LETTERS

 UPON

 WAR AND NEUTRALITY

 (1881-1920)

LETTERS TO "THE TIMES"

UPON

WAR AND NEUTRALITY

(1881-1920)

WITH SOME COMMENTARY

BY

SIR THOMAS ERSKINE HOLLANDK. C. , D. C. L. , F. B. A. 

FELLOW OF ALL SOULS COLLEGESOMETIME CHICHELE PROFESSOR OF INTERNATIONAL LAWMEMBRE (PRÉSIDENT 1913) DE L'INSTITUT DE DROIT INTERNATIONALETC. , ETC. 

THIRD EDITION

LONGMANS, GREEN, AND CO. 39 PATERNOSTER ROW, LONDON

FOURTH AVENUE & 30TH STREET, NEW YORKBOMBAY, CALCUTTA, AND MADRAS

1921

PREFACE TO THE FIRST EDITION

For a good many years past I have been allowed to comment, in letters to_The Times_, upon points of International Law, as they have been raisedby the events of the day. These letters have been fortunate enough toattract some attention, both at home and abroad, and requests havefrequently reached me that they should be rendered more easilyaccessible than they can be in the files of the newspaper in which theyoriginally appeared. 

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

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

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

 * * * * *

PREFACE TO THE SECOND EDITION

I have again to thank _The Times_ for permission to print in this newedition letters which have appeared in its columns during the past fouryears. They will be found to deal largely with still unsettled questionssuggested by the work of the Second Peace Conference, by the Declarationof London, and by the, unfortunately conceived, Naval Prize Bill of1911. 

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

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

 * * * * *

PREFACE TO THE THIRD EDITION

This, doubtless final, edition of my letters upon War and Neutralitycontains, by renewed kind permission of _The Times_, the whole series ofsuch letters, covering a period of no less than forty years. To theletters which have already appeared in former editions, I have now addedthose contained in the "Supplement" of 1916 (for some time out of print)to my second edition; as also others of still more recent date. Allthese have been grouped, as were their predecessors, under the varioustopics which they were intended to illustrate. The explanatorycommentaries have been carefully brought up to date, and a perhapssuperfluously full Index should facilitate reference for thoseinterested in matters of the kind. Such persons may not be sorry to havetheir attention recalled to many questions which have demanded practicaltreatment of late years, more especially during the years of the greatwar. 

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

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

CONTENTS

CHAPTER I

MEASURES SHORT OF WAR FOR THE SETTLEMENTOF INTERNATIONAL CONTROVERSIES 1

SECTION 1_Friendly Measures_ 1

The Petition to the President of the United States (1899) 2Commissions of Enquiry and The Hague Convention (1904) 3The League of Nations (1919) 7 " " " " ( " ) 8 " " " " (1920) 9

SECTION 2_Pacific Reprisals_ 9

The Blockade of the Menam (1893) 10Pacific Blockade (1897) 11The Venezuelan Controversy (1902) 13The Venezuela Protocol (1903) 18War and Reprisals (1908) 18

CHAPTER IISTEPS TOWARDS A WRITTEN LAW OF WAR 22

Count von Moltke on the Laws of Warfare (1881) 23Professor Bluntschli's Reply to Count von Moltke (1881) 26The United States Naval War Code (1901) 29A Naval War Code (1902) 31

CHAPTER III

TERMINOLOGY 33

International Terminology (1918) 33

CHAPTER IV

CONVENTIONS AND LEGISLATION 36

Government Bills and International Conventions (1911) 36The present Bill in Parliament (1914) 38The Foreign Enlistment Bill (1912) 39

CHAPTER V

THE COMMENCEMENT OF WAR 41

SECTION 1_Declaration of War_ 41

The Sinking of the _Kowshing_ (1894) 41

SECTION 2_The Immediate Effects of the Outbreak of War_ 44

Foreign Soldiers in England (1909) 45The Naval Prize Bill: Civil Disabilities of Enemy Subjects (1911) 47Enemy Ships in Port (1917) 49

CHAPTER VI

THE CONDUCT OF WARFARE 50

SECTION 1_On the Open Sea_ 51

The Freedom of the Seas? (1917) 51

SECTION 2_In Other Waters_ 51

The Suez Canal (1898) 51 " " " ( " ) 51 " " " ( " ) 53 " " " ( " ) 54The Closing of the Dardanelles (1912) 55 " " " " " ( " ) 58

SECTION 3_In a Special Danger Zone?_ 59

The German Threat (1915) 59

SECTION 4_Aerial Warfare_ 61

The Debate on Aeronautics (1909) 61The Aerial Navigation Act (1913) 63Sovereignty over the Air (1913) 65Attack from the Air: The Enforcement of International Law (1914) 66 " " " " The Rules of International Law (1914) 67

SECTION 5_Submarines_ 69

Germany and the Hague (1914) 69The "Pirates" (March 13, 1915) 70Submarine Crews (March 22, 1915) 71Mr. Wilson's Note (May 16, 1915) 72

SECTION 6_Lawful Belligerents_ 73

Guerilla Warfare (1906) 73The Russian Use of Chinese Clothing (1904) 75The Rights of Armed Civilians (1914) 77Civilians in Warfare: The Right to take up Arms (1914) 78Civilians and a Raid (1914) 79Miss Cavell's Case (1915) 79

SECTION 7_Privateering and the Declaration of Paris_ 80

Our Mercantile Marine in War Time (1898) 81 " " " " " " ( " ) 84Our Mercantile Marine in War (1898) 87The Declaration of Paris (1911) 87 " " " " (1914) 89 " " " " (1916) 91 " " " " (1916) 92

SECTION 8_Assassination_ 93

The Natal Proclamation (1906) 93

SECTION 9_The Choice of Means of Injuring_ 94

Bullets in Savage Warfare (1903) 94Gases (1918) 97

SECTION 10_The Geneva Convention_ 98

Wounded Horses in War (1899) 98

SECTION 11_Enemy Property in Occupied Territory_ 100

International "Usufruct" (1898) 101Requisitions in Warfare (1902) 103

SECTION 12_Enemy Property at Sea_ 104

Private Property at Sea (1913) 104

SECTION 13_Martial Law_ 105

The Executions at Pretoria (1901) 106The Petition of Right (1901) 108The Petition of Right (1902) 109Martial Law in Natal (1906) 111

SECTION 14_The Naval Bombardment of Open Coast Towns_ 112

Naval Atrocities (1888) 113The Naval Manoeuvres (1888) 113 " " " ( " ) 117Naval Bombardments of Unfortified Places (1904) 120

SECTION 15_Belligerent Reprisals_ 123

Reprisals (1917) 123 " ( " ) 124

SECTION 16_Peace_ 124

Undesirable Peace Talk (1915) 124

CHAPTER VII

THE RIGHTS AND DUTIES OF NEUTRALS 126

SECTION 1_The Criterion of Neutral Conduct_ 126

Professor de Martens on the Situation (1905) 126Neutrals and the Laws of War (1915) 127

SECTION 2_The Duties of Neutral States, and the Liabilities of Neutral Individuals, distinguished_ 129

Contraband of War (1904) 130Coal for the Russian Fleet (1904) 132German War Material for Turkey (1911) 135

SECTION 3

_Neutrality Proclamations_ 135

The British Proclamation of Neutrality (1904) 136 " " " " ( " ) 138 " " " " (1911) 141The Proclamation of Neutrality (1911) 143

SECTION 4

_Neutral Hospitality_ 143

Belligerent Fleets in Neutral Waters (1905) 144The _Appam_ (1916) 146

SECTION 5

_Carriage of Contraband_ 147

_Absolute and Conditional Contraband_ 147 Contraband of War (1898) 147 Is Coal Contraband of War? (1904) 149 Cotton as Contraband of War (1905) 151 " " " " (1916) 154 Japanese Prize Law (1905) 155 " " " (1915) 157

_Continuous Voyages_ 157 Prize Law (1900) 158 The _Allanton_ (1904) 161

_Unqualified Captors_ 162 The _Allanton_ (1904) 162

SECTION 6

_Methods of Warfare as affecting Neutrals_ 164

_Mines_ 164 Mines in the Open Sea (1904) 164 Territorial Waters (1904) 166

_Cable-cutting_ 168 Submarine Cables (1881) 168 " " in Time of War (1897) 169 " " " " " " ( " ) 171

SECTION 7

_Destruction of Neutral Prizes_ 173

Russian Prize Law (1904) 174 " " " ( " ) 177 " " " ( " ) 178The Sinking of Neutral Prizes (1905) 179

SECTION 8

_An International Prize Court_ 181

An International Prize Court (1907) 182A New Prize Law (1907) 183" " " " ( " ) 186" " " " ( " ) 189

SECTION 9

_The Naval Prize Bill_ 191

The Naval Prize Bill (1910) 192 " " " " (1911) 194Naval Prize Money (1918) 195

SECTION 10

_The Declaration of London_ 196

The Declaration of London (1909) 196 " " " " (1910) 197 " " " " (1911) 199 " " " " ( " ) 202 " " " " ( " ) 203 " " " " (1915) 204 " " " " (1916) 205Germany wrong again (1917) 207

INDEX 209

CHAPTER I

MEASURES SHORT OF WAR FOR THE SETTLEMENT OF INTERNATIONAL CONTROVERSIES

SECTION 1

_Friendly Measures_

 Of the letters which follow, the first was suggested by a petition presented in October, 1899, to the President of the United States, asking him to use his good offices to terminate the war in South Africa; the second by discussions as to the advisability of employing, for the first time, an International Commission of Enquiry, for the purpose of ascertaining the facts of the lamentable attack perpetrated by the Russian fleet upon British fishing vessels off the Dogger Bank, on October 21, 1905. The Commission sat from January 19 to February 25, 1905, and its report was the means of terminating a period of great tension in the relations of the two Powers concerned (see _Parl. Paper_, Russia, 1905, No. 3): this letter deals also with Arbitration, under The Hague Convention of 1899. 

 It may be worth while here to point out that besides direct negotiation between the Powers concerned, four friendly methods for the settlement of questions at issue between them are now recognised, _viz_ (1) Good offices and mediation of third Powers; (2) "Special mediation"; (3) "International Commissions of Enquiry"; (4) Arbitration. All four were recommended by The Hague Convention of 1899 "For the Peaceful Settlement of International Disputes" (by which, indeed, (2) and (3) were first suggested), as also by the amended re-issue of that convention in 1907. It must be noticed that resort to any of these methods is entirely discretionary, so far as any rule of International Law is concerned; all efforts to render it universally and unconditionally obligatory having, perhaps fortunately, hitherto failed. 

 It remains to be seen how far the settlement of international controversies has been facilitated by the establishment of a "League of Nations" (to which reference is made in the concluding letters of this chapter), and, in particular, by the plan for the establishment of a "Permanent Court of International Justice, " formulated by the League, in pursuance of Art. 14 of the Treaty of Versailles, and submitted to its members in December, 1920. 

THE PETITION TO THE PRESIDENT OF THE UNITED STATES

Sir, --It seems that a respectably, though perhaps thoughtlessly signedpetition was on Thursday presented to President McKinley, urging him tooffer his good offices to bring to an end the war now being waged inSouth Africa. From the _New York World_ cablegram, it would appear thatthe President was requested to take this step "in accordance with Art. 3of the protocol of the Peace Conference at The Hague. " The referenceintended is doubtless to the _Convention pour le règlement pacifique desconflits internationaux_, prepared at the Conference [of 1899], Art. 3of which is to the following effect:--

 "Les Puissances signataires jugent utile qu'une ou plusieurs Puissances étrangères au conflit offrent de leur propre initiative, en tant que les circonstances s'y prêtent, leurs bons offices ou leur médiation aux États en conflit. 

 "Le droit d'offrir les bons offices ou la médiation appartient aux Puissances étrangères au conflit, même pendant le cours des hostilités. 

 "L'exercice de ce droit ne peut jamais être considéré par l'une ou l'autre des parties en litige comme un acte peu amical. "

Several remarks are suggested by the presentation of this petition:--

(1) One might suppose from the glib reference here and elsewhere made toThe Hague Convention, that this convention is already in force, whereasit is [1899], in the case of most, if not all, of the Powers representedat the conference, a mere unratified draft, under the consideration ofthe respective Governments. 

(2) The article, if it were in force, would impose no duty of offeringgood offices, but amounts merely to the expression of opinion that anoffer of good offices is a useful and unobjectionable proceeding, insuitable cases (_en tant que les circonstances s'y prêtent_). It cannotfor a moment be supposed that the President would consider that anopportunity of the kind contemplated was offered by the war in SouthAfrica. 

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

Your obedient servant, T. E. HOLLAND. Oxford, October 28 (1899). 

 _Par. _ 2 (1). --The Convention of 1899 was ratified by Great Britain, on September 4, 1900; and between that year and 1907 practically all civilised Powers ratified or acceded to it. It is now, for almost all Powers, superseded by The Hague Convention, No. I. Of 1907, which, reproduces Art. 3 of the older Convention, inserting, however, after the word "utile, " the words "et désirable. "

 _Ib. _ (2). --On March 6, 1900, the two Boer Republics proposed that peace should be made on terms which included the recognition of their independence. Great Britain having, on March 11, declared such recognition to be inadmissible, the European Powers which were requested to use their good offices to bring this about declined so to intervene. The President of the United States, however, in a note delivered in London on March 13, went so far as to "express an earnest hope that a way to bring about peace might be found, " and to say that he would aid "in any friendly manner to bring about so happy a result. " Lord Salisbury, on the following day, while thanking the United States Government, replied that "H. M. Government does not propose to accept the intervention of any Power in the South African War. " Similar replies to similar offers had been made both by France and Prussia in 1870, and by the United States in 1898. 

COMMISSIONS OF ENQUIRY AND THE HAGUE CONVENTION

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

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

In the first place, neither "the honour and vital interests clause, " asseems to be supposed by your correspondent Mr. Schidrowitz, nor theclause as to circumstances permitting, is in any way modified by thearticle which follows. Art. 10 does not enlarge the scope of Art. 9, butmerely indicates the procedure to be followed by Powers desirous ofacting under it. In the second place, it is wholly unimportant whetheror no the scope of Art. 9 is enlarged by Art. 10. The entire liberty ofthe Powers to make any arrangement which may seem good to them forclearing up their differences is neither given, nor impaired, by thearticles in question, to which the good sense of the Conference declinedto attach any such obligatory force as had been proposed by Russia. Itmay well be that disputant Powers may at any time choose to agree toemploy the machinery suggested by those articles, or somethingresembling it, in cases of a far more serious kind than those to whichalone the convention ventured to make its recommendation applicable; andthis is the course which seems to have been followed by the Powersinterested with reference to the recent lamentable occurrence in theNorth Sea. 

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

It is a matter for rejoicing that, in accordance with the suggestioncontained in the phrase last quoted, so many treaties, of which thatbetween Great Britain and Portugal is the most recent, have been enteredinto for referring to The Hague tribunal "differences of a juridicalnature, or such as relate to the interpretation of treaties; oncondition that they do not involve either the vital interests or theindependence or honour of the two contracting States. " Such treaties, conforming as they all do to one carefully defined type, may beproductive of much good. They testify to, and may promote, a very widelyspread _entente cordiale_, they enhance the prestige of the tribunal ofThe Hague, and they assure the reference to that tribunal of certainclasses of questions which might otherwise give rise to internationalcomplications. Beyond this it would surely be unwise to proceed. It isbeginning to be realised that what are called "general" treaties ofarbitration, by which States would bind themselves beforehand to submitto external decision questions which might involve high politicalissues, will not be made between Powers of the first importance; also, that such treaties, if made, would be more likely to lead to freshmisunderstandings than to secure the peaceful settlement of disputedquestions. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 21 (1904). 

 _Pars. _ 1-3. --The topic of "Commissions of Enquiry, " which occupied Arts. 9-13 of the Convention of 1899 "For the Peaceful Settlement of International Disputes, " is more fully dealt with in Arts. 9-36 of the Convention as amended in 1907. 

 _Par. _ 4. --The amended Convention, as a whole, is still, like its predecessor, purely facultative. The Russian proposal to make resort to arbitration universally obligatory in a list of specified cases, unless when the "vital interests or national honour" of States might be involved, though negatived in 1899, was renewed in 1907, in different forms, by several Powers, which eventually concurred in supporting the Anglo-Portuguese-American proposal, according to which, differences of a juridical character, and especially those relating to the interpretation of treaties, are to be submitted to arbitration, unless they affect the vital interests, independence, or honour, of the States concerned, or the interests of third States; while all differences as to the interpretation of treaties relating to a scheduled list of topics, or as to the amount of damages payable, where liability to some extent is undisputed, are to be so submitted without any such reservation. This proposal was accepted by thirty-two Powers, but as nine Powers opposed it, and three abstained from voting, it failed to become a convention. The delegates to the Conference of 1907 went, however, so far as to include in their "Final Act" a statement to the effect that they were unanimous: (1) "in recognising the principle of obligatory arbitration"; (2) "in declaring that certain differences, and, in particular, such as relate to the interpretation and application of the provisions of International Conventions, are suitable for being submitted to obligatory arbitration, without any reservations. "

 _Par. _ 5. --The Convention between France and Great Britain, concluded on October 14, 1903, for five years, and renewed in 1908, and again in 1913, for a like period, by which the parties agree to submit to The Hague tribunal any differences which may arise between them, on condition "that they do not involve either the vital interests, or the independence, or honour of the two contracting States, and that they do not affect the interests of a third Power, " has served as a model or "common form, " for a very large number of conventions to the same effect, entered into between one State and another. The Convention of April 11, 1908, between Great Britain and the United States is substantially of this type. 

 But see now the three letters which follow. 

THE LEAGUE OF NATIONS

Sir, --The League is unquestionably "a brave design. " Sympathy with itsobjects and some hope that they may be realised have induced myself, as, doubtless many others, to abstain from criticising the way in which thetopic has been handled by the representatives of the victorious Powers. Recent discussions seem, however, to render such reticence no longerdesirable. 

It begins to be recognised that, as some of us have all along held to bethe case, a serious mistake was made by the Paris delegates when theycombined in one and the same document provisions needed for putting anend to an existing state of war with other provisions aiming at thecreation in the future of a new supernational society. Two matters sowholly incongruous in character should surely have been dealt withseparately. Whether it is now too late to attempt a remedy for theconsequences of this unfortunate combination is a question which can beanswered only by the diplomatists whose business it is to be intimatelyin touch with the susceptibilities of the various nations concerned. Inthe meantime, however, on the assumption that this state of things isproductive of regrettable results, I may perhaps venture to indicate, recommending their adoption, the steps which appear to be required forthe reformation of the Treaty as drafted. My suggestions would run asfollows:--

(1) Subtract from the Treaty of Versailles, Parts I. And XIII. , theformer constituting a League of Nations, the latter, in pursuance of arecital that universal peace "can be established only if it is basedupon social justice, " wholly occupied with a sufficiently ambitiousscheme for the regulation by the League of all questions relating to"Labour" which may arise within its jurisdiction. 

(2) Let Part I. , with Part XIII. Annexed, constitute a new andindependent Treaty; to be, as such, submitted to the Powers for furtherconsideration. (The opportunity might be taken of ridding it of allreferences to a system of "mandates, " which might very probably lead tojealousies and misunderstandings. )

(3) Parts II. To XII. , XIV. , and XV. Would then constitute the realTreaty of Peace, in which it would, however, be necessary in thenumerous articles attributing functions, for the most part of atemporary character, the "League of Nations, " to substitute for anymention of the League words descriptive of some other authority, yet tobe created, such as, for instance, "a Commission to be constituted bythe principal Allied and Associated Powers. "

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 16 (1919). 

Sir, --Let me assure Lord Robert Cecil that I am perfectly serious ingiving expression to a long-felt wish that the Treaty of Peace could berelieved of articles relating exclusively to an as yet to be createdLeague of Nations, and in proceeding to indicate the steps that must betaken if this reform is to be effected. 

It can hardly be necessary also to assure Lord Robert that I am fullyaware of the formidable, though perhaps not insuperable, difficultieswhich would beset any efforts to carry out my suggestions. He may haveinferred so much from my letter of the 16th, in which, treating thequestion whether it is now too late to attempt a remedy for the existingstate of things as beyond the competence of an outsider, I describe itas one which can be answered "only by the diplomatists whose business itis to be intimately in touch with the susceptibilities of the variousnations concerned. "

On a point of detail, I am surprised that Lord Robert is unwilling thatthe contents of Part XIII. Should be removed to their natural context, on the ground that the Labour organisation might be annoyed if this weredone. I am, however, confident that the organisation is too intelligentnot to see that it would lose nothing if the articles in which it isinterested were made an integral part of a Convention constituting aLeague of Nations; the League being already solely charged with givingeffect to the articles in question. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 20 (1919). 

Sir, --Professor Alison Phillips is not quite accurate in attributing tome a belief that the task of amending the Treaty of Versailles is "notbeyond the powers of competent diplomatists. " No such belief isexpressed in my letter of December 16, in which I was careful to admitthat the question, "whether it is now too late to attempt" the reformwhich appears to me to be desirable is one "which can be answered onlyby the diplomatists. "

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, January 5 (1920). 

 * * * * *

SECTION 2

_Pacific Reprisals_

 The four letters next following were suggested by the ambiguous character of the blockades instituted by France against Siam in 1893, by the Great Powers against Crete in 1897, and by Great Britain, Germany, and Italy, against Venezuela in 1902. The object, in each case, was to explain the true nature of the species of reprisals known as "Pacific Blockade, " and to point out the difference between the consequences of such a measure and those which result from a "Belligerent Blockade. " A fifth letter, written with reference to the action of the Netherlands against Venezuela in 1908, emphasises the desirability of more clearly distinguishing between war and reprisals. On the various applications of a blockade in time of peace, see the author's _Studies in International Law_, pp. 130-150. 

THE BLOCKADE OF THE MENAM

Sir, --Upon many questions of fact and of policy involved in the quarrelbetween France and Siam it may be premature as yet to expect explicitinformation from the French Government; but there should not be amoment's doubt as to the meaning of the blockade which has probably bythis time been established. 

Is France at war with Siam? This may well be the case, according tomodern practice, without any formal declaration of war; and it is, forinternational purposes, immaterial whether the French Cabinet, if it hascommenced a war without the sanction of the Chambers, has or has notthereby violated the French Constitution. If there is a war, and if theblockade, being effective, has been duly notified to the neutral Powers, the vessels of those Powers are, of course, liable to be visited, and, if found to be engaged in breach of the blockade, to be dealt with bythe French Prize Courts. 

Or is France still at peace with Siam, and merely putting upon her thatform of pressure which is known as "pacific blockade"?

In this case, since there is no belligerency there is no neutrality, andthe ships of States other than that to which the pressure is beingapplied are not liable to be interfered with. The particular mode ofapplying pressure without going to war known as "pacific blockade"dates, as is well known, only from 1827. It has indeed been enforced, byEngland as well as by France, upon several occasions, against thevessels of third Powers; but this practice has always been protestedagainst, especially by French jurists, as an unwarrantable interferencewith the rights of such Powers, and was acknowledged by Lord Palmerstonto be illegal. The British Government distinctly warned the French in1884 that their blockade of Formosa could be recognised as affectingBritish vessels only if it constituted an act of war against China; andwhen the Great Powers in 1886 proclaimed a pacific blockade of thecoasts of Greece they carefully limited its operation to ships under theGreek flag. 

The Subject has been exhaustively considered by the Institut de DroitInternational, which, at its meeting at Heidelberg in 1887, arrived atcertain conclusions which may be taken to express the view of learnedEurope. They are as follows:--

 "L'établissement d'un blocus en dehors de l'état de guerre ne doit être considere comme permis par le droit des gens que sous les conditions suivantes:--

 "1. Les navires de pavillon étranger peuvent entrer librement malgré le blocus. 

 "2. Le blocus pacifique doit être déclaré et notifié officiellement, et maintenu par une force suffisante. 

 "Les navires de la puissance bloquée qui ne respectent pas un pareil blocus peuvent être séquestrés. Le blocus ayant cessé, ils doivent être restitués avec leur cargaisons à leurs propriétaires, mais sans dédommagement à aucun titre. "

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

I am, Sir, your obedient servant, T. E. HOLLAND. Athenæum Club, July 26 (1893). 

PACIFIC BLOCKADE

Sir, --The letter signed "M. " in your issue of this morning contains, Ithink, some statements which ought not to pass uncorrected. A "blockade"is, of course, the denial by a naval squadron of access for vessels to adefined portion of the coasts of a given nation. A "pacific blockade" isone of the various methods--generically described as "reprisals, " suchas "embargo, " or seizure of ships on the high seas--by which, withoutresort to war, pressure, topographically or otherwise limited in extent, may be put upon an offending State. The need for pressure of any kindis, of course, regrettable, the only question being whether such limitedpressure be not more humane to the nation which experiences it, and lessdistasteful to the nation which exercises it, than is the letting looseof the limitless calamities of war. 

The opinion of statesmen and jurists upon this point has undergone achange, and this because the practice known as "pacific blockade" hasitself changed. The practice, which is comparatively modern, dating onlyfrom 1827, was at first directed against ships under all flags, andships arrested for breach of a pacific blockade were at one timeconfiscated, as they would have been in time of war. It has been purgedof these defects as the result of discussions, diplomatic andscientific. As now understood, the blockade is enforced only againstvessels belonging to the "quasi-enemy, " and even such vessels, whenarrested, are not confiscated, but merely detained till the blockade israised. International law does not stand still; and having someacquaintance with Continental opinion on the topic under consideration, I read with amazement "M. 's" assertion that "the majority in number, ""the most weighty in authority" of the writers on international law"have never failed to protest against such practices as indefensible inprinciple. " The fact is that the objections made by, e. G. LordPalmerston in 1846, and by several writers of textbooks, to pacificblockade, had reference to the abuses connected with the earlier stagesof its development. As directed only against the ships of the"quasi-enemy, " it has received the substantially unanimous approbationof the Institut de Droit International at Heidelberg in 1887, after avery interesting debate, in which the advocates of the practice were ledby M. Perels, of the Prussian Admiralty, and its detractors by ProfessorGeffken. It is true that in an early edition of his work uponinternational law my lamented friend, Mr. Hall, did use the wordsattributed to him by "M. ": "It is difficult to see how a pacificblockade is justifiable. " But many things, notably Lord Granville'scorrespondence with France in 1884 and the blockade of the Greek coastin 1886, have occurred since those words were written. If "M. " will turnto a later edition of the work in question he will see that Mr. Hall hadcompletely altered his opinion on the subject, or rather that, havingdisapproved of the practice as unreformed, he blesses it altogether inits later development. With reference to the utility of the practice, Ishould like to call the attention of "M. " to a passage in the latestedition of Hall's book which is perhaps not irrelevant to currentpolitics:--

 "The circumstances of the Greek blockade of 1886 show that occasions may occur in which pacific blockade has an efficacy which no other measure would possess. The irresponsible recklessness of Greece was endangering the peace of the world; advice and threats had been proved to be useless; it was not till the material evidence of the blockade was afforded that the Greek imagination could be impressed with the belief that the majority of the Great Powers of Europe were in earnest in their determination that war should be avoided. "

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 5 (1897). 

THE VENEZUELAN CONTROVERSY

Sir, --Apart from the practical difficulty, so ably described by SirRobert Giffen in your issue of this morning, of obtaining compensationin money from a State which seems to be at once bankrupt and in thethroes of revolution, not a few questions of law and policy, as to whichmisunderstanding is more than probable, are raised from day to day bythe action of the joint squadrons in Venezuelan waters. It may thereforebe worth while to attempt to disentangle the more important of thesequestions from the rest, and to indicate in each case the principlesinvolved. 

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

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

3. Reprisals may be exercised in many ways; from such a high-handed actas the occupation of the Principalities by Russia in 1853, to such amere seizure of two or three merchant vessels as occurred in the courseof our controversy with Brazil in 1861. In modern practice, thesemeasures imply a temporary sequestration, as opposed to confiscation ordestruction, of the property taken. In the belief that reprisals onlywere being resorted to against Venezuela one was therefore glad to hearthat the sinking of gunboats by the Germans had been explained asrendered necessary by their unseaworthiness. 

4. Pacific reprisals should also, according to the tendency of modernopinion and practice, be so applied as not to interfere with theinterests of third Powers and their subjects. This point has beenespecially discussed with reference to that species of reprisal known asa "pacific blockade, " of which some mention has been made in the presentcontroversy. The legitimacy of this operation, though dating only from1827, if properly applied, is open to no question. Its earlierapplications were, no doubt, unduly harsh, not only towards the peccantState, but also towards third States, the ships of which were evenconfiscated for attempting to break a blockade of this nature. Two viewson this subject are now entertained--viz. (1) that the ships of thirdPowers breaking a pacific blockade may be turned back with any needfulexertion of force, and, if need be, temporarily detained; (2) that theymay not be interfered with. The former view is apparently that of theGerman Government. It was certainly maintained by M. Perels, then as nowthe adviser to the German Admiralty, during the discussion of thesubject by the Institut de Droit International at Heidelberg in 1887. The latter view is that which was adopted by the Institut on thatoccasion. It was maintained by Great Britain, with reference to theFrench blockade of Formosa in 1884; was acted on by the allied Powers inthe blockade of the coast of Greece, instituted in 1886; and isapparently put forward by the United States at the present moment. 

5. If, however, we are at war with Venezuela (as will, no doubt, be thecase if we proclaim a belligerent blockade of the coast, and may at anymoment occur, should Venezuela choose to treat our acts, even ifintended only by way of reprisals, as acts of war), the situation ischanged in two respects: (1) the hostilities which may be carried on bythe allies are no longer localised, or otherwise limited, except by thedictates of humanity; (2) third States become _ipso facto_ "neutrals, "and, as such, subject to obligations to which up to that moment they hadnot been liable. Whatever may have previously been the case, it isthenceforth certain that their merchant vessels must respect the (nowbelligerent) blockade, and are liable to visit, search, seizure, andconfiscation if they attempt to break it. 

6. If hostile pressure, whether by way of reprisals or of war, isexercised by the combined forces of allies, the terms on which this isto be done must obviously be arranged by previous agreement. Moreespecially would this be requisite where, as in the case of GreatBritain and Germany, different views are entertained with reference tothe acts which are permissible under a "pacific blockade. "

7. When, besides the Power, or Powers, putting pressure upon a givenState, with a view to obtaining compensation for injuries received fromit, other Powers, though taking no part in what is going on, give noticethat they also have claims against the same offender; delicate questionsmay obviously arise between the creditors who have and those who havenot taken active steps to make their claims effective. In the presentinstance, France is said to assert that she has acquired a sort of priormortgage on the assets of Venezuela; and the United States, Spain, andBelgium declare themselves entitled to the benefit of the"most-favoured-nation clause" when those assets are made available forcreditors. What principles are applicable to the solution of the novelquestions suggested by these competing claims?

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

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 18 (1902). 

THE VENEZUELA PROTOCOL

Sir, --The close (for the present, at any rate) of the Venezuelanincident will be received with general satisfaction. One of the articlesof the so-called "protocol" of February 18 seems, however, to point amoral which one may hope will not be lost sight of in the future--viz. The desirability of keeping unblurred the line of demarcation betweensuch unfriendly pressure as constitutes "reprisals" and actual war. 

After all that has occurred--statements in Parliament, action of theGovernor of Trinidad in bringing into operation the dormant powers ofthe Supreme Court of the island as a prize Court, &c. --one would havesupposed that there could be no doubt, though no declaration had beenissued, that we were at war with Venezuela. 

Our Government has, therefore, been well advised in providing for therenewal of any treaty with that Power which may have been abrogated bythe war; but it is curious to find that the article (7) of the protocolwhich effects this desirable result begins by a recital to the effectthat "it may be contended that the establishment of a blockade of theVenezuelan ports by the British naval forces has _ipso facto_ created astate of war between Great Britain and Venezuela. "

It is surely desirable that henceforth Great Britain should know, andthat other nations should at least have the means of knowing, forcertain, whether she is at war or at peace. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 17 (1903). 

WAR AND REPRISALS

Sir, --Professor Westlake's interesting letter as to the measuresrecently taken by the Netherlands Government in Venezuelan watersopportunely recalls attention to a topic upon which I addressed youwhen, six years ago, our own Government was similarly engaged in puttingpressure upon Venezuela--viz. The desirability of drawing a clear linebetween war and reprisals. Perhaps I may now be allowed to return, verybriefly, to this topic, with special reference to Professor Westlake'sremarks. 

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

In the next place, we must at once recognise that the application of theterm "reprisals, " whatever may have been its etymological history, mustno longer be restricted to seizure of property. It has now come tocover, and it is the only term which does cover generically, anindeterminate list of unfriendly acts, such as embargo, pacificblockade, seizure of custom-houses, and even occupation of territory, towhich resort is had in order to obtain redress from an offending Statewithout going to war with it. The pressure thus exercised, unlike theunlimited _licentia laedendi_ resulting from a state of war, islocalised and graduated. It abrogates no treaties, and terminateswithout a treaty of peace. It affects only indirectly, if at all, therights of States which take no part in the quarrel. 

The questions which remain for consideration would seem to be thefollowing:--

1. Would it be feasible to draw up a definite list of the measures whichmay legitimately be taken with a view to exercising pressure short ofwar?--I think not. States differ so widely in offensive power andvulnerability that it would be hardly advisable thus to fetter theliberty of action of a State which considers itself to have beeninjured. 

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

8. Ought a statement to the like effect to be made to nations notconcerned in the quarrel?--This would, doubtless, be convenient, unlessthe non-receipt by them of any notification of a "state of war, " inpursuance of the Convention, could be supposed to render such astatement superfluous. 

On the ambiguous character sometimes attaching to reprisals as nowpractised, I may perhaps refer to an article in the _Law QuarterlyReview_ for 1903, entitled "War Sub Modo. "

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 26 (1908). 

 The operations against Venezuela which were closed by the protocol of February 13, 1903, had given rise to the enunciation of the so-called "Drago doctrine, " in a despatch, addressed on December 29 of the preceding year, by the Argentine Minister for Foreign Affairs to the Government of the United States, which asserts that "public indebtedness cannot justify armed intervention by a European Power, much less material occupation by it of territory belonging to any American nation. " The reply of the United States declined to carry the "Monroe doctrine" to this length, citing the passage in President Roosevelt's message in which he says: "We do not guarantee any State against punishment, if it misconducts itself, provided such punishment does not take the form of the acquisition of territory by any non-American Power. "

 It is, however, now provided by The Hague Convention, No. Ii. Of 1907, ratified by Great Britain on November 27, 1909, that "the contracting Powers have agreed not to have recourse to armed force for the recovery of contractual debts, claimed from the Government of a country by the Government of another country, as being due to its subjects. This stipulation shall have no application when the debtor State declines, or leaves unanswered, an offer of arbitration, or, having accepted it, renders impossible the conclusion of the terms of reference (_compromis_), or, after the arbitration, fails to comply with the arbitral decision. "

CHAPTER II

STEPS TOWARDS A WRITTEN LAW OF WAR

 A large body of written International Law, with reference to the conduct of warfare, has been, in the course of the last half-century, and, more especially, in quite recent years, called into existence by means of General Conventions, or Declarations, of which mention must frequently be made in the following pages. Such are:--

 (i. ) With reference to war, whether on land or at sea: the Declaration of St. Petersburg, of 1868, as to explosive bullets; the three Hague Declarations of 1899 (of which the first was repeated in 1907), as to projectiles from balloons, projectiles spreading dangerous gases, and expanding bullets; The Hague Convention, No. Iii. Of 1907 as to Declaration of War; all ratified by Great Britain, except the Declaration of St. Petersburg, which was thought to need no ratification. 

 (ii. ) With reference only to war on land: the Geneva Convention of 1906 (superseding that of 1864) as to the sick and wounded, which was generally ratified, though by Great Britain only in 1911 (it was extended to maritime warfare by Conventions iii. Of 1899 and x. Of 1907, both ratified by Great Britain, _cf. Infra_, Ch. VI. Section 10); the Hague Conventions of 1907, No. Iv. (superseding the Convention of 1899) as to the conduct of warfare, and No. V. As to neutrals, of which only the former has as yet been ratified by Great Britain. 

 (iii. ) With reference only to war at sea: the Declaration of Paris, of 1856, supposed apparently to need no ratification (to which the United States is now the only important Power which has not become a party), as to privateering, combination of enemy and neutral property and blockades; The Hague Conventions of 1907, No. Vi. As to enemy merchant vessels at outbreak, No. Vii. As to conversion of merchantmen into warships, No. Viii. As to mines, No. Ix. As to naval bombardments, No. X. As to the sick and wounded, No. Xi. As to captures, No. Xii. As to an International Prize Court, supplemented by the Convention of 1910, No. Xiii. As to neutrals. It must be observed that, of these Conventions, Great Britain has ratified only vi. , vii. , viii. , ix. , and x. , the three last subject to reservations. The Declaration of London of 1909, purporting to codify the laws of naval warfare as to blockade, contraband, hostile assistance, destruction of prizes, change of flag, enemy character, convoy, resistance and compensation, and so to facilitate the working of the proposed International Prize Court, if, and when, this Court should come into existence, has failed to obtain ratification, as will be hereafter explained. 

 Concurrently with the efforts which have thus been made to ascertain the laws of war by general diplomatic agreement, the way for such agreement has been prepared by the labours of the Institut de Droit International, and by the issue by several governments of instructions addressed to their respective armies and navies. 

 The _Manuel des Lois de la Guerre sur Terre_, published by the Institut in 1880, is the subject of the two letters which immediately follow. Their insertion here, although the part in them of the present writer is but small, may be justified by the fact that they set out a correspondence which is at once interesting (especially from its bearing upon the war of 1914) and not readily elsewhere accessible. 

 The remaining letters in this chapter relate to the _Naval War Code_, issued by the Government of the United States in 1900, but withdrawn in 1904, though still expressing the views of that Government, for reasons specified in a note to the British _chargé d'affaires_ at Washington and printed in _Parl. Papers, Miscell. _ No. 5 (1909), p. 8. The United States, it will be remembered, were also the first Power to attempt a codification of the laws of war on land, in their _Instructions for the Government of Armies of the United States_, issued in 1863, and reissued in 1898. Some information as to this and similar bodies of national instructions may be found in the present writer's _Studies in International Law_, 1898, p. 85. _Cf. _ his _Manual of Naval Prize Law_, issued by authority of the Admiralty in 1888, his _Handbook of the Laws and Customs of War on Land_, issued by authority to the British Army in 1904, and his _The Laws of War on Land (written and unwritten)_, 1908. The Institut de Droit International, which has been engaged for some years upon the Law of War at Sea, by devoting the whole of its session at Oxford, in 1913, to the discussion of the subject, produced a _Manuel des Lois de la Guerre sur Mer_, framed in accordance with the now-accepted view which sanctions the capture of enemy private property at sea. It is to be followed by a manual framed in accordance with the contrary view. _Cf. _ the letters upon the _Declaration of London_, in Ch. VII. Section 10, _infra_. 

COUNT VON MOLTKE ON THE LAWS OF WARFARE

Sir, --You may perhaps think that the accompanying letter, recentlyaddressed by Count von Moltke to Professor Bluntschli, is of sufficientgeneral interest to be inserted in _The Times_. It was written withreference to the Manual of the Laws of War which was adopted by theInstitut de Droit International at its recent session at Oxford. TheGerman text of the letter will appear in a few days at Berlin. Mytranslation is made from the proof-sheets of the February number of the_Revue de Droit International_, which will contain also ProfessorBluntschli's reply. 

Your obedient servant, T. E. HOLLAND. Oxford, January 29 (1881). 

 "Berlin, Dec. 11, 1880. 

 "You have been so good as to forward to me the manual published by the Institut de Droit International, and you hope for my approval of it. In the first place I fully appreciate the philanthropic effort to soften the evils which result from war. Perpetual peace is a dream, and it is not even a beautiful dream. War is an element in the order of the world ordained by God. In it the noblest virtues of mankind are developed; courage and the abnegation of self, faithfulness to duty, and the spirit of sacrifice: the soldier gives his life. Without war the world would stagnate, and lose itself in materialism. 

 "I agree entirely with the proposition contained in the introduction that a gradual softening of manners ought to be reflected also in the mode of making war. But I go further, and think the softening of manners can alone bring about this result, which cannot be attained by a codification of the law of war. Every law presupposes an authority to superintend and direct its execution, and international conventions are supported by no such authority. What neutral States would ever take up arms for the sole reason that, two Powers being at war, the 'laws of war' had been violated by one or both of the belligerents? For offences of that sort there is no earthly judge. Success can come only from the religious moral education of individuals and from the feeling of honour and sense of justice of commanders who enforce the law and conform to it so far as the exceptional circumstances of war permit. 

 "This being so, it is necessary to recognise also that increased humanity in the mode of making war has in reality followed upon the gradual softening of manners. Only compare the horrors of the Thirty Years' War with the struggles of modern times. 

 "A great step has been made in our own day by the establishment of compulsory military service, which introduces the educated classes into armies. The brutal and violent element is, of course, still there, but it is no longer alone, as once it was. Again, Governments have two powerful means of preventing the worst kind of excesses--strict discipline maintained in time of peace, so that the soldier has become habituated to it, and care on the part of the department which provides for the subsistence of troops in the field. If that care fails, discipline can only be imperfectly maintained. It is impossible for the soldier who endures sufferings, hardships, fatigues, who meets danger, to take only 'in proportion to the resources of the country. ' He must take whatever is needful for his existence. We cannot ask him for what is superhuman. 

 "The greatest kindness in war is to bring it to a speedy conclusion. It should be allowable with that view to employ all methods save those which are absolutely objectionable ('dazu müssen alle nicht geradezu verwerfliche Mittel freistehen'). I can by no means profess agreement with the Declaration of St. Petersburg when it asserts that 'the weakening of the military forces of the enemy' is the only lawful procedure in war. No, you must attack all the resources of the enemy's Government: its finances, its railways, its stores, and even its prestige. Thus energetically, and yet with a moderation previously unknown, was the late war against France conducted. The issue of the campaign was decided in two months, and the fighting did not become embittered till a revolutionary Government, unfortunately for the country, prolonged the war for four more months. 

 "I am glad to see that the manual, in clear and precise articles, pays more attention to the necessities of war than has been paid by previous attempts. But for Governments to recognise these rules will not be enough to insure that they shall be observed. It has long been a universally recognised custom of warfare that a flag of truce must not be fired on, and yet we have seen that rule violated on several occasions during the late war. 

 "Never will an article learnt by rote persuade soldiers to see a regular enemy (sections 2-4) in the unorganised population which takes up arms 'spontaneously' (so of its own motion) and puts them in danger of their life at every moment of day and night. Certain requirements of the manual might be impossible of realisation; for instance, the identification of the slain after a great battle. Other requirements would be open to criticism did not the intercalation of such words as 'if circumstances permit, ' 'if possible, ' 'if it can be done, ' 'if necessary, ' give them an elasticity but for which the bonds they impose must be broken by inexorable reality. 

 "I am of opinion that in war, where everything must be individual, the only articles which will prove efficacious are those which are addressed specifically to commanders. Such are the rules of the manual relating to the wounded, the sick, the surgeons, and medical appliances. The general recognition of these principles, and of those also which relate to prisoners, would mark a distinct step of progress towards the goal pursued with so honourable a persistency by the Institut de Droit International. 

 "COUNT VON MOLTKE, Field-Marshal-General. "

PROFESSOR BLUNTSCHLI'S REPLY TO COUNT VON MOLTKE

Sir, --In accordance with a wish expressed in several quarters, I sendyou, on the chance of your being able to make room for it, a translationof Professor Bluntschli's reply to the letter from Count von Moltkewhich appeared in _The Times_ of the 1st inst. 

Your obedient servant, T. E. HOLLAND. Oxford, February (1881). 

 "Christmas, 1880. 

 "I am very grateful for your Excellency's detailed and kind statement of opinion as to the manual of the laws of war. This statement invites serious reflections. I see in it a testimony of the highest value, of historical importance; and I shall communicate it forthwith to the members of the Institut de Droit International. 

 "For the present I do not think I can better prove my gratitude to your Excellency than by sketching the reasons which have guided our members, and so indicating the nature of the different views which prevail upon the subject. 

 "It is needless to say that the same facts present themselves in a different light and give a different impression as they are looked at from the military or the legal point of view. The difference is diminished, but not removed, when an illustrious general from his elevated position takes also into consideration the great moral and political duties of States, and when, on the other hand, the representatives of science of international law set themselves to bring legal principles into relation with military necessities. 

 "For the man of arms the interest of the safety and success of the army will always take precedence of that of the inoffensive population, while the jurist, convinced that law is the safeguard of all, and especially for the weak against the strong, will ever feel it a duty to secure for private individuals in districts occupied by an enemy the indispensable protection of law. There may be members of the Institut who do not give up the hope that some day, thanks to the progress of civilisation, humanity will succeed in substituting an organised international justice for the wars which now-a-days take place between sovereign States. But the body of the Institut, as a whole, well knows that that hope has no chance of being realised in our time, and limits its action in this matter to two principal objects, the attainment of which is possible:--

 "1. To open and facilitate the settlement of trifling disputes between nations by judicial methods, war being unquestionably a method out of all proportion in such cases. 

 "2. To aid in elucidating and strengthening legal order even in time of war. 

 "I acknowledge unreservedly that the customs of warfare have improved since the establishment of standing armies, a circumstance which has rendered possible a stricter discipline, and has necessitated a greater care for the provisionment of troops. I also acknowledge unreservedly that the chief credit for this improvement is due to military commanders. Brutal and barbarous pillage was prohibited by generals before jurists were convinced of its illegality. If in our own day a law recognised by the civilised world forbids, in a general way, the soldier to make booty in warfare on land, we have here a great advance in civilisation, and the jurists have had their share in bringing it about. Since compulsory service has turned standing armies into national armies, war has also become national. Laws of war are consequently more than ever important and necessary, since, in the differences of culture and opinion which prevail between individuals and classes, law is almost the only moral power the force of which is acknowledged by all, and which binds all together under common rules. This pleasing and cheering circumstance is one which constantly meets us in the Institut de Droit International. We see a general legal persuasion ever in process of more and more distinct formation uniting all civilised peoples. Men of nations readily disunited and opposed--Germans and French, English and Russians, Spaniards and Dutchmen, Italians and Austrians--are, as a rule, all of one mind as to the principles of international law. 

 "This is what makes it possible to proclaim an international law of war, approved by the legal conscience of all civilised peoples; and when a principle is thus generally accepted, it exerts an authority over minds and manners which curbs sensual appetites and triumphs over barbarism. We are well aware of the imperfect means of causing its decrees to be respected and carried out which are at the disposal of the law of nations. We know also that war, which moves nations so deeply, rouses to exceptional activity the good qualities as well as the evil instincts of human nature. It is for this very reason that the jurist is impelled to present the legal principles, of the need for which he is convinced, in a clear and precise form, to the feeling of justice of the masses, and to the legal conscience of those who guide them. He is persuaded that his declaration will find a hearing in the conscience of those whom it principally concerns, and a powerful echo in the public opinion of all countries. 

 "The duty of seeing that international law is obeyed, and of punishing violations of it, belongs, in the first instance, to States, each within the limits of its own supremacy. The administration of the law of war ought therefore to be intrusted primarily to the State which wields the public power in the place where an offence is committed. No State will lightly, and without unpleasantness and danger, expose itself to a just charge of having neglected its international duties; it will not do so even when it knows that it runs no risk of war on the part Of neutral States. Every State, even the most powerful, will gain sensibly in honour with God and man if it is found to be faithful and sincere in respect and obedience to the law of nations. 

 "Should we be deceiving ourselves if we admitted that a belief in the law of nations, as in a sacred and necessary authority, ought to facilitate the enforcement of discipline in the Army and help to prevent many faults and many harmful excesses? I, for my part, am convinced that the error, which has been handed down to us from antiquity, according to which all law is suspended during war, and everything is allowable against the enemy nation--that this abominable error can but increase the unavoidable sufferings and evils of war without necessity, and without utility from the point of view of that energetic way of making war which I also think is the right way. 

 "With reference to several rules being stated with the qualifications 'if possible, ' 'according to circumstances, ' we look on this as a safety-valve, intended to preserve the inflexible rule of law from giving way when men's minds are overheated in a struggle against all sorts of dangers, and so to insure the application of the rules in many other instances. Sad experience teaches us that in every war there are numerous violations of law which must unavoidably remain unpunished, but this will not cause the jurist to abandon the authoritative principle which has been violated. Quite the reverse. If, for instance, a flag of truce has been fired upon, in contravention of the law of nations, the jurist will uphold and proclaim more strongly than ever the rule that a flag of truce is inviolable. 

 "I trust that your Excellency will receive indulgently this sincere statement of my views, and will regard it as an expression of my gratitude, as well as of my high personal esteem and of my respectful consideration. 

 "Dr. BLUNTSCHLI, Privy Councillor, Professor. "

THE UNITED STATES NAVAL WAR CODE. [1]

Sir, --The "Naval War Code" of the United States, upon which aninteresting article appeared in _The Times_ of Friday last, in so welldeserving of attention in this country that I may perhaps be allowed tosupplement the remarks of your Correspondent from the results of asomewhat minute examination of the code made shortly after itspublication. 

One notes, in the first place, that the Government of the United Statesdoes not shirk responsibility. It puts the code into the hands of itsofficers "for the government of all persons attached to the navalservice, " and is doubtless prepared to stand by the rules contained init, as being in accordance with international law. These rules dealboldly with even so disagreeable a topic as "Reprisals" (Art. 8), uponwhich the Brussels, and after it The Hague, Conference preferred to keepsilence; and they take a definite line on many questions upon whichthere are wide differences of opinion. On most debatable points, therules are in accordance with the views of this country--e. G. As to theright of search (Art. 22), as to the two-fold list of contraband (Arts. 34-36), as to the moment at which the liability of a blockade-runnercommences (Art. 44), and as to the capture of private property (Art. 14), although the prohibition of such capture has long been favoured bythe Executive of the United States, and was advocated by the Americandelegates at The Hague Conference. So also Arts. 34-36, by apparentlytaking for granted the correctness of the rulings of the Supreme Courtin the Civil War cases of the _Springbok_ and the _Peterhoff_ withreference to what may be described as "continuous carriage, " are inharmony with the views which Lord Salisbury recently had occasion toexpress as to the trade of the _Bundesrath_ and other German vesselswith Lorenzo Marques. It must be observed, on the other hand, that Art. 30 flatly contradicts the British rule as to convoy; while Art. 3 setsout The Hague Declaration as to projectiles dropped from balloons, towhich this country is not a party. Art. 7 departs from received views byprohibiting altogether the use of false colours, and Art. 14 (doubtlessin pursuance of the recent decision of the Supreme Court in the _PaqueteHabana_), by affirming the absolute immunity of coast fishing vessels, as such, from capture. 

On novel questions the code is equally ready with a solution. It speakswith no uncertain voice on the treatment of mail steamers and mail-bags(Art. 20). On cable-cutting it adopts in Art. 5, as your Correspondentpoints out, the views which I ventured to maintain in your columns whenthe question was raised during the war of 1898. [2] I may also, by theway, claim the support of the code for the view taken by me, in a, correspondence also carried on in your columns during the navalmanoeuvres of 1888, of the bombardment of open coast towns. [3] Art. 4sets out substantially the rules upon this subject for which I securedthe _imprimatur_ of the Institut de Droit International in 1896. 

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

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

Fourthly, it is clearly expressed; and it is brief, consisting of only54 articles, occupying 22 pages. 

Fifthly, it deals with two very distinct topics--viz. The mode ofconducting hostilities against the forces of the enemy, and theprinciples applicable to the making prize of merchant vessels, which asoften as not may be the property of neutrals. These topics are by nomeans kept apart as they might be, articles on prize occurringunexpectedly in the section avowedly devoted to hostilities. 

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

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 8 (1901). 

NOTES - 1: Withdrawn in 1904. - 2: _Infra_, Ch. VII. Section 6. - 3: _Infra_, Ch. VI. Section 14. 

A NAVAL WAR CODE

Sir, --It is now nearly a year ago since I ventured to suggest in yourcolumns (for April 10, 1901) that something resembling the United States"Naval War Code, " dealing with "the laws and usages of war at sea, "would be found useful in the British Navy. 

The matter is, however, not quite so simple as might be inferred fromsome of the allusions to it which occurred during last night's debateupon the Navy Estimates. Upon several disputable and delicate questionsthe Government of the United States has not hesitated to expressdefinite views; and they are not always views which the Government ofour own country would be prepared to endorse. For some remarks uponthese questions in detail, and upon the code generally, I must refer tomy former letter, but may perhaps be allowed to quote its concludingwords, which were to the following effect:--

 "Our code might be better arranged than its predecessor, and would differ from it on certain questions, but should resemble it in clearness of expression, in brevity, and, above all things, in frank acceptance of responsibility. What naval men most want is definite guidance, in categorical language, upon those points of maritime international law upon which our Government has made up its own mind. "

Before issuing such a code our authorities would have to decide--first, what are the classes of topics as to which it is desirable to givedefinite instructions to naval officers; and, secondly, with referenceto topics, to be included in the instructions, as to which there existinternational differences of view, what is, in each case, the view bywhich the British Government is prepared to stand. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 12 (1902). 

CHAPTER III

TERMINOLOGY

INTERNATIONAL TERMINOLOGY

Sir, --Demands for the punishment of the ex-Kaiser have produced many"curiosities of literature, " sometimes even over the signatures of mendeservedly respected as authorities upon subjects which they have madetheir own; but _ne sutor supra crepidam_. A. B. , [1] for instance, wroteof the Kaiser as guilty of "an indictable offence. " X. Y. [1] naturallyprotests against this misuse of terminology, which is, indeed, far morespecifically erroneous than was the popular application, which youallowed me to criticise, of the terms "murder" and "piracy" to certaindetestable acts perpetrated under Government authority. [2] He goes on togive an elaborate, though perhaps hardly necessary, explanation thatbreaches of that generally accepted body of rules to be followed byStates _inter se_, which is known as "international law, " can beenforced, in the last resort, only by hostile State action--a fact whichhe seems to suppose may entitle him to qualify the rules as "a mockery. "

X. Y. [1] then proceeds to give an account of the so-called "privateinternational law" which surely needs revision for the benefit of any"man in the street" who may care to hear about it. X. Y. [1] defines it as"that part of the law of each separate country, as administered in itsown Courts, which deals with international matters, " and he enumeratesas such matters "prize, contraband, blockade, the rights ofambassadors. " In fact none of these matters are within the scope of"private international law, " but are governed by "(public) internationallaw, " non-compliance with which by the Courts or subjects of any Stateis ground of complaint for the Government of any other State therebywrongfully affected. 

The so-called "private international law, " better described as "theconflict of laws, " deals, in reality, with the rules which the Courts ofeach country apply, apart from any international obligation, to thesolution of questions, usually between private litigants, in which doubtmay arise as to the national law by which a given transaction ought tobe governed--e. G. With reference to a contract made in France, but tobe performed in England. There is here a "conflict, " or "collision, " oflaws, and it is decided in accordance with rules adopted in the countryin which the litigation occurs. These rules have no "international"validity, and the term is applied to them, merely in a popular way, toindicate that a Court may have in some cases to apply the law of acountry other than that in which it is sitting. The unfortunateopposition of "public" to "private" international law has to answer formuch confusion of thought. "International law, " properly so called, has, of course, no need to be described as "public" to distinguish it fromrules for solving the "conflicts" of private laws, which are"international" rules only in the sense that laws are sometimes appliedin countries other than those in which they are primarily binding. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 19 (1918). 

NOTES - 1: Writer's names are omitted as immaterial. - 2: _Infra_, p. 70. 

 A full discussion of the topics dealt with in the last paragraph of this letter may be found in my _Elements of Jurisprudence_, edit. Xii. , pp. 409-425. A translation, by Professor Nys, of the chapter in which those pages occur, as it stood in edit. I. , appeared in the _Revue de Droit International_, t. Xii. , pp. 565, &c. 

CHAPTER IV

CONVENTIONS AND LEGISLATION

 Not a few International Conventions necessitate, before they can be ratified, in order that their provisions may be carried into effect, a certain amount of municipal legislation. 

 The letters which follow are concerned with some measures introduced into the British Parliament for this purpose, relating respectively to Naval Prize, to the Geneva Convention of 1906, and to Conventions signed at The Hague Peace Conference of 1907. It is with criticisms of Bills dealing with the last-mentioned topic that this chapter is mainly occupied. 

GOVERNMENT BILLS AND INTERNATIONAL CONVENTIONS

Sir, --You have already allowed me to point out how singularlyill-adapted is the resuscitated "Naval Prize Consolidation Bill"[1] toinform Parliament upon the highly technical points as to which a vote infavour of the Bill might be supposed to imply approval of the Governmentpolicy. 

Two other Bills have now been presented to the House of Commons in sucha shape as to raise a doubt whether the wish of the Government, or ofthe draftsman, has been that the topics to which they relate shall bediscussed _en pleine connaissance de cause_. 

The "Geneva Convention Bill"[2] is intended to facilitate the withdrawalof reservations subject to which the Convention was ratified by GreatBritain. These reservations, upon which I insisted at Geneva, somewhatto the surprise of my French and Russian colleagues, relate to Arts. 23, 27, and 28 of the Convention, one of the effects of which would havebeen to impose upon our Government an obligation to carry through, within five years, an Act of Parliament, making the employment of theGeneva emblem or name, except for military purposes, a criminal offence. Any one who knows something of the difficulties which beset legislationin this country, especially where commercial interests are involved, will see that the performance of such an undertaking might well haveproved to be impossible. Though myself strongly in favour of placing, atthe proper time and in an appropriate manner, legislative restrictionsupon the general use of the emblem and name, I can hardly think the Billnow before Parliament to be well adapted for its purpose. The"Memorandum" prefixed to it ought surely to have stated, in plainlanguage, the effect of the articles in question and the reasons whichprevented them from being ratified together with the rest of theConvention. Instead of this, only one of those articles is cited, andfew members of Parliament will be aware that an omitted paragraph ofthat article requires that the use of the emblem or name should bepenalised by British law at the latest five years and six months fromthe date of the British ratification, which was deposited on April 16, 1907--_i. E. _, not later than October 16, 1912. This requirement is notsatisfied by the Bill, which, even if passed in the present Session, would preserve intact till 1915 the rights of proprietors oftrade-marks, while somewhat harshly rendering forthwith illegal the userof the emblem or name by all other persons. 

On the drafting of the "Second Peace Conference Conventions Bill, " Iwill only remark that neither in the preamble nor elsewhere is anyinformation vouchsafed as to the Conventions, out of thirteen drafted atThe Hague, which are within the purview of the Bill. The reader is leftto puzzle out for himself, supposing him to have the necessary materialsat hand, that certain clauses of the Bill relate respectively to certainarticles which must be looked for in the Conventions numbered I. , V. , X. , XII. , and XIII. 

I am, Sir, your obedient servant, T. E. HOLLAND. The Athenæum, July 7 (1911). 

NOTES - 1: This Bill, originally introduced in the House of Commons on June 23 1910, to enable the Government to ratify Hague Convention No xii. Of 1907 and the Declaration of London of 1909, was passed by that House on December 7, 1911, but rejected on the 12th of the same month, by 145 to 53 votes, in the House of Lords. Cf. _infra_, pp. 191-196. - 2: Cf. _infra_, p. 98. The Bill became an Act, 1 & 2 Geo. 5, c. 20. 

 Questions were put and objections raised, in the sense of my criticisms upon the drafting of the "Second Peace Conference (Conventions) Bill" of 1911, upon several occasions in the House of Commons, especially in August of that year, and on December 16 the Bill was finally withdrawn. On the re-introduction of the Bill in 1914, see the following letter. 

THE PRESENT BILL IN PARLIAMENT

Sir, --In reintroducing their Bill "to make such amendments in the law asare necessary in order to enable certain conventions to be carried intoeffect, " the Government has justified the criticisms which I addressedto you upon the way in which this measure was first presented toParliament. 

I pointed out that neither in the preamble nor elsewhere was anyinformation vouchsafed as to which of "the various conventions drawn upat the second Peace Conference" were within the purview of the Bill. Still less was any clue given to those articles, out of nearly 400contained in the 13 conventions in question, which are relevant to theproposed legislation. Members of Parliament sufficiently inquisitive notto be inclined to take the measure on trust, were left to puzzle out allthis for themselves, but proved so restive under the treatment that theBill, which was introduced in June, 1911, had to be withdrawn in thefollowing December. 

As now resuscitated, the Bill is accompanied by a memorandum containinginformation which will enable the reader, even though no specialist, supposing him to have the necessary documents at hand, though probablyonly after several hours of labour, to ascertain what would be theresult of passing it. Is it too much to hope that similar aids to theunderstanding of complicated legislative proposals will besystematically provided in the future?

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 13, 1914. 

 This Bill was introduced into the House of Commons on April 8, 1914, with a memorandum proposed in compliance with the criticisms, which had led to the withdrawal of its predecessor of 1911. _Cf. Supra_, p. 37. It also was withdrawn, after sustaining much renewed criticism, on July 17, 1914. 

THE FOREIGN ENLISTMENT BILL

Sir, --It is doubtless the case, as stated in your leading article ofto-day, that the Foreign Enlistment Bill has not received the attentionwhich it deserves. It may perhaps be worth while to mention, asaffording some explanation of this neglect, the fact that the memorandumprefixed to the Bill vaguely describes its main object as being to bringour law into conformity with "The Hague Conventions" at large. Anordinary member of Parliament would surely be grateful to be referredspecifically to Convention No. Xiii. , Arts. 8, 17, and 25. He might wellshrink from the labour of exploring the hundreds of articles containedin "The Hague Conventions" in order to ascertain which of the articlessuggest some modification of the English statute. 

I would also venture to suggest that, in Article 1 (1) (b) of the Billthe words "or allows to depart, " carried over from the old Act, shouldbe omitted, as of doubtful interpretation. Would it not also bedesirable to take this opportunity of severing the enlistment articlesof the overgrown principal Act from those forbidding the despatch ofships fitted for hostilities and restricting the hospitality which maybe extended to belligerent war ships?

Upon quite a different subject, I should like to answer the questionpropounded in your article, as to the weight now to be given to theDeclaration of London, by saying that no weight should be given to it, except as between Powers who may have ratified it or may have agreed tobe temporarily bound by its provisions. One has of late been surprisedto read of vessels carrying contraband being allowed to continue theirvoyage after surrendering the contraband goods, in accordance with a newrule suggested by the Declaration, whereas, under still existinginternational law, the duty of a captor is to bring in the vesseltogether with her cargo, in order that the rightfulness of the seizuremay be investigated by a Prize Court. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 23 (1912). 

 The Bill of 1912 "to amend the Foreign Enlistment Act, 1870, " passed the House of Lords with little comment, but was withdrawn, after much adverse criticism, in the House of Commons on February 12, 1913. 

CHAPTER V

THE COMMENCEMENT OF WAR

SECTION 1

_Declaration of War_

 The following letter bears upon the question, much discussed in recent years, of the lawfulness of hostilities commenced without anything amounting to a declaration of war. Although several modern wars, e. G. The Franco-Prussian of 1870, and the Russo-Turkish of 1877, were preceded by declaration, it was hardly possible, in view of the practice of the last two centuries, to maintain, that this was required by international law, and it has never been alleged that any definite interval need intervene between a declaration and the first act of hostilities. On the destruction of the _Kowshing_, the present writer may further refer to his _Studies in International Law_, 1898, p. 126, and to Professor Takahashi's _International Law during the Chino-Japanese War_, 1899, pp. 24, 192. But see now the note at the end of the "Letter" which follows. 

THE SINKING OF THE _KOWSHING_

Sir, --The words of soberness and truth were spoken with reference to thesinking of the _Kowshing_ in the letter from Professor Westlake whichyou printed on Friday last. Ignorance dies hard, or, after theappearance of that letter and of your remarks upon it, one might haveexpected that leading articles would be less lavishly garnished withsuch phrases as "act of piracy, " "war without declaration, " "insult tothe British flag, " "condign punishment of the Japanese commander. " Butthese flowers of speech continue to blossom; and, now that the facts ofthe case seem to be established beyond reasonable doubt by the telegramsof this morning, I should be glad to be allowed to state shortly what Ibelieve will be the verdict of international law upon what has occurred. 

If the visiting, and eventual sinking, of the _Kowshing_ occurred intime of peace, or in time of war before she had notice that war hadbroken out, a gross outrage has taken place. But the facts areotherwise. 

In the first place, a state of war existed. It is trite knowledge, andhas been over and over affirmed by Courts, both English and American, that a war may legally commence with a hostile act on one side, notpreceded by declaration. How frequently this has occurred in practicemay be seen from a glance at an historical statement prepared for theWar Office by Colonel Maurice _à propos_ of the objections to a Channeltunnel. Whether or no hostilities had previously occurred upon themainland, I hold that the acts of the Japanese commander in boarding the_Kowshing_ and threatening her with violence in case of disobedience tohis orders were acts of war. 

In the second place, the _Kowshing_ had notice of the existence of awar, at any rate from the moment when she received the orders of theJapanese commander. 

The _Kowshing_, therefore, before the first torpedo was fired, was, andknew that she was, a neutral ship engaged in the transport service of abelligerent. (Her flying the British flag, whether as a _ruse de guerre_or otherwise, is wholly immaterial. ) Her liabilities, as such ship, weretwofold:--

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

2. As one of a fleet of transports and men-of-war engaged in carryingreinforcements to the Chinese troops on the mainland, the _Kowshing_ wasclearly part of a hostile expedition, or one which might be treated ashostile, which the Japanese were entitled, by the use of all needfulforce, to prevent from reaching its destination. 

The force employed seems not to have been in excess of what mightlawfully be used, either for the arrest of an enemy's neutral transportor for barring the progress of a hostile expedition. The rescuedofficers also having been set at liberty in due course, I am unable tosee that any violation of the rights of neutrals has occurred. Noapology is due to our Government, nor have the owners of the _Kowshing_, or the relatives of any of her European officers who may have been lost, any claim for compensation. I have said nothing about the violation bythe Japanese of the usages of civilised warfare (not of the GenevaConvention, which has no bearing upon the question), which would beinvolved by their having fired upon the Chinese troops in the water; notonly because the evidence upon this point is as yet insufficient, butalso because the grievance, if established, would affect only the rightsof the Belligerents _inter se_; not the rights of neutrals, with whichalone this letter is concerned. I have also confined my observations tothe legal aspects of the question, leaving to others to test the conductof the Japanese commander by the rules of chivalrous dealing or ofhumanity. 

Your obedient servant, T. E. HOLLAND. Athenæum Club, August 6 (1894)

 The controversy caused by the sinking of the _Kowshing_ in 1894 was revived by the manner of the Japanese attack upon Port Arthur, in 1904 (see Professor Takahashi's _International Law applied to the Russo-Japanese War_, 1908, p. 1), and led to a careful study of the subject by a committee of the Institut de Droit International, resulting in the adoption by the Institut, at its Ghent Meeting in 1906, of the following resolutions:--

 (1) "It is in conformity with the requirements of International law, to the loyalty which the nations owe to one another in their, mutual relations, as well as to the general interests of all States, that hostilities ought not to commence without previous and unequivocal warning. 

 (2) "This warning may be given either in the shape of a declaration of war pure and simple, or in the shape of an ultimatum duly notified to the adversary by the State which wishes to begin the war. 

 (3) "Hostilities must not commence until after the expiration of a delay which would suffice to prevent the rule as to a previous and unequivocal warning from being thought to be evaded. " See the _Annuaire de l'Institut_, t, xxi. P. 292. 

 In accordance with the principles underlying the first and second of these resolutions, The Hague Convention, No. Iii. Of 1907 (ratified generally by Great Britain on November 27, 1909), has now laid down as a principle of International Law, binding upon the contracting Powers, that--

 (1) "Hostilities between them ought not to commence without a warning previously given and unequivocal, in the form either of a reasoned declaration of war, or of an ultimatum, with a conditional declaration of war. "

 And the Convention goes on to provide that--

 (2) "The state of war ought to be notified without delay to neutral Powers, and shall be of no effect with reference to them, until after a notification, which may be made even telegraphically. Nevertheless, neutral Powers may not plead absence of notification, if it has been shown beyond question that they were in fact cognisant of the state of war. " Any reference to the need of an interval between declaration and the first act of hostility (such as is contained in the third of the resolutions of the Institut) was deliberately omitted from the Convention, although a declaration immediately followed by an attack would obviously be of little service to the party attacked. (See the present writer's _Laws of War on Land (written and unwritten)_, 1908, P. 18. )

 * * * * *

SECTION 2

_The Immediate Effects of the Outbreak of War_

_Enemy Residents_

 Before any actual hostilities have taken place, each belligerent acquires, _ipso facto_, certain new rights over persons and property belonging to the other, which happen to be at the time within its power, e. G. The right, much softened in modern practice, and specifically dealt with in The Hague Convention, No. Vi. Of 1907, of capturing enemy merchant vessels so situated. 

 The following letter deals with the permissible treatment of enemy persons so situated; and was suggested by a question asked in the House of Commons on February 25, 1909, by Mr. Arnold-Forster: viz. "What would be the _status_ of officers and men of the regular Army of a hostile belligerent Power, found within the limits of the United Kingdom after an act or declaration of war; and would such persons be liable to be treated as prisoners of war, or would they be despatched under the protection of the Government to join the forces of the enemy?" The general effect of the Attorney-General's reply may be gathered from the quotations from it made in the letter. 

 The topic was again touched upon on March 3, in a question put by Captain Faber, to which Mr. Haldane replied. 

FOREIGN SOLDIERS IN ENGLAND

Sir, --The question raised last night by Mr. Arnold-Forster is one whichcalls for more careful consideration than it appears yet to havereceived. International law has in modern times spoken with no verycertain voice as to the permissible treatment of alien enemies foundwithin the territory of a belligerent at the outbreak of war. 

There is, however, little doubt that such persons, although now moreusually allowed to remain, during good behaviour, may be expelled, and, if necessary, wholesale, as were Germans from France in 1870. But maysuch persons be, for good reasons, arrested, or otherwise prevented fromleaving the country, as Germans were prevented from leaving France inthe earlier days of the Franco-Prussian War? Grotius speaks withapproval of such a step being taken, "ad minuendas hostium vires. "Bynkershoek, more than a century later, recognises the right of thusacting, "though it is rarely exercised. " So the Supreme Court of theUnited States in _Brown v. United States_ (1814). So Chancellor Kent(1826), and Mr. Manning (1889) is explicit that the arrest in questionis lawful, and that "the individuals are prisoners of war. "

Vattel, is it true (1758), ventures to lay down that--

 "Le Souverain qui déclare la guerre ne peut retenir les sujets de ennemi qui se trouvent dans ses états au moment de la déclaration ... En leur permettant d'entrer dans ses terres et d'y séjourner, il leur a promis tacitement toute liberté et toute sûreté pour le retour. "

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

 "for strictly military reasons, any nation is entitled to detain and to intern soldiers found upon the territory at the outbreak of war. "

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

 "England would follow, whatever the strict law may be, the humane and chivalrous practice of modern times, and would give to any subjects of a hostile Power who might be found here engaging in civilian pursuits a reasonable time within which to leave for their own country, even although they were under the obligation of entering for service under the enemy's flag. "

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

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

I am only concerned to maintain that, as far as international law isconcerned, England has a free hand either to expel resident enemies orto prevent them from leaving the country, as may seem most conducive toher own safety. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 25 (1909). 

_Civil Disabilities of Alien Enemies_

THE NAVAL PRIZE BILL

CIVIL DISABILITIES OF ENEMY SUBJECTS

Sir, --The Naval Prize Bill has sins enough of its own to answer for. Thequestion dealt with under that heading in Mr. Arthur Cohen's letter ofthis morning has, however, nothing to do with naval matters, but arisesunder The Hague Convention of 1907 as to warfare on land, which wasratified by our Government two years ago; unfortunately without anyreserve as to the extraordinary provision contained in Art. 28 (_h_) ofthat Convention. 

I lose not a moment in asking to be allowed to state that my view of thequestion is, and always has been, the reverse of that attributed to meby my friend Mr. Cohen. No less than three views are entertained as tothe meaning of Art. 28 (_h_). (1) Continental writers, e. G. , MM. Fauchille, Kohler, and Ullmann, with the German Whitebook, assert, inthe most unqualified manner, that Great Britain and the United Stateshave under this clause abandoned their long-established doctrine as tothe suspension of the private rights and remedies of enemy subjects; (2)Our own Government, in a non-confidential reply to an inquiry fromProfessor Oppenheim, asserts categorically, as does General Davis in theUnited States, that the clause relates only to the action of a commanderin a territory of which he is in occupation; while (3) most English andAmerican writers look upon the meaning of the clause as doubtful. If Mr. Cohen will look at p. 44 of my _Laws of War on Land_, 1909, he will findthat I carry this sceptical attitude so far as to include the clause inquestion in brackets as "apocryphal, " with the comment that "it canhardly, till its policy has been seriously discussed, be treated as arule of international law. " I have accordingly maintained, incorrespondence with my Continental colleagues, that the clause should betreated as "non avenue, " as "un non sens, " on the ground that, while, torn from their context, its words would seem ("ont faux air") to bearthe Continental interpretation, its position as part of a "Règlement, "in conformity with which the Powers are to "issue instructions to theirarmed land forces, " conclusively negatives this interpretation. I willnot to-day trouble you in detail with the very curious history of theclause; which, as originally proposed by Germany, merely prohibited (acommander?) from announcing that the private claims ("réclamations") ofenemy subjects would be unenforceable. It is astonishing that noobjection was raised by the British or by the American delegates to thesubsequent transformation of this innocent clause into something verydifferent, first by the insertion of the words "en justice, " and laterby the substitution of "droits et actions" for "réclamations. " Thequiescence of the delegates is the more surprising, as, at the firstmeeting of the sub-committee, General de Gundel, in the plainestlanguage, foreshadowed what was aimed at by the clause. 

Art. 23 (_h_) is, I submit, incapable of rational interpretation andshould be so treated by the Powers. If interpreted at all, its sensemust be taken to be that which is now, somewhat tardily, put upon it byour own Government. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 6 (1911). 

 I may perhaps refer here to my _Laws of War on Land_ (1908), p. 44, where I describe as "apocryphal" Art. 23 (_h_) of the Hague Convention No. Iv. Of 1907; and to my paper upon that article in the _Law Quarterly Review_ for 1912, pp. 94-98, reproduced in the _Revue de Droit International_, the _Revue Générale de Droit International Public_, and the _Zeitschrift für Völkerrecht und Bundesstaatsrecht_, for the same year. 

 The view there maintained was affirmed by the Court of Appeal in _Porter_ v. _Freudenberg_, [1915] 1 K. B. 857, _at_ p. 874. 

_Enemy Ships in Port_

ENEMY SHIPS IN PORT

Sir, --The action taken by the United States in seizing German merchantships lying in their ports will raise several questions of interest. Itis, however, important at once to realise that, apart from anythingwhich may be contained in old treaties with Prussia, their hands areentirely free in the matter. The indulgences so often granted: to suchships during the last 60 years, notably by themselves in the Spanish Warof 1898, under endlessly varying conditions, have been admittedly actsof grace, required by no established rule of international law. 

The United States are also unaffected by The Hague Convention No. Vi, towhich they are not a party. It is therefore superfluous to inquire whatconstruction they would have been bound to put upon the ambiguouslanguage of Section 1 of the Convention, which proclaims that "when amerchant ship of one of the belligerent Powers is, at the commencementof hostilities, in an enemy port, _it is desirable_ that it should beallowed to depart freely, " &c. It might perhaps be argued that our ownPrize Court might well have refrained from treating this section as ifit were obligatory, and have founded its decisions rather uponinternational law, as supplemented by a non-obligatory custom. Be thisas it may, it would seem that the policy of the United States has tosome extent felt the influence of Convention vi. In announcing thatseizure will, provisionally, only amount to requisitioning. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 7 (1917). 

CHAPTER VI

THE CONDUCT OF WARFARE

 The three following sections relate to the waters in which hostile operations may take place. Section 1 probably calls for no explanatory remark. With reference to Section 2, dealing with certain spaces of water more or less closed to belligerent action, it may be desirable to state that the letters as to the Suez Canal were written to obviate some misconceptions as to the purport of the Convention of October 29, 1888, and to maintain that it was not, at the time of writing, operative, so far as Great Britain was concerned. 

 This state of things was, however, altered by the Anglo-French Convention of April 8, 1804, which, concerned principally with the settlement of the Egyptian and Newfoundland questions, provides, in Art. 6, that "In order to assure the free passage of the Suez Canal, the Government of His Britannic Majesty declares that it adheres to the stipulations of the Treaty concluded on the 29th October 1888; and to their becoming operative. The free passage of the canal being thus guaranteed, the execution of the last phrase of paragraph 1, and that of paragraph 2 of the 8th article of this Treaty, will remain suspended. "

 The last phrase of paragraph 1 of Art. 8 relates to annual meetings of the agents of the signatory Powers. 

 Paragraph 2 of this Article relates to the presidency of a special commissioner of the Ottoman Government over those meetings. 

 On the whole question see _Parl. Papers, Egypt_, No. 1 (1888), _Commercial_, No. 2 (1889), and the present writer's _Studies in International Law_, pp. 275-293. Note must, of course, now be taken of the constitutional changes resulting from the war of 1914. 

 The provisions of the Treaty of 1888, with reference to the free navigation of the Suez Canal, have, of course, acquired a new importance from their adoption into the Hay-Pauncefote Treaty of November 18, 1901, as to the Panama Canal, and from the divergent views taken of their interpretation, as so adopted. 

SECTION 1

_On the Open Sea_

"THE FREEDOM OF THE SEAS"?

Sir, --Your remarks upon "the wide and ambiguous suggestions" containedin the Pope's Peace Note are especially apposite to his desire for "thefreedom of the seas. " It is regrettable that his Holiness does notexplain the meaning which he attaches to this phrase, in itselfunmeaning, so dear to the Germans. He is doubtless well aware that thesea is already free enough, except to pirates, in time of peace, andmust be presumed to refer to time of war, and specifically to proposethe prohibition of any such interference with neutral shipping as is nowlegalised by the rules relating to visit and search, contraband andblockade. 

If this be indeed the Pope's meaning, his aspirations are now lesslikely than ever to be realised. It is curious to reflect that theproposal actually made by our own Government at The Hague Conference of1907, apparently under the impression that Great Britain would be alwaysneutral, for protecting the carriage of contraband was most fortunatelydefeated by the opposition of the other great naval Powers, of whichGermany was one. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 16 (1917). 

 * * * * *

SECTION 2

_In Other Waters_

THE SUEZ CANAL

Sir, --Your correspondent "M. B. " has done good service by callingattention to the misleading nature of the often-repeated statement thatthe Suez Canal has been "neutralised" by the Convention of 1888. Perhapsyou will allow me more explicitly to show why, and how far, thisstatement is misleading. 

In the first place, this Convention is inoperative. It is so inconsequence of the following reservation made by Lord Salisbury in thecourse of the negotiations which resulted in the signature of theConvention:--

 "Les Délégués de la Grande-Bretagne ... Pensent qu'il est de leur devoir de formuler une réserve générale quant à l'application de ces dispositions en tant qu'elles ne seraient pas compatibles avec l'état transitoire et exceptionnel où se trouve actuellement l'Egypte, et qu'elles pourraient entraver la liberté d'action de leur Gouvernement pendant la période de l'occupation de l'Egypte par les forces de sa Majesté Britannique. "

Being thus unaffected by the treaty, the canal retains thosecharacteristics which it possesses, under the common law of nations, asa narrow strait, wholly within the territory of one Power and connectingtwo open seas. The fact that the strait is artificial may, I think, bedismissed from consideration, for reasons stated by me in the_Fortnightly Review_ for July, 1883. The characteristics of such astrait are unfortunately by no means well ascertained, but may perhapsbe summarised as follows. In time of peace, the territorial Power isbound by modern usage to allow "innocent passage, " under reasonableconditions as to tolls and the like, not only to the merchant vessels, but also, probably, to the ships of war, of all nations. In time of war, the territorial Power, if belligerent, may of course carry on, and isexposed to, hostilities in the strait as elsewhere, and the entrances tothe strait are liable to a blockade. Should the territorial Power beneutral, the strait would be closed to hostilities, though it wouldprobably be open to the "innocent passage" of belligerent ships of war. 

It may be worth while to enquire how far this state of things would beaffected by the Convention of 1888, were it to come into operation. The_status_ of the canal in time of peace would be substantially untouched, save by the prohibition to the territorial Power to fortify its banks. Even with reference to time of war, several of the articles of theConvention merely reaffirm well-understood rules applicable to allneutral waters--e. G. That no hostilities may take place therein. Theinnovations proposed by the Convention are mainly contained, as "M. B. "points out, in the first article, which deals with the position of thecanal when the territorial Power is belligerent. In such a case, subjectto certain exceptions, with a view to the defence of the country, theships of that Power are neither to attack nor to be attacked in thecanal, or within three miles of its ports of access, nor are theentrances of the canal to be blockaded. This is "neutralisation" only ina limited and vague sense of the term, the employment of which wasindeed carefully avoided not only in the Convention itself but also inthe diplomatic discussions which preceded it. 

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, October 4 (1898). 

THE SUEZ CANAL

Sir, --Your correspondent "M. B. , " if he will allow me to say so, supportsthis morning a good case by a bad argument, which ought hardly to passwithout remark. 

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

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, October 6 (1898). 

THE SUEZ CANAL

Sir, --Will you allow me to reply in the fewest possible words to thequestions very courteously addressed to me by Mr. Gibson Bowles in hisletter which appeared in _The Times_ of yesterday?

1. It is certainly my opinion, for what it is worth, that the fulloperation of the Convention of 1888 is suspended by the reserves firstmade on behalf of this country during the sittings of the Conference of1885. These reserves were texually repeated by Lord Salisbury in hisdespatch of October 21, 1887, enclosing the draft convention which, three days later, was signed at Paris by the representatives of Franceand Great Britain, the two Powers which, with the assent of the rest, had been carrying on the resumed negotiations with reference to thecanal. Lord Salisbury's language was also carefully brought to thenotice of each of the other Powers concerned; in the course of thesomewhat protracted discussions which preceded the final signature ofthe same convention at Constantinople on October 29, 1888. 

2. All the signatories of the convention having thus become parties toit after express notice of "the conditions under which her Majesty'sGovernment have expressed their willingness to agree to it, " must, itcan hardly be doubted, share the view that the convention is operativeonly _sub modo_. 

3. Supposing the convention to have become operative, and supposing theterritorial Power to be neutral in a war between States which we maycall A and B, the convention would certainly entitle A to claimunmolested passage for its ships of war on their way to attack theforces of B in the Eastern seas. 

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

Your obedient servant, T. E. HOLLAND. Oxford, October 9 (1898). 

THE CLOSING OF THE DARDANELLES

Sir, --Now that the pressure upon your space due to the clash of opposingviews of domestic politics is likely to be for the moment relaxed, youmay, perhaps, not think it inopportune that attention should be recalledto a question of permanent international interest raised by the recentaction of the Turkish Government in closing the Dardanelles to evencommercial traffic. 

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

A good deal of vague reference has, however, been made in thediscussions which have taken place upon the subject to "Treaties" underwhich it seems to be thought that trading ships enjoy, in allcircumstances, rights of free navigation through the Straits in questionwhich they would not have possessed otherwise. I should like, therefore, with your permission, to state what seem to be the relevant Treatyprovisions upon the subject, whether between the Powers constituting theEuropean Concert collectively, or between Russia and Turkey asindividual Powers. 

As to what may be described as the "European" Treaties, it is necessary, once for all, to put aside as irrelevant Art. 10 of the Treaty of Parisof 1856 and its annexed Convention; Art. 2 of the Treaty of London of1871; and the confirmatory Art. 63 of the Treaty of Berlin of 1878. These articles have exclusive reference to the "ancient rule of theOttoman Empire, " under which, so long as the Porte is at peace, noforeign ships of war are to be admitted into the Straits. There are, however, two articles, still in force, of these "European" Treatieswhich may seem to bear upon the present inquiry. By Art. 12 of theTreaty of Paris:--

 "Free from any impediment, the commerce in the ports and waters of the Black Sea shall be subject only to regulations of health, Customs, and police, framed in a spirit favourable to the development of commercial transactions. "

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

 "The Black Sea remains open, as heretofore, to the mercantile marine of all nations. "

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

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

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

 "the real question, which will have to be considered sooner or later, is the extent to which a belligerent Power, controlling narrow waters which form a great trade avenue for the commerce of the world, is justified in entirely closing such an avenue in order to facilitate the hostile operations in which the Power finds itself involved. "

It is, I think, clear that the solution of a question at once so noveland so delicate must be undertaken, not by any one Power, but by theConcert of Europe, or of the civilised world, which must devise someguarantee for the safety of any littoral Power which would be calledupon in the general interest to restrict its measures of self-defence. In the meantime, we may surely say that the case is provided for neitherby established international law nor by "European" Treaties; and, further, that the Treaties between Russia and Turkey, which do providefor it, are not such as it is desirable to perpetuate. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 22 (1912). 

THE CLOSING OF THE DARDANELLES

Sir, --I am reminded by Mr. Lucien Wolf's courteous letter that I oughtprobably to have mentioned, in alluding to the Treaty of San Stefano, that it is doubtful whether Art. 24 of that Treaty is in force. It wascertainly left untouched by the Treaty of Berlin, but the language ofthe relevant article (3) of the definitive Treaty of Peace of 1879 issomewhat obscure, nor is much light to be gained upon the point from theprotocol of the 14th _séance_ of the Congress of Berlin, at which Art. 24 came up for discussion. 

The earlier Treaties, however, which were revived beyond question byArt. 10 of the Treaty of 1879, grant to Russian merchant vessels fullrights of passage between the Black Sea and the Ægean, exercisable, forall that appears, in time of war as well as of peace, although theseTreaties contain no express words to that effect. Such rights, I wouldagain urge, if enjoyed by one Power, should be enjoyed by all; uponterms to be settled, not by any pair of Powers but by the Powerscollectively. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, June 5 (1912). 

 * * * * *

SECTION 3

_In a Special Danger Zone?_

THE GERMAN THREAT

Sir, --It may perhaps be desirable, for the benefit of the generalreader, to distinguish clearly between the two topics dealt with in therecent announcement of German naval policy. 

1. We find in it what may, at first sight, suggest the establishment ofa gigantic "paper blockade, " such as was proclaimed in the Berlin Decreeof 1806, stating that "Les îles Britanniques sont déclarées en état deblocus. " But in the new decree the term "blockade" does not occur, noris there any indication of an intention to comply with the prescriptionsof the Declaration of Paris of 1856 as to the mode in which such anoperation must be conducted. What we really find in the announcement isthe specification of certain large spaces of water, including the wholeof the British Channel, within which German ships will endeavour toperpetrate the atrocities about to be mentioned. 

2. These promised, and already perpetrated, atrocities consist in thedestruction of merchant shipping without any of those decent preliminarysteps, for the protection of human life and neutral property, which areinsisted on by long established rules of international law. Under theserules, the exercise of violence against a merchant vessel ispermissible, in the first instance, only in case of her attempting byresistance or flight to frustrate the right of visit which belongs toevery belligerent cruiser. Should she obey the cruiser's summons tostop, and allow its officers to come on board, they will satisfythemselves, by examination of her papers, and, if necessary, by furthersearch, of the nationality of ship and cargo, of the destination ofeach, and of the character of the latter. They will then decide whetheror no they should make prize of the ship, and in some cases may feeljustified in sending a prize to the bottom, instead of taking her intoport. Before doing so it is their bounden duty to preserve the shippapers, and, what is far more important, to provide for the safety ofall on board. 

This procedure seems to have been followed, more or less, by thesubmarines which sank the _Durward_ in the North Sea, and several smallvessels near the Mersey, but is obviously possible to such craft onlyunder very exceptional circumstances. It was scandalously not followedin the cases of the _Tokomaru_, the _Ikaria_, and the hospital ship (!)_Asturias_, against which a submarine fired torpedoes, off Havre, without warning or inquiry, and, of course, regardless of the fate ofthose on board. The threat that similar methods of attack will besystematically employed, on a large scale, on and after the 18th inst. , naturally excites as much indignation among neutrals as among the Alliesof the Entente. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 12 (1915). 

 * * * * *

SECTION 4

_Aerial Warfare_

 It may be desirable to supplement what is said in the following letters by mentioning that the Declaration of 1899 (to remain in force for five years) was largely ratified, though not by Great Britain; that of 1907 (to remain in force till the termination of the third Peace Conference) was ratified by Great Britain and by most of the other great Powers in 1909, not, however, by Germany or Austria; that aerial navigation is regulated by the Acts, I & 2 Geo. 5, c. 4, and 2 & 3 Geo. 5, c. 22; and that an agreement upon the subject was entered into between France and Germany, on July 26, 1913, by exchange of notes, "en attendant la conclusion d'une convention sur cette matière entre un plus grand nombre d'états" (the international Conference held at Paris in 1910 had failed to agree upon the terms of such a Convention); and that Art. 25 of The Hague Convention of 1907, No. Iv. , was ratified by Great Britain, and generally. 

THE DEBATE ON AERONAUTICS

Sir, --It is not to be wondered at that the Chairman of Committeesdeclined to allow yesterday's debate on aviation to diverge into anenquiry whether the Powers could be induced to prohibit, or limit, thedropping of high explosives from aerial machines in war time. Thequestion is, however, one of great interest, and it may be desirable, with a view to future discussions, to state precisely, since littleseems to be generally known upon the subject, what has already beenattempted in this direction. 

In the _Règlement_ annexed to The Hague Convention of 1899, as to the"Laws and Customs of War on Land, " Art. 23, which specifically prohibitscertain "means of injuring the enemy, " makes no mention of aerialmethods; but Art. 25, which prohibits "the bombardment of towns, villages, habitations, or buildings, which are not defended, " wasstrengthened, when the _Règlement_ was reissued in 1907 as an annexe tothe, as yet not generally ratified, Hague Convention No. Iv. Of thatyear, by the insertion, after the word "bombardment, " of the words "byany means whatever, " with the expressed intention of including in theprohibition the throwing of projectiles from balloons. 

The Hague Convention No. Ix. Of 1907, also not yet generally ratified, purports to close a long controversy, in accordance with the view whichyou allowed me to advocate, with reference to the naval manoeuvres of1888, by prohibiting the "naval bombardment of ports, towns, villages, habitations, or buildings, which are not defended. " The words "by anymeans whatever" have not been here inserted, one would incline to thinkby inadvertence, having regard to what passed in Committee, and to therecital of the Convention, which sets out the propriety of extending tonaval bombardments the principles of the _Règlement_ (cited, perhapsagain by inadvertence, as that of 1899) as to the Laws and Customs ofWar on Land. 

But the topic was first squarely dealt with by the first of the threeHague Declarations of 1899, by which the Powers agreed to prohibit, forfive years, "the throwing of projectiles and explosives from balloons, or by other analogous new methods. " The Declaration was signed andratified by almost all the Powers concerned; not, however, by GreatBritain. 

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

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

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 3 (1909). 

THE AERIAL NAVIGATION ACT

PRACTICAL DIFFICULTIES

Sir, --The haste with which Colonel Seely's Bill, authorising resort toextreme measures for the prevention of aerial trespass under suspiciouscircumstances, has been passed through all its stages, was amplyjustified by the urgent need for such legislation, which Russia seems tohave been the first to recognise. The task of those responsible forframing regulations for the working of the new Act will be no easy one. They will be brought face to face with practical difficulties, such asled to the adjournment of the Paris Conference of 1910. 

In the meantime, it may interest your readers to have some clue to whathas taken place, with reference to the more theoretical aspects of thequestions involved, in so competent and representative a body as theInstitut de Droit International. The Institut has had the topic underconsideration ever since 1900, more especially at its sessions for theyears 1902, 1906, 1910, and 1911. In the volumes of its "Annuaire" forthose years will be found not only the text of the resolutions adoptedon each occasion, together with a summary account of the debates whichpreceded their adoption, but also, fully set out, the material which hadbeen previously circulated for the information of members, in the shapeof reports and counter-reports from inter-sessional committees, draftresolutions, and such critical observations upon these documents as hadbeen received by the secretary. The special committee upon the subject, of which M. Fauchille is _Rapporteur_, is still sitting, and the topicwill doubtless be further debated at the session of the Institut, whichwill this year be held at Oxford. No success has attended efforts topass resolutions in favour of any interference with the employment of_aéronefs_ in time of war, such as was proposed by The (now discredited)Hague Declaration, prohibiting the throwing of projectiles andexplosives from airships. With reference to the use of these machines intime of peace, the debates have all along revealed a fundamentaldivergence of opinion between the majority of the Institut and aminority, comprising those English members who have made known theirviews. Both parties are agreed that aerial navigation must submit tosome restrictions, but the majority, starting from the Roman law dictum, "Naturali iure omnium communia sunt _aer_, aqua profluens, et mare, "would always presume in favour of freedom of passage. The minority, onthe other hand, citing sometimes the old English saying, "Cuius estsolum eius est usque ad coelum, " hold that the presumption must be infavour of sovereignty and ownership as applicable to superimposed airspace. 

It is hardly necessary to observe that neither of the maxims justmentioned was formulated with reference to problems which have onlypresented themselves within the last few years. The Romans, in thepassage quoted, were thinking not of aerial space, but of the elementwhich fills it. The old English lawyers were preoccupied with questionsas to projecting roofs and overhanging boughs of trees. The problems nowraised are admittedly incapable of solution _a priori_, but thedifference between the two schools of thinkers is instructive, asbearing upon the extent to which those who belong to one or the otherschool would incline towards measures of precaution against abuses ofthe novel art. This difference was well summed up at one of our meetingsby Professor Westlake as follows: "Conservation et passage, commentcombiner ces deux droits? Lequel des deux est la règle? Lequell'exception? Pour le Rapporteur (M. Fauchille) c'est le droit de passagequi prime. Pour moi c'est le droit de conservation. "

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 15 (1913). 

SOVEREIGNTY OVER THE AIR

Sir, --Mr. Arthur Cohen has done good service by explaining that GreatBritain has practically asserted the right of a State to absolutecontrol of the airspace vertically above its territory. I may, however, perhaps be permitted to remark that he seems to have been misinformedwhen he states that the Institute of International Law has arrived at nodecision upon the subject. The facts are as follows: The problemspresented by the new art of aerostation have been under theconsideration of the Institute since 1900, producing a large literatureof reports, counter-reports, observations, and draft rules, to debatesupon which no fewer than four sittings were devoted at the Madridmeeting in 1911. Wide differences of opinion then disclosed themselvesas to territorial rights over the air, the radical opposition beingbetween those members who, with M. Fauchille, the Reporter of theCommittee, would presume in favour of freedom of aerial navigation, subject, as they would admit, to some measures of territorialprecaution, and those who, like the present writer ("il se proclameopposé au principe de la liberté de la navigation aérienne, et s'entiendrait[A] plutôt au principe _cuius est solum, huius est usque adcoelum_, en y apportant au besoin quelques restrictions, " "Annuaire, " p. 821), would subject all aerial access to the discretion of theterritorial Power. 

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

The Institut then proceeded to deal with _bases_ relating to a time ofwar, but was unable to make much progress with them in the timeavailable. The debate upon the "Régime juridique des aérostats" was notresumed at Christiania in 1911, nor is it likely to be at Oxford "in theautumn of the present year, " as Mr. Cohen has been led to suppose. Otherarrangements were found to be necessary, at a meeting which took place aweek ago between myself and the other members of our _bureau_. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 30 (1913). 

ATTACK FROM THE AIR

THE ENFORCEMENT OF INTERNATIONAL LAW

Sir, --In his interesting and important address at the Royal UnitedService Institution, Colonel Jackson inquired: "Can any student ofinternational law tell us definitely that such a thing as aerial attackon London is outside the rules; and, further, that there exists anauthority by which the rules can be enforced?" As one of the students towhom the Colonel appeals I should be glad to be allowed to reply to thefirst of his questions. 

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

 "It is forbidden to attack or to bombard _by any means whatever (par quelque moyen que ce soit)_ towns, villages, habitations, or buildings which are not defended. "

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

I cannot venture to ask the hospitality of your columns for an adequatediscussion of the gallant officer's second question, as to the bindingforce attributable to international law. Upon this I may, however, perhaps venture to refer him to some brief remarks, addressed to you agood many years ago, and now to be found at pp. 101 and 105 of the newedition of my "Letters to _The Times_ upon War and Neutrality(1881-1918). "

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 24 (1914). 

ATTACK FROM THE AIR

THE RULES OF INTERNATIONAL LAW

Sir, --In reply to Colonel Jackson's inquiry as to any rule ofinternational law bearing upon aerial attack upon London, I referred himto the, now generally accepted, prohibition of the "bombardment, _by anymeans whatever_, of towns, &c. , which are not defended. " This rule hasbeen growing into its present form ever since the Brussels Conference of1874. The words italicised were added to it in 1907, to show that itapplies to the action of _aéronefs_ as well as to that of landbatteries. It clearly prohibits any wanton bombardment, undertaken withno distinctly military object in view, and the prohibition is much moresweeping, for reasons not far to seek, than that imposed by ConventionNo. Ix. Of 1907 upon the treatment of coast towns by hostile fleets. 

So far good; but further questions arise, as to which no diplomaticallyauthoritative answers are as yet available; and I, for one, am not wiseabove that which is written. One asks, for instance, what places are_prima facie_ "undefended. " Can a "great centre of population" claimthis character, although it contains barracks, stores, and bodies oftroops? For the affirmative I can vouch only the authority of theInstitut de Droit International, which in 1896, in the course of thediscussion of a draft prepared by General Den Beer Pourtugael andmyself, adopted a statement to that effect. A different view seems to betaken in the German _Kriegsbrauch_, p. 22. One also asks: Under whatcircumstances does a place, _prima facie_, "undefended, " cease topossess that character? Doubtless so soon as access to it is forciblydenied to the land forces of the enemy; hardly, to borrow anillustration from Colonel Jackson's letter of Thursday last, should theplace merely decline to submit to the dictation of two men in anaeroplane. 

I read with great pleasure the colonel's warning, addressed to theUnited Service Institution, and am as little desirous as he is thatLondon should rely for protection upon The Hague article, ambiguous as Ihave confessed it to be; trusting, indeed, that our capital may beenabled so to act at once in case of danger as wholly to forfeit suchclaim as it may in ordinary times possess to be considered an"undefended" town. Let the principle involved in Art. 25 be carried intomuch further detail, should that be found feasible, but, in themeantime, let us not for a moment relax our preparation of verticalfiring guns and defensive aeroplanes. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 2 (1914). 

 The war of 1914 has definitely established the employment of aircraft for hostile purposes, and, as evidenced by the reception given by belligerents to neutral protests, the sovereignty of a state over its superincumbent air-spaces. 

 On the bombardment of undefended places, _cf. Supra_, pp. 30, 62, 67, 68; _infra_, pp. 97, 109, 112-123. 

 On the authority of International Law, _supra_, pp. 25, 66, 67; _infra_, pp. 77, 114, 115, 137, 169. 

 * * * * *

SECTION 5

_Submarines_

GERMANY AND THE HAGUE

Sir, --One excuse for German atrocities put forward, as you report, inthe _Kolnische Zeitung_, ought probably not to pass unnoticed, denying, as it does, any binding authority to the restrictions imposed upon theconduct of warfare, on land or at sea, by The Hague Conventions of 1907. It is true that each of these Conventions contains an article to theeffect that its provisions "are applicable only between the contractingPowers, and only if all the belligerents are parties to the Convention. "It is also true that three of the belligerents in the world-war nowraging--namely, Serbia, Montenegro, and, recently, Turkey--although theyhave (through their delegates) signed these Conventions, have not yetratified them. Therefore, urges the _Zeitung_, the Conventions are, forpresent purposes, waste paper. The argument is as technically correct asits application would be unreasonable; and I should like to recall thefact that, in the important prize case of the _Möwe_, Sir Samuel Evans, in a considered judgment, pointed out the undesirability of refusingapplication to the maritime conventions because they had not beenratified by Montenegro, which has no navy, or by Serbia, which has noseaboard; and accordingly, even after Turkey, which also has notratified, had become a belligerent, declined to deprive a Germanshipowner of an indulgence to which he was entitled under the SixthHague Convention. 

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

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 26 (1914). 

 The charitable view taken in the last paragraph has, of course, not been justified. 

 For the _Möwe_, see 2 Lloyd, 70. On the restrictive article in The Hague Convention, _cf. Passim_. 

"THE PIRATES"

Sir, --Would it not be desirable, in discussing the execrable tactics ofthe German submarines, to abandon the employment of the terms "piracy"and "murder, " unless with a distinct understanding that they are usedmerely as terms of abuse?

A ship is regarded by international law as "piratical" only if, upon thehigh seas, she either attacks other vessels, without being commissionedby any State so to do (_nullius Principis auctoritate_, as Bynkershoekputs it), or wrongfully displaces the authority of her own commander. The essence of the offence is absence of authority, although certaincountries, for their own purposes, have, by treaty or legislation, givena wider meaning to the term, e. G. , by applying it to the slave-trade. "Murder" is such slaying as is forbidden by the national law of thecountry which takes cognizance of it. 

In ordering the conduct of which we complain, Germany commits anatrocious crime against humanity and public law; but those who, beingduly commissioned, carry out her orders, are neither pirates normurderers. The question of the treatment appropriate to such persons, when they fall into our hands, is a new one, needing carefulconsideration. In any case, it is not for us to rival the barbarism oftheir Government by allowing them to drown. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 13 (1915)

SUBMARINE CREWS

Sir, --My letter in _The Times_ of March 15 with reference to the conductof certain of the German submarines has been followed by a good manyother letters upon the same subject. Some of your correspondents havetravelled far from the question at issue into the general question ofpermissible reprisals, into which I have no intention of following them. But others, by exhibiting what I may venture to describe as an_ignoratio elenchi_, have made it desirable to recall attention to thespecific purport of my former letter. It was to the effect--(1) that theacts of those who, in pursuance of a Government commission, sinkmerchant vessels without warning are not "piracy, " the essence of thatoffence at international law being that it is committed under norecognised authority; and that neither is it "murder" under English law;(2) that the question of the treatment appropriate to the perpetratorsof such acts, even under the orders of their Government, is a new one, needing careful consideration. I was, of course, far from stating, as ageneral rule, that Government authority exempts all who act under itfrom penal consequences. The long-established treatment of spies issufficient proof to the contrary. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 22 (1915). 

MR. WILSON'S NOTE

Sir, --I may perhaps be permitted to endorse every word of the highpraise bestowed in your leading article of this morning upon the Noteaddressed to Germany by the Government of the United States. Thefrequent mentions which it contains of "American ships, " "Americancitizens, " and the like, were, no doubt, natural and necessary, asestablishing the _locus standi_ of that Government in the controversywhich it is carrying on. But we find also in the Note matters of evenmore transcendent interest, relating to the hitherto universallyaccepted doctrines of international law, applicable to the treatment ofenemy as well as of neutral vessels. 

It may suffice to cite the paragraph which assumes as indisputable

 "the rule that the lives of non-combatants, whether they be of neutral citizenship or citizens of one of the nations at war, cannot lawfully or rightfully be put in jeopardy by the capture or destruction of unarmed merchantmen, "

as also

 "the obligation to take the usual precaution of visit and search to ascertain whether a suspected merchantman is in fact of belligerent nationality, or is in fact carrying contraband under a neutral flag. "

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

The Note also recognises, what you some time ago allowed me to pointout, "the practical impossibility of employing submarines in the destruction of commerce without disregarding those rules of fairness, reason, justice, and humanity which modern opinion regards as imperative. "

Adding:--

 "It is practically impossible for them to make a prize of her, and if they cannot put a prize crew on board, they cannot sink her without leaving her crew and all on board her to the mercy of the sea in her small boats. "

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

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, May 15 (1915). 

 _Cf. Supra_, p. 70. 

 * * * * *

SECTION 6

_Lawful Belligerents_

GUERILLA WARFARE

Sir, --When Mr. Balfour last night quoted certain articles of the"Instructions for the Government of Armies of the United States in theField" with reference to guerilla warfare, some observations were made, and questions put, upon which you will perhaps allow me to say a word ortwo. 

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

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

3. The answer to Sir William Harcourt's unanswered question, "Were thereno rules settled at the Hague?" must be as follows. The Hague Conventionof 1899, upon "the laws and customs of warfare, " ratified by thiscountry on September 4 last, binds the contracting parties to give totheir respective armies instructions in conformity with the _Règlement_annexed to the Convention. This _Règlement_, which is substantially areproduction of the unratified _projet_ of the Brussels Conference of1874, does deal, in Arts. 1-3, with guerilla warfare. It is no doubthighly desirable that, as soon as may be, the drafting of rules inaccordance with the _Règlement_ should be seriously taken in hand, ourGovernment having now abandoned its _non possumus_ attitude in thematter. It will, however, be found to be the case, as was pointed out byMr. Balfour, that the sharp distinction between combatants andnon-combatants contemplated by the ordinary laws of war is inapplicable(without the exercise of undue severity) to operations such as those nowbeing carried out in South Africa. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 7 (1900). 

 "Lieber's Instructions, " issued in 1863 and reissued in 1898, will doubtless be superseded, or modified, in consequence of the United States having, on April 9, 1902, ratified the Convention of 1899, and on March 10, 1908, that of 1907, as to the Laws and Customs of War on Land. 

 The answer to Mr. Morley's enquiry in 1900 would not now be in the negative. The present writer's representations resulted in Mr. Brodrick, when Secretary for War, commissioning him to prepare a Handbook of the _Laws and Customs of War on Land_, which was issued to the Army by authority in 1904. On the instructions issued by other National Governments, see the author's _Laws of War on Land_, 1908, pp. 71-73. 

 The answer, given in the letter, to Sir William Harcourt's question must now be supplemented by a reference to the Handbook above mentioned as having contained rules founded upon the _Règlement_ annexed to the Convention of 1899, and by a statement that that Convention, with its _Règlement_, is now superseded by Conventions No. Iv. (with its _Règlement_) and No. V. Of 1907, of which account has been taken in a new Handbook upon _Land Warfare_, issued by the War Office in 1913. 

 As to what is required from a lawful belligerent, see Arts. 1 and 2 of the _Règlement_ of 1899, practically repeated in that of 1907. The substance of Art. 1 is set out in the letter which follows. 

 Art. 2 grants some indulgence to "the population of a territory which has not been occupied who, on the approach of the enemy, spontaneously take up arms to resist the invading troops, without having had time to organise themselves in accordance with Art. 1. " _Cf. Infra_, pp. 76, 79. 

THE RUSSIAN USE OF CHINESE CLOTHING

Sir, --If Russian troops have actually attacked while disguised inChinese costume, they have certainly violated the laws of war. It may, however, be worth while, to point out that the case is not covered, asmight be inferred from the telegram forwarded to you from Tokio onWednesday last, by the text of Art. 23 (_f_) of the _Règlement_ annexedto The Hague Convention "on the laws and customs of war on land. " Thisarticle merely prohibits "making improper use of the flag of truce, ofthe national flag or the military distinguishing marks and the uniformof the enemy, as well as of the distinguishing signs of the GenevaConvention. "

Art. 1 of the _Règlement_ is more nearly in point, insisting, as itdoes, that even bodies not belonging to the regular army, which, it isassumed, would be in uniform (except in the case of a hasty rising toresist invasion), shall, in order to be treated as "lawfulbelligerents, " satisfy the following requirements, viz. :--

 "(1) That of being commanded by a person responsible for his subordinates;

 "(2) That of having a distinctive mark, recognisable at a distance;

 "(3) That of carrying their arms openly; and

 "(4) That of conducting their operations in accordance with the laws and customs of war. "

The fact that, in special circumstances, as in the Boer war, marks inthe nature of uniform have not been insisted upon, has, of course, nobearing upon the complaint now made by the Japanese Government. 

All signatories of The Hague Convention are bound to issue to theirtroops instructions in conformity with the _Règlement_ annexed to it. The only countries which, so far as I am aware, have as yet fulfilledtheir obligations in this respect are Italy, which has circulated theFrench text of the _Règlement_ without comment; Russia, which hasprepared a little pamphlet of sixteen pages for the use of its armies inthe Far East; and Great Britain, which has issued a Handbook, containingexplanatory and supplementary matter, besides the text of the relevantdiplomatic Acts. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, October 21 (1904). 

THE RIGHTS OF ARMED CIVILIANS

Sir, --It is interesting to be reminded by Sir Edward Ridley of the viewtaken by Sir Walter Scott of the right and duty of civilians to defendthemselves against an invading enemy. International law is, however, made neither by the ruling of an "impartial historian, " on the one hand, nor by the _ipse dixit_ of an Emperor, on the other. 

In point of fact, the question raised by Sir Edward is not an open one, and, even in our own favoured country, it is most desirable that everyone should know exactly how matters stand. The universally acceptedrules as to the persons who alone can claim to act with impunity asbelligerents are set forth in that well-known "scrap of paper" The HagueConvention No. Iv. Of 1907; to the effect that members of "an army" (inwhich term militia and bodies of volunteers are included) must (1) beresponsibly commanded, (2) bear distinctive marks, visible at adistance, (3) carry their arms openly, and (4) conform to the laws ofwar. By way of concession, inhabitants of a district not yet "occupied"who spontaneously rise to resist invasion, without having had time tobecome organised, will be privileged if they conform to requirements (3)and (4). These rules are practically a republication of those of TheHague Convention of 1899, which again were founded upon therecommendations of the Brussels Conference of 1874, although, at theConference, Baron Lambermont regretted that "si les citoyens doiventêtre conduits au supplice pour avoir tenté de défendre leur pays, aupéril de leur vie, ils trouvent inscrit, sur le poteau au pied duquelils seront fusillés, l'article d'un Traité signé par leur propregouvernement qui d'avance les condamnait à mort. "

_An Englishman's Home_ was a play accurately representing the acceptedpractice, shocking as it must be. I remember the strength of an epithetwhich was launched from the gallery at the German officer on hisordering the shooting of the offending householder. It may be hardlynecessary to add that nothing in international usage justifies executionof innocent wives and children. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, September 17 (1914). 

 This letter was, it seems, perverted in the _Kreuz Zeitung_. 

CIVILIANS IN WARFARE

THE RIGHT TO TAKE UP ARMS

Sir, --I have read with some surprise so much of Sir Ronald Ross's letterof to-day as states that "the issue still remains dark" as to the rightof civilians to bear arms in case of invasion. It has long been settledthat non-molestation of civilians by an invader is only possible uponthe understanding that they abstain from acts of violence against him. Modern written international law has defined, with increasingliberality, by the draft Declaration of 1874 and the Conventions of 1899and 1907, the persons who will be treated as lawful belligerents. Art. 1of The Hague Regulations of 1907 recognises as such, not only theregular army, but also militia and volunteers. Art. 2 grants indulgenceto a _levée en masse_ of "la population" (officially mistranslated "theinhabitants") of a territory not yet occupied. Art. 3, also cited by SirRonald, has no bearing upon the question. 

The rules are, I submit, as clear as they could well be made, and aredecisive against the legality of resistance by individual civilians, thesad, but inevitable consequence of which was, as I pointed out in _TheTimes_ of September 19 last, truthfully represented on the stage in _AnEnglishman's Home_. 

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

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, October 26 (1914). 

CIVILIANS AND A RAID

Sir, --It is satisfactory to learn, from Mr. McKenna's answer to aquestion last night, that the duty of the civilian population, at anyrate in certain counties, is engaging the attention of Government. Iconfess, however, to having read with surprise Mr. Tennant'sannouncement that "it was provided by The Hague Convention that thewearing of a brassard ensured that the wearer would be regarded as abelligerent. " It ought surely to be now generally known that, among thefour conditions imposed by the Convention upon Militia and bodies ofVolunteers, in order to their being treated as belligerents, the thirdis "that they shall bear a distinctive mark, fixed and recognisable at adistance. " Whether an enemy would accept the mere wearing of a brassardas fulfilling this condition is perhaps an open question upon which somelight may be thrown by the controversies of 1871 with reference to_francs-tireurs_. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 24 (1914). 

MISS CAVELL'S CASE

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

It is, of course, the case that Germany is in Belgium only as the resultof her deliberate violation of solemnly contracted treaties, but she isin military "occupation" of the territory. From such "occupation" itcannot be disputed that there flow certain rights of self-defence. Noone, for instance, would have complained of her stern repression ofcivilian attacks upon her troops, so long as it was confined to actualoffenders. The passages quoted by Sir James from Hague Convention v. , and from the _Kriegsbrauch_, relate entirely to the rights and duties ofGovernments, and have no bearing upon the tragical abuse of jurisdictionwhich is occupying the minds of all of us. 

May I take this opportunity of calling attention to the fresh evidenceafforded by the new Order in Council of our good fortune in not beingbound by the Declaration of London, which erroneously professed to"correspond in substance with the generally recognised principles ofInternational Law"? Is it too late, even now, to announce, by acomprehensive Order in Council, any relaxations which we and our Alliesthink proper to make of well-established rules of Prize Law, without anyreference to the more and more discredited provisions of theDeclaration, the partial and provisional adoption of which seems, at theoutbreak of the war, to have been thought likely to save trouble?

Your obedient servant, T. E. HOLLAND. Oxford, October 26 (1915). 

 * * * * *

SECTION 7

_Privateering_

 The three letters which immediately follow were written to point out that neither belligerent in the war of 1898 was under any obligation not to employ privateers. Within, however, a few days after the date of the second of these letters, both the United States and Spain, though both still to be reckoned among the few powers which had not acceded to the Declaration of Paris, announced their intention to conduct the war in accordance with the rules laid down by the Declaration. 

 Art. 3 of the Spanish Royal Decree of April 23 was to the effect that "notwithstanding that Spain is not bound by the Declaration signed in Paris on April 16, 1856, as she expressly stated her wish not to adhere to it, my Government, guided by the principles of international law, intends to observe, and hereby orders that the following regulations for maritime law be observed, " viz. Arts. 2, 3, and 4 of the Declaration, after setting out which, the Decree proceeds to state that the Government, while maintaining "their right to issue letters of marque, ... Will organise, for the present, a service of auxiliary cruisers ... Subject to the statutes and jurisdiction of the Navy. "

 The Proclamation of the President of the United States of April 26 recited the desirability of the war being "conducted upon principles in harmony with the present views of nations, and sanctioned by their recent practice, " and that it "has already been announced that the policy of the Government will not be to resort to privateering, but to adhere to the rules of the Declaration of Paris, " and goes on to adopt rules 2, 3, and 4 of the Declaration. 

 Ten years afterwards, viz. On January 18, 1908, Spain signified "her entire and definitive adhesion to the four clauses contained in the Declaration, " undertaking scrupulously to conduct herself accordingly. Mexico followed suit on February 13, 1909. The United States are therefore now the only important Power which has not formally bound itself not to employ privateers. It seems unlikely that privateers, in the old sense of the term, will be much heard of in the future, though many questions may arise as to "volunteer navies" and subsidised liners, such as those touched upon in the last section, with reference to captures made by the _Malacca_; possibly also as to ships "converted" on the High Seas. 

OUR MERCANTILE MARINE IN WAR TIME

Sir, --There can be no doubt that serious loss would be occasioned toBritish commerce by a war between the United States and Spain in whicheither of those Powers should exercise its right of employing privateersor of confiscating enemy goods in neutral bottoms. 

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

It is hardly necessary to say that non-compliance with the provisions ofthe Declaration of Paris by a non-signatory carries with it none of theconsequences of a breach of the law of nations. The framers of thatsomewhat hastily conceived attempt to engraft a paper amendment upon theslowly matured product of oecumenical opinion, far from professing tomake general law, expressly state that the Declaration "shall not bebinding except upon those Powers who have acceded, or shall accede, toit. " As regards Spain and the United States the Declaration is _resinter alios acta_. 

It follows that, in recommending that any action taken by privateersagainst British vessels should be treated as an act of piracy, SirGeorge Baden-Powell is advocating an inadmissible atrocity, whichderives no countenance from the view theoretically maintained by theUnited States, at the outset of the Civil War, of the illegality ofcommissions granted by the Southern Confederation. His recommendationthat our ports should be "closed" to privateers is not veryintelligible. Privateers would, of course, be placed under therestrictions which were imposed in 1870, in accordance with LordGranville's instructions, even on the men-of-war of belligerents. Theywould be forbidden to bring in prizes, to stay more than twenty-fourhours, to leave within twenty-four hours of the start of a ship of theother belligerent, to take more coal than enough to carry them to thenearest home port, and to take any further supply of coal within threemonths. We might, no doubt, carry discouragement of privateers by somuch further as to make refusal of coal absolute in their case, buthardly so far as to deny entry to them under stress of weather. 

The difficulties in the way of accepting Sir G. Baden-Powell's othersuggestion are of a different order. Although we could not complain ofthe confiscation by either of the supposed belligerents of enemyproperty found in British vessels, as being a violation of internationalduty, we might, at our own proper peril, announce that we should treatsuch confiscation as "an act of war. " International law has longabandoned the attempt to define a "just cause of war. " That must be leftto the appreciation of the nations concerned. So to announce would be, in effect, to say: "Although by acting as you propose you would violateno rule, yet the consequences would be so injurious to me that I shouldthrow my sword into the opposite scale. " We should be acting in thespirit of the "Armed Neutralities" of 1780 and 1800. The expediency ofso doing depends, first, upon the extent to which the success of ouraction would obviate the mischief against which it would be directed;and, secondly, upon the likelihood that the benefit which could beobtained only by imposing a new rule of international law _in invitos_would counterbalance the odium incurred by its imposition. On the formerquestion it may be worth while to remind the mercantile community that, even under the Declaration of Paris, neutral trade must inevitably beput to much inconvenience. Any merchant vessel may be stopped with aview to the verification of her national character, of which the flag isno conclusive evidence. She is further liable to be visited and searchedon suspicion of being engaged in the carriage of contraband, or of enemymilitary persons, or of despatches, or in running a blockade. Should thecommander of the visiting cruiser "have probable cause" for suspectingany of these things, though the vessel is in fact innocent of them, heis justified in putting a prize crew on board and sending her into port, with a view to the institution of proceedings against her in a prizeCourt. A non-signatory of the Declaration of Paris may investigate andpenalise, in addition to the above-mentioned list of offences, thecarriage of enemy goods. This is, no doubt, by far the most importantbranch of the trade which is carried on for belligerents by neutrals, but it must not be forgotten that even were this branch of tradeuniversally indulged, in accordance with the Declaration of Parisneutral commerce would still remain liable to infinite annoyance fromvisit and search, with its possible sequel in a prize Court. 

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

I am, Sir, your obedient servant, T. E. HOLLAND. The Athenæum, April 16 (1898). 

OUR MERCANTILE MARINE IN WAR TIME

Sir, --To-day's debate should throw some light upon the views of theGovernment, both as to existing rules of international law and as to thepolicy demanded by the interests of British trade. It is, however, possible that the Government may decline to anticipate the terms of theDeclaration of Neutrality which they may too probably find themselvesobliged to issue in the course of the next few days, and it is notunlikely that the law officers may decline to advise shipowners uponquestions to which authoritative replies can be given only withreference to concrete cases by a prize Court. 

You may perhaps, therefore, allow me in the meantime to supplement myformer letter by a few remarks, partly suggested by what has since beenwritten upon the subject. 

It is really too clear for argument that privateers are not, and cannotbe treated as, pirates. 

Sir George Baden-Powell still fails to see that the Declaration of Pariswas not a piece of legislation, but a contract, producing no effect uponthe rights and duties of nations which were not parties to it. We didnot thereby, as he supposes, "decline to recognise private vessels ofwar as competent to use force on neutral merchantmen. " We merely boundourselves not to use such vessels for such a purpose. Sir George isstill unable to discover for privateers any other category than the"_status_ of pirate. " He admits that it would not be necessary for theirbenefit to resort to "the universal use of the fore-yard-arm. " Let meassure him that the bearer of a United States private commission of warwould run no risk even of being hanged at Newgate. President Lincoln, itis true, at the outset of the Civil War, threatened to treat as piratesvessels operating under the "pretended authority" of the rebel States;but he was speedily instructed by his own law Courts--e. G. In the_Savannah_ and in the _Golden Rocket_ (insurance) cases--that even suchvessels were not pirates _iure gentium_. It is also tolerablyself-evident that we cannot absolutely "close" our ports to any class ofvessels. There is no inconsistency here between my friend Sir SherstonBaker and myself. We can discourage access, and of course, by refusal ofcoal, render egress impossible for privateers. Mr. Coltman wouldapparently be inclined to carry this policy so far that he would disarmand intern even belligerent ships of war which should visit our ports: asomewhat hazardous innovation, one would think. 

It is quite possible that the question of privateering may not become apractical one during the approaching war. Both parties may expresslyrenounce the practice, or they may follow the example of Prussia in1870, and Russia at a later date, in commissioning fast liners under thecommand of naval officers--a practice, by the by, which is not, as SirGeorge seems to think, "right in the teeth of the Declaration of Paris. "See Lord Granville's despatch in 1870. 

On Sir George's proposals with reference to the carriage of enemy goods, little more need be said, except to deprecate arguments founded upon themetaphorical statement that "a vessel is part of the territory coveredby her flag, " a statement which Lord Stowell found it necessary to meetby the assertion that a ship is a "mere movable. " There can be nopossible doubt of the right, under international law, of Spain and theUnited States to visit and search neutral ships carrying enemy's goods, and to confiscate such goods when found. They may also visit and searchon many other grounds, and the question (one of policy) is whether, rather than permit this addition to the list, we choose to take a stepwhich would practically make us belligerent. This question also, it maybe hoped, will not press for solution. 

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

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

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, April 21 (1898). 

OUR MERCANTILE MARINE IN WAR

Sir, --Let me assure Sir George Baden-Powell that if, as he seems tothink, I have been unsuccessful in grasping the meaning of his veryinteresting letters, it has not been from neglect to study them with theattention which is due to anything which he may write. How privateering, previously innocent, can have become piratical, _i. E. _ an offence, everywhere justiciable, against the Law of Nations, if the Declarationof Paris was not in the nature of a piece of legislation, I confessmyself unable to understand; but have no wish to repeat the remarkswhich you have already allowed me to make upon the subject. 

I shall, however, be glad at once to remove the impression suggested bySir George's letter of this morning, that Art. 7 of the Spanish Decreeof April 24 has any bearing upon the legitimacy of privateeringgenerally. The article in question (following, by the by, the veryquestionable precedent of a notification issued by Admiral Baudin, during the war between France and Mexico in 1889) merely threatens withpunishment neutrals who may accept letters of marque from a belligerentGovernment. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 27 (1898). 

THE DECLARATION OF PARIS

Sir, --There is really no question at issue between your twocorrespondents Mr. Gibson Bowles and "Anglo-Saxon" as to the attitude ofthe United States towards the Declaration of Paris. 

Mr. Bowles rightly maintains that the United States has not acceded tothe Declaration as a whole, or to its second article, which exempts fromcapture enemy property in neutral ships. He means, of course, thatneither the whole nor any part of that Declaration has been ratified bythe President with the advice and consent of the Senate. The wholecontains, indeed, an article on privateering, to which, as it stands, the United States have always objected, and no part of the Declarationcan be accepted separately. 

"Anglo-Saxon, " on the other hand, is equally justified in asserting thatthe "officially-recorded policy" of the States, _i. E. _ of the Executive, is in accordance with Art. 2 of the Declaration. This policy has beenconsistently followed for more than half a century. Its strongestexpression is perhaps to be found in the President's Proclamation ofApril 26, 1898, in which, after reciting that it being desirable thatthe war with Spain "should be conducted upon principles in harmony withthe present views of nations and sanctioned by their recent practice, ithas already been announced that the policy of the Government will not beto resort to privateering, but to adhere to the rules for theDeclaration of Paris, " he goes on to "declare and proclaim" the threeother articles of the Declaration. The rule of Art. 2, as to exemptionof enemy goods in neutral ships, was embodied in Art. 19 of the NavalWar Code of 1900 (withdrawn in 1904, for reasons not affecting thearticle in question), and reappears in Art. 17, amended only by theaddition of a few words relating to "hostile assistance" in the draftCode which the United States delegates to the Conferences of 1907 and1908 were instructed to bring forward "with the suggested changes, andsuch further changes as may be made necessary by other agreementsreached at the Conference, as a tentative formulation of the rules whichshould be considered. " (My quotation is from the instructions asoriginally issued in English. ) Such changes as have been made in theCode are due to discussions which have taken place between high navaland legal authorities at the Naval War College. I do not know whetherthe annual reports of these discussions, with which I am kindlysupplied, are generally accessible, but would refer, especially withreference to the Declaration of Paris, to the volumes for 1904 and 1906. 

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

I have the honour to be, Sir, Your obedient servant, T. E. HOLLAND. Oxford, January 4 (1911). 

THE DECLARATION OF PARIS

Sir, --Mr. Gibson Bowles resuscitates this morning his crusade againstthe Declaration of 1856. It is really superfluous to argue in support ofrules which have met with general acceptance for nearly sixty yearspast, to all of which Spain and Mexico, who were not originally partiesto the Declaration, announced their formal adhesion in 1907, while theUnited States, which for well-known reasons declined to accede to theDeclaration, described, in 1898, all the articles except that dealingwith privateering as "recognised rules of International Law. "

It may, however, be worth while to point out why it was that noprovision was made for the ratification of the Declaration of 1856, orfor that of 1868 relating to the use of explosive bullets. At thosedates, when the first steps were being taken towards the generaladoption of written rules for the conduct of warfare, it was, curiouslyenough, supposed that agreement upon such rules might be sufficientlyrecorded without the solemnity of a treaty. This was, in my opinion, amistake, which has been avoided in more recent times, in which thewritten law of war has been developed with such marvellous rapidity. Notonly have codes of such rules been promulgated in regular "Conventions, "made in 1899, 1906, and 1907, but the so-called "Declarations, " dealingwith the same topic, of 1899, 1907, and 1909 have been as fully equippedas were those Conventions with provisions for ratification. Thedistinction between a "Convention" and a "Declaration" is therefore nowone without a difference, and should no longer be drawn. Nothing in thenature of rules for the conduct of warfare can prevent their expressionin Conventions, and the reason which seems to have promoted themisdescription of the work of the London Conference of 1908-9 as a"Declaration"--viz. An imaginary difference between rules for theapplication of accepted principles and wholly new rules--is founded inerror. Much of the contents of The Hague "Conventions" is as old as thehills while much of the "Declaration" of London is revolutionary. 

This by the way. It is not very clear whether Mr. Gibson Bowles, inexhorting us to denounce the Declaration, relies upon its original lackof ratification, or upon some alleged "privateering" on the part of theGermans. Nothing of the kind has been reported. The commissioning ofwarships on the high seas is a different thing, which may possibly beregarded as an offence of a graver nature. Great Britain is not going toimitate the cynical contempt for treaties, evidenced by the action ofGermany in Belgium and Luxemburg, in disregard not only of thewell-known treaties of 1889 and 1867, but of a quite recent solemnundertaking, to which I have not noticed any reference. Art. 2 of TheHague Convention No. V. Of 1907, ratified by her in 1909, is to thefollowing effect:--

 "Belligerents are forbidden to move across the territory of a neutral Power troops or convoys, whether of munitions or of supplies. "

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 12 (1914). 

The true ground for objecting to the legality of the purchase by Turkeyof the German warships which have been forced to take refuge in herwaters is no doubt that stated by Sir William Scott in the _Minerva_, 6C. Rob. At p. 400--viz. That it would enable the belligerent to whomthe ships belong "so far to rescue himself from the disadvantage intowhich he has fallen as to have the value at least restored to him by aneutral purchaser. " The point is not touched upon in the (draft)Declaration of London. 

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

 _Cf. _ on the Declaration of Paris, _passim_, see Index; on the misuse of Declarations, _infra_, p. 92; on privateering, _supra_, pp. 80-84. 

THE DECLARATION OF PARIS

Sir, --The resuscitation, a few days ago, in the House of Commons of anold controversy reminds one of the mistaken procedure which made such acontroversy possible. It can hardly now be doubted that the rules setforth in the Declaration of Paris of 1856, except possibly theprohibition of privateering, have by general acceptance during sixtyyears, strengthened by express accessions on the part of so manyGovernments, become a portion of international law, and are thus bindingupon Great Britain, notwithstanding her omission to ratify theDeclaration. This omission is now seen to have been a mistake. So alsowas the description of the document as a "declaration. " Both mistakeswere repeated in 1868 with reference to the "Declaration" of St. Petersburg (as to explosive bullets). 

In those early attempts at legislation for the conduct of warfare itseems to have been thought sufficient that the conclusions arrived at byauthorised delegates should be announced without being embodied in atreaty. Surely, however, what purported to be international agreementsupon vastly important topics ought to have been accompanied by all theformalities required for "conventions, " and should have been soentitled. In later times this has become the general rule for theincreasingly numerous agreements which bear upon the conduct ofhostilities. Thus we have The Hague "conventions" of 1899 and 1907, andthe Geneva "convention" of 1906, all duly equipped with provisions forratification. Such provisions are also inserted in certain other recentagreements dealing with aerial bombardments, gases, and expandingbullets, which it has nevertheless pleased their contrivers tomisdescribe as "declarations. " Equally so misdescribed was the deceasedDeclaration of London, with a view, apparently, to suggesting, as wasfar from being the case, that it was a mere orderly statement ofuniversally accepted principles, creating no new obligations. 

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

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 13 (1916). 

THE DECLARATION OF PARIS

Sir, --If Mr. Gibson Bowles, whose courteous letter I have just beenreading, will look again at my letter of the 18th, I think he will seethat I there carefully distinguished between the Declaration of Paris, which, as is notorious, must be accepted as a whole or not at all, andthe rules set forth in it, "except, possibly, the prohibition ofprivateering, " which I thought, for the reasons which I stated, might betaken to have become a portion of International Law. 

I must be excused from following Mr. Bowles into a discussion of thebearing of those rules upon the Order in Council of March 11, 1915--alarge and delicate topic, which must be studied in elaborate dispatchesexchanged between this country and the United States. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 17 (1916). 

 * * * * *

SECTION 8

_Assassination_

THE NATAL PROCLAMATION

Sir, --It was reported a few days ago that the Natal Government hadoffered a reward for Bambaata, dead or alive. I have waited for astatement that no offer of the kind had been made, or that it had beenmade by some over-zealous official, whose act had been disavowed. Nosuch statement has appeared. On the contrary, we read that "the priceplaced upon the rebel's head has excited native cupidity. " It maytherefore be desirable to point out that what is alleged to have beendone is opposed to the customs of warfare, whether against foreignenemies or rebels. 

By Art. 28 (_b_) of The Hague Regulations, "it is especially prohibitedto kill or wound treacherously individuals belonging to the hostilenation or army": words which, one cannot doubt, would include not onlyassassination of individuals, but also, by implication, any offer for anindividual "dead or alive. " The Regulations are, of course, technicallybinding only between signatories of the convention to which they areappended; but Art. 28 (_b_) is merely an express enactment of awell-established rule of the law of nations. A recent instance of itsapplication occurred, before the date of The Hague Convention, duringoperations in the neighbourhood of Suakin. An offer by the BritishAdmiral of a reward for Osman Digna, dead or alive, was, if I mistakenot, promptly cancelled and disavowed by the home Government. 

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, April 17 (1906). 

 * * * * *

SECTION 9

_The Choice of Means of Injuring_

BULLETS IN SAVAGE WARFARE

Sir, --The Somaliland debate was sufficient evidence that The HagueConvention "respecting the laws and customs of war on land" is far moretalked about than read. Colonel Cobbe had, it appears, complained of thedefective stopping power, as against the foes whom he was encountering, of the Lee-Metford bullet. It is the old story that wounds inflicted bythis bullet cannot be relied on to check the onrush of a hardy andfanatical savage, though they may ultimately result in his death. Whereupon arises, on the one hand, the demand for a more effectiveprojectile, and, on the other hand, the cry that the proposed substituteis condemned by "the universal consent of Christendom"; or, inparticular, "by the Convention of The Hague, " which, as was correctlystated by Mr. Lee, prohibits only the use of arms which causesuperfluous injury. 

You print to-day two letters enforcing the view of the inefficiencyagainst savages of the ordinary service bullet. Perhaps you will findspace for a few words upon the question whether the employment for thispurpose of a severer form of projectile, such as the Dum Dum bullet, would be a contravention of the "laws of war. "

The law of the subject, as embodied in general international nationalagreements, is to be found in four paragraphs; to which, be it observed, nothing is added by the unwritten, or customary, law of nations. Ofthese paragraphs, which I shall set out textually, three affirm generalprinciples, while the fourth contains a specific prohibition. Thegeneral provisions are as follows:--

 "The progress of civilisation should have the effect of alleviating as much as possible the calamities of war. The only legitimate object which States should set before themselves during war is to weaken the military forces of the enemy. For this purpose it is sufficient to disable the greatest possible number of men. This object would be exceeded by the employment of arms which would uselessly aggravate the sufferings of disabled men or render their death inevitable. The employment of such arms would, therefore, be contrary to the laws of humanity. " (St. Petersburg Declaration, 1868. Preamble. )

 "The right of belligerents to adopt means of injuring the enemy is not unlimited. " (Hague _Règlement_, Art. 22. )

 "Besides the prohibitions provided by special conventions [the Declaration of St. Petersburg alone answers to this description] it is in particular prohibited (_e_) to employ arms, projectiles, or material of a nature to cause superfluous injury. " (_Ib. _ Art. 23. )

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

 "Engage mutually to renounce, in case of war among themselves, the employment by their military or naval forces of any projectile of a weight below 400 grammes which is either explosive or charged with fulminating or inflammable substances. "

No one, so far as I am aware, has any wish to employ a bullet weighingless than 14 oz. Which is either explosive or charged as above. So far, therefore, as the generally accepted laws of warfare are concerned, theonly question as to the employment of Dum Dum or other expanding bulletsis whether they "uselessly aggravate the sufferings of disabled men, orrender their death inevitable"; in other words, whether they are "of anature to cause superfluous injury. " It is, however, probable thatpeople who glibly talk of such bullets being "prohibited by The HagueConvention" are hazily reminiscent, not of the _Règlement_ appended tothat convention, but of a certain "Declaration, " signed by the delegatesof many of the Powers represented at The Hague in 1899, to the effectthat--

 "The contracting Powers renounce the use of bullets which expand or flatten easily in the human body, such as bullets with a hard casing, which does not entirely cover the core, or is pierced with incisions. "

To this declaration neither Great Britain nor the United States areparties, and it is waste-paper, except for Powers on whose behalf it hasnot only been signed, but has also been subsequently ratified. 

I am, Sir, your obedient servant, T. E. HOLLAND. Athenæum Club, May 2 (1903). 

 The Declaration last mentioned (No. 3 of the first Peace Conference) is now something more than waste paper, having been generally ratified. Great Britain, on August 17, 1907, at the fourth plenary sitting of the Second Peace Conference, announced her adhesion to it, as also to the, also generally ratified, Declaration No. 2 of 1899, which forbids the employment of projectiles constructed solely for the diffusion suffocating or harmful gases. 

 The provisions of Arts. 22 and 23 (_e_) of the _Règlement_ annexed to The Hague Convention of 1899 "concerning the Laws and Customs of War on Land, " as quoted in the letter, have been textually reproduced in Arts. 22 and 23 (_e_) of the _Règlement_ annexed to the Hague Convention, No. Iv. Of 1907, on the same subject, ratified by Great Britain on November 27, 1909. 

 The written agreements as to the choice of weapons may be taken therefore to start from the general principles laid down in the preamble to the Declaration of St. Petersburg (though held by some Powers to err in the direction of liberality), and in Arts. 22 and 23 (_e_) of The Hague _Règlements_. The specially prohibited means of destruction are, by the Declaration of St. Petersburg, explosive bullets; by The Hague _Règlements_, Art. 23 (_a_) poison or poisoned arms; by The Hague Declarations of 1898, Nos. 2 and 3, "projectiles the sole object of which is the diffusion of asphyxiating or harmful gases, " and "bullets which expand or flatten easily in the human body, such as bullets with a hard casing, which does not entirely cover the core, or is pierced with incisions. " As to Declaration No. 1, _cf. Supra_, p. 22. It must be remarked that the Declarations of St. Petersburg and of The Hague, unlike The Hague Règlements, apply to war at sea, as well as on land. 

 _Cf. Supra_, p. 22, and see the author's _The Laws of War on Land (written and unwritten)_, 1908, pp. 40-43. 

GASES

Sir, --The weightily signed medical protest which you publish thismorning will be widely welcomed. The German employment of poisonousgases for military purposes, which the Allies were obliged, reluctantly, though necessarily, to reciprocate, was, of course, prohibited byinternational Acts to which Germany is a party. Not only does theDeclaration of 1899 specifically render unlawful "the use of projectilesthe sole object of which is the diffusion of asphyxiating or harmfulgases, " but the Hague Conventions of 1899 and 1907 both forbid, ingeneral terms, the employment of "(_a_) poison or poisoned arms, " "(_c_)arms, projectiles, or material of a nature to cause superfluoussuffering. " The United States, like the rest of the world, are a partyto the two Conventions, and would doubtless, after the experiences ofrecent years, no longer hesitate, as hitherto, to adhere to theDeclaration of 1899; in accordance with Admiral Mahan's view at thatdate, to the effect that "the effect of gas shells has yet to beascertained, " and, in particular, "whether they would be more, or less, merciful than missiles now available. "

The prohibition ought, no doubt, to be renewed and, if possible, strengthened; but this is surely not, as your correspondents suggest, work for the Peace Congress. The rules for naval warfare set out in theDeclaration of Paris of 1856 form no part of the Treaty of Paris of thatyear. 

I venture to make a similar remark with reference to any discussion bythe Peace Congress of "the freedom of the seas, " a topic unfortunatelyincluded by President Wilson among his "14 points. " The peace delegateswill be concerned with questions of regroupings of territory, penalties, and reparation. The rehabilitation and revision of international law isa different business, and should be reserved for a subsequentconference. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 29 (1918). 

 * * * * *

SECTION 10

_The Geneva Convention_

 As far back as the year 1870, the Society for the Prevention of Cruelty to Animals exerted itself to induce both sides in the great war then commencing to make some special provision for relieving, or terminating, the sufferings of horses wounded in battle. 

 In 1899 it made the same suggestion to the British War Office, but the reply of the Secretary of State was to the effect that "he is informed that soldiers always shoot badly wounded horses after, or during, a battle, whenever they are given time to do so, _i. E. _ whenever the operation does not involve risk to human life. He fears that no more than this can be done unless and until some international convention extends to those who care for wounded animals the same protection for which the Geneva Convention provides in the case of men; and he would suggest that you should turn your efforts in that direction. "

 Thereupon, Mr. Lawrence Pike, on November 23, addressed to _The Times_ the letter which called forth the letter which follows. 

WOUNDED HORSES IN WAR

Sir, --Everyone must sympathise with the anxiety felt by Mr. L. W. Pike todiminish the sufferings of horses upon the field of battle. How far anysystematic alleviation of such sufferings may be compatible with theexigencies of warfare must be left to the decision of military experts. In the meantime it may be as well to assure Mr. Pike that the GenevaConvention of 1864 has nothing to do with the question, relating, as itdoes, exclusively to the relief of human suffering. This is equally thecase with the second Geneva Convention, which Mr. Pike is right insupposing never to have been ratified. He is also right in supposingthat "the terms of the convention are capable of amendment from time totime, " but wrong in supposing that they can be amended "by the settingup of precedents. " The convention can be amended only by a newconvention. 

It is not the case that Art. 7 of the convention, which merely confidesto commanders-in-chief, under the instructions of their respectiveGovernments, "les détails d'exécution de la présente convention, " givesthem any authority to extend its scope beyond what is expressly statedto be its object--viz. "l'amélioration du sort des militaires blessésdans les armées en campagne. " While, however, the Geneva Convention, does not contemplate the relief of animal suffering, it certainly cannotbe "set up as a bar" to the provision of such relief. Commanders who maysee their way to neutralising persons engaged in the succour orslaughter of wounded horses would be quite within their powers inentering into temporary agreements for that purpose. 

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

Your obedient servant, T. E. HOLLAND. Oxford, November 27 (1899). 

 The "second Geneva Convention, " above mentioned, was the "Projet d'Articles additionnels, " signed on October 20, 1868, but never ratified. 

 Art. 21 of the _Règlement_ annexed to The Hague Convention of 1899 as to the "Laws and Customs of War on Land, " stating that "the obligations of belligerents, with reference to the care of the sick and wounded, are governed by the Convention of Geneva of August 22, 1864, subject to alterations which may be made in it, " is now represented by Art. 21 of The Hague _Règlement_ of 1907, which mentions "the Convention of Geneva, " without mention of any date, or of possible alterations. The Convention intended in this later _Règlement_ is, of course, that of 1906, for the numerous Powers which have already ratified it, since for them it has superseded that of 1864. The British ratification, of April 16, 1907, was subject to a reservation, the necessity for which was intended to be removed by 1 & 2 Geo. 5, c. 20, as to which, see _supra_, p, 37. The later is somewhat wider in scope than the earlier Convention, its recital referring to "the sick, " as well as to the wounded, and its first article naming not only "les militaires, " but also "les autres personnes officiellement attachées aux armées. "

 With a view to the expected meeting of the Conference by which the Convention was signed in 1906, Mr. Pike and his friends again, in 1903, pressed upon the British Government their desire that the new Convention should extend protection to persons engaged in relieving the sufferings of wounded horses. The British delegates to the Conference, however, who had already been appointed, and were holding meetings in preparation for it, were not prepared to advise the insertion of provisions for this purpose in the revised Convention of Geneva. 

 "The principles of the Geneva Convention" of 1864 were applied to naval warfare by The Hague Convention No. Iii. Of 1899, and those of the Geneva Convention of 1906 by The Hague Convention No. X. Of 1907 respectively. Both were ratified by Great Britain. Cf. _supra_, Chapters ii. And iv. 

 * * * * *

SECTION 11

_Enemy Property in Occupied Territory_

 By Art. 55 of The Hague _Règlement_ of 1899, which reproduces Art. 7 of the Brussels _Projet_, and is repeated as Art. 55 of the _Règlement_ of 1907: "The occupying State shall regard itself as being only administrator and usufructuary of the public buildings, immoveable property, forests and agricultural undertakings belonging to the hostile State and situated in the hostile country. It must protect the substance of these properties and administer them according to the rules of usufruct. "

 The following letter touches incidentally upon the description of the rights of an invader over certain kinds of State property in the occupied territory as being those of a "usufructuary. "

INTERNATIONAL "USUFRUCT"

Sir, --The terminology of the law of nations has been enriched by a newphrase. We are all getting accustomed to "spheres of influence. " We havebeen meditating for some time past upon the interpretation to be putupon "a lease of sovereign rights. " But what is an international"usufruct"? The word has, of course, a perfectly ascertained sense inRoman law and its derivatives; but it has been hitherto employed, during, perhaps two thousand years, always as a term of privatelaw--_i. E. _ as descriptive of a right enjoyed by one private individualor corporation over the property of another. It is the "ius utendifruendi, salva rerum substantia. " The usufructuary of land not merelyhas the use of it, but may cut its forests and work its mines, so longas he does not destroy the character of the place as he received it. Hisinterest terminates with his life, though it might also be granted tohim for a shorter period. If the grantee be a corporation, in order toprotect the outstanding right of the owner an artificial limit isimposed upon the tenure--e. G. In Roman law 100 years, by the FrenchCode 30 years. For details it may suffice to refer to the Institutes ofJustinian, II. 4; the Digest, VII. 1; the Code Civil, sects. 573-636;the new German Civil Code, sects. 1030-1089. 

It remains to be seen how the conception of "usufruct" is to be importedinto the relations of sovereign States, and, more especially, what areto be the relations of the usufructuary to States other than the Stateunder which he holds. It is, of course, quite possible to adapt theterms of Roman private law to international use. "Dominium, ""Possessio, " "Occupatio, " have long been so adapted, but it has yet tobe proved that "Usufructus" is equally malleable. I can recall no otheruse of the term in international discussions than the somewhatrhetorical statement that an invader should consider himself as merelythe "usufructuary" of the resources of the country which he is invading;which is no more than to say that he should use them "en bon père defamille. " It will be a very different matter to put a strict legalconstruction upon the grant of the "usufruct" of Port Arthur. By way ofhomage to the conception of such a grant, as presumably creating at theoutside a life-interest, Russia seems to have taken it, in the firstinstance, only for twenty-five years. One may, however, be pardoned forsharing, with reference to this transaction, the scruples which werefelt at Rome as to allowing the grant of a usufruct to acorporation--"periculum enim esse videbatur, ne perpetuus fieret. "

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 30 (1898). 

P. S. --It would seem from M. Lehr's _Éléments du droit civil Russe_ that"usufruct" is almost unknown to the law of Russia, though a restrictedform of it figures in the code of the Baltic provinces. 

 It is certain that, apart from general conventions, international law imposes no liability on an invader to pay for requisitioned property or services, or to honour any receipts which he may have given for them. 

 The Hague Convention of 1899 made no change in this respect. Arts. 51 and 52 of the _Règlement_ annexed to the Convention direct, it is true, that receipts should be given for contributions ("un reçu sera délivré aux contribuables") also for requisitions in kind, if not paid for ("elles seront constatées par des reçus"), but these receipts were to be merely evidence that money or goods have been taken, and it was left an open question, by whom, if at all, compensation was to be made or the losses thus established. 

 The _Règlement_ of 1907 is more liberal than that of 1899 with reference to requisitioned property (though not with reference to contributions). By the new Art. 52, "supplies furnished in kind shall be paid for, so far as possible, on the spot. If not, they shall be vouched for (_constatées_) by receipts, and payment of the sums due shall be made as soon as may be. " The Hague Convention mentioned in the following letter is, of course, that of 1899. 

REQUISITIONS IN WARFARE

Sir, --A few words of explanation may not be out of place with referenceto a topic touched upon last night in the House of Commons--viz. Theliability of the British Government to pay for stock requisitionedduring the late war from private enemy owners. It should be clearlyunderstood that no such liability is imposed by international law. Thecommander of invading forces may, for valid reasons of his own, pay cashfor any property which he takes, and, if he does not do so, is nowadaysexpected to give receipts for it. These receipts are, however, not inthe nature of evidence of a contract to pay for the goods. They areintended merely to _constater_ the fact that the goods have beenrequisitioned, with a view to any indemnity which may eventually begranted to the sufferers by their own Government. What steps should betaken by a Government towards indemnifying enemies who have subsequentlybecome its subjects, as is now happily the case in South Africa, is aquestion not of international law, but of grace and favour. 

An article in the current number of the _Review of Reviews_, to which myattention has just been called, contains some extraordinary statementsupon the topic under discussion. The uninformed public is assured that"we owe the Boers payment in full for all the devastation which we haveinflicted upon their private property ... It is our plain legalobligation, from the point of view of international law, to pay it tothe last farthing. " Then The Hague Convention is invoked as permittinginterference with private property "only on condition that it is paidfor in cash by the conqueror, and, if that is not possible at themoment, he must in every case give a receipt, which he must discharge atthe conclusion of hostilities. " There is no such provision as tohonouring receipts in this much-misquoted convention. 

Your obedient servant, T. E. HOLLAND. Oxford, July 30 (1962). 

 * * * * *

SECTION 12

_Enemy Property at Sea_

PRIVATE PROPERTY AT SEA

Sir, --The letter which you print this morning from Mr. Charles Stewartcan hardly be taken as a serious contribution to the discussion of aquestion which has occupied for many years the attention of politicians, international lawyers, shipowners, traders, and naval experts. Mr. Stewart actually thinks that Lord Sydenham's argument to the effect that"the fear of the severe economic strain which must result from thestoppage of a great commerce is a factor which makes for peace" may befairly paraphrased as advice to "retain the practice because it is sobarbarous that it will sicken the enemy of warfare. " He goes on to saythat this argument "would apply equally to the poisoning of wells and tothe use of explosive bullets. "

It may be worth while to contrast with the attitude of a writer whoseems unable to distinguish between economic pressure and physicalcruelty that taken up by a competent body, the large majority of themembers of which belong to nations which, for various reasons, inclineto the abolition of the usage in question. The Institut de DroitInternational, encouraged by the weight attached to its _Manual of theLaw of War on Land_ by the first and second Peace Conferences, has been, for some time past, working upon a _Manual of the Laws of War at Sea_. At its Christiania meeting in 1912 the Institut, while maintaining thepreviously expressed opinion of a majority of its members in favour of achange in the law, recognised that such a change has not yet come topass, and that, till it occurs, regulations for the exercise of captureare indispensable, and directed the committee charged with the topic todraft rules presupposing the right of capture, and other rules to beapplied should the right be hereafter surrendered (_Annuaire_, t. Xxv. , p. 602). 

The committee accordingly prepared a draft, framed in accordance withthe existing practice, to the discussion of which the Institut devotedthe whole of its recent session at Oxford, eventually giving its_imprimatur_ to a Manual of the law of maritime warfare, as between thebelligerents, in 116 articles. As opportunity serves, the committee willprepare a second draft, proceeding upon the hypothesis that the right ofcapturing private property at sea has been surrendered, which, in itsturn, will be debated, word for word, by the Institut de DroitInternational. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 4 (1913). 

 * * * * *

SECTION 13

_Martial Law_

 The first of the letters which follow has reference to the case of two Boer prisoners who, having taken the oath of neutrality on the British occupation of Pretoria, attempted to escape from the town. Both were armed, and one of them fired upon and wounded a sentinel who called upon them to stop. They were tried by court-martial, condemned to death, and shot on June 11, 1901. The Hague Convention quoted in the letter is that of 1899, but the same Art. 8 figures in the Convention of 1907. 

 The second and third of these letters relate to a question of English public law, growing out of the exercise of martial law in British territory in time of war. One Marais, accused of having contravened the martial law regulations of May 1, 1901, was imprisoned in Cape Colony by military authority, and the Supreme Court at the Cape held that it had no authority to order his release. The Privy Council refused an application for leave to appeal against this decision, saying that "no doubt has ever existed that, when war actually prevails, the ordinary courts have no jurisdiction over the action of the military authorities"; adding that "the framers of the Petition of Right knew well what they meant when they made a condition of peace the ground of the illegality of unconstitutional procedure" (_Ex parte_ D. F. Marais, [1902] A. C. 109). Thereupon arose a discussion as to the extent of the prohibition of the exercise of martial law contained in the Petition of Right; and Mr. Edward Jenks, in letters to _The Times_ of December 27, 1901, and January 4, 1902, maintained that the prohibition in question was not confined to time of peace. 

 The last letter deals with the true character of a Proclamation of Martial Law, and was suggested by the refusal of the Privy Council, on April 2, 1906, to grant leave to appeal from sentences passed in Natal by court-martial, in respect of acts committed on February 8, 1906, whereby retrospective effect had, it was alleged, been given to a proclamation not issued till the day after the acts were committed, _See_ Mcomini Mzinelwe and Wanda _v. _ H. E. The Governor and the A. G. For the Colony of Natal, 22 _Times Law Reports_, 413. 

THE EXECUTIONS AT PRETORIA

Sir, --No doubt is possible that by international law, as probably byevery system of national law, all necessary means, including shooting, may be employed to prevent the escape of a prisoner of war. The questionraised by the recent occurrence at Pretoria is, however, a differentone--viz. What are the circumstances in connection with an attempt toescape which justify execution after trial by court-martial of thepersons concerned in it? This question may well be dealt with a partfrom the facts, as to which we are as yet imperfectly informed, whichhave called for Mr. Winston Churchill's letter. With the arguments ofthat letter I in the main agree, but should not attach so muchimportance as Mr. Churchill appears to do to a chapter of the British_Manual of Military Law_, which, though included in a Governmentpublication, cannot be taken as official, since it is expressly stated"to have no official authority" and to "express only the opinions of thecompiler, as drawn from the authorities cited. "

I propose, without comment, to call attention to what may be found uponthis subject in conventional International Law, in one or tworepresentative national codes, and in the considered judgment of theleading contemporary international lawyers. 

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

 "ARTICLE 8. --Prisoners of war shall be subject to the laws, regulations, and orders in force in the army of the State into whose hands they have fallen. Any act of insubordination warrants the adoption as regards them of such measures of severity as may be necessary. Escaped prisoners, recaptured before they have succeeded in rejoining their army, or before quitting the territory occupied by the army that captured them, are liable to disciplinary punishment. Prisoners who after succeeding in escaping are again taken prisoners are not liable to any punishment for their previous flight. "

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

 "ARTICLE 12. --Any prisoner of war who is liberated on parole and recaptured bearing arms against the Government to which he had pledged his honour, or against the allies of that Government, forfeits his right to be treated as a prisoner of war, and can be put on his trial. "

II. The United States Instructions:--

 "ARTICLE 77. --A prisoner of war may be shot or otherwise killed in his flight; but neither death nor any other punishment shall be inflicted on him simply for his attempt.... If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously punished even with death, &c. "

 "ARTICLE 78. --If prisoners of war, having given no pledge nor made any promise on their honour, forcibly or otherwise, escape, and are captured again in battle, having rejoined their own army, they shall not be punished for their escape. "

 "ARTICLE 124. --Breaking the parole is punished with death when the person breaking the parole is captured again. "

_Cf. _ the French _Code de Justice Militaire_, Art. 204, and otherContinental codes to the same effect. 

III. The _Manuel des Lois de la guerre sur terre_ of the Institute ofInternational Law lays down:--

 "ARTICLE 68. --Si le fugitif ressaisi[B] ou capturé de nouveau avait donne sa parole de ne pas s'évader, il peut être privé des droits de prisonnier de guerre. "

 "ARTICLE 78. --Tout prisonnier libéré sur parole et repris portant les armes contre le gouvernement auquel il l'avait donnée, peut être privé des droits de prisonnier de guerre, à moins que, postérieurement à sa liberation, il n'ait été compris dans un cartel d'échange sans conditions. "

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, June 17 (1901). 

THE PETITION OF RIGHT

Sir, --This is, I think, not a convenient time, nor perhaps are yourcolumns the place, for an exhaustive discussion of the interpretationand application of the Petition of Right. It may, however, be just worthwhile to make the following remarks, for the comfort of any who may havebeen disquieted by the letter addressed to you by my friend Mr. Jenks:--

1. Although, as is common knowledge, the words "in time of peace, " sofamiliar in the Mutiny Acts from the reign of Queen Anne onwards, do notoccur in the Petition, they do occur, over and over again, in thearguments used in the House of Commons by "the framers of the Petitionof Right, " to employ the phraseology of the judgment recently deliveredin the Privy Council by the Lord Chancellor. 

2. The prohibition contained in the Petition, so far from being"absolute and unqualified, " is perfectly specific. It refers expresslyto "Commissions of like nature" with certain Commissions latelyissued:--

 "By which certain persons have been assigned and appointed Commissioners, with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever, and by such summary course and order as is agreeable to martial law, and is used in armies in time of war, &c. "

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

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

4. A war carried on at a distance from the English shore as was the warwith France in 1628, did not produce such a state of things as wasdescribed by the advocates of the Petition as "a time of war. " "We havenow no army in the field, and it is no time of war, " said Mason in thecourse of the debates. "If the Chancery and Courts of Westminster beshut up, it is time of war, but if the Courts be open, it is otherwise;yet, if war be in any part of the Kingdom, that the Sheriff cannotexecute the King's writ, there is _tempus belli_, " said Rolls. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 31 (1901). 

THE PETITION OF RIGHT

Sir, --In a letter which you allowed me to address to you a few days ago, I dealt with two perfectly distinct topics. 

In the first place I pointed out that the words occurring in a recentjudgment of the Privy Council, which were cited by Mr. Jenks as a clearexample of an assumption "that the Petition of Right, in prohibiting theexercise of martial law, restricted its prohibition to time of peace, "imply, as I read them, no assumption as to the meaning of that document, but merely contain an accurate statement of fact as to the line ofargument followed by the supporters of the Petition in the House ofCommons. Can Mr. Jenks really suppose that in making this remark I was"appealing from the 'text of the Petition' to the debates inParliament"?

I then proceeded to deal very shortly with the Petition itself, showingthat while it neither condemns nor approves of the application ofmartial law in time of war (see Lord Blackburn's observations in R. _v. _Eyre), the prohibition contained in its martial law clauses, so far frombeing "absolute and unqualified, " relates exclusively to "commissions oflike nature" with certain commissions which had been lately issued (at atime which admittedly, for the purposes of this discussion, was not "atime of war"), the text of which is still preserved, and the characterof which is set forth in the Petition itself, as having authorisedproceedings within the land, "according to the justice of martial law, against such soldiers or mariners, " as also against "such otherdissolute persons joining with them, " &c. The description of thesecommissions, be it observed, is not merely introduced into the Petitionby way of recital, but is incorporated by express reference into theenacting clause. 

Thus much and no more I thought it desirable to say upon these twotopics by way of dissent from a letter of Mr. Jenks upon the subject. Ina second letter Mr. Jenks rides off into fresh country. I do not proposeto follow him into the history of the conferences which took place inMay, 1628, after the framing of the Petition of Right, except to remarkthat what passed at these conferences is irrelevant to theinterpretation to be placed upon the Petition, and, if relevant, wouldbe opposed to Mr. Jenks's contention. It is well known that the Lordspressed the Commons to introduce various amendments into the Petitionand to add to it the famous reservation of the "sovereign power" of theKing. One of the proposed amendments referred, as Mr. Jenks says, tomartial law, forbidding its application to "any but soldiers andmariners, " or "in time of peace, or when your Majesty's Army is not onfoot. " The Commons' objection to this seems to have been that it wasboth unnecessary and obscurely expressed. "Their complaint is againstcommissions in time of peace. " "It may be a time of peace, and yet hisMajesty's Army may be on foot, and that martial law was not lawful herein England in time of peace, when the Chancery and other Courts do sit. ""They feared that this addition might extend martial law to the trainedbands, for the uncertainty thereof. " The objections of the Commons were, however, directed not so much to the amendments in detail as to anytampering with the text of the Petition. "They would not alter any partof the Petition" (nor did they, except by expunging two words alleged tobe needlessly offensive), still less would they consent to add to it thereservation as to the "sovereign power" of the King. 

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

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, January 8 (1902). 

MARTIAL LAW IN NATAL

Sir, --It seems that in the application made yesterday to the JudicialCommittee of the Privy Council, on behalf of Natal natives undersentence of death, much stress was laid upon the argument that aproclamation of martial law cannot have a retrospective application. Youwill, perhaps, therefore allow me to remind your readers that, so farfrom the date of the proclamation having any bearing upon the merits ofthis painful case, the issue of any proclamation of martial law, in aself-governing British colony, neither increases nor diminishes thepowers of the military or other authorities to take such steps as theymay think proper for the safety of the country. If those steps wereproperly taken they are covered by the common law; if they have exceededthe necessities of the case they can be covered only by an Act ofIndemnity. The proclamation is issued merely, from abundant caution, asa useful warning to those whom it may concern. 

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

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

 * * * * *

SECTION 14

_The Naval Bombardment of Open Coast Towns_

 The four letters which first follow were suggested by the British Naval Manoeuvres of 1888, during which operations were supposed to be carried on, by the squadron playing the part of a hostile fleet, which I ventured to assert to be in contravention of international law. Many letters were written by naval men in a contrary sense, and the report of a committee of admirals appointed to consider, among other questions, "the feasibility and expediency of cruisers making raids on an enemy's coasts and unprotected towns for the purpose of levying contributions, " was to the effect that "there can be no doubt about the feasibility of such operations by a maritime enemy possessed of sufficient power; and as to the expediency, there can be as little doubt but that any Power at war with Great Britain will adopt every possible means of weakening her enemy; and we know of no means more efficacious for making an enemy feel the pinch of war than by thus destroying his property and touching his pocket. " (_Parl. Paper_, 1889 [c. 5632], pp. 4, 8. ) The supposed hostile squadron had, it seems, received express instructions "to attack any port in Great Britain. " (See more fully in the writer's _Studies in International Law_, 1898, p. 96. ) The fifth letter was suggested by a Russian protest against alleged Japanese action in 1904. 

 The subsequent history of this controversy, some account of which will be found at the end of this section, has, it is submitted, established the correctness of the views maintained in it. 

NAVAL ATROCITIES

Sir, --I trust we may soon learn on authority whether or no the enemiesof this country are conducting naval hostilities in accordance with therules of civilised warfare. I read with indignation that the _Spider_has destroyed Greenock; that she announced her intention of "blowingdown" Ardrossan; that she has been "shelling the fine marine residencesand watering-places in the Vale of Clyde. " Can this be true, and wasthere really any ground for expecting that "a bombardment of the outsidecoast of the Isle of Wight" would take place last night?

Your obedient servant, T. E. HOLLAND. Athenæum Club, August 7 (1888). 

THE NAVAL MANOEUVRES

Sir, --In a letter which I addressed to you on the 7th inst. I venturedto point out the discrepancy between the proceedings of certain vesselsbelonging to Admiral Tryon's fleet and the rules of civilised warfare. Your correspondent on board Her Majesty's ship _Ajax_ yesterday told ussomething of the opinion of the fleet as to the bombardment andransoming of defenceless seaboard towns, going on to predict that, in awar in which England should be engaged, privateers would again be asplentiful as in the days of Paul Jones, and assuring us that in such awar "not the slightest respect would be paid to old-fashioned treaties, protocols, or other diplomatic documents. " Captain James appears, fromhis letter which you print to-day, to be of the same opinion as thefleet, with reference both to bombardments and to privateers; telling usalso in plain language that "the talk about international law is allnonsense. "

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

1. I need hardly say that I do not, as Captain James supposes, contend"that unfortified towns will never be bombarded or ransomed. "International law has never prohibited, though it has attempted torestrict, the bombardment of such towns. Even in 1694 our Governmentdefended the destruction of Dieppe, Havre, and Calais only as a measureof retaliation, and in subsequent naval wars operations of this kindhave been more and more carefully limited, till in the Crimean war ourcruisers were careful to abstain from doing further damage than wasinvolved in the confiscation or destruction of stores of arms andprovisions. The principles involved were carefully considered by themilitary delegates of all the States of Europe at the BrusselsConference of 1874, and their conclusions, which apply, I conceive, _mutatis mutandis_, to operations conducted by naval forces againstplaces on land, are as follows:--

 "ARTICLE 15. --Fortified places are alone liable to be besieged. Towns, agglomerations of houses, or villages which are open or undefended cannot be attacked or bombarded. "

 "ARTICLE 16. --But if a town, &c. , be defended, the commander of the attacking forces should, before commencing a bombardment, and except in the case of surprise, do all in his power to warn the authorities. "

 "ARTICLE 40. --As private property should be respected, the enemy will demand from parishes or the inhabitants only such payments and services as are connected with the necessities of war generally acknowledged, in proportion to the resources of the country. "

 "ARTICLE 41. --The enemy in levying contributions, whether as equivalents for taxes or for payments which should be made in kind, or as fines, will proceed, as far as possible, according to the rules of the distribution and assessment of the taxes in force in the occupied territory. Contributions can be imposed only on the order and on the responsibility of the general in chief. "

 "ARTICLE 42. --Requisitions shall be made only by the authority of the commandant of the locality occupied. "

These conclusions are substantially followed in the chapter on the"Customs of War" contained in the _Manual of Military Law_ issued forthe use of officers by the British War Office. 

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

2. Is it the case that international law is "all nonsense, " and that"when we are at war with an enemy he will do his best to injure us: hewill do so in what way he thinks proper, all treaties and all so-calledinternational law notwithstanding"? Are we, with Admiral Aube, to speakof "cette monstrueuse association de mots: les droits de la guerre"? Ifso, _cadit quæstio_, and a vast amount of labour has been wasted duringthe last three centuries. I can only say that such a view of the futureis not in accordance with the teachings of the past. The body ofaccepted usage, supplemented by special conventions, which is known asinternational law, has, as a matter of fact, exercised, even in time ofwar, a re staining influence on national conduct. This assertion mightbe illustrated from the discussions which have arisen during recent warswith reference to the Geneva Conventions to the treatment of the woundedand the St. Petersburg declaration against the use of explosive bullets. The binding obligation of these instruments, which would doubtless beclassed by your correspondent with the fleet among "old-fashionedtreaties, protocols, and other diplomatic documents, " has never beendoubted, while each party has eagerly endeavoured to disprove allegedinfractions of them. 

The naval manoeuvres have doubtless taught many lessons of practicalseamanship. They will have done good service of another sort if theyhave brought to the attention of responsible statesmen such questions asthose with which I have attempted to deal. It is essential that thecountry should know the precise extent of the risks to which ourseaboard towns will be exposed in time of war, and it is desirable thatour naval forces should be warned against any course of action, in theirconduct of mimic warfare, which could be cited against us, in case weshould ever have to complain of similar action on the part of a realenemy. 

Your obedient servant, T. E. HOLLAND. Oxford, August 18 (1888). 

THE NAVAL MANOEUVRES

Sir, --In my first letter I called attention to certain operations of the_Spider_ and her consorts which seemed to be inspired by no principlebeyond that of doing unlimited mischief to the enemy's seaboard. In asecond letter I endeavoured to distinguish between the mischief whichwould and that which would not be regarded as permissible in civilisedwarfare. The correspondence which has subsequently appeared in yourcolumns has made sufficiently clear the opposition between the viewwhich seems to find favour just now in naval circles and the principlesof international law, as I have attempted to define them. The questionbetween my critics and myself is, in effect, whether the mediæval or themodern view as to the treatment of private property is to prevail. According to the former, all such property is liable to be seized ordestroyed, in default of a "Brandschatz, " or ransom. According to thelatter, it is inviolable, subject only to certain well-definedexceptions, among which reasonable requisitions of supplies would berecognised, while demands of money contributions, as such, would not berecognised. 

The evidence in favour of the modern view being what I have stated it tobe is, indeed, overwhelming; but I should like to call special attentionto the _Manuel de Droit International à l'Usage des Officiers de l'Arméede Terre_, issued by the French Government, as going even further thanthe Brussels Conference in the restrictions which it imposes upon thelevying of requisitions and contributions. The Duke of Wellington, whoused to be thought an authority in these matters, wrote in 1844, withreference to a pamphlet in which the Prince de Joinville had advocateddepredations on the English coasts:--

 "What but the inordinate desire of popularity could have induced a man in his station to write and publish an invitation and provocation to war, to be carried on in a manner such as has been disclaimed by the civilised portions of mankind?"

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

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

It is a further question whether the rules of international law on thispoint are to be changed or disregarded in future. Do we expect, and arewe desirous, that future wars shall be conducted in accordance withbuccaneering precedent, or with what has hitherto been the generalpractice of the nineteenth century? Your naval correspondents incline torevert to buccaneering and thus to the introduction into naval coastoperations of a rigour long unknown to the operations of military forceson land; but they do so with a difference. Lord Charles Beresford(writing early in the controversy) asserts the permissibility ofransoming and destroying, without any qualifying expressions; whileAdmiral de Horsey would apparently only ask "rich" towns forcontributions, insisting also that a contribution must be "reasonable, "and expressly repudiating any claim to do "wanton injury to property ofpoor communities, and still less to individuals. " In the light of theseconcessions, I venture to claim Admiral de Horsey's concurrence in mycondemnation of most of the doings mentioned in my first letter, although on the whole he ranges himself on the side of the advocates ofwhat I maintain to be a change in the existing law of war. Whether or nothe existing law needs revision is a question for politicians and formilitary and naval experts. It is within my province only to express ahope that the contradiction between existing law and new militarynecessities (if, indeed, such contradiction exists) will not be solvedby a repudiation of all law as "nonsense"; and, further, that, if achange of law is to be effected, it will be done with due deliberationand under a sense of responsibility. It should be remembered thatoperations conducted with the apparent approval of the highest navalauthorities, and letters in _The Times_ from distinguished admirals, arein truth the stuff that public opinion, and in particular thatdepartment of public opinion known as "international law, " is made of. 

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

I am, your obedient servant, T. E. HOLLAND. Llanfairfechan, August 27 (1888). 

NAVAL BOMBARDMENTS OF UNFORTIFIED PLACES

Sir, --The protest reported to have been lodged by the Russian Governmentagainst the bombardment by the Japanese fleet of a quarantine station onthe island of San-shan-tao, apart from questions of fact, as to which wehave as yet no reliable information, recalls attention to a question ofinternational law of no slight importance--viz. Under what, if any, circumstances it is permissible for a naval force to bombard an "open"coast town. 

In the first place, it may be hardly necessary to point out theirrelevancy of the reference, alleged to have been made in the RussianNote, to "Article 25 of The Hague Convention. " The Convention and the_Règlement_ annexed to it are, of course, exclusively applicable to "laguerre sur terre. " Not only, however, would any mention of a navalbombardment have been out of place in that _Règlement_, but a proposalto bring such action within the scope of its 25th Article, whichprohibits "the attack or bombardment of towns, villages, habitations, orbuildings which are not defended, " was expressly negatived by theConference of The Hague. It became abundantly clear, during thediscussion of this proposal, that the only chance of an agreement beingarrived at was that any allusion to maritime warfare should be carefullyavoided. It was further ultimately admitted, even by the advocates ofthe proposal, that the considerations applicable to bombardments by anarmy and by a naval force respectively are not identical. It was, forinstance, urged that an army has means other than those which may alonebe available to a fleet for obtaining from an open town absolutelyneedful supplies. The Hague Conference, therefore, left the matter whereit found it, recording, however, among its "pious wishes" (_voeux_)one to the effect "that the proposal to regulate the question of thebombardment of ports, towns, and villages by a naval force should bereferred for examination to a future conference. "

The topic is not a new one. You, Sir, allowed me to raise it in yourcolumns with reference to the naval manoeuvres of 1888, when acontroversy ensued which disclosed the existence of a considerableamount of naval opinion in favour of practices which I ventured to thinkin contravention of international law. It was also thoroughly debated in1896 at the Venice meeting of the Institut de Droit International upon areport drafted by myself, as chairman of a committee appointed a yearpreviously. This report lays down that the restrictions placed byinternational law upon bombardments on land apply also to those effectedfrom the sea, except that such operations are lawful for a naval forcewhen undertaken with a view to (1) obtaining supplies of which it is inneed; (2) destroying munitions of war or warships which may be in aport; (3) punishing, by way of reprisal, violations by the enemy of thelaws of war. Bombardments for the purpose of exacting a ransom or ofputting pressure upon the hostile Power by injury to peacefulindividuals or their property were to be unlawful. The views of thecommittee were, in substance, adopted by the Institut, with the omissiononly of the paragraph allowing bombardment by way of reprisals. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 2 (1904). 

 The "Hague Conference" and "Hague Convention" to which reference was made in the last of these letters were, of course, those of 1899. 

 For the action taken by the Institut de Droit International in 1895 and 1896, on the initiative of the present writer, see the _Annuaire de l'Institut_, t. Xiv p. 295, t. Xv. Pp. 145-151, 309, 317; and his _Studies in International Law_, pp. 106-111. See also, at p. 104 of the same work, an opinion given by him to the Chevalier Tindal as to the liability of The Hague to be bombarded. 

 The later growth of opinion has been in accordance with the views maintained by the writer of these letters, and with the _Rapport_ drafted by him for the Institut. The Hague Conference of 1899, though unable to discuss the subject, had registered a _væu_ "that the proposal to regulate the question of the bombardment of ports, towns and villages by a naval force may be referred for examination to a future Conference. " See _Parl. Paper, Miscell. _ No. 1 (1889), pp. 139, 146, 162, 165, 258, 283. At the Conference of 1907 a Convention, No. Ix. , was accordingly signed and generally ratified, notably by Germany and Great Britain, Art. 1 of which prohibits "the bombardment by naval forces of ports towns, villages, houses, or buildings which are not defended, " Germany, France, Great Britain and Japan dissenting from the second paragraph of this article, which explains that a place is not to be considered to be defended merely because it is protected by submarine contact-mines. Bombardment is, however, permitted, by Art. 2, of places which are, in fact, military or naval bases, and, by Arts. 3 and 4, of places which refuse to comply with reasonable requisitions for food needed by the fleet, though not for refusal of money contributions. The _Acte Final_ of the Conference further registers a _væu_ that "the Powers should, in all cases, apply, as far as possible, to war at sea the principles of the Convention concerning the laws and customs of war on land. " (_Parl. Paper, Miscell. _ No. 1 (1908), p. 30. ) This Convention, No. Iv. Of 1907, in Art. 25 of the _Règlement_ annexed to it, lays down that "the attack or bombardment, by whatsoever means, of towns, villages, habitations, or buildings which are not defended is prohibited. "

 The British Government had, in 1907, so far departed from the Admiralty views of 1888 as to instruct their delegates to the Conference of that year to the effect that "the Government consider that the objection, on humanitarian grounds, to the bombardment of unfortified towns is too strong to justify a resort to that measure, even though it may be permissible under the abstract doctrines of international law [?]. They wish it, however, to be clearly understood that any general prohibition of such practice must not be held to apply to such operations as the bombardment of towns or places used as bases or storehouses of naval or military equipment or supply, or ports containing fighting ships, and that the landing of troops, or anything partaking of the character of a military or naval operation, is also not covered. "

 It is hardly necessary to chronicle the indignation aroused by the raids upon undefended coast towns carried out by German cruisers during the war of 1914, in violation of modern International Law and notwithstanding the German ratification of Convention No. Ix. Of 1907. 

 * * * * *

SECTION 15

_Belligerent Reprisals_

REPRISALS

Sir, --The controversy as to the legitimacy of the recent attack onFreiburg tends to stray into irrelevancies. If the attack was made uponbarracks or troop trains no one would surely criticise what is ofeveryday occurrence, although not unlikely to cause incidentally deathor injury to innocent persons. There seems, however, to be no reason forsupposing that such military objects were in view, or that ouraeroplanes were instructed to confine their activity, as far aspossible, to the attainment of such objects. We must assume, for anyuseful discussion of the question raised, that the operation wasdeliberately intended to result in injury to the property and persons ofcivilian inhabitants, not, of course, by way of vengeance, but by way ofreprisal--_i. E. _ with the practical object of inducing the enemy toabstain in the future from his habitually practised illegal barbarities. Such reprisals, as is to-day so well explained by your correspondent"Jurist, " are no violations of international law. Objections might, ofcourse, be made to them as unlikely to produce their hoped-for effect, or as repugnant to our feelings of humanity or honour. They are notillegal. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 4 (1917). 

REPRISALS

Sir, --If my friend Sir Edward Clarke will glance again at my letter ofMonday, he will, I think, cease to be surprised that it contains noanswer to his censure from an ethical standpoint of our treatment ofFreiburg. My object was merely to indicate the desirability of keepingthe question whether acts of the kind are in violation of internationallaw (which I answered in the negative) distinct from questions, which Icatalogued, as to their practical inutility, with which some of yourcorrespondents have occupied themselves, or their repugnancy to feelingsof honour and humanity with which Sir Edward has dealt exclusively. Anydiscussion of political expediency or of high morals would have beenbeside my purpose. 

It is curious that Sir Herbert Stephen should to-day speak of my letterof the 7th as a defence of the aerial bombardment of Freiburg. Itneither attacked nor defended the bombardment, but, solely in theinterests of clear thinking, indicated the desirability of keepingdistinct the three points of view from which the topic may be regarded, viz. : (1) of international law; (2) of practical utility; (3) ofmorality and honour. 

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 9 (1917). 

 * * * * *

SECTION 16

_Peace_

UNDESIRABLE PEACE TALK

Sir, --There has been more than enough of premature discussion by groupsof well-meaning amateurs, not unfrequently wirepulled by influenceshostile to this country, with reference to the terms of the treaty ofpeace by which the world-war now raging will be brought to a close. 

Movements of the kind have culminated in the action of a body rejoicingin the somewhat cumbrous title of the "International CentralOrganisation for a Durable Peace, " which is inviting members of aboutfifty societies, of very varying degrees of competence, to acosmopolitan meeting, to be held at Berne in December next. Lest theunwary should be beguiled into having anything to do with the plausibleoffer made to them that they should, there and then, assist in compiling"a scientific dossier, containing material that will be of vastimportance to the diplomats who may be chosen to participate in thepeace congress itself, " it may be worth while to call attention to thecomposition of the executive committee by which the invitations areissued, and to its "minimum programme. "

Of the members of this committee (of thirteen), on which Great Britainis represented only by Mr. Lowes Dickenson (mistakenly described as aCambridge Professor), and America only by Mrs. Andrews, of Boston, thebest known are Professors Lammasch, of Vienna, and Schücking, ofMarburg. The "minimum programme" demands, _inter alia_, "equal rightsfor all nations in the colonies, &c. , " of the Powers; submission of alldisputes to "pacific procedure, " joint action by the Powers against anyone of them resorting to military measures, rather than to suchprocedure; and that "the right of prize shall be abolished, and thefreedom of the seas shall be guaranteed. " The _provenance_ of this"minimum programme" is sufficiently obvious. What is likely to be thecharacter of such a "maximum programme" as will doubtless be aimed at bythe proposed gathering?

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, October 16 (1915). 

CHAPTER VII

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 somuch weight that I hope you will allow me at once to say that I amconvinced that to-day's telegraphic report of some communication made byhim to the St. Petersburg newspapers fails to convey an accurate accountof the views which he has thus expressed. 

On matters of fact it would appear that he is no better informed thanare most of us in this country; and under matters of fact may beincluded the breaches of neutrality which he is represented ascounter-charging against the Japanese. It is exclusively with the viewson questions of law which are attributed to Professor de Martens that Iam now concerned. He is unquestionably right in saying, as I pointed outin a recent letter, that the hard-and-fast rule, fixing 24 hours as thelimit, under ordinary circumstances, of the stay of a belligerentwarship in neutral waters, is not yet universally accepted as a rule ofinternational law; and, in particular, is not adopted by France. 

But what of the further _dictum_ attributed to Professor de Martens, tothe effect that "each country is its own judge as regards the dischargeof its duties as a neutral"? This statement would be a superfluoustruism if it meant merely that each country, when neutral, must, in thefirst instance, decide for itself what courses of action are demandedfrom it under the circumstances. The words may, however, be read asmeaning that the decision of the neutral country, as to the propriety ofits conduct, is final, and not to be questioned by other Powers. Anassertion to this effect would obviously be the negation of the wholesystem of international law, of which Professor de Martens is so great amaster, resting, as that system does, not on individual caprice, butupon the agreement of nations in restraint of the caprice of any one ofthem. The last word, with reference to the propriety of the conduct ofany given State, rests, of course, not with that State; but with itsneighbours. "Securus indicat orbis terrarum. " Any Power which fails inthe discharge, to the best of its ability, of a generally recognisedduty, is likely to find that self-satisfaction is no safeguard againstunpleasant 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 yourissue of yesterday will remind many of us of our regret that PresidentWilson, in Notes complaining of injuries sustained by American citizens, dwelt so slightly upon the violations of international law by whichthose injuries were brought about. 

Sir Edward seems, however, to have made use of certain expressions whichmight be taken to imply a view of neutral responsibility which canhardly be accepted. The United States were warned in the address thatthey will not "by a mere Note maintain the obligations which are putupon them, as parties to international law, which are to preventbreaches of civilisation and to mitigate the horrors of war. " Neutralswere spoken of as "the executives of international law, " and as alonestanding "behind the conventions" (for humanising warfare). "Abolish, "we were told, "the power of neutrals, and you have abolishedinternational law itself. "

Is this so? The contract into which a State enters with other States, byadopting the customary laws of war and by ratifying express Conventionsdealing with the same subject, obliges it, while remaining neutral, tosubmit to certain inconveniences resulting from the war, and, whenbelligerent, to abstain from certain modes of carrying on hostilities. It is assuredly no term of the contract that the State in question shallsit in judgment upon its co-contractors and forcibly intervene in _rebusinter alios actis_. Its hands are absolutely free. It may remain aquiescent spectator of evil, or, if strong enough and indignant with thewrongdoing, may endeavour to abate the mischief by remonstrance, and, inthe last resort, by taking sides against the offender. Let us hope thatat the present crisis the United States may see their way to choosingthe better part. 

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

 * * * * *

SECTION 2

_The Duties of Neutral States, and the Liabilities of NeutralIndividuals, 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 asto the articles which may be properly treated as contraband of war, and, in particular, as to coal being properly so treated, I venture to thinkthat it may be desirable to reduce this topic (a sufficiently large one)to its true dimensions by distinguishing it from other topics with whichit is too liable to be confused. 

Articles are "contraband of war" which a belligerent is justified inintercepting while in course of carriage to his enemy, although suchcarriage is being effected by a neutral vessel. Whether any givenarticle 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 maythus be incurred by vessels sailing under its flag, but is bound toacquiesce in the views maintained by the belligerent Government and itsCourts, unless these views involve, in the language employed by LordGranville in 1861, "a flagrant violation of international law. " This isthe beginning and end of the doctrine of contraband. A neutralGovernment has none other than this passive duty of acquiescence. Itsneutrality would not be compromised by the shipment from its shores, andthe carriage by its merchantmen, of any quantity of cannon, rifles, andgunpowder. 

Widely different from the above are the following three topics, into theconsideration of which discussions upon contraband occasionallydiverge:--

1. The international duty of the neutral Government not to allow itsterritory to become a base of belligerent operations: e. G. By theorganisation on its shores of an expedition, such as that which in 1828sailed from Plymouth in the interest of Dona Maria; by the despatch fromits harbours for belligerent use of anything so closely resembling anexpedition as a fully equipped ship of war (as was argued in the case ofthe _Alabama_); by the use of its ports by belligerent ships of war forthe reception of munitions of war, or, except under strict limitations, for the renewal of their stock of coal; or by such an employment of itscolliers as was alleged during the Franco-Prussian war to haveimplicated British merchantmen in the hostile operations of the Frenchfleet in the North Sea. The use of the term "contraband" with referenceto the failure of a neutral State to prevent occurrences of this kind ispurely misleading. 

2. The powers conferred upon a Government by legislation of restrainingits subjects from intermeddling in a war in which the Government takesno part. Of such legislation our Foreign Enlistment Act is a strikingexample. The large powers conferred by it have no commensurable relationto the duties which attach to the position of neutrality. Its effect isto enable the Government to prohibit and punish, from abundant caution, many acts on the part of its subjects for which it would incur nointernational liability. It does empower the Government to prevent theuse of its territory as a base: e. G. By aid directly rendered thenceto a belligerent fleet; but it, of course, gives no right ofinterference with the export or carriage of articles which may betreated as contraband. 

3. The powers conferred upon a Government by such legislation as section150 of the Customs Consolidation Act; 1853, now reproduced in a laterenactment, of forbidding at any time, by Order in Council, the export ofarticles useful in war. The power thus given has no relation tointernational duty, and is mainly intended to be exercised, in the wayof self-protection, when Great Britain is, or is likely to be, engagedin war. The object of the enactment is to enable the Government toretain in the country articles of which we may ourselves be in need, orto prevent them from reaching the hands of our enemies. The articlesenumerated--e. G. Arms, ammunition, marine engines, &c. --are, neitherin 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, ofcomparatively modern date, and it is hardly surprising to find that themercantile community, as would appear from your marine insurance articleof this morning, does not clearly distinguish between the differentclasses of questions to which such use may give rise. There is indeed awidely prevalent confusion, even in quarters which ought to be betterinformed, between two topics which it is essential to keepseparate--viz. The shipment of contraband, and the use of neutralterritory as a base for belligerent operations. 

A neutral Government (our own at the present moment) occupies a verydifferent position with reference to these two classes of acts. Withreference to the former, its international duty (as also its nationalpolicy) is merely one of acquiescence. It is bound to stand aside, andmake no claim to protect from the recognised consequences of their actssuch of its subjects as are engaged in carriage of contraband. So far asthe neutral Government is concerned, its subjects may carry even cannonand gunpowder to a belligerent port, while the belligerent, on the otherhand, who is injured by the trade may take all necessary stops tosuppress it. 

Such is the compromise which long experience has shown to be bothreasonable and expedient between the, in themselves irreconcilable, claims of neutral and belligerent States. So far, it has remainedunshaken by the arguments of theorists, such as the Swedish diplomatistM. Kleen, who would impose upon neutral Governments the duty ofpreventing the export of contraband by their subjects. A British tradermay, therefore, at his own proper risk, despatch as many thousand tonsof coal as he chooses, just as he may despatch any quantity of rifles orbayonets, 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 isexplicit to the effect that such conduct is "not permissible. " LordLansdowne naturally confined himself to answering the question which hadbeen addressed by those gentlemen to the Foreign Office; but the reasonfor his answer is not far to seek. The unlawfulness of charteringBritish vessels for the purpose above mentioned is wholly unconnectedwith the doctrine of contraband, but is a consequence of theinternational duty, which if incumbent on every neutral State, of seeingthat its territory is not made a base of belligerent operations. Thequestion was thoroughly threshed out as long ago as 1870, when Mr. Gladstone said in the House Of Commons that the Government had adoptedthe 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 undeniablyaiding and abetting the operations of that fleet as to give just causeof complaint against us to the Government of Japan. The British shipperof coal to a belligerent fleet at sea, besides thus laying hisGovernment open to a charge of neglect of an international duty, layshimself open to criminal proceedings under the Foreign Enlistment Act of1870. By section 8 (3) and (4) of that Act "any person within H. M. Dominions" who (subject to certain exceptions) equips or despatches anyship, with intent, or knowledge, that the same will be employed in themilitary or naval service of a foreign State, at war with any friendlyState, is liable to fine or imprisonment, and to the forfeiture of theship. By section 30, "naval service" covers "user as a store-ship, " and"equipping" covers furnishing a ship with "stores or any other thingwhich is used in or about a ship for the purpose of adapting her fornaval service. " Our Government has, therefore, ample powers forrestraining, in this respect, the use of its territory as a base. It hasno power, had it the wish (except for its own protection, under adifferent statute), to restrain the export of contraband of war. 

It would tend to clearness of thought if the term "contraband" werenever employed in discussions with reference to prohibition of thesupply 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 ofwar had been despatched by the German Government for the use of Turkey, while admitting that such a consignment may very likely have beenforwarded 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 munitionsto a belligerent, is, on the other hand, not bound to prevent privateindividuals from so acting. The latter half of this rule has nowreceived written expression in Art. 7 of The Hague Convention No. V. Of1907, 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 correctlytranscribed, would be that it seems to imply that the above-mentionedArt. 7 legitimatises the supply of war material to belligerents by"neutral States. " It is, however, obvious from the rest of the paragraphthat the _Gazette_ is not really under that impression. 

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

 * * * * *

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 someobservations which I had addressed to you upon the essential differencebetween carriage of contraband, which takes place at the risk of theneutral shipowner, and use of neutral territory as a base forbelligerent operations, an act which may implicate the neutral Powerinternationally, while also rendering the shipper liable to penalproceedings on the part of his own Government. I am gratified, to findthat the views thus expressed by me are in exact accordance with thoseset forth by Lord Lansdowne in his reply of November 25 to the Chamberof Shipping of the United Kingdom. Perhaps you will allow me to saysomething further upon the same subject, suggested by several letterswhich appear in your paper of this morning. I am especially desirous ofemphasising 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, beexpressed as follows: "A belligerent is entitled to capture a neutralship engaged in carrying contraband of war to his enemy, to confiscatethe contraband cargo, and, in some cases, to confiscate the ship also, without thereby giving to, the Power to whose subjects the property inquestion belongs any ground for complaint. " Or, to vary the phrase, "aneutral Power is bound to acquiesce in losses inflicted by a belligerentupon such of its subjects as are engaged in adding to the militaryresources of the enemy of that belligerent. " This is the rule to whichthe nations have consented, as a compromise between the right of theneutral State that its subjects should carry on their trade withoutinterruption, and the right of the belligerent State to prevent thattrade from bringing an accession of strength to his enemy. Internationallaw here, as always, deals with relations between States, and hasnothing to do with the contraband trader, except in so far as itdeprives him of the protection of his Government. If authority wereneeded for what is here advanced, it might be found in Mr. JusticeStory's judgment in the _Santissima Trinidad_, in President Pierce'smessage 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 notrequired to prevent the sending of arms and ammunition by its subjects. "

2. Neither is carriage of contraband any offence against the law ofEngland; as may be learnt, by any one who is in doubt as to thestatement, from the lucid language of Lord Westbury in _Ex parteChavasse_ (34 L. J. , Bkry. , 17). And this brings me to the gist of thisletter. I have long thought that the form of the Proclamation ofNeutrality now in use in this country much needs reconsideration andredrafting. The clauses of the Proclamation which are set out by Mr. Gibson Bowles in your issue of this morning rightly announce that everyperson engaging in breach of blockade or carriage of contraband "will bejustly liable to hostile capture and to the penalties denounced by thelaw of nations in that behalf, and will in no wise obtain protectionfrom us against such capture or such penalties. " So far, so good. Butthe Proclamation also speaks of such acts as those just mentioned asbeing done "in contempt of this our Royal Proclamation, in derogation oftheir 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 inthe premises ... Will incur our high displeasure for such misconduct. " Iventure to submit that all these last-quoted phrases are of the natureof misleading rhetoric, and should be eliminated from a statement theeffective purport of which is to warn British subjects of the treatmentto which certain courses of conduct will expose them at the hands ofbelligerents, and to inform them that the British Government will notprotect them against such treatment. The reason why our Government willabstain from interference is, not that such courses of action areoffences either against international or English law, but that it has noright to so interfere; having become a party to a rule of internationallaw, under which a neutral Government waives the right, which it wouldotherwise possess, to protect the trade of its subjects frommolestation. 

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 observationswhich I recently addressed to you upon the British Proclamation ofNeutrality induce me to think that some account of the development ofthe text of the proclamation now in use may be of interest to yourreaders. The proclamations with which I am acquainted conform to one orother of two main types, each of which has its history. 

1. The earlier proclamations merely call attention to the English lawagainst enlistments, &c. , for foreign service; and command obedience tothe law, upon pain of the penalties thereby inflicted, "and of hisMajesty's high displeasure. " In the proclamation of 1817, the tacitreference is doubtless to certain Acts of George II, which, having beenpassed for a very different purpose, and having proved inadequate intheir new application, were repealed by the Foreign Enlistment Act of1819. This is the Act to which reference is made in the proclamations of1823 and 1825; in the former of which we first get a recital ofneutrality; while in the latter the clause enjoining all subjectsstrictly to observe the duties of neutrality and to respect the exerciseof belligerent rights first makes its appearance. 

2. The proclamation of 1859 is of a very different character, bearingtraces of the influence of the ideas which had inspired the action ofPresident Washington in 1793. While carrying on the old, it presentsseveral new features. British subjects are enjoined to abstain fromviolating, not only "the laws and statutes of the realm, " but also (forthe 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 ourRoyal Proclamation, and of our high displeasure, to do any acts inderogation of their duty as subjects of a neutral Sovereign, ... Or inviolation of the law of nations, ... As, more especially, " by breach ofblockade, or carriage of contraband, &c. , they will "rightfully incur, and be justly liable to, hostile capture, and to the penalties denouncedby the law of nations in that behalf"; and notice is (for the firsttime) given that those "who may misconduct themselves in the premiseswill do so at their peril, and of their own wrong; and that they will inno wise obtain any protection from Us against such capture, or suchpenalties as aforesaid, but will, on the contrary, incur Our highdispleasure by such misconduct. "

The proclamations of 1861 and February and March 1866 complicatematters, by making the warning clause as to blockade and contrabandapply also to the statutory offences of enlistment, &c. ; but theproclamation of June, 1866, gets rid of this complication by returningto 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 alreadydescribed, may be said to consist of seven parts--viz. (1) a recitalof 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 ofnations in relation thereto; (3) a recital of the Foreign Enlistment Actof 1870; (4) a command that the statute be obeyed, upon pain of thepenalties thereby imposed, "and of Our high displeasure"; (5) a warningto observe the duties of neutrality, and to respect the exercise ofbelligerent rights; (6) a further warning to those who, in contempt ofthe proclamation "and of Our high displeasure, " may do any acts "inderogation of neutral duty, or in violation of the law of nations, "especially by breach of blockade, carriage of contraband, &c. , that theywill be liable to capture "and to the penalties denounced by the law ofnations"; (7) a notification that persons so misconducting themselves"will in no wise obtain any protection from Us, " but will, "on thecontrary, incur Our high displeasure by such misconduct. "

The question which I have ventured to raise is whether the _textusreceptus_, built up, as it has been, by successive accretions, issufficiently in accordance with the facts to which it purports to callthe attention of British subjects to be properly submitted to HisMajesty for signature. I would suggest for consideration: 1. Whether thephrases commanding obedience, on pain of His Majesty's "highdispleasure, " and the term "misconduct, " should not be used only withreference to offences recognised as such by the law of England. 2. Whether such condensed, and therefore incorrect, though very commonlyemployed, expressions as imply that breach of blockade and carriage ofcontraband are "in violation of the law of nations, " and are liable to"the penalties denounced by the law of nations, " should not be replacedby expressions more scientifically correct. The law of nations neitherprohibits the acts in question nor prescribes penalties to be incurredby the doers of them. What it really does is to define the measures towhich a belligerent may resort for the suppression of such acts, withoutlaying himself open to remonstrance from the neutral Government to whichthe 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 certainrespects in which the Proclamation of Neutrality issued by ourGovernment on the 3rd of the present month differs from that issued onFebruary 11, 1904. 

In two letters addressed to you with reference to the Proclamation ofthat year, I ventured to point out what appeared to me to be itsdefects, alike from a scientific and from a practical point of view. Thepresent Proclamation has slightly minimised these defects, but, as awhole, remains open to the objections which I then raised. I have nowish to repeat in detail the contents of my letters of 1904, especiallyas 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 thisopportunity once more to urge the desirability of redrafting thedocument in question. 

The Proclamation just issued still answers to my description of that of1904, as consisting of seven parts--viz. : (1) A recital of neutrality;(2) a command to subjects to observe a strict neutrality, and to abstainfrom contravention of the laws of the realm or the Law of Nations inrelation thereto; (3) a recital of the Foreign Enlistment Act, 1870; (4)a command that the statute be obeyed, upon pain of the penalties therebyimposed, and of "Our high displeasure"; (5) a warning to observe theduties of neutrality and to respect the exercise of belligerent rights;(6) a further warning that any persons presuming, in contempt of theProclamation, to do acts in derogation of their duty as subjects of aneutral Power, or of the Law of Nations, will incur the penaltiesdenounced by such law; (7) a notice that persons so misconductingthemselves 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 ForeignEnlistment Act of 1870, and constituting the bulk of the Proclamation, little serious fault can be found. It is well that such persons shouldbe warned of the penalties which they may incur, including the Royaldispleasure. 

The remaining two clauses relate, however, to matters of a totallydifferent character from those previously mentioned, and care shouldtherefore have been taken, but has not been taken, to make thisperfectly clear. I would further remark upon these clauses: (1) That Iagree with Mr. Bowles in regretting the omission here of the specificmention made in 1904 of "breach of blockade, " "carriage of contraband, "&c. , as specimens of the acts undoubtedly contemplated in these twoclauses; (2) that it is a mistake to describe acts of this kind as beingin derogation of "the duty of subjects of a neutral Power, " or "inviolation of the Law of Nations, " or as "liable to the penaltiesdenounced by such law. " Carriage of contraband, and acts of the sameclass, are notoriously not condemned by English law, neither are they, in any proper sense, breaches of the Law of Nations, which, speakingscientifically, never deals with individuals, as such, but only with therights and duties of States _inter se_. What the Law of Nations reallydoes is, as I said in 1904, "to define the measures to which abelligerent may resort for the suppression of such acts, without layinghimself open to remonstrance from the neutral Government to which thetraders implicated owe allegiance"; (3) that on the other hand, I amglad to find that, in accordance with my suggestion, while it continuesvery 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 equalpropriety 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 therecent British Proclamation of Neutrality which were not, as they shouldhave been, in the House of Commons last night, kept entirely distinct?

The Government has surely done right in now omitting, as I suggested in1904, with reference to certain classes of acts which are prohibitedneither by English nor by International Law, a phrase announcing thatthe doers of them would incur the King's "high displeasure"; whileretaining the warning that doers of such acts must be prepared forconsequences from which their own Government will not attempt to shieldthem. 

On the other hand, our Government has surely erred in not specifying, asin previous Proclamations, the sort of acts to which this warningrelates--viz. , to acts such as carriage of contraband, enemy service, and breach of blockade, which differ wholly in character from thoseviolations of the Foreign Enlistment Act against which the bulk of theProclamation is directed. As the Proclamation now stands, no cleartransition is marked between breaches of English law and the unspecifiedacts which, though perfectly legal, will forfeit for the doers of themany claim to British protection from the consequences involved. Tradersare 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). 

 * * * * *

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 besuggested for solution if, as seems to be reported in Paris, AdmiralRozhdestvensky 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 hasarisen as to the alleged neglect by France to prevent the use of herCochin-Chinese waters by the Russians as a base of operations againstJapan. We are as yet in the dark as to what is actually occurring inthose waters, and are, perhaps, for that very reason in a betterposition for endeavouring to ascertain what are the obligations imposedon a neutral in such a case by international law. 

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

The rule enforced since 1862 by Great Britain for this purpose limitsthe stay of a belligerent warship, under ordinary circumstances, to aperiod of twenty-four hours; and the same provision will be found in theneutrality proclamations issued last year by, e. G. The United States, Egypt, China, Denmark, Sweden and Norway. So by Japan and Russia in1898. This rule, convenient and reasonable as it is, is not yet a ruleof international law; as Lord Percy has had occasion to point out, inreplying to a question addressed to him in the House of Commons. Theproclamations of most of the Continental Powers do not commit theirrespective Governments to any period of time, and the material clausesof the French circular, to which most attention will be directed at thepresent 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 isclear. Under the French rules, all must evidently turn upon the wisdomand _bonne volonté_ of the officials on the spot, and of the homeGovernment, so far as it is in touch with them. We have no reason tosuppose that the qualities in question will not characterise the conductof the French at the present moment. There can, however, be no doubtthat a better definition of the mode in which a neutral Power shouldprevent abusive use of the asylum afforded by its ports and waters isurgently required. The point is one which must prominently engage theattention of the special conference upon the rights and duties ofneutrals, for which a wish was expressed by The Hague Conference of1899, 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 NeutralityBoard has decided adversely to the contention that the _Appam_ is aGerman 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. , whichprovides for her being released, together with her officers and crew, while the prize crew is to be interned. This Convention has been dulyratified both by Germany and by the United States. Its non-ratificationby Great Britain is, I conceive, irrelevant. 

But Germany contends that the situation is governed by Art. 19, the textof which has been several times set out in your columns, of the oldConvention of 1799. This may startle those who are acquainted with whatoccurred at The Hague in 1907, and I have seen no reference to what mustbe the gist of the German argument on the point. They no doubt arguethat the old Convention remains unrepealed by No. Xiii. Of The Hague, because the latter Convention is of no effect, in pursuance of itscommon form Art. 28, to the effect that:--"The provisions of the presentConvention do not apply except between contracting Powers, and then onlyif all the belligerents are parties to the Convention" (which is by nomeans 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 asthe managers of the Atlas Steamship Company seem to expect by theinformation contained in their letter which you print this morning. Itwas, indeed, unlikely that the courteous reply of the AssistantSecretary of State at Washington to the enquiry addressed to him by theNew York agents of the company would contain a declaration of the policyof the United States with reference to contraband of war. The threefoldclassification of "merchandise" (not of "contraband") quoted in thereply occurs, in the judgment of the Supreme Court in the well-knowncase of the _Peterhoff_ (5 Wallace, 58), but it is substantially that ofGrotius, and has long been accepted in this country and in the UnitedStates, while the Continent is, generally speaking, inclined to deny theexistence of "contraband by accident, " and to recognise only such arestricted list of contraband as was contained in the Spanish decree ofApril 24 last. 

The questions upon which shippers are really desirous of information(which they are, however, perhaps not likely to obtain, otherwise thanfrom decisions of prize Courts) are of a less elementary character. Theywould like to know what articles _ancipitis usus_ ("used for purposes ofwar or peace according to circumstances") will be treated by the UnitedStates as contraband, and with what penalty the carriage of sucharticles will be visited--_i. E. _ whether by confiscation or merely bypre-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, onbehalf of this country by Lord Lansdowne in his reply, which you printedyesterday, to Messrs. Powley, Thomas, and Co. , and on behalf of Japan bythe proclamation which appears in _The Times_ of to-day. Both of thesedocuments set forth the old British doctrine, now fully adopted in theUnited 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 certainconditions. "When destined, " says Lord Lansdowne, "for warlike asopposed to industrial use. " "When destined, " says Japan, "for theenemy's army or navy, or in such cases where, _being goods arriving, atenemy's territory_, there is reason to believe that they are intendedfor use of enemy's army or navy. "

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

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

Since the rules applicable to the carriage of coal are, I venture tothink, equally applicable, to the carriage of foodstuffs, I may perhapsbe allowed to add a few words with reference to the letter addressed toyou a day or two ago by Sir Henry Bliss. I share his desire for someexplanation of the telegram which reached you on the 12th of this monthfrom British Columbia. One would like to know: (1) What is "theGovernment, " if any, which has instructed the Empress Line not toforward foodstuffs to Japan; (2) whether the refusal relates tofoodstuffs generally, or only to those with a destination for warlikeuse; (3) what is meant by the statement that "the steamers of theEmpress Line belong to the Naval Reserve"? I presume the meaning to bethat the line is subsidised with a view to the employment of the shipsof the company as British cruisers when Great Britain is at war. Thebearing of this fact upon the employment of the ships when Great Britainis at peace is far from apparent. It is, of course, possible that theGovernment contract with the company may have been so drawn, _exabundanti cautela_, as greatly to restrict what would otherwise havebeen 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. Petersburgin the case of the _Calchas_ has at length reached this country, and weare thus informed, upon the highest authority, though, perhaps, not inthe clearest language, of the meaning which is now to be placed upon theRussian notification that cotton is contraband of war. 

This notification, promulgated on April 21, 1904, was received withgeneral amazement, not diminished by an official gloss to the effectthat it "applied only to raw cotton suitable for the manufacture ofexplosives, and not to yarn or tissues. " It must be remembered that atthe date mentioned, and for some months afterwards, Russia stoutlymaintained that all the articles enumerated in her list of contraband ofFebruary 28, 1904, and in the additions to that list, were "absolutely"such; _i. E. _ were confiscable if in course of carriage to any enemy'sport, irrespectively of the character of that port, or of the use towhich the articles would probably be put. It was only after muchcorrespondence, and the receipt of strong protests from Great Britainand the United States, that Russia consented to recognise the well-knowndistinction between "absolute" and "conditional" contraband; the latterclass consisting of articles useful in peace as well as for war, thecharacter of which must, therefore, depend upon whether they are, inpoint of fact, destined for warlike or for peaceful uses. Thisconcession was made about the middle of September last, and it was thenagreed that provisions should be placed in the secondary category (aswas duly explained in the Petersburg judgment in the case of the_Arabia_ on December 14) together with some other articles, among whichit seemed that raw cotton was not included. 

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

The question had become a practical one in the case of the _Calchas_. OnJuly 25 this vessel, laden with, _inter alia_, nine tons of raw cottonfor Yokohama and Kobe, was seized by a Russian cruiser and carried intoVladivostok, where, on September 18, the cotton, together with otherportions of her cargo, was condemned as absolutely contraband. Thereasons for repudiating this decision, and the notification to which itgave effect, were not far to seek, and it may still be worth while toinsist upon them. As against Russia, it is well to recall that, from thedays of the Armed Neutralities onwards, her traditional policy has beento favour a very restricted list of contraband; that when in 1877, asagain in 1900 and 1904, she included in it materials "servant de fairesauter les obstacles, " the examples given of such materials were thingsso immediately fitted for warlike use as "les mines, les torpilles, ladynamite, " &c. ; and that what is said as to "conditional contraband" byher trusted adviser, Professor de Martens, in his _Droit International_, t. Iii (1887), pp. 351-354, can scarcely be reconciled with her recentaction. 

But a still stronger argument against the inclusion of cotton in thelist 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 isdue to an occasional loose employment of the term, as descriptive ofarticles found by an invader in an enemy's territory, which, althoughthe property of private, and even neutral, individuals, happen to be souseful for the purposes of the war as to be justly confiscated. Thatthis 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 inthe claim made by Messrs. Maza and Larrache against the United States in1886 (Foreign Relations of U. S. , 1887). A similarly loose use of theterm was its application by General B. F. Butler to runaway slaves whohad been employed on military works--an application of which heconfessed himself "never very proud as a lawyer, " though "as anexecutive officer, much comforted with it. " The phrase caught thepopular fancy, came to be applied to slaves generally, and wasimmortalised in a song, long a favourite among negro children, therefrain 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 classof contraband, and that raw cotton, as _res ancipitis usus_, must betreated in accordance with the rules applicable to goods belonging tothat class, has laid down an unimpeachable proposition of law. Whetherthe view taken by the Court of the facts of the case, so far as theyrelate to the cotton cargo, is equally satisfactory, is a different andless important question, upon which I refrain from troubling you uponthe 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 whocare to be provided with a clue (not to be found in the judgment)through the somewhat labyrinthine details of the question underdiscussion, a summary of its history. The Russian rules as to contrabandare contained in several documents--viz. The "Regulations as to NavalPrize" of 1895, Arts. 11-14; the "Admiralty Instructions" of 1900, Arts. 97, 98, and the appended "Special Declaration" as to the articlesconsidered to be contraband (partly modelled on the list of 1877); the"Imperial Order" of February 28, 1904, rule 6 (this Order keeps alivethe 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 ofcertain 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, ineffect, a class of "conditional" contraband, placing foodstuffs in thisclass, as also, ultimately, other objects "capable of warlike use andnot 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 hasnow been declared to be "absolute contraband. " May I, however, suggestthat the topic should be discussed without any reference to thefortunately unratified Declaration of London, that premature attempt tocodify the law of maritime warfare, claiming, misleadingly, that itsrules "correspond in substance with the generally recognised principlesof international law"?

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

The straightforward announcement made by the United States in their Noteof January 25 is surely far preferable. It states in plain terms that, "As the Declaration of London is not in force, the rules ofinternational law only apply. As to articles to be regarded ascontraband there is no general agreement between nations. " In point offact, the hard-and-fast categories of neutral imports, suggested by thethreefold Grotian division, as set forth in the Declaration, areunlikely ever to be generally accepted. Even Grotius is careful to limithis proposals, and Bynkershoek, in commenting upon them, points out thatthe test of contraband of the most noxious kind must be the, possiblyexceptional, importance of objects for hostile use; their being of usealso for non-hostile purposes being immaterial ("nec interesse an etextra bellum usum praebeant"). The application of these remarks to thecase 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 tosome statements occurring to-day in your Marine Insurance news which Iventure 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 andspirit of all four articles of the Declaration of Paris. ("The Treaty ofParis" has, of course, no bearing upon prize law. )

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

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

4. The existing prize law of Japan was promulgated on March 7, 1904, noton August 20, 1894. 

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

The Japanese rules as to the cases in which ships carrying contrabandmay be confiscated are quite reasonable and in accordance with Britishviews. The third ground for confiscation mentioned by your Correspondentdoes not occur in the instructions of 1904. 

Ships violating a blockade are, of course, confiscable; but the Japanesedo not, as your Correspondent seems to have been informed, make theexistence of a blockade conditional upon its having been "notified tothe Consuls of all States in the blockaded port. " Commanders are, nodoubt, instructed to notify the fact, "as far as possible, to thecompetent authorities and the Consuls of the neutral Powers within thecircumference 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 havebeen familiar, ever since its promulgation, with the Japanese prize lawof 1894, quoted by him as authority for statements made in your issue ofMarch 10, the misleading character of which I felt bound to point out ina letter of the same date. All the topics mentioned by him on thatoccasion, and to-day, are, however, regulated, not by that law, but bynotifications and instructions issued from time to time during 1904. 

I make it my business not only to be authoritatively informed on suchmatters, 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 giverise not only to forensic argument in the prize Courts which we haveestablished at Durban and at the Cape, but also to diplomaticcommunications between Great Britain and neutral Governments, shouldobviously be handled just now with a large measure of reserve. LordRosebery has, however, in your columns called upon our Government todefine 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 responsiblefor the _Admiralty Manual of the Law of Prize_, to which reference hasbeen made by your correspondent "S. , " to make a few statements as topoints upon which it may be desirable for the general reader to be inpossession of information accurate, one may venture to hope, as far asit goes. 

Of the four inconveniences to which neutral trading vessels are liablein time of war, "blockade" may be left out of present consideration. Youcan only blockade the ports of your enemy, and the South AfricanRepublics have no port of their own. The three other inconveniencesmust, however, all be endured--viz. Prohibition to carry "contraband, "prohibition to engage in "enemy service, " and liability to be "visitedand searched" anywhere except within three miles of a neutral coast, inorder that it may be ascertained whether they are disregarding either ofthese prohibitions, as to the meaning of which some explanation may notbe superfluous. 

1. "Carriage of contraband" implies (1) that the goods carried are fitfor hostile use; (2) that they are on their way to a hostiledestination. Each of these requirements has given rise to widedivergence of views and to a considerable literature. As to (1), whileContinental opinion and practice favour a hard-and-fast list ofcontraband articles, comprising only such as are already suited, or canreadily be adapted, for use in operations of war, English and Americanopinion and practice favour a longer list, and one capable of being fromtime to time extended to meet the special exigencies of the war. In sucha list may figure even provisions, "under circumstances arising out ofthe particular situation of the war, " especially if "going with a highlyprobable destination to military use"--Lord Stowell in the _JongeMargaretha_ (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 withLord Granville's despatches during the war between France and China in1885, if we treated flour as contraband only when ear-marked as destinedfor the use of enemy fleets, armies, or fortresses. Even in such casesour practice has been not to confiscate the cargo, but merely toexercise over it a right of "pre-emption, " so as to deprive the enemy ofits use without doing more injury than can be helped to neutraltrade--as is explained by Lord Stowell in the _Haabet_ (2 Rob. 174). Asto (2), the rule was expressed by Lord Stowell to be that "goods goingto a neutral port cannot come under the description of contraband, allgoods going there being equally lawful"--_Imina_ (3 Rob. 167); butinnovations were made upon this rule during the American Civil War whichseem to be demanded by the conditions of modern commerce, and might wellbe 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 bymeans of land carriage--_Bermuda_ (3 Wallace); _Peterhoff_ (5 Wallace). A consignment to Lorenzo Marques, connected as is the town by only fortymiles of railway with the Transvaal frontier, would seem to be wellwithin 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 fewmilitary officers, as also of enemy despatches, is an "enemy service" ofso important a kind as to involve the confiscation of the vesselconcerned, a penalty which, under ordinary circumstances, is not imposedupon carriage of "contraband" property so called. See Lord Stowell'sluminous judgments in _Orozembo_ (6 Rob. 430) and _Atalanta_ (_ib. _440). The alleged offence of the ship _Bundesrath_ would seem to be ofthis description. 

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

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 morningfrom my friend Dr. Baty, with reference to the steamship _Allanton_, calls for a word of warning; unless, indeed, it is to be taken as merelyexpressing the private opinion of the writer as to what would be adesirable rule of law. 

It would be disastrous if shipowners and insurers were to assume, that aneutral vessel, if destined for a neutral port, is necessarily safe fromcapture. Words at any rate capable of this construction may, no doubt, be quoted from one of Lord Stowell's judgments, now more than a centuryold; but many things have happened, notably the invention of railways, since the days of that great Judge. The United States cases, decided inthe sixties (as Dr. Baty thinks, "on a demonstrably false analogy"), inwhich certain ships were held to be engaged in the carriage ofcontraband, although their destination was a neutral port, weresubstantially approved of by Great Britain. Their principle wast adoptedby Italy, in the _Doelwijk_, in 1896, and was supported by Great Britainin the correspondence upon this subject which took place with Germany in1900. It was endorsed, after prolonged discussion, by the Institut deDroit 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_ isnatural, 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 twoships, except that the former is owned by a powerful company in thehabit of carrying British mails, while the latter is his privateproperty. 

One would have supposed it to be notorious that the facts whichdistinguish the one case from the other are, first, that the capture ofthe _Malacca_ was effected by a vessel not entitled to exercisebelligerent rights; and, secondly, that Great Britain is prepared toclaim the incriminated cargo as belonging to the British Government. Capture by an unqualified cruiser is so sufficient a ground for a claimof restoration and compensation that, except perhaps as facilitating theretreat of Russia from a false position, it would seem, to say theleast, superfluous to pray in aid any other reason for the cancellationof an act unlawful _ab initio. _

I have not noticed any statement as to the actual constitution of theprize Court concerned in the condemnation of the _Allanton. _ Under Rule54 of the Russian Naval Regulations of 1895, a "Port Prize Court" must, for a decree of confiscation, consist of six members, of whom three mustbe officials of the Ministries of Marine, Justice, and Foreign Affairsrespectively. An "Admirals' Prize Court, " for the same purpose, needconsist 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 withreference to facts as to which we are as yet imperfectly informed, wellillustrates the perpetually recurring conflict between belligerent andneutral interests. They are, of course, irreconcilable, and the rightsof the respective parties can be defined only by way of compromise. Itis beyond doubt that the theoretically absolute right of neutral ships, whether public or private, to pursue their ordinary routes over the highsea in time of war, is limited by the right of the belligerents to fighton those seas a naval battle, the scene of which can be approached bysuch ships only at their proper risk and peril. In such a case theneutral has ample warning of the danger to which he would be exposed didhe not alter his intended course. It would, however, be an entirelydifferent affair if he should find himself implicated in belligerent warrisks, of the existence of which it was impossible for him to beinformed, while pursuing his lawful business in waters over which nonation pretends to exercise jurisdiction. 

It is certain that no international usage sanctions the employment byone belligerent against the other of mines, or other secretcontrivances, which would, without notice, render dangerous thenavigation of the high seas. No belligerent has ever asserted a right todo anything of the kind; and it may be in the recollection of yourreaders that strong disapproval was expressed of a design, erroneouslyattributed to the United States a few years since, of effecting theblockade of certain Cuban ports by torpedoes, instead of by a cruisingsquadron. These, it was pointed out, would superadd to the risk ofcapture and confiscation, to which a blockade-runner is admittedlyliable, the novel penalty of total destruction of the ship and all onboard. 

It may be worth while to add, as bearing upon the question underdiscussion, that there is a tendency in expert opinion towards allowingthe line between "territorial waters" and the "high seas" to be drawn ata considerably greater distance than the old measurement of three milesfrom 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 thatthe line between "territorial waters" and "the high sea" is drawn byinternational law, if drawn by it anywhere, at a distance of three milesfrom low-water mark. In the first place, the ridiculously wide claimsmade, on behalf of certain States, by mediæval jurists were cut down byGrotius to so much water as can be controlled from the land. The Grotianformula was then worked out by Bynkershoek with reference to the rangeof cannon; and, finally, this somewhat variable test was before the endof the eighteenth century, as we may see from the judgments of LordStowell, superseded by the hard-and-fast rule of the three-mile limit, which has since received ample recognition in treaties, legislation, andjudicial decisions. 

The subordinate question, also touched upon by the Admiral, of thecharacter to be attributed to bays, the entrance to which exceeds sixmiles in breadth, presents more difficulty than that relating tostrictly coastal waters. I will only say that the Privy Council, in _TheDirect U. S. Cable Co. _ v. _Anglo-American Telegraph Co. _ (L. R. 2 App. Ca. 394), carefully avoided giving an opinion as to the internationallaw applicable to such bays, but decided the case before them, which hadarisen with reference to the Bay of Conception, in Newfoundland, on thenarrow ground that, as a British Court, they were bound by certainassertions of jurisdiction made in British Acts of Parliament. 

The three-mile distance has, no doubt, become inadequate in consequenceof the increased range of modern cannon, but no other can be substitutedfor it without express agreement of the Powers. One can hardly admit theview which has been maintained, e. G. By Professor de Martens, that thedistance shifts automatically in accordance with improvements inartillery. The whole matter might well be included among the questionsrelating to the rights and duties of neutrals, for the consideration ofwhich by a conference, to be called at an early date, a wish wasrecorded by The Hague Conference, of 1899. 

In the meantime it may be worth while to call attention to the view ofthe subject taken by a specially qualified and representative body ofinternational experts. The Institut de Droit International, afterdiscussions and enquiries which had lasted for several years, adopted, at their Paris meeting in 1894, the following resolutions, as astatement of what, in the opinion of the Institut, would be reasonablerules with reference to territorial waters (I cite only those bearingupon 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 submarinecables has been carefully considered by the Institut de DroitInternational. A committee was appointed in 1878 to consider thesubject, and the presentation of its report to the meeting at Brusselsin 1879 was followed by an interesting discussion (see the _Annuaire del'Institut_, 1879-80, pp. 351-394). The conclusions ultimately adoptedby 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 tothe legitimacy of cable-cutting is not so insoluble as most of theallusions to it might lead one to suppose. It is true that no light isthrown upon it by the Convention of 1884, which relates exclusively totime of peace, and was indeed signed by Lord Lyons, on behalf of GreatBritain, only with an express reservation to that effect. Nor are wehelped by the case to which attention was called in your columns sometime since by Messrs. Eyre and Spottiswoode. Their allusion wasdoubtless to the _International_ (L. R. 3 A. And E. 321), which isirrelevant to the present enquiry. The question is a new one, but, though covered by no precedent, I cannot doubt that it is covered bycertain well-established principles of international law, which, it ishardly necessary to remark, is no cut-and-dried system but a body ofrules founded upon, and moving with, the public opinion of nations. 

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

The application of these principles to the case of submarine cableswould appear to be, to a certain point at any rate, perfectly clear. Telegraphic communication with the outside world may well be asimportant to a State engaged in warfare as similar means ofcommunication between one point and another within its own territory. Just as an invader would without scruple interrupt messages, and evendestroy telegraphic plant, on land, so may he thus act within theenemy's territorial waters, or, perhaps, even so far from shore as hecould reasonably place a blockading squadron. It may be objected that abelligerent has no right to prevent the access of neutral ships tounblockaded portions of the enemy's coast on the ground that by carryingdiplomatic agents or despatches they are keeping up the communicationsof his enemy with neutral Governments. But this indulgence rests on thepresumption that such official communications are "innocent, " apresumption obviously inapplicable to telegraphic messagesindiscriminately received in the course of business. It would seem, therefore, to be as reasonable as it is in accordance with analogy, thata belligerent should be allowed, within the territorial waters of hisenemy, to cut a cable, even though it may be neutral property, of whichthe _terminus ad quem_ is enemy territory, subject only to a liabilityto indemnify the neutral owners. 

The cutting, elsewhere than in the enemy's waters, of a cable connectingenemy with neutral territory receives no countenance from internationallaw. Still less permissible would be the cutting of a cable connectingtwo neutral ports, although messages may pass through it which, byprevious and subsequent stages of transmission, may be useful to theenemy. 

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 interestingletters upon the subject of submarine cables which have been addressedto you by Mr. Parsoné and Mr. Charles Bright? In asserting that "thequestion as to the legitimacy of cable-cutting is covered by noprecedent, " I had no intention of denying that belligerent interferencewith cables had ever occurred. International precedents are made bydiplomatic action (or deliberate inaction) with reference to facts, notby those facts themselves. To the best of my belief no case ofcable-cutting has ever been made matter of diplomatic representation, and I understand Mr. Parsoné to admit that no claim in respect of damageto cables was presented to the mixed Commission appointed under theConvention 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. Macdonellsuggests that the Institut de Droit International might usefully studythe question of cables in time of war. It may, therefore, be well tostate that this service hat already been rendered. The Institut, at itsParis meeting in 1878, appointed a committee, of which M. Renault waschairman, 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 votedcertain "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 thatdiplomatic conferences were held at Paris, which in 1882 produced adraft convention for the protection of cables, not restricted in itsoperation to time of peace; and in 1884 the actual convention, which isso restricted. 

It may not be generally known that in 1864, before the difficulties ofthe subject were thoroughly appreciated, a convention was signed, thoughit never became operative, by which Brazil, Hayti, Italy, and Portugalundertook to recognise the "neutrality" in time of war of a cable to belaid by one Balestrini. So, in 1869, the United States were desirous ofconcluding a general convention which should assimilate the destructionof cables in the high seas to piracy, and should continue to be in forcein 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 obviouslythat drawn by Mr. Charles Bright--viz. "the urgent necessity of asystem of cables connecting the British Empire by direct and independentmeans--_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 modein which Russia is conducting operations at sea. It may, however, bedoubted whether public opinion is sufficiently well informed to becapable of estimating the comparative gravity of the acts which are justnow attracting attention. Putting aside for the moment questions arisingout of the Straits Convention of 1856, as belonging to a somewhatdifferent order of ideas, we may take it that the topics most needingcareful consideration relate to removal of contraband from the ship thatis carrying it without taking her in for adjudication; interference withmail steamers and their mail bags; perversely wrong decisions of PrizeCourts; 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 ofthese 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 destroytheir prizes at sea, no distinction being drawn between neutral andenemy property, under such exceptional circumstances as the badcondition or small value of the prize, risk of recapture, distance froma Russian port, danger to the Imperial cruiser or to the success of heroperations. The instructions of 1901, it may be added, explain that anofficer "incurs no responsibility whatever" for so acting if thecaptured vessel is really liable to confiscation and the specialcircumstances imperatively demand her destruction. It is fair to saythat not dissimilar, though less stringent, instructions were issued byFrance in 1870 and by the United States in 1898; also that, although theFrench instructions expressly contemplate "l'établissement desindemnités à attribuer aux neutres, " a French prize Court in 1870refused compensation to neutral owners for the loss of their property onboard of enemy ships burnt at sea. 

The question, however, remains whether such regulations are inaccordance with the rules of international law. The statement of theserules by Lord Stowell, who speaks of them as "clear in principle andestablished in practice, " may, I think, be summarised as follows: Anenemy's ship, after her crew has been placed in safety, may bedestroyed. Where there is any ground for believing that the ship, or anypart of her cargo, is neutral property, such action is justifiable onlyin cases of "the gravest importance to the captor's own State, " aftersecuring the ship's papers and subject to the right of neutral owners toreceive 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 anyBritish regulations "contain the same provisions as the Russian" on thissubject. On the contrary, the Admiralty Manual of 1888 allowsdestruction of enemy vessels only; and goes so far in the direction ofliberality as to order the release, without ransom, of a neutral prizewhich either from its condition, or from lack of a prize crew, cannot besent in for adjudication. The Japanese instructions of 1894 permit thedestruction of only enemy vessels; and Art. 50 of the carefully debated"Code des prises" of the Institut de Droit International is to the sameeffect. It may be worth while to add that the eminent Russian jurist, M. De Martens, in his book on international law, published some twentyyears ago, in mentioning that the distance of her ports from the scenesof naval operations often obliges Russia to sink her prizes, so that "cequi les lois maritimes de tous les états considèrent comme un moyenauquel il n'y a lieu de recourir qu'à la dernière extrémité, setransformera nécessairement pour nous en règle normale, " foresaw that"cette mesure d'un caractère général soulévera indubitablement contrenotre pays un mécontentement universel. "

2. A far more important question is, I venture to think, raised by theRussian list of contraband, sweeping, as it does, into the category of"absolutely contraband" articles things such as provisions and coal, towhich a contraband character, in any sense of the term, has usually beendenied on the Continent, while Great Britain and the United States haveadmitted them into the category of "conditional" contraband, only whenshown to be suitable and destined for the armed forces of the enemy, orfor the relief of a place besieged. Still more unwarrantable is theRussian claim to interfere with the trade in raw cotton. Her prohibitionof this trade is wholly unprecedented, for the treatment of cottonduring the American Civil War will be found on examination to have nobearing on the question under consideration. I touch to-day upon thislarge subject only to express a hope that our Government, in concert, ifpossible, with other neutral Governments, has communicated to that ofRussia, with reference to its list of prohibited articles, a protest inlanguage as unmistakable as that employed by our Foreign Office in 1885;"I regret to have to inform you, M. L'Ambassadeur, " wrote LordGranville, "that Her Majesty's Government feel compelled to takeexception to the proposed measure, as they cannot admit that, consistently with the law and practice of nations, and with the rightsof neutrals, provisions in general can be treated as contraband of war. "A timely warning that a claim is inadmissible is surely preferable towaiting till bad feeling has been aroused by the concrete application ofan 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 yourissue of August 6, complained that I "had not given the properreference" to Lord Stowell's judgments. Mr. Bowles seems to be unawarethat in referring to a decided case the page mentioned is, in theabsence of any indication to the contrary, invariably that on which thereport of the case commences. I may perhaps also be allowed to say thathe, in my opinion, misapprehends the effect of the passage quoted by himfrom the _Felicity_, which decides only that, whatever may be thejustification for the destruction of a neutral prize, the neutral owneris entitled, as against the captor, to full compensation for the lossthereby 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 whichhe attempts to controvert two statements of mine by the simple expedientof omitting essential portions of each of them. 

1. Mr. Bowles having revealed himself as unaware that the mode in whichI had cited a group of cases upon destruction of prizes was the correctmode, I thought it well to provide him with the rudimentary informationthat, "in referring to a decided case, the page, mentioned is, _in theabsence of any indication to the contrary_, invariably that on which thereport of the case commences. " He replies that he has found appended toa citation of a passage in a judgment the page in which this passageoccurs. May I refer him, for an explanation of this phenomenon, to thewords (now italicised) omitted in his quotation of my statement? It is, of course, common enough, when the reference is obviously not to thecase as a whole but to an extract from it, thus to give a clue to theextract, the formula then employed being frequently "_at_ pageso-and-so. "

2. I had summarised the effect, as I conceive it, of the group of casesabove mentioned in the following terms: "Such action is justifiable onlyin cases of the gravest importance to the captor's own State, _aftersecuring the ship's papers, and subject to the right of the neutralowners to receive full compensation_. " Here, again, while purporting toquote me, Mr. Bowles omits the all-important words now italicised. I am, however, maltreated in good company. Mr. Bowles represents Lord Stowellas holding that destruction of neutral property cannot be justified, even in cases of the gravest importance to the captor's own State. WhatLord Stowell actually says, in the very passage quoted by Mr. Bowles, isthat "to the neutral can only be justified, under any suchcircumstances, by a full restitution in value. " I would, suggest thatMr. Bowles should find an opportunity for reading _in extenso_ thereports 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 lattercase, before venturing further into the somewhat intricatetechnicalities 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 somereference is made to what I have had occasion to say from time to timeupon the vexed question of the sinking of neutral vessels, and yourCorrespondent thinks it "would be decidedly interesting" to know whetherI have really changed my opinion on the subject. Perhaps, therefore, Imay be allowed to state that my opinion on the subject has suffered nochange, and may be summarised as follows:--

1. There is no established rule of international law which absolutelyforbids, under any circumstances, the sinking of a neutral prize. A_consensus gentium_ to this effect will hardly be alleged by those whoare aware that such sinking is permitted by the most recent prizeregulations of France, Russia, Japan, and the United States. 

2. It is much to be desired that the practice should be, by futureinternational agreement, absolutely forbidden--- that the lenity ofBritish practice in this respect should become internationallyobligatory. 

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 granderéserve"; 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 ofcruisers as to constitute an intolerable grievance. 

4. In any case, the owner of neutral property, not proved to be goodprize, is entitled to the fullest compensation for his loss. In thelanguage 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 thesubject for which I am responsible are contained in the _AdmiraltyManual of Prize Law_ of 1888 (where section 808 sets out the lenientBritish instructions to commanders, without any implication thatinstructions of a severer kind would have been inconsistent withinternational law); in letters which appeared in your columns on August6, 17, and 30, 1904; and in a paper on "Neutral Duties in a MaritimeWar, as illustrated by recent events, " read before the British Academyin April last, a French translation of which is in circulation on theContinent. 

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 theGovernment by Mr. A. Herbert--viz. That the appeal in prize casesshould lie, not to a Court belonging to the belligerent from whose Courtof first instance the appeal is brought, but to an internationaltribunal, has a plausible appearance of fairness, but involves manypreliminary questions which must not be lost sight of. 

Prize Courts are, at present, Courts of enquiry, to which a belligerentGovernment entrusts the duty of ascertaining whether the captures madeby its officers have been properly made, according to the views ofinternational law entertained by that Government. There exists, nodoubt, among Continental jurists, a considerable body of opinion infavour of giving to Courts of Appeal, at any rate, in prize cases awholly different character. This opinion found its expression in Arts. 100-109 of the _Code des Prises maritimes_, finally adopted at itsHeidelberg 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 satisfactoryboth to belligerents and neutrals could be constituted, whetherantecedently or _ad hoc_, there might be much to be said for theproposal; subject, however, to one condition--viz. That an agreementhad been previously arrived at as to the law which the Court is toapply. At the present time there exists, on many vital questions ofprize law, no such agreement. It will be sufficient to mention thoserelating to the list of contraband, the distinction between "absolute"and "conditional" contraband, the doctrine of "continuous voyages, " theright of sinking a neutral prize, the moment from which a vessel becomesliable for breach of blockade. 

Just as the _Alabama_ arbitration would have been impossible had not anagreement been arrived at upon the principles in accordance with whichneutral duties as to the exit of ships of war were to be construed, so, also, before an international Court can be empowered to decide questionsof prize, whether in the first instance or on appeal, it isindispensable that the law to be applied on the points above mentioned, and many others, should have been clearly defined and accepted, if notgenerally, at least by all parties concerned. The moral which I wouldventure to draw is, therefore, that although questions of fact, arisingout of capture of a prize, might sometimes be submitted to a tribunal ofarbitration, no case, involving rules of law as to which nations takedifferent views, could possibly be so submitted. One is glad, therefore, to notice that the Prime Minister's reply to Mr. A. Herbert was of themost guarded character. The settlement of the law of prize mustnecessarily precede any general resort to an international prize Court;and if the coming Hague Conference does no more than settle some of themost pressing of these questions, it will have done much to promote thecause 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 thedoings of the Peace Conference, as also the weighty letter addressed toyou by my eminent colleague, Professor Westlake, will have been welcomedby many of your readers who are anxious that the vital importance ofsome of the questions under discussion at The Hague should not be lostsight of. 

The Conference may now be congratulated upon having already given a_quietus_ to several proposals for which, whether or not they may berightly described as Utopian, the time is admittedly not yet ripe. Suchhas 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 stillmore objectionable proposals for rendering obligatory the resort toarbitration, which by the Convention of 1899 was wisely left optional. 

Should the labours of the delegates succeed in placing some restrictionsupon the employment of submarine mines, the bombardment of open coasttowns, and the conversion of merchant vessels into ships of war; inmaking some slight improvements in each of the three Conventions of1899; and in solving some of the more pressing questions as to therights and duties of neutrals, especially with reference to thereception in their ports of belligerent warships, it will have more thanjustified the hopes for its success which have been entertained bypersons conversant with the difficulty and complexity of the problemsinvolved. 

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

1. The British scheme for an international Court of Appeal in prizecases is, indeed, far preferable to the German; but the objections toanything of the kind would seem to be, for the present, insuperable, were it only for the reason which you allowed me to point out, somemonths 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 manypoints of prize law, it cannot be expected that they should agreebeforehand that, when belligerent, they will leave it to a board ofarbitrators to say which of several competing rules shall be applied toany given case of capture, or to evolve out of their inner consciousnessa new rule, hitherto unknown to any national prize Court. It would seemthat the German advocates of the innovation claim in its favour theauthority of the Institut de Droit International. Permit me, therefore, as one who has taken part in all the discussions of the Institut uponthe subject, to state that when it was first handled, at Zurich, in1878, the difficulties in the way of an international Court wereinsisted on by such men as Asser, Bernard, Bluntschli, Bulmerincq, andNeumann, and the vote of a majority in its favour was coupled with onewhich demanded the acceptance by treaty of a universally applicablesystem of prize law. The drafting of such a system was accordingly themain object of the _Code des Prises maritimes_, which, after occupyingseveral sessions of the Institut, was finally adopted by it, atHeidelberg, in 1887. Only ten of the 122 sections of this Code deal withan international Court of Appeal. A complete body of law, by whichStates have agreed to be bound, must, one would think, necessarilyprecede the establishment of a mixed Court by which that law is to beinterpreted. 

2. While the several delegations are vying with one another in devisingnew definitions of contraband, there would seem to be little likelihoodthat the British proposal for its total abandonment will be seriouslyentertained. Such a step could be justified, if at all, from the pointof view of national interest, only on the ground that it might possiblythrow increased difficulties in the way of an enemy desirous, even bystraining the existing law, of interfering with the supply of foodstuffsto the British Islands. I propose, for the present, only to callattention to the concluding paragraph of the British notice of motion onthis point, which would seem to imply much more than the abandonment ofcontraband. The words in question, if indeed they are authenticallyreported, are as follows: "Le droit de visite ne serait exercé que pourconstater le caractère neutre du bâtiment de commerce. " Does this meanthat the visiting officer, as soon as he has ascertained from the ship'spapers that she is neutral property, is to make his bow and return tothe cruiser whence he came? If so, what has become of our existing rightto detain any vessel which has sailed for a blockaded port, or iscarrying, as a commercial venture, or even ignorantly, hostile troops ordespatches? No such definition as is proposed of an "auxiliaryship-of-war" would safeguard the right in question, since a ship, tocome within that definition, must, it appears, be under the orders of abelligerent fleet. 

I would venture to suggest that the motto of a reformer of prize lawshould be _festina lente. _ The existing system is the fruit of practicalexperience extending over several centuries, and, though it may need, here and there, some readjustment to new conditions, brought about bythe substitution of steam for sails, is not one which can safely bepulled to pieces in a couple of months. Let us leave something forfuture 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 asto find room in July last, I returned to the thesis which I had venturedto maintain some months previously, _à propos_ of a question put in theHouse of Commons. My contention was that the establishment of aninternational prize Court, assuming it to be under any circumstancesdesirable, should follow, not precede, a general international agreementas to the law which the Court is to administer. 

It would appear, from such imperfect information as intermittentlyreaches Swiss mountain hotels, that a conviction of the truth of thisproposition is at length making way among the delegates to The HagueConference and among observers of its doings. In a recent number of the_Courrier de la Conférence_, a publication which cannot be accused oflukewarmness in the advocacy of proposals for the peaceful settlement ofinternational differences, I find an article entitled "Pas de CodeNaval, pas de Cour des Prises, " to the effect that "l'acceptation de laCour des Prises est strictement conditionnelle à la rédaction du Code, qu'elle aura à interpréter. " Its decisions must otherwise be foundedupon the opinions of its Judges, "the majority of whom will belong to aschool which has never accepted what Great Britain looks upon as thefundamental principles of naval warfare. " One learns also from othersources, that efforts are being made to arrive, by a series ofcompromises, at some common understanding upon the points as to whichthe differences of view between the Powers are most pronounced. It may, however, be safely predicted that many years must elapse before any suchresult will be achieved. 

In the meantime, a very different solution of the difficulty hascommended itself to the partisans of the proposed Court. M. Renault, theaccomplished Reporter of the committee which deals in the first instancewith the subject, after stating that "sur beaucoup de points le droit dela guerre maritime est encore incertain, et chaque État le formule augré de ses idées et de ses intérêts, " lays down that, in accordance withstrict juridical reasoning, when international law is silent aninternational 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, lesscomplimentarily, described as "evolving new rules out of their innerconsciousness. " The Court, in pursuance of this confessedly "hardiesolution, " 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 ofEngland may possibly be cited in its favour; but the analogy isdelusive. The Courts of a given country in evolving new rules of law arealmost certain to do so in accordance with the views of public policygenerally entertained in that country. Should they act otherwise theirerror can be promptly corrected by the national Legislature. Fardifferent would be the effect of the decision of an international Court, in which, though it might run directly counter to British theory andpractice, Great Britain would have bound herself beforehand toacquiesce. The only quasi-legislative body by which the _ratiodecidendi_ of such a decision could be disallowed would be aninternational gathering in which British views might find scantysupport. The development of a system of national law by national Judgesoffers no analogy to the working of an international Court, empowered, at its free will and pleasure, to disregard the views of a sovereignPower as to the proper rule to be applied in cases as to whichinternational law gives no guidance. In such cases the ultimateadjustment of differences of view is the appropriate work, not of a lawCourt, 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 somemysterious way accessible to Judges, and reveals to them the ruleapplicable to each new case as it arises. This notion, so far as it isprevalent, seems to have arisen from a mistaken reading of certain_dicta_ of Lord Stowell, in which that great Judge, in his finesteighteenth-century manner, insists that the law which it was his duty toadminister "has no locality" and "belongs to other nations as well asour own. " He was, of course, thinking of the rules of prize law uponwhich the nations are agreed, not of the numerous questions upon whichno agreement exists, and was dealing with the difficult position of aJudge who has to choose (as in the recent _Moray Firth_ case) betweenobedience to such rules and obedience to the legislative, orquasi-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 aparagraph which will be read with a sense of relief by those who, likemyself, have all along viewed with surprise and apprehension The Hagueproposals for an international prize Court. 

Sir H. Campbell-Bannerman admits that "it is desirable, and it may beessential, that, before legislation can be undertaken to make such aCourt effective, the leading maritime nations should come to anagreement as to the rules regarding some of the more important subjectsof warfare which are to be administered by the Court"; and hissubsequent eulogy of the Court presupposes that it is provided with "abody of rules which has received the sanction of the great maritimePowers. " What is said as to the necessary postponement of anylegislation 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 thenotion that fifteen gentlemen of mixed nationality composing aninternational prize Court, are to be let loose to "make law, " inaccordance with what may happen to be their conceptions of "justice andequity. " It seems at last to be recognised that such a Court cannot beset to work unless, and until, the great maritime Powers shall have cometo 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 inquestion 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 ofthe 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 thoughta sufficient excuse for the few remarks which I am about to make uponit. The Bill owes its existence to a suggestion made by me, just tenyears ago, while engaged in bringing up to date for the Admiralty my_Manual of Naval Prise Law_ of 1888. It was drafted by me, afterprolonged communications with Judges, Law Officers, and the GovernmentDepartments concerned, so as not only to reproduce the provisions ofseveral "cross and cuffing" statutes dealing with the subject, but alsoto exhibit them in a more logical order than is always to be met with inActs of Parliament. 

The Bill was thought of sufficient importance to be mentioned on twooccasions in the King's Speech, and has been several times passed, aftercareful consideration, by the House of Lords; but pressure of otherbusiness has hitherto impeded its passage through the House of Commons. It has now been reintroduced, this time in the Lower House, with animposing backing of Government support; primarily, no doubt, with a viewto facilitating the ratification of The Hague Convention for theestablishment of an International Prize Court of Appeal. For thispurpose, several pieces of new cloth have been sewn into the oldgarment, and I may perhaps be allowed to call attention to three or fourpoints in which, on a first reading, the new clauses strike one asneeding reconsideration. 

Tactical reasons have, no doubt, operated to induce the Government toinclude in the Consolidation Bill the provisions for which statutoryauthority must be obtained before it will be possible to ratify theConvention; instead of first introducing a Bill having this sole objectin view, and afterwards, should this be passed, inserting the new law ina reintroduced Consolidation Bill. 

The course adopted necessitates an otherwise unnecessary preamble, andthe qualification of the new Part III. By the words "in the event of anInternational 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 thepreamble of the Bill. Is not also the statutory approval given by thisclause, not only to the Convention of 1907 but also to "any Conventionamending the same, " somewhat startling, as tending to excludeParliamentary criticism of such an amending Convention before itsratification?

By Clause 9, the members of the Judicial Committee who are to benominated to act as the British Court of Appeal in cases of prize are tobe described by the novel title of "the Supreme Prize Court. " Is not theuse made of the term "Supreme" in the Judicature Acts, as covering boththe High Court and the Court of Appeal, already sufficientlyunsatisfactory?

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

Is it too much of a counsel of perfection to suggest that the debatablequestions arising under the Convention of 1907 and the Declaration of1909 should first be threshed out in discussions on a Bill dealing withthose questions only; and that the decision, if any, thus arrived atshould be subsequently inserted, freed from hypothesis, in theConsolidation Bill which has so long awaited the leisure of the House ofCommons?

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 theOpposition as to have refrained from forcing on Friday night a divisionupon the Naval Prize Bill. Is it too much to hope that the Governmentmay even now withdraw altogether a measure so ill adapted to placefairly before Parliament the question of the desirability of ratifyingtwo 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 acareful consolidation of the law and procedure governing British Courtsof Prize. Into this has now been incongruously thrust a set of clausesintended to give effect to a novel and highly controversial proposal forthe creation of an International Prize Court. About the Declaration ofLondon, alleged to contain a body of law which would adequately equipsuch a Court for the performance of its duties, not a word is said inthe Bill; yet, should approval of the Bill be snatched by a purely partymajority, the intention of the Government is to proceed straightway tothe ratification both of the Prize Court Convention and the Declaration. Whether they intend also to endeavour to obtain the ratification, as anauxiliary Convention, of the lengthy covering commentary upon theDeclaration, supplied by the committee by which the Declaration wasdrafted, does not yet appear. Of such a step I have already written thatit "would be calamitous should a practice be introduced of attempting tocure the imperfect expression of a treaty by tacking on to it an equallyauthoritative reasoned commentary. The result would be _obscurum perobscurius_, a remedy worse than the disease. "

The alternatives before Parliament on Monday next will be either, byreading the Naval Prize Bill a second time, to bring about, in the teethof protests from those best qualified to express an independent opinionupon the subject, the immediate ratification of the Convention and theDeclaration, or to ask that before, this momentous step is taken theinfinitely complex and delicate questions involved should be examinedand passed upon by a Commission of representative experts. Which shallit 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 accordinglyto be varied by a bill shortly to be introduced. 

May I venture to recommend that the Bill should contain merely thehalf-dozen clauses needed for this purpose, leaving untouched forsubsequent uncontroversial passage, the Naval Prize Consolidation withAmendments Bill? This Bill, suggested and drafted by myself, in thespacious times of peace, in consultation with the Admiralty and otherGovernment Departments, as also with the Judge of the Admiralty Divisionand the Law Officers (including the present Lord Chancellor), was twicementioned in the King's Speech, and several times, after carefulconsideration, passed by the House of Lords, but still awaits theleisure of the Lower House. It deserved a better fate than to have beenused, in 1911, as a corpus vile for facilitating the ratification of theConvention for an International Prize Court and of the Declaration ofLondon; receiving, most fortunately, as so perverted, its _coup degrâce_ from the Lords. It should be passed as an artistic whole, apartfrom any contentious matter, account having, of course, been taken ofrecent 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, morefully considered answers than they received from Mr. McKinnon Wood. 

With reference to the first answer, it may be worth while to point outthat, in Art. 66 of the Declaration, the Powers undertake not only, asin the passage quoted, "to give the necessary instructions to theirauthorities and armed forces, " but also "to take the measures which maybe proper for guaranteeing the application of the rules Contained in theDeclaration by their Courts, and, in particular, by their Courts ofPrize. " The "authentic commentary" upon the article in M. Renault's"Report" explains that the measures in question "may vary in differentcountries, and may or may not require the intervention of theLegislature. "

The second answer lays down broadly that "the decisions of the BritishPrize Courts are founded on International Law, and not on municipalenactments. " Our Prize Courts have, no doubt, on most points, decided inaccordance with International Law, in the sense of the principlesgenerally followed by civilised nations; but, on not a few points, inaccordance with the British view of what is, or ought to be, International Law, in opposition to views persistently maintained byother countries--e. G. With reference to the moment from which ablockade-runner becomes liable to capture. The fact is that, whatevergrandiloquent language may have been judicially employed by Lord Stowellin a contrary sense, it will now hardly be denied that a Prize Courtsits by national, not international, authority, and is bound to take theview of International Law which, if any, is prescribed to it by theconstitutionally expressed will of its own Government. 

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

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, theLondon Declaration of 1909, stand greatly in need of full andwell-informed discussion before receiving the Parliamentary approvalwhich ought to be a condition precedent to the ratification of either ofthem. It is well, therefore, that many Chambers of Commerce have calledthe attention of Government to the detriment to British interest whichmay in their opinion result from these agreements if ratified, althoughthe representations thus made exhibit, in some cases, so littletechnical knowledge as to have been readily disposed of by the ForeignSecretary. For the same reason, I welcome the letter from Mr. GibsonBowles, which appeared in _The Times_ of yesterday, although it containssome statements the inaccuracy of which it may be desirable at once topoint out. 

1. The Declaration of Paris is neither implicitly nor explicitly adoptedby the Declaration of London, "as a part of the common law of nationswhich can no longer be disputed. " The later makes no mention of theearlier one, and M. Benault's _rapport_ (as to the interpretativeauthority of which opinions may well differ) applies the words quoted, not to the Paris Declaration as a whole, but to one only of itsarticles. Mr. Bowles's statement that "the Declaration of London, ifadopted, would reaffirm, and its ratification would in effect, for thefirst time ratify, the Declaration of Paris" cannot be supported. 

2. Mr. Bowles asserts it to be "an unquestioned doctrine of the Law ofNations that war abrogates and annuls treaty obligations betweenbelligerents. " One would have supposed it to be common knowledge thatlarge classes of treaties are wholly unaffected by war. Such are, forinstance, what are called conventions _transitoires_, because theireffect is produced once for all, as in the case of cessions ofterritory; and, notably, treaties entered into for the regulation of theconduct of war, such as the Geneva Convention, many of The HagueConventions of 1907, and the Declaration of Paris itself, which Mr. Bowles appears to think would _ipso facto_ cease to be obligatorybetween its signatories on their becoming belligerent. 

It is a pleasure to be able to agree with Mr. Bowles in his wish thatthe Naval Prize Bill, if reintroduced, should be rejected, though Iwould rather say "withdrawn. " You have already allowed me (on July 10)to point out that if the Convention and Declaration are to beeffectively discussed in Parliament they should be disentangled fromthat Bill, into which the Convention, and, by implication, theDeclaration, have been incongruously thrust. This practicallynon-contentious Consolidation Bill, after several times securing theapproval of the House of Lords, has hitherto for several years awaitedthe leisure of the House of Commons, but was suddenly reintroduced lastSession, apparently as an unobtrusive vehicle for the new and highlydebatable matter contained in the two above-mentioned documents. May Inow repeat my suggestion that "the debatable questions arising under theConvention of 1907 and the Declaration of 1909 should first be threshedout in discussions on a Bill dealing with these questions only; and thatthe 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 ofLondon with the attention due to anything written by my very learnedfriend, but, although myself opposed to the ratification alike of thePrize Court Convention and of its complement, the Declaration, do not atpresent wish to enter upon the demerits of either instrument. 

There is, however, a preliminary question upon which, with yourpermission, I should like to say a few words. My friend justly observesthat in dealing with the Declaration "the first necessity is to knowwhat it is that we have before us"; and he devotes his letter of January31 to maintaining that the Declaration must be read as interpreted bythe explanations of it given to the full Conference by the DraftingCommittee, of which M. Renault was president. Professor Westlakesupports his opinion by a quotation from the reply of the Foreign Officein 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 yearpreviously, 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 ofthe Report, addressed on March 1, 1909, to Sir Edward Grey, of theBritish 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 amaware of none. The nearest approach to an assertion of anything like itoccurred at The Hague Conference of 1899, when the "approval" accordedto "the work of the Second Committee, as embodied in the articles votedand in the interpretative Report which accompanies them" was alleged byM. De Martens to amount to an acceptance of the Report "comme uncommentaire interprétatif authentique des articles votés. " (_Miscell. _1899, No. 1, p. 165. ) The drafting Report presented to the GenevaConference of 1906 is merely said to have been "adopted" (Actes, p. 286); and M. Renault's Report to the Conference of London was similarlymerely "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, amountedto nothing more than an expression of opinion on the part of theDelegates to the Conference that the Report contained explanations whichhad satisfied themselves, and might satisfy their Governments, that theConvention which they were about to forward to those Governments mightsafely be accepted. 

So far as Governments are concerned, the adoption of a Report by theirDelegates is _res inter alios acta_. An "authentic interpretation" of acontract can be given only by the parties to it, who, in the case of atreaty, are the States concerned. If these States desire to give to thereport of a drafting committee the force of an authentic interpretationof their contract, they can surely do so only by something amounting toa supplementary convention. Writers upon international law naturallythrow but little light upon questions to which the somewhat novelpractice of argumentative drafting Reports has given rise; but I maycite 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 theDeclaration of London has no claim to the sort of interpretativeauthority which has been attributed to it; nor is it desirable that therequisite steps should be taken for giving it that authority. It wouldbe calamitous should a practice be introduced of attempting to cure theimperfect expression of a treaty by tacking on to it an equallyauthoritative reasoned commentary, likely, as in the present case, to beenormously longer than the test to which it relates. 

It is a wholly different question whether Governments or Courts would beinclined to take notice of such a Report, among other facts antecedentto a Convention, or Declaration, which they might be called upon toconstrue. A British Court would not, I conceive, be so inclined. On theprobable inclinations of Continental Courts, and of an InternationalPrize Court, should one be instituted, further expert information wouldseem to be called for. 

The fact is that the vitally important questions of theory and practiceraised by the Convention and the Declaration need calmer and betterinstructed discussion than they have yet received. Ought they not to bereferred to a Royal Commission, on which should be placedrepresentatives of the Navy and Merchant Service, of the corn trade, andof the Colonies, together with international lawyers, in touch with theviews 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 thearguments by which I had endeavoured to show that the Report made to theConference of London has no pretensions to be treated as an authenticinterpretation of the Declaration prepared by the Conference, stillmaintains that "the essential question will be, what the agreement wasthat the Conference arrived at. " I had maintained, on the contrary, thatthe essential question will be, What is the agreement entered into bythe Powers, as evidenced by their ratifications? anything outside of theratified agreement being _res inter alios acta_. I should not bejustified in asking you to allow me to repeat the contents of my letterof 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 seemsto think, attribute the acceptance of the Report to the delegates"singly. " It was, no doubt accepted by all present without protest. Mycolleague will, I am sure, pardon me if I add that I cannot concur inhis 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 Cohendistinctly accedes to the view that the Declaration of London ought notto be ratified as it stands. I should, however, be sorry were hissuggestion accepted that the Declaration and the argumentative reportwhich 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 tolook again at my letters of February 10 and 25, he will cease to supposeit possible that in writing "the pleadings are, I think, exhausted, &c. , " I meant to convey that no further discussion of the merits ordemerits of the Declaration was required. On the contrary I expresslylimited myself to a consideration of the preliminary question, whetherinterpretative authority would rightly be attributed to the report inquestion, stating that, while opposed to the ratification alike of thePrize Court Convention and of the Declaration, I did not, for thepresent, wish to enter upon the demerits of either instrument; and endedmy first letter by suggesting the reference to a Royal Commission of"the vitally important questions of theory and practice raised by theConvention and the Declaration, " as needing "calmer and betterinstructed 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 thatnot even "the man in the street" will suppose the Declaration of Londonto be anything more than an objectionable draft, by which no country hasconsented to be bound. Every day of the war makes more apparent our debtto the House of Lords for having, four years ago, prevented the BritishGovernment from ratifying either the International Prize CourtConvention or this Declaration, which, while misleadingly professingthat its provisions "correspond in substance with the generallyrecognised principles of international law, " contains, interspersed withtruisms familiar to all concerned with such matters, a good manyundesirable novelties. 

This being so, it was surely unfortunate that our Government, with aview apparently to saving time and trouble, decided, in the early daysof the war, to adopt the Declaration _en bloc_ as a statement of prizelaw "during the present hostilities, " subject, however, to "certainadditions and modifications"; to which it, of course, retained the powerof making additions. This power has been so freely exercised, and largeportions of the Declaration, not thereby affected, have proved to be soinapplicable to modern conditions, as disclosed by the war, that thedocument, so far from providing reliable guidance, is now a mere sourceof hopeless confusion. 

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

While heartily concurring in Lord Portsmouth's description of theunratified "Declaration" as "rubbish, " I regret that he seems torelegate to the same category even those generally ratified "HagueConventions" which, as far as they go, mark a real advance uponpreviously accepted rules. Still less acceptable is his advice to "sweepaway juridical niceties" in the conduct of hostilities. Did he intendthus to describe the whole fabric of the rules by which internationallaw has endeavoured, with considerable success, to restrain barbarity inwarfare?

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

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 theDeclaration of London, both in its original inception and in itssubsequent applications. Thanks to the House of Lords, the Declaration, which erroneously professed to "correspond in substance with thegenerally recognised principles of International Law, " has remainedunratified, and therefore diplomatically of no effect. 

Its admirers have, however, too long preserved it, perhaps _sub sperati_, in a state of suspended animation, using it by way of, as theysupposed, a convenient handbook of maritime law for the purposes of thepresent war, though subject to such variations as might from time totime be found convenient by the Allies. The mistake thus made soonbecame apparent. The elaborate classification of contraband had to be atonce thrown overboard, and most of the remaining provisions of theDeclaration 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, asit does for good and all, of the unfortunate Declaration, leaving theapplication of established principles to those acquainted with them andpromulgating 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 forratification, although they may profess to set out old law, differ in norespect from other conventions. Also, as to the need for greater cautionon the part of our representatives than has been shown by theiracceptance of various craftily suggested anti-British suggestions, suchas were several embodied in the Declaration in question, and notablythat of the notorious cl. 23 (_h_) of The Hague Convention iv. , theinterpretation of which has exercised the ingenuity of the ForeignOffice 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 representativesof the neutral Powers supports its allegation that the four AlliedPowers "have trampled upon right and torn up the treaties on which itwas 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 thedraft of a treaty, give to it no international validity, which resultsonly when the treaty has been ratified by their Government. TheDeclaration of London has, most fortunately, never been ratified by theGovernment of Great Britain. 

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

INDEX

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

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

Cable-cutting, 30, 168-173Cables, submarine, 168Campbell-Bannerman, Sir H. , 189Captors, unqualified, 71, 73, 162, 163Carson, Sir Edward, 127Cavell, Miss, case of, 79_Calchas_, the, 151, 152, 153Cecil, Lord Robert, 8, 207Channel tunnel, 42_Chavasse, ex parte_, 137Civilians armed, position of, 77, 78, 79Churchill, Mr. Winston, 106Claims, competitive, 17Clarke, Sir Edward, 124Clode, Mr. , 112Closed localities, 50Clothing, use of enemy, 75Coal, 176 conditional contraband, 149 for belligerent fleet, 131, 134Coast fishing vessels, 30Codification of laws of war, 22, 23Cohen, Mr. Arthur, 47, 203Coltman, Mr. , 85Commencement of war, 41_Commercen_, the, 159Commissioning on the High Seas, 90Commissions of enquiry, 4Compromise, the, between belligerent and neutral rights, 133, 136, 164, 169Conditional contraband. _See_ ContrabandConduct of warfare between belligerents, 50Conflict of Laws, 34, 35Continuous voyages, 29, 157, 162, 183"Contraband, a happy little, " 153Contraband 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, 159Contractual debts, 21Contributions, 102, 118Conventions. _See_ Geneva, Hague, &c. And Legislation, 36 "transitoires, " 198Conversion. _See_ TransformationConvoy, 31Cotton, 177 as contraband, 149, 151, 152Court of International Justice, a permanent, 2, 191Criticism of Bills, 36-40, 192Customs Consolidation Act, 1853, 132

Danger zone, a, 59Dardanelles, closing of, 55, 58, 80, 90, 92"Declaration, " misuse of the term, 90, 92, 206Declaration, 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, 207Declaration, 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, 91Declaration, the, of St. Petersburg, 22, 27, 91, 95, 96, 97 von Moltke upon, 25Declaration of war, 10, 41, 43Declarations, mistaken view as to their not needing ratification, 90, 91 the three, of the Hague in 1899. _See_ HagueDe Horsey, Admiral, 118, 164De Joinville, Prince, 117De Martens, Prof. , 162, 166, 176, 200Deposit of delict, 158Despatches, enemy, 156, 158, 160Destination, 8, 155, 156Destruction of neutral prizes, 22, 173-181Dickenson, Mr. Lowes, 125_Direct U. S. Cable Co. _ v. _Anglo-American Tel. Co. _, 166Disguise, 75, 76Distinctive marks, 77, 79_Doelwijk_, the, 161Drago doctrine, the, 20_Droit d'angarie_, the, 170Dum-dum bullet. _See_ Bullets_Durward_, the, 60

Embargo, 11Enemy, 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, 77Enquiry, international Commissions of, 1, 3, 4, 6Evans, Sir Samuel, 70

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

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

_Haabet_, the, 160Hague 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, 146Hague Declarations, the, 22, 30, 61, 62, 63, 64, 96Hague _Règlements_, the, as to war on land, 75, 76, 78, 93, 95, 100Hague Tribunal, the, 5 reference to, not obligatory, 25Haldane, Mr. R. B. , 45Hall, Mr. W. E. , on pacific blockade, 13Harcourt, Sir W. , 74Hardinge, Sir C. , 152Herbert, Mr. Arnold, 182, 184Holland, 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, 196Honour and vital interests clause, the, 4, 5, 6Horses, wounded, 98, 100Horsey, Adml. , 118, 164, 166Hostile assistance, 88, 157, 160, 186Hübner, 190

_Ikaria_, the, 60_Imina_, the, 160Immediate effects of outbreak of war, the, 45Institut 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, 108Instructions, 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, 169International Court of Appeal, an, 184International Justice, a Permanent Court of, 2International Law, the nature and authority of, 66, 67, 77, 86, 114, 115, 116, 119, 127, 169, 188International Prize Court, proposal for an, 23, 181-191

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

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

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

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

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

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

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

"Quasi-enemy, " 12

Radiotelegraphic stations, 168Rae, Mr. , 162Ratification, 203Receipts, 102_Règlements_, the Hague. _See_ HagueRenault, 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, 123Requisitions, 102, 117Restrictive clause, the, 69, 146Retaliation, 97Reward for, dead or alive, 93_R. _ v. _Eyre_, 110Ridley, Sir E. , 77Roman Law terminology, 102Roosevelt, Pres. , 146Rosebery, Lord, 158Ross, Sir R. , 78Russian Prize Law, 162, 174, 176

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

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

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

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

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

_Zamora_, the, 207Zone, a danger, 59

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[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. ]