r
UNIVERSITY OF CALIFORNIA
AT LOS ANGELES
THE GIFT OF
MAY TREAT MORRISON
IN MEMORY OF
ALEXANDER F MORRISON
LETTEES
UPON
WAE AND NEUTEALITY
(1881-1909)
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LETTERS TO "THE TIMES"
UPON
WAE AND NEUTKALITY
(1831-1909)
WITH SOME COMMENTARY
BY
THOMAS ERSKINE HOLLAND
K.C, D.C.L., F.B.A. 'f .
CHICHELE PROFESSOR OF INTERNATIONAL LAW,
VICE-PBfisiDZNT DE LINSTITDT DE DROIT LXTERNATIONAL, ETC., ETC.
* 3
LONGMANS, GREEN, AND CO.
89 PATERNOSTER ROW, LONDON
NEW YORK, BOMBAY. AND CALCUTTA
1909
All rights reserved
I
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CO
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O
ia.
PREFACE
For a good many years past I have been allowed to
comment, in letters to The Times, upon points of
International Law, as they have been raised by the events
of the day. These letters have been fortunate enough to
attract some attention, both at home and abroad, and
requests have frequently reached me that they should be
rendered more easily accessible than they can be in the
jales of the newspaper in which they originally appeared.
I have, accordingly, thought that it might be worth
while to select, from a greater number, such of my letters
as bear upon those questions of War and Neutrality of
which so much has been heard in recent years, and to
group them for republication, with some elucidatory
matter (more especially with references to changes intro-
duced by the Geneva Convention of 1906, The Hague
Conventions of 1907, and the Declaration of London of
the present year) under the topics to which they respectively
relate.
The present volume has been put together in accord-
ance with this plan ; and my best thanks are due to the
434439
vi PEEFACE
proprietors of The Times for permitting the reissue of
the letters in a collected form. Cross-references and a full
Index will, I hope, to some extent remove the difficulties
which might otherwise be caused by the fragmentary
character, and the chances of repetition, inseparable from
such a work.
T. E. H.
Eggishorn, Switzerland,
September 14, 1909.
*^* It may be right here to mention that, though most of the
Conventions of 1907, to which so frequent reference is made in the
following pages, have been, subject to various reservations, aheady
signed by the Powers represented at the Second Peace Conference,
they will in no case be formally ratified till towards the end of the
present year. The Declaration of 1909 has been signed by all the
Powers present at the London Conference, but is not likely just yet
to be ratified by any of them. Great Britain cannot well ratify any
of The Hague Conventions which require legislation to carry them into
effect (e.g. probably Nos. 1, 5, 10, 12, 13), or the Declaration of
London, until it shall have been found possible to pass the necessary
Acts of Parhament.
CONTENTS
CHAPTER I
PAGE
MEASURES SHORT OF WAR FOR THE SETTLEMENT
OF INTERNATIONAL CONTROVERSIES ... 1
Section I
Friendly Measures 1
The Petition to the President of the United States (1899) . 2
Commissions of Enquiry and The Hague Convention (1904) 4
Section 2
Reprisals 8
The Blockade of the Menam (1893) 8
Pacific Blockade (1897) 10
The Venezuelan ControveTsy (1902) 12
The Venezuela Protocol (1903) 17
War and Reprisals (1908) 18
CHAPTER II
STEPS TOWARDS THE CODIFICATION OF THE LAWS
OF WAR 22
Count von Moltke on the Laws of Warfare (1881) ... 24
viii CONTENTS
PAGE
Professor Bluntschli's Reply to Count von Moltke (1881) . 26
The United States Naval War Code (1901) 29
A Naval War Code (1902) 32
CHAPTER III
THE COMMENCEMENT OF WAR ... 34
Section 1
Declaration of War 34
The Sinking of the Koroshing (1894) 35
Section 2
The Immediate Effects of the Outbreak of War . . 38
Foreign Soldiers in England (1909) 39
CHAPTER IV
THE CONDUCT OF WARFARE AS BETWEEN BEL-
LIGERENTS 42
Section 1
Localities closed to Hostilities 42
The Suez Canal (1898) 43
„ ( „ ) : 45
„ ( „ ) 46
Section 2
Lawful Belligerents 48
GueriUa Warfare (1900) 48
The Russian use of Chinese Clothing (1904) 50
CONTENTS ix
Section 3
PAGE
Assassination 51
The Natal Proclamation (1906) 52
Section 4
The Choice of Means of Injuring .... 53
Bullets in Savage Warfare (1903) 53
The Debate on Aeronautics (1909) 56
Section 5
The Geneva Convention 58
Wounded Horses in War (1899) 59
Section 6
Enemy Property in Occupied Territory ... 61
International Usufruct (1898) 61
Requisitions in Warfare (1902) 64
Section 7
Martial Law 65
The Executioas at Pretoria (1901) 6G
The Petition of Right (1901) 68
» „ „ „ (1902) 70
Martial Law in Natal (1906) 72
Section 8
The Naval Bombardment of Open Coast Towns . . 73
Naval Atrocities (1888) 74
The Naval Manoeuvres (1888) 74
»> M »> ( •' ) 78
Naval Bombardments of Unfortified Places (1904) ... 81
CONTENTS
CHAPTEE V
PAGE
THE RIGHTS AND DUTIES OF NEUTRALS. . 86
Section 1
The Criterion of Neutral Conduct .... 86
Professor de Martens on the Situation (1905) 86
Section 2
The Duties of Neutral States, and the Liabilities of Neutral
Individuals, distinguished 88
Contraband of War (1904) 90
Coal for the Russian Fleet (1904) 92
The British Proclamation of Neutrahty (1904) .... 95
>> »> >j >> \ f^ ) • ' • ' "5
Belligerent Fleets in Neutral Waters (1905) 101
Section 3
Carriage of Contraband 103
Absolute and Conditional Contraband 104
Contrabandof War (1898) 104
Is Coal Contraband of W^ar ? (1904) 106
Cotton as Contraband of War (1905) 108
Japanese Prize Law (1905) 112
,, ,, 99 ^ ,, j ......... . 114
Continuous Voyages 114
Prize Law (1900) 115
The Allanton (1904) 118
Unqualified Captors 119
The Allanton (1904) 120
CONTENTS xi
SEcnojf 4
PAGE
Methods of Warfare as affecting Neutrals . . . 122
Privateers 122
Our Mercantile Marine in War Time (1898) 123
in War (1898) 129
Mine-s 130
Mines in the Open Sea (1904) 131
Territorial Waters (1904) 132
Cable-cutting 134
Submarine Cables (1881) 135
in Time of War (1897) 136
» ( ,. ) 139
99 99
99 >J 9? ?»
Sectiox 5
Destriiction of Prizes 140
Russian Prize Law (1904) 142
„ „ ( .. ) 146
The Sinking of Neutral Prizes (1905) 147
Section 6
An International Prize Court 150
An International Prize Court (1907) 150
A New Prize Law (1907) 152
„ ,. ( „ ) 156
„ „ ( ,. ) 159
»? 99
Index 163
CHAPTEE I
MEASURES SHORT OF WAR FOR THE SETTLEMENT
OF INTERNATIONAL CONTROVERSIES
Section 1
Friendly Measures
Op the two 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 advisa-
biUty of employing, for the first time, an International Com-
mission 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 Pari. 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) Cood r)fTicc8 and mediation of third Powers ;
B
2 MEASURES SHORT OF WAR
(2) " Special mediation " ; (3) " International Commissions of
Enquiry " ; (4) Arbitration. All four are recommended by The
Hague Convention of 1899 " For tbe Peaceful Settlement of
International Disputes " (by wbich, 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
remains entirely discretionary^ sq far as any rule of International
Law is concerned ; • -all Vfdrts to render it universally and
unconditionally ebl-igatory haying, perhaps fortunately, failed.
THE PETITION TO THE PRESIDENT
OF THE UNITED STATES
SiE, — It seems that a respectably, though perhaps
thoughtlessly, signed petition was on Thursday presented
to President McKinley, urging him to offer his good o£&ces
to bring to an end the war now being waged in South
Africa. From the New York World cablegram, it would
appear that the President was requested to take this step
*' in accordance with Article 3 of the protocol of the Peace
Conference at The Hague." The reference intended is
doubtless to the Convention four le reglement 'pacifique des
conflits inter nationaux, prepared at the Conference [of 1899],
Article 3 of which is to the following effect : —
" Les Puissances signataires jugent utile qu'une ou plusieurs
Puissances etrangeres au conflit offrent de leur propre initiative, en
tant que les circonstances, s'y pre tent, leiu'S bons offices ou leur media-
tion aux Etats en conflit.
" Le droit d'offrir les bons offices ou la mediation appartient aux
Puissances etrangeres au conflit, meme pendant le cours des hostiUtes.
" L'exercice de ce droit ne peut jamais etre considere par I'une ou
I'autre des parties en litige comme un acte peu amical."
Several remarks are suggested by the presentation of
this petition : —
FEIENDLY MEASURES 3
(1) One might suppose from the gHb reference here
and elsewhere made to The Hague Convention, that this
convention is akeadj in force, whereas it is, in the case
of most, if not all, of the Powers represented at the con-
ference, a mere unratified draft, under the consideration
of the respective Governments.
(2) The article, if it were in force, would impose no
duty of offering good offices, but amounts merely to the
expression of opinion that an offer of good offices is a
useful and unobjectionable proceeding, in suitable cases
{en tant que les circonstances s'y 'pretent). It cannot for
a moment be supposed that the President would consider
that an opportunity of the kind contemplated was offered
by the war in South Africa.
(3) One would like to know at what date, if at all,
the Prime Minister of the British colony of the Cape was
pleased, as is alleged, to follow the lead of the Presidents
of the two Boer Piepublics in bestowing his grateful 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 in course of being superseded by The Hague Convention,
No. i. of 1907, which reproduces Article 3 of the older Con-
vention, inserting, however, after the won! " utile," the words
" et desirable."
76. (2).— On March 5, 1900, the two Boer Repubhcs proposed
that peace should be made on terms which included the recognition
of their independence. Great Britain having, on March 11,
4 MEASURES SHORT OF WAR
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. Govern-
ment does not propose to accept the intervention of any
Power in the South African War." Similar rephes to similar
ofiers had been made by both France and Prussia in 1870, and
by the United States in 1898.
COMMISSIONS OF ENQUIRY AND THE HAGUE
CONVENTION
Sir, — It is just now especially desirable that the purport
of those provisions of The Hague Convention "for the peace-
ful settlement of international controversies " which deal
with " international commissions of enquiry " should be
clearly understood. It is probably also desirable that a
more correct idea should be formed of the effect of that
convention, as a whole, than seems to be generally prevalent.
You may, therefore, perhaps, allow me to say a few words
upon each of these topics.
Article 9 of the convention contains an expression
of opinion to the effect that recourse to an international
commission of enquiry into disputed questions of fact would
be useful. This recommendation is, however, restricted
to " controversies in which neither honour nor essential
interests are involved," and is further limited by the phrase
" so far as circumstances permit." Two points are here
deserving of notice.
FRIENDLY MEASURES 6
In the first place, neither " the honour and vital interests
clause," as seems to be supposed by your correspondent Mr.
Schidrowitz, nor the clause as to circumstances permitting,
is in any way modified by the article which follows. Article
10 does not enlarge the scope of Article 9, but merely indicates
the procedure to be followed by Powers desirous of acting
under it. In the second place, it is wholly unimportant
whether or no the scope of Article 9 is enlarged by Article 10.
The entire liberty of the Powers to make any arrangement
which may seem good to them for clearing up their differences
is neither given, nor impaired, by the articles in question,
to which the good sense of the Conference declined to attach
any such obligatory force as had been proposed by Russia.
It may well be that disputant Powers may at any time
choose to agree to employ the machinery suggested by those
articles, or something resembling it, in cases of a far more
serious kind than those to which alone the convention
ventured to make its recommendation applicable ; and
this is the course which seems to have been followed by
the Powers interested with reference to the recent lamentable
occurrence in the North Sea.
As to the convention as a whole, it is important to
bear in mind that, differing in this respect from the two
other conventions concluded at The Hague, it is of a non-
obligatory character, except in so far as it provides for the
establishment of a permanent tribunal at The Hague, to
which, however, no Power is bound to resort. It resembles
not so much a treaty as a collection of " pious wishes '
{voeux), such as those which were also adopted at The Hague.
The operative phrases of most usual occurrence in the
convention are, accordingly, such as "jugent utile"; "sont
6 MEASURES SHORT OF WAR
d'accord pour recommander " ; " est reconnu comme le
moyen le plus efficace " ; " se reservent de conclure des
accords nouveaux, en vue d'etendre I'arbitrage obligatoire a
tous les cas qu'elles jugeront possible de iui soumettre."
It is a matter for rejoicing that, in accordance with
the suggestion contained in the phrase last quoted, so many
treaties, of which that between Great Britain and Portugal
is the most recent, have been entered into for referring to
The Hague tribunal " differences of a juridical nature, or
such as relate to the interpretation of treaties ; on condition
that they do not involve either the vital interests or the
independence or honour of the two contracting States."
Such treaties, conforming as they all do to one carefully
defined type, may be productive of much good. They
testify to, and may promote, a very widely spread entente
cordiale, they enhance the prestige of the tribunal of The
Hague, and they assure the reference to that tribunal of
certain classes of questions which might otherwise give
rise to international comphcations. Beyond this it would
surely be unwise to proceed. It is beginning to be realised
that what are called " general " treaties of arbitration, by
which States would bind themselves beforehand to submit
to external decision questions which might involve high
political issues, will not be made between Powers of the
first importance ; also, that such treaties, if made, would
be more likely to lead to fresh misunderstandings than to
secure the peaceful settlement of disputed questions.
I am. Sir, joni obedient servant,
T. E. Holland.
Oxford, November 21 (1904).
FEIENDLY MEASURES 7
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 con-
cerned, 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,
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, aro 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 on
October 14, 1908, 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 con-
tracting 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.
8 MEASURES SHORT OF WAR
Section 2
Reprisals.
The four letters next following were suggested by the ambi-
guous 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 OP THE MENAM
Sir, — Upon many questions of fact and of policy involved
in the quarrel between France and Siam it may be premature
as yet to expect explicit information from the French
Government ; but there should not be a moment's doubt
as to the meaning of the blockade which has probably by
this time been established.
Is France at war with Siam ? This may well be the
case, according to modern practice, without any formal
declaration of war ; and it is, for international purposes,
immaterial whether the French Cabinet, if it has commenced
a war without the sanction of the Chambers, has or has
not thereby violated the French Constitution. If there
is a war, and if the blockade, being effective, has been
duly notified to the neutral Powers, the vessels of those
Powers are, of course, hable to be visited, and, if found
EEPRISALS 9
to be engaged in breach of the blockade, to be dealt with
by the French Prize Courts.
Or is France still at peace with Siam, and merely putting
upon her that form of pressui'e w^hich is known as " pacific
blockade " ?
In this case, since there is no belhgerency, there is no
neutrahty, and the ships of States other than that to which
the pressure is being applied are not liable to be interfered
with. The particular mode of applying pressure without
going to war known as "pacific blockade" dates, as is well
known, only from 1827. It has indeed been enforced, by
England as well as by France, upon several occasions, against
the vessels of third Powers ; but this practice has always
been protested against, especially by French jurists, as
an unwarrantable interference with the rights of such
Powers, and was acknowledged by Lord Palmerston to
be illegal. The British Government distinctly warned
the French in 1884 that their blockade of Formosa could
be recognised as affecting British vessels only if it con-
stituted an act of war against China ; and when the Great
Powers in 188G proclaimed a pacific blockade of the coasts
of Greece they carefully limited its operation to ships under
the Greek flag.
The subject has been exhaustively considered by the
Institut do Droit International, which, at its meeting at
Heidelberg in 1887, arrived at certain conclusions which
may be taken to express the view of learned Europe. They
are as follows : —
" L'etablissemcnt dun blocus en dehors do l'6tat de guerre ne
doit 6tro considere comrao permis par le droit dcs gens que soua les
conditions suivantcs : —
10 MEASUKES SHORT OF WAR
" 1. Les navires de pavilion etranger peuvent entrer librement
malgre le blocus.
" 2. Le blocus pacifique doit etre declare et notifie officiellement,
et maintenu par une force suflSsante.
" 3. Les navires de la puissance bloquee qui ne respectent pas un
pareil blocus peuvent etre sequestres. Le blocus ayant cesse, ils
doivent etre restitues avec leurs cargaisons a leurs proprietaires, mais
sans de dommagement a aucun titre."
If the French wish to reap the full advantages of a
blockade of the Siamese coast they must be prepared,
by becoming beUigerent, to face the disadvantages which
may result from the performance by this country of her
duties as a neutral.
I am, Sir, your obedient servant,
T. E. Holland.
Athenaeum Club, July 26 (1893).
PACIFIC BLOCKADE
Sir, — The letter signed " M." in your issue of this morning
contains, I think, some statements which ought not to
pass uncorrected. A " blockade " is, of course, the denial
by a naval squadron of access for vessels to a defined portion
of the coasts of a given nation. A " pacific blockade " is one of
the various methods — generically described as " reprisals,"
such as " embargo," or seizure of ships on the high seas —
by which, without resort to war, pressure, topographically
or otherwise hmited in extent, may be put upon an offending
State. The need for pressure of any kind is, of course,
regrettable, the only question being whether such limited
pressure be not more humane to the nation which experi-
ences it, and less distasteful to the nation which exercises
KEPRISALS 11
it, than is the letting loose of the limitless calamities
of war.
The opinion of statesmen and jurists upon this point
has undergone a change, and this because the practice
known as " pacific blockade " has itself changed. The
practice, which is comparatively modern, dating only from
1827, was at first directed against ships under all flags,
and ships arrested for breach of a pacific blockade were at
one time confiscated, as they would have been in time of
war. It has been purged of these defects as the result
of discussions, diplomatic and scientific. As now under-
stood, the blockade is enforced only against vessels belonging
to the " quasi-enemy," and even such vessels, when arrested,
are not confiscated, but merely detained till the blockade
is raised. International law does not stand still, and having
some acquaintance with Continental opinion on the topic
under consideration, I read with amazement " M.'s " asser-
tion that " the majority in number," " the most weighty in
authority " of the writers on international law " have never
failed to protest against such practices as indefensible in
principle." The fact is that the objections made by, e.g.
Lord Palmerston, in 1846, and by several writers of text-
books, to pacific blockade, had reference to the abuses
connected with the earlier stages of its development. As
directed only against the ships of the " quasi-enemy," it
has received the substantially unanimous approbation
of the Institut do Droit International at Heidelberg in
1887, after a very interesting debate, in which the advo-
cates of the practice were led by M. Perels, of the Prussian
Admiralty, and its detractors by Professor Geffken. It is
true that in an early edition of his work upon international
12 MEASUEES SHORT OF WAR
law my lamented friend, Mr. Hall, did use the words attri-
buted to him by " M." : " It is difficult to see how a pacific
blockade is justifiable." But many things, notably Lord
Granville's correspondence with France in 1884 and the
blockade of the Greek coast in 1886, have occurred since
those words were written. If " M." will turn to a later edition
of the work in question he will see that Mr. Hall had com-
pletely altered his opinion on the subject, or rather that,
having disapproved of the practice as unreformed, he
blesses it altogether in its later development. With reference
to the utility of the practice, I should like to call the attention
of " M." to a passage in the latest edition of Hall's book,
which is perhaps not irrelevant to current politics : —
" The circumstances of the Greek blockade of 1886 show that occa-
sions 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 block-
ade 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 Sir Robert Giffen in your issue of this morning, of obtain-
ing compensation in money from a State which seems to
be at once bankrupt and in the throes of revolution, not
a few questions of law and policy, as to which misunder-
standing is more than probable, are raised from day to day
EEPEISALS 13
by the action of the joint squadrons in Venezuelan waters.
It may therefore be worth while to attempt to disentangle
the more important of these questions from the rest, and to
indicate in each case the principles involved.
1. Are we at war with Venezuela ? Till reading the
reports of what passed last night in the House of Commons,
I should have rephed to this question unhesitatingly in
the negative. Most people whose attention has been
directed to such matters must have supposed that we were
engaged in the execution of " reprisals," the nature and
legitimacy of which have long been recognised by inter-
national law. They consist, of course, in the exertion of
pressure, short of war ; over which they possess the following
advantages : — They are strictly limited in scope ; they
cease, when their object has been attained, without the
formalities of a treaty of peace ; and, no condition of
" belligerency " existing between the Powers immediately
concerned, third Powers are not called upon to undertake
the onerous obligations of " neutrality." The objection some-
times made to reprisals, that they are applicable only to the
weaker Powers, since a strong Power would at once treat
them as acts of war, is indeed the strongest recommendation
of this mode of obtaining redress. To localise hostile
pressure as far as possible, and to give to it such a character
as shall restrict its incidence to the peccant State, is surely
in the interest of the general good. That the steps taken
are such as would probably, between States not unequally
matched, cause an outbreak of war cannot render them
inequitable in cases where so incalculable an evil is unlikely
to follow upon their employment.
2. The justification of a resort either to reprisals or to war,
14 MEASURES SHORT OP WAR
in any given case, depends, of course, upon the nature of the
acts complained of, and upon the vahdity of the excuses put
forward either for the acts themselves, or for failure to give
satisfaction for them. The British claims against Venezuela
seem to fall into three classes. It will hardly be disputed
that acts of violence towards British subjects or vessels,
committed under State authority, call for redress. Losses
by British subjects in the course of civil wars would come
next, and would need more careful scrutiny (on this point
the debates and votes of the Institut de Droit International,
at its meeting at Neuchatel in 1900, may be consulted with
advantage). Last of all would come the claims of unpaid
bondholders, as to which Mr. Balfour would seem to endorse,
in principle, the statement made in 1880 by Lord Sahsbury,
who, while observing that " it would be an extreme assertion
to say that this country ought never to interfere on the part
of bondholders who have been wronged," went on to say that
" it would be hardly fair if any body of capitalists should
have it in their power to pledge the people of this country
to exertions of such an extensive character. . . . They
would be getting the benefit of an English guarantee without
paying the price of it."
3. Reprisals may be exercised in many ways ; from such
a high-handed act as the occupation of the Principalities by
Russia in 1853, to such a mere seizure of two or three
merchant vessels as occurred in the course of our controversy
with Brazil in 1861. In modern practice, these measures
imply a temporary sequestration, as opposed to confiscation
or destruction, of the property taken. In the belief that
reprisals only were being resorted to against Venezuela, one
was therefore glad to hear that the sinking of gunboats by
REPEISALS 15
the Germans had been explained as rendered necessary by
their unseaworthiness.
4. Reprisals should also, according to the tendency of
modern opinion and practice, be so applied as not to interfere
with the interests of third Powers and their subjects. This
point has been especially discussed with reference to that
species of reprisal known as a " pacific blockade," of which
some mention has been made in the present controversy.
The legitimacy of this operation, though dating only from
1827, if properly apphed, is open to no question. Its earlier
appHcations were, no doubt, unduly harsh, not only towards
the peccant State, but also towards third States, the ships
of which were even confiscated for attempting to break a
blockade of this nature. Two views on this subject are now
entertained — viz. (1) that the ships of third Powers breaking
a pacific blockade may be turned back with any needful
exertion of force, and, if need be, temporarily detained ;
(2) that they may not be interfered with. The former view
is apparently that of the German Government. It was
certainly maintained by M. Perels, then as now, the adviser
to the German Admiralty, during the discussion of the
subject by the Institut de Droit International at Heidelberg
in 1887. The latter view is that which was adopted by the
Institut on that occasion. It was maintained by Great
Britain, with reference to the French blockade of Formosa
in 1884 ; was acted on by the allied Powers in the blockade
of the coast of Greece, instituted in 1886 ; and is apparently
put forward by the United States at the present moment.
5. If, however, we are at war with Venezuela (as will,
no doubt, be the case if we proclaim a belligerent blockade
of the coast, and may at any moment occur, should Venezuela
16 MEASURES SHORT OF WAR
choose to treat our acts, even if intended only by way of
reprisals, as acts of war), the situation is changed in two
respects : (1) the hostihties which may be carried on by the
allies are no longer localised, or otherwise limited, except by
the dictates of humanity ; (2) third States become iyso facto
" neutrals," and, as such, subject to obligations to which up
to that moment they had not been liable. Whatever may
have previously been the case, it is thenceforth certain that
their merchant vessels must respect the, now belligerent,
blockade, and are liable to visit, search, seizure, and confisca-
tion if they attempt to break it.
6. If hostile pressure, whether by way of reprisals or of
war, is exercised by the combined forces of allies, the terms
on which this is to be done must obviously be arranged by
previous agreement. More especially would this be requisite
where, as in the case of Great Britain and Germany, different
views are entertained with reference to the acts which are
permissible under a " pacific blockade."
7. When, besides the Power, or Powers, putting pressure
upon a given State, with a view to obtaining compensation
for injuries received from it, other Powers, though taking
no part in what is going on, give notice that they also
have claims against the same offender, delicate questions
may obviously arise between the creditors who have and
those who have not taken active steps to make their claims
effective. In the present instance, France is said to assert
that she has acquired a sort of prior mortgage on the assets
of Venezuela ; and the United States, Spain, and Belgium
declare themselves entitled to the benefit of the " most-
favoured-nation clause" when those assets are made avail-
able for creditors. What principles are applicable to the
BEPRISALS 17
solution of the novel questions suggested by these competing
claims ?
8. It is satisfactory to know, on the highest authority,
that the " Monroe doctrine " is not intended to shield
American States against the consequences of their wrong-
doing ; since the cordial approval of the doctrine which
has just been expressed by our own Government can only
be supposed to extend to it so far as it is reasonably defined
and apphed. Great Britain, for one, has no desire for an
acre of new territory on the American continent. The
United States, on the other hand, will doubtless readily
recognise that, if international wrongs are to be redressed
upon that continent, aggrieved European Powers may occa-
sionally be obliged to resort to stronger measures than a
mere embargo on shipping, or the blockade (whether "pacific "
or " belligerent ") of a line of coast.
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
Venezuelan incident will be received with general satis-
faction. One of the articles of the so-called "protocol" of
February 13 seems, however, to point a moral which one
may hope will not be lost sight of iu tho future — viz. the
desirability of keeping unblurrod tho lino of demarcation
between such unfriendly pressure as constitutes " reprisals "
and actual war.
After all that has occurred — statements in Parliament,
o
18 MEASUEES SHORT OF WAR
action of the Governor of Trinidad in bringing into operation
the dormant powers of the Supreme Court of the island as a
prize Court, &c., one would have supposed that there could
be no doubt, though no declaration had been issued, that
we were at war with Venezuela.
Our Government has, therefore, been well advised in
providing for the renewal of any treaty with that Power
which may have been abrogated by the war ; but it is
curious to find that the article (7) of the protocol which
effects this desirable result begins by a recital to the effect
that " it may be contended that the establishment of a
blockade of the Venezuelan ports by the British naval
forces has ipso facto created a state of war between Great
Britain and Venezuela."
It is surely desirable that henceforth Great Britain
should know, and that other nations should at least have
the means of knowing, for certain, 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
measures recently taken by the Netherlands Government in
Venezuelan waters opportunely recalls attention to a topic
upon which I addressed you when, six years ago, our own
Government was similarly engaged in putting pressure
upon Venezuela — viz. the desirabihty of drawing a clear
line between war and reprisals. Perhaps I may now be
REPRISALS 19
allowed to return, very briefly, to this topic, with special
reference to Professor Westlake's remarks.
In any discussion of the questions involved, we ought,
I think, clearly to reahse that The Hague Convention, No. 3
of 1907, has no application to any measures not amounting
to war. The " hostilities " mentioned in Article 1 of the
Convention are, it will be observed, exclusively such as
must not commence without either a "declaration of war,"
or " an ultimatum with a conditional declaration of war " ;
and Article 2 requires that the " state of war," thus created,
shall be notified to " neutral Powers." There are, of course,
no Powers answering to this description till war has actually
broken out. Neutrahty presupposes belligerency. Any
other interpretation of the Convention would, indeed, render
" pacific blockades " henceforth impossible.
In the next place, we must at once recognise that the
application of the term " reprisals," whatever may have
been its etymological history, must no longer be restricted
to seizure of property. It has now come to cover, and it
is the only term which does cover generically, an indeter-
minate list of unfriendly acts, such as embargo, pacific
blockade, seizure of custom-houses, and even occupation of
territory, to which resort is had in order to obtain redress
from an offending State without going to war with it. The
pressure thus exercised, unlike the unlimited licentia laedendi
resulting from a state of war, is localised and graduated.
It abrogates no treaties, and terminates without a treaty
of peace. It affects only indirectly, if at all, the rights of
States which take no part in the quarrel.
The questions which remain for consideration would
seem to be the following : —
o 2
20 MEASURES SHORT OF WAR
1. Would it be feasible to draw up a definite list of the
measures which may legitimately be taken with a view to
exercising pressure short of war ? — I think not. States
differ so widely in offensive power and vulnerability that
it would be hardly advisable thus to fetter the liberty of
action of a State which considers itself to have been injured.
2. Ought it to be made obligatory that acts of reprisal
should be preceded, or accompanied, by a notification to
the State against which they are exercised that they are
reprisals and not operations of war ? — This would seem to
be highly desirable ; unless, indeed, it can be assumed that,
in pursuance of The Hague Convention of 1907, no war will
henceforth be commenced without declaration.
3. Ought a statement to the like effect to be made to
nations not concerned in the quarrel ? — This would, doubt-
less, be convenient, unless the non-receipt by them of any
notification of a " state of war," in pursuance of the Conven-
tion, could be supposed to render such a statement super-
fluous.
On the ambiguous character sometimes attaching to
reprisals as now practised, I may perhaps refer to an
article in the Law Quarterly Beview 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 enunci-
ation 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
REPRISALS 21
States, whicli asserts tliat " 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 tbe 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, 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 Govern-
ment 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 THE CODIFICATION OF THE LAWS
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 Decla-
ration of St. Petersburg, of 1868, as to explosive bullets; the
three Hague Declarations, of 1899-1907, as to projectiles from
balloons, projectiles spreading dangerous gases, and expanding
bullets ; The Hague Convention No. iii. of 1907, as to Declaration
of War.
(ii.) With reference only to war on land : the Geneva Convention
of 1906 (superseding that of 1864) as to the sick and wounded ;
The Hague Conventions, Nos. iv. and v. of 1907 (superseding the
Convention of 1899) as to the conduct of warfare and as to neutrals.
(iii.) With reference only to war at sea : the Declaration of
Paris, of 1856 (to which the United States is now the only im-
portant Power which has not become a party), as to privateering,
22
EARLY ATTEMPTS 23
combination of enemy and neutral property, and blockades ;
The Hague Conventions of 1907, No. vi. as to enemy mercbant
vessels at outbreak, No. vii. as to conversion of mercbantmen 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, No. xiii. as to neutrals ;
the Declaration of London of 1909 as to blockade, contraband,
hostile assistance, destruction of prizes, change of flag, enemy
character, convoy, resistance and compensation. It must be
observed that none of these last-mentioned Hague Conventions
have as yet (August, 1909) been ratified, though they have
all been signed, by Great Britain. The Declaration of London,
purporting to codify on many points the laws of naval warfare,
and so to facilitate the working of the proposed International
Prize Court, if, and when, this Court shall come into existence,
has neither been signed nor ratified by any Power.
Concurrently with the efiorts 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 his de la guerre sur terre, published by the
Institut in 1880, is the subject of the two letters which immedi-
ately 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
and not readily elsewhere accessible. The remaining letteis
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 charge d'affaires at
Washington, and printed in Pari. 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 oj
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
24 CODIFICATION OF LAWS OF WAR
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 un-
written), 1908.
COUNT VON MOLTKE ON THE LAWS OF
WARFARE
Sir, — You may perhaps think that the accompanying
letter, recently addressed by Count von Moltke to Professor
Bluntschli, is of sufficient general interest to be inserted in
The Times. It was written with reference to the Manual
of the Laws of War which was adopted by the Institut de
Droit International at its recent session at Oxford. The
German text of the letter will appear in a few days at
Berlin. My translation is made from the proof-sheets of
the February number of the Revue de Droit International,
which will contain also Professor Bluntschli's reply.
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 pubhshed
by the Institut de Droit International, and you hope for my approval
of it. In the first place I fuUy appreciate the philanthropic effort to
Boften the evUs 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
VON MOLTKE UPON 25
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 bel-
ligerents ? 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 circum-
stances 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 mihtary 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 iniissen alle nicht geradezu
verwerfliche Mittel freistehen '). I can by no means j)rofess agreement
with the Declaration of St. Petersburg when it asserts that ' the weak-
ening 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 Govern-
ment, its finances, its railways, its stores, and even its prestige. Tlius
energetically, and yet with a moderation previously unknown, was the
late war against France conducted. Tiie 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
26 CODIFICATION OF LAWS OF WAR
" 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 require-
ments 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 ad-
dressed 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
" CoTjNT VON MoLTKE, Field-Marshal- General."
PROFESSOR BLUNTSCHLI'S REPLY TO COUNT
VON MOLTKE
Sir, — In accordance with a wish expressed in several
quarters, I send you, on the chance of your being able to
make room for it, a translation of Professor Bluntschh's
reply to the letter from Count von Moltke which appeared
in The Times of the 1st inst.
Your obedient servant,
T. E. Holland.
Oxford, February (1881).
BLUNTSCHLI UPON 27
" Christmas, 1880.
" I am very grateful for your Excellency's detailed and kind state-
ment of opinion as to tlie 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 that 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 miUtary 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 the 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 po]5ulation,
while the jurist, convinced that law is the safeguard of all, and especially
for tlie 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 sucji cases.
" 2. To aid in elucidating and strengthening legal order even in time
of war.
" I acknowledge unreservedly that the customs of warfare liave
imjiroved since the establishment of standing armies, a circumstance
which has rendered possible a strieh r discipline, and has necossitatod
a greater (rare for the provisionment of troops. 1 also acknowledge
unreservedly that the chief credit for this improvement is due to mili-
tary commanders. Brutal and barbarous pillage was prohibited by
generals before jurists were convinced of its illegality. If in our own
28 CODIFICATION OF LAWS OF WAR
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 also has become national. Laws of war are conse-
quently more than ever important and necessary, since, in the differ-
ences of culture and opinion which prevail between individuals and
classes, law is almost the only moral power the force of which is acknow-
ledged 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 per-
suasion 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 punish-
ing 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.
A NAVAL WAR CODE 29
" 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 con-
vinced that the error, which has been handed down to us from antiquity,
according to wliich 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 \vithout neces-
sity, and without utUity 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 jiu-ist to aljandon 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 Plxcellency will receive indulgently this sincere
statement of my views, and will regard it as an expression of my grati-
tude, as well as of my high personal esteem and of my respectful
coasidcration.
" Db. Blttntschli, Privy Councillor, Professor."
THE UNITED STATES NAVAL WAR CODE
Sir,— The " Naval War Code " of the United States,
upon which an interesting article appeared in The Times
of Friday last, is so well deserving of attention in this
country that I may perhaps be allowed to supplement the
remarks of your Correspondent from the results of a some-
what minute examination of the code made shortly after
its pubhcation.
One notes, in the first place, that the Government of
30 CODIFICATION OP LAWS OF WAR
the United States does not shirk responsibility. It puts
the code into the hands of its officers " for the government of
all persons attached to the naval service," and is doubtless
prepared to stand by the rules contained in it, as being in
accordance with international law. These rules deal boldly
with even so disagreeable a topic as " Eeprisals " (Art. 8),
upon which the Brussels, and after it The Hague, Conference
preferred to keep silence ; and they take a definite line on
many questions upon which there are wide differences of
opinion. On most debatable points, the rules are in accord-
ance with the views of this country — e.g. as to the right of
search (Art. 22), as to the two-fold list of contraband
(Arts. 34-36), as to the moment at which the liability of a
blockade-runner commences (Art. 44), and as to the capture
of private property (Art. 14), although the prohibition of
such capture has long been favoured by the Executive of
the United States, and was advocated by the American
delegates at The Hague Conference. So also Arts. 84-36, by
apparently taking for granted the correctness of the rulings
of the Supreme Court in the Civil War cases of the Springhoh
and the Peterlioff with reference to what may be described
as "continuous carriage," are in harmony with the views
which Lord Salisbury recently had occasion to express as to
the trade of the Bundesrath and other German vessels with
Lorenzo Marques. It must be observed, on the other
hand, that Art. 30 flatly contradicts the British rule as to
convoy ; while Art. 3 sets out The Hague Declaration as
to projectiles dropped from balloons, to which this country
is not a party. Art. 7 departs from received views by
prohibiting altogether the use of false colours, and Art. 14
(doubtless in pursuance of the recent decision of the Supreme
A NAVAL WAR CODE 31
Court in the Paquete Habana), by affirming the absolute
immunity of coast fishing vessels, as such, from capture.
On novel questions the code is equally ready with a
solution. It speaks with no uncertain voice on the treat-
ment of mail steamers and mail- bags (Art. 20). On cable-
cutting it adopts in Art. 5, as your Correspondent points
out, the views which I ventured to maintain in your columns
when the question was raised during the war of 1898. I
may also, by the way, claim the support of the code for the
view taken by me, in a correspondence also carried on in
your columns during the naval manoeuvres of 1888, of the
bombardment of open coast towns. Art. 4 sets out sub-
stantially the rules upon this subject for which I secured
the imprimatur of the Institut de Droit International in
1896.
Secondly, the code is so well brought up to date as to
incorporate (Arts. 21-29) the substance of The Hague
Convention, ratified only in September last, for applying
to maritime warfare the principles of the Convention of
Geneva. Art. 10 of The Hague Convention has been re-
produced in the code, in forgetfulness perhaps of the fact
that that article has not been ratified.
Thirdly, the code contains, very properly, some general
provisions apphcable equally to warfare upon land (Arts.
1, 3, 8, 12, 54).
Fourthly, it is clearly expressed ; and it is brief, consist-
ing of only 54 articles, occupying 22 pages.
Fifthly, it deals with two very distinct topics — viz. the
mode of conducting hostilities against the forces of the
enemy, and the principles applicaljle to the making prize
of merchant vessels, which as often as not may be the
32 CODIFICATION OF LAWS OF WAR
property of neutrals. These topics are by no means kept
apart as they might be, articles on prize occurring un-
expectedly in the section avowedly devoted to hostilities.
It is worth considering whether something resembling
the United States code would not be found useful in the
British Navy. Our code might be better arranged than
its predecessor, and would differ from it on certain questions,
but should resemble it in clearness of expression, in brevity,
and, above all things, in frank acceptance of responsibility.
What naval men most want is definite guidance, in categorical
language, upon those points of maritime international law
upon which their Government has made up its own mind.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, April 8 (1901).
A NAVAL WAR CODE
Sir, — It is now nearly a year ago since I ventured to
suggest in your columns (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 from some of the allusions to it which occurred
during last night's debate upon the Navy Estimates. Upon
several disputable and delicate questions the Government
of the United States has not hesitated to express definite
views ; and they are not always views which the Govern-
ment of our own country would be prepared to endorse.
For some remarks upon these questions in detail, and upon
A NAVAL WAR CODE 33
the code generally, I must refer to my former letter, but
may perhaps be allowed to quote its concluding words,
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 their 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 give definite instructions to naval officers ;
and, secondly, with reference to topics, to be included in
the instructions, as to which there exist international differ-
ences of view, what is, in each case, the view by which the
British Government is prepared to stand.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, March 12 (1902).
CHAPTER III
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-
Turldsh 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.
34
WAK WITHOUT DECLARATION 35
THE SINKING OF THE KOWSHING
Sir, — The words of soberness and truth were spoken
with reference to the sinking of the KowsMng in the letter
from Professor Westlake which you printed on Friday last.
Ignorance dies hard, or, after the appearance of that letter
and of your remarks upon it, one might have expected that
leading articles would be less lavishly garnished with such
phrases as " act of piracy," " war without declaration,"
" insult to the British flag," " condign punishment of the
Japanese commander." But these flowers of speech con-
tinue to blossom ; and, now that the facts of the case seem
to be established beyond reasonable doubt by the telegrams
of this morning, I should be glad to be allowed to state
shortly what I believe will be the verdict of international
law upon what has occurred.
If the visiting, and eventual sinking, of the KowsMng
occurred in time of peace, or in time of war before she had
notice that war had broken out, a gross outrage has taken
place. But the facts are otherwise.
In the first place, a state of war existed. It is trite
knowledge, and has been over and over affirmed by Courts,
both English and American, that a war may legally com-
mence with a hostile act on one side, not preceded by
declaration. How frequently this has occurred in practice
may bn seen from a glance at an historical statement pro-
pared for the War Office by Colonel Maurice h fropos of the
objections to a Channel tunnel. Whether or no hostilities
had previously occurred upon the mainland, I hold that the
acts of the Japanese commander in boarding the KowsJiing
d2
36 DECLARATION
and threatening her with violence in case of disobedience
to his orders were acts of war.
In the second place, the Kowshing had notice of the
existence of a war, at any rate from the moment when she
received the orders of the Japanese commander.
The Kowshing, therefore, before the first torpedo was
fired, was, and knew that she was, a neutral ship engaged
in the transport service of a belligerent. (Her flying the
British flag, whether as a ruse de guerre or otherwise, is
wholly immaterial.) Her liabilities, as such ship, were
two-fold : —
1. Regarded as an isolated vessel, she was liable to be
stopped, visited, and taken in for adjudication by a Japanese
Prize Court. If, as was the fact, it was practically im-
possible for a Japanese prize crew to be placed on board of
her, the Japanese commander was within his rights in using
any amount of force necessary to compel her to obey his
orders.
2. As one of a fleet of transports and men-of-war engaged
in carrying reinforcements to the Chinese troops on the
mainland, the Kowshing was clearly part of a hostile expedi-
tion, or one which might be treated as hostile, which the
Japanese were entitled, by the use of all needful force, to
prevent from reaching its destination.
The force employed seems not to have been in excess of
what might lawfully be used, either for the arrest of an
enemy's neutral transport or for barring the progress of a
hostile expedition. The rescued officers also having been
set at liberty in due course, I am unable to see that any
violation of the rights of neutrals has occurred. No apology
is due to our Government, nor have the owners of the
THE INSTITUT UPON 37
Kowshmg, or the relatives of any of her European officers
who may have been lost, any claim for compensation. I
have said nothing about the violation by the Japanese of
the usages of civihsed warfare (not of the Geneva Convention,
which has no bearing upon the question), which would be
involved by their having fired upon the Chinese troops in
the water ; not only because the evidence upon this point
is as yet insufficient, but also because the grievance, if
estabhshed, would affect only the rights of the belligerents,
inter se ; not the rights of neutrals, with which alone this
letter is concerned. I have also confined my observations
to the legal aspects of the question, leaving to others to
test the conduct of the Japanese commander by the rules of
chivalrous dealing or of humanity.
Your obedient servant,
T. E. Holland.
Athenaeum Club, August (5 (1894).
The controversy caused by the sinking of the KowsJiing in
1894 was revived by the manner of the Japanese attack upon
Port Arthur in 1904 (see Professor Takahashi's International Law
affiled 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 one to 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 <,nven either in the slia])e 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
4344.'5y
38 IMMEDIATE EFFECTS OF WAK
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 VInstitut, t. xxi. p. 292.
In accordance with the principles underlying the first and
second of these resolutions, The Hague Convention, No. iii. of
1907, 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 notifica-
tion, 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 hostiUty
(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 httle 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 Ouibreah of War
Before any actual hostilities have taken place, each belli-
gerent 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 prac-
tice, 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
ENEMY EESIDENTS 39
and men of the Regular Army of a hostile belligerent Power,
found within the Umits of the United Kingdom after an act of
declaration of war ; and would such persons be Uable 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 repUed,
FOEEIGN SOLDIEES IN ENGLAND
Sir, — The question raised last night by Mr. Arnold-
Forster is one which calls for more careful consideration
than it appears yet to have received. International law
has in modern times spoken with no very certain voice as to
the permissible treatment of alien enemies found within the
territory of a belligerent at the outbreak of war.
There is, however, little doubt that such persons, although
now more usually allowed to remain, during good behaviour,
may be expelled, and, if necessary, wholesale, as were
Germans from France in 1870. But may such persons be,
for good reasons, arrested, or otherwise prevented from
leaving the country, as Germans were prevented from
leaving Franco in the earlier days of the Franco-Prussian
War ? Grotius speaks with approval of such a step being
taken, " ad minuendas hostium vires." Bynkershoek,
more than a century later, recognises the right of thus
acting, " though it is rarely exercised." So the Supreme
Court of the United States in " Brown v. United States "
(1814). So Chancellor Kent (182G), and Mr. Manning
(1839) is explicit that the arrest in fiufstion is lawful, and
that " the individuals are prisoners of war."
40 IMMEDIATE EFFECTS OF WAR
Vattel, it is true (1758), ventures to lay down that —
" Le Souverain qui declare la guerre ne peut retenir les sujets de
I'ennemi qui se trouvent dans ses etats au moment de la declaration
... en leur permettant d'entrer dans ses terres et d'y sejourner, il leur
a promis tacitement toute liberte et toute surete pour le retour."
And he has been followed by some recent writers. There
is, however, I venture to hold, no ground for asserting that
this indulgent system is imposed by international law.
I am glad, therefore, to find the Attorney- General laying
down that —
" 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 learned Attorney- 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 was before universal liability to military service had
become the rule in most Continental countries. The peace-
ably engaged foreign resident is now in all probability a
trained soldier, and liable to be recalled to the flag of a
possible enemy.
There may, of course, be considerable practical diffi-
culties m the way of ascertaining the nationality of any
given foreigner, and whether he has completed, or evaded,
the military training required by the laws of his country.
It may also be a question of high policy whether resident
enemies would not be a greater danger to this country if
ENEMY KESIDENTS 41
they were compelled to remain here, than if they were
allowed, or compelled, to depart, possibly to return as
invaders.
I am only concerned to maintain that, as far as inter-
national law is concerned, England has a free hand either
to expel resident enemies or to prevent them from leaving
the country, as may seem most conducive to her own
safety.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, February 25 (1909).
CHAPTER IV
THE CONDUCT OF WARFARE AS BETWEEN
BELLIGERENTS
Section 1
Localities closed to Hostilities
Besides neutral territory and waters generally, certain locali-
ties are more specifically closed to operations of war. The
following letters deal with the Convention of October 29,
1888, with reference to the Suez Canal. Their object was to
obviate some misconceptions as to the purport of the Convention,
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
altered by the Anglo-French Convention of April 8, 1904, which,
concerned principally ^vith the settlement of the Egyptian and
Newfoundland questions, provides, in Article 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
42
CLOSED LOCALITIES 43
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 is : " The Canal shall never be
subjected to the exercise of the right of blockade."
Paragraph 2 of the Article 8 relates to the presidency of a
special commissioner of the Ottoman Government over meetings
of the agents of the signatory Powers.
On the whole question see Pari. Papers, Egypt, No. 1 (1888),
Commercial, No. 2 (1889), and the present writer's Studies in
International Law, p. 270.
THE SUEZ CANAL
SiK, — Your correspondent "M.B." has done good service
by calling attention to the misleading nature of the often-
repeated statement that the Suez Canal has been "neutral-
ised " by the Convention of 1888. Perhaps you will
allow me more explicitly to show why, and how far, this
statement is misleading.
In the first place, this Convention is inoperative. It
is so in consequence of the following reservation made by
Lord Salisbury in the course of the negotiations which
resulted in the signature of the Convention : —
" Les Delegu^s de la Grande-Bretagne . . . pensent qu'il est de lour
devoir de formuler une reserve gen6rale quant a rapplication do oca
dlspositiona en tant qu'elles ne seraient pas compatibles avec I'clat
transitoire et exceptionel ou sc trouvo actuclloment I'Egyptc, vX (ju'ellca
pourraiont cntraver la liberto d'action de Icur Gouvcrncment pendant
la p6riode do roccupation de I'Egypte par les forces de sa Majeste
Britannique."
Being thus unaffected by the treaty, the canal retains
those characteristics which it possesses, under the common
law of nations, as a narrow strait, wholly within the territory
of one Power and connecting two open seas. The fact that
44 THE CONDUCT OP WARFARE
the strait is artificial may, I think, be dismissed from con-
sideration, for reasons stated by me in the Fortnightly
Review for July, 1883. The characteristics of such a strait
are unfortunately by no means well ascertained, but may
perhaps be summarised as follows. In time of peace, the
territorial Power is bound by modern usage to allow " inno-
cent passage," under reasonable conditions as to tolls and
the like, not only to the merchant vessels, but also, probably,
to the ships of war, of all nations. In time of war, the
territorial Power, if belligerent, may of course carry on,
and is exposed to, hostilities in the strait as elsewhere, and
the entrances to the strait are liable to a blockade. Should
the territorial Power be neutral, the strait would be closed
to hostilities, though it would probably be open to the
" innocent passage " of belligerent ships of war.
It may be worth while to enquire how far this state of
things would be affected by the Convention of 1888, were
it to come into operation. The status of the canal in time
of peace would be substantially untouched, save by the
prohibition to the territorial Power to fortify its banks.
Even with reference to time of war, several of the articles
of the Convention merely reaffirm well-understood rules
applicable to all neutral waters — e.g. that no hostilities
may take place therein. The innovations proposed by the
Convention are mainly contained, as "M.B." points out,
in the first article, which deals with the position of the canal
when the territorial Power is belhgerent. In such a case,
subject to certain exceptions, with a view to the defence of
the country, the ships of that Power are neither to attack
nor to be attacked in the canal, or within three miles of its
ports of access, nor are the entrances of the canal to be
CLOSED LOCALITIES 45
blockaded. This is " neutralisation" only in a limited and
vague sense of the term, the employment of which was
indeed carefully avoided not only in the Convention itself
but also in the diplomatic discussions which preceded it.
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, supports this morning a good case by
a bad argument, which ought hardly to pass without
remark.
It is impossible to accept his suggestion that the article
which he quotes from the Treaty of Paris can be taken
as containing " an international official definition of neutra-
Hsation as applied to waters." The article in question, after
declaring the Black Sea to be " neutralisee," no doubt goes
on to explain the sense in which this phrase is to be under-
stood, by laying down that the waters and ports of that
sea are perpetually closed to the ships of war of all nations.
It is, however, well known that such a state of things as is
described in the latter part of the article is so far from
being involved in the definition of " neutralisation " as
not even to bo an ordinary accompaniment of that process.
Belgium is unquostional)ly "neutralised," hut no one sup-
poses that the appearance in its waters and ports of ships
of war is thoroforo prohibited. The fact is that the term
" neutralisee" was employed in the Treaty of Paris as a
46 THE CONDUCT OF WARFARE
euphemism, intended to make less unpalatable to Russia a
restriction upon her sovereign rights which she 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 the questions very courteously addressed to me
by Mr. Gibson Bowles in his letter which appeared in The
Times of yesterday ?
1. It is certainly my opinion, for what it is worth,
that the full operation of the Convention of 1888 is suspended
by the reserves first made on behalf of this country during
the sittings of the Conference of 1885. These reserves
were textually repeated by Lord Sahsbury in his despatch
of October 21, 1887, enclosing the draft convention which,
three days later, was signed at Paris by the representatives
of France and Great Britain, the two Powers which, with
the assent of the rest, had been carrying on the resumed
negotiations with reference to the canal. Lord Salisbury's
language was also carefully brought to the notice of each
of the other Powers concerned, in the course of the somewhat
protracted discussions which preceded the final signature
of the same convention at Constantinople on October 29,
1888.
2. All the signatories of the convention having thus
become parties to it after express notice of " the conditions
under which her Majesty's Government have expressed
CLOSED LOCALITIES 47
their willingness to agree to it," must, it can hardty be
doubted, share the view that the convention is operative
only sub modo.
3. Supposing the convention to have become operative,
and supposing the territorial Power to be neutral in a war
between States which we may call A and B, the convention
would certainly entitle A to claim unmolested passage for
its ships of war on their way to attack the forces of B in the
Eastern seas.
4. The language of the convention, being as it is the
expression of a compromise involving much re-drafting, is
by no means always as clear as it might be. But when Mr.
Gibson Bowles is again within reach of Blue-books he will
probably agree with me that the treaty need not, as he
suggests, be " read as obliging the territorial Power, even
when itself a belUgerent, to allow its enemy to use the
canal freely for the passage of that enemy's men-of-war."
The wide language of Article 1 (which is substantially in
accordance with Mr. Gibson Bowles's reminiscence of it)
must be read in connection with Article 10, and without
forgetting that, in discussing the effect of an attack upon
the canal by one of the parties to the convention, Lord
Salisbury wrote in 1887, "on the whole, it appears to be the
sounder view that, in such a case, the treaty, being broken
by one of its signatories, would lose its force in all
respects."
Your obedient servant,
T. E. Holland.
Oxford, October 9 (1898).
48 THE CONDUCT OP WARFARE
Section 2
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 the Field " with reference to guerilla
warfare, some observations were made, and questions put,
upon which you will perhaps allow me to say a word or two.
1. Mr. Healy seemed to think that something turned
upon the date (May, 1898) at which these articles were
promulgated. In point of fact they were a mere reissue of
articles drawn by the well-known jurist Francis Lieber, and,
after revision by a military board, issued in April, 1863, by
President Lincoln.
2. To Mr. Morley's enquiry, " Have we no rules of our
own ? " the answer must be in the negative. The tradi-
tional pohcy of our War Office has been to " trust to the
good sense of the British officer." This policy, though
surprisingly justified by results, is so opposed to modern
practice and opinion that, as far back as 1878-80, I endeav-
oured, without success, to induce the Office to issue to the
Army some authoritative, though simple, body of instructions
such as have been issued on the Continent of Europe and
in America. The War Office was, however, content to
include in its " Manual of Military Law," pubHshed in 1883,
a chapter which is avowedly unauthoritative, and expressly
stated to contain only "the opinions of the compiler, as
drawn from the authorities cited."
3. The answer to Sir William Harcourt's unanswered
LAWFUL BELLIGEKENTS 49
question, " Were there no rules settled at The Hague ? "
must be as follows. The Hague Convention of 1899, upon
" the laws and customs of warfare," ratified by this country
on September 4 last, binds the contracting parties to give
to their respective armies instructions in conformity with
the Beglement armexed to the Convention. This Beglement,
which is substantially a reproduction of the unratified
projet of the Brussels Conference of 1874, does deal, in
Articles 1-3, with guerilla warfare. It is no doubt highly
desirable that, as soon as may be, the drafting of rules in
accordance with the Regleinent should be seriously taken in
hand, our Government having now abandoned its non
'possumus attitude in the matter. It will, however, be found
to be the case, as was pointed out by Mr. Balfour, that the
sharp distinction between combatants and non-combatants
contemplated by the ordinary laws of war is inappHcable
(without the exercise of undue severity) to operations such
as those now being carried out in South Africa.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, December 7 (1900).
" Lieber'a 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. lirodri(;k, when Secretary lor War, commissioning him
to prepare a Handbook of the Laws and Cmloms of War on Land,
which was issued to the Army by authority in 1904. On the
instructions issued by other National (Jovcrnments, see the
author's Laws of War on Land, 1908, pp. 71-73.
The answer, given in the letter, to Sir William Harcourt's
50 THE CONDUCT OF WAKFARE
question must now be supplemented by a reference to the Hand-
book, above mentioned as having contained rules founded upon the
Reglement annexed to the Convention of 1899, and by a statement
that that Convention, with its Reglement, is now superseded by
Conventions No. iv. (with its Reglement) and No. v. of 1907.
Article 1, as to what is required from a lawful belUgerent
(set out in the following letter), and Art. 2, granting 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," are
identical in the Reglements of 1899 and 1907. Cf. supra, p. 22.
THE RUSSIAN USE OF CHINESE CLOTHING
Sir, — If Russian troops have actually attacked while
disguised in Chinese costume, they have certainly violated
the laws of war. It may, however, be worth while to point
out that the case is not covered, as might be inferred from
the telegram forwarded to you from Tokio on Wednesday
last, by the text of Article 23 (/) of the Reglement annexed
to The Hague Convention " on the laws and customs of war
on land." This article merely prohibits " making improper
use of a flag of truce, of the national flag or the military
distinguishing marks and the uniform of the enemy, as well
as of the distinguishing signs of the Geneva Convention."
Article 1 of the Heglement is more nearly in point, in-
sisting, as it does, that even bodies not belonging to the
regular army, which, it is assumed, would be in uniform
(except in the case of a hasty rising to resist invasion),
shall, in order to be treated as " lawful belligerents," satisfy
the following requirements, viz. : —
" (1) That of being commanded by a person responsible for his sub-
ordinates ;
" (2) That of having a distinctive mark, recognisable at a distance
ASSASSINATION 51
" (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, under special circumstances, as in the
Boer war, marks in the nature of uniform have not been
insisted upon, has, of course, no bearing upon the complaint
now made by the Japanese Government.
All signatories of The Hague Convention are bound
to issue to their troops instructions in conformity with
the Beglement annexed to it. The only countries which,
so far as I am aware, have as yet fulfilled their obligations
in this respect are Italy, which has circulated the French
text of the Beglement without comment ; Russia, which has
prepared a little pamphlet of sixteen pages for the use of its
armies in the Far East ; and Great Britain, which has issued
a Handbook, containing explanatory and supplementary
matter, besides the text of the relevant diplomatic Acts.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, October 21 (1904).
Section 3
Assassination
The following letter will sufficiently explain the circumstance
to which it relates. Lord Elgin, Secretary of State for the Colonies,
on April 30, 1906, informed a deputation that the offer of £500
for Bambaata had been withdrawn by the Natal Covcrnnu-nt,
and a statement to the same effect was made on May 2, by Mr
Churchill, in the House of Commons.
Article 23 [h) of the Regulations of 1899, cited as conlimiiilory
of the condemnation of anything resembUng assassination, ia
reproduced in the Regulations as re-drafted in 1907. Cf. Licber'a
Instructions, Art. 148.
K 2
52 THE CONDUCT OF WARFARE
THE NATAL PROCLAMATION
Sir, — It was reported a few days ago that the Natal
Government had offered a reward for Bambaata, dead or
alive. I have waited for a statement that no offer of the
kind had been made, or that it had been made by some
over-zealous official, whose act had been disavowed. No
such statement has appeared. On the contrary, we read that
" the price placed upon the rebel's head has excited native
cupidity." It may therefore be desirable to point out that
what is alleged to have been done is opposed to the customs
of warfare, whether against foreign enemies or rebels.
By Article 23 (h) of The Hague Regulations " it is especi-
ally prohibited to kill or wound treacherously individuals
belonging to the hostile nation or army " ; words which,
one cannot doubt, would include not only assassination
of individuals, but also, by implication, any offer for an
individual " dead or alive," The Regulations are, of course,
technically binding only between signatories of the conven-
tion to which they are appended ; but Article 23 (6) is
merely an express enactment of a well-established rule of the
law of nations. A recent instance of its application occurred,
before the date of The Hague Convention, during operations
in the neighbourhood of Suakin. An offer by the British
Admiral of a reward for Osman Digna, dead or alive, was,
if I mistake not, promptly cancelled and disavowed by
the home Government.
I am. Sir, your obedient servant,
T. E. Holland.
Brighton, April 17 (1906).
MEANS OF INJURING 53
Section 4
The Choice of Means of Injuring
BULLETS IN SAVAGE WARFARE
Sir, — The Somaliland debate was sufficient evidence
that The Hague Convention "respecting the laws and customs
of war on land " is far more talked about than read. Colonel
Cobbe had, it appears, complained of the defective stopping
power, as against the foes whom he was encountering,
of the Lee-Metford bullet. It is the old story that wounds
inflicted by this bullet cannot be relied on to check the on-
rush of a hardy and fanatical savage, though they may
ultimately result in his death. Whereupon arises, on the
one hand, the demand for a more effective projectile, and,
on the other hand, the cry that the proposed substitute
is condemned by " the universal consent of Christendom " ;
or, in particular, " l)y the Convention of The Hague," which
as was correctly stated by Mr. Lee, prohibits only the use
of arms which cause superfluous injury.
You print to-day two letters enforcing the view of the
inefficiency against savages of the ordinary service bullet.
Perhaps you will find space for a few words upon the question
whether the employment for this purpose 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 oinbodiod in general inter-
national agreements, is to be found in four paragraphs ;
to which, bo it observed, nothing is added by the unwritten,
or customary, law of nations. Of these paragraphs, which
I shall set out textually, three affirm general principles,
54 THE CONDUCT OF WARFARE
while the fourth contains a specific prohibition. The general
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 Reglement, 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." {lb. 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 weighing less than 14 oz. which is either explosive
or charged as above. So far, therefore, as the generally
accepted laws of warfare are concerned, the only question
as to the employment of Dum Dum or other expanding
bullets is whether they " uselessly aggravate the sufferings of
disabled men, or render their death inevitable " ; in other
words, whether they are " of a nature to cause superfluous
injury." It is, however, probable that people who glibly
talk of such bullets being " prohibited by The Hague Con-
vention " are hazily reminiscent, not of the Reglement
appended to that convention, but of a certain " Declaration,"
MEANS OF INJURING 55
signed by the delegates of many of the Powers represented
at The Hague in 1899, to the effect that —
" 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 are parties, and it is waste-paper, except for Powers
on whose behalf it has not only been signed, but has also
been subsequently ratified.
I am, Sir, your obedient servant,
T. E. Holland.
Athenaeum Club, May 2 (1903).
The provisions of Articles 22 and 23 (e) of the Reglement
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
Reglement annexed to The Hague Convention, No. iv. of 1907
on the same subject.
Under the "special conventions" mentioned in Art. 23 of
the Reglement must still be included the Declaration of St.
Petersburg of 1868, to which must now be added at least two
of the declarations signed at The Hague in 1899, viz. the second,
relating to the spreading of harmful gases, and the third, relating
to expanding bullets, both of which were signed in 1907 by Great
Britain and the United States, which had previously stood aloof
from them (see the last paragraph of the letter). The import-
ance and number of the Powers which declined in 1907 to join in
renewing the first of the Declarations of 1899, relating to pro-
jectiles from balloons, as to which, see the next letter, must
prevent its renewal by many other Powers from having any
practical effect.
The written law as to the choice of weapons may bo taken
therefore to start from the general principlos 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 Reglement. The specially prohibited
means of destruction are, by the Declaration of St. Petersburg,
56 THE CONDUCT OF WARFAKE
explosive bullets; by The Hague Declarations of 1899, "pro-
jectiles the sole object of which is the diSusion 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 " ; by The
Hague Reglement, Art. 23 (a), poison or poisoned arms.
It must be remarked that the Declaratioiis of St. Petersburg
and of The Hague, unUke The Hague Reglement, 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.
THE DEBATE ON AERONAUTICS
Sir, — It is not to be wondered at that the Chairman
of Committees declined to allow yesterday's debate on
aviation to diverge into an enquiry whether the Powers
could be induced to prohibit, or limit, the dropping of
high explosives from aerial machines in war time. The
question is, however, one of great interest, and it may be
desirable, with a view to future discussions, to state precisely,
since little seems to be generally known upon the subject,
what has already been attempted in this direction.
In the Reglement annexed to The Hague Convention
of 1899, as to the " Laws and Customs of War on Land,"
Article 23, which specifically prohibits certain " means
of injuring the enemy," makes no mention of aerial methods ;
but Article 25, which prohibits " the bombardment of towns,
villages, habitations, or buildings, which are not defended,"
was strengthened, when the Reglement was reissued in
1907 as an annexe to the, as yet not generally ratified,
Hague Convention No. IV of that year, by the insertion,
after the word " bombardment," of the words, " by any
means whatever," with the expressed intention of including
in the prohibition the throwing of projectiles from balloons.
PROJECTILES FROM BALLOONS 57
The Hague Convention No. IX of 1907, also not yet
generally ratified, purports to close a long controversy, in
accordance with the view which you allowed me to advocate,
with reference to the naval manoeuvres of 1888, by pro-
hibiting the " naval bombardment of ports, towns, villages,
habitations, or buildings, wliich are not defended." The
words "by any means whatever" have not been here in-
serted, one would incline to think by inadvertence, having
regard to what passed in Committee, and to the recital
of the Convention, which sets out the propriety of extend-
ing to naval bombardments the principles of the Reglement
(cited, perhaps again by inadvertence, as that of 1899) as
to the Laws and Customs of War on Land.
But the topic was first squarely dealt with by the first
of the three Hjigue Declarations of 1899, by which the
Powers agreed to prohibit, for five years, " the throwing
of projectiles and explosives from balloons, or by other
analogous new methods." The Declaration was signed
and ratified by almost all the Powers concerned ; not,
however, by Great Britain.
At The Hague Conference of 1907, when the Belgian
delegates proposed that this Declaration, which had expired
by efflux of time, should be renewed, some curious changes
of opinion were found to have occurred. Twenty-nine
Powers, of which Great Britain was one, voted for renewal,
but eight Powers, including Germany, Spain, France, and
Russia, were opposed to it, while seven Powers, one of
wliich was Japan, abstained from voting. The Japanese
delegation had previously intimated that, " in view of the
absence of nnaniTnify on ihc part of the great military
Powers, there seemed to be no great use in Ijinding their
58 THE CONDUCT OF WARFARE
country as against certain Powers, while, as against the
rest, it would still be necessary to study and bring to per-
fection this mode of making war." Although the Declaration,
as renewed, was allowed to figure in the " Acte final " of the
Conference of 1907, the dissent from it of several Powers of
the first importance must render its ratification by the others
highly improbable ; nor would it seem worth while to
renew, for some time to come, a proposal which, only two
years ago, was so ill received.
I may perhaps add, with reference to what was said
by one of yesterday's speakers, that any provision on the
topic under discussion would be quite out of place in the
Geneva Convention, which deals, not with permissible
means of inflicting injury, but exclusively with the treatment
of those who are suffering from injuries inflicted.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, August 3 (1909).
Section 5
The Geneva Conve^ition
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 tc human hfe.
He fears that no more than this can be done unless and until
some international convention extends to those who care for
THE GENEVA CONVENTION 59
wounded animals the same protection for whicli tlie Geneva
Convention provides in the case of men ; and he would suggest
that you should turn your efforts in that direction."
Thereupon, Mr. Lawrence L. Pike, on November 23, addressed
to The Times the letter which called forth the letter which follows.
WOUNDED HOESES IN WAR
Sir, — Every one must sympathise with the anxiety
felt by Mr. L. W. Pike to diminish the sufferings of horses
upon the field of battle. How far any systematic alleviation
of such sufferings may be compatible with the exigencies
of warfare must be left to the decision of military experts.
In the meantime it may be as well to assure Mr. Pike that
the Geneva Convention of 1864 has nothing to do with the
question, relating, as it does, exclusively to the relief of
human suffering. This is equally the case with the second
Geneva Convention, which Mr. Pike is right in supposing
never to have been ratified. He is also right in supposing
that " the terms of the convention are capable of amend-
ment from time to time," but wrong in supposing that
they can be amended "by the setting up of precedents."
The convention can be amended only by a new convention.
It is not the case that Article 7 of the convention, which
merely confides to commanders-in-chief, under the instruc-
tions of their respective Governments, " les details d'execu-
tion de la presente convention," gives them any authority
to extend its scope beyond what is expressly stated to be
its object — viz. " I'amelioration du sort dos inilitaires
blesses dans les armecs en campagne." While, however, the
Geneva Convention does not contemplate the relief of
animal suffering, it certainly cannot be "set up as a bar "
to ili(3 provision of such relief. Commanders who may
60 THE CONDUCT OF WARFARE
see their way to neutralising persons engaged in the succour
or slaughter of wounded horses would be quite within their
powers in entering into temporary agreements for that
purpose.
I may add that the " Convention concerning the laws
and customs of war on land," prepared by the recent con-
ference at The Hague, and signed on behalf of most Govern-
ments, including our own, though not yet ratified, contains
a chapter " Des malades et des blesses," which merely states
that the obligations of belligerents on this point are governed
by the Convention of Geneva of 1864, with such modifica-
tions as may be made in it. Among the aspirations {vosux),
recorded in the " Acte final " of the conference, is one to
the effect that steps may be taken for the assembling of
a special conference, having for its object the revision of
the Geneva Convention. Should such a conference be
assembled Mr. Pike will have an opportunity of addressing
it upon the painfully interesting subject which he has
brought forward in your columns.
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 Reglement annexed to The Hague Convention
of 1899 as to the " Laws and Customs of War on Land," stating that
" the obUgations 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 Reglement of 1907,
which mentions "the Convention of Geneva," without mention
of any date, or of possible alterations.
ENEMY PKOPERTY 61
The Geneva Convention intended in this later Reglement 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 later is somewhat wider in scope than the earlier convention,
its recital referring to " the sick," as well as to the womided, and
its first article naming not only " les miUtaires," but also "les
autres personnes officiellement attachees aux armees."
With a view to the expected meeting of the Conference by
which the Convention was signed in 1906, Mr. Pike and his friends'
in 1903, pressed upon the British Government their desire that
the new convention should extend protection to persons engaged
in reUeving 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 ad\ase the insertion of provisions for this
purpose in the revised Convention of Geneva.
Section 6
Enemy Property in Occupied Territory
By Art. 55 of The Hague Reglement of 1899, which reproduces
Art. 7 of the Brussels Projet, and is repeated as Art. 55 of the
Reglement of 1907 : " The occupying State shall regard itself
as being only administrator and usufructuary of the public
buildings, immoveable property, forests and agricultural under-
takings 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 "
SiK, — The terminology of the law of nations has been
enriched by a new phrase. Wo are all getting accustomed
to " spheres of influence." Wo have been meditating for
62 THE CONDUCT OP WARFAEE
some time past upon the interpretation to be put upon " a
lease of sovereign rights." But what is an international
"usufruct"? The word has, of course, a perfectly ascer-
tained sense in Roman law and its derivatives ; but it has
been hitherto employed, during perhaps two thousand years,
always as a term of private law — i.e. as descriptive of a right
enjoyed by one private individual or corporation over the
property of another. It is the " ius utendi fruendi, salva
rerum substantia." The usufructuary of land not merely has
the use of it, but may cut its forests and work its mines, so
long as he does not destroy the character of the place as he
received it. His interest terminates with his life, though it
might also be granted to him for a shorter period. If the
grantee be a corporation, in order to protect the outstanding
right of the owner an artificial limit is imposed upon the
tenure — e.g. in Roman law 100 years, by the French Code
30 years. For details it may suffice to refer to the Institutes
of Justinian, 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 imported into the relations of sovereign States, and,
more especially, what are to be the relations of the usufruc-
tuary to States other than the State under which he holds.
It is, of course, quite possible to adapt the terms of Roman
private law to international use. " Dominium," " Possessio,"
" Occupatio," have long been so adapted, but it has yet to be
proved that " Ususfructus " is equally malleable. I can recall
no other use of the term in international discussions than
the somewhat rhetorical statement that an invader should
consider himself as merely the "usufructuary " of the resources
ENEMY PROPERTY 63
of the country which he is invading ; which is no more
than to say that he should use them "en bon pere de
famille." It will be a very different matter to put a strict
legal construction upon the grant of the " usufruct " of Port
Arthur. By way of homage to the conception of such a
grant, as presumably creating at the outside a hfe-interest,
Russia seems to have taken it, in the first instance, only
for 25 years. One may, however, be pardoned for sharing,
with reference to this transaction, the scruples which were
felt at Rome as to allowing the grant of a usufruct to a
corporation — " periculum enim esse videbatur, ne perpetuus
fieret."
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, March 30 (1898).
P.S. — It would seem from M. Lehr's Mements du droit
civil Russe that " usufruct " is almost unknown to the law
of Russia, though a restricted form of it figures in the code
of the Baltic provinces.
It is certain that, apart from general conventions, interna-
tional law imposes no liability on an invader to pay for requisi-
tioned 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. Articles 51 and 52 of the Reglemenl annexed to the
Convention direct, it is true, that receipts should be given for
contributions (" un rc9u sera delivre aux contribuablcs ") and
for supplies not paid for (*' dies scront constatees pardcs re^us"),
but these receipts were to bo 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 for the losses thus
established.
The liajlc.mcnl of 19U7 is more liberal than that of 1899 with
64 THE CONDUCT OF WAKFAEE
reference to requisitioned property (thougli 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 (constatees) 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.
EEQUISITIONS IN WARFARE
Sir, — A few words of explanation may not be out of place
with reference to a topic touched upon last night in the
House of Commons — viz. the Uabihty of the British Govern-
ment to pay for stock requisitioned during the late war from
private enemy owners. It should be clearly understood that
no such HabiHty is imposed by international law. The
commander of invading forces may, for valid reasons of his
own, pay cash for any property which he takes, and, if he
does not do so, is nowadays expected to give receipts for it.
These receipts are, however, not in the nature of evidence of
a contract to pay for the goods. They are intended merely
to constater the fact that the goods have been requisitioned,
with a view to any indemnity which may eventually be
granted to the sufferers by their own Government. What
steps should be taken by a Government towards indemni-
fying enemies who have subsequently become its subjects,
as is now happily the case in South Africa, is a question not
of international law, but of grace and favour.
An article in the cm-rent number of the Review of Reviews,
to which my attention has just been called, contains some
extraordinary statements upon the topic under discussion.
The uninformed public is assured that " we owe the Boers
payment in full for all the devastation which we have inflicted
MARTIAL LAW 65
upon their private property ... it is our plain legal obli-
gation, from the point of view of international law, to pay
it to the last farthing." Then The Hague Convention is
invoked as permitting interference with private property
" only on condition that it is paid for in cash by the con-
queror, and, if that is not possible at the moment, he must
in every case give a receipt, which he must discharge at the
conclusion of hostilities." There is no such provision as to
honouring receipts in this much misquoted convention.
Your obedient servant,
T. E. Holland.
Oxford, July 30 (1902).
Section 7
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 being armed, and one of them having 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 Capo held that it had no authority
to order his release. The Privy Council refused an apphcation
for leave to appeal against this decision, saying that " no doubt
has ever existed that, when war actually prevails, the ordinary
r
66 THE CONDUCT OF WARFARE
courts have no jurisdiction over the action of the military authori-
ties" ; adding that " the framers of the Petition of Eight knew
well what they meant when they made a condition of peace the
ground of the illegaUty 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 Proclama-
tion 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 efEect
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 by every system of national law, all necessary
means, including shooting, may be employed to prevent the
escape of a prisoner of war. The question raised by the
recent occurrence at Pretoria is, however, a different one —
viz. What are the circumstances in connection with an
attempt to escape which justify execution after trial by
court-martial of the persons concerned in it ? This question
may well be dealt with apart from the facts, as to which we
are as yet imperfectly informed, which have called for Mr.
Winston Churchill's letter. With the arguments of that
letter I in the main agree, but should not attach so much
importance as Mr. Churchill appears to do to a chapter of
the British Manual of Military Law, which, though included
MAKTIAL LAW 67
in a Government publication, cannot be taken as official,
since it is expressly stated " to have no official authority "
and to " express only the opinions of the compiler, as drawn
from the authorities cited."
I propose, without comment, to call attention to what
may be found upon this subject in Conventional Inter-
national Law, in one or two representative national codes,
and in the considered judgment of the leading contemporary
international lawyers.
I. The Hague " Convention on the laws and customs of
war on land " (ratified by twenty Powers) lays down : —
" Article VIII. — Prisoners of war shall be subject to the laws, regula-
tions, 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 indulgence granted to escapes does not apply to such
as are accompanied by " special circumstances," of which
the instances given are " complot, rebelhon, 6meuto."
" Article XII. — 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."
n. By the United States Instructions : —
" Article 77. — A prisoner of war may be shot or otherwise killed in
hiH flight ; but neither death nor any other punishment shall bo
inflicted on him simply for his attempt. ... If, however, a conspiracy
is di8covere<i, the purpose of wliich is a united or general cscaj)o, the
conspirators may be rigorously punished even with death, &c."
F 2
68 THE CONDUCT OF WARFAEE
" 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, after 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, Article 204, and
other Continental codes to the same effect.
III. The Manuel des Lois de la guerre sur terre of the
Institute of International Law lays down : —
" Article 68. — Si le fugitif ressaisi ou capture de nouveau avait
donne sa parole de ne pas s' evader, il peut etre prive des droits de
prisonnier de guerre.
" Article 78. — Tout prisonnier libere sur parole et repris portant les
armes contre le gouvernement auquel il I'avait donnee, peut etre prive
des droits de prisonnier de guerre, a moina que, posterieurement a
sa liberation, il n'ait et6 compris dans un cartel d'echange sans con-
ditions."
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 your columns the place, for an exhaustive discussion of
the interpretation and application of the Petition of Right.
It may, however, be just worth while to make the following
remarks, for the comfort of any who may have been dis-
quieted by the letter addressed to you by my friend Mr.
Jenks : —
1. Although, as is common knowledge, the words " in
time of peace," so familiar in the Mutiny Acts from the reign
of Queen Anne onwards, do not occur in the Petition, they do
occur, over and over again, in the arguments used in the
MARTIAL LAW 69
House of Commons by " the framers of the Petition of Right,"
to employ the phraseology of the judgment recently delivered
in the Privy Council by the Lord Chancellor.
2. The prohibition contained in the Petition, so far from
being " absolute and unquaHfied," is perfectly specific. It
refers expressly to " Commissions of like nature" with certain
Commissions lately issued : —
"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 by the Petition, is still extant.
3. The Petition neither affirms nor denies the legality of
martial law in time of war ; although its advocates were
agreed that at such a time martial law would be applicable
to soldiers.
4. A war carried on at a distance from the English shores,
as was the war with France in IG'28, did not produce such
a state of things as was described by the advocates of the
Petition as " a time of war." " We have now no army in the
field, and it is no time of war," said Mason in the course of
the debates. " If the Chancery and Courts of Westminster
be shut up, it is time of war, but if the Courts bo open, it is
otherwise ; yet, if war be in any part of the Kingdom, that
the Sheriff cannot execute the King's writ, there is tempus
belli,'' said Rolls.
I am, Sir, your obedient servant,
T, E. Holland.
Oxford, December 31 (1901).
70 THE CONDUCT OF WARFARE
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 recent judgment of the Privy Council, which were cited
by Mr. Jenks as a clear example of an assumption " that
the Petition of Right, in prohibiting the exercise of martial
law, restricted its prohibition to time of peace," imply, as I
read them, no assumption as to the meaning of that docu-
ment, but merely contain an accurate statement of fact as
to the line of argument followed by the supporters of the
Petition in the House of Commons. Can Mr. Jenks really
suppose that in making this remark I was " appealing
from the ' text of the Petition ' to the debates in
Parliament " ?
I then proceeded to deal very shortly with the Petition
itself, showing that while it neither condemns nor approves
of the application of martial law in time of war (see Lord
Blackburn's observations in R. v. Eyre) the prohibition
contained in its martial law clauses, so far from being " abso-
lute and unqualified," relates exclusively to " commissions
of Uke nature " with certain commissions which had been
lately issued (at a time which admittedly, for the purposes
of this discussion, was not " a time of war "), the text of which
is still preserved, and the character of which is set forth in
the Petition itself, as having authorised proceedings within
the land, " according to the justice of martial law, against
such soldiers or mariners," as also against " such other
dissolute persons joining with them," &c. The description
of these commissions, be it observed, is not merely introduced
MARTIAL LAW 71
into the Petition by way of recital, but is incorporated by
express reference into the enacting clause.
Thus much and no more I thought it desirable to say
upon these two topics by way of dissent from a letter of Mr.
Jenks upon the subject. In a second letter Mr. Jenks rides
off into fresh country. I do not propose to follow him into
the history of the conferences which took place in May, 1628,
after the framing of the Petition of Right, except to remark
that what passed at these conferences is irrelevant to the
interpretation to be placed upon the Petition, and, if relevant,
would be opposed to Mr. Jenks's contention. It is well
known that the Lords pressed the Commons to introduce
various amendments into the Petition and to add to it the
famous reservation of the " sovereign power " of the King.
One of the proposed amendments referred, as Mr. Jenks says,
to martial law, forbidding its appKcation to " any but soldiers
and mariners," or " in time of peace, or when your Majesty's
Army is not on foot." The Commons' objection to this
seems to have been that it was both unnecessary and
obscurely expressed. '* Thoir complaint is against commis-
sions in time of peace." " It may be a time of peace, and yet
his Majesty's Army may be on foot, and that martial law
was not lawful here in England in time of peace, when the
Chancery and other Courts do sit." " They feared that this
addition might extend martial law to the trained bands,
for the uncertainty thereof." The objections of the Commons
were, however, directed not so much to the amendments in
detail as to any tampering with the text of the Petition.
" They would not alter any part of the Petition " (nor did
they, except by expunging two words alleged to be needlessly
offensive), still less would they consent to add to it
72 THE CONDUCT OF WAKFARE
the reservation as to the " sovereign power " of the
King.
The story of these abortive conferences, however inter-
esting historically, appears to me to have no bearing upon
the legality of martial 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 Judicial Committee of the Privy Council, on behalf
of Natal natives under sentence of death, much stress was
laid upon the argument that a proclamation of martial law
cannot have a retrospective application. You will, perhaps,
therefore allow me to remind your readers that, so far from
the date of the proclamation having any bearing upon the
merits of this painful case, the issue of any proclamation
of martial law, in a self-governing British colony, neither
increases nor diminishes the powers of the military or other
authorities to take such steps as they may think proper
for the safety of the country. If those steps were properly
taken they are covered by the common law ; if they have
exceeded the necessities of the case they can be covered
only by an Act of Indemnity. The proclamation is issued
merely, from abundant caution, as a useful warning to those
whom it may concern.
This view, I venture to think, cannot now be seriously
controverted ; and I am glad to find, on turning to Mr.
NAVAL BOMBAEDMENTS 73
Clode's Military and Martial Law, that the passage cited
in support of Mr. Jelhcoe's contention as to a proclamation
having no retroactive application is merely to the effect
that this is so if certain statements, made many years ago in a
debate upon the subject, are correct. As to their correctness,
or otherwise, Mr. Clode expresses no opinion.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, AprU 3 (1906).
Section 8
The Naval Bombardment of Ojpen 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 Creat 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." {Pari. Paper, 1889 [c. 5032], pp. 4, 8.) The hostile
squadron had, it seems, received express instructions " to attack
any port in Great Britain." (See more fully in tlie writer's
Studies in International Law, 1898, p. 90.) The fifth letter was
suggested by a Russian protest against alleged Japanese action
in 1904.
The subserjuent history of this controversy, some account of
74 THE CONDUCT OP WARFARE
which is subjoined to these letters, has, it is submitted, established
the correctness of the views maintained in them.
NAVAL ATROCITIES
Sir, — I trust we may soon learn on authority whether
or no the enemies of this country are conducting naval
hostilities in accordance with the rules of civilised warfare.
I read with indignation that the Spider has destroyed
Greenock ; that she announced her intention of " blowing
down " Ardrossan ; that she has been " shelHng the fine
marine residences and watering-places in the Vale of Clyde."
Can this be true, and was there really any ground for ex-
pecting that " a bombardment of the outside coast of the
Isle of Wight " would take place last night?
Your obedient servant,
T. E. Holland.
Athenaeum Qub, August 7 (1888).
THE NAVAL MANOEUVRES
Sir, — In a letter which I addressed to you on the 7th
inst. I ventured to point out the discrepancy between the
proceedings of certain vessels belonging to Admiral Tryon's
fleet and the rules of civilised warfare. Your corre-
spondent on board Her Majesty's ship Ajax yesterday told
us something of the opinion of the fleet as to the bombard-
ment and ransoming of defenceless seaboard towns, going
on to predict that, in a war in which England should be
engaged, privateers would again be as plentiful as in the
days of Paul Jones, and assuring us that in such a war
" not the slightest respect would be paid to old-fashioned
treaties, protocols, or other diplomatic documents." Captain
NAVAL BOMBARDMENTS 75
James appears, from his letter which you print to-day,
to be of the same opinion as the fleet, with reference both
to bombardments and to privateers ; telhng us also in plain
language that " the talk about international law is all
nonsense."
Two questions are thus raised which seem worthy of
serious consideration. First, what are the rules of inter-
national law with reference to the bombardment of open
towns from the sea (I leave out of consideration the better
understood topic of privateering) ? Secondly, are future wars
Ukely to be conducted without regard to international law ?
t. I need hardly say that I do not, as Captain James
supposes, contend " that unfortified towns will never be
bombarded or ransomed." International law has never
prohibited, though it has attempted to restrict, the bom-
bardment of such towns. Even in 1694 our Government
defended the destruction of Dieppe, Havre, and Calais
only as a measure of retahation, and in subsequent naval
wars operations of this kind have been more and more
carefully Umited, till in the Crimean war oar cruisers were
careful to abstain from doing further damage than was
involved in the confiscation or destruction of stores of
arms and provisions. The principles involved were carefully
considered by the military delegates of all the States of
Europe at the Brussels Conference of 1874, and their con-
clusions, which apply, I conceive, mutatis mutandis, to
operations conducted by naval forces against places on
land, are as follows : —
" Akticlb 15. — Fortified places arc alone liable to be besieged.
Towns, agglomerations of houses, or villages which are open or un-
defended cannot be attacked or bombarded."
76 THE CONDUCT OF WARFARE
" Aeticle 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 wliich 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. CJontributions can be imposed only on the order and on the
responsibiUty of the general in chief."
" Article 42. — Requisitions shall be made only by the authority of
the commandant of the locaUty occupied."
These conclusions are substantially followed in the
chapter on the "Customs of War" contained in the Manual
of Military Law issued for the use of officers by the British
War Office.
The bombardment of an unfortified town would, I con-
ceive, be lawful — (1) as a punishment for disloyal conduct ;
(2) in extreme cases, as retahation for disloyal conduct
elsewhere ; (3) for the purpose of quelling armed resist-
ance (not as a punishment for resistance when quelled) ;
(4) in case of refusal of reasonable supplies requisitioned,
or of a reasonable money contribution in lieu of supplies.
It would, I conceive, be unlawful — (1) for the purpose of
enforcing a fancy contribution or ransom, such as we were
told was exacted from Liverpool ; (2) by way of wanton
injury to private property, such as was supposed to have
been caused in the Clyde and at Folkestone, and a fortiori
such as would have resulted from the anticipated shelling
during the night-time of the south coast of the Isle of
Wight.
NAVAL BOMBARDMENTS 77
2. Is it the case that international law is " all nonsense,"
and that "when we are at war with an enemy he will do
his best to injure us ? He will do so in what way he thinks
proper, all treaties and all so-called international law
notwithstanding"? Are we, with Admiral Aube, to
speak of " cette monstrueuse association de mots : les
droits de la guerre"? If so, cadit qucestio, and a vast
amount of labour has been wasted during the last three
centuries. I can only say that such a view of the future
is not in accordance with the teachings of the past. The
body of accepted usage, supplemented by special conven-
tions, which is known as international law, has, as a matter
of fact, exercised, even in time of war, a restraining in-
fluence on national conduct. This assertion might be
illustrated from the discussions which have arisen during
recent wars with reference to the Geneva Convention as
to the treatment of the wounded and the St. Petersburg
declaration against the use of explosive bullets. The
binding obligation of these instruments, which would
doubtless be classed by your correspondent with the fleet
among " old-fashioned treaties, protocols, and other diplo-
matic documents," has never been doubted, while each
party has eagerly endeavoured to disprove alleged infrac-
tions of them.
The naval manceuvres have doubtless taught many
lessons of practical seamanship. Thoy will have done
good service of another sort if thoy have brought to the
attention of responsible statesmen such questions as those
with which I have attempted to deal. It is essential that
the country should know the precise extent of the risks to
which our seaboard towns will bo exposed in time of war.
78 THE CONDUCT OF WARFARE
and it is desirable that our naval forces should be warned
against any course of action in their conduct of mimic
warfare which could be cited against us, in case we should
ever have to complain of similar action on the part of a real
enemy.
Your obedient servant,
T. E. Holland.
Oxford, August 18 (1888).
THE NAVAL MANCEUVRES
SiK, — In my first letter I called attention to certain
operations of the S'pider and her consorts which seemed
to be inspired by no principle beyond that of doing un-
limited mischief to the enemy's seaboard. In a second
letter I endeavoured to distinguish between the mischief
which would and that which would not be regarded as
permissible in civilised warfare. The correspondence which
has subsequently appeared in your columns has made
sufficiently clear the opposition between the view which
seems to find favour just now in naval circles and the prin-
ciples of international law as I have attempted to define
them. The question between my critics and myself is, in
effect, whether the mediaeval or the modern view as to the
treatment of private property is to prevail. According to
the former, all such property is liable to be seized or destroyed,
in default of a " Brandschatz," or ransom. According to the
latter, it is inviolable, subject only to certain well-defined
exceptions, among which reasonable requisitions of supplies
would be recognised, while demands of money contributions,
as such, would not be recognised.
The evidence in favour of the modern view being what
NAVAL BOMBARDMENTS 79
I have stated it to be is, indeed, overwhelming; but I
should like to call special attention to the Manuel de Droit
International a VJJsage des Officiers de V Armee de Terre,
issued by the French Government, as going even further
than the Brussels Conference in the restrictions which it
imposes upon the levying of requisitions and contribu-
tions. The Duke of WelUngton, who used to be thought
an authority in these matters, wrote in 1844, with reference
to a pamphlet in which the Prince de Joinville had advo-
cated depredations 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 civiUsed portions of mankind ? "
The naval historian, Mr. Younge, in commenting on
the burning of Paita, in Chih, as far back as 1871, for
non-compliance with a demand for a money contribution
(ultimately reduced to a requisition of provisions for the
ships), speaks of it as "worthy only of the most lawless
pirate or buccaneer, ... as a singular proof of how com-
pletely the principles of civilised warfare wore conceived
to be confined to Europe."
Such exceptional acts as the burning of Paita, or the
bombardment of Valparaiso, mentioned by Mr. Herries,
will, of course, occur from time to time. My position is
that they are so far stigmatised as barbarous by public
opinion that their perpetration in civili^iod warfare may bo
regarded as improbable ; in other words, that thoy are
forbidden by international law.
It is a further question whether the rules of international
law on this point are to bo changed or disregarded in future.
80 THE CONDUCT OF WARFARE
Do we expect and are we desirous that future wars shall
be conducted in accordance with buccaneering precedent,
or with what has hitherto been the general practice of the
nineteenth century ? Your naval correspondents incline
to revert to buccaneering, and thus to the introduction into
naval coast operations of a rigour long unknown to the
operations of military forces on land ; but they do so with
a difference. Lord Charles Beresford (writing early in the
controversy) asserts the permissibihty of ransoming and
destroying, without any qualifying expressions ; while
Admiral de Horsey would apparently only ask "rich"
towns for contributions, insisting also that a contribution
must be " reasonable," and expressly repudiating any claim
to do " wanton injury to property of poor communities,
and still less to individuals." In the light of these concessions,
I venture to claim Admiral de Horsey's concurrence in my
condemnation of most of the doings mentioned in my first
letter, although on the whole he ranges himself on the side of
the advocates of what I maintain to be a change in the
existing law of war. Whether or no the existing law needs
revision is a question for poUticians and for miHtary and
naval experts. It is within my province only to express a
hope that the contradiction between existing law and new
military necessities (if, indeed, such contradiction exists)
will not be solved by a repudiation of all law as "nonsense" ;
and, further, that if a change of law is to be effected, it
will be done with due dehberation and under a sense of
responsibility. It should be remembered that operations
conducted with the apparent approval of the highest naval
authorities, and letters in The Times from distinguished
admirals, are in truth the stuff that public opinion, and in
NAVAL BOMBARDMENTS 81
particular that department of public opinion known as
" international law," is made of.
The ignorance, by the by, which certain of my critics
have displayed of the nature and claims of international
law is not a little surprising. Some seem to identify it
with treaties ; others with " Vattel." Several, having
become aware that it is not law of the kind which is
enforced by a poUceman or a County Court baihff, have
hastened, much exhilarated, to give the world the benefit
of their discovery. Most of them are under the impres-
sion that it has been concocted by "bookworms," "jurists,"
"professors," or other "theorists," instead of, as is the fact,
mainly by statesmen, diplomatists, prize courts; generals,
and admirals. This is, however, a wide field, into which
I must not stray. I have even avoided the pleasant by-
paths of disquisition on contraband, privateering, and the
Declaration of Paris generally, into which some of your
correspondents have courteously invited me. I fear we
are as yet far from having disposed of the comparatively
simple question as to the operations which may be properly
undertaken by a naval squadron against an undefended
seaboard.
I am, your obedient servant,
T. E. Holland.
Llanfairfcchan, August 27 (1888).
NAVAL BOMBARDMENTS OF UNFORTIFIED
PLACES
Sir, — The protest reported to have been lodged by tho
Russian Government against tho bombardment by tho
Japanese fleet of a quarantine station on the island of
o
82 THE CONDUCT OF WARFARE
San-shan-tao, apart from questions of fact, as to which
we have as yet no reliable information, recalls atten-
tion to a question of international 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
the irrelevancy of the reference, alleged to have been made
in the Russian Note to " Article 25 of The Hague Convention."
The Convention and the Beglement annexed to it are, of course,
exclusively applicable to "la guerre sur terre." Not only,
however, would any mention of a naval bombardment have
been out of place in that Beglement, but a proposal to bring
such action within the scope of its 25th Article, which
prohibits " the attack or bombardment of towns, villages,
habitations, or buildings which are not defended," was
expressly negatived by the Conference of The Hague. It
became abundantly clear, during the discussion of this
proposal, that the only chance of an agreement being arrived
at was that any allusion to maritime warfare should be
carefully avoided. It was further ultimately admitted,
even by the advocates of the proposal, that the considera-
tions applicable to bombardments by an army and by a naval
force respectively are not identical. It was, for instance,
urged that an army has means other than those which may
alone be available to a fleet for obtaining from an open
town absolutely needful supplies. The Hague Conference,
therefore, left the matter where it found it, recording,
however, among its "pious wishes" (voeux) one to the
effect " that the proposal to regulate the question of
the bombardment of ports, towns, and villages by a
NAVAL BOMBAEDMENTS 83
naval force should be referred for examination to a future
conference."
The topic is not a new one. You, Sir, allowed me to raise
it in your columns with reference to the naval manoeuvres
of 1888, when a controversy ensued which disclosed the
existence of a considerable amount of naval opinion in
favour of practices which I ventured to think in contra-
vention of international law. It was also thoroughly debated
in 1896 at the Venice meeting of the Institut de Droit
International upon a report drafted by myself, as chairman
of a committee appointed a year previously. This report
lays down that the restrictions placed by international
law upon bombardments on land apply also to those effected
from the sea, except that such operations are lawful for a
naval force when undertaken with a view to (1) obtaining
supplies of which it is in need ; (2) destroying munitions of
war or warships which may be in a port ; (3) punishing, by
way of reprisal, violations by the enemy of the laws of war.
Bombardments for the purpose of exacting a ransom or of
putting pressure upon the hostile Power by injury to peace-
ful individuals or their property were to be unlawful. The
views of the committee were, in substance, adopted by the
Institut, with the omission only of the paragraph allowing
bombardment by way of reprisals.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, April 2 (l'J04).
The " Ilugue Conference " and " Hague Convention " to which
reference was made in the last of these letters were, of course,
those of 1899.
o2
84 THE CONDUCT OF WARFARE
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 V Institut, tt. xiv. p. 295, xv. pp. 145, 309, and his
Studies in International Law, p. 106. See also, at p. 104 of the
same work, an opinion given by him as to the liabiUty to bom-
bardment of The Hague.
The later history of the topic 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 it, registered a vceu " 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 Pari. Paper, Miscell.
No. 1 (1889), pp. 139, 146, 162, 165, 258, 283. At the Conference
of 1907 a Convention, No. ix., was accordingly signed, Art. 1 of
which prohibits " the bombardment by naval forces of ports,
towns, villages, houses, or buildings which are not defended."
Several Powers dissented from the concluding words of this
article which explain 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, miUtary or naval bases, and, by Arts.
3 and 4, of places which refuse to comply with reasonable requisi-
tions for food needed by the fleet, though not for refusal of
money contributions.
The Acte Final of the Conference further registers a voeu 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." {Pari. Paper, Miscell. No. 1 (1908),
p. 30.) Convention, No. iv. of 1907, in Art. 25 of the
Reglement annexed to it, lays down that " the attack or bombard-
ment, 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
that " the Government consider that the objection, on humani-
tarian grounds, to the bombardment of xmfortified 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
NAVAL BOMBARDMENTS 85
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 miUtary equipment or supply, or
ports containing fighting ships, and that the landing of troops,
or anything partaking of the character of a miUtary or naval
operation, is also not covered." {lb. p. 14.)
CHAPTER V
THE RIGHTS AND DUTIES OF NEUTRALS
Section 1
The Criterion of Neutral Conduct
The main object of the following letter was to assert, as against
any possible misunderstanding of phraseology attributed to a
great international lawyer (since lost to science and to bis 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 the next section.
PROFESSOR DE MARTENS ON THE
SITUATION
SiK, — The name of my distinguished friend, M. de
Martens, carries so much weight that I hope you will allow
me at once to say that I am convinced that to-day's
86
NEUTRAL CONDUCT 87
telegraphic report of some communication made by him to
the St. Petersburg newspapers fails to convey an accurate
account of the views which he has thus expressed.
On matters of fact it would appear that he is no better
informed than are most of us in this country ; and under
matters of fact may be included the breaches of neutrality
which he is represented as counter-charging against the
Japanese. It is exclusively with the views on questions of
law which are attributed to Professor de Martens that I am
now concerned. He is unquestionably right in saying, as I
pointed out in a recent letter, that the hard and fast rule,
fixing 24 hours as the Umit, under ordinary circumstances,
of the stay of a belligerent warship in neutral waters is not
yet universally accepted as a rule of international law ;
and, in particular, is not adopted by France.
But what of the further dictum attributed to Professor
de Martens, to the effect that " each country is its own judge
as regards the discharge of its duties as a neutral"? This
statement would be a superfluous truism if it meant merely
that each country, when neutral, must, in the first instance,
decide for itself what courses of action are demanded from
it under the circumstances. The words may, however, be
read as meaning that the decision of the neutral country,
as to the propriety of its conduct, is final, and not to be
questioned by other Powers. An assertion to this effect
would obviously be the negation of the whole system of
international law, of which Professor do Martens is so great
a master, resting, as that system docs, not on individual
caprice, but upon the agreement of nations in restraint of the
caprice of any one of them. The last word, with reference
to the propriety of the conduct of any given Btatc, rests,
88 THE BIGHTS AND DUTIES OF NEUTEALS
of course, not with that State, but with itg neighbours.
" Securus iudicat orbis terrarum." Any Power which fails
in the discharge, to the best of its abihty, of a generally
recognised duty, is likely to find that self-satisfaction is no
safeguard against unpleasant consequences. Professor de
Martens would, I am certain, endorse this statement.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, May 12 (1905).
Section 2
The Duties of Neutral States, and the Liahilities of Neutral
Individuals, distinguished
The duties of neutral States have been classified by the present
writer under the heads of " Abstention," " Prevention," and
" Acquiescence " {Transactions of the British Academy, vol. ii. p.
55). In the five letters which follow, an attempt is made to
point out the confusion which has resulted from failure to dis-
tinguish between the two last-mentioned heads of neutral duty ;
on the one hand, namely, the cases in which a neutral govern-
ment is bound itself to come forward and take steps to prevent
certain classes of action on the part of heUigerents, or of its own
subjects, e.g. the over-stay in its ports of belhgerent 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 belHgerents
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 hke.
I. A neutral State is bound to prevent its territory from be-
coming, in any way, a " base of operations" for either belhgerent.
Of the various obhgations thus arising, the following letters deal
STATES AND INDIVIDUALS 89
witii 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
mil unduly facihtate 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. X. of that year, 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 terri-
torial 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 and waters."
II. A neutral State isnoi bound to preventsuch 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 3), 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 Intt'rnationai, at its Cambridge and Venice sessions,
1895, 1896, as against the efforts of MM. Klecn 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
90 THE RIGHTS AND DUTIES OF NEUTRALS
has now received formal expression in The Hague Convention
No. X. of 1907, Art. 7 of which lays down that " a neutral Power
is not bound to prevent the export or transit, for the use of either
belligerent, of arms, ammunition, or, in general, of anything
which could be of use to an army or fleet."
CONTRABAND OF WAR
Sir, — As a good deal of discussion is evidently about to
take place as to the articles which may be properly treated
as contraband of war, and, in particular, as to coal being
properly so treated, I venture to think that it may be
desirable to reduce this topic (a sufficiently large one) to its
true dimensions by distinguishing it from other topics with
which it is too hable to be confused.
Articles are " contraband of war " which a belhgerent
is justified in intercepting while in course of carriage to his
enemy, although such carriage is being effected by a neutral
vessel. Whether any given article should be treated as
contraband is, in the first instance, entirely a question for
the belligerent Government and its Prize Court. A neutral
Government has no right to complain of hardships which may
thus be incurred by vessels sailing under its flag, but is
bound to acquiesce in the views maintained by the belligerent
Government and its Courts, unless these views involve, in
the language employed by Lord Granville in 1861, " a flagrant
violation of international law." This is the beginning and
end of the doctrine of contraband. A neutral Government
has none other than this passive duty of acquiescence. Its
neutrality would not be compromised by the shipment from
its shores, and the carriage by its merchantmen, of any
quantity of cannon, rifles, and gunpowder.
STATES AND INDIVIDUALS 91
Widely different from the above are the following three
topics, into the consideration of which discussions upon
contraband occasionally diverge : —
1. The international duty of the neutral Government
not to allow its territory to become a base of belligerent
operations : e.g. by the organisation on its shores of an
expedition, such as that which in 1828 sailed from Plymouth
in the interest of Dona Maria ; by the despatch from its
harbours for beUigerent use of anything so closely resembling
an expedition as a fully equipped ship of war (as was argued
in the case of the Alabama) ; by the use of its ports by
belligerent ships of war for the reception of munitions of war,
or, except under strict limitations, for the renewal of their
stock of coal ; or by such an employment of its colliers as was
alleged during the Franco-Prussian war to have impUcated
British merchantmen in the hostile operations of the French
fleet in the North Sea. The use of the term "contraband"
with reference to the failure of a neutral State to prevent
occurrences of this kind is purely misleading.
2. The powers conferred upon a Government by legis-
lation of restraining its subjects from intermeddling in a
war in which the Government takes no part. Of such
legislation our Foreign Enlistment Act is a striking example.
The large powers conferred by it have no commensurable
relation to the duties which attach to the position of neutral-
ity. Its effect is to enable the Government to prohibit
and punish, from abundant caution, many acts on the part
of its subjects for which it would incur no international
liability. It does empower the Government to prevent the
use of its territory as a base, e.g. by aid directly rendered
thenco to a belligerent fleet ; but it, of course, gives no right
92 THE RIGHTS AND DUTIES OP NEUTRALS
of interference with the export or carriage of articles which
may be treated as contraband.
3. The powers conferred upon a Government by such
legislation as section 150 of the Customs Consohdation Act,
1853, now reproduced in a later enactment, of forbidding at
any time, by Order in Council, the export of articles useful
in war. The power thus given has no relation to interna-
tional duty, and is mainly intended to be exercised, in the
way of self-protection, when Great Britain is, or is hkely to
be, engaged in war. The object of the enactment is to enable
the Government to retain in the country articles of which
we may ourselves be in need, or to prevent them from
reaching the hands of our enemies. The articles enumerated
— e.g. arms, ammunition, marine engines, &c. — are neither
in the Act of 1853, nor in the Order in Council of the following
year, described as " contraband of war."
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, March 5 (1904).
COAL FOR THE RUSSIAN FLEET
Sir,— The use of coal for belhgerent purposes is, of course,
of comparatively modern date, and it is hardly surprising
to find that the mercantile community, as would appear
from your marine insurance article of this morning, does
not clearly distinguish between the different classes of
questions to which such use may give rise. There is, indeed,
a widely prevalent confusion, even in quarters which ought
to be better informed, between two topics which it is
essential to keep separate — viz. the shipment of contraband
STATES AND INDIVIDUALS 93
and the use of neutral territory as a base for belligerent
operations.
A neutral Government (our own at the present moment)
occupies a very different position with reference to these two
classes of acts. With reference to the former, its inter-
national duty (as also its national poUcy) is merely one of
acquiescence. It is bound to stand aside, and make no
claim to protect from the recognised consequences of their
acts such of its subjects as are engaged in carriage of contra-
band. So far as the neutral Government is concerned,
its subjects may carry even cannon and gunpowder to a
belUgerent port, while the belhgerent, on the other hand,
who is injured by the trade may take all necessary steps to
suppress it.
Such is the compromise which long experience has
shown to be both reasonable and expedient between the, in
themselves irreconcilable, claims of neutral and belhgerent
States. So far, it has remained unshaken by the arguments
of theorists, such as the Swedish diplomatist M. Kloen, who
would impose upon neutral Governments the duty of pre-
venting the export of contraband by their subjects. A
British trader may, therefore, at his own proper risk,
despatch as many thousand tons of coal as ho chooses, just
as he may despatch any quantity of rides or bayonets, to
Vladivostok or to Nagasaki.
It by no means follows that British shipowners may
charter their vessels " for such purposes as following the
Itussian fleet with coal supplies." Lord Lansdowne's recent
letter to Messrs, Woods, Tylor, and Brown is explicit to the
effect that such conduct is " not permissible." Lord Lans-
downc naturally confined himself to answering the question
94 THE RIGHTS AND DUTIES OF NEUTRALS
which had been addressed by those gentlemen to the Foreign
Office ; but the reason for his answer is not far to seek.
The unlawfulness of chartering British vessels for the purpose
above mentioned is wholly unconnected with the doctrine of
contraband, but is a consequence of the international duty,
which is incumbent on every neutral State, of seeing that its
territory is not made a base of belligerent operations. The
question was thoroughly threshed out as long ago as 1870,
when Mr. Gladstone said in the House of Commons that
the Government had adopted the opinion of the law
officers —
" That if colliers are chartered for the purpose of attending the fleet
of a belligerent and supplying it with coal, to enable it to pursue its
hostile operations, such colliers would, to all practical purposes, become
store-ships to the fleet, and would be Hable, if within reach, to the
operation of the English law under the (old) Foreign Enlistment Act."
British colliers attendant on a Russian fleet would be so
undeniably aiding and abetting the operations of that fleet
as to give just cause of complaint against us to the Govern-
ment of Japan. The British shipper of coal to a belligerent
fleet at sea, besides thus laying his Government open to a
charge of neglect of an international duty, lays himself open
to criminal proceedings under the Foreign Enlistment Act
of 1870. By section 8 (3) and (4) of that Act, " any person
within H.M. Dominions " who (subject to certain exceptions)
equips or despatches any ship, with intent, or knowledge,
that the same will be employed in the mihtary or naval
service of a foreign State, at war with any friendly State,
is hable to fine or imprisonment, and to the forfeiture of
the ship. By section 30, " naval service " covers " user as a
store-ship," and " equipping " covers furnishing a ship with
THE BRITISH PROCLAMATION 95
" stores or any other thing which is used in or about a ship
for the purpose of adapting her for naval service." Our
Government has, therefore, ample powers for restraining, in
this respect, the use of its territory as a base. It has no
power, had it the wish (except for its own protection, under
a different statute), to restrain the export of contraband of
war.
It would tend to clearness of thought if the term " contra-
band " were never employed in discussions with reference to
prohibition of the supply of coal to a belligerent fleet at sea.
Your obedient servant,
T. E. Holland. '
Oxford, November 7 (1904).
THE BRITISH PROCLAMATION OF
NEUTRALITY
Sir, — You were good enough to insert in your issue of
November 9 some observations which I had addressed to
you upon the essential difference between carriage of
contraband, which takes place at the risk of the neutral
shipowner, and use of neutral territory as a base for belliger-
ent operations, an act which may implicate the neutral
Power internationally, while also rendering the shipper liable
to penal proceedings on the part of his own Government.
I am gratified to find that the views thus expressed by me
are in exact accordance with those sot forth by Lord Lans-
downe in his reply of November 25 to the Chamber of
Shipping of the United Kingdom. Perhaps you will allow
me to say something further upon the same subject, suggested
by several letters which appear in your paper of this morning.
96 THE RIGHTS AND DUTIES OF NEUTRALS
I am especially desirous of emphasising the proposition that
carriage of contraband is no offence, either against inter-
national law or against the law of England.
1. The rule of international law upon the subject may,
I think, be expressed as follows : — " A belligerent is entitled
to capture a neutral ship engaged in carrying contraband of
war to his enemy, to confiscate the contraband cargo, and,
in some cases, to confiscate the ship also, without thereby
giving to the Power to whose subjects the property in ques-
tion belongs any ground for complaint." Or, to vary the
phrase, " a neutral Power is bound to acquiesce in losses
inflicted by a belhgerent upon such of its subjects as are
engaged in adding to the military resources of the enemy of
that belligerent." This is the rule to which the nations have
consented, as a compromise between the right of the neutral
State, that its subjects should carry on their trade without
interruption, and the right of the belligerent State to prevent
that trade from bringing an accession of strength to his
enemy. International law here, as always, deals with
relations between States, and has nothing to do with the
contraband trader, except in so far as it deprives him of the
protection of his Government. If authority were needed
for what is here advanced, it might be found in Mr. Justice
Story's judgment in " The Santissima Trinidad," in President
Pierce's message of 1854, and in the statement by the
French Government in 1898, with reference to the case of
the Fram, that " the neutral State is not required to
prevent the sending of arms and ammunition by its
subjects."
2. Neither is carriage of contraband any offence
against the law of England ; as may be learnt, by any one
THE BRITISH PROCLAMATION 97
who is in doubt as to the statement, from the lucid language
of Lord Westbury in " Ex 'parte Chavasse " (34 L.J., Bkry.,
17). And this brings me to the gist of this letter. I have
long thought that the form of the Proclamation of NeutraHty
now in use in this country much needs reconsideration and
redrafting. The clauses of the Proclamation which are set
out by Mr. Gibson Bowles in your issue of this morning
rightly announce that every person engaging in breach of
blockade or carriage of contraband " will be justly hable to
hostile capture and to the penalties denounced by the law of
nations in that behalf, and will in no wise obtain protection
from us against such capture or such penalties." So far, so
good. But the Proclamation also speaks of such acts as
those just mentioned as being done " in contempt of this our
Royal Proclamation, in derogation of their duty as subjects
of a neutral Power in a war between other Powers, or in
violation or contravention of the law of nations in that
behalf." It proceeds to say that all persons "who may
misconduct themselves in the premises . . . will incur our
high displeasure for such misconduct." I venture to submit
that all these last-quoted phrases are of the nature of mis-
leading rhetoric, and should bo eliminated from a statement
the effective purport of which is to warn British subjects
of the treatment to which certain courses of conduct will
expose them at the hands of belligerents, and to inform them
thai the British Government will not protect them against
such treatment. The reason why our Government will
abstain from interference is, not that such courses of action
are offences either against internaiionul or Kuglisli law, but
that it has no right so to interfere ; having become a
party to a rule of international law, under which a neutral
H
98 THE RIGHTS AND DUTIES OF NEUTRALS
Government waives the right, which it would other-
wise possess, to protect the trade of its subjects from
molestation.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, November 28 (1904).
THE BRITISH PROCLAMATION OP
NEUTRALITY
Sir, — Inquiries which have reached me with reference
to the observations which I recently addressed to you upon
the British Proclamation of Neutrality induce me to think
that some account of the development of the text of the
proclamation now in use may be of interest to your readers.
The proclamations with which I am acquainted conform to
one or other of two main types, each of which has its history.
1. The earlier proclamations merely call attention to the
English law against enhstments, &c.., for foreign service ;
and command obedience to the law, upon pain of the
penalties thereby inflicted, " and of his Majesty's high
displeasure." In the proclamation of 1817, the tacit refer-
ence is doubtless to certain Acts of George II. which, having
been passed for a very different purpose, and having proved
inadequate in their new application, were repealed by the
Foreign Enhstment Act of 1819. This is the Act to which
reference is made in the proclamations of 1823 and 1825 ;
in the former of which we first get a recital of neutrality ;
while in the latter the clause enjoining all subjects strictly
to observe the duties of neutrality and to respect the exercise
of belligerent rights first makes its appearance.
THE BRITISH PROCLAMATION 99
2. The proclamation of 1859 is of a very different char-
acter, bearing traces of the influence of the ideas which had
inspired the action of President Washington in 1793. While
carrying on the old, it presents several new features.
British subjects are enjoined to abstain from violating, not
only " the laws and statutes of the realm," but also (for the
first time) " the law of nations." They are also (for the
first time) warned that, if any of them " shall presume, in
contempt of this our Royal Proclamation, and of our high
displeasure, to do any acts in derogation of their duty as
subjects of a neutral Sovereign, ... or in violation of
the law of nations, ... as, more especially," by breach
of blockade, or carriage of contraband, &c., they will " right-
fully incur, and be justly hable to, hostile capture, and to the
penalties denounced by the law of nations in that behalf " ;
and notice is (for the first time) given that those " who may
misconduct themselves in the premises will do so at their
peril, and of their own wrong ; and that they will in no wise
obtain any protection from Us against such capture, or such
penalties as aforesaid, but will, on the contrary, incur Our
high displeasure by such misconduct."
The proclamations of 1861 and February and March,
18GG, complicate matters, by making the warning clause
as to blockade and contraband apply also to the statutory
offences of enlistment, &c. ; but the proclamation of June,
1866, gets rid of this complication by returning to the
formula of 1859, which has been also followed in 1870, 1877,
1898, and in the present year.
The formula as it now stands, after the process of growth
already described, may be said to consist of seven parts —
viz. (1) a recital of neutrality ; (2) a command to subjects
H 2
100 THE RIGHTS AND DUTIES OF NEUTRALS
to observe a strict neutrality, and to abstain from contra-
vention of the laws of the realm or the law of nations in
relation thereto ; (3) a recital of the Foreign Enlistment Act
of 1870 ; (4) a command that the statute be obeyed, upon
pain of the penalties thereby imposed, " and of Our high
displeasure " ; (5) a warning to observe the duties of neutral-
ity, and to respect the exercise of belhgerent rights ; (6)
a further warning to those who, in contempt of the pro-
clamation " and of Our high displeasure,", may do any acts
" in derogation of neutral duty, or in violation of the law of
nations," especially by breach of blockade, carriage of
contraband, &c., that they will be liable to capture *' and to
the penalties denounced by the law of nations " ; (7) a
notification that persons so misconducting themselves " will
in no wise obtain any protection from Us," but will, " on the
contrary, incur Our high displeasure by such misconduct."
The question which I have ventured to raise is whether
the textus recejptus, built up, as it has been, by successive
accretions, is sufficiently in accordance with the facts to
which it purports to call the attention of British subjects to
be properly submitted to His Majesty for signature. I
would suggest for consideration : — 1. Whether the phrases
commanding obedience, on pain of His Majesty's "high
displeasure," and the term " misconduct," should not be used
only with reference to offences recognised as such by the law
of England. 2. Whether such condensed, and therefore
incorrect, though very commonly employed, expressions
as imply that breach of blockade and carriage of contraband
are "in violation of the law of nations," and are liable to
" the penalties denounced by the law of nations," should
not be replaced by expressions more scientifically correct.
BELLIGERENT FLEETS 101
The law of nations neither proliibitsHlie iccts in'qufestion nor
prescribes penalties to be ijicurfed l>y^"!the. 'doer.& of' them.
What it really does is to define the measures to which a
belligerent may resort for the suppression of such acts,
without laying himself open to remonstrance from the
neutral Government to which the traders imphcated owe
allegiance.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, Decembers (1904).
BELLIGERENT FLEETS IN NEUTRAL WATERS
Sir, — A novel question as to belhgerent responsibilities
would be suggested for solution if, as seems to be reported
in Paris, Admiral Rozhdestvensky over-stayed his welcome
in the waters of Madagascar, although ordered to leave them
by his own Government in comphance with " pressing repre-
sentations " on the part of the Government of France.
A much larger question is, however, involved in the dis-
cussion which has arisen as to the alleged neglect by France
to prevent the use of her Cochin-Chinese waters by the
Russians as a base of operations against Japan. We are as
yet in the dark as to what is actually occurring in those
waters, and arc, perhaps, for that very reason in a better
position for endeavouring to ascertain what are the obligations
imposed on a neutral in such a case by international law.
It is admitted on all hands that a neutral Power is bound
not to permit the " asylum " which she may grant to ships of
war to be so abused as to render her waters a " base of opera-
tions " for the belligerent to which those ships belong.
102 THE RIGHTS AND DUTIES OP NEUTRALS
Beyond thi?, international law speaks at present with an
uncertain' voice,- Jeaving' to each Power to resort to such
measures in detail as may be necessary to ensure the due
performance of a duty which, as expressed in general terms,
is universally recognised.
The rule enforced since 1862 by Great Britain for this
purpose limits the stay of a belligerent warship, under ordi-
nary circumstances, to a period of twenty-four hours ; and
the same provision will be found in the neutrality proclama-
tions issued last year by, e.g. the United States, Egypt, China,
Denmark, Sweden and Norway. So by Japan and Russia in
1898. This rule, convenient and reasonable as it is, is not
yet a rule of international law ; as Lord Percy has had
occasion to point out, in replying to a question addressed to
him in the House of Commons. The proclamations of most
of the Continental Powers do not commit their respective
Governments to any period of time, and the material clauses
of the French circular, to which most attention will be
directed at the present time, merely provide as follows : —
" (1) En aucun cas, un belligerant ne peut faire usage d'un port
Fran^ais, ou appartenant a un Etat protege, dans un but de guerre, &c.
(2) La duree du sejour dans nos ports de belligerants, non accom-
pagnea d'une prise, n'a ete limitee par aucune disposition speciale ;
mais pour etre autorises a y sejourner, ils sont tenus de se conformer aux
conditions ordinaires de la neutralite, qui peuvent se resumer ainsi
qu'il suit : — (a) ... (6) Les dits navires ne peuvent, d Vaide de res-
sources puisees a terre, augmenter leur materiel de guerre, renforcer
leurs equipages, ni faire des enrolements volontaires, meme parmi
leurs nationaux." (c) Ils doivent s'abstenir de toute enquete sur les
forces, remplacement ou les ressources de leurs ennemis, ne pas ap«
pareiller brusquement pour poursuivre ceux qui leur seraient signales ;
en un mot, s'abstenir de faire du lieu de leur residence la base d'une
operation quelconque contre I'ennemi. (3) II ne peut etre fourni a
un belligerant que les vivres, denrees, et moyens de reparations neces-
saires a la subsistance de son equipage ou a la securitede sa navigation."
CONTRABAND OF WAR 103
Under the twenty-four hours rule, the duty of the neutral
Government is clear. Under the French rules, all must
evidently turn upon the wisdom and bonne volonU of the
officials on the spot, and of the home Government, so far as
it is in touch with them. We have no reason to suppose that
the qualities in question will not characterise the conduct of
the French at the present moment. There can, however, be
no doubt that a better definition of the mode in which a
neutral Power should prevent abusive use of the asylum
afforded by its ports and waters is urgently required. The
point is one which must prominently engage the attention of
the special conference upon the rights and duties of neutrals,
for which a wish was expressed by The Hague Conference of
1899, and, more recently, by President Roosevelt.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, April 20 (1905).
Section 3
Carriage of Contraband. {Absolute and Conditional Contra-
band : Continuous Voyages : Unqualified Cajjtors : The
Declaration of London)
The letters inchided in tlic preceding section touched inci-
dentally upon carriage of contraband, in relation to other de-
partments 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 judgo-made law, but largely also by written
rules, such as those provided by the, as yet unratified, Declaration
of London of 1900.
104 THE RIGHTS AND DUTIES OF NEUTRALS
As to this Declaration, some observations will be found at
the end of this section, and, more fuUy, at the end of Section 6.
{Absolute and Conditional Contrabarid)
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 sets out only one list of contraband
goods, the United States Instructions of June 20 recognise
two lists, viz. of " absolute " and of " conditional " contra-
band, 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, or
for a place besieged."
An answer was thus supplied to the question suggested in
this letter, as to articles ancipitis usus.
CONTRABAND OF WAR
Sir, — I fear that the mercantile community will hardly
profit so much as the managers of the Atlas Steamship Com-
pany seem to expect by the information contained in their
letter which you print this morning. It was, indeed, un-
likely that the courteous reply of the Assistant Secretary of
State at Washington to the inquiry addressed to him by the
New York agents of the company would contain a declara-
tion of the policy of the United States with reference to
contraband of war. The threefold classification of " merchan-
dise" (not of " contraband ") quoted in the reply occurs, in the
judgment of the Supreme Court in the well-known case of
the Peierhoff (5 Wallace, 58), but it is substantially that of
Grotius, and has long been accepted in this country and in
the United States, while the Continent is, generally speaking,
CONTKABAND OF WAE 105
inclined to deny the existence of " contraband by
accident," and to recognise only such a restricted list of
contraband as was contained in the Spanish decree of
April 24 last.
The questions upon which shippers are really desirous of
information (which they are, however, perhaps not Hkely to
obtain, otherwise than from decisions of prize Courts) are of
a less elementary character. They would hke to know what
articles ancifitis usus {" used for purposes of war or peace
according to circumstances ") will be treated by the United
States as contraband, and with what penalty the carriage of
such articles will be visited — i.e. whether by confiscation or
merely by pre-emption.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, May 9 (1898).
The four letters which next follow also relate to the two
classes of contraband goods, with especial reference to the
character attributed to foodstuffs, coal, and cotton.
On foodstuffs, see the Report of the Royal Commission on the
Supply of Food, (&c., in time of War, 1905. Cf. also the last
paragraph in the first letter in Section 5, infra. They are
placed by the Declaration of London, Art. 24, in the class of
conditional contraband ; as is also coal. By Art. 28 of the
Declaration, raw cotton is enumerated among the articles which
cannot be declared contraband of war.
The sug^'ostion, in the letter of February 20, 1901, that
certain words (juoted from the Japanese Instructions had been
mistransmittcd or misquoted was borne out by the Regulations
fjoverning 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 arc intended for mihtary purposes."
lOG THE RIGHTS AND DUTIES OP NEUTRALS
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 consoUdated 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, is now
expressly adopted in Arts. 22, 24, and 28 of the Declaration of
London of 1909.
IS COAL CONTRABAND OF WAR ?
Sir, — This question has now been answered, in unmis-
takable terms, on behalf of this country by Lord Lansdowne
in his reply, which you printed yesterday, to Messrs. Powley,
Thomas, and Co., and on behalf of Japan by the proclama-
tion which appears in The Times of to-day. Both of these
documents set forth the old British doctrine, now fully
adopted in the United States, and beginning to win its way
on the Continent of Europe, that, besides articles which are
absolutely contraband, other articles ancipitis usus, and
amongst them coal, may become so under certain conditions.
" When destined," says Lord Lansdowne, " for warlike as
opposed to industrial use." " When destined," says Japan,
CONTRABAND OF WAR 107
" for the enemy's army or navy, or in such cases where, being
goods arriving at enemy's territory, there is reason to beheve
that they are intended for use of enemy's army or navy."
I may say that the words which I have itahcised must, I
think, have been mistranslated or mistransmitted. Their
intention is, doubtless, substantially that which was more
clearly expressed in the Japanese proclamation of 1894 by
the words — " Either the enemy's fleet at sea or a hostile port
used exclusively or mainly for naval or military equipment."
A phrase in your issue of to-day with reference to the
Cardiff coal trade suggests that it may be worth while to
touch upon the existence of a widely-spread confusion
between the grounds on which export of coal may be pro-
hibited by a neutral country and those which justify its con-
fiscation, although on board a neutral ship, by a belligerent.
A neutral State restrains, under certain circumstances, the
export of coal, not because coal is contraband, but because
such export is converting the neutral territory into a base of
beUigerent operations. The question of contraband or no
contraband only arises between the neutral carrier and the
belligerent when the latter claims to be entitled to interfere
with the trade of the former.
Since the rules applicable to the carriage of coal are, I
venture to think, equally applicable to the carriage of food-
stuffs. I may perhaps be allowed to add a few words with
reference to the letter addressed to you a day or two ago by
Sir Henry Bhss. I share his desire for some explanation of
the telegram which reached you on the 12th of this month
from British Columbia. One would like to know — (1) What
is " the Government," if any, which has instructed the Em-
press Line not to forward foodstuffs to Japan ; (2) whether
108 THE BIGHTS AND DUTIES OF NEUTRALS
the refusal relates to foodstuffs generally, or only to those with
a destination for warlike use ; (3) what is meant by the
statement that " the steamers of the Empress Line belong to
the Naval Reserve " ? I presume the meaning to be that
the line is subsidised with a view to the employment of the
ships of the company as British cruisers when Great Britain
is at war. The bearing of this fact upon the employment of
the ships when Great Britain is at peace is far from apparent.
It is, of course, possible that the Government contract with
the company may have been so drawn, ex abundanti cautela,
as greatly to restrict what would otherwise have been the
legitimate trade of the company.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, February 20 (1904).
COTTON AS CONTRABAND OF WAR
Sir, — The text of the decision of the Court of Appeal at
St. Petersburg in the case of the Calchas has at length reached
this country, and we are thus informed, upon the highest
authority, though, perhaps, not in the clearest language, of
the meaning which is now to be placed upon the Russian
notification that cotton is contraband of war.
This notification, promulgated on April 21, 1904, was
received with general amazement, not diminished by an
official gloss to the effect that it " apphed only to raw cotton
suitable for the manufacture of explosives, and not to yarn
or tissues." It must be remembered that at the date men-
tioned, and for some months afterwards, Russia stoutly
maintained that all the articles enumerated in her list of
CONTEABAND OF WAR 109
contraband of February 28, 1904, and in the additions to that
list, were " absolutely " such — i.e. were confiscable if in course
of carriage to any enemy's port, irrespectively of the character
of that port, or of the use to which the articles would pro-
bably be put. It was only after much correspondence, and
the receipt of strong protests from Great Britain and the
United States, that Russia consented to recognise the well-
known distinction between " absolute " and " conditional "
contraband ; the latter class consisting of articles useful in
peace as well as for war, the character of which must, there-
fore, depend upon whether they are, in point of fact, destined
for warHke or for peaceful uses. This concession was made
about the middle of September last, and it was then agreed
that provisions should be placed in the secondary category
(as was duly explained in the Petersburg judgment in the
case of the Arabia on December 14) together with some other
articles, among which it seemed that raw cotton was not
included.
The final decision in the Calchas case marks a welcome
change of policy. Cotton has now followed foodstuffs into
the category of '* conditional " contraband, and effect has so
far been given to the representations on the subject made by
Mr. Hay in circular despatches of June 10 and August 30,
1904, and by Sir Charles Hardinge, in a note presented to
Count Lamsdorff on October 9 of the same year.
The question had become a practical one in the case of
the CalcJias. On July 25 this vessel, laden with, inter alia,
nine tons of raw cotton for Yokohama and Kobe, was seized
by a Russian cruiser and carried into Vladivostok, whore,
on September 13, the cotton, together with other portions of
her cargo, was condemned as absolutely contraband. The
110 THE RIGHTS AND DUTIES OF NEUTRALS
reasons for repudiating this decision, and the notification to
which it gave effect, were not far to seek, and it may still be
worth while to insist upon them. As against Russia, it is
well to recall that, from the days of the Armed Neutralities
onwards, her traditional policy has been to favour a very
restricted hst of contraband ; that when in 1877, as again in
1900 and 1904, she included in it materials " servant de faire
sauter les obstacles," the examples given of such materials
were things so immediately fitted for warlike use as " les
mines, les torpilles, la dynamite," &c. ; and that what is
said as to " conditional contraband " by her trusted adviser,
Professor de Martens, in his Droit International, t. iii. (1887),
pp. 351-354, can scarcely be reconciled with her recent
action.
But a still stronger argument against the inclusion of
cotton in the list of " absolute " contraband is that this is
wholly without precedent. It has, indeed, been alleged that
cotton was declared to be "contraband" by the United States
in their Civil War. The Federal proclamations will; how-
ever, be searched in vain for anything of the kind. The mis-
take is due to an occasional loose employment of the term, as
descriptive of articles found by an invader in an enemy's
territory, which, although the property of private, and even
neutral, individuals, happen to be so useful for the purposes
of the war as to be justly confiscated. That this was so will
appear from an attentive reading of the case of Mrs. Alex-
ander's Cotton, in 1861 (2 Wallace, 404), and of the arguments
in the claim made by Messrs. Maza and Larrache against the
United States in 1886 (Foreign Relations of U.S., 1887). A
similarly loose use of the term was its application by General
B. F. Butler to runaway slaves who had been employed on
CONTRABAND OF WAR 111
military works ; an application of which he confessed himself
" never very proud as a lawyer," though " as an executive
officer, much comforted with it." The phrase caught the
popular fancy, came to be applied to slaves generally, and
was immortahsed in a song, long a favourite among negro
children, the refrain of which was " I'se a happy little
contraband."
The decision of the Court of St. Petersburg in the case of
the Calclias, so far as it recognises the existence of a condi-
tional class of contraband, and that raw cotton, as res
ancipitis usus, must be treated in accordance with the rules
appUcable to goods belonging to that class, has laid down an
unimpeachable proposition of law. Whether the view taken
by the Court of the facts of the case, so far as they relate to
the cotton cargo, is equally satisfactory is a different and
less important question, upon which I refrain from troubling
you upon the present occasion.
I am, Sir, your obedient servant,
T. E. Holland.
Temple, July 1 (1905).
P.S. — It may be worth while to add, for the benefit of
those only who care to be provided with a clue (not to be
found in the judgment) through the ,somewhat labyrinthine
details of the question under discussion, a summary of its
history. 'Hw Russian rules as to contraband are contained
in several documents — viz. the " Regulations as to Naval
Prize" of 1895, Arts. 11-14 ; the " Admiralty Instructions '
of 1900, Arts. 37, 38, and tlio appended " Special Declaration "
as to tlio articles considered to bo contraband (partly
modelled on the hst of 1877) ; the " Imperial Order " of
112 THE EIGHTS AND DUTIES OF NEUTRALS
February 28, 1904, rule 6 (this order keeps alive the rules of
1895 and 1900, except in so far as they are varied by it) ; the
" Order " of March 19, 1904, defining " food " and bringing
machinery of certain kinds into the list of contraband ; the
" Order," of April 21, 1904, bringing " raw cotton " into the
hst ; and, lastly, the " Instructions " of September 30 and
October 23, 1904, recognising, in effect, a class of " condi-
tional " contraband, placing foodstuffs in this class, as also,
ultimately, other objects " capable of warlike use and not
specified in sections 1-9 of rule 6."
JAPANESE PRIZE LAW
Sir, — I hope you will allow me space for a few words with
reference to some statements occurring to-day in your Marine
Insurance news which I venture to think are of a misleading
character.
Your Correspondent observes that —
" Although the Japanese are signatories to the Treaty of Paris, it
should not be forgotten that they have a Prize Coiu-t law of their own
(August 20, 1894), and are more likely to follow its provisions, in
deaUng with the various captured steamers, than the general principles
of the Treaty of Paris."
Upon this paragraph let me remark : —
1. The action of the Japanese is in full accordance with
the letter and spirit of all four articles of the Declaration of
Paris. (" The Treaty of Paris " has, of course, no bearing
upon prize law.)
2. " The general principles " of that Declaration is a
phrase which conveys to me, I confess, no meaning.
3. The Japanese have, of course, a prize law of their
own, borrowed, for the most part, from our own Admiralty
CONTRABAND OF WAR 113
Manual of Prize Law, Neither the British nor the
Japanese instructions are in conflict with, or indeed stand
in any relation to, the Declaration of Paris.
4. The existing prize law of Japan was promulgated on
March 7, 1904, not on August 20, 1894.
Your Correspondent goes on to say that the Japanese
definition of contraband " is almost as sweeping as was the
Russian definition, to which the British Government took
active objection last summer." So far is this from being the
case that the Japanese Hst is practically the same as our own,
both systems recognising the distinction between " absolute"
and " conditional " contraband, which, till the other day,
was ignored by Russia.
The Japanese rules as to the cases in which ships carrying
contraband may be confiscated are quite reasonable and in
accordance with British views. The third ground for
confiscation mentioned by your Correspondent does not
occur in the instructions of 1904.
Ships violating a blockade are, of course, confiscable ;
but the Japanese do not, as your Correspondent seems to have
been informed, make the existence of a blockade conditional
upon its having been " notified to the Consuls of all States in
the blockaded port." Commanders are, no doubt, instructed
to notify the fact, " as far as possible, to the competent
authorities and the Consuls of the neutral Powers within the
circumference of the blockade " ; but that is a very different
thing,
I am, Sir, your obedient servant,
T. E. Holland.
The Athenaum, March 10,(1905).
114 THE EIGHTS AND DUTIES OF NEUTRALS
Sir, — Let me assure your correspondent upon Marine
Insurance that I have been familiar, ever since its promulga-
tion, with the Japanese prize law of 1894, quoted by him as
authority for statements made in your issue of March 10,
the misleading character of which I felt bound to point out
in a letter of the same date. All the topics mentioned by him
on that occasion, and to-day, are, however, regulated, not by
that law, but by notifications and instructions issued from
time to time during 1904.
I make it my business not only to be authoritatively in-
formed on such matters, but also to see that my information
is up to date.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, March 15 (1905).
{Continuous Voyages)
The opinion expressed in the letter wMch 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 SaUsbury in a despatch of January 10, 1900, to be com-
mimicated to Count von Biilow, with reference to the seizure of
the Bundesrath. Pari. 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, has been recently estabhshed in the case of Yangtsze
Insurance Association v. Indemnity Mutual Marine Company,
[1908] 1 K, B. 910, in which it was ^held|by|Bigham, J., that the
transport of military officers of a belhgerent State, as passengers
in a neutral ship, is not breach of a warranty against contraband
of war in a pohcy of marine insurance. The carriage of enemy
despatches can no longer be generally treated as " enemy service "
CONTINUOUS VOYAGES 115
should The Hague Convention, No. xi. of 1907, be adequately
ratified ; since, by Art, 1 of that Convention, it is provided that,
except in case of breach of blockade, " the postal correspondence
of neutrals or belligerents, whether of ayi 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 deUvered
either at Hong-Kong or Sasebo. On arrival at Hong-Kong, she
found orders to deliver at Sasebo, and, having made deUvery
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 delicto when she has
" deposited " her contraband (since affirmed by Art. 38 of the
Declaration of London of 1909), that she was Hable 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 " is by the Declaration
of London, Art. 30, recognised in the case of " absolute," but, by
Art. 35, stated to be inapplicable to the case of " conditional "
contraband.
PRIZE LAW
Siu, — Questions of maritimo international law which are
likely to give rise not only to forensic argument in the
prize Courts which we have estabhshod at Durban and
at the Cape, but also to diplomatic connnunications
between Great Britain and neutral Governments, should
obviously be handled just now with a large measure of
I 2
116 THE EIGHTS AND DUTIES OF NEUTKALS
reserve. Lord Rosebery has, however, in your columns
called upon our Government to define its policy with refer-
ence to foodstuffs as contraband of war, while several other
correspondents have touched upon cognate topics. You may
perhaps therefore be disposed to allow one who is responsible
for the Admiralty Manual of the Law of Prize, to which
reference has been made by your correspondent " S.," to
make a few statements as to points upon which it may be
desirable for the general reader to be in possession of
information accurate, one may venture to hope, as far as it
goes.
Of the four inconveniences to which neutral trading
vessels are liable in time of war, " blockade " may be left out
of present consideration. You can only blockade the ports
of your enemy, and the South African Republics have no
port of their own. The three other inconveniences must,
however, all be endured — viz. prohibition to carry " contra-
band," prohibition to engage in " enemy service," and liability
to be " visited and searched " anywhere except within three
miles of a neutral coast, in order that it may be ascertained
whether they are disregarding either of these prohibitions,
as to the meaning of which some explanation may not be
superfluous.
1. "Carriage of contraband" implies (1) that the goods
carried are fit for hostile use ; (2) that they are on their way
to a hostile destination. Each of these requirements has
given rise to wide divergence of views and to a considerable
literature. As to (1), while Continental opinion and practice
favour a hard and fast list of contraband articles, comprising
only such as are already suited, or can readily be adapted, for
use in operations of war, EngHsh and American opinion and
CONTINUOUS VOYAGES 117
practice favour a longer list, and one capable of being from
time to time extended to meet the special exigencies of the
war. In such a list may figure even provisions, " under cir-
cumstances arising out of the particular situation of the war,"
especially if "going with a highly probable destination to
military use " — Lord Stowell in the Joiige Margaretha
(1 Rob. 188) ; cf. Story, J., in the Commercen (1 Wheat.
382), the date and purport of which are, by-the-by, incor-
rectly given by " S." It would be in accordance with our own
previous practice and with Lord Granville's despatches during
the war between Prance and China in 1885, if we treated
flour as contraband only when ear-marked as destined for
the use of enemy fleets, armies, or fortresses. Even in
such cases our practice has been not to confiscate the cargo,
but merely to exercise over it a right of " pre-emption," so as
to deprive the enemy of its use without doing more injury
than can be helped to neutral trade — as is explained by
Lord Stowell in the Haahet (2 Rob. 174). As to (2) the
rule was expressed by Lord Stowell to be that " goods going
to a neutral port cannot come under the description of contra-
band, all goods going there being equally lawful " — Imina
(3 Rob. 1G7) ; but innovations were made upon this rule
during the American Civil War which seem to be demanded
by the conditions of modern commerce and might well be
followed by a British prize Court. It was held that contra-
band goods, although bona fide on their way to a neutral port,
might bo condemned if intended afterwards to reach the
enemy by another ship or even by means of land carriage —
Bermuda (3 Wallace) ; Peierhoff (5 Wallace). A consign-
ment to Lorenzo Marques, connected as is the town by only
forty miles of railway with the Transvaal frontier, would
118 THE EIGHTS AND DUTIES OF NEUTRALS
seem to be well within the principles of the Civil War cases as
to " continuous voyages."
2. The carriage by a neutral ship of enemy troops, or of
even a few military officers, as also of enemy despatches, is an
" enemy service " of so important a kind as to involve the
confiscation of the vessel concerned, a penalty which, under
ordinary circumstances, is not imposed upon carriage of
" contraband " properly so-called. See Lord Stowell's lumi-
nous judgments in Orozemho (6 Rob. 430) and Atalanta
{ib. 440). The alleged offence of the ship Bundesrath would
seem to be of this description.
The questions, both of "contraband" and of "enemy
service," with which our prize Courts must before long have
to deal, will be such as to demand from the Judges a com-
petent knowledge of the law of prize, scrupulous fairness
towards neutral claimants, and prompt penetration of the
Protean disguises which illicit trade so readily assumes in
time of war.
Your obedient servant,
T. E. Holland.
Oxford, January 2 (1900).
THE ALLANTON {Continuous Voyage)
Sir, — I venture to think that the letter which you
print this morning from my friend Dr. Baty, with reference
to the steamship Allanton, calls for a word of warning ;
unless, indeed, it is to be taken as merely expressing the
private opinion of the writer as to what would be a desirable
rule of law.
It would be disastrous if shipowners and insurers were
to assume that a neutral vessel, if destined for a neutral
UNQUALIFIED CAPTOES 119
port, is necessarily safe from capture. Words at any rate
capable of this construction may, no doubt, be quoted
from one of Lord Stowell's judgments, now more than a
century old ; but many things have happened, notably
the invention of railways, since the days of that great
Judge. The United States cases, decided in the sixties
(as Dr. Baty thinks, " on a demonstrably false analogy "),
in which certain ships were held to be engaged in the carriage
of contraband, although their destination was a neutral
port, were substantially approved of by Great Britain.
Their principle was adopted by Italy, in the Doelwijk,
in 1896, and was supported by Great Britain in the corre-
spondence upon this subject which took place with Germany
in 1900. It was endorsed, after prolonged discussion,
by the Institut de Droit International in 1896.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, July 11 (1904).
{Unqualified Captors)
Among the objections raised by the British Government
to the capture by the Russian ship Peterburg in the Red Sea, on
July 13, 1904, of the P. and 0. 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 tlie commercial flag,
had subsequently, and without touching at any Russian port,
brought up guns from her hold, and had proceeded to exercise
belhgerent rights under the Russian naval flag. In cousecjuence
of the protest of the British Government, and to close the incirlent,
the Malacca was released at Algiers, after a purely formal
120 THE RIGHTS AND DUTIES OP NEUTRALS
examination, on July 27, and Russia agreed to instruct
the officers of lier 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, " as to the trans-
formation of merchant vessels into ships-of-war."
THE ALLAN TON {Unqualified Cantors)
Sir, — The indignation caused by the treatment of the
Allanton is natural, and will almost certainly prove to be
well founded ; but Mr. Rae, in the letter which you print
this morning, overstates a good case. He asks that,
"whatever steps are taken for the release of the Malacca,
equally strong steps should be taken for the release of the
Allanton " ; and he can see no difference between the cases
of the two ships, except that the former is owned by a
powerful company in the habit of carrying British mails,
while the latter is his private property.
One would have supposed it to be notorious that the
facts which distinguish the one case from the other are,
first, that the capture of the Malacca was effected by a vessel
not entitled to exercise belHgerent rights ; and, secondly,
that Great Britain is prepared to claim the incriminated
cargo as belonging to the British Government. Capture
by an unqualified cruiser is so suf3Bcient a ground for a
claim of restoration and compensation that, except perhaps
as facilitating the retreat of Russia from a false position, it
would seem, to say the least, superfluous to pray in aid
THE DECLARATION OF LONDON 121
any other reason for the cancellation of an act unlawful
ah initio.
I have not noticed any statement as to the actual
constitution of the prize Court concerned in the condemna-
tion of the Allanton. Under Rule 54 of the Russian Naval
Regulations of 1895, a " Port Prize Court " must, for a decree
of confiscation, consist of six members, of whom three must
be officials of the Ministries of Marine, Justice, and Foreign
Affairs respectively. An " Admirals' Prize Court," for the
same purpose, need consist of only four members, all of whom
are naval officers.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, July 25 (1904).
{Note upon the Declaration of London)
The British delegates to The Hague Conference of 1907 were
instructed that H.M. Government " are ready and willing for
their part, in lieu of endeavouring to frame new and more
satisfactory rules for the prevention of contraband trade in the
future, to abandon the principle of contraband of war altogether,
thus allowing the oversea trade in neutral vessels between belli-
gerents on the one hand and neutrals on the other, to continue
during war without any restriction," except with reference to
blockades. This proposal 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. Pari. Pajwr, 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, Articles 22-44 of wliidi con-
stitute a fairly complete code of the law of (;ontra})aiid. Reference
has already been made to several articles of this Declaration, in
comments upon letters comprised in this section. It must,
122 THE EIGHTS AND DUTIES OF NEUTEALS
however, not be forgotten that the Declaration has not yet been
ratified, and must be ratified by each Power as a whole, or not at
all, since Article 65 provides that " the provisions of the present
Declaration form an indivisible whole." Cf. the somewhat similar
language, as to the " indivisibiUte " of the four articles of the
Declaration of Paris, contained in the 24th Protocol of the Paris
Congress.
Section 4
methods of warfare as affecting neutrals
{Privateers : Mines : CaUe-cutting)
(Privateers)
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, how-
ever, 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 accord-
ance 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 Govern-
ment, 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, recites the desirability of the war being " conducted
upon principles in harmony with the present views of nations,
PEIVATEERING 123
and sanctioned by their recent practice," and that it " has already
been announced that the pohcy 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
unUkely 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.
OUR MERCANTILE MARINE IN WAR TIME
Sir, — There can be no doubt that serious loss would
be occasioned to British commerce by a war between the
United States and Spain in which either of those Powers
should exercise its right of employing privateers or of
confiscating enemy goods in neutral ])ottoms.
Before, however, adopting the measures recommended,
with a view to the prevention of this loss, by Sir George
Baden-Powell in your issue of this morning, it would be
desirable to inquire how far they would be in accordance
with international law, and what would be the not amount
of the relief which they would afford.
It is hardly necessary to say that non-compliance
with the provisions of the Declaration of Paris by a non-
signatory carries witli it none of the consequences of a
breach of the law of nations. The framers of that somewhat
hastily conceived attempt to engraft a paper amendment
124 THE EIGHTS AND DUTIES OF NEUTEALS
upon the slowly matured product of oecumenical opinion,
far from professing to make general law, expressly state
that the Declaration " shall not be binding except upon
those Powers who have acceded, or shall accede, to it."
As regards Spain and the United States the Declaration is
res inter alios acta.
It follows that in recommending that any action taken
by privateers against British vessels should be treated
as an act of piracy Sir George Baden-Powell is advocating
an inadmissible atrocity, which derives no countenance
from the view theoretically maintained by the United
States at the outset of the Civil War of the illegality
of commissions granted by the Southern Confederation.
His recommendation that our ports should be " closed "
to privateers is not very intelHgible. Privateers would,
of course, be placed under the restrictions which were
imposed in 1870, in accordance with Lord Granville's
instructions, even on the men-of-war of belligerents. They
would be forbidden to bring in prizes, to stay more than
twenty-four hours, to leave within twenty-four hours of the
start of a ship of the other belligerent, to take more coal
than enough to carry them to the nearest home port, and
to take any further supply of coal within three months.
We might, no doubt, carry discouragement of privateers
by so much further as to make refusal of coal absolute
in their case, but hardly so far as to deny entry to them
under stress of weather.
The difficulties in the way of accepting Sir G. Baden-
Powell's other suggestion are of a different order. Although
we could not complain of the confiscation by either of the
supposed belligerents of enemy property found in British
PEIVATEERING 125
vessels as being a violation of international duty, we might
at our own proper peril announce that we should treat
such confiscation as " an act of war." International law
has long abandoned the attempt to define a "just cause of
war." That must be left to the appreciation of the nations
concerned. So to announce would be, in effect, to say : —
" Although by acting as you propose you would violate
no rule, yet the consequences would be so injurious to me
that I should throw my sword into the opposite scale."
We should be acting in the spirit of the " Armed Neutrahties "
of 1780 and 1800. The expediency of so doing depends,
first, upon the extent to which the success of our action
would obviate the mischief against which it would be
directed ; and, secondly, upon the Hkelihood that the
benefit which could be obtained only by imposing a new
rule of international law in invitos would counterbalance
the odium incurred by its imposition. On the former
question it may be worth while to remind the mercantile
community that, even under the Declaration of Paris,
neutral trade must inevitably be put to much inconvenience.
Any merchant vessel may be stopped with a view to the
verification of her national character, of which the flag
is no conclusive evidence. She is further hable to be
visited and searched on suspicion of being engaged in the
carriage of contraband, or of enemy military persons, or
of despatches, or in running a blockade. Should the
commander of the visiting cruiser have " probable cause "
for suspecting any of these things, though the vessel is
in fact innocent of them, he is justified in putting a prize
crew on board and sending her into port with a view to the
institution of proceedings against her in a prize Court.
126 THE RIGHTS AND DUTIES OF NEUTRALS
A non-signatory of the Declaration of Paris may investigate
and penalise, in addition to the above-mentioned list of
offences, the carriage of enemy goods. This is, no doubt,
by far the most important branch of the trade which is
carried on for belligerents by neutrals, but it must not
be forgotten that even were this branch of trade universally
indulged, in accordance with the Declaration of Paris,
neutral commerce would still remain liable to infinite
annoyance from visit and search, with its possible sequel
in a prize Court.
The question of the balance between benefit to be gained
and odium to be incurred by insisting upon freedom to carry
the goods of belhgerents I leave to the pohticians.
I am. Sir, your obedient servant,
T. E. Holland.
The Athenaeum, April 16 (1898).
OUR MERCANTILE MARINE IN WAR TIME
Sir, — To-day's debate should throw some hght upon
the views of the Government, both as to existing rules of
international law and as to the policy demanded by the in-
terests of British trade. It is, however, possible that the
Government may decline to anticipate the terms of the
Declaration of Neutrality which they may too probably
find themselves obliged to issue in the course of the next
few days, and it is not unlikely that the law officers may
decline to advise shipowners upon questions to which
authoritative repKes can be given only with reference to
concrete cases by a prize Court.
You may perhaps, therefore, allow me in the meantime
PRIVA.TEERING 127
to supplement my former letter by a few remarks,
partly suggested by what has since been written upon the
subject.
It is really too clear for argument that privateers are not,
and cannot be treated, as pirates.
Sir George Baden-Powell still fails to see that the Declara-
tion of Paris was not a piece of legislation, but a contract,
producing no effect upon the rights and duties of nations
which were not parties to it. We did not thereby, as he
supposes, " dechne to recognise private vessels of war as
competent to use force as neutral merchantmen." We
merely bound ourselves not to use such vessels for such a
purpose. Sir George is still unable to discover for privateers
any other category than the " status of pirate." He admits
that it would not be necessary for their benefit to resort to
'* the universal use of the fore-yardarm." Let me assure him
that the bearer of a United States private commission of
war would run no risk even of being hanged at Newgate.
President Lincoln, it is true, at the outset of the Civil War,
threatened to treat as pirates vessels operating under the
" pretended authority " of the rebel States ; but he was
speedily instructed by his own law Courts — e.g. in the
Savannah and in the Golden Rocket (insurance) cases — that
even such vessels were not pirates iure gentium. It is also
tolerably self-evident that we cannot absolutely " close "
our ports to any class of vessels. There is no inconsistency
hero between my friend Sir Sherston 13akcr and myself. We
can discourage access, and of course, by refusal of coal,
render egress impossible for privateers. Mr. Coltman would
apparently be inclined to carry this pohcy so far that he
would disarm and intern even belligerent ships of war which
128 THE RIGHTS AND DUTIES OF NEUTRALS
should visit our ports. A somewhat hazardous innovation,
one would think.
It is quite possible that the question of privateering may
not become a practical one during the approaching war.
Both parties may expressly renounce the practice, or they
may follow the example of Prussia in 1870, and Russia
at a later date in commissioning fast liners under the com-
mand of naval officers ; a practice, by-the-by, which is not,
as Sir George seems to think, " right in the teeth of the
Declaration of Paris." See Lord Granville's despatch
in 1870.
On Sir George's proposals with reference to the carriage
of enemy goods, little more need be said, except to deprecate
arguments founded upon the metaphorical statement that
" a vessel is part of the territory covered by her flag," a
statement which Lord Stowell found it necessary to meet
by the assertion that a ship is a "mere movable." There
can be no possible doubt of the right, under international
law, of Spain and the United States to visit and search
neutral ships carrying enemy's goods, and to confiscate such
goods when found. They may also visit and search on
many other grounds, and the question (one of policy) is
whether, rather than permit this addition to the list, we
choose to take a step which would practically make us
belUgerent. This question also, it may be hoped, will not
press for solution.
In any case, let me express my cordial concurrence with
your hope that, when hostilities are over, some really
universal and lasting agreement may be arrived at with
reference to the matters dealt with, as I venture to think
prematurely, by the Declaration of Paris. A reform of
PRIVATEEEING 129
maritime law to which the United States are not a party-
is of little worth. That search for contraband of war can
ever be suppressed I do not beheve, and fear that it may
be many years before divergent national interests can be
so far reconciled as to secure an agreement as to the list of
contraband articles. In the meantime this country is un-
fortunately a party to the astonishing piece of draftsmanship,
the " three rules " of the Treaty of Washington, to which less
reference than might have been expected has been made
in recent discussions. The ambiguities of this document,
which have prevented it from ever being, as was intended,
brought to the notice of the other Powers, with a view to
their acceptance of it, are such that its redrafting, or, better
still, its cancellation, should be the first care of both con-
tracting parties when the wished-for congress shall take place.
May I add that no serious student of international law
is likely either to overrate the authority which it most
beneficially exercises, or to conceive of it as an unalterable
body of theory.
I am, Sir, your obedient servant,
T. E. Holland.
Brighton, April 21 (1898).
OUR MERCANTILE MARINE IN WAR
Sir, — Lot me assure Sir George Baden-PowoU that if,
as he seems to think, I have been unsuccessful in grasping
the meaning of his very interesting letters, it lias not been
from neglect to study them with the attention which is duo
to anything which ho may write. How privateering,
previously innocent, can have become piratical, i.e. an
130 THE RIGHTS AND DUTIES OF NEUTRALS
offence, everywhere justiciable, against the Law of Nations,
if the Declaration of Paris was not in the nature of a piece
of legislation, I confess myself unable to understand ; but
have no wish to repeat the remarks which you have already
allowed me to make upon the subject.
I shall, however, be glad at once to remove the impression
suggested by Sir George's letter of this morning, that Article
VII. of the Spanish Decree of April 24 has any bearing upon
the legitimacy of privateering generally. The article
in question (following, by-the-by, the very questionable
precedent of a notification issued by Admiral Baudin,
during the war between France and Mexico in 1839) merely
threatens with punishment neutrals who may accept letters
of marque from a belligerent Government.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, April 27 (1898).
[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 Berfin, in the Transactions of the International Law
Association, 1907.
The topic has since been dealt with in The Hague Convention,
No. vin. of 1907. By Art. 1 it is forbidden " (1) to lay un-
anchored automatic contact nfines, 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
MINES 131
the coast and ports of an enemy, with the sole object of inter-
cepting commercial navigation."
MINES IN THE OPEN SEA
Sir, — The question raised in j^onr columns by Admiral
de Horsey with reference to facts as to which we are as
yet imperfectly informed well illustrates the perpetually
recurring conflict between belligerent and neutral interests.
They are, of course, irreconcilable, and the rights of the
respective parties can be defined only by way of compromise.
It is beyond doubt that the theoretically absolute right
of neutral ships, whether pubhc or private, to pursue their
ordinary routes over the high seas in time of war, is hmited
by the right of the belHgerents to fight on those seas a naval
battle, the scene of which can be approached by such ships
only at their proper risk and peril. In such a case the
neutral has ample warning of the danger to which he would
be exposed did he not alter his intended course. It would,
however, be an entirely different affair if he should find
himself implicated in belhgerent war risks, of the existence
of which it was impossible for him to be informed, while
pursuing his lawful business in waters over which no nation
pretends to exercise jurisdiction.
It is certain that no international usage sanctions the
employment by one belligerent against the other of mines,
or other secret contrivances, which would, without notice,
render dangerous the navigation of the high seas. No
belligerent has ever asserted a right to do anything of the
kind ; and it may be in the recollection of your readers that
strong disapproval was expressed of a design, erroneously
K 2
132 THE BIGHTS AND DUTIES OF NEUTKALS
attributed to the United States a few years since, of
effecting the blockade of certain Cuban ports by torpedoes,
instead of by a cruising squadron. These, it was pointed
out, would superadd to the risk of capture and confiscation, to
which a blockade-runner is admittedly liable, the novel
penalty of total destruction of the ship and all on board.
It may be worth while to add, as bearing upon the
question under discussion, that there is a tendency in
expert opinion towards allowing the line between " terri-
torial waters " and the " high seas " to be drawn at a
considerably greater distance than the old measurement of
three miles from the shore.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, May 23 (1904).
TERRITORIAL WATERS
Sir, — Most authorities would, I think, agree with
Admiral de Horsey that the line between " territorial
waters " and " the high seas " is drawn by international
law, if drawn by it anywhere, at a distance of three miles
from low- water-mark. In the first place the ridiculously
wide claims made, on behalf of certain States, by mediaeval
jurists were cut down by Grotius to so much water as can
be controlled from the land. The Grotian formula was then
worked out by Bynkershoek with reference to the range
of cannon ; and, finally, this somewhat variable test was,
before the end of the eighteenth century, as we may see
from the judgments of Lord Stowell, superseded by the
hard-and-fast rule of the three-mile limit, which has since
TERRITORIAL WATERS 133
received ample recognition in treaties, legislation, and
judicial decisions.
The subordinate question, also touched upon by the
Admiral, of the character to be attributed to bays, the
entrance to which exceeds six miles in breadth, presents
more difficulty than that relating to strictly coastal waters.
I will only say that the Privy Council, in The Direct U.S.
Cable Co. v. Anglo-American Telegraph Co. (L.R. 2 App.
Ca. 394), carefully avoided giving an opinion as to the
international law applicable to such bays, but decided
the case before them, which had arisen with reference to
the Bay of Conception, in Newfoundland, on the narrow
ground that, as a British Court, they were bound by certain
assertions of jurisdiction made in British Acts of Parhament.
The three-mile distance has, no doubt, become inade-
quate in consequence of the increased range of modern
cannon, but no other can be substituted for it without
express agreement of the Powers. One can hardly admit
the view which has been maintained, e.g. by Professor de
Martens, that the distance shifts automatically in accordance
with improvements in artillery. The whole matter might
well be included among the questions relating to the rights
and duties of neutrals, for the consideration of which by a
conference, to be called at an early date, a wish was recorded
by The Hague Conference of 1890.
In the meantime it may bo worth while to call attention
to the view of the subject taken by a specially (iualilUnl and
representative body of international exports. The Institut
de Droit International, after discussions and iiKjuirit'S which
had lasted for several years, adopted, at their Paris meeting
in 1894, the following resolutions, as a statement of what,
134 THE EIGHTS AND DUTIES OF NEUTRALS
in the opinion of the Institut, would be reasonable rules
with reference to territorial waters (I cite only those bearing
upon the extent of such waters) : —
" Alt. 2. — La mer territoriale s'etend a six milles marins (60 au degre
de latitude) de la laisse de basse maree sur toute I'^tendue des cotes.
Art. 3. — Pour les bales, la mer territoriale suit les sinuosites de la
c6te, sauf qu'elle est mesuree h partir d'une ligne droite tiree en travers
de la bale, dans la partie la plus rapprochee de I'ouverture vers la mer,
oill r6cart entre les deux cotes de la bale est de douze milles marins
de largeur, k moins qu'un usage continu et seculaire n'ait consacre
une largeur plus grande. Art. 4. — En cas de guerre, I'etat riverain
neutre a le droit de fixer, par la declaration de neutrality, ou par notifica-
tion sp6ciale, sa zone neutre au dela de six milles, jusqu'^ portee du
canon des cotes. Art. 5. — Tous les navires sans distinction ont le
droit de passage inoffensif par la mer territoriale, sauf le droit des
belligerants de reglementer et, dans un but de defense, de barrer le
passage dans la dite mer pour tout navire, et sauf le droit des neutres
de reglementer le passage dans la dite mer pour les navires de guerre
de toutes nationalites." {Annuaire de V Institut, t. xiii. p. 329.)
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, June 1 (1904).
{Cable-cutting)
With the letters which follow, compare the article by the
same writer on " Les cables sous-marins en temps de guerre,"
in the Revue de Droit International Prive, 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 belhgerents (1) to install
on neutral territory a radio-telegraphic station, or any other
CABLE-CUTTING 135
apparatus, for communicating with their land or sea forces ; (2)
to employ such apparatus, established by them there before the
war, for purely military purposes. By Art. 5, a neutral Power
is bound to permit nothing of the sort.
SUBMARINE CABLES
Sir, — The possibility of giving some legal protection to
submarine cables has been carefully considered by the
Institut de Droit International. A committee was appointed
in 1878 to consider the subject, and the presentation of its
report to the meeting at Brussels in 1879 was followed
by an interesting discussion (see the Annuaire de I'Institut,
1879-80, pp. 351-394). The conclusions ultimately adopted
by the Institut were as follows : —
"1. It would be very useful if the various States would come to an
understanding to declare that destruction of, or injury to, submarine
cables in the high seas is an offence under the Law of Nations, and to fix
precisely the wrongful character of the acts, and the appropriate
penalties. With reference to the last-mentioned point, the degree
of uniformity attainable must depend on the amount of difference
between systoma of criminal legislation. The right of arresting offen-
ders, or those presumed to bo such, might bo given to the pubho vessels
of all nations, under conditions regulated by treaties, but the right to
try them should be reserved to tlie national C!ourts of the vessel arrested.
" 2. A submarine telegraphic cable uniting two neutral territories
is inviolable. It is desirable that, when telegraphic communication
must be interrupted in consequence of war, a belhgercnt should confine
himself to such measures as arc absolutely necessary to {)revcnt the
cable from being used, and that such measures should be discontinued,
or that any damage caused by them should bo repaired as soon as tho
cessation of hostilities may permit."
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, November 23 (1881).
136 THE RIGHTS AND DUTIES OF NEUTRALS
SUBMARINE CABLES IN TIME OF WAR
Sib, — I venture to think that the question which has
been raised as to the legitimacy of cable-cutting is not so
insoluble as most of the allusions to it might lead one to
suppose. It is true that no light is thrown upon it by the
Convention of 1884, which relates exclusively to time of
peace, and was indeed signed by Lord Lyons, on behalf
of Great Britain, only with an express reservation to that
effect. Nor are we helped by the case to which attention
was called in your columns some time since by Messrs.
Eyre and Spottiswoode. Their allusion was doubtless to
the International (L.R. 3 A. and E. 321), which is irre-
levant to the present inquiry. The question is a new one,
but, though covered by no precedent, I cannot doubt that
it is covered by certain well-established principles of inter-
national law, which, it is hardly necessary to remark, is no
cut-and-dried system but a body of rules founded upon, and
moving with, the public opinion of nations.
That branch of international law which deals with the
relations of neutrals and belligerents is, of course, a com-
promise between what Grotius calls the "belli rigor" and the
" commerciorum libertas." The terms of the compromise,
originally suggested partly by equity, partly by national
interest, have been varied and re-defined, from time to
time, with reference to the same considerations. It is
perhaps reasonable that, in settling these terms, preponderant
weight should have been given to the requirements of belli-
gerents, engaged possibly in a hfe and death struggle. " Jus
commerciorum sequum est," says Gentih; "at hoc aequius,
tuendse salutis." There is accordingly no doubt that in land
CABLE-CUTTING 137
warfare a belligerent may not only interrupt communica-
tions by road, railway, post, or telegraph without giving any
ground of complaint to neutrals who may be thereby
inconvenienced, but may also lay hands on such neutral
property — shipping, railway carriages, or telegraphic plant —
as may be essential to the conduct of his operations, making
use of and even destroying it, subject only to a duty to
compensate the owners. This he does in pursuance of the
well-known "droit d'angarie," an extreme appHcation of
which occurred in 1871, when certain British colliers were
sunk in the Seine by the Prussians in order to prevent the
passage of French gunboats up the river. Count Bismarck
undertook that the owners of the ships should be in-
demnified, and Lord Granville did not press for anything
further. Such action, if it took place outside of belligerent
territory, would not be tolerated for a moment.
The application of these principles to the case of sub-
marine cables would appear to be, to a certain point at any
rate, perfectly clear. Telegraphic communication with the
outside world may well be as important to a State engaged
in warfare as similar means of communication between one
point and another within its own territory. Just as an
invader would without scruple interrupt messages, and even
destroy telegraphic plant, on land, so may he thus act
within the enemy's territorial waters, or, perhaps, even so
far from shore as he could reasonably place a blockading
squadron. It may be objected that a boUigeront has no
right to prevent the access of neutral ships to unblockadud
portions of the enemy's coast on the ground that by carrying
diplomatic agents or despatches they are keeping up the
communications of his enemy with neutral Governments.
138 THE RIGHTS AND DUTIES OF NEUTRALS
But this indulgence rests on the presumption that such
official communications are "innocent," a presumption
obviously inapplicable to telegraphic messages indiscrim-
inately received in the course of business. It would seem,
therefore, to be as reasonable as it is in accordance with
analogy that a belligerent should be allowed, within the
territorial waters of his enemy, to cut a cable, even though it
may be neutral property, of which the terminus ad quern is
enemy territory, subject only to a liabihty to indemnify
the neutral owners.
The cutting, elsewhere than in the enemy's waters,
of a cable connecting enemy with neutral territory receives
no countenance from international law. Still less per-
missible would be the cutting of a cable connecting two
neutral ports, although messages may pass through it
which, by previous and subsequent stages of transmission,
may be useful to the enemy.
Your obedient servant,
T. E. Holland.
Oxford, May 21 (1897).
SUBMARINE CABLES IN TIME OF WAR
Sir, — Will you allow me to refer in a few words to the
interesting letters upon the subject of submarine cables
which have been addressed to you by Mr. Parsone and Mr.
Charles Bright? In asserting that "the question as to the
legitimacy of cable-cutting is covered by no precedent," I
had no intention of denying that belhgerent interference
with cables had ever occurred. International precedents
are made by diplomatic action (or dehberate inaction) with
CABLE-CUTTING 139
reference to facts, not by those facts themselves. To the
best of my behef no case of cable-cutting has ever been
made matter of diplomatic representation, and I understand
Mr. Parsone to admit that no claim in respect of damage
to cables was presented to the mixed Commission appointed
under the Convention of 1883 between Great Britain and
Chile.
In the course of his able address upon "Belhgerents and
Neutrals," reported in your issue of this morning, I observe
that Mr. Macdonell suggests that the Institut de Droit
International might usefully study the question of cables
in time of war. It may, therefore, be well to state that this
service has already been rendered. The Institut, at its
Paris meeting in 1878, appointed a committee, of which
M. Renault was chairman, to consider the whole subject of
the protection of cables, both in peace and in war ; and at
its Brussels meeting, in 1879, carefully discussed the ex-
haustive report of its committee and voted certain
" conclusions," notably the following : —
" Le cable teldgraphique sous-marin qui unit deux territoires neutres
est inviolable.
'* II est k d6sirer, quand Ics communications tilegrajjhiqucs doivont
cesser par suite de I'^tat de guerre, que Ton so borne aux mesuros
stricteraent n^ccssaircs pour cmpecher I'usage du cable, ct qu'il soit mis
fin k ces mesuros, ou que Ton en rcparc Ics consc(iuenccs, aussitot que
lo permettra la cessation des hostilites."
It was in no small measure duo to the initiative of the
Institut that diplomatic conferences were held at Paris,
which in 1882 produced a draft convention for the protec-
tion of cables, not restricted in its operation to time of peace ;
and in 1884 the actual convention, which is so restricted.
It may not be generally known that in 18G4, before the
140 THE RIGHTS AND DUTIES OF NEUTRALS
difficulties of the subject were thoroughly appreciated, a
convention was signed, though it never became operative,
by which Brazil, Hayti, Italy, and Portugal undertook to
recognise the "neutrality" in time of war of a cable to be
laid by one Balestrini. So, in 1869, the United States were
desirous of concluding a general convention which should
assimilate the destruction of cables in the high seas to
piracy, and should continue to be in force in time of war.
The Brussels conference of 1874 avoided any mention of
" cables sous-marins."
The moral of all that has been written upon this subject
is obviously that drawn by Mr. Charles Bright — viz. "the
urgent necessity of a system of cables connecting the British
Empire by direct and independent means — i.e. without
touching on foreign soil."
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, June 3 (1897).
Section 5
Destruction of 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 impossibiUty of
supplying her with coal from one of the Russian cruisers, owing
DESTRUCTION OF PRIZES 141
to the high seas running at the time, obUged 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 con-
dition 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 imseaworthy, 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
civihsed nations." Similar language was used in Parliament on
August 10, when Mr. Gibson Bowles alluded to my letter of the
Gth, 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 destruc-
tion of a neutral vessel is contrary to the principles of international
law." The Russian Government has 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
maritime^, 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, t. ix. p.
200; Tableau, p. 205), but 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
142 THE RIGHTS AND DUTIES OF NEUTRALS
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, and separately in French),
cited in the judgment of the St. Petersburg Court of Appeal in
the case of the Knight Commander.
The subsequent history of the question, of which some account
will be given at the end of this section, 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 com-
plaint as to the mode in which Russia is conducting opera-
tions at sea. It may, however, be doubted whether public
opinion is sufficiently well informed to be capable of esti-
mating the comparative gravity of the acts which are just
now attracting attention. Putting aside for the moment
questions arising out of the Straits Convention of 1856, as
belonging to a somewhat different order of ideas, we may
take it that the topics most needing careful consideration
relate to removal of contraband from the ship that is carry-
ing it without taking her in for adjudication ; interference
with mail steamers and their mail bags ; perversely wrong
decisions of Prize Courts ; confiscation of ships as well as of
their contraband cargo ; destruction of prizes at sea ; the
list of contraband. Of these topics, the two last mentioned
are probably the most important, and on each of these I will
ask you to allow me to say a few words.
1. There is no doubt that by the Russian regulations of
1895, Article 21; and instructions of 1901, Article 40, officers
are empowered to destroy their prizes at sea, no distinction
DESTRUCTION OF PRIZES 143
being drawn between neutral and enemy property, under
such exceptional circumstances as the bad condition or small
value of the prize, risk of recapture, distance from a Russian
port, danger to the Imperial cruiser or to the success of her
operations. The instructions of 1901, it may be added,
explain that an officer "incurs no responsibility whatever "
for so acting if the captured vessel is really hable to confisca-
tion and the special circumstances imperatively demand her
destruction. It is fair to say that not dissimilar, though
less stringent, instructions were issued by France in 1870
and by the United States in 1898 ; also that, although the
French instructions expressly contemplate " I'etablissement
des indemnites a attribuer aux neutres," a French Prize
Court in 1870 refused compensation to neutral owners for
the loss of their property on board of enemy ships burnt
at sea.
The question, however, remains whether such regulations
are in accordance with the rules of international law. The
statement of these rules by Lord Stowell, who speaks of
them as " clear in principle and established in practice," may,
I think, be summarised as follows : An enemy's ship, after
her crew has been placed in safety, may be destroyed.
Where there is any ground for believing that the ship, or any
part of her cargo, is neutral property, such action is justifi-
able only in cases of " the gravest importance to the captor's
own State," after securing the ship's papers and subject to
the right of neutral owners to receive full compensation
{Actceon, 2 Dods. 48 ; Felicity, ib. 381 ; substantially fol-
lowed by Dr. Lushington in Leucade, Spinks, 221). It is
not the case, as is alleged by the Novoe Vremya, that any
British regulations " contain the same provisions as the
144 THE RIGHTS AND DUTIES OF NEUTRALS
Russian " on this subject. On the contrary, the Admiralty
Manual of 1888 allows destruction of enemy vessels only ;
and goes so far in the direction of liberality as to order the
release, without ransom, of a neutral prize which either from
its condition, or from lack of a prize crew, cannot be sent in
for adjudication. The Japanese instructions of 1894 permit
the destruction of only enemy vessels ; and Article 50 of
the carefully debated " Code des prises " of the Institut de
Droit International is to the same effect. It may be worth
while to add that the eminent Russian jurist, M. de Martens,
in his book on international law, published some twenty
years ago, in mentioning that the distance of her ports from
the scenes of naval operations often obhges Russia to sink
her prizes, so that " ce qui les lois maritimes de tous les 6tats
consid^rent comme un moyen auquel il n'y a lieu de recourir
qu'^ la derni^re extremite, se transformera n^cessairement
pour nous en regie normale," foresaw that " cette mesure
d'un caractere general soulevera indubitablement contre
notre pays un mecontentement universel."
2. A far more important question is, I venture to think,
raised by the Russian list of contraband, sweeping, as it
does, into the category of " absolutely contraband " articles
things such as provisions and coal, to which a contraband
character, in any sense of the term, has usually been denied
on the Continent, while Great Britain and the United States
have admitted them into the category of "conditional"
contraband, only when shown to be suitable and destined for
the armed forces of the enemy, or for the relief of a place
besieged. Still more unwarrantable is the Russian claim to
interfere with the trade in raw cotton. Her prohibition of
this trade is wholly unprecedented, for the treatment of
DESTRUCTION OF PRIZES 145
cotton during the American Civil War wiU be found on
examination to have no bearing on the question under con-
sideration. I touch to-day upon this large subject only to
express a hope that our Government, in concert, if possible,
with other neutral Governments, has communicated to that
of Russia, with reference to its Hst of prohibited articles, a
protest in language as unmistakable as that employed by our
Foreign Ofifice in 1885 : — " I regret to have to inform
you, M. I'Ambassadeur," wrote Lord Granville, " that Her
Majesty's Government feel compelled to take exception to the
proposed measure, as they cannot admit that, consistently
with the law and practice of nations, and with the rights of
neutrals, provisions in general can be treated as contraband
of war." A timely warning that a claim is inadmissible is
surely preferable to waiting till bad feehng has been aroused
by the concrete apphcation of an objectionable doctrine.
I am. Sir, your obedient servant,
T. E, Holland.
Oxford, August 1 (1904).
RUSSIAN PRIZE LAW
Sir, — From this hilltop I observe that, in the debate of
Thursday last, Mr. Gibson Bowles, alluding to a letter of
mine which appeared in your issue of August 6, complained
that I " had not given the proper reference " to Lord Stowell's
judgments. Mr. Bowles seems to bo unaware that in refer-
ring to a d(jcided case the page mentioned is, in the absence
of any indication to the contrary, invariably that on which
the report of the case commences. I may, perhaps, also be
allowed to say that he, in my opinion, misapprehends the
146 THE EIGHTS AND DUTIES OF NEUTEALS
effect of the passage quoted by him from the Felicity,
which decides only that, whatever may be the justification
for the destruction of a neutral prize, the neutral owner is
entitled, as against the captor, to full compensation for the
loss thereby sustained,
I am, Sir, your obedient servant,
T. E. Holland.
Eggishorn, Valais, Suisse, Augiist 14 (1904).
EUSSIAN PEIZE LAW
Sir, — Mr. Gibson Bowles has, I find, addressed to you a
letter in which he attempts to controvert two statements of
mine by the simple expedient of omitting essential portions
of each of them.
1. Mr. Bowles having revealed himself as unaware that
the mode in which I had cited a group of cases upon destruc-
tion of prizes was the correct mode, I thought it well to
provide him with the rudimentary information that, " in
referring to a decided case, the page mentioned is, in the
absence of any indication to the contrary, invariably that on
which the report of the case commences." He replies that he
has found appended to a citation of a passage in a judgment
the page in which this passage occurs. May I refer him,
for an explanation of this phenomenon, to the words (now
itaUcised) omitted in his quotation of my statement ? It is,
of course, common enough, when the reference is obviously
not to the case as a whole but to an extract from it, thus to
give a clue to the extract, the formula then employed being
frequently " at page so-and-so."
2. I had summarised the effect, as I conceive it, of the
DESTRUCTION OF PRIZES 147
group of cases above mentioned in the following terms : —
" Such action is justifiable only in cases of the gravest im-
portance to the captor's own State, after securing the sJii-p's
papers, and subject to the right of the neutral owners to receive
full compensation.'' Here, again, while purporting to quote
me, Mr. Bowles omits the all-important words now itahcised.
I am, however, maltreated in good company. Mr. Bowles
represents Lord Stowell as holding that destruction of neutral
property cannot be justified, even in cases of the gravest
importance to the captor's own State. What Lord Stowell
actually says, in the very passage quoted by Mr. Bowles, is
that " to the neutral it can only be justified, under any such
circumstances, by a full restitution in value." I would
suggest that Mr. Bowles should find an opportunity for
reading in extenso the reports of the Actceon (2 Dods. 48)
and the Felicity {ib. 381), as also for re-reading the passage
which occurs at p. 38G of the latter case, before venturing
further into the somewhat intricate technicalities of prize law.
I am, Sir, your obedient servant,
T. E. Holland.
Eggishorn, Suisso, August 2G (1904).
THE SINKING OF NEUTRAL PRIZES
Sir, — In your St. Petersburg correspondence of yesterday
I see that some reference is made to what I have had occasion
to say from time to time upon the vexed question of the
sinking of neutral vessels, and your Correspondent thinks it
" would be decidedly interesting " to know whether I have
really changed my opinion on the subject. Perhaps, there-
fore, I may be allowed to state that my opinion on the
L 2
148 THE RIGHTS AND DUTIES OF NEUTRALS
subject has suffered no change, and may be summarised as
follows : —
1. There is no established rule of international law which
absolutely forbids, under any circumstances, the sinking of
a neutral prize. A consensus gentium to this effect will
hardly be alleged by those who are aware that such sinking
is permitted by the most recent prize regulations of France,
Russia, Japan, and the United States.
2. It is much to be desired that the practice should be,
by future international agreement, absolutely forbidden —
that the lenity of British practice in this respect should
become internationally obUgatory.
3. In the meantime, to adopt the language of the French
instructions, "On ne doit user de ce droit de destruction
qu'avec la plus grande reserve " ; and it may well be that
any given set of instructions {e.g. the Russian) leaves on
this point so large a discretion to commanders of cruisers
as to constitute an intolerable grievance.
4. In any case, the owner of neutral property, not proved
to be good prize, is entitled to the fullest compensation for
his loss. In the language of Lord Stowell : —
" The destruction of the property may have been a meritorious act
towards his own Government ; but still the person to whom the
property belongs must not be a sufferer ... if the captor has by the
act of destruction conferred a benefit upon the public, he must look
to his own Government for his indemnity."
It may be worth while to add that the pubHshed state-
ments on the subject for which I am responsible are contained
in the Admiralty Manual of Prize Law of 1888 (where
section 303 sets out the lenient British instructions to com-
manders, without any imphcation that instructions of a
DESTRUCTION OF PRIZES 149
severer kind would have been inconsistent with international
law) ; in letters which appeared in your columns on August
6, 17, and 30, 1904 ; and in a paper on " Neutral Duties in a
Maritime War, as illustrated by recent events," read before
the British Academy in April last, a French translation of
which is in circulation on the Continent.
I am, Sir, your obedient servant,
T. E. Holland.
Temple, June 29 (1905).
The Russian circular of April 3, 1906, inviting the Powers
to a second Peace Conference, included among the topics for
discussion : " Destruction par force majeure des batiments de
commerce neutres arretes 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), tlie Conference failed to arrive at any con-
clusion as to the desirabihty 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 called together
by Great Britain, for reasons upon which something will be said
in the next section, and met in London on December 4, 1908.
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 tlie
purpose. It soon became apparent that the British ])ropo3al
for an absolute prohibition of the destruction of neutral prizes
had no chance of being accepted ; while, on the other hand, it
wa.s generally agreed that the practice is permissible only in
150 THE RIGHTS AND DUTIES OF NEUTRALS
exceptional cases. (See Pari. Paper, Miscell. No. 5 (1909),
pp. 2-53, 99-102, 120, 189, 205, 215, 223, 248, 268-278, 323,
365.) Articles 48-54 of tlie Declaration, signed by the delegates
to the Conference on February 26, 1909, relate 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 proceeds, in Art. 49,
to quaUfy 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 6
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 in these letters upon the topic
with which they 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
steps which have so far been taken towards the establishment
of an International Court of Appeal in cases of prize.
AN INTERNATIONAL PRIZE COURT
Sir, — The idea suggested by the question addressed
on February 19 to the Government by Mr. A. Herbert —
viz. that the appeal in prize cases should lie, not to a Court
belonging to the belligerent from whose Court of first
AN INTERNATIONAL PRIZE COURT 151
instance the appeal is brought, but to an international
tribunal, has a plausible appearance of fairness, but involves
many preliminary questions which must not be lost sight of.
Prize Courts are, at present, Courts of enquiry, to which a
belhgerent Government entrusts the duty of ascertaining
whether the captures made by its officers have been properly
made, according to the views of international law entertained
by that Government. There exists, no doubt, among
Continental jurists, a considerable body of opinion in favour
of giving to Courts of Appeal, at any rate, in prize cases a
wholly different character. This opinion found its expression
in Articles 100-109 of the Code des Prises Maritimes,
finally adopted at its Heidelberg meeting, in 1887, by the
Institut de Droit International. Article 100 runs as follows : —
" Au d^but de chaque guerre, chacune des parties bellig6rantes
constitue un tribunal international d'appel en matiere de prises
maritimes, Chacun de oes tribunaux est compos6 de cinq membrea,
design^s comme suit : L'6tat bellig6rant nommera lui-meme le presi-
dent et un des membrea. II d6signera en outro trois 6tat8 neutres,
qui choisiront chacun un des trois autrea membres."
In the abstract, and supposing that a tribunal perfectly
satisfactory both to belligerents and neutrals could be
constituted, whether antecedently or ad hoc, there might be
much to be said for the proposal ; subject, however, to one
condition — viz. that an agreement had been previously
arrived at as to the law which the Court is to apply. At the
present time there exists, on many vital questions of prize
law, no such agreement. It will be sufficient to mention
those relating to the list of contraband, the distinction
between " absolute " and " conditional " contraband, the
doctrine of " continuous voyages," the right of sinking a
152 THE RIGHTS AND DUTIES OF NEUTRALS
neutral prize, the moment from which a vessel becomes
liable for breach of blockade.
Just as the Alabama arbitration would have been
impossible had not an agreement been arrived at upon the
principles in accordance with which neutral duties as to the
exit of ships of war were to be construed, so, also, before an
international Court can be empowered to decide questions of
prize, whether in the first instance or on appeal, it is indis-
pensable that the law to be applied on the points above
mentioned, and many others, should have been clearly-
defined and accepted, if not generally, at least by all parties
concerned. The moral which I would venture to draw is,
therefore, that although questions of fact, arising out of the
capture of a prize, might sometimes be submitted to a
tribunal of arbitration, no case, involving rules of law as to
which nations take different views, could possibly be so
submitted. One is glad, therefore, to notice that the Prime
Minister's reply to Mr. A. Herbert was of the most guarded
character. The settlement of the law of prize must neces-
sarily precede any general resort to an international Prize
Court ; and if the coming Hague Conference does no more
than settle some of the most pressing of these questions, it
will have done much to promote the cause of peace.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, February 20 (1907).
A NEW PRIZE LAW
Sir, — The leading articles which you have recently
published upon the doings of the Peace Conference, as also
the weighty letter addressed to you by my eminent colleague,
AN INTERNATIONAL PRIZE COURT 153
Professor Westlake, will have been welcomed by many of
your readers who are anxious that the vital importance of
some of the questions under discussion at The Hague should
not be lost sight of.
The Conference may now be congratulated upon having
already given a quietus to several proposals for which,
whether or not they may be rightly described as Utopian,
the time is admittedly not yet ripe. Such has been the fate
of the suggestions for the limitation of armaments, and for
the exemption from capture of private property at sea.
Such also, there is every reason to hope, is the destiny which
awaits the still more objectionable proposals for rendering
obligatory the resort to arbitration, which by the Convention
of 1899 was wisely left optional.
Should the labours of the delegates succeed in placing
some restrictions upon the employment of submarine mines,
the bombardment of open coast towns, and the conversion of
merchant vessels into ships of war ; in making some slight
improvements in each of the three Conventions of 1899 ; and
in solving some of the more pressing questions as to the
rights and duties of neutrals, especially with reference to
the reception in their ports of beUigerent warships, it will
have more than justified the hopes for its success which have
been entertained by persons conversant with the dilliculty
and complexity of the problems involved.
But what shall wo say of certain proposals for revolu-
tionising the law of prize, which still remain for considera-
tion, notably for the establishment of an international Court
of Appeal, and for the abolition of contraband ? It can
hardly bo supposed that either suggestion will win its way to
acceptance.
154 THE RIGHTS AND DUTIES OF NEUTRALS
1. The British scheme for an international Court of
Appeal in prize cases is, indeed, far preferable to the German ;
but the objections to anything of the kind would seem to be,
for the present, insuperable, were it only for the reason which
you allowed me to point out, some months ago, d 'propos of
a question put in the House of Commons by Mr. Arnold
Herbert. As long as nations hold widely different views
on many points of prize law, it cannot be expected that they
should agree beforehand that, when belligerent, they will
leave it to a board of arbitrators to say which of several
competing rules shall be applied to any given case of capture,
or to evolve out of their inner consciousness a new rule,
hitherto unknown to any national prize Court. It would
seem that the German advocates of the innovation claim
in its favour the authority of the Institut de Droit Interna-
tional. Permit me, therefore, as one who has taken part in
all the discussions of the Institut upon the subject, to state
that when it was first handled, at Ziirich, in 1878, the diffi-
culties in the way of an international Court were insisted on
by such men as Bluntschli, Bernard, Bulmerincq, Asser, and
Neumann, and the vote of a majority in its favour was
coupled with one which demanded the acceptance by treaty
of a universally applicable system of prize law. The
drafting of such a system was accordingly the main object
of the Code des Prises maritimes, which, after occupying
several sessions of the Institut, was finally adopted by it,
at Heidelberg, in 1887. Only ten of the 122 sections of this
Code deal with an international Court of Appeal. A complete
body of law, by which States have agreed to be bound,
must, one would think, necessarily precede the establishment
of a mixed Court by which that law is to be interpreted.
AN INTEKNATIONAL PRIZE COURT 155
2. While the several delegations are vying with one
another in devising new definitions of contraband, there
would seem to be Httle hkelihood that the British proposal
for its total abandonment will be seriously entertained.
Such a step could be justified, if at all, from the point of
view of national interest, only on the ground that it might
possibly throw increased difficulties in the way of an enemy
desirous, even by straining the existing law, of interfering
with the supply of foodstuffs to the British islands. I
propose, for the present, only to call attention to the con-
cluding paragraph of the British notice of motion on this
point, which would seem to imply much more than the
abandonment of contraband. The words in question, if
indeed they are authentically reported, are as follows : —
"Le droit de visite ne serait exerce que pour constater le
caractere neutre du batiment do commerce." Does this
mean that the visiting officer, as soon as he has ascertained
from the ship's papers that she is neutral property, is to
make his bow, and return to the cruiser whence he came ?
If so, what has become of our existing right to detain any
vessel which has sailed for a blockaded port, or is carrying,
as a commercial venture, or even ignorantly, hostile troops
or despatches ? No such definition as is proposed of an
" auxiliary ship of war " would safeguard the right in
question, since a ship, to come within that definition, must,
it appears, be under the orders of a belligerent fleet,
I would venture to suggest that tlu; motto of a reformer
of prize law should he festina lente. The existing system is
the fruit of practical experience extending over several
centuries, and, thougli it may need, hero and there, some
readjustment to new conditions, l^rought about by the
156 THE RIGHTS AND DUTIES OF NEUTRALS
substitution of steam for sails, is not one which can safely
be pulled to pieces in a couple of months. Let us leave
something for future Hague Conferences.
I am, Sir, your obedient servant,
T. E. Holland.
Oxford, July 24 (1907).
A NEW PRIZE LAW
Sir, — In a letter under the above heading, for which you
were so good as to find room in July last, I returned to the
thesis which I had ventured to maintain some months
previously, a 'pro'pos of a question put in the House of
Commons. My contention was that the establishment of an
international prize Court, assuming it to be under any
circumstances desirable, should follow, not precede, a general
international agreement as to the law which the Court is to
administer.
It would appear, from such imperfect information as
intermittently reaches Swiss mountain hotels, that a con-
viction of the truth of this proposition is at length making
way among the delegates to The Hague Conference and
among observers of its doings. In a recent number of the
Courrier de la Conference, a publication which cannot be
accused of lukewarmness in the advocacy of proposals for
the peaceful settlement of international differences, I find
an article entitled " Pas de Code Naval, pas de Cour des
Prises," to the effect that " I'acceptation de la Cour des Prises
est strictement conditionnelle a la redaction du Code
qu'elle aura k interpreter." Its decisions must otherwise
be founded upon the opinions of its Judges, " the majority of
whom will belong to a school which has never accepted what
AN INTERNATIONAL PRIZE COURT 157
Great Britain looks upon as the fundamental principles of
naval warfare." One learns also, from other sources, that
efforts are being made to arrive, by a series of compromises,
at some common understanding upon the points as to which
the differences of view between the Powers are most
pronounced. It may, however, be safely predicted that
many years must elapse before any such result will be
achieved.
In the meantime, a very different solution of the difficulty
has commended itself to the partisans of the proposed Court.
M. Renault, the accompHshed Reporter of the committee
which deals in the first instance with the subject, after
stating that " sur beaucoup de points le droit de la guerre
maritime est encore incertain, et chaque titsit le formule au
gre de ses idees et de ses interets," lays down that, in accor-
dance with strict juridical reasoning, when international
law is silent, an international Court should apply the law of
the captor. Ho is, nevertheless, prepared to recommend,
as the spokesman of the committee, that in such cases the
Judges should decide " d'apres les principes generaux de la
justice ot do I'equite " ; a process which I had, less compli-
mentarily, described as " evolving new rules out of their
irmor consciousness." The Court, in pursuance of this
confessedly " bardie solution," would bo called upon to
" fauro lo droit."
One may bo permitted to hope that this proposal will
not bo accepted. The beneficent action of English Judges
in developing the common law of Ijuglaiid iriay possibly
be cited in its favour ; but tho analogy is delusive. The
Courts of a given country in evolving m^w rules of law are
almost certain to do so in accordance with tho views of
158 THE EIGHTS AND DUTIES OF NEUTEALS
public policy generally entertained in that country. Should
they act otherwise their error can be promptly corrected by
the national Legislature. Far different would be the effect
of the decision of an international Court, in which, though
it might run directly counter to British theory and practice,
Great Britain would have bound herself beforehand to
acquiesce. The only quasi-legislative body by which the
ratio decidendi of such a decision could be disallowed would
be an international gathering in which British views might
find scanty support. The development of a system of
national law by national Judges offers no analogy to the
working of an international Court, empowered, at its free
will and pleasure, to disregard the views of a sovereign
Power as to the proper rule to be applied in cases as to
which international law gives no guidance. In such cases
the ultimate adjustment of differences of view is the appro-
priate work, not of a Law Court, but of diplomacy.
It is hardly necessary to combat the notion that there
already exists, in mibihus, a complete system of prize law,
which is in some mysterious way accessible to Judges, and
reveals to them the rule applicable to each new case as it
arises. This notion, so far as it is prevalent, seems to have
arisen from a mistaken reading of certain dicta of Lord
Stowell, in which that great Judge, in his finest 18th century
manner, insists that the law which it was his duty to adminis-
ter " has no locality " and " belongs to other nations as well
as our own." He was, of course, thinking of the rules of
prize law upon which the nations are agreed, not of the
numerous questions upon which no agreement exists, and
was dealing with the difiicult position of a Judge who has to
choose (as in the recent Moray Firth case) between obedience
AN INTEKNATIONAL PRIZE COURT 159
to such rules and obedience to the legislative, or quasi-
legislative, acts of his own Government.
I am, Sir, your obedient servant,
T. E. Holland.
Eggisliorii, Suisse, September 16 (1907).
A NEW PRIZE LAW
Sir, — The speech of the Prime Minister at the Guildhall
contains a paragraph which will be read with a sense of relief
by those who, Uke myself, have all along viewed with
surprise and apprehension The Hague proposals for an
international Prize Court.
Sir H. Campbell-Banncrman admits that " it is desirable,
and it may be essential, that, before legislation can be under-
taken to make such a Court effective, the leading maritime
nations should come to an agreement as to the rules regard-
ing some of the more important subjects of warfare which
are to be administered by the Court " ; and his subsequent
eulogy of the Court presupposes that it is provided with
" a body of rules which has received the sanction of the great
maritime Powers." What is said as to the necessary post-
ponement of any legislation in the sense of The Hague
Convention must, of course, apply a fortiori to the ratification
of the Convention.
Wo have here, for the first time, an authoritative repudia-
tion of the notion that fifteen gentlemen of mixed nationality
composing an international Prize Court, are to bo let looso
to " make law," in accordance with what may happen to bo
their conceptions of "justice and equity." It seems at last
to be recognised that such a Court cannot be set to work
160 THE EIGHTS AND DUTIES OF NEUTRALS
unless, and until, the great maritime Powers shall have come
to an agreement upon the rules of law which the Court is to
administer.
I may add that it is surely too much to expect that
the rules in question will be discussed by the Powers,
to use Sir H. Campbell-Bannerman's phrase, " with-
out any political arriere yensee." Compromise between
opposing political interests must ever remain one of the
most important factors in the development of the law of
nations.
I am. Sir, your obedient servant,
T. E. Holland.
Oxford, November 11 (1907).
Although the establishment of an International Prize Court of
Appeal was not one of the topics included in the programme
of the Russian invitation to a second Peace Conference, no
objection was made to its being taken into consideration, when
proposals to that effect were made by the British and American
delegates to the Conference. The idea seems first to have been
suggested by Hiibner, who proposed to confer jurisdiction in
cases of neutral prize on courts composed of ministers, or consuls,
accredited by neutrals to the belUgerents, together with com-
missioners 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 probite et de connaissances dans tout
ce qui concerne les Loix des Nations et les Traites des Puissances
modernes." The Court is to decide in accordance with treaties,
" ou, a leur defaut, la loi universelle des nations." De la Saisie des
Bdtiments 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.
At the Conference of 1907, the work of several committees,
and a masterly report by Professor Renault, Pari. Papers,
No. iv. (1908), p. 9, resulted in The Hague Convention, No. xii.
AN INTERNATIONAL PRIZE COURT 161
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 weU be entertained, and the Final Act of the Conference
accordingly expresses a wish that " the preparation of a Reglement,
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 estabhshment 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 poUcy 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 deahng 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 ParHament 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
162 THE RIGHTS AND DUTIES OF NEUTRALS
was directed, m'z. : (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, to which so frequent reference has been
made in the preceding page s.
Whether Convention No. xii. of 1907, or the Declaration
which, it will be remembered, must be accepted, if at aU, as a
whole, will be generally ratified, remains to be seen. Neither
one nor the other will, it has been announced, be ratified by
Great Britain till opportunity has been given for its discussion
in Parliament, probably upon the introduction of the Bill without
the passing of which it will be impossible to give effect to the
Convention, the ratification of which is now not to take place
before June 1910.
INDEX
Absolute contraband. Sec Con-
traband V
Acquiescence, State duty of, 88,
89, 96
Actceon, the, 143, 147
Admiralty Manual of Prize Law,
116, 144, 148
Alexander, Mrs., the cotton of, 110
Allanton, the, 115, 118, 120
Ancipitis usus, articles, 105
Arbitration, 4, 153
„ treaties, general, 6, 7
„ „ limited, ib.
Armaments, limitation of, 153
Assassination, 51
Atalania, the, 118
Asylum to belligerent warships, 87,
89, 101
Balloons, projectiles from, 30,
56
Base of operations, neutral duty as
to, 88, 101
Bays, 133
Bermuda, the, 117
Blockade, belligerent, 30, 116, 125,
132
„ pacific, 10, 11, 15
Bluntschli's reply to von Moltke, 26
Bombardment of open coast towns,
31. 73, 81
Bondholders, foreign, vindication
of rights of, 14
Brown V. United States, 39
Brussels Conference, the, 49, 75
Bullets, expanding, 22, 53, 55, 56
„ explosive, 22, 54, 56
Bundesrath, the, 30, 114, 118
Cable-cutting, 31, 134
Captors, unqualiKcd, 103, 119,
120
Chavasse, ex parte, 97
Chalcas, the, 108
Claims, competitive, 10
Clothing, use of enemj-, 50
Coal, conditional contraband, 102,
106
Coal for belligerent fleet, 89, 91, 93,
94
Codification of laws of war, 22,
29
Commencement of war, 34, 38
Commercen, the, 117
Commissions of Enquiry, 4
Compromise, the, between belli-
gerent and neutral rights, 96,
131, 136
Conditional contraband. See Con-
traband
Conduct of warfare between
belligerents, 43
Continuous voyages, 103, 114, 115,
117, 118
Contraband, British proposal to
abolish doctrine
of, 121, 153, 155
„ misuse of the term,
89, 91, 95
„ the two constituents
of, 116
„ absolute and con-
ditional, 30, 101,
102, 106, 144
„ coal, how far, 102,
106
„ cotton, how far, 105,
108, 144
„ food, how far, 145,
155
Contnbulioiis, (13, 73, 80
Conventions. See Geneva, Hague,
&c.
Convoy, 30
Customs Consolidation Act, the.
92
163 M 2
164
INDEX
Declaration, the, of London, 103,
105,106,115,121,
122, 150, 162
„ the, of Paris, 123,
130
„ accession to, of
Spain and Mexico,
122
„ the, of St. Peters-
burg, 22, 54, 55,
56
„ von Moltke upon,
23
of war, 8, 34, 37
Declarations, the three, of The
Hague. See Hague
Despatches, enemy, 114, 118, 125,
138
Destruction of neutral prizes, 23,
140, 142, 148, 150
Direct U. S. Cable Co. v. Anglo-
American Tel. Co., 133
Disguise, 50
Drago doctrine, the, 20
Droit d'ancjarie, the, 137
Dum-dum bullet. See Bullets
Embaugo, 10
Enemies, resident at outbreak,
39
Enemy goods in neutral bottoms,
123, 125, 126
„ merchant vessels at out-
break, 38
„ property, 78, 153
„ in occupied territory, 61
„ service, 23, 114, 116, 118,
155
Enquiry, international Commis-
sions of, 1, 2, 4
False colours, 30
Felicity, the, 143, 146, 147
Fishing vessels, 31
Food, how far contraband, 145,
155
„ supply, report of Royal
Commission on, 105
Foreign Enlistment Acts, the, 91,
94, 98, 100
Fram, the, 96
Friendly methods of settlement, 1
Gases, harmful, 22, 55
Geneva Conventions, the, 23, 58,
60
application of, to maritime
warfare, 31
Golden Rocket, the, 127
Good offices, 1, 2, 4
Guerilla warfare, 48
Haabet, the, 117
Hague Conventions, the, of 1899,
2, 3, 49, 52, 53, 54, 65,
82
of 1907 :
No. i, 2, 3, 7
No. ii, 21
No. iu, 38
No. iv, 50, 54, 60, 67, 84,
134
No. V, 50, 134
No. vi, 38
No. vii, 120
No. viii, 130
No. ix, 84
No. X, 89. 90
No. xii, 160, 162
Hague Declarations, the, 22, 30,
55,56
„ Beglements, the, as to war
on land, 49, 50, 52, 54,
55, 56, 60, 61, 63, 82,
134
„ Tribunal, the, 6
„ „ reference to, not
obligatory, 2, 5
Hall, W. E., views of, 12
Holland, T. E., references to
writings of, 8, 24, 49, 56, 73, 84,
88, 130, 134, 142, 148, 149
Honour and vital interests clause,
the, 4, 5, 7
Horses, wounded, 58, 61
Hostile assistance, 23, 114, 116,
118, 155
Immediate effects of outbreak of
war, the, 38
Imina, the, 117
Indivisibility, the, of the Declara-
tion of Paris, 122
„ of the Declaration
of London, ib.
Institut de Droit International, the,
9. 11, 14, 15, 23. 24, 27, 31,37,
68, 83, 84, 88, 89, 133, 135, 139,
141,151,154, 160
INDEX
165
Institut de Droit International, the,
its Manuel des lois guerre sur de
la terre, 23, 24, 27, 68
International, the, 136
International law, the nature of,
25, 77, 79, 81, 87,
125, 129
„ prize Court, pro-
posal for an, 23,
150, 153, 154, 160
Instructions, national, on laws of
war on land, 49 n.,
51
„ on laws of war at sea :
British, 113, 144, 148
French, 143
„ Japanese, 105, 106,
107, 112, 141, 144,
148
„ Russian, 111, 141,
142, 144, 148
„ United States, 143
Jonge Margaretha, the, 117
" Justice and Equity, general prin-
ciples of," 150, 157, 159, 101
Knight Commander, the case of the,
140
Kowahing, the case of the, 35
Lawful belligerents, 48, 50
Leucade, the, 143
Lieber's Instructions, 48, 49
Localities closed to hostilities, 42
London, Conference of, 149, 161
Mail steamers and bags, 31
Malacca, the case of the, 119, 120
MarniH, ex jtaric, 65, 06
Martial law, 65, 72
Mcomini arul othrrs v. Qovernor,
tL-c, of Nalfil, (i6
Means of injuring, 53, 50
Measures short of war, 1
Mediation. See Uood Offices
,, special, 2
Mines, 130
Moltko, von, on conduct of war, 24
Monroe doctrine, the, 17
Moray Firth, the, 158
National instructions, 49, 51
Naval bombardments of open
coast towns, 31, 73, 81
„ manoeuvres of 1888, the,
74
„ war code, a, 32
,, warfare, 23
Neutral conduct, the criterion of, 86
„ rights and duties, ih.
„ States and individuals,
their Uabilities distin-
guished, 88, 91
Neutralisation, the term, 45
Neutrality, correlative to bel-
ligerency, 9, 13, 16
Neutrals, methods of warfare
affecting, 122, 127, 131, 134, 140
Occupied territory, rights of the
invader in, 61, 63
Orozembo, the, 118
Paquete Habana, the, 31
Peaceful settlement of disputes, the
Conventions
for, of 1899,
2 3 7
of 1907, 2, 7
„ „ are non-obhga-
tory, 4, 153
Peterhojf, the, 30, 104, 117
Petition of Right, the, 08
Poison, 56
Prisoners, liabilities of, 66
Prize Court, the Russian, 121
„ proposed interna-
rional, 23, 150, 153,
154, 100
„ a settled prize law
must precede, 151,
154, 156, 159, 161
Prevention, State duties of, 88, 93
Privateers, 122, 127, 129
„ commissioned liners
are not, 128
" Probable cause," 125
Proclamation of Neutrality, the
British, criticised, 89, 95, 98
Projectiles, from balloons, 56
„ for dillusion of gases,
ib.
Receii'Ts. 03
Riglemcnts, The Hague. -See Hague
166
INDEX
Reprisals, advantages of, 13
„ how differing from war,
8, 10, 13
„ opposite views as to, 15
„ species of, 10, 14
„ United States instruc-
tions as to, 30
Reward for, dead or alive, 52
Savage warfare, 53
Santissima Trinidad, the, 96
Savanna, the, 127
Search. See Visit and Search
Springbok, the, 30
Straits, 44
Suez Canal, the, 42, 43
Territorial waters, 132, 138
Three-mile limit, the, 116, 132
Transformation into ships of war,
120
Torpedoes, 130
Twenty-four hours rule, the, as to
stay in neutral harbours, 87,
102
Uniform, 51
United States, instructions for war
on land, 23, 48, 49, 65
United States ratification of Con-
ventions of 1899
and 1907, as to
ditto, 49
„ „ naval war code,
23, 29
„ „ views of the,
agreeing with
British, 30
Usufruct, international, 61
Venezuela, claims against, 14
Visit and search, 116, 125, 126,
155
Vceux, 5, 60, 82, 84, 149, 161
War. See Reprisals
„ Declaration of, 8, 34
Washington, the three Rules of the
Treaty of, 129, 151
Wounded and sick, the. See Geneva
Conventions
„ horses, 68, 61.
Yangtsze Insurance Assoc, v. In-
demnity Co., 114
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