, is necessarily safe from capture. Words at any rate capable of this construction may, no doubt, be quoted from one of Lord Stowell's judgments, now more than a century old; but many things have happened, notably the invention of railways, since the days of that great Judge. The United States cases, decided in the sixties (as Dr. Baty thinks, "on a demonstrably false analogy"), in which certain ships were held to be engaged in the carriage of contraband, although their destination was a neutral port, were substantially approved of by Great Britain. Their principle wast adopted by Italy, in the _Doelwijk_, in 1896, and was supported by Great Britain in the correspondence upon this subject which took place with Germany in 1900. It was endorsed, after prolonged discussion, by the Institut de Droit International in 1896.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, July 11 (1904).

_(Unqualified Captors)_

Among the objections raised by the British Government to the capture by the Russian ship _Peterburg_ in the Red Sea, on July 13, 1904, of the P. and O. ss. _Malacca_, for carriage of contraband were (1) that the so-called contraband consisted of government ammunition for the use of the British fleet in Chinese waters; and (2) what was more serious, that the capturing vessel, which belonged to the Russian volunteer fleet, after issuing from the Black Sea under the commercial flag had subsequently, and without touching at any Russian port, brought up guns from her hold, and had proceeded to exercise belligerent rights under the Russian naval flag. In consequence of the protest of the British Government, and to close the incident, the _Malacca_ was released at Algiers, after a purely formal examination, on July 27, and Russia agreed to instruct the officers of her volunteer fleet not to make any similar captures.

The question of the legitimacy of the transformation on the high seas into a ship-of-war of a vessel which has previously been sailing under the commercial flag was much discussed at The Hague Conference of 1907, but without result. Opinions were so much divided upon the point, that no mention of it is made in Convention No. vii. of that year, ratified by Great Britain on November 27, 1909, "as to the transformation of merchant vessels into ships-of-war." At the session of the Institut de Droit International held at Oxford in 1913, this question was discussed, and rules relating to it will be found in Section 2 of the _Manuel des lois de la guerre maritime_, the drafting of which occupied the whole of the session.

THE _ALLANTON_ _(Unqualified Captors)_

Sir,--The indignation caused by the treatment of the _Allanton_ is natural, and will almost certainly prove to be well founded; but Mr. Rae, in the letter which you print this morning, overstates a good case. He asks that, "whatever steps are taken for the release of the _Malacca_, equally strong steps should be taken for the release of the _Allanton_"; and he can see no difference between the cases of the two ships, except that the former is owned by a powerful company in the habit of carrying British mails, while the latter is his private property.

One would have supposed it to be notorious that the 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, July 25 (1904).

_(Note upon the Declaration of London)_

The British delegates to The Hague Conference of 1907 were instructed that H.M. Government "are ready and willing for their part, in lieu of endeavouring to frame new and more satisfactory rules for the prevention of contraband trade in the future, to abandon the principle of contraband of war altogether, thus allowing the oversea trade in neutral vessels between belligerents on the one hand and neutrals on the other, to continue during war without any restriction," except with reference to blockades. This proposal, fortunately, was not accepted by the Conference, which was unable even to agree upon lists of contraband articles, and recommended that the question should be further considered by the Governments concerned, _Parl. Paper, Miscell._ No. 1 (1908), p. 194.

This task was accordingly among those undertaken at the Conference of Maritime Powers held in London in 1908-1909, which resulted in a Declaration, Arts. 22-44 of which constituted a fairly complete code of the law of contraband. Reference has already been made, in comments upon letters comprised in previous sections, to this Declaration, the demerits and history of which are more fully dealt with in section 10, _infra_, pp. 196-207.

* * * * *

SECTION 6

_Methods of Warfare as affecting Neutrals_

_(Mines)_

On the views expressed in the first of the two letters which follow, as also in the writer's British Academy paper on _Neutral Duties_, as translated in the _Marine Rundschau_, see Professor von Martitz of Berlin, in the _Transactions_ of the International Law Association, 1907. The Institut de Droit International has for some years past had under its consideration questions relating to mines, and has arrived at conclusions which will be found in its _Annuaire_, t. xxi. p. 330, t. xxii. p. 344, t xxiii. p. 429, t. xxiv. pp. 286, 301.

The topic has also been dealt with in The Hague Convention, No. viii. of 1907, ratified with a reservation, by Great Britain on November 27, 1907. By Art. 1 it is forbidden "(1) to lay unanchored automatic-contact mines, unless they are so constructed as to become harmless one hour at most after he who has laid them has lost control over them; (2) to lay anchored automatic-contact mines which do not become harmless as soon as they have broken loose from their moorings; (3) to employ torpedoes which do not become harmless when they have missed their mark." By Art. 2, (which is, however, not accepted by France or Germany) it is forbidden "to lay automatic-contact mines off the coast and ports of an enemy, with the sole object of intercepting commercial navigation."

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 23 (1904).

TERRITORIAL WATERS

Sir,--Most authorities would, I think, agree with Admiral de Horsey that the line between "territorial waters" and "the high sea" is drawn by international law, if drawn by it anywhere, at a distance of three miles from low-water mark. In the first place, the ridiculously wide claims made, on behalf of certain States, by mediæval jurists were cut down by Grotius to so much water as can be controlled from the land. The Grotian formula was then worked out by Bynkershoek with reference to the range of cannon; and, finally, this somewhat variable test was before the end of the eighteenth century, as we may see from the judgments of Lord Stowell, superseded by the hard-and-fast rule of the three-mile limit, which has since received ample recognition in treaties, legislation, and judicial decisions.

The subordinate question, also touched upon by the Admiral, of the character to be attributed to bays, the entrance to which exceeds six miles in breadth, presents more difficulty than that relating to strictly coastal waters. I will only say that the Privy Council, in _The Direct U.S. Cable Co._ v. _Anglo-American Telegraph Co._ (L.R. 2 App. Ca. 394), carefully avoided giving an opinion as to the international law applicable to such bays, but decided the case before them, which had arisen with reference to the Bay of Conception, in Newfoundland, on the narrow ground that, as a British Court, they were bound by certain assertions of jurisdiction made in British Acts of Parliament.

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 accordance 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):--

"Art. 2.--La mer territoriale s'étend à six milles marins (60 au degré de latitude) de la laisse de basse marée sur tout l'étendue des côtes. Art. 3.--Pour les baies, la mer territoriale suit les sinuosités de la côte, sauf qu'elle mesurée à partir d'une ligne droite tirée en travers de la baie, dans la partie la plus rapprochée de l'ouverture vers la mer, où l'écart entre les deux côtes de la baie est de douze milles marins de largeur, à moins qu'un usage continu et séculaire n'ait consacré une largeur plus grande. Art. 4.--En cas de guerre, l'état riverain neutre a le droit de fixer, par la déclaration de neutralité, ou par notification spéciale, sa zone neutre au dela de six milles, jusqu'à portée du canon des côtes. Art. 5.--Tous les navires sans distinction ont le droit de passage inoffensif par la mer territoriale, sauf le droit des belligérants de règlementer et, dans un but de défense, de barrer le passage dans la dite mer pour tout navire, et sauf le droit de neutres de règlementer le passage dans la dite mer pour les navires de guerre de toutes nationalités." (_Annuaire de l'Institut_, t. xiii. p. 329).

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, June 1 (1904).

A French decree, of October 18, 1912, accordingly extends, when France is neutral, her territorial waters to a distance of six miles (11 kilom.) from low-water mark.

_(Cable-cutting)_

With the letters which follow, compare the article by the present writer on "Les cables sous-marins en temps de guerre," in the _Journal de Droit International Privé_, 1898, p. 648.

The topic of cable-cutting, as to which the Institut de Droit International arrived in 1879 at the conclusions set out in the first of these letters, was again taken into consideration by the Institut in 1902: see the _Annuaire_ for that year, pp. 301-332.

The Hague Convention; No. iv. of 1907, provides, in Art. 54, that "submarine cables connecting occupied territory with a neutral territory shall not be destroyed or seized, unless in case of absolute necessity. They must be restored, and compensation must be arranged for them at the peace."

Convention No. v., by Art. 3, forbids belligerents (1) to install on neutral territory a radio-telegraphic station, or any other apparatus, for communicating with their land or sea forces; (2) to employ such apparatus, established by them there before the war, for purely military purposes. By Art. 5, a neutral Power is bound to permit nothing of the sort.

SUBMARINE CABLES

Sir,--The possibility of giving some legal protection to submarine cables has been carefully considered by the Institut de Droit International. A committee was appointed in 1878 to consider the subject, and the presentation of its report to the meeting at Brussels in 1879 was followed by an interesting discussion (see the _Annuaire de l'Institut_, 1879-80, pp. 351-394). The conclusions ultimately adopted by the Institut were as follows:--

"1. It would be very useful if the various States would come to an understanding to declare that destruction of, or injury to, submarine cables in the high seas is an offence under the Law of Nations, and to fix precisely the wrongful character of the acts, and the appropriate penalties. With reference to the last-mentioned point, the degree of uniformity attainable must depend on the amount of difference between systems of criminal legislation. The right of arresting offenders, or those presumed to be such, might be given to the public vessels of all nations, under conditions regulated by treaties, but the right to try them should be reserved to the national Courts of the vessel arrested.

"2. A submarine-telegraph cable uniting two neutral territories is inviolable. It is desirable that, when telegraphic communication must be interrupted in consequence of war, a belligerent should confine himself to such measures as are absolutely necessary to prevent the cable from being used, and that such measures should be discontinued, or that any damage caused by them, should be repaired as soon as the cessation of hostilities may permit."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 23 (1881).

SUBMARINE CABLES IN TIME OF WAR

Sir,--I venture to think that the question which has been raised as to the legitimacy of cable-cutting is not so insoluble as most of the allusions to it might lead one to suppose. It is true that no light is thrown upon it by the Convention of 1884, which relates exclusively to time of peace, and was indeed signed by Lord Lyons, on behalf of Great Britain, only with an express reservation to that effect. Nor are we helped by the case to which attention was called in your columns some time since by Messrs. Eyre and Spottiswoode. Their allusion was doubtless to the _International_ (L.R. 3 A. and E. 321), which is irrelevant to the present enquiry. The question is a new one, but, though covered by no precedent, I cannot doubt that it is covered by certain well-established principles of international law, which, it is hardly necessary to remark, is no cut-and-dried system but a body of rules founded upon, and moving with, the public opinion of nations.

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 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 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.

Your obedient servant, T. E. HOLLAND. Oxford, May 21 (1897).

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.

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:--

"Le câble télégraphique sous-marin qui unit deux territoires neutres est inviolable.

"Il est à désirer, quand les communications télégraphiques doivent cesser par suite de l'état de guerre, que l'on se borne aux mesures strictement nécessaires pour empêcher l'usage du cable, et qu'il soit mis fin à ces mesures, ou que l'on en répare les consequences, aussitôt que le permettra la cessation des hostilités."

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 urgent necessity of a system of cables connecting the British Empire by direct and independent means--_i.e._ without touching on foreign soil."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, June 3 (1897).

* * * * *

SECTION 7

_Destruction of Neutral Prizes_

A British ship, the _Knight Commander_, bound from New York to Yokohama and Kobe, was stopped on July 23, 1904, by a Russian cruiser, and as her cargo consisted largely of railway material, was considered to be engaged in carriage of contraband. Her crew and papers were taken on board the cruiser, and she was sent to the bottom by fire from its guns. The reasons officially given for this proceeding were that: "The proximity of the enemy's port, the lack of coal on board the vessel to enable her to be taken into a Russian port, and the impossibility of supplying her with coal from one of the Russian cruisers, owing to the high seas running at the time, obliged the commander of the Russian cruiser to sink her."

The Russian Regulations as to Naval Prize, Art. 21, allowed a commander "in exceptional cases, when the preservation of a captured vessel appears impossible on account of her bad condition or entire worthlessness, the danger of her recapture by the enemy, or the great distance or blockade of ports, or else on account of danger threatening the ship which has made the capture, or the success of her operations," to burn or sink the prize.

The Japanese Regulations, Art. 91, were to the same effect in cases where the prize (1) cannot be navigated owing to her being unseaworthy, or to dangerous seas; (2) is likely to be recaptured by the enemy; (3) cannot be navigated without depriving the ship-of-war of officers and men required for her own safety.

The case of the _Knight Commander_ was the subject of comment, on the 27th of the same month, in both Houses of Parliament. In the House of Lords, Lord Lansdowne spoke of what had occurred as "a very serious breach of international law," "an outrage," against which it had been considered "a duty to lodge a strong protest." In the House of Commons, Mr. Balfour described it as "entirely contrary to the accepted practice of civilised nations." Similar language was used in Parliament on August 10, when Mr. Gibson Bowles alluded to my letter of the 6th, in a way which gave occasion for that of the 14th.

The _Knight Commander_ was condemned by the Prize Court at Vladivostok on August 16, 1904, and the sentence was confirmed on December 5, 1905, by the Court of Appeal at St. Petersburg, which found it "impossible to agree that the destruction of a neutral vessel is contrary to the principles of international law." The Russian Government remained firm on the point, and in 1908 declined to submit the case to arbitration.

The Institut de Droit International in its _Code des Prises maritimes_, voted in 1887, Art. 50 (not, be it observed, professing to state the law as it is, but as it should be), had taken a view in accordance with that maintained by the British Government (_Annuaire_ for 1888, t. ix. p. 228; _cf. ib._ pp. 200, 201). (The _Manuel des lois de la guerre maritime_, voted at Oxford in 1913, dealing exclusively with "les rapports entre les belligérants," does not deal with the topic in question.) It was, however, the opinion of the present writer, as will appear from the following letters, that no rule of international law, by which the sinking of even neutral prizes was absolutely prohibited, could be shown to exist. He had previously touched upon this question in his evidence before the Royal Commission on the Supply of Food, &c., in Time of War, on November, 4, 1903, and returned to it later in his paper upon "The Duties of Neutrals," read to the British Academy on April 12, 1905, _Transactions_, ii. p. 66. It was reproduced in French, German, Belgian, and Spanish periodicals, and was cited in the judgment of the St. Petersburg Court of Appeal in the case of the _Knight Commander._

The subsequent history of the question, and, in particular, of the rules suggested in Arts. 48-54 of the unratified Declaration of London, may be claimed in favour of the correctness of the opinion maintained in the letters.

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; 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 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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August I (1904).

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 entitled, as against the captor, to full compensation for the loss thereby sustained.

I am, Sir, your obedient servant, T. E. HOLLAND. Eggishorn, Valais, Suisse, August 14 (1904).

RUSSIAN PRIZE LAW

Sir,--Mr. Gibson Bowles has, I find, addressed to you a letter in which he attempts to controvert two statements of mine by the simple expedient of omitting essential portions of each of them.

1. Mr. Bowles having revealed himself as unaware that the mode in which I had cited a group of cases upon destruction of prizes was the correct mode, I thought it well to provide him with the rudimentary information 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." He replies that he has found appended to a citation of a passage in a judgment the page in which this passage occurs. May I refer him, for an explanation of this phenomenon, to the words (now italicised) omitted in his quotation of my statement? It is, of course, common enough, when the reference is obviously not to the case as a whole but to an extract from it, thus to give a clue to the extract, the formula then employed being frequently "_at_ page so-and-so."

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Eggishorn, Suisse, August 26 (1904).

THE SINKING OF NEUTRAL PRIZES

Sir,--In your St. Petersburg correspondence of yesterday I see that some reference is made to what I have had occasion to say from time to time upon the vexed question of the sinking of neutral vessels, and your Correspondent thinks it "would be decidedly interesting" to know whether I have really changed my opinion on the subject. Perhaps, therefore, I may be allowed to state that my opinion on the subject has suffered no change, and may be summarised as follows:--

1. There is no established rule of international law which absolutely forbids, under any circumstances, the sinking of a neutral prize. A _consensus gentium_ to this effect will hardly be alleged by those who are aware that such sinking is permitted by the most recent prize regulations of France, Russia, Japan, and the United States.

2. It is much to be desired that the practice should be, by future international agreement, absolutely forbidden--- that the lenity of British practice in this respect should become internationally obligatory.

3. In the meantime, to adopt the language of the French instructions, "On ne doit user de ce droit de destruction 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:--

"The destruction of the property may have been a meritorious act towards his own Government; but still the person to whom the property belongs must not be a sufferer ... if the captor has by the act of destruction conferred a benefit upon the public, he must look to his own Government for his indemnity."

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.

I am, Sir, your obedient servant, T. E. HOLLAND. Temple, June 29 (1905).

The Russian circular of April 3, 1906, inviting the Powers to a second Peace Conference, included amongst the topics for discussion: "Destruction par force majeure des bâtiments de commerce neutres arrêtés comme prises," and the British delegates were instructed to urge the acceptance of what their Government had maintained to be the existing rule on the subject. The Conference of 1907 declined, however, to define existing law, holding that its business was solely to consider what should be the law in future. After long discussions, in the course of which frequent reference was made to views expressed by the present writer (see _Actes et Documents_, t. iii. pp. 991-993, 1010, 1016, 1018, 1048, 1171), the Conference failed to arrive at any conclusion as to the desirability of prohibiting the destruction of neutral prizes, and confined itself to the expression of a wish (_voeu_) that this, and other unsettled points in the law of naval warfare, should be dealt with by a subsequent Conference.

This question was, accordingly, one of those submitted to a Conference of ten maritime Powers, which was convoked by Great Britain in 1908, for reasons upon which something will be said in the next section.

The question of sinking was fully debated in this Conference, with the assistance of memoranda, in which the several Powers represented explained their divergent views upon it, and of reports prepared by committees specially appointed for the purpose. It soon became apparent that the British proposal for an absolute prohibition of the destruction of neutral prizes had no chance of being accepted; while, on the other hand, it was generally agreed that the practice is permissible only in exceptional cases. (See _Parl. Paper, Miscell._ No. 5 (1909), pp. 2-63, 99-102, 120, 189, 205, 215, 223, 248, 268-278, 323, 365.) Arts. 48-54 of the Declaration, signed by the delegates to the Conference on February 26, 1909, but not ratified by Great Britain, related to this question. After laying down, in Art. 48, the general principle that "a neutral prize cannot be destroyed by the captor, but should be taken into such port as is proper for the legal decision of the rightfulness of the capture" the Declaration proceeded, in Art. 49, to qualify this principle by providing that "exceptionally, a neutral vessel captured by a belligerent warship, which would be liable to confiscation, may be destroyed, if obedience to Art. 48 might compromise the safety of the warship, or the success of the operations in which she is actually engaged."

* * * * *

SECTION 8

_An International Prize Court_

The forecast, incidentally attempted in the following letters, of the general results likely to be arrived at by the second Peace Conference, has been justified by the event. As much may be claimed for the views maintained upon the topic with which these letters were more specifically concerned. Instead of letting loose the judges of the proposed International prize Court to "make law," in accordance with what might happen to be their notions of "the general principles of justice and equity," a serious attempt has been made to supply them with a Code of the law which they would be expected to administer.

Some account will be given at the end of this section of the movement towards the establishment of an International Court of Appeal in oases of prize.

AN INTERNATIONAL PRIZE COURT

SIR--The idea suggested by the question addressed on February 19 to the Government by Mr. A. Herbert--viz. that the appeal in prize cases should lie, not to a Court belonging to the belligerent from whose Court of first instance the appeal is brought, but to an international tribunal, has a plausible appearance of fairness, but involves many preliminary questions which must not be lost sight of.

Prize Courts are, at present, Courts of enquiry, to which a belligerent Government entrusts the duty of ascertaining whether the captures made by its officers have been properly made, according to the views of international law entertained by that Government. There exists, no doubt, among Continental jurists, a considerable body of opinion in favour of giving to Courts of Appeal, at any rate, in prize cases a wholly different character. This opinion found its expression in Arts. 100-109 of the _Code des Prises maritimes_, finally adopted at its Heidelberg meeting, in 1887, by the Institut de Droit International. Art. 100 runs as follows:--

"Au début de chaque guerre, chacune des parties belligérantes constitue un tribunal international d'appel en matière de prises maritimes. Chacun de ces tribunaux est composé de cinq membres, designés comme suit: L'état belligérant nommera lui-même le président et un des membres. Il désignera en outre trois états neutres, qui choisiront chacun un des trois autres membres."

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 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.

I am, your obedient servant, T. E. HOLLAND. Oxford, February 20 (1907).

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.

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 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: "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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, July 24 (1907).

A NEW PRIZE LAW

Sir,--In a letter under the above heading, for which you were so good as to find room in July last, I returned to the thesis which I had ventured to maintain some months previously, _à propos_ of a question put in the House of Commons. My contention was that the establishment of an international prize Court, assuming it to be under any circumstances desirable, should follow, not precede, a general international agreement as to the law which the Court is to administer.

It would appear, from such imperfect information as intermittently reaches Swiss mountain hotels, that a conviction 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[C] 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."

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Eggishorn, Suisse, September 16 (1907).

A NEW PRIZE LAW

Sir,--The speech of the Prime Minister at the Guildhall contains a paragraph which will be read with a sense of relief by those who, like myself, have all along viewed with surprise and apprehension The Hague proposals for an international prize Court.

Sir H. Campbell-Bannerman admits that "it is desirable, and it may be essential, that, before legislation can be undertaken to make such a Court effective, the leading maritime nations should come to an agreement as to the rules regarding some of the more important subjects of warfare which are to be administered by the Court"; and his subsequent eulogy of the Court presupposes that it is provided with "a body of rules which has received the sanction of the great maritime Powers." What is said as to the necessary postponement of any legislation in the sense of The Hague Convention must, of course, apply _a fortiori_ to the ratification of the Convention.

We have here, for the first time, an authoritative repudiation of the notion that fifteen gentlemen of mixed nationality composing an international prize Court, are to be let loose to "make law," in accordance with what may happen to be their conceptions of "justice and equity." It seems at last to be recognised that such a Court cannot be set to work unless, and until, the great maritime Powers shall have come to an agreement upon the rules of law which the Court is to administer.

I may add that it is surely too much to expect that the rules in question will be discussed by the Powers, to 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 11 (1907).

Although the establishment of an International Prize Court of Appeal was not one of the topics included in the programme of the Russian invitation; to a second Peace Conference, no objection was made to its being taken into consideration, when proposals to that effect were made by the British and American delegates to the Conference. The idea seems first to have been suggested by Hübner, who proposed to confer jurisdiction in cases of neutral prize on Courts composed of ministers or consuls, accredited by neutrals to the belligerents, together with commissioners appointed by the Sovereign of the captors or of the country to which the prize has been brought, as also, perhaps, "des personnes pleines de probité et de connaissances dans tout ce qui concerne les Loix des Nations et les Traités des Puissances modernes." The Court is to decide in accordance with treaties, "ou, à leur défaut, la loi universelle des nations." _De la Saisie des Bâtiments neutres_ (1759), ii. pp. 45-61. The Institut de Droit International, after discussions extending over several years, accepted the principle of an International Court of Appeal, though only in combination with a complete scheme of prize law, in its _Code des Prises maritimes_, completed in 1887, section 100.

At the Conference of 1907, the work of several committees, and a masterly report by Professor Renault, _Parl. Papers_, No. iv. (1908), p. 9, resulted in The Hague Convention, No. xii. of that year, providing for the establishment of a mixed Court of Appeal from national prize Courts.

According to Art. 7 of this Convention, in default of any relevant treaty between the Governments of the litigant parties, and of generally recognised rules of international law bearing upon the question at issue, the Court is to decide "in accordance with the general principles of justice and equity." It seems, however, to have been soon perceived that the proposal to institute a Court, unprovided with any fixed system of law by which to decide the cases which might be brought before it, could not well be entertained, and the Final Act of the Conference accordingly expresses a wish that "the preparation of a _Règlement_, relative to the laws and customs of maritime war, may be mentioned in the programme of the next Conference."

Thereupon, without waiting for the meeting of a third Hague Conference, the British Government on February 27, 1908, addressed a circular to the great maritime Powers, which, after alluding to the impression gained "that the establishment of the International Prize Court would not meet with general acceptance so long as vagueness and uncertainty exist as to the principles which the Court, in dealing with appeals brought before it, would apply to questions of far-reaching importance, affecting naval policy and practice," went on to propose that another Conference should meet in London, in the autumn of the same year, "with the object of arriving at an agreement as to what are the generally recognised principles of international law within the meaning of paragraph 2 of Article 7 of the Convention, as to those matters wherein the practice of nations has varied, and of then formulating the rules which, in the absence of special treaty provisions applicable to a particular case, the Court should observe in dealing with appeals brought before it for decision.... It would be difficult, if not impossible, for H.M. Government to carry the legislation necessary to give effect to the Convention, unless they could assure both Houses of the British Parliament that some more definite understanding had been reached as to the rules by which the new Tribunal should be governed."

In response to this invitation, delegates from ten principal maritime States assembled at the Foreign Office on December 4, 1908, and after discussing the topics to which their attention was directed, viz.: (1) Contraband; (2) Blockade; (3) Continuous voyage; (4) Destruction of neutral prizes; (5) Unneutral service; (6) Conversion of merchant vessels into warships on the high seas; (7) Transfer to a neutral flag; (8) Nationality or domicil, as the test of enemy property; signed on February 26, 1909, the Declaration of London.

The Convention No. xii. of 1907 and the Declaration of London of 1909 have alike failed to obtain ratification. _Cf._ now the two immediately following sections, 9 and 10.

An ultimate Court of Appeal in cases of Prize seems now likely to be provided by the "Permanent Court of International Justice," proposed by the League of Nations in pursuance of Art. 14 of the Treaty of Versailles. See also Art. 24 of the Treaty. _Cf. supra_, p. 2.

* * * * *

SECTION 9

_The Naval Prize Bill_

The first two letters in this section contain the criticisms of the Bill to which allusion is made in the first lines of a letter of later date, q.v. _supra_, p. 36. On the rejection of the Bill, see _ib._, note 1.

THE NAVAL PRIZE BILL

Sir--A paternal interest in the Naval Prize Bill may perhaps be thought a sufficient excuse for the few remarks which I am about to make upon it. The Bill owes its existence to a suggestion made by me, just ten years ago, while engaged in bringing up to date for the Admiralty my _Manual of Naval Prise Law_ of 1888. It was drafted by me, after prolonged communications with Judges, Law Officers, and the Government Departments concerned, so as not only to reproduce the provisions of several "cross and cuffing" statutes dealing with the subject, but also to exhibit them in a more logical order than is always to be met with in Acts of Parliament.

The Bill was thought of sufficient importance to be mentioned on two occasions in the King's Speech, and has been several times passed, after careful consideration, by the House of Lords; but pressure of other business has hitherto impeded its passage through the House of Commons. It has now been reintroduced, this time in the Lower House, with an imposing backing of Government support; primarily, no doubt, with a view to facilitating the ratification of The Hague Convention for the establishment of an International Prize Court of Appeal. For this purpose, several pieces of new cloth have been sewn into the old garment, and I may perhaps be allowed to call attention to three or four points in which, on a first reading, the new clauses strike one as needing reconsideration.

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.

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 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?

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, July 10 (1910).

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, 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?

Your obedient servant, T. E. HOLLAND. Oxford, July I (1911).

_Cf._ a letter of July 7, 1911, _supra_, p. 36.

NAVAL PRIZE MONEY

Sir,--The existing enactments as to prize bounty are, it seems, unsuitable to present conditions of naval warfare, and are accordingly to be varied by a bill shortly to be introduced.

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 23 (1918).

* * * * *

SECTION 10

The Declaration of London

For incidental mentions of the Declaration in earlier sections see _supra_, pp. 22, 36, 39, 55, 58, 80, 90, 92, 148, 149, 154, 155, 156, 158, 163, 164, 174, 181, 191, 193, 194, 195, 196.

See also my paper upon _Proposed Changes in the Law of Naval Prize_, read to the British Academy on May 31, 1911, _Transactions_, vol. v., of which a translation appeared in the _Revue de Droit International_, N.S., t. xiii, pp. 336-355.

THE DECLARATION OF LONDON

Sir,--The questions put last night by Mr. M'Arthur need, perhaps, more fully considered answers than they received from Mr. McKinnon Wood.

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 30 (1909).

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 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 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"?

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 28 (1910).

THE DECLARATION OF LONDON

Sir,--I have read Professor Westlake's letters upon the Declaration of London with the attention due to anything written by my very learned friend, but, although myself opposed to the ratification alike of the Prize Court Convention and of its complement, the Declaration, do not at present wish to enter upon the demerits of either instrument.

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 president. 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 should be borne in mind that, in accordance with the principles and practice of Continental jurisprudence, such a Report is considered an authoritative statement of the meaning and intention of the instrument which it explains, and that consequently foreign Governments and Courts, and no doubt also the International Prize Court, will construe and interpret the provisions of the Declaration by the light of the Commentary given in the Report." (_Miscell._ 1909, No. 4, p. 94.)

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

"Un commentaire précis, dégagé de tout controverse, qui, devenu commentaire officiel par l'approbation de la Conférence, soit de nature à guider les autorités diverses, administratives, militaires, judiciaires, qui pourront avoir à l'appliquer." (_Miscell._ 1909, No. 5, p. 344.)

It would seem that in each of these cases the adoption of the Report, and even a suggestion or two for a change 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:--

"Eine authentische Interpretation kann nur die durch Kontrahenten selbst, in einem gemeinschaftlichen, ihren Willen ausser Zweifel setzenden Acte (einem Nachtrags-oder Erlauterungsvertrage), erfolgen" (Volkerrecht, p. 282);

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

"interpretazione propriamente detta, ma una dichiarazione di quello che fu gia concordato, o un nuovo trattato" (Diritto Internazionale, ss. 1, 118);

and that

"il trattato non può essere interpretato che dalle stesse Parti (_i.e._ Stati) contrahenti; e per la validità dell' atto è indispensabile che la relativa convenzione di interpretazione abbia gli stessi requisiti ... di ogni altra convenzione tra Stato e Stato" (Il Dir. Int. Codif., § 816).

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 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?

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 16 (1911).

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 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 25 (1911).

THE DECLARATION OF LONDON

Sir,--It is satisfactory that so high an authority as Mr. Arthur Cohen distinctly accedes to the view that the Declaration of London ought not to be ratified as it stands. I should, however, be sorry were his suggestion accepted that the Declaration and the argumentative report which accompanies it might be ratified together. The result would be _obscurum per obscurius_, a remedy worse than the disease.

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 "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."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 1 (1911).

THE DECLARATION OF LONDON

Sir,--After Tuesday's debate in the House of Lords it may be hoped that not even "the man in the street" will suppose the Declaration of London to be anything more than an objectionable draft, by which no country has consented to be bound. Every day of the war makes more apparent our debt to the House of Lords for having, four years ago, prevented the British Government from ratifying either the International Prize Court Convention or this Declaration, which, while misleadingly professing that its provisions "correspond in substance with the generally recognised principles of international law," contains, interspersed with truisms familiar to all concerned with such matters, a good many undesirable novelties.

This being so, it was surely unfortunate that our Government, with a view apparently to saving time and trouble, decided, in the early days of the war, to adopt the Declaration _en bloc_ as a statement of prize law "during the present hostilities," subject, however, to "certain additions and modifications"; to which it, of course, retained the power of making additions. This power has been so freely exercised, and large portions of the Declaration, not thereby affected, have proved to be so inapplicable to modern conditions, as disclosed by the war, that the document, so far from providing reliable guidance, is now a mere source of hopeless confusion.

To put an end to this confusion, I venture to suggest that, in concert with our Allies, the Declaration should be 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.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 3 (1915).

THE DECLARATION OF LONDON

Sir,--You have allowed me, in a good many letters, to criticise the Declaration of London, both in its original inception and in its subsequent applications. Thanks to the House of Lords, the Declaration, which erroneously professed to "correspond in substance with the generally recognised principles of International Law," has remained unratified, and therefore diplomatically of no effect.

Its admirers have, however, too long preserved it, perhaps _sub spe rati_, in a state of suspended animation, 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:--

"To put an end to this confusion, I venture to suggest that, in concert with our Allies, the Declaration should be 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, ... or established principles take care of themselves, certain doubtful points only being dealt with from time to time by Orders in Council."

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.

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, July 9 (1916).

On July 7, 1916, an Order in Council was made, revoking all Orders by which the provisions of the Declaration had been adopted, or modified, for the duration of the war; stating the intention of the Allies to exercise their belligerent rights at sea in strict accordance with the law of nations; but dealing specifically with certain doubtful points. The Order was accompanied by a memorandum, drawn up by the British and French Governments, explaining how their expectation that in the Declaration they would find "a suitable digest of principles and compendium of working rules" had not been realised. See also Lord Robert Cecil in the House of Commons on August 23, with reference to the Zamora case, [1916] 2 Ch. c. 77.

On misuses of the term "Declaration" _cf. supra_, pp. 90, 91, 92.

GERMANY WRONG AGAIN

Sir,--The new German Note handed on Thursday last to the representatives of the neutral Powers supports its allegation that the four Allied Powers "have trampled upon right and torn up the treaties on which it was based" by the following statement:--

"Already in the first weeks of the war England had renounced the Declaration of London, the contents of which her own delegates had recognised as binding in international law."

It is surely notorious that the delegates of a Power, by agreeing to the draft of a treaty, give to it no international validity, which results only when the treaty has been ratified by their Government. The Declaration of London has, most fortunately, never been ratified by the Government of Great Britain.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, January 13 (1917).

INDEX

Absolute contraband. _See_ Contraband Abstention, 129 Acquiescence, State duty of, 129, 130, 133, 136 _Actæon_, the, 176, 179 Acts of Parliament, 61, 63 Admiralty Manual of Prize Law, 156, 159, 192 Aerial warfare, 61 Air, opposite views as to rights over, 64, 65 Aircraft in war, 69 _Alabama_, the, 131, 183 _Alexander, Mrs., the cotton of_, 153 Alien enemies, civil disabilities of, 47, 49, 205 _Allanton_, the, 158, 161, 162, 163 _Ancipitis usus_, articles, 148 _Angarie, Droit d'_, 170 _Appam_, the, 146 _Arabia_, the, 152 Arbitration, 1-6, 184 treaties, general, 6, 7 treaties, limited, _ib._ cases fit for, 5 the Hague tribunal of, 5 Armaments, limitation of, 184 Armed civilians, 77 Neutralities, the, 83 Army, duties of, 77 Article 23 (h), 47, 49, 206, 207 restricting application, 146 Aspirations, 99 Assassination, 93 _Asturias_, the, 60 Asylum to belligerent warships, 129, 143 _Atalanta_, the, 160 Aube, Admiral, 116 Authentic interpretation, 107, 196, 199, 201, 205

Baden-Powell, Sir G., 81, 85, 87 Baker, Sir Sherston, 85 Balfour, Mr. A.J., 13, 15, 73, 74, 173 Balloons, projectiles from, 30, 62 Base of operations, neutral duty as to, 129, 134, 144, 145 Baty, Dr. T., 161 Bays, 166, 167 Belligerents, lawful, 73, 75, 76, 77, 78, 79 Beresford, Lord Charles, 118 _Bermuda_, the, 160 Bills criticised, 36-40, 47, 192 Birkenhead, Lord, 135 Bismarck, Prince, 170 Bliss, Sir H., 150 Blockade, belligerent, 29, 83, 156 fictitious, 57, 59 pacific, 9-14, 17 Bluntschli's reply to Von Moltke, 26 Bombardment, 62 of open coast towns, 30, 62 from the air, 112, 123 Bondholders, foreign, vindication of rights of, 15 Bowles, Mr. Gibson, 54, 87, 89, 90, 92, 141, 173, 177, 178, 198 Brandschatz, 117 Brassard, effect of a, 79 Bright, Sir Charles, 171, 172 British Academy, author's paper at, 174 British Manual of Military Law, 74 Handbooks on War on Land, 75, 76 Brodrick, Mr., 75 _Brown_ v. _United States_, 45 Brusa, Prof., 130 Brussels Conference, the, of 1874, 68, 74, 77, 114, 172 Bullets, expanding, 22, 94, 96 explosive, 22, 94, 95 in savage warfare, 94 _Bundesrath_, the, 29, 157, 160 Butler, General B.F., 153 Bynkershoek, 45, 71, 165, 166

Cable-cutting, 30, 168-173 Cables, submarine, 168 Campbell-Bannerman, Sir H., 189 Captors, unqualified, 71, 73, 162, 163 Carson, Sir Edward, 127 Cavell, Miss, case of, 79 _Calchas_, the, 151, 152, 153 Cecil, Lord Robert, 8, 207 Channel tunnel, 42 _Chavasse, ex parte_, 137 Civilians armed, position of, 77, 78, 79 Churchill, Mr. Winston, 106 Claims, competitive, 17 Clarke, Sir Edward, 124 Clode, Mr., 112 Closed localities, 50 Clothing, use of enemy, 75 Coal, 176 conditional contraband, 149 for belligerent fleet, 131, 134 Coast fishing vessels, 30 Codification of laws of war, 22, 23 Cohen, Mr. Arthur, 47, 203 Coltman, Mr., 85 Commencement of war, 41 _Commercen_, the, 159 Commissioning on the High Seas, 90 Commissions of enquiry, 4 Compromise, the, between belligerent and neutral rights, 133, 136, 164, 169 Conditional contraband. _See_ Contraband Conduct of warfare between belligerents, 50 Conflict of Laws, 34, 35 Continuous voyages, 29, 157, 162, 183 "Contraband, a happy little," 153 Contraband of war, what it is, 130, 134, 159, 175 absolute and conditional, 147, 151, 152, 154, 158 British proposal to abolish doctrine of, 163, 184, 185 coal, how far, 132, 134, 149, 176 cotton, how far, 151, 152, 177 food-stuffs, how far, 176, 185 Japanese rules as to, 149, 155, 156 misuse of the term, 134 no neutral duty to prohibit export of, 113, 140 Russian rules as to, 154, 176 the Declaration of London as to, 164 the two constituents of, 159 Contractual debts, 21 Contributions, 102, 118 Conventions. _See_ Geneva, Hague, &c. and Legislation, 36 "transitoires," 198 Conversion. _See_ Transformation Convoy, 31 Cotton, 177 as contraband, 149, 151, 152 Court of International Justice, a permanent, 2, 191 Criticism of Bills, 36-40, 192 Customs Consolidation Act, 1853, 132

Danger zone, a, 59 Dardanelles, closing of, 55, 58, 80, 90, 92 "Declaration," misuse of the term, 90, 92, 206 Declaration, the, of London, 22, 36, 39, 80, 92, 147, 149, 154, 155, 158, 161, 163, 164, 181, 191, 193-207 provisional adoption of, as modified, 154, 204 rejection of, 206, 207 Declaration, the, of Paris, 22, 26, 57, 59, 80, 81, 82, 83, 87, 89, 156, 198 accession to, of Spain and Mexico, 81, 86, 87, 88, 89, 91 Declaration, the, of St. Petersburg, 22, 27, 91, 95, 96, 97 von Moltke upon, 25 Declaration of war, 10, 41, 43 Declarations, mistaken view as to their not needing ratification, 90, 91 the three, of the Hague in 1899. _See_ Hague De Horsey, Admiral, 118, 164 De Joinville, Prince, 117 De Martens, Prof., 162, 166, 176, 200 Deposit of delict, 158 Despatches, enemy, 156, 158, 160 Destination, 8, 155, 156 Destruction of neutral prizes, 22, 173-181 Dickenson, Mr. Lowes, 125 _Direct U.S. Cable Co._ v. _Anglo-American Tel. Co._, 166 Disguise, 75, 76 Distinctive marks, 77, 79 _Doelwijk_, the, 161 Drago doctrine, the, 20 _Droit d'angarie_, the, 170 Dum-dum bullet. _See_ Bullets _Durward_, the, 60

Embargo, 11 Enemy, who is an ?, 401[E] disabilities of, 47, 49, 206 goods in neutral bottoms, 83 in occupied territory, 102 merchant vessels at outbreak, 45, 49 property on land, 102 property at sea, 29, 104, 184 resident at outbreak, 44 service, 157, 158, 186 "Englishman's Home, An," the play, 77 Enquiry, international Commissions of, 1, 3, 4, 6 Evans, Sir Samuel, 70

False colours, 30, 43, 76 Fauchille, M., 47, 64, 65 _Felicity_, the, 164, 166, 167, 175, 177, 179 Fiore, Prof., 201 Fishing vessels, 31 Flag of truce, 76 Food-stuffs, 148, 174 how far contraband, 148, 176, 185 Food, Royal Commission on, 148, 174, 177 Foreign Enlistment Acts, the, 131, 134, 138, 139, 141, 143 Foreign Enlistment Bills, new, 39 Foreign soldiers, 45 Forster, Arnold-, Mr., 45 _Fox_, the, 176, 177 _Fram_, the, 137 _Francs-tireurs_, 79 "Freedom of the seas," 51, 97 French Government Manual for Land Warfare, 117 Friendly methods of settlement, 1

Gases, harmful, whether employment of, legitimate, 22, 96, 97 Geffken, Prof., 13 General principles of justice and equity, the, 187, 189, 190, 193 Geneva Convention Bill, 36 Geneva Conventions, the, 22, 34, 67, 98, 100 application of, to maritime warfare, 30, 98 Gentili, A., 170 Germany. _Cf._ Hague Conventions proclamation by, of a danger zone, 59 wrong as to Declaration of London, 207 Giffen, Sir R., 13 Gladstone, Mr., 134 _Goeben_ and _Breslau_, the, 91 _Golden Rocket_, the, 85 Good offices, 1, 2, 3 Government authority, as a protection, 72 Government Bills and International Conventions, 36-40, 192, 195, 204 Granville, Lord, 82, 85, 131, 170, 177 Greek coast, blockade of, 13 Guerilla warfare, 73 Gundel, General de, 48 Grotius, 45, 148, 155, 166, 168, 169

_Haabet_, the, 160 Hague Conventions, the, of 1889, 1, 2, 3, 6, 30, 61, 74, 75, 94, 102, 105, 107, 120, 184 of 1907, 1, 6 applicable only between contracting Powers, 69 No. i., 2, 3, 6 No. ii., 21, 22 No. iii., 22, 36, 44 No. iv., 22, 45, 60, 61, 67, 75, 76, 77, 96, 105, 107, 122, 168, 206 No. v., 22, 68, 75, 80, 90, 135, 168 No. vi., 22, 45, 70 No. vii., 22, 162 No. viii., 22, 45, 164 No. ix., 22, 68, 122 No. x., 22, 100, 130 No. xi., 22, 158 No. xii., 22, 36, 190, 194, 195, 197, 204 No. xiii., 22, 129, 143, 146 Hague Declarations, the, 22, 30, 61, 62, 63, 64, 96 Hague _Règlements_, the, as to war on land, 75, 76, 78, 93, 95, 100 Hague Tribunal, the, 5 reference to, not obligatory, 25 Haldane, Mr. R.B., 45 Hall, Mr. W.E., on pacific blockade, 13 Harcourt, Sir W., 74 Hardinge, Sir C., 152 Herbert, Mr. Arnold, 182, 184 Holland, Sir T.E., references to writings of, 8, 9, 20, 23, 35, 44, 47, 50, 52, 66, 75, 97, 113, 122, 164, 168, 180, 192, 196 Honour and vital interests clause, the, 4, 5, 6 Horses, wounded, 98, 100 Horsey, Adml., 118, 164, 166 Hostile assistance, 88, 157, 160, 186 Hübner, 190

_Ikaria_, the, 60 _Imina_, the, 160 Immediate effects of outbreak of war, the, 45 Institut de Droit International, the, 11, 12, 16, 23, 24, 30, 43, 44, 48, 63, 64, 65, 66, 68, 104, 105, 108, 121, 130, 162, 163, 164, 167, 168, 172, 174, 176, 182, 185, 190 its _Manuel des lois de la guerre maritime_, 163 its _Manuel des lois de la guerre sur terre_, 23, 24, 25, 27, 108 Instructions, national, on laws of war on land, 75, 76 on laws of war at sea: British, 156, 180 French, 179 Japanese, 148, 149, 150, 155, 156, 157, 173 Russian, 154, 173, 174, 176, 177, 179 United States, 179 _International_, the, 169 International Court of Appeal, an, 184 International Justice, a Permanent Court of, 2 International Law, the nature and authority of, 66, 67, 77, 86, 114, 115, 116, 119, 127, 169, 188 International Prize Court, proposal for an, 23, 181-191

Jackson, Colonel, 66, 68 James, Captain, 114 Jenks, Mr., 106, 108, 110 _Jonge Margaretha_, the, 159 Just cause of war, 83 "Justice and equity, general principles of," 187, 189, 190, 193

Kent, Chancellor, 45 Kleen, Mr., 130, 133 _Knight-Commander_, the, 173, 174 Kohler, Mr., 47 _Kowshing_, the case of the, 41, 43 "Kriegsbrauch," the, 68, 80

Lambermont, Baron, 77 Lammasch, Prof., 125 Lansdowne, Marquess of, 58, 133, 136, 149, 169, 173 Lawful belligerents, 69, 78 League of Nations, the, 1, 2, 7, 9, 191 Lehr, Prof., 102 _Leucade_, the, 176 Lincoln, President, 74 Lieber's Instructions, 74, 75 Localities closed to hostilities, 52 London, Conference of, 181, 190, 191 London, Declaration of, 22, 55, 58, 92, 181, 191, 193, 194, 195, 196-207 Lyons, Lord, 169

MacDonell, Prof., 172 McKenna, Mr., 78 Mahan, Admiral, 97 Mail steamers and bags, 30 _Malacca_, the case of the, 81, 162, 163 Mandates, 8 Manning, Mr., 45 Manual of military law, the British, 107 Manuals of warfare on land, 105 at sea, 105 Manuel des Lois de la guerre maritime, the, of Institut, 23 Manual des Lois de la guerre sur terre, 23, 24, 174 _Marais, ex parte_, 106 Martens, de, Prof., 126 Martial law, 105-112 Maurice, Colonel, 42 _Mcomini and others_ v. _Governor &c. of Natal_, 107 Means of injuring, 94 Measures short of war, 1-21 Mediation. _See_ Good offices Menam, blockade of the, 10 Mercantile Marine in war, 81, 84, 87 Merchant ships, visit of, 60 Militia, 77 _Minerva_, the, 91 Mines, 164 Moltke, von, on conduct of war, 24 Monroe doctrine, the, 17, 20 _Moray Firth_, the, 189 Morley, Lord, 58, 74 "Most favoured nation" clause, 17 _Möwe_, the, 70 "Murder," 70, 71, 72, 84 Mutiny Acts, the, 109

National Instructions, 75, 76 Naval bombardments of open coast towns, 30, 112, 123 Naval manoeuvres of 1888, the, 113, 123 Naval war code, a British, 30, 31, 32 Naval warfare, 22 Naval Prize (Consolidation) Bill, the, 36, 191-196, 198 object of, 194,195 rejection of, 196 Naval Prize money, 195 Neutral conduct, the criterion of, 125 Neutral duties, as classified by the author, 129 Neutral hospitality, 143 Neutral States and individuals, their liabilities distinguished, 129-135 Neutral territory, passage through, 90 Neutral trade, the four inconveniences, to, 159 Neutralisation, the term, 53, 54 Neutrality, correlative to belligerency, 10, 16, 19 British proclamations of, 130, 135-143 Neutrals, methods of warfare affecting, 164-181 Non-combatants, 72, 74 _Novoe Vremya_, the, 176

Occupied territory, right of the invader in, 80, 100 not yet occupied, 77 Oppenheim, Prof., 47 _Orozembo_, the, 160 "Ottoman Empire, ancient rule of the," 56

Pacific blockade, 10 Palmerston, Lord, 12 Panama Canal, the, 50 _Paquete Habana_, the, 30 Paris. _See_ Declaration of Paris, Treaty of, 53, 54, 56, 81, 87, 89, 155 "Pas de Code Naval, pas de Cour des Prises," 187 Passage, 64, 90 Peace talk, 125 Peaceful settlement of disputes, the Conventions for, of 1899, 2, 3, 6 of 1907, 2, 6 are non-obligatory, 173 Perels, Prof., 16 Permanent Court of International Justice, a, 191 _Peterburg_, the, 162 _Peterhoff_, the, 20, 149, 160 Petition of Right, the, 106, 108, 109 Pike, Mr., 98, 100 "Piracy," 70, 71, 84 Poison, 96 Pope's Note, the, 51 Port, enemy ships in, 49 _Porter_ v. _Freudenberg_, 49 Portsmouth, Lord, 205 Pourtugael, den Beer, Prof., 68 Pre-emption, 148 Prevention, State duties of, 129, 131 Prisoners of war, 45, 106, 107 liabilities of, 106 Private International Law, 34 Privateers, 81, 84 restrictions on, 82 commissioned liners are not, 70 Private property at sea, 184 Prize Court, the Russian, 163 an international Court of Appeal, 23, 170-182 a settled prize law, must precede, 181, 183, 185, 190, 191, 193 a supreme, 181 Prize Law Consolidation Bill, 193, 194, 199 "Probable cause," 83 Proclamations of neutrality, the British, criticised, 135-143 "Professors," 119 Projectiles, from balloons, 22, 30, 62 for diffusion of gases, 22, 96, 97

"Quasi-enemy," 12

Radiotelegraphic stations, 168 Rae, Mr., 162 Ratification, 203 Receipts, 102 _Règlements_, the Hague. _See_ Hague Renault, Prof., 172, 187, 190, 196, 198, 199 Report of the force of (_see_ Authentic Interpretation) Reprisals, advantages of, 14, 19 how differing from war, 9, 12, 14, 19 opposite views as to, 16 species of, 12, 15, 19 United States, instructions as to, 29 belligerent, 97, 123 Requisitions, 102, 117 Restrictive clause, the, 69, 146 Retaliation, 97 Reward for, dead or alive, 93 _R._ v. _Eyre_, 110 Ridley, Sir E., 77 Roman Law terminology, 102 Roosevelt, Pres., 146 Rosebery, Lord, 158 Ross, Sir R., 78 Russian Prize Law, 162, 174, 176

Salisbury, Lord, 3, 15, 52, 54, 157 _Santissima Trinidad_, the, 137 Savage warfare, 94 _Savannah_, the, 85 Scott, Sir Walter, 77, 91 Scott, Sir William, 91 Search. _See_ Visit and Search Second Peace Conference Conventions Bill, 37, 38, 39 Seely, Col., 63 Ship, a "mere moveable," 85 Shucking, Prof., 125 Siam, 10 Sinking. _See_ Destruction Smith (Lord Birkenhead) and Sibley, on International Law in the Russo-Japanese War, 135 _Spider_, the, 113, 117 Spies, 72 _Springbok_, the, 29 Stephen, Sir Herbert, 124 Stewart, Mr. C., 104 Story, J., 159 Stowell, Lord, 85, 159, 160, 161, 166, 175, 177, 178, 180, 197 Straits, 52, 56 Submarine cables, 168, 169, 171, 188 Submarines, 69 Suez Canal, the, 50, 51, 52, 54 Superfluous injury, 94, 95 Suyematsu, Baron, 149 Swettenham, Sir James, 79 Sydenham, Lord, 104

Takahashi, Prof., 43 Terminology, 33 Territorial waters, 165, 166, 167 Tindal, le Chevalier, 122 Tirpitz, Admiral von, 70 _Tocumaro_, the, 60[D] Torpedoes, 164 Transformation into ships of war, 162 Treaties, who are the parties to, 202, 207 effect of war on, 18, 198 Treaty, the Hay-Pauncefote, 50 Twenty-three (h) clause, the, 47, 206 Twenty-four hours rule, the, 127, 144, 145 Ullmann, Prof., 47, 106, 201 Unarmed merchantmen, 72, 73 Undefended towns, 30, 67, 68 Uniform, 75 United States instructions for war on land, 23, 73, 107 naval war code, 23, 30, 31, 88 Naval War College, 8 ratification of Conventions, 75 views of, compared with British, 29, 31 Unqualified captors, 72, 73 Unratified Conventions, effect of, 40 Usufruct, 101

Vattel, 46, 119 Venezuela, 13, 18 Visit and search, 72, 83, 84, 159, 186 "Violations of law of nations," term misapplied, 140, 142 Voeux, 5, 99, 121, 122, 167, 180, 190 Volunteers, 77

War. _See_ Reprisals Declaration of, 10, 41 legitimate object of, 25, 95 _sub modo_, 20, 55 written law of, 22 Washington, the Three Rules of, 86 Wellington, Duke of, 117 Westbury, Lord, 137 Westlake, Prof., 18, 41, 65, 183, 199, 202 Wilson, Pres., 72, 97, 127 Wolf, Mr., 58 Wood, Mackinnon, Mr., 196, 197, 200 Wounded and Sick. _See_ Geneva Conventions horses, 98, 100

_Yangtsze Insurance Association_ v. _Indemnity Mutual Marine Company_, 157 Younge, Mr., 118

_Zamora_, the, 207 Zone, a danger, 59

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[Transcriber's Note: The spelling and usage of non-English words and characters is occasionally inconsistent throughout the work. This etext preserves the usage in each instance as it appears in the printed book, except in cases of probable error as noted below.]

[Note A: Printed _s'entiendrait_ in original.]

[Note B: Printed _ressasi_ in original.]

[Note C: Printed _principles_ in original.]

[Note D: Spelled _Tokomaru_ where it appears in the text.]

[Note E: Misprinted in original--intended page unknown.]