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+The Project Gutenberg EBook of Letters To "The Times" Upon War And
+Neutrality (1881-1920), by Thomas Erskine Holland
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Letters To "The Times" Upon War And Neutrality (1881-1920)
+
+Author: Thomas Erskine Holland
+
+Release Date: December 24, 2004 [EBook #14447]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK UPON WAR AND NEUTRALITY ***
+
+
+
+
+Produced by Robert Connal, Aaron Reed and the Online Distributed
+Proofreading Team. This file was produced from images generously
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+at http://gallica.bnf.fr
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+
+
+
+
+                           LETTERS
+
+                             UPON
+
+                      WAR AND NEUTRALITY
+
+                         (1881-1920)
+
+
+
+
+
+
+
+LETTERS TO "THE TIMES"
+
+UPON
+
+WAR AND NEUTRALITY
+
+(1881-1920)
+
+WITH SOME COMMENTARY
+
+BY
+
+SIR THOMAS ERSKINE HOLLAND
+K.C., D.C.L., F.B.A.
+
+FELLOW OF ALL SOULS COLLEGE
+SOMETIME CHICHELE PROFESSOR OF INTERNATIONAL LAW
+MEMBRE (PRESIDENT 1913) DE L'INSTITUT DE DROIT INTERNATIONAL
+ETC., ETC.
+
+THIRD EDITION
+
+LONGMANS, GREEN, AND CO.
+39 PATERNOSTER ROW, LONDON
+
+FOURTH AVENUE & 30TH STREET, NEW YORK
+BOMBAY, CALCUTTA, AND MADRAS
+
+1921
+
+
+
+
+PREFACE TO THE FIRST EDITION
+
+For a good many years past I have been allowed to comment, in letters to
+_The Times_, upon points of International Law, as they have been raised
+by the events of the day. These letters have been fortunate enough to
+attract some attention, both at home and abroad, and requests have
+frequently reached me that they should be rendered more easily
+accessible than they can be in the files of the newspaper in which they
+originally appeared.
+
+I have, accordingly, thought that it might be worth while to select,
+from a greater number, such of my letters as bear upon those questions
+of War and Neutrality of which so much has been heard in recent years,
+and to group them for republication, with some elucidatory matter (more
+especially with reference to changes introduced by the Geneva Convention
+of 1906, The Hague Conventions of 1907, and the Declaration of London of
+the present year) under the topics to which they respectively relate.
+
+The present volume has been put together in accordance with this plan;
+and my best thanks are due to the proprietors of The Times for
+permitting the reissue of the letters in a collected form.
+Cross-references and a full Index will, I hope, to some extent remove
+the difficulties which might otherwise be caused by the fragmentary
+character, and the chances of repetition, inseparable from such a work.
+
+T. E. H.
+EGGISHORN, SWITZERLAND,
+_September_ 14, 1909.
+
+       *       *       *       *       *
+
+PREFACE TO THE SECOND EDITION
+
+I have again to thank _The Times_ for permission to print in this new
+edition letters which have appeared in its columns during the past four
+years. They will be found to deal largely with still unsettled questions
+suggested by the work of the Second Peace Conference, by the Declaration
+of London, and by the, unfortunately conceived, Naval Prize Bill of
+1911.
+
+I have no reason to complain of the reception which has so far been
+accorded to the views which I have thought it my duty to put forward.
+
+T. E. H.
+OXFORD,
+_January_ 10, 1914.
+
+       *       *       *       *       *
+
+PREFACE TO THE THIRD EDITION
+
+This, doubtless final, edition of my letters upon War and Neutrality
+contains, by renewed kind permission of _The Times_, the whole series of
+such letters, covering a period of no less than forty years. To the
+letters which have already appeared in former editions, I have now added
+those contained in the "Supplement" of 1916 (for some time out of print)
+to my second edition; as also others of still more recent date. All
+these have been grouped, as were their predecessors, under the various
+topics which they were intended to illustrate. The explanatory
+commentaries have been carefully brought up to date, and a perhaps
+superfluously full Index should facilitate reference for those
+interested in matters of the kind. Such persons may not be sorry to have
+their attention recalled to many questions which have demanded practical
+treatment of late years, more especially during the years of the great
+war.
+
+Not a few of these questions are sure again to come to the front, so
+soon as the rehabilitation of International Law, rendered necessary by
+the conduct of that War, shall be seriously taken in hand.
+
+T. E. H.
+OXFORD,
+_April_ 25, 1921.
+
+
+
+
+CONTENTS
+
+
+CHAPTER I
+
+MEASURES SHORT OF WAR FOR THE SETTLEMENT
+OF INTERNATIONAL CONTROVERSIES      1
+
+SECTION 1
+_Friendly Measures_      1
+
+The Petition to the President of the United States (1899)      2
+Commissions of Enquiry and The Hague Convention (1904)      3
+The League of Nations (1919)      7
+ "     "    "    "    ( " )      8
+ "     "    "    "    (1920)      9
+
+SECTION 2
+_Pacific Reprisals_      9
+
+The Blockade of the Menam (1893)      10
+Pacific Blockade (1897)      11
+The Venezuelan Controversy (1902)      13
+The Venezuela Protocol (1903)      18
+War and Reprisals (1908)      18
+
+
+CHAPTER II
+STEPS TOWARDS A WRITTEN LAW OF WAR      22
+
+Count von Moltke on the Laws of Warfare (1881)      23
+Professor Bluntschli's Reply to Count von Moltke (1881)      26
+The United States Naval War Code (1901)      29
+A Naval War Code (1902)      31
+
+
+CHAPTER III
+
+TERMINOLOGY      33
+
+International Terminology (1918)      33
+
+
+CHAPTER IV
+
+CONVENTIONS AND LEGISLATION      36
+
+Government Bills and International Conventions (1911)      36
+The present Bill in Parliament (1914)      38
+The Foreign Enlistment Bill (1912)      39
+
+
+CHAPTER V
+
+THE COMMENCEMENT OF WAR      41
+
+SECTION 1
+_Declaration of War_      41
+
+The Sinking of the _Kowshing_ (1894)      41
+
+
+SECTION 2
+_The Immediate Effects of the Outbreak of War_      44
+
+Foreign Soldiers in England (1909)      45
+The Naval Prize Bill: Civil Disabilities of Enemy
+   Subjects (1911)      47
+Enemy Ships in Port (1917)      49
+
+
+CHAPTER VI
+
+THE CONDUCT OF WARFARE      50
+
+SECTION 1
+_On the Open Sea_      51
+
+The Freedom of the Seas? (1917)      51
+
+
+SECTION 2
+_In Other Waters_      51
+
+The Suez Canal (1898)      51
+ "   "     "   ( " )      51
+ "   "     "   ( " )      53
+ "   "     "   ( " )      54
+The Closing of the Dardanelles (1912)      55
+ "     "    "   "      "       ( " )      58
+
+
+SECTION 3
+_In a Special Danger Zone?_      59
+
+The German Threat (1915)      59
+
+
+SECTION 4
+_Aerial Warfare_      61
+
+The Debate on Aeronautics (1909)      61
+The Aerial Navigation Act (1913)      63
+Sovereignty over the Air (1913)      65
+Attack from the Air: The Enforcement of International Law (1914)      66
+  "      "   "   "   The Rules of International Law (1914)      67
+
+
+SECTION 5
+_Submarines_      69
+
+Germany and the Hague (1914)      69
+The "Pirates" (March 13, 1915)      70
+Submarine Crews (March 22, 1915)      71
+Mr. Wilson's Note (May 16, 1915)      72
+
+
+SECTION 6
+_Lawful Belligerents_      73
+
+Guerilla Warfare (1906)      73
+The Russian Use of Chinese Clothing (1904)      75
+The Rights of Armed Civilians (1914)      77
+Civilians in Warfare: The Right to take up Arms (1914)      78
+Civilians and a Raid (1914)      79
+Miss Cavell's Case (1915)      79
+
+
+SECTION 7
+_Privateering and the Declaration of Paris_      80
+
+Our Mercantile Marine in War Time (1898)      81
+ "      "        "    "   "    " ( " )      84
+Our Mercantile Marine in War (1898)      87
+The Declaration of Paris (1911)      87
+ "       "      "    "   (1914)      89
+ "       "      "    "   (1916)      91
+ "       "      "    "   (1916)      92
+
+
+SECTION 8
+_Assassination_      93
+
+The Natal Proclamation (1906)      93
+
+
+SECTION 9
+_The Choice of Means of Injuring_      94
+
+Bullets in Savage Warfare (1903)      94
+Gases (1918)      97
+
+
+SECTION 10
+_The Geneva Convention_      98
+
+Wounded Horses in War (1899)      98
+
+
+SECTION 11
+_Enemy Property in Occupied Territory_      100
+
+International "Usufruct" (1898)      101
+Requisitions in Warfare (1902)      103
+
+
+SECTION 12
+_Enemy Property at Sea_      104
+
+Private Property at Sea (1913)      104
+
+
+SECTION 13
+_Martial Law_      105
+
+The Executions at Pretoria (1901)      106
+The Petition of Right (1901)      108
+The Petition of Right (1902)      109
+Martial Law in Natal (1906)      111
+
+
+SECTION 14
+_The Naval Bombardment of Open Coast Towns_      112
+
+Naval Atrocities (1888)      113
+The Naval Manoeuvres (1888)      113
+ "    "        "     ( " )      117
+Naval Bombardments of Unfortified Places (1904)      120
+
+
+SECTION 15
+_Belligerent Reprisals_      123
+
+Reprisals (1917)      123
+    "     ( " )      124
+
+
+SECTION 16
+_Peace_      124
+
+Undesirable Peace Talk (1915)      124
+
+
+CHAPTER VII
+
+THE RIGHTS AND DUTIES OF NEUTRALS      126
+
+SECTION 1
+_The Criterion of Neutral Conduct_      126
+
+Professor de Martens on the Situation (1905)      126
+Neutrals and the Laws of War (1915)      127
+
+
+SECTION 2
+_The Duties of Neutral States, and the Liabilities of Neutral
+   Individuals, distinguished_      129
+
+Contraband of War (1904)      130
+Coal for the Russian Fleet (1904)      132
+German War Material for Turkey (1911)      135
+
+
+SECTION 3
+
+_Neutrality Proclamations_      135
+
+The British Proclamation of Neutrality (1904)      136
+ "      "         "              "     ( " )      138
+ "      "         "              "     (1911)      141
+The Proclamation of Neutrality (1911)      143
+
+
+SECTION 4
+
+_Neutral Hospitality_      143
+
+Belligerent Fleets in Neutral Waters (1905)      144
+The _Appam_ (1916)      146
+
+
+SECTION 5
+
+_Carriage of Contraband_      147
+
+_Absolute and Conditional Contraband_      147
+    Contraband of War (1898)      147
+    Is Coal Contraband of War? (1904)      149
+    Cotton as Contraband of War (1905)      151
+      "     "      "         " (1916)      154
+    Japanese Prize Law (1905)      155
+       "        "    " (1915)      157
+
+_Continuous Voyages_      157
+    Prize Law (1900)      158
+    The _Allanton_ (1904)      161
+
+_Unqualified Captors_      162
+    The _Allanton_ (1904)      162
+
+
+SECTION 6
+
+_Methods of Warfare as affecting Neutrals_      164
+
+_Mines_      164
+    Mines in the Open Sea (1904)      164
+    Territorial Waters (1904)      166
+
+_Cable-cutting_      168
+    Submarine Cables (1881)      168
+       "       "    in Time of War (1897)      169
+       "       "     "   "   " "  ( " )      171
+
+
+SECTION 7
+
+_Destruction of Neutral Prizes_      173
+
+Russian Prize Law (1904)      174
+   "       "    " ( " )      177
+   "       "    " ( " )      178
+The Sinking of Neutral Prizes (1905)      179
+
+
+SECTION 8
+
+_An International Prize Court_      181
+
+An International Prize Court (1907)      182
+A New Prize Law (1907)      183
+" "    "    " ( " )      186
+" "    "    " ( " )      189
+
+
+SECTION 9
+
+_The Naval Prize Bill_      191
+
+The Naval Prize Bill (1910)      192
+ "    "      "    "  (1911)      194
+Naval Prize Money    (1918)      195
+
+
+SECTION 10
+
+_The Declaration of London_      196
+
+The Declaration of London (1909)      196
+ "        "     "     "   (1910)      197
+ "        "     "     "   (1911)      199
+ "        "     "     "   ( " )      202
+ "        "     "     "   ( " )      203
+ "        "     "     "   (1915)      204
+ "        "     "     "   (1916)      205
+Germany wrong again (1917)      207
+
+
+INDEX      209
+
+
+
+
+CHAPTER I
+
+MEASURES SHORT OF WAR FOR THE SETTLEMENT OF INTERNATIONAL CONTROVERSIES
+
+
+SECTION 1
+
+_Friendly Measures_
+
+    Of the letters which follow, the first was suggested by a
+    petition presented in October, 1899, to the President of the
+    United States, asking him to use his good offices to terminate
+    the war in South Africa; the second by discussions as to the
+    advisability of employing, for the first time, an International
+    Commission of Enquiry, for the purpose of ascertaining the
+    facts of the lamentable attack perpetrated by the Russian fleet
+    upon British fishing vessels off the Dogger Bank, on October
+    21, 1905. The Commission sat from January 19 to February 25,
+    1905, and its report was the means of terminating a period of
+    great tension in the relations of the two Powers concerned (see
+    _Parl. Paper_, Russia, 1905, No. 3): this letter deals also
+    with Arbitration, under The Hague Convention of 1899.
+
+    It may be worth while here to point out that besides direct
+    negotiation between the Powers concerned, four friendly methods
+    for the settlement of questions at issue between them are now
+    recognised, _viz_ (1) Good offices and mediation of third
+    Powers; (2) "Special mediation"; (3) "International Commissions
+    of Enquiry"; (4) Arbitration. All four were recommended by The
+    Hague Convention of 1899 "For the Peaceful Settlement of
+    International Disputes" (by which, indeed, (2) and (3) were
+    first suggested), as also by the amended re-issue of that
+    convention in 1907. It must be noticed that resort to any of
+    these methods is entirely discretionary, so far as any rule of
+    International Law is concerned; all efforts to render it
+    universally and unconditionally obligatory having, perhaps
+    fortunately, hitherto failed.
+
+    It remains to be seen how far the settlement of international
+    controversies has been facilitated by the establishment of a
+    "League of Nations" (to which reference is made in the
+    concluding letters of this chapter), and, in particular, by the
+    plan for the establishment of a "Permanent Court of
+    International Justice," formulated by the League, in pursuance
+    of Art. 14 of the Treaty of Versailles, and submitted to its
+    members in December, 1920.
+
+
+
+THE PETITION TO THE PRESIDENT OF THE UNITED STATES
+
+Sir,--It seems that a respectably, though perhaps thoughtlessly signed
+petition was on Thursday presented to President McKinley, urging him to
+offer his good offices 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 Art. 3
+of the protocol of the Peace Conference at The Hague." The reference
+intended is doubtless to the _Convention pour le reglement pacifique des
+conflits internationaux_, prepared at the Conference [of 1899], Art. 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 pretent, leurs
+      bons offices ou leur mediation 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 hostilites.
+
+      "L'exercice de ce droit ne peut jamais etre considere par
+      l'une ou l'autre des parties en litige comme un acte peu
+      amical."
+
+Several remarks are suggested by the presentation of this petition:--
+
+(1) One might suppose from the glib reference here and elsewhere made to
+The Hague Convention, that this convention is already in force, whereas
+it is [1899], in the case of most, if not all, of the Powers represented
+at the conference, 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 Republics 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, for almost all Powers, superseded by The Hague
+    Convention, No. i. of 1907, which, reproduces Art. 3 of the
+    older Convention, inserting, however, after the word "utile,"
+    the words "et desirable."
+
+    _Ib._ (2).--On March 6, 1900, the two Boer Republics proposed
+    that peace should be made on terms which included the
+    recognition of their independence. Great Britain having, on
+    March 11, declared such recognition to be inadmissible, the
+    European Powers which were requested to use their good offices
+    to bring this about declined so to intervene. The President of
+    the United States, however, in a note delivered in London on
+    March 13, went so far as to "express an earnest hope that a way
+    to bring about peace might be found," and to say that he would
+    aid "in any friendly manner to bring about so happy a result."
+    Lord Salisbury, on the following day, while thanking the United
+    States Government, replied that "H.M. Government does not
+    propose to accept the intervention of any Power in the South
+    African War." Similar replies to similar offers had been made
+    both by France and Prussia in 1870, and by the United States in
+    1898.
+
+
+COMMISSIONS OF ENQUIRY AND THE HAGUE CONVENTION
+
+Sir,--It is just now [1904] especially desirable that the purport of
+those provisions of The Hague Convention "for the peaceful 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.
+
+Art. 9 of the convention contains an expression of opinion to the effect
+that recourse to an international commission of enquiry into disputed
+questions of fact would be useful. This recommendation is, however,
+restricted to "controversies in which neither honour nor essential
+interests are involved," and is further limited by the phrase "so far as
+circumstances permit." Two points are here deserving of notice.
+
+In the first place, neither "the honour and vital interests clause," as
+seems to be supposed by your correspondent Mr. Schidrowitz, nor the
+clause as to circumstances permitting, is in any way modified by the
+article which follows. Art. 10 does not enlarge the scope of Art. 9, but
+merely indicates the procedure to be followed by Powers desirous of
+acting under it. In the second place, it is wholly unimportant whether
+or no the scope of Art. 9 is enlarged by Art. 10. The entire liberty of
+the Powers to make any arrangement which may seem good to them for
+clearing up their differences is neither given, nor impaired, by the
+articles in question, to which the good sense of the Conference declined
+to attach any such obligatory force as had been proposed by Russia. It
+may well be that disputant Powers may at any time choose to agree to
+employ the machinery suggested by those articles, or something
+resembling it, in cases of a far more serious kind than those to which
+alone the convention ventured to make its recommendation applicable; and
+this is the course which seems to have been followed by the Powers
+interested with reference to the recent lamentable occurrence in the
+North Sea.
+
+As to the convention as a whole, it is important to bear in mind that,
+differing in this respect from the two other conventions concluded at
+The Hague, it is of a non-obligatory character, except in so far as it
+provides for the establishment of a permanent tribunal at The Hague, to
+which, however, no Power is bound to resort. It resembles not so much a
+treaty as a collection of "pious wishes" (_voeux_), such as those which
+were also adopted at The Hague. The operative phrases of most usual
+occurrence in the convention are, accordingly, such as "jugent utile";
+"sont d'accord pour recommander"; "est reconnu comme le moyen le plus
+efficace"; "se reservent de conclure des accords nouveaux, en vue
+d'etendre l'arbitrage obligatoire a tous les cas qu'elles jugeront
+possible de lui soumettre."
+
+It is a matter for rejoicing that, in accordance with the suggestion
+contained in the phrase last quoted, so many treaties, of which that
+between Great Britain and Portugal is the most recent, have been entered
+into for referring to The Hague tribunal "differences of a juridical
+nature, or such as relate to the interpretation of treaties; on
+condition that they do not involve either the vital interests or the
+independence or honour of the two contracting States." Such treaties,
+conforming as they all do to one carefully defined type, may be
+productive of much good. They testify to, and may promote, a very widely
+spread _entente cordiale_, they enhance the prestige of the tribunal of
+The Hague, and they assure the reference to that tribunal of certain
+classes of questions which might otherwise give rise to international
+complications. Beyond this it would surely be unwise to proceed. It is
+beginning to be realised that what are called "general" treaties of
+arbitration, by which States would bind themselves beforehand to submit
+to external decision questions which might involve high political
+issues, will not be made between Powers of the first importance; also,
+that such treaties, if made, would be more likely to lead to fresh
+misunderstandings than to secure the peaceful settlement of disputed
+questions.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, November 21 (1904).
+
+
+    _Pars._ 1-3.--The topic of "Commissions of Enquiry," which
+    occupied Arts. 9-13 of the Convention of 1899 "For the Peaceful
+    Settlement of International Disputes," is more fully dealt with
+    in Arts. 9-36 of the Convention as amended in 1907.
+
+    _Par._ 4.--The amended Convention, as a whole, is still, like
+    its predecessor, purely facultative. The Russian proposal to
+    make resort to arbitration universally obligatory in a list of
+    specified cases, unless when the "vital interests or national
+    honour" of States might be involved, though negatived in 1899,
+    was renewed in 1907, in different forms, by several Powers,
+    which eventually concurred in supporting the
+    Anglo-Portuguese-American proposal, according to which,
+    differences of a juridical character, and especially those
+    relating to the interpretation of treaties, are to be submitted
+    to arbitration, unless they affect the vital interests,
+    independence, or honour, of the States concerned, or the
+    interests of third States; while all differences as to the
+    interpretation of treaties relating to a scheduled list of
+    topics, or as to the amount of damages payable, where liability
+    to some extent is undisputed, are to be so submitted without
+    any such reservation. This proposal was accepted by thirty-two
+    Powers, but as nine Powers opposed it, and three abstained from
+    voting, it failed to become a convention. The delegates to the
+    Conference of 1907 went, however, so far as to include in their
+    "Final Act" a statement to the effect that they were unanimous:
+    (1) "in recognising the principle of obligatory arbitration";
+    (2) "in declaring that certain differences, and, in particular,
+    such as relate to the interpretation and application of the
+    provisions of International Conventions, are suitable for being
+    submitted to obligatory arbitration, without any reservations."
+
+    _Par._ 5.--The Convention between France and Great Britain,
+    concluded on October 14, 1903, for five years, and renewed in
+    1908, and again in 1913, for a like period, by which the
+    parties agree to submit to The Hague tribunal any differences
+    which may arise between them, on condition "that they do not
+    involve either the vital interests, or the independence, or
+    honour of the two contracting States, and that they do not
+    affect the interests of a third Power," has served as a model
+    or "common form," for a very large number of conventions to the
+    same effect, entered into between one State and another. The
+    Convention of April 11, 1908, between Great Britain and the
+    United States is substantially of this type.
+
+    But see now the three letters which follow.
+
+
+THE LEAGUE OF NATIONS
+
+Sir,--The League is unquestionably "a brave design." Sympathy with its
+objects and some hope that they may be realised have induced myself, as,
+doubtless many others, to abstain from criticising the way in which the
+topic has been handled by the representatives of the victorious Powers.
+Recent discussions seem, however, to render such reticence no longer
+desirable.
+
+It begins to be recognised that, as some of us have all along held to be
+the case, a serious mistake was made by the Paris delegates when they
+combined in one and the same document provisions needed for putting an
+end to an existing state of war with other provisions aiming at the
+creation in the future of a new supernational society. Two matters so
+wholly incongruous in character should surely have been dealt with
+separately. Whether it is now too late to attempt a remedy for the
+consequences of this unfortunate combination is a question which can be
+answered only by the diplomatists whose business it is to be intimately
+in touch with the susceptibilities of the various nations concerned. In
+the meantime, however, on the assumption that this state of things is
+productive of regrettable results, I may perhaps venture to indicate,
+recommending their adoption, the steps which appear to be required for
+the reformation of the Treaty as drafted. My suggestions would run as
+follows:--
+
+(1) Subtract from the Treaty of Versailles, Parts I. and XIII., the
+former constituting a League of Nations, the latter, in pursuance of a
+recital that universal peace "can be established only if it is based
+upon social justice," wholly occupied with a sufficiently ambitious
+scheme for the regulation by the League of all questions relating to
+"Labour" which may arise within its jurisdiction.
+
+(2) Let Part I., with Part XIII. annexed, constitute a new and
+independent Treaty; to be, as such, submitted to the Powers for further
+consideration. (The opportunity might be taken of ridding it of all
+references to a system of "mandates," which might very probably lead to
+jealousies and misunderstandings.)
+
+(3) Parts II. to XII., XIV., and XV. would then constitute the real
+Treaty of Peace, in which it would, however, be necessary in the
+numerous articles attributing functions, for the most part of a
+temporary character, the "League of Nations," to substitute for any
+mention of the League words descriptive of some other authority, yet to
+be created, such as, for instance, "a Commission to be constituted by
+the principal Allied and Associated Powers."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 16 (1919).
+
+
+Sir,--Let me assure Lord Robert Cecil that I am perfectly serious in
+giving expression to a long-felt wish that the Treaty of Peace could be
+relieved of articles relating exclusively to an as yet to be created
+League of Nations, and in proceeding to indicate the steps that must be
+taken if this reform is to be effected.
+
+It can hardly be necessary also to assure Lord Robert that I am fully
+aware of the formidable, though perhaps not insuperable, difficulties
+which would beset any efforts to carry out my suggestions. He may have
+inferred so much from my letter of the 16th, in which, treating the
+question whether it is now too late to attempt a remedy for the existing
+state of things as beyond the competence of an outsider, I describe it
+as one which can be answered "only by the diplomatists whose business it
+is to be intimately in touch with the susceptibilities of the various
+nations concerned."
+
+On a point of detail, I am surprised that Lord Robert is unwilling that
+the contents of Part XIII. should be removed to their natural context,
+on the ground that the Labour organisation might be annoyed if this were
+done. I am, however, confident that the organisation is too intelligent
+not to see that it would lose nothing if the articles in which it is
+interested were made an integral part of a Convention constituting a
+League of Nations; the League being already solely charged with giving
+effect to the articles in question.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 20 (1919).
+
+
+Sir,--Professor Alison Phillips is not quite accurate in attributing to
+me a belief that the task of amending the Treaty of Versailles is "not
+beyond the powers of competent diplomatists." No such belief is
+expressed in my letter of December 16, in which I was careful to admit
+that the question, "whether it is now too late to attempt" the reform
+which appears to me to be desirable is one "which can be answered only
+by the diplomatists."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, January 5 (1920).
+
+       *       *       *       *       *
+
+SECTION 2
+
+_Pacific Reprisals_
+
+    The four letters next following were suggested by the ambiguous
+    character of the blockades instituted by France against Siam in
+    1893, by the Great Powers against Crete in 1897, and by Great
+    Britain, Germany, and Italy, against Venezuela in 1902. The
+    object, in each case, was to explain the true nature of the
+    species of reprisals known as "Pacific Blockade," and to point
+    out the difference between the consequences of such a measure
+    and those which result from a "Belligerent Blockade." A fifth
+    letter, written with reference to the action of the Netherlands
+    against Venezuela in 1908, emphasises the desirability of more
+    clearly distinguishing between war and reprisals. On the
+    various applications of a blockade in time of peace, see the
+    author's _Studies in International Law_, pp. 130-150.
+
+
+THE BLOCKADE OF THE MENAM
+
+Sir,--Upon many questions of fact and of policy involved in the 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, liable to be visited, and,
+if found 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 pressure which is known as "pacific blockade"?
+
+In this case, since there is no belligerency there is no neutrality, and
+the ships of States other than that to which the pressure is being
+applied are not liable to be interfered with. The particular mode of
+applying pressure without going to war known as "pacific blockade"
+dates, as is well known, only from 1827. It has indeed been enforced, by
+England as well as by France, upon several occasions, against the
+vessels of third Powers; but this practice has always been protested
+against, especially by French jurists, as an unwarrantable interference
+with the rights of such Powers, and was acknowledged by Lord Palmerston
+to be illegal. The British Government distinctly warned the French in
+1884 that their blockade of Formosa could be recognised as affecting
+British vessels only if it constituted an act of war against China; and
+when the Great Powers in 1886 proclaimed a pacific blockade of the
+coasts of Greece they carefully limited its operation to ships under the
+Greek flag.
+
+The Subject has been exhaustively considered by the Institut de Droit
+International, which, at its meeting at Heidelberg in 1887, arrived at
+certain conclusions which may be taken to express the view of learned
+Europe. They are as follows:--
+
+      "L'etablissement d'un blocus en dehors de l'etat de guerre ne
+      doit etre considere comme permis par le droit des gens que
+      sous les conditions suivantes:--
+
+      "1. Les navires de pavillon etranger peuvent entrer librement
+      malgre le blocus.
+
+      "2. Le blocus pacifique doit etre declare et notifie
+      officiellement, et maintenu par une force suffisante.
+
+      "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 leur cargaisons a leurs
+      proprietaires, mais sans dedommagement 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 belligerent, 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 limited in extent,
+may be put upon an offending State. The need for pressure of any kind
+is, of course, regrettable, the only question being whether such limited
+pressure be not more humane to the nation which experiences it, and less
+distasteful to the nation which exercises it, than is the letting loose
+of the limitless calamities of war.
+
+The opinion of statesmen and jurists upon this point has undergone a
+change, and this because the practice known as "pacific blockade" has
+itself changed. The practice, which is comparatively modern, dating only
+from 1827, was at first directed against ships under all flags, and
+ships arrested for breach of a pacific blockade were at one time
+confiscated, as they would have been in time of war. It has been purged
+of these defects as the result of discussions, diplomatic and
+scientific. As now understood, the blockade is enforced only against
+vessels belonging to the "quasi-enemy," and even such vessels, when
+arrested, are not confiscated, but merely detained till the blockade is
+raised. International law does not stand still; and having some
+acquaintance with Continental opinion on the topic under consideration,
+I read with amazement "M.'s" assertion that "the majority in number,"
+"the most weighty in authority" of the writers on international law
+"have never failed to protest against such practices as indefensible in
+principle." The fact is that the objections made by, e.g. Lord
+Palmerston in 1846, and by several writers of textbooks, to pacific
+blockade, had reference to the abuses connected with the earlier stages
+of its development. As directed only against the ships of the
+"quasi-enemy," it has received the substantially unanimous approbation
+of the Institut de Droit International at Heidelberg in 1887, after a
+very interesting debate, in which the advocates of the practice were led
+by M. Perels, of the Prussian Admiralty, and its detractors by Professor
+Geffken. It is true that in an early edition of his work upon
+international law my lamented friend, Mr. Hall, did use the words
+attributed to him by "M.": "It is difficult to see how a pacific
+blockade is justifiable." But many things, notably Lord Granville's
+correspondence with France in 1884 and the blockade of the Greek coast
+in 1886, have occurred since those words were written. If "M." will turn
+to a later edition of the work in question he will see that Mr. Hall had
+completely altered his opinion on the subject, or rather that, having
+disapproved of the practice as unreformed, he blesses it altogether in
+its later development. With reference to the utility of the practice, I
+should like to call the attention of "M." to a passage in the latest
+edition of Hall's book which is perhaps not irrelevant to current
+politics:--
+
+      "The circumstances of the Greek blockade of 1886 show that
+      occasions may occur in which pacific blockade has an efficacy
+      which no other measure would possess. The irresponsible
+      recklessness of Greece was endangering the peace of the
+      world; advice and threats had been proved to be useless; it
+      was not till the material evidence of the blockade was
+      afforded that the Greek imagination could be impressed with
+      the belief that the majority of the Great Powers of Europe
+      were in earnest in their determination that war should be
+      avoided."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, March 5 (1897).
+
+
+THE VENEZUELAN CONTROVERSY
+
+Sir,--Apart from the practical difficulty, so ably described by Sir
+Robert Giffen in your issue of this morning, of obtaining compensation
+in money from a State which seems to be at once bankrupt and in the
+throes of revolution, not a few questions of law and policy, as to which
+misunderstanding is more than probable, are raised from day to day by
+the action of the joint squadrons in Venezuelan waters. It may therefore
+be worth while to attempt to disentangle the more important of these
+questions from the rest, and to indicate in each case the principles
+involved.
+
+1. Are we at war with Venezuela? Till reading the reports of what passed
+last night in the House of Commons, I should have replied to this
+question unhesitatingly in the negative. Most people whose attention has
+been directed to such matters must have supposed that we were engaged in
+the execution of "reprisals," the nature and legitimacy of which have
+long been recognised by international law. They consist, of course, in
+the exertion of pressure, short of war; over which they possess the
+following advantages: They are strictly limited in scope; they cease,
+when their object has been attained, without the formalities of a treaty
+of peace; and, no condition of "belligerency" existing between the
+Powers immediately concerned, third Powers are not called upon to
+undertake the onerous obligations of "neutrality." The objection
+sometimes made to reprisals, that they are applicable only to the weaker
+Powers, since a strong Power would at once treat them as acts of war, is
+indeed the strongest recommendation of this mode of obtaining redress.
+To localise hostile pressure as far as possible, and to give to it such
+a character as shall restrict its incidence to the peccant State, is
+surely in the interest of the general good. That the steps taken are
+such as would probably, between States not unequally matched, cause an
+outbreak of war cannot render them inequitable in cases where so
+incalculable an evil is unlikely to follow upon their employment.
+
+2. The justification of a resort either to reprisals or to war, in any
+given case, depends, of course, upon the nature of the acts complained
+of, and upon the validity of the excuses put forward either for the acts
+themselves, or for failure to give satisfaction for them. The British
+claims against Venezuela seem to fall into three classes. It will hardly
+be disputed that acts of violence towards British subjects or vessels,
+committed under State authority, call for redress. Losses 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 Salisbury who, while
+observing that "it would be an extreme assertion to say that this
+country ought never to interfere on the part of bondholders who have
+been wronged," went on to say that "it would be hardly fair if any body
+of capitalists should have it in their power to pledge the people of
+this country to exertions of such an extensive character.... They would
+be getting the benefit of an English guarantee without paying the price
+of it."
+
+3. Reprisals may be exercised in many ways; from such a high-handed act
+as the occupation of the Principalities by Russia in 1853, to such a
+mere seizure of two or three merchant vessels as occurred in the course
+of our controversy with Brazil in 1861. In modern practice, these
+measures imply a temporary sequestration, as opposed to confiscation or
+destruction, of the property taken. In the belief that reprisals only
+were being resorted to against Venezuela one was therefore glad to hear
+that the sinking of gunboats by the Germans had been explained as
+rendered necessary by their unseaworthiness.
+
+4. Pacific reprisals should also, according to the tendency of modern
+opinion and practice, be so applied as not to interfere with the
+interests of third Powers and their subjects. This point has been
+especially discussed with reference to that species of reprisal known as
+a "pacific blockade," of which some mention has been made in the present
+controversy. The legitimacy of this operation, though dating only from
+1827, if properly applied, is open to no question. Its earlier
+applications were, no doubt, unduly harsh, not only towards the peccant
+State, but also towards third States, the ships of which were even
+confiscated for attempting to break a blockade of this nature. Two views
+on this subject are now entertained--viz. (1) that the ships of third
+Powers breaking a pacific blockade may be turned back with any needful
+exertion of force, and, if need be, temporarily detained; (2) that they
+may not be interfered with. The former view is apparently that of the
+German Government. It was certainly maintained by M. Perels, then as now
+the adviser to the German Admiralty, during the discussion of the
+subject by the Institut de Droit International at Heidelberg in 1887.
+The latter view is that which was adopted by the Institut on that
+occasion. It was maintained by Great Britain, with reference to the
+French blockade of Formosa in 1884; was acted on by the allied Powers in
+the blockade of the coast of Greece, instituted in 1886; and is
+apparently put forward by the United States at the present moment.
+
+5. If, however, we are at war with Venezuela (as will, no doubt, be the
+case if we proclaim a belligerent blockade of the coast, and may at any
+moment occur, should Venezuela choose to treat our acts, even if
+intended only by way of reprisals, as acts of war), the situation is
+changed in two respects: (1) the hostilities which may be carried on by
+the allies are no longer localised, or otherwise limited, except by the
+dictates of humanity; (2) third States become _ipso facto_ "neutrals,"
+and, as such, subject to obligations to which up to that moment they had
+not been liable. Whatever may have previously been the case, it is
+thenceforth certain that their merchant vessels must respect the (now
+belligerent) blockade, and are liable to visit, search, seizure, and
+confiscation if they attempt to break it.
+
+6. If hostile pressure, whether by way of reprisals or of war, is
+exercised by the combined forces of allies, the terms on which this is
+to be done must obviously be arranged by previous agreement. More
+especially would this be requisite where, as in the case of Great
+Britain and Germany, different views are entertained with reference to
+the acts which are permissible under a "pacific blockade."
+
+7. When, besides the Power, or Powers, putting pressure upon a given
+State, with a view to obtaining compensation for injuries received from
+it, other Powers, though taking no part in what is going on, give notice
+that they also have claims against the same offender; delicate questions
+may obviously arise between the creditors who have and those who have
+not taken active steps to make their claims effective. In the present
+instance, France is said to assert that she has acquired a sort of prior
+mortgage on the assets of Venezuela; and the United States, Spain, and
+Belgium declare themselves entitled to the benefit of the
+"most-favoured-nation clause" when those assets are made available for
+creditors. What principles are applicable to the solution of the novel
+questions suggested by these competing claims?
+
+8. It is satisfactory to know, on the highest authority, that the
+"Monroe doctrine" is not intended to shield American States against the
+consequences of their wrongdoing; since the cordial approval of the
+doctrine which has just been expressed by our own Government can only be
+supposed to extend to it so far as it is reasonably defined and applied.
+Great Britain, for one, has no desire for an acre of new territory on
+the American continent. The United States, on the other hand, will
+doubtless readily recognise that, if international wrongs are to be
+redressed upon that continent, aggrieved European Powers may
+occasionally be obliged to resort to stronger measures than a mere
+embargo on shipping, or the blockade (whether "pacific" or
+"belligerent") of a line of coast.
+
+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 satisfaction. One of the articles
+of the so-called "protocol" of February 18 seems, however, to point a
+moral which one may hope will not be lost sight of in the future--viz.
+the desirability of keeping unblurred the line of demarcation between
+such unfriendly pressure as constitutes "reprisals" and actual war.
+
+After all that has occurred--statements in Parliament, 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 desirability of drawing a clear line
+between war and reprisals. Perhaps I may now be allowed to return, very
+briefly, to this topic, with special reference to Professor Westlake's
+remarks.
+
+In any discussion of the questions involved, we ought, I think, clearly
+to realise that The Hague Convention, No. iii. of 1907, has no
+application to any measures not amounting to war. The "hostilities"
+mentioned in Art. 1 of the Convention are, it will be observed,
+exclusively such as must not commence without either a "declaration of
+war," or "an ultimatum with a conditional declaration of war"; and Art.
+2 requires that the "state of war" thus created shall be notified to
+"neutral Powers." There are, of course, no Powers answering to this
+description till war has actually broken out. Neutrality presupposes
+belligerency. Any other interpretation of the Convention would, indeed,
+render "pacific blockades" henceforth impossible.
+
+In the next place, we must at once recognise that the application of the
+term "reprisals," whatever may have been its etymological history, must
+no longer be restricted to seizure of property. It has now come to
+cover, and it is the only term which does cover generically, an
+indeterminate list of unfriendly acts, such as embargo, pacific
+blockade, seizure of custom-houses, and even occupation of territory, to
+which resort is had in order to obtain redress from an offending State
+without going to war with it. The pressure thus exercised, unlike the
+unlimited _licentia laedendi_ resulting from a state of war, is
+localised and graduated. It abrogates no treaties, and terminates
+without a treaty of peace. It affects only indirectly, if at all, the
+rights of States which take no part in the quarrel.
+
+The questions which remain for consideration would seem to be the
+following:--
+
+1. Would it be feasible to draw up a definite list of the measures which
+may legitimately be taken with a view to exercising pressure short of
+war?--I think not. States differ so widely in offensive power and
+vulnerability that it would be hardly advisable thus to fetter the
+liberty of action of a State which considers itself to have been
+injured.
+
+2. Ought it to be made obligatory that acts of reprisal should be
+preceded, or accompanied, by a notification to the State against which
+they are exercised that they are reprisals and not operations of
+war?--This would seem to be highly desirable; unless indeed it can be
+assumed that, in pursuance of The Hague Convention of 1907, no war will
+henceforth be commenced without declaration.
+
+8. Ought a statement to the like effect to be made to nations not
+concerned in the quarrel?--This would, doubtless, be convenient, unless
+the non-receipt by them of any notification of a "state of war," in
+pursuance of the Convention, could be supposed to render such a
+statement superfluous.
+
+On the ambiguous character sometimes attaching to reprisals as now
+practised, I may perhaps refer to an article in the _Law Quarterly
+Review_ for 1903, entitled "War Sub Modo."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 26 (1908).
+
+
+    The operations against Venezuela which were closed by the
+    protocol of February 13, 1903, had given rise to the
+    enunciation of the so-called "Drago doctrine," in a despatch,
+    addressed on December 29 of the preceding year, by the
+    Argentine Minister for Foreign Affairs to the Government of the
+    United States, which asserts that "public indebtedness cannot
+    justify armed intervention by a European Power, much less
+    material occupation by it of territory belonging to any
+    American nation." The reply of the United States declined to
+    carry the "Monroe doctrine" to this length, citing the passage
+    in President Roosevelt's message in which he says: "We do not
+    guarantee any State against punishment, if it misconducts
+    itself, provided such punishment does not take the form of the
+    acquisition of territory by any non-American Power."
+
+    It is, however, now provided by The Hague Convention, No. ii.
+    of 1907, ratified by Great Britain on November 27, 1909, that
+    "the contracting Powers have agreed not to have recourse to
+    armed force for the recovery of contractual debts, claimed from
+    the Government of a country by the Government of another
+    country, as being due to its subjects. This stipulation shall
+    have no application when the debtor State declines, or leaves
+    unanswered, an offer of arbitration, or, having accepted it,
+    renders impossible the conclusion of the terms of reference
+    (_compromis_), or, after the arbitration, fails to comply with
+    the arbitral decision."
+
+
+
+
+CHAPTER II
+
+STEPS TOWARDS A WRITTEN LAW OF WAR
+
+
+    A large body of written International Law, with reference to
+    the conduct of warfare, has been, in the course of the last
+    half-century, and, more especially, in quite recent years,
+    called into existence by means of General Conventions, or
+    Declarations, of which mention must frequently be made in the
+    following pages. Such are:--
+
+    (i.) With reference to war, whether on land or at sea: the
+    Declaration of St. Petersburg, of 1868, as to explosive
+    bullets; the three Hague Declarations of 1899 (of which the
+    first was repeated in 1907), as to projectiles from balloons,
+    projectiles spreading dangerous gases, and expanding bullets;
+    The Hague Convention, No. iii. of 1907 as to Declaration of
+    War; all ratified by Great Britain, except the Declaration of
+    St. Petersburg, which was thought to need no ratification.
+
+    (ii.) With reference only to war on land: the Geneva Convention
+    of 1906 (superseding that of 1864) as to the sick and wounded,
+    which was generally ratified, though by Great Britain only in
+    1911 (it was extended to maritime warfare by Conventions iii.
+    of 1899 and x. of 1907, both ratified by Great Britain, _cf.
+    infra_, Ch. VI. Section 10); the Hague Conventions of 1907, No.
+    iv. (superseding the Convention of 1899) as to the conduct of
+    warfare, and No. v. as to neutrals, of which only the former
+    has as yet been ratified by Great Britain.
+
+    (iii.) With reference only to war at sea: the Declaration of
+    Paris, of 1856, supposed apparently to need no ratification (to
+    which the United States is now the only important Power which
+    has not become a party), as to privateering, combination of
+    enemy and neutral property and blockades; The Hague Conventions
+    of 1907, No. vi. as to enemy merchant vessels at outbreak, No.
+    vii. as to conversion of merchantmen into warships, No. viii.
+    as to mines, No. ix. as to naval bombardments, No. x. as to the
+    sick and wounded, No. xi. as to captures, No. xii. as to an
+    International Prize Court, supplemented by the Convention of
+    1910, No. xiii. as to neutrals. It must be observed that, of
+    these Conventions, Great Britain has ratified only vi., vii.,
+    viii., ix., and x., the three last subject to reservations. The
+    Declaration of London of 1909, purporting to codify the laws of
+    naval warfare as to blockade, contraband, hostile assistance,
+    destruction of prizes, change of flag, enemy character, convoy,
+    resistance and compensation, and so to facilitate the working
+    of the proposed International Prize Court, if, and when, this
+    Court should come into existence, has failed to obtain
+    ratification, as will be hereafter explained.
+
+
+    Concurrently with the efforts which have thus been made to
+    ascertain the laws of war by general diplomatic agreement, the
+    way for such agreement has been prepared by the labours of the
+    Institut de Droit International, and by the issue by several
+    governments of instructions addressed to their respective
+    armies and navies.
+
+    The _Manuel des Lois de la Guerre sur Terre_, published by the
+    Institut in 1880, is the subject of the two letters which
+    immediately follow. Their insertion here, although the part in
+    them of the present writer is but small, may be justified by
+    the fact that they set out a correspondence which is at once
+    interesting (especially from its bearing upon the war of 1914)
+    and not readily elsewhere accessible.
+
+    The remaining letters in this chapter relate to the _Naval War
+    Code_, issued by the Government of the United States in 1900,
+    but withdrawn in 1904, though still expressing the views of
+    that Government, for reasons specified in a note to the British
+    _charge d'affaires_ at Washington and printed in _Parl. Papers,
+    Miscell._ No. 5 (1909), p. 8. The United States, it will be
+    remembered, were also the first Power to attempt a codification
+    of the laws of war on land, in their _Instructions for the
+    Government of Armies of the United States_, issued in 1863, and
+    reissued in 1898. Some information as to this and similar
+    bodies of national instructions may be found in the present
+    writer's _Studies in International Law_, 1898, p. 85. _Cf._ his
+    _Manual of Naval Prize Law_, issued by authority of the
+    Admiralty in 1888, his _Handbook of the Laws and Customs of War
+    on Land_, issued by authority to the British Army in 1904, and
+    his _The Laws of War on Land (written and unwritten)_, 1908.
+    The Institut de Droit International, which has been engaged for
+    some years upon the Law of War at Sea, by devoting the whole of
+    its session at Oxford, in 1913, to the discussion of the
+    subject, produced a _Manuel des Lois de la Guerre sur Mer_,
+    framed in accordance with the now-accepted view which sanctions
+    the capture of enemy private property at sea. It is to be
+    followed by a manual framed in accordance with the contrary
+    view. _Cf._ the letters upon the _Declaration of London_, in
+    Ch. VII. Section 10, _infra_.
+
+
+COUNT VON MOLTKE ON THE LAWS OF WARFARE
+
+Sir,--You may perhaps think that the accompanying letter, 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
+      published by the Institut de Droit International, and you hope
+      for my approval of it. In the first place I fully appreciate
+      the philanthropic effort to soften the evils which result from
+      war. Perpetual peace is a dream, and it is not even a
+      beautiful dream. War is an element in the order of the world
+      ordained by God. In it the noblest virtues of mankind are
+      developed; courage and the abnegation of self, faithfulness to
+      duty, and the spirit of sacrifice: the soldier gives his life.
+      Without war the world would stagnate, and lose itself in
+      materialism.
+
+      "I agree entirely with the proposition contained in the
+      introduction that a gradual softening of manners ought to be
+      reflected also in the mode of making war. But I go further,
+      and think the softening of manners can alone bring about this
+      result, which cannot be attained by a codification of the law
+      of war. Every law presupposes an authority to superintend and
+      direct its execution, and international conventions are
+      supported by no such authority. What neutral States would ever
+      take up arms for the sole reason that, two Powers being at
+      war, the 'laws of war' had been violated by one or both of the
+      belligerents? For offences of that sort there is no earthly
+      judge. Success can come only from the religious moral
+      education of individuals and from the feeling of honour and
+      sense of justice of commanders who enforce the law and conform
+      to it so far as the exceptional circumstances of war permit.
+
+      "This being so, it is necessary to recognise also that
+      increased humanity in the mode of making war has in reality
+      followed upon the gradual softening of manners. Only compare
+      the horrors of the Thirty Years' War with the struggles of
+      modern times.
+
+      "A great step has been made in our own day by the
+      establishment of compulsory military service, which introduces
+      the educated classes into armies. The brutal and violent
+      element is, of course, still there, but it is no longer alone,
+      as once it was. Again, Governments have two powerful means of
+      preventing the worst kind of excesses--strict discipline
+      maintained in time of peace, so that the soldier has become
+      habituated to it, and care on the part of the department which
+      provides for the subsistence of troops in the field. If that
+      care fails, discipline can only be imperfectly maintained. It
+      is impossible for the soldier who endures sufferings,
+      hardships, fatigues, who meets danger, to take only 'in
+      proportion to the resources of the country.' He must take
+      whatever is needful for his existence. We cannot ask him for
+      what is superhuman.
+
+      "The greatest kindness in war is to bring it to a speedy
+      conclusion. It should be allowable with that view to employ
+      all methods save those which are absolutely objectionable
+      ('dazu muessen alle nicht geradezu verwerfliche Mittel
+      freistehen'). I can by no means profess agreement with the
+      Declaration of St. Petersburg when it asserts that 'the
+      weakening of the military forces of the enemy' is the only
+      lawful procedure in war. No, you must attack all the resources
+      of the enemy's Government: its finances, its railways, its
+      stores, and even its prestige. Thus energetically, and yet
+      with a moderation previously unknown, was the late war against
+      France conducted. The issue of the campaign was decided in two
+      months, and the fighting did not become embittered till a
+      revolutionary Government, unfortunately for the country,
+      prolonged the war for four more months.
+
+      "I am glad to see that the manual, in clear and precise
+      articles, pays more attention to the necessities of war than
+      has been paid by previous attempts. But for Governments to
+      recognise these rules will not be enough to insure that they
+      shall be observed. It has long been a universally recognised
+      custom of warfare that a flag of truce must not be fired on,
+      and yet we have seen that rule violated on several occasions
+      during the late war.
+
+      "Never will an article learnt by rote persuade soldiers to see
+      a regular enemy (sections 2-4) in the unorganised population
+      which takes up arms 'spontaneously' (so of its own motion) and
+      puts them in danger of their life at every moment of day and
+      night. Certain requirements of the manual might be impossible
+      of realisation; for instance, the identification of the slain
+      after a great battle. Other requirements would be open to
+      criticism did not the intercalation of such words as 'if
+      circumstances permit,' 'if possible,' 'if it can be done,' 'if
+      necessary,' give them an elasticity but for which the bonds
+      they impose must be broken by inexorable reality.
+
+      "I am of opinion that in war, where everything must be
+      individual, the only articles which will prove efficacious are
+      those which are addressed specifically to commanders. Such are
+      the rules of the manual relating to the wounded, the sick, the
+      surgeons, and medical appliances. The general recognition of
+      these principles, and of those also which relate to prisoners,
+      would mark a distinct step of progress towards the goal
+      pursued with so honourable a persistency by the Institut de
+      Droit International.
+
+      "COUNT VON MOLTKE, Field-Marshal-General."
+
+
+PROFESSOR BLUNTSCHLI'S REPLY TO COUNT VON MOLTKE
+
+Sir,--In accordance with a wish expressed in several quarters, I send
+you, on the chance of your being able to make room for it, a translation
+of Professor Bluntschli'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).
+
+      "Christmas, 1880.
+
+      "I am very grateful for your Excellency's detailed and kind
+      statement of opinion as to the manual of the laws of war. This
+      statement invites serious reflections. I see in it a testimony
+      of the highest value, of historical importance; and I shall
+      communicate it forthwith to the members of the Institut de
+      Droit International.
+
+      "For the present I do not think I can better prove my
+      gratitude to your Excellency than by sketching the reasons
+      which have guided our members, and so indicating the nature of
+      the different views which prevail upon the subject.
+
+      "It is needless to say that the same facts present themselves
+      in a different light and give a different impression as they
+      are looked at from the military or the legal point of view.
+      The difference is diminished, but not removed, when an
+      illustrious general from his elevated position takes also into
+      consideration the great moral and political duties of States,
+      and when, on the other hand, the representatives of science of
+      international law set themselves to bring legal principles
+      into relation with military necessities.
+
+      "For the man of arms the interest of the safety and success of
+      the army will always take precedence of that of the
+      inoffensive population, while the jurist, convinced that law
+      is the safeguard of all, and especially for the weak against
+      the strong, will ever feel it a duty to secure for private
+      individuals in districts occupied by an enemy the
+      indispensable protection of law. There may be members of the
+      Institut who do not give up the hope that some day, thanks to
+      the progress of civilisation, humanity will succeed in
+      substituting an organised international justice for the wars
+      which now-a-days take place between sovereign States. But the
+      body of the Institut, as a whole, well knows that that hope
+      has no chance of being realised in our time, and limits its
+      action in this matter to two principal objects, the attainment
+      of which is possible:--
+
+      "1. To open and facilitate the settlement of trifling disputes
+      between nations by judicial methods, war being unquestionably
+      a method out of all proportion in such cases.
+
+      "2. To aid in elucidating and strengthening legal order even
+      in time of war.
+
+      "I acknowledge unreservedly that the customs of warfare have
+      improved since the establishment of standing armies, a
+      circumstance which has rendered possible a stricter
+      discipline, and has necessitated a greater care for the
+      provisionment of troops. I also acknowledge unreservedly that
+      the chief credit for this improvement is due to military
+      commanders. Brutal and barbarous pillage was prohibited by
+      generals before jurists were convinced of its illegality. If
+      in our own day a law recognised by the civilised world
+      forbids, in a general way, the soldier to make booty in
+      warfare on land, we have here a great advance in civilisation,
+      and the jurists have had their share in bringing it about.
+      Since compulsory service has turned standing armies into
+      national armies, war has also become national. Laws of war are
+      consequently more than ever important and necessary, since, in
+      the differences of culture and opinion which prevail between
+      individuals and classes, law is almost the only moral power
+      the force of which is acknowledged by all, and which binds all
+      together under common rules. This pleasing and cheering
+      circumstance is one which constantly meets us in the Institut
+      de Droit International. We see a general legal persuasion ever
+      in process of more and more distinct formation uniting all
+      civilised peoples. Men of nations readily disunited and
+      opposed--Germans and French, English and Russians, Spaniards
+      and Dutchmen, Italians and Austrians--are, as a rule, all of
+      one mind as to the principles of international law.
+
+      "This is what makes it possible to proclaim an international
+      law of war, approved by the legal conscience of all civilised
+      peoples; and when a principle is thus generally accepted, it
+      exerts an authority over minds and manners which curbs sensual
+      appetites and triumphs over barbarism. We are well aware of
+      the imperfect means of causing its decrees to be respected and
+      carried out which are at the disposal of the law of nations.
+      We know also that war, which moves nations so deeply, rouses
+      to exceptional activity the good qualities as well as the evil
+      instincts of human nature. It is for this very reason that the
+      jurist is impelled to present the legal principles, of the
+      need for which he is convinced, in a clear and precise form,
+      to the feeling of justice of the masses, and to the legal
+      conscience of those who guide them. He is persuaded that his
+      declaration will find a hearing in the conscience of those
+      whom it principally concerns, and a powerful echo in the
+      public opinion of all countries.
+
+      "The duty of seeing that international law is obeyed, and of
+      punishing violations of it, belongs, in the first instance, to
+      States, each within the limits of its own supremacy. The
+      administration of the law of war ought therefore to be
+      intrusted primarily to the State which wields the public power
+      in the place where an offence is committed. No State will
+      lightly, and without unpleasantness and danger, expose itself
+      to a just charge of having neglected its international duties;
+      it will not do so even when it knows that it runs no risk of
+      war on the part Of neutral States. Every State, even the most
+      powerful, will gain sensibly in honour with God and man if it
+      is found to be faithful and sincere in respect and obedience
+      to the law of nations.
+
+      "Should we be deceiving ourselves if we admitted that a belief
+      in the law of nations, as in a sacred and necessary authority,
+      ought to facilitate the enforcement of discipline in the Army
+      and help to prevent many faults and many harmful excesses? I,
+      for my part, am convinced that the error, which has been
+      handed down to us from antiquity, according to which all law
+      is suspended during war, and everything is allowable against
+      the enemy nation--that this abominable error can but increase
+      the unavoidable sufferings and evils of war without necessity,
+      and without utility from the point of view of that energetic
+      way of making war which I also think is the right way.
+
+      "With reference to several rules being stated with the
+      qualifications 'if possible,' 'according to circumstances,' we
+      look on this as a safety-valve, intended to preserve the
+      inflexible rule of law from giving way when men's minds are
+      overheated in a struggle against all sorts of dangers, and so
+      to insure the application of the rules in many other
+      instances. Sad experience teaches us that in every war there
+      are numerous violations of law which must unavoidably remain
+      unpunished, but this will not cause the jurist to abandon the
+      authoritative principle which has been violated. Quite the
+      reverse. If, for instance, a flag of truce has been fired
+      upon, in contravention of the law of nations, the jurist will
+      uphold and proclaim more strongly than ever the rule that a
+      flag of truce is inviolable.
+
+      "I trust that your Excellency will receive indulgently this
+      sincere statement of my views, and will regard it as an
+      expression of my gratitude, as well as of my high personal
+      esteem and of my respectful consideration.
+
+      "Dr. BLUNTSCHLI, Privy Councillor, Professor."
+
+
+THE UNITED STATES NAVAL WAR CODE.[1]
+
+Sir,--The "Naval War Code" of the United States, upon which an
+interesting article appeared in _The Times_ of Friday last, in so well
+deserving of attention in this country that I may perhaps be allowed to
+supplement the remarks of your Correspondent from the results of a
+somewhat minute examination of the code made shortly after its
+publication.
+
+One notes, in the first place, that the Government of the United States
+does not shirk responsibility. It puts the code into the hands of its
+officers "for the government of all persons attached to the naval
+service," and is doubtless prepared to stand by the rules contained in
+it, as being in accordance with international law. These rules deal
+boldly with even so disagreeable a topic as "Reprisals" (Art. 8), upon
+which the Brussels, and after it The Hague, Conference preferred to keep
+silence; and they take a definite line on many questions upon which
+there are wide differences of opinion. On most debatable points, the
+rules are in accordance with the views of this country--e.g. as to the
+right of search (Art. 22), as to the two-fold list of contraband (Arts.
+34-36), as to the moment at which the liability of a blockade-runner
+commences (Art. 44), and as to the capture of private property (Art.
+14), although the prohibition of such capture has long been favoured by
+the Executive of the United States, and was advocated by the American
+delegates at The Hague Conference. So also Arts. 34-36, by apparently
+taking for granted the correctness of the rulings of the Supreme Court
+in the Civil War cases of the _Springbok_ and the _Peterhoff_ with
+reference to what may be described as "continuous carriage," are in
+harmony with the views which Lord Salisbury recently had occasion to
+express as to the trade of the _Bundesrath_ and other German vessels
+with Lorenzo Marques. It must be observed, on the other hand, that Art.
+30 flatly contradicts the British rule as to convoy; while Art. 3 sets
+out The Hague Declaration as to projectiles dropped from balloons, to
+which this country is not a party. Art. 7 departs from received views by
+prohibiting altogether the use of false colours, and Art. 14 (doubtless
+in pursuance of the recent decision of the Supreme Court in the _Paquete
+Habana_), by affirming the absolute immunity of coast fishing vessels,
+as such, from capture.
+
+On novel questions the code is equally ready with a solution. It speaks
+with no uncertain voice on the treatment of mail steamers and mail-bags
+(Art. 20). On cable-cutting it adopts in Art. 5, as your Correspondent
+points out, the views which I ventured to maintain in your columns when
+the question was raised during the war of 1898.[2] I may also, by the
+way, claim the support of the code for the view taken by me, in a,
+correspondence also carried on in your columns during the naval
+manoeuvres of 1888, of the bombardment of open coast towns.[3] Art. 4
+sets out substantially the rules upon this subject for which I secured
+the _imprimatur_ of the Institut de Droit International in 1896.
+
+Secondly, the code is so well brought up to date as to incorporate
+(Arts. 21-29) the substance of The Hague Convention, ratified only in
+September last, for applying to maritime warfare the principles of the
+Convention of Geneva. Art. 10 of The Hague Convention has been
+reproduced in the code, in forgetfulness perhaps of the fact that that
+article has not been ratified.
+
+Thirdly, the code contains, very properly, some general provisions
+applicable equally to warfare upon land (Arts. 1, 3, 8, 12, 54).
+
+Fourthly, it is clearly expressed; and it is brief, consisting of only
+54 articles, occupying 22 pages.
+
+Fifthly, it deals with two very distinct topics--viz. the mode of
+conducting hostilities against the forces of the enemy, and the
+principles applicable to the making prize of merchant vessels, which as
+often as not may be the property of neutrals. These topics are by no
+means kept apart as they might be, articles on prize occurring
+unexpectedly in the section avowedly devoted to hostilities.
+
+It is worth considering whether something resembling the United States
+code would not be found useful in the British Navy. Our code might be
+better arranged than its predecessor, and would differ from it on
+certain questions, but should resemble it in clearness of expression, in
+brevity, and, above all things, in frank acceptance of responsibility.
+What naval men most want is definite guidance, in categorical language,
+upon those points of maritime international law upon which our
+Government has made up its own mind.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, April 8 (1901).
+
+NOTES
+ - 1: Withdrawn in 1904.
+ - 2: _Infra_, Ch. VII. Section 6.
+ - 3: _Infra_, Ch. VI. Section 14.
+
+
+A NAVAL WAR CODE
+
+Sir,--It is now nearly a year ago since I ventured to suggest in 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 Government of
+our own country would be prepared to endorse. For some remarks upon
+these questions in detail, and upon 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 our Government has made up its own mind."
+
+Before issuing such a code our authorities would have to decide--first,
+what are the classes of topics as to which it is desirable to give
+definite instructions to naval officers; and, secondly, with reference
+to topics, to be included in the instructions, as to which there exist
+international differences of view, what is, in each case, the view by
+which the British Government is prepared to stand.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, March 12 (1902).
+
+
+
+
+CHAPTER III
+
+TERMINOLOGY
+
+INTERNATIONAL TERMINOLOGY
+
+
+Sir,--Demands for the punishment of the ex-Kaiser have produced many
+"curiosities of literature," sometimes even over the signatures of men
+deservedly respected as authorities upon subjects which they have made
+their own; but _ne sutor supra crepidam_. A.B.,[1] for instance, wrote
+of the Kaiser as guilty of "an indictable offence." X.Y.[1] naturally
+protests against this misuse of terminology, which is, indeed, far more
+specifically erroneous than was the popular application, which you
+allowed me to criticise, of the terms "murder" and "piracy" to certain
+detestable acts perpetrated under Government authority.[2] He goes on to
+give an elaborate, though perhaps hardly necessary, explanation that
+breaches of that generally accepted body of rules to be followed by
+States _inter se_, which is known as "international law," can be
+enforced, in the last resort, only by hostile State action--a fact which
+he seems to suppose may entitle him to qualify the rules as "a mockery."
+
+X.Y.[1] then proceeds to give an account of the so-called "private
+international law" which surely needs revision for the benefit of any
+"man in the street" who may care to hear about it. X.Y.[1] defines it as
+"that part of the law of each separate country, as administered in its
+own Courts, which deals with international matters," and he enumerates
+as such matters "prize, contraband, blockade, the rights of
+ambassadors." In fact none of these matters are within the scope of
+"private international law," but are governed by "(public) international
+law," non-compliance with which by the Courts or subjects of any State
+is ground of complaint for the Government of any other State thereby
+wrongfully affected.
+
+The so-called "private international law," better described as "the
+conflict of laws," deals, in reality, with the rules which the Courts of
+each country apply, apart from any international obligation, to the
+solution of questions, usually between private litigants, in which doubt
+may arise as to the national law by which a given transaction ought to
+be governed--e.g. with reference to a contract made in France, but to
+be performed in England. There is here a "conflict," or "collision," of
+laws, and it is decided in accordance with rules adopted in the country
+in which the litigation occurs. These rules have no "international"
+validity, and the term is applied to them, merely in a popular way, to
+indicate that a Court may have in some cases to apply the law of a
+country other than that in which it is sitting. The unfortunate
+opposition of "public" to "private" international law has to answer for
+much confusion of thought. "International law," properly so called, has,
+of course, no need to be described as "public" to distinguish it from
+rules for solving the "conflicts" of private laws, which are
+"international" rules only in the sense that laws are sometimes applied
+in countries other than those in which they are primarily binding.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 19 (1918).
+
+NOTES
+ - 1: Writer's names are omitted as immaterial.
+ - 2: _Infra_, p. 70.
+
+
+    A full discussion of the topics dealt with in the last
+    paragraph of this letter may be found in my _Elements of
+    Jurisprudence_, edit. xii., pp. 409-425. A translation, by
+    Professor Nys, of the chapter in which those pages occur, as it
+    stood in edit. i., appeared in the _Revue de Droit
+    International_, t. xii., pp. 565, &c.
+
+
+
+
+CHAPTER IV
+
+CONVENTIONS AND LEGISLATION
+
+
+    Not a few International Conventions necessitate, before they
+    can be ratified, in order that their provisions may be carried
+    into effect, a certain amount of municipal legislation.
+
+    The letters which follow are concerned with some measures
+    introduced into the British Parliament for this purpose,
+    relating respectively to Naval Prize, to the Geneva Convention
+    of 1906, and to Conventions signed at The Hague Peace
+    Conference of 1907. It is with criticisms of Bills dealing with
+    the last-mentioned topic that this chapter is mainly occupied.
+
+
+GOVERNMENT BILLS AND INTERNATIONAL CONVENTIONS
+
+Sir,--You have already allowed me to point out how singularly
+ill-adapted is the resuscitated "Naval Prize Consolidation Bill"[1] to
+inform Parliament upon the highly technical points as to which a vote in
+favour of the Bill might be supposed to imply approval of the Government
+policy.
+
+Two other Bills have now been presented to the House of Commons in such
+a shape as to raise a doubt whether the wish of the Government, or of
+the draftsman, has been that the topics to which they relate shall be
+discussed _en pleine connaissance de cause_.
+
+The "Geneva Convention Bill"[2] is intended to facilitate the withdrawal
+of reservations subject to which the Convention was ratified by Great
+Britain. These reservations, upon which I insisted at Geneva, somewhat
+to the surprise of my French and Russian colleagues, relate to Arts. 23,
+27, and 28 of the Convention, one of the effects of which would have
+been to impose upon our Government an obligation to carry through,
+within five years, an Act of Parliament, making the employment of the
+Geneva emblem or name, except for military purposes, a criminal offence.
+Any one who knows something of the difficulties which beset legislation
+in this country, especially where commercial interests are involved,
+will see that the performance of such an undertaking might well have
+proved to be impossible. Though myself strongly in favour of placing, at
+the proper time and in an appropriate manner, legislative restrictions
+upon the general use of the emblem and name, I can hardly think the Bill
+now before Parliament to be well adapted for its purpose. The
+"Memorandum" prefixed to it ought surely to have stated, in plain
+language, the effect of the articles in question and the reasons which
+prevented them from being ratified together with the rest of the
+Convention. Instead of this, only one of those articles is cited, and
+few members of Parliament will be aware that an omitted paragraph of
+that article requires that the use of the emblem or name should be
+penalised by British law at the latest five years and six months from
+the date of the British ratification, which was deposited on April 16,
+1907--_i.e._, not later than October 16, 1912. This requirement is not
+satisfied by the Bill, which, even if passed in the present Session,
+would preserve intact till 1915 the rights of proprietors of
+trade-marks, while somewhat harshly rendering forthwith illegal the user
+of the emblem or name by all other persons.
+
+On the drafting of the "Second Peace Conference Conventions Bill," I
+will only remark that neither in the preamble nor elsewhere is any
+information vouchsafed as to the Conventions, out of thirteen drafted at
+The Hague, which are within the purview of the Bill. The reader is left
+to puzzle out for himself, supposing him to have the necessary materials
+at hand, that certain clauses of the Bill relate respectively to certain
+articles which must be looked for in the Conventions numbered I., V.,
+X., XII., and XIII.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+The Athenaeum, July 7 (1911).
+
+NOTES
+ - 1: This Bill, originally introduced in the House of Commons on June 23
+      1910, to enable the Government to ratify Hague Convention No xii.
+      of 1907 and the Declaration of London of 1909, was passed by that
+      House on December 7, 1911, but rejected on the 12th of the same
+      month, by 145 to 53 votes, in the House of Lords. Cf. _infra_,
+      pp. 191-196.
+ - 2: Cf. _infra_, p. 98. The Bill became an Act, 1 & 2 Geo. 5,
+      c. 20.
+
+    Questions were put and objections raised, in the sense of my
+    criticisms upon the drafting of the "Second Peace Conference
+    (Conventions) Bill" of 1911, upon several occasions in the
+    House of Commons, especially in August of that year, and on
+    December 16 the Bill was finally withdrawn. On the
+    re-introduction of the Bill in 1914, see the following letter.
+
+
+THE PRESENT BILL IN PARLIAMENT
+
+Sir,--In reintroducing their Bill "to make such amendments in the law as
+are necessary in order to enable certain conventions to be carried into
+effect," the Government has justified the criticisms which I addressed
+to you upon the way in which this measure was first presented to
+Parliament.
+
+I pointed out that neither in the preamble nor elsewhere was any
+information vouchsafed as to which of "the various conventions drawn up
+at the second Peace Conference" were within the purview of the Bill.
+Still less was any clue given to those articles, out of nearly 400
+contained in the 13 conventions in question, which are relevant to the
+proposed legislation. Members of Parliament sufficiently inquisitive not
+to be inclined to take the measure on trust, were left to puzzle out all
+this for themselves, but proved so restive under the treatment that the
+Bill, which was introduced in June, 1911, had to be withdrawn in the
+following December.
+
+As now resuscitated, the Bill is accompanied by a memorandum containing
+information which will enable the reader, even though no specialist,
+supposing him to have the necessary documents at hand, though probably
+only after several hours of labour, to ascertain what would be the
+result of passing it. Is it too much to hope that similar aids to the
+understanding of complicated legislative proposals will be
+systematically provided in the future?
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, April 13, 1914.
+
+
+    This Bill was introduced into the House of Commons on April 8,
+    1914, with a memorandum proposed in compliance with the
+    criticisms, which had led to the withdrawal of its predecessor
+    of 1911. _Cf. supra_, p. 37. It also was withdrawn, after
+    sustaining much renewed criticism, on July 17, 1914.
+
+
+THE FOREIGN ENLISTMENT BILL
+
+Sir,--It is doubtless the case, as stated in your leading article of
+to-day, that the Foreign Enlistment Bill has not received the attention
+which it deserves. It may perhaps be worth while to mention, as
+affording some explanation of this neglect, the fact that the memorandum
+prefixed to the Bill vaguely describes its main object as being to bring
+our law into conformity with "The Hague Conventions" at large. An
+ordinary member of Parliament would surely be grateful to be referred
+specifically to Convention No. xiii., Arts. 8, 17, and 25. He might well
+shrink from the labour of exploring the hundreds of articles contained
+in "The Hague Conventions" in order to ascertain which of the articles
+suggest some modification of the English statute.
+
+I would also venture to suggest that, in Article 1 (1) (b) of the Bill
+the words "or allows to depart," carried over from the old Act, should
+be omitted, as of doubtful interpretation. Would it not also be
+desirable to take this opportunity of severing the enlistment articles
+of the overgrown principal Act from those forbidding the despatch of
+ships fitted for hostilities and restricting the hospitality which may
+be extended to belligerent war ships?
+
+Upon quite a different subject, I should like to answer the question
+propounded in your article, as to the weight now to be given to the
+Declaration of London, by saying that no weight should be given to it,
+except as between Powers who may have ratified it or may have agreed to
+be temporarily bound by its provisions. One has of late been surprised
+to read of vessels carrying contraband being allowed to continue their
+voyage after surrendering the contraband goods, in accordance with a new
+rule suggested by the Declaration, whereas, under still existing
+international law, the duty of a captor is to bring in the vessel
+together with her cargo, in order that the rightfulness of the seizure
+may be investigated by a Prize Court.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, November 23 (1912).
+
+
+    The Bill of 1912 "to amend the Foreign Enlistment Act, 1870,"
+    passed the House of Lords with little comment, but was
+    withdrawn, after much adverse criticism, in the House of
+    Commons on February 12, 1913.
+
+
+
+
+CHAPTER V
+
+THE COMMENCEMENT OF WAR
+
+
+SECTION 1
+
+_Declaration of War_
+
+    The following letter bears upon the question, much discussed in
+    recent years, of the lawfulness of hostilities commenced
+    without anything amounting to a declaration of war. Although
+    several modern wars, e.g. the Franco-Prussian of 1870, and
+    the Russo-Turkish of 1877, were preceded by declaration, it was
+    hardly possible, in view of the practice of the last two
+    centuries, to maintain, that this was required by international
+    law, and it has never been alleged that any definite interval
+    need intervene between a declaration and the first act of
+    hostilities. On the destruction of the _Kowshing_, the present
+    writer may further refer to his _Studies in International Law_,
+    1898, p. 126, and to Professor Takahashi's _International Law
+    during the Chino-Japanese War_, 1899, pp. 24, 192. But see now
+    the note at the end of the "Letter" which follows.
+
+
+THE SINKING OF THE _KOWSHING_
+
+Sir,--The words of soberness and truth were spoken with reference to the
+sinking of the _Kowshing_ in the letter from Professor Westlake which
+you printed on Friday last. Ignorance dies hard, or, after the
+appearance of that letter and of your remarks upon it, one might have
+expected that leading articles would be less lavishly garnished with
+such phrases as "act of piracy," "war without declaration," "insult to
+the British flag," "condign punishment of the Japanese commander." But
+these flowers of speech continue to blossom; and, now that the facts of
+the case seem to be established beyond reasonable doubt by the telegrams
+of this morning, I should be glad to be allowed to state shortly what I
+believe will be the verdict of international law upon what has occurred.
+
+If the visiting, and eventual sinking, of the _Kowshing_ occurred in
+time of peace, or in time of war before she had notice that war had
+broken out, a gross outrage has taken place. But the facts are
+otherwise.
+
+In the first place, a state of war existed. It is trite knowledge, and
+has been over and over affirmed by Courts, both English and American,
+that a war may legally commence with a hostile act on one side, not
+preceded by declaration. How frequently this has occurred in practice
+may be seen from a glance at an historical statement prepared for the
+War Office by Colonel Maurice _a propos_ of the objections to a Channel
+tunnel. Whether or no hostilities had previously occurred upon the
+mainland, I hold that the acts of the Japanese commander in boarding the
+_Kowshing_ and threatening her with violence in case of disobedience to
+his orders were acts of war.
+
+In the second place, the _Kowshing_ had notice of the existence of a
+war, at any rate from the moment when she received the orders of the
+Japanese commander.
+
+The _Kowshing_, therefore, before the first torpedo was fired, was, and
+knew that she was, a neutral ship engaged in the transport service of a
+belligerent. (Her flying the British flag, whether as a _ruse de guerre_
+or otherwise, is wholly immaterial.) Her liabilities, as such ship, were
+twofold:--
+
+1. Regarded as an isolated vessel, she was liable to be stopped,
+visited, and taken in for adjudication by a Japanese Prize Court. If, as
+was the fact, it was practically impossible for a Japanese prize crew to
+be placed on board of her, the Japanese commander was within his rights,
+in using any amount of force necessary to compel her to obey his orders.
+
+2. As one of a fleet of transports and men-of-war engaged in carrying
+reinforcements to the Chinese troops on the mainland, the _Kowshing_ was
+clearly part of a hostile expedition, or one which might be treated as
+hostile, which the Japanese were entitled, by the use of all needful
+force, to prevent from reaching its destination.
+
+The force employed seems not to have been in excess of what might
+lawfully be used, either for the arrest of an enemy's neutral transport
+or for barring the progress of a hostile expedition. The rescued
+officers also having been set at liberty in due course, I am unable to
+see that any violation of the rights of neutrals has occurred. No
+apology is due to our Government, nor have the owners of the _Kowshing_,
+or the relatives of any of her European officers who may have been lost,
+any claim for compensation. I have said nothing about the violation by
+the Japanese of the usages of civilised warfare (not of the Geneva
+Convention, which has no bearing upon the question), which would be
+involved by their having fired upon the Chinese troops in the water; not
+only because the evidence upon this point is as yet insufficient, but
+also because the grievance, if established, would affect only the rights
+of the Belligerents _inter se_; not the rights of neutrals, with which
+alone this letter is concerned. I have also confined my observations to
+the legal aspects of the question, leaving to others to test the conduct
+of the Japanese commander by the rules of chivalrous dealing or of
+humanity.
+
+Your obedient servant,
+T. E. HOLLAND.
+Athenaeum Club, August 6 (1894)
+
+
+    The controversy caused by the sinking of the _Kowshing_ in 1894
+    was revived by the manner of the Japanese attack upon Port
+    Arthur, in 1904 (see Professor Takahashi's _International Law
+    applied to the Russo-Japanese War_, 1908, p. 1), and led to a
+    careful study of the subject by a committee of the Institut de
+    Droit International, resulting in the adoption by the Institut,
+    at its Ghent Meeting in 1906, of the following resolutions:--
+
+    (1) "It is in conformity with the requirements of International
+    law, to the loyalty which the nations owe to one another in
+    their, mutual relations, as well as to the general interests of
+    all States, that hostilities ought not to commence without
+    previous and unequivocal warning.
+
+    (2) "This warning may be given either in the shape of a
+    declaration of war pure and simple, or in the shape of an
+    ultimatum duly notified to the adversary by the State which
+    wishes to begin the war.
+
+    (3) "Hostilities must not commence until after the expiration
+    of a delay which would suffice to prevent the rule as to a
+    previous and unequivocal warning from being thought to be
+    evaded." See the _Annuaire de l'Institut_, t, xxi. p. 292.
+
+    In accordance with the principles underlying the first and
+    second of these resolutions, The Hague Convention, No. iii. of
+    1907 (ratified generally by Great Britain on November 27,
+    1909), has now laid down as a principle of International Law,
+    binding upon the contracting Powers, that--
+
+    (1) "Hostilities between them ought not to commence without a
+    warning previously given and unequivocal, in the form either of
+    a reasoned declaration of war, or of an ultimatum, with a
+    conditional declaration of war."
+
+    And the Convention goes on to provide that--
+
+    (2) "The state of war ought to be notified without delay to
+    neutral Powers, and shall be of no effect with reference to
+    them, until after a notification, which may be made even
+    telegraphically. Nevertheless, neutral Powers may not plead
+    absence of notification, if it has been shown beyond question
+    that they were in fact cognisant of the state of war." Any
+    reference to the need of an interval between declaration and
+    the first act of hostility (such as is contained in the third
+    of the resolutions of the Institut) was deliberately omitted
+    from the Convention, although a declaration immediately
+    followed by an attack would obviously be of little service to
+    the party attacked. (See the present writer's _Laws of War on
+    Land (written and unwritten)_, 1908, P. 18.)
+
+       *       *       *       *       *
+
+SECTION 2
+
+_The Immediate Effects of the Outbreak of War_
+
+_Enemy Residents_
+
+    Before any actual hostilities have taken place, each
+    belligerent acquires, _ipso facto_, certain new rights over
+    persons and property belonging to the other, which happen to be
+    at the time within its power, e.g. the right, much softened
+    in modern practice, and specifically dealt with in The Hague
+    Convention, No. vi. of 1907, of capturing enemy merchant
+    vessels so situated.
+
+    The following letter deals with the permissible treatment of
+    enemy persons so situated; and was suggested by a question
+    asked in the House of Commons on February 25, 1909, by Mr.
+    Arnold-Forster: viz. "What would be the _status_ of officers
+    and men of the regular Army of a hostile belligerent Power,
+    found within the limits of the United Kingdom after an act or
+    declaration of war; and would such persons be liable to be
+    treated as prisoners of war, or would they be despatched under
+    the protection of the Government to join the forces of the
+    enemy?" The general effect of the Attorney-General's reply may
+    be gathered from the quotations from it made in the letter.
+
+    The topic was again touched upon on March 3, in a question put
+    by Captain Faber, to which Mr. Haldane replied.
+
+
+FOREIGN SOLDIERS IN ENGLAND
+
+Sir,--The question raised last night by Mr. Arnold-Forster is one 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 France 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
+(1826), and Mr. Manning (1889) is explicit that the arrest in question
+is lawful, and that "the individuals are prisoners of war."
+
+Vattel, is it true (1758), ventures to lay down that--
+
+      "Le Souverain qui declare la guerre ne peut retenir les
+      sujets de 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 peaceably engaged foreign resident is
+now in all probability a trained soldier, and liable to be recalled to
+the flag of a possible enemy.
+
+There may, of course, be considerable practical difficulties in the way
+of ascertaining the nationality of any given foreigner, and whether he
+has completed, or evaded, the military training required by the laws of
+his country. It may also be a question of high policy whether resident
+enemies would not be a greater danger to this country if they were
+compelled to remain here, than if they were allowed, or compelled, to
+depart, possibly to return as invaders.
+
+I am only concerned to maintain that, as far as international 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).
+
+
+_Civil Disabilities of Alien Enemies_
+
+THE NAVAL PRIZE BILL
+
+CIVIL DISABILITIES OF ENEMY SUBJECTS
+
+Sir,--The Naval Prize Bill has sins enough of its own to answer for. The
+question dealt with under that heading in Mr. Arthur Cohen's letter of
+this morning has, however, nothing to do with naval matters, but arises
+under The Hague Convention of 1907 as to warfare on land, which was
+ratified by our Government two years ago; unfortunately without any
+reserve as to the extraordinary provision contained in Art. 28 (_h_) of
+that Convention.
+
+I lose not a moment in asking to be allowed to state that my view of the
+question is, and always has been, the reverse of that attributed to me
+by my friend Mr. Cohen. No less than three views are entertained as to
+the meaning of Art. 28 (_h_). (1) Continental writers, e.g., MM.
+Fauchille, Kohler, and Ullmann, with the German Whitebook, assert, in
+the most unqualified manner, that Great Britain and the United States
+have under this clause abandoned their long-established doctrine as to
+the suspension of the private rights and remedies of enemy subjects; (2)
+Our own Government, in a non-confidential reply to an inquiry from
+Professor Oppenheim, asserts categorically, as does General Davis in the
+United States, that the clause relates only to the action of a commander
+in a territory of which he is in occupation; while (3) most English and
+American writers look upon the meaning of the clause as doubtful. If Mr.
+Cohen will look at p. 44 of my _Laws of War on Land_, 1909, he will find
+that I carry this sceptical attitude so far as to include the clause in
+question in brackets as "apocryphal," with the comment that "it can
+hardly, till its policy has been seriously discussed, be treated as a
+rule of international law." I have accordingly maintained, in
+correspondence with my Continental colleagues, that the clause should be
+treated as "non avenue," as "un non sens," on the ground that, while,
+torn from their context, its words would seem ("ont faux air") to bear
+the Continental interpretation, its position as part of a "Reglement,"
+in conformity with which the Powers are to "issue instructions to their
+armed land forces," conclusively negatives this interpretation. I will
+not to-day trouble you in detail with the very curious history of the
+clause; which, as originally proposed by Germany, merely prohibited (a
+commander?) from announcing that the private claims ("reclamations") of
+enemy subjects would be unenforceable. It is astonishing that no
+objection was raised by the British or by the American delegates to the
+subsequent transformation of this innocent clause into something very
+different, first by the insertion of the words "en justice," and later
+by the substitution of "droits et actions" for "reclamations." The
+quiescence of the delegates is the more surprising, as, at the first
+meeting of the sub-committee, General de Gundel, in the plainest
+language, foreshadowed what was aimed at by the clause.
+
+Art. 23 (_h_) is, I submit, incapable of rational interpretation and
+should be so treated by the Powers. If interpreted at all, its sense
+must be taken to be that which is now, somewhat tardily, put upon it by
+our own Government.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, November 6 (1911).
+
+
+    I may perhaps refer here to my _Laws of War on Land_ (1908), p.
+    44, where I describe as "apocryphal" Art. 23 (_h_) of the Hague
+    Convention No. iv. of 1907; and to my paper upon that article
+    in the _Law Quarterly Review_ for 1912, pp. 94-98, reproduced
+    in the _Revue de Droit International_, the _Revue Generale de
+    Droit International Public_, and the _Zeitschrift fuer
+    Voelkerrecht und Bundesstaatsrecht_, for the same year.
+
+    The view there maintained was affirmed by the Court of Appeal
+    in _Porter_ v. _Freudenberg_, [1915] 1 K.B. 857, _at_ p. 874.
+
+
+_Enemy Ships in Port_
+
+ENEMY SHIPS IN PORT
+
+Sir,--The action taken by the United States in seizing German merchant
+ships lying in their ports will raise several questions of interest. It
+is, however, important at once to realise that, apart from anything
+which may be contained in old treaties with Prussia, their hands are
+entirely free in the matter. The indulgences so often granted: to such
+ships during the last 60 years, notably by themselves in the Spanish War
+of 1898, under endlessly varying conditions, have been admittedly acts
+of grace, required by no established rule of international law.
+
+The United States are also unaffected by The Hague Convention No. vi, to
+which they are not a party. It is therefore superfluous to inquire what
+construction they would have been bound to put upon the ambiguous
+language of Section 1 of the Convention, which proclaims that "when a
+merchant ship of one of the belligerent Powers is, at the commencement
+of hostilities, in an enemy port, _it is desirable_ that it should be
+allowed to depart freely," &c. It might perhaps be argued that our own
+Prize Court might well have refrained from treating this section as if
+it were obligatory, and have founded its decisions rather upon
+international law, as supplemented by a non-obligatory custom. Be this
+as it may, it would seem that the policy of the United States has to
+some extent felt the influence of Convention vi. in announcing that
+seizure will, provisionally, only amount to requisitioning.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, April 7 (1917).
+
+
+
+
+CHAPTER VI
+
+THE CONDUCT OF WARFARE
+
+
+    The three following sections relate to the waters in which
+    hostile operations may take place. Section 1 probably calls for
+    no explanatory remark. With reference to Section 2, dealing
+    with certain spaces of water more or less closed to belligerent
+    action, it may be desirable to state that the letters as to the
+    Suez Canal were written to obviate some misconceptions as to
+    the purport of the Convention of October 29, 1888, and to
+    maintain that it was not, at the time of writing, operative, so
+    far as Great Britain was concerned.
+
+    This state of things was, however, altered by the Anglo-French
+    Convention of April 8, 1804, which, concerned principally with
+    the settlement of the Egyptian and Newfoundland questions,
+    provides, in Art. 6, that "In order to assure the free passage
+    of the Suez Canal, the Government of His Britannic Majesty
+    declares that it adheres to the stipulations of the Treaty
+    concluded on the 29th October 1888; and to their becoming
+    operative. The free passage of the canal being thus guaranteed,
+    the execution of the last phrase of paragraph 1, and that of
+    paragraph 2 of the 8th article of this Treaty, will remain
+    suspended."
+
+    The last phrase of paragraph 1 of Art. 8 relates to annual
+    meetings of the agents of the signatory Powers.
+
+    Paragraph 2 of this Article relates to the presidency of a
+    special commissioner of the Ottoman Government over those
+    meetings.
+
+    On the whole question see _Parl. Papers, Egypt_, No. 1 (1888),
+    _Commercial_, No. 2 (1889), and the present writer's _Studies
+    in International Law_, pp. 275-293. Note must, of course, now
+    be taken of the constitutional changes resulting from the war
+    of 1914.
+
+    The provisions of the Treaty of 1888, with reference to the
+    free navigation of the Suez Canal, have, of course, acquired a
+    new importance from their adoption into the Hay-Pauncefote
+    Treaty of November 18, 1901, as to the Panama Canal, and from
+    the divergent views taken of their interpretation, as so
+    adopted.
+
+
+SECTION 1
+
+_On the Open Sea_
+
+
+"THE FREEDOM OF THE SEAS"?
+
+Sir,--Your remarks upon "the wide and ambiguous suggestions" contained
+in the Pope's Peace Note are especially apposite to his desire for "the
+freedom of the seas." It is regrettable that his Holiness does not
+explain the meaning which he attaches to this phrase, in itself
+unmeaning, so dear to the Germans. He is doubtless well aware that the
+sea is already free enough, except to pirates, in time of peace, and
+must be presumed to refer to time of war, and specifically to propose
+the prohibition of any such interference with neutral shipping as is now
+legalised by the rules relating to visit and search, contraband and
+blockade.
+
+If this be indeed the Pope's meaning, his aspirations are now less
+likely than ever to be realised. It is curious to reflect that the
+proposal actually made by our own Government at The Hague Conference of
+1907, apparently under the impression that Great Britain would be always
+neutral, for protecting the carriage of contraband was most fortunately
+defeated by the opposition of the other great naval Powers, of which
+Germany was one.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, August 16 (1917).
+
+       *       *       *       *       *
+
+SECTION 2
+
+_In Other Waters_
+
+
+THE SUEZ CANAL
+
+Sir,--Your correspondent "M.B." has done good service by calling
+attention to the misleading nature of the often-repeated statement that
+the Suez Canal has been "neutralised" by the Convention of 1888. Perhaps
+you will allow me more explicitly to show why, and how far, this
+statement is misleading.
+
+In the first place, this Convention is inoperative. It is so in
+consequence of the following reservation made by Lord Salisbury in the
+course of the negotiations which resulted in the signature of the
+Convention:--
+
+      "Les Delegues de la Grande-Bretagne ... pensent qu'il est de
+      leur devoir de formuler une reserve generale quant a
+      l'application de ces dispositions en tant qu'elles ne
+      seraient pas compatibles avec l'etat transitoire et
+      exceptionnel ou se trouve actuellement l'Egypte, et qu'elles
+      pourraient entraver la liberte d'action de leur Gouvernement
+      pendant la periode de l'occupation de l'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 the strait is artificial may, I think, be
+dismissed from consideration, for reasons stated by me in the
+_Fortnightly Review_ for July, 1883. The characteristics of such a
+strait are unfortunately by no means well ascertained, but may perhaps
+be summarised as follows. In time of peace, the territorial Power is
+bound by modern usage to allow "innocent passage," under reasonable
+conditions as to tolls and the like, not only to the merchant vessels,
+but also, probably, to the ships of war, of all nations. In time of war,
+the territorial Power, if belligerent, may of course carry on, and is
+exposed to, hostilities in the strait as elsewhere, and the entrances to
+the strait are liable to a blockade. Should the territorial Power be
+neutral, the strait would be closed to hostilities, though it would
+probably be open to the "innocent passage" of belligerent ships of war.
+
+It may be worth while to enquire how far this state of things would be
+affected by the Convention of 1888, were it to come into operation. The
+_status_ of the canal in time of peace would be substantially untouched,
+save by the prohibition to the territorial Power to fortify its banks.
+Even with reference to time of war, several of the articles of the
+Convention merely reaffirm well-understood rules applicable to all
+neutral waters--e.g. that no hostilities may take place therein. The
+innovations proposed by the Convention are mainly contained, as "M.B."
+points out, in the first article, which deals with the position of the
+canal when the territorial Power is belligerent. In such a case, subject
+to certain exceptions, with a view to the defence of the country, the
+ships of that Power are neither to attack nor to be attacked in the
+canal, or within three miles of its ports of access, nor are the
+entrances of the canal to be blockaded. This is "neutralisation" only in
+a limited and vague sense of the term, the employment of which was
+indeed carefully avoided not only in the Convention itself but also in
+the diplomatic discussions which preceded it.
+
+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 neutralisation 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 understood, by laying down that the waters and ports of
+that sea are perpetually closed to the ships of war of all nations. It
+is, however, well known that such a state of things as is described in
+the latter part of the article is so far from being involved in the
+definition of "neutralisation" as not even to be an ordinary
+accompaniment of that process. Belgium is unquestionably "neutralised,"
+but no one supposes that the appearance in its waters and ports of ships
+of war is therefore prohibited. The fact is that the term "neutralisee"
+was employed in the Treaty of Paris as a euphemism, intended to make
+less unpalatable to Russia a restriction upon her sovereign rights which
+she took the earliest opportunity of repudiating.
+
+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 texually repeated by Lord Salisbury 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 their willingness to agree to it," must, it
+can hardly be doubted, share the view that the convention is operative
+only _sub modo_.
+
+3. Supposing the convention to have become operative, and supposing the
+territorial Power to be neutral in a war between States which we may
+call A and B, the convention would certainly entitle A to claim
+unmolested passage for its ships of war on their way to attack the
+forces of B in the Eastern seas.
+
+4. The language of the convention, being as it, is the expression of a
+compromise involving much re-drafting, is by no means always as clear as
+it might be. But when Mr. Gibson Bowles is again within reach of
+Blue-books he will probably agree with me that the treaty need not, as
+he suggests, be "read as obliging the territorial Power, even when
+itself a belligerent, to allow its enemy to use the canal freely for the
+passage of that enemy's men-of-war." The wide language of Art. 1 (which
+is substantially in accordance with Mr. Gibson Bowles's reminiscence of
+it) must be read in connection with Art. 10, and without forgetting
+that, in discussing the effect of an attack upon the canal by one of the
+parties to the convention, Lord Salisbury wrote in 1887, "on the whole
+it appears to be the sounder view that, in such a case, the treaty,
+being broken by one of its signatories, would lose its force in all
+respects."
+
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, October 9 (1898).
+
+
+THE CLOSING OF THE DARDANELLES
+
+Sir,--Now that the pressure upon your space due to the clash of opposing
+views of domestic politics is likely to be for the moment relaxed, you
+may, perhaps, not think it inopportune that attention should be recalled
+to a question of permanent international interest raised by the recent
+action of the Turkish Government in closing the Dardanelles to even
+commercial traffic.
+
+I cordially agree, as would, I suppose, most people, with your leading
+article of some weeks since in deprecating any crude application to the
+case of the Dardanelles and Bosporus of _dicta_ with reference to
+freedom of passage through straits connecting two open seas. It would,
+indeed, be straining what may be taken to be a general principle of
+international law to say that Turkey is by it prohibited from protecting
+her threatened capital by temporarily closing the Straits.
+
+A good deal of vague reference has, however, been made in the
+discussions which have taken place upon the subject to "Treaties" under
+which it seems to be thought that trading ships enjoy, in all
+circumstances, rights of free navigation through the Straits in question
+which they would not have possessed otherwise. I should like, therefore,
+with your permission, to state what seem to be the relevant Treaty
+provisions upon the subject, whether between the Powers constituting the
+European Concert collectively, or between Russia and Turkey as
+individual Powers.
+
+As to what may be described as the "European" Treaties, it is necessary,
+once for all, to put aside as irrelevant Art. 10 of the Treaty of Paris
+of 1856 and its annexed Convention; Art. 2 of the Treaty of London of
+1871; and the confirmatory Art. 63 of the Treaty of Berlin of 1878.
+These articles have exclusive reference to the "ancient rule of the
+Ottoman Empire," under which, so long as the Porte is at peace, no
+foreign ships of war are to be admitted into the Straits. There are,
+however, two articles, still in force, of these "European" Treaties
+which may seem to bear upon the present inquiry. By Art. 12 of the
+Treaty of Paris:--
+
+      "Free from any impediment, the commerce in the ports and
+      waters of the Black Sea shall be subject only to regulations
+      of health, Customs, and police, framed in a spirit favourable
+      to the development of commercial transactions."
+
+And by Art. 3 of the Treaty of London:--
+
+      "The Black Sea remains open, as heretofore, to the mercantile
+      marine of all nations."
+
+It is submitted that these provisions relate solely to commerce carried
+on by vessels already within the Black Sea, and contain no covenant for
+an unrestricted right of access to that sea.
+
+As between Russia and Turkey individually, Treaties which are still in
+force purport, no doubt, to give to the former a stronger claim to free
+passage through the Straits for her mercantile marine than that which
+can be supposed to be enjoyed by other Powers. By Art. 7, for instance,
+of the Treaty of Adrianople of 1829, the Porte recognises and declares
+the passage of the "Canal de Constantinople," and of the Strait of the
+Dardanelles, to be entirely free and open to Russian merchant vessels;
+and goes on to extend the same privilege to the merchant vessels of all
+Powers at peace with Turkey. Art. 24 of the Treaty of San Stefano is
+still more explicit, providing that "the Bosporus and Dardanelles shall
+remain open in time of war as in time of peace to the merchant vessels
+of neutral States arriving from or bound to Russian ports." The rest of
+the article contains a promise by the Porte never henceforth to
+establish a "fictitious blockade, at variance with the spirit of the
+Declaration of Paris"; meaning thereby such a blockade of ports on the
+Black Sea as had been enforced by Turkish ships of war stationed at the
+entrance to the Bosporus.
+
+It may well be doubted whether these articles, containing concessions
+extorted from Turkey at the end of wars in which she had been defeated,
+ought not, like so many other provisions of the Treaty of San Stefano,
+to have been abrogated by the Treaty of Berlin. They are of such a
+character that, in the struggle for existence, Turkey can hardly be
+blamed for disregarding them. As was said long ago, "Ius commerciorum
+aequum est, at hoc acquius, tuendae salutis." The imperious necessities
+of self-preservation were recognised both by Lord Morley and by Lord
+Lansdowne in the debate which took place on May 3, although Lord
+Lansdowne intimated that
+
+      "the real question, which will have to be considered sooner
+      or later, is the extent to which a belligerent Power,
+      controlling narrow waters which form a great trade avenue for
+      the commerce of the world, is justified in entirely closing
+      such an avenue in order to facilitate the hostile operations
+      in which the Power finds itself involved."
+
+It is, I think, clear that the solution of a question at once so novel
+and so delicate must be undertaken, not by any one Power, but by the
+Concert of Europe, or of the civilised world, which must devise some
+guarantee for the safety of any littoral Power which would be called
+upon in the general interest to restrict its measures of self-defence.
+In the meantime, we may surely say that the case is provided for neither
+by established international law nor by "European" Treaties; and,
+further, that the Treaties between Russia and Turkey, which do provide
+for it, are not such as it is desirable to perpetuate.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, May 22 (1912).
+
+
+THE CLOSING OF THE DARDANELLES
+
+Sir,--I am reminded by Mr. Lucien Wolf's courteous letter that I ought
+probably to have mentioned, in alluding to the Treaty of San Stefano,
+that it is doubtful whether Art. 24 of that Treaty is in force. It was
+certainly left untouched by the Treaty of Berlin, but the language of
+the relevant article (3) of the definitive Treaty of Peace of 1879 is
+somewhat obscure, nor is much light to be gained upon the point from the
+protocol of the 14th _seance_ of the Congress of Berlin, at which Art.
+24 came up for discussion.
+
+The earlier Treaties, however, which were revived beyond question by
+Art. 10 of the Treaty of 1879, grant to Russian merchant vessels full
+rights of passage between the Black Sea and the AEgean, exercisable, for
+all that appears, in time of war as well as of peace, although these
+Treaties contain no express words to that effect. Such rights, I would
+again urge, if enjoyed by one Power, should be enjoyed by all; upon
+terms to be settled, not by any pair of Powers but by the Powers
+collectively.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, June 5 (1912).
+
+       *       *       *       *       *
+
+SECTION 3
+
+_In a Special Danger Zone?_
+
+
+THE GERMAN THREAT
+
+Sir,--It may perhaps be desirable, for the benefit of the general
+reader, to distinguish clearly between the two topics dealt with in the
+recent announcement of German naval policy.
+
+1. We find in it what may, at first sight, suggest the establishment of
+a gigantic "paper blockade," such as was proclaimed in the Berlin Decree
+of 1806, stating that "Les iles Britanniques sont declarees en etat de
+blocus." But in the new decree the term "blockade" does not occur, nor
+is there any indication of an intention to comply with the prescriptions
+of the Declaration of Paris of 1856 as to the mode in which such an
+operation must be conducted. What we really find in the announcement is
+the specification of certain large spaces of water, including the whole
+of the British Channel, within which German ships will endeavour to
+perpetrate the atrocities about to be mentioned.
+
+2. These promised, and already perpetrated, atrocities consist in the
+destruction of merchant shipping without any of those decent preliminary
+steps, for the protection of human life and neutral property, which are
+insisted on by long established rules of international law. Under these
+rules, the exercise of violence against a merchant vessel is
+permissible, in the first instance, only in case of her attempting by
+resistance or flight to frustrate the right of visit which belongs to
+every belligerent cruiser. Should she obey the cruiser's summons to
+stop, and allow its officers to come on board, they will satisfy
+themselves, by examination of her papers, and, if necessary, by further
+search, of the nationality of ship and cargo, of the destination of
+each, and of the character of the latter. They will then decide whether
+or no they should make prize of the ship, and in some cases may feel
+justified in sending a prize to the bottom, instead of taking her into
+port. Before doing so it is their bounden duty to preserve the ship
+papers, and, what is far more important, to provide for the safety of
+all on board.
+
+This procedure seems to have been followed, more or less, by the
+submarines which sank the _Durward_ in the North Sea, and several small
+vessels near the Mersey, but is obviously possible to such craft only
+under very exceptional circumstances. It was scandalously not followed
+in the cases of the _Tokomaru_, the _Ikaria_, and the hospital ship (!)
+_Asturias_, against which a submarine fired torpedoes, off Havre,
+without warning or inquiry, and, of course, regardless of the fate of
+those on board. The threat that similar methods of attack will be
+systematically employed, on a large scale, on and after the 18th inst.,
+naturally excites as much indignation among neutrals as among the Allies
+of the Entente.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, February 12 (1915).
+
+       *       *       *       *       *
+
+SECTION 4
+
+_Aerial Warfare_
+
+    It may be desirable to supplement what is said in the following
+    letters by mentioning that the Declaration of 1899 (to remain
+    in force for five years) was largely ratified, though not by
+    Great Britain; that of 1907 (to remain in force till the
+    termination of the third Peace Conference) was ratified by
+    Great Britain and by most of the other great Powers in 1909,
+    not, however, by Germany or Austria; that aerial navigation is
+    regulated by the Acts, I & 2 Geo. 5, c. 4, and 2 & 3 Geo. 5, c.
+    22; and that an agreement upon the subject was entered into
+    between France and Germany, on July 26, 1913, by exchange of
+    notes, "en attendant la conclusion d'une convention sur cette
+    matiere entre un plus grand nombre d'etats" (the international
+    Conference held at Paris in 1910 had failed to agree upon the
+    terms of such a Convention); and that Art. 25 of The Hague
+    Convention of 1907, No. iv., was ratified by Great Britain, and
+    generally.
+
+
+THE DEBATE ON AERONAUTICS
+
+Sir,--It is not to be wondered at that the Chairman of 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," Art. 23, which specifically prohibits
+certain "means of injuring the enemy," makes no mention of aerial
+methods; but Art. 25, which prohibits "the bombardment of towns,
+villages, habitations, or buildings, which are not defended," was
+strengthened, when the _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.
+
+The Hague Convention No. ix. of 1907, also not yet generally ratified,
+purports to close a long controversy, in accordance with the view which
+you allowed me to advocate, with reference to the naval manoeuvres of
+1888, by prohibiting the "naval bombardment of ports, towns, villages,
+habitations, or buildings, which are not defended." The words "by any
+means whatever" have not been here inserted, one would incline to think
+by inadvertence, having regard to what passed in Committee, and to the
+recital of the Convention, which sets out the propriety of extending to
+naval bombardments the principles of the _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
+Hague Declarations of 1899, by which the Powers agreed to prohibit, for
+five years, "the throwing of projectiles and explosives from balloons,
+or by other analogous new methods." The Declaration was signed and
+ratified by almost all the Powers concerned; not, however, by Great
+Britain.
+
+At The Hague Conference of 1907, when the Belgian delegates proposed
+that this Declaration, which had expired by efflux of time, should be
+renewed, some curious changes of opinion were found to have occurred.
+Twenty-nine Powers, of which Great Britain was one, voted for renewal,
+but eight Powers, including Germany, Spain, France, and Russia, were
+opposed to it, while seven Powers, one of which was Japan, abstained
+from voting. The Japanese delegation had previously intimated that, "in
+view of the absence of unanimity on the part of the great military
+Powers, there seemed to be no great use in binding their country as
+against certain Powers, while, as against the rest, it would still be
+necessary to study and bring to perfection 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).
+
+
+THE AERIAL NAVIGATION ACT
+
+PRACTICAL DIFFICULTIES
+
+Sir,--The haste with which Colonel Seely's Bill, authorising resort to
+extreme measures for the prevention of aerial trespass under suspicious
+circumstances, has been passed through all its stages, was amply
+justified by the urgent need for such legislation, which Russia seems to
+have been the first to recognise. The task of those responsible for
+framing regulations for the working of the new Act will be no easy one.
+They will be brought face to face with practical difficulties, such as
+led to the adjournment of the Paris Conference of 1910.
+
+In the meantime, it may interest your readers to have some clue to what
+has taken place, with reference to the more theoretical aspects of the
+questions involved, in so competent and representative a body as the
+Institut de Droit International. The Institut has had the topic under
+consideration ever since 1900, more especially at its sessions for the
+years 1902, 1906, 1910, and 1911. In the volumes of its "Annuaire" for
+those years will be found not only the text of the resolutions adopted
+on each occasion, together with a summary account of the debates which
+preceded their adoption, but also, fully set out, the material which had
+been previously circulated for the information of members, in the shape
+of reports and counter-reports from inter-sessional committees, draft
+resolutions, and such critical observations upon these documents as had
+been received by the secretary. The special committee upon the subject,
+of which M. Fauchille is _Rapporteur_, is still sitting, and the topic
+will doubtless be further debated at the session of the Institut, which
+will this year be held at Oxford. No success has attended efforts to
+pass resolutions in favour of any interference with the employment of
+_aeronefs_ in time of war, such as was proposed by The (now discredited)
+Hague Declaration, prohibiting the throwing of projectiles and
+explosives from airships. With reference to the use of these machines in
+time of peace, the debates have all along revealed a fundamental
+divergence of opinion between the majority of the Institut and a
+minority, comprising those English members who have made known their
+views. Both parties are agreed that aerial navigation must submit to
+some restrictions, but the majority, starting from the Roman law dictum,
+"Naturali iure omnium communia sunt _aer_, aqua profluens, et mare,"
+would always presume in favour of freedom of passage. The minority, on
+the other hand, citing sometimes the old English saying, "Cuius est
+solum eius est usque ad coelum," hold that the presumption must be in
+favour of sovereignty and ownership as applicable to superimposed air
+space.
+
+It is hardly necessary to observe that neither of the maxims just
+mentioned was formulated with reference to problems which have only
+presented themselves within the last few years. The Romans, in the
+passage quoted, were thinking not of aerial space, but of the element
+which fills it. The old English lawyers were preoccupied with questions
+as to projecting roofs and overhanging boughs of trees. The problems now
+raised are admittedly incapable of solution _a priori_, but the
+difference between the two schools of thinkers is instructive, as
+bearing upon the extent to which those who belong to one or the other
+school would incline towards measures of precaution against abuses of
+the novel art. This difference was well summed up at one of our meetings
+by Professor Westlake as follows: "Conservation et passage, comment
+combiner ces deux droits? Lequel des deux est la regle? Lequel
+l'exception? Pour le Rapporteur (M. Fauchille) c'est le droit de passage
+qui prime. Pour moi c'est le droit de conservation."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, February 15 (1913).
+
+
+SOVEREIGNTY OVER THE AIR
+
+Sir,--Mr. Arthur Cohen has done good service by explaining that Great
+Britain has practically asserted the right of a State to absolute
+control of the airspace vertically above its territory. I may, however,
+perhaps be permitted to remark that he seems to have been misinformed
+when he states that the Institute of International Law has arrived at no
+decision upon the subject. The facts are as follows: The problems
+presented by the new art of aerostation have been under the
+consideration of the Institute since 1900, producing a large literature
+of reports, counter-reports, observations, and draft rules, to debates
+upon which no fewer than four sittings were devoted at the Madrid
+meeting in 1911. Wide differences of opinion then disclosed themselves
+as to territorial rights over the air, the radical opposition being
+between those members who, with M. Fauchille, the Reporter of the
+Committee, would presume in favour of freedom of aerial navigation,
+subject, as they would admit, to some measures of territorial
+precaution, and those who, like the present writer ("il se proclame
+oppose au principe de la liberte de la navigation aerienne, et s'en
+tiendrait[A] plutot au principe _cuius est solum, huius est usque ad
+coelum_, en y apportant au besoin quelques restrictions," "Annuaire," p.
+821), would subject all aerial access to the discretion of the
+territorial Power.
+
+The discussion took place upon certain _bases_, and No. 3 of these was
+ultimately adopted, though only by 21 against 10 votes, to the following
+effect: "La circulation aerienne internationale est libre, sauf le droit
+pour les etats sous-jacents de prendre certaines mesures a determiner,
+en vue de leur securite et de celle des personnes et des biens de leur
+territoire."
+
+The Institut then proceeded to deal with _bases_ relating to a time of
+war, but was unable to make much progress with them in the time
+available. The debate upon the "Regime juridique des aerostats" was not
+resumed at Christiania in 1911, nor is it likely to be at Oxford "in the
+autumn of the present year," as Mr. Cohen has been led to suppose. Other
+arrangements were found to be necessary, at a meeting which took place a
+week ago between myself and the other members of our _bureau_.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, May 30 (1913).
+
+
+ATTACK FROM THE AIR
+
+THE ENFORCEMENT OF INTERNATIONAL LAW
+
+Sir,--In his interesting and important address at the Royal United
+Service Institution, Colonel Jackson inquired: "Can any student of
+international law tell us definitely that such a thing as aerial attack
+on London is outside the rules; and, further, that there exists an
+authority by which the rules can be enforced?" As one of the students to
+whom the Colonel appeals I should be glad to be allowed to reply to the
+first of his questions.
+
+The "Geneva Convention" mentioned in the address has, of course, no
+bearing upon aerial dangers. The answer to the question is contained in
+the, now generally ratified, Hague Convention No. iv. of 1907. Art. 25
+of the regulations annexed to this Convention runs as follows:
+
+      "It is forbidden to attack or to bombard _by any means
+      whatever (par quelque moyen que ce soit)_ towns, villages,
+      habitations, or buildings which are not defended."
+
+It clearly appears from the "Actes de la Conference," e.g. _T._ i.,
+pp. 106, 109, that the words which I have italicised were inserted in
+the article, deliberately and after considerable discussion, in order to
+render illegal any attack from the air upon undefended localities; among
+which I conceive that London would unquestionably be included.
+
+I cannot venture to ask the hospitality of your columns for an adequate
+discussion of the gallant officer's second question, as to the binding
+force attributable to international law. Upon this I may, however,
+perhaps venture to refer him to some brief remarks, addressed to you a
+good many years ago, and now to be found at pp. 101 and 105 of the new
+edition of my "Letters to _The Times_ upon War and Neutrality
+(1881-1918)."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, April 24 (1914).
+
+
+ATTACK FROM THE AIR
+
+THE RULES OF INTERNATIONAL LAW
+
+Sir,--In reply to Colonel Jackson's inquiry as to any rule of
+international law bearing upon aerial attack upon London, I referred him
+to the, now generally accepted, prohibition of the "bombardment, _by any
+means whatever_, of towns, &c., which are not defended." This rule has
+been growing into its present form ever since the Brussels Conference of
+1874. The words italicised were added to it in 1907, to show that it
+applies to the action of _aeronefs_ as well as to that of land
+batteries. It clearly prohibits any wanton bombardment, undertaken with
+no distinctly military object in view, and the prohibition is much more
+sweeping, for reasons not far to seek, than that imposed by Convention
+No. ix. of 1907 upon the treatment of coast towns by hostile fleets.
+
+So far good; but further questions arise, as to which no diplomatically
+authoritative answers are as yet available; and I, for one, am not wise
+above that which is written. One asks, for instance, what places are
+_prima facie_ "undefended." Can a "great centre of population" claim
+this character, although it contains barracks, stores, and bodies of
+troops? For the affirmative I can vouch only the authority of the
+Institut de Droit International, which in 1896, in the course of the
+discussion of a draft prepared by General Den Beer Pourtugael and
+myself, adopted a statement to that effect. A different view seems to be
+taken in the German _Kriegsbrauch_, p. 22. One also asks: Under what
+circumstances does a place, _prima facie_, "undefended," cease to
+possess that character? Doubtless so soon as access to it is forcibly
+denied to the land forces of the enemy; hardly, to borrow an
+illustration from Colonel Jackson's letter of Thursday last, should the
+place merely decline to submit to the dictation of two men in an
+aeroplane.
+
+I read with great pleasure the colonel's warning, addressed to the
+United Service Institution, and am as little desirous as he is that
+London should rely for protection upon The Hague article, ambiguous as I
+have confessed it to be; trusting, indeed, that our capital may be
+enabled so to act at once in case of danger as wholly to forfeit such
+claim as it may in ordinary times possess to be considered an
+"undefended" town. Let the principle involved in Art. 25 be carried into
+much further detail, should that be found feasible, but, in the
+meantime, let us not for a moment relax our preparation of vertical
+firing guns and defensive aeroplanes.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, May 2 (1914).
+
+
+    The war of 1914 has definitely established the employment of
+    aircraft for hostile purposes, and, as evidenced by the
+    reception given by belligerents to neutral protests, the
+    sovereignty of a state over its superincumbent air-spaces.
+
+    On the bombardment of undefended places, _cf. supra_, pp. 30,
+    62, 67, 68; _infra_, pp. 97, 109, 112-123.
+
+    On the authority of International Law, _supra_, pp. 25, 66, 67;
+    _infra_, pp. 77, 114, 115, 137, 169.
+
+       *       *       *       *       *
+
+SECTION 5
+
+_Submarines_
+
+
+GERMANY AND THE HAGUE
+
+Sir,--One excuse for German atrocities put forward, as you report, in
+the _Kolnische Zeitung_, ought probably not to pass unnoticed, denying,
+as it does, any binding authority to the restrictions imposed upon the
+conduct of warfare, on land or at sea, by The Hague Conventions of 1907.
+It is true that each of these Conventions contains an article to the
+effect that its provisions "are applicable only between the contracting
+Powers, and only if all the belligerents are parties to the Convention."
+It is also true that three of the belligerents in the world-war now
+raging--namely, Serbia, Montenegro, and, recently, Turkey--although they
+have (through their delegates) signed these Conventions, have not yet
+ratified them. Therefore, urges the _Zeitung_, the Conventions are, for
+present purposes, waste paper. The argument is as technically correct as
+its application would be unreasonable; and I should like to recall the
+fact that, in the important prize case of the _Moewe_, Sir Samuel Evans,
+in a considered judgment, pointed out the undesirability of refusing
+application to the maritime conventions because they had not been
+ratified by Montenegro, which has no navy, or by Serbia, which has no
+seaboard; and accordingly, even after Turkey, which also has not
+ratified, had become a belligerent, declined to deprive a German
+shipowner of an indulgence to which he was entitled under the Sixth
+Hague Convention.
+
+Admiral von Tirpitz was perhaps not serious when he intimated to the
+representative of the United Press of America that German submarines
+might be instructed to torpedo all trading vessels of the Allies which
+approach the British coasts. The first duty of a ship of war which
+proposes to sink an enemy vessel is admittedly, before so doing, to
+provide for the safety of all its occupants, which (except in certain
+rare eventualities) can only be secured by their being taken on board of
+the warship. A submarine has obviously no space to spare for such an
+addition to its own staff.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 26 (1914).
+
+
+    The charitable view taken in the last paragraph has, of course,
+    not been justified.
+
+    For the _Moewe_, see 2 Lloyd, 70. On the restrictive article in
+    The Hague Convention, _cf. passim_.
+
+
+"THE PIRATES"
+
+Sir,--Would it not be desirable, in discussing the execrable tactics of
+the German submarines, to abandon the employment of the terms "piracy"
+and "murder," unless with a distinct understanding that they are used
+merely as terms of abuse?
+
+A ship is regarded by international law as "piratical" only if, upon the
+high seas, she either attacks other vessels, without being commissioned
+by any State so to do (_nullius Principis auctoritate_, as Bynkershoek
+puts it), or wrongfully displaces the authority of her own commander.
+The essence of the offence is absence of authority, although certain
+countries, for their own purposes, have, by treaty or legislation, given
+a wider meaning to the term, e.g., by applying it to the slave-trade.
+"Murder" is such slaying as is forbidden by the national law of the
+country which takes cognizance of it.
+
+In ordering the conduct of which we complain, Germany commits an
+atrocious crime against humanity and public law; but those who, being
+duly commissioned, carry out her orders, are neither pirates nor
+murderers. The question of the treatment appropriate to such persons,
+when they fall into our hands, is a new one, needing careful
+consideration. In any case, it is not for us to rival the barbarism of
+their Government by allowing them to drown.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, March 13 (1915)
+
+
+SUBMARINE CREWS
+
+Sir,--My letter in _The Times_ of March 15 with reference to the conduct
+of certain of the German submarines has been followed by a good many
+other letters upon the same subject. Some of your correspondents have
+travelled far from the question at issue into the general question of
+permissible reprisals, into which I have no intention of following them.
+But others, by exhibiting what I may venture to describe as an
+_ignoratio elenchi_, have made it desirable to recall attention to the
+specific purport of my former letter. It was to the effect--(1) that the
+acts of those who, in pursuance of a Government commission, sink
+merchant vessels without warning are not "piracy," the essence of that
+offence at international law being that it is committed under no
+recognised authority; and that neither is it "murder" under English law;
+(2) that the question of the treatment appropriate to the perpetrators
+of such acts, even under the orders of their Government, is a new one,
+needing careful consideration. I was, of course, far from stating, as a
+general rule, that Government authority exempts all who act under it
+from penal consequences. The long-established treatment of spies is
+sufficient proof to the contrary.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, March 22 (1915).
+
+
+MR. WILSON'S NOTE
+
+Sir,--I may perhaps be permitted to endorse every word of the high
+praise bestowed in your leading article of this morning upon the Note
+addressed to Germany by the Government of the United States. The
+frequent mentions which it contains of "American ships," "American
+citizens," and the like, were, no doubt, natural and necessary, as
+establishing the _locus standi_ of that Government in the controversy
+which it is carrying on. But we find also in the Note matters of even
+more transcendent interest, relating to the hitherto universally
+accepted doctrines of international law, applicable to the treatment of
+enemy as well as of neutral vessels.
+
+It may suffice to cite the paragraph which assumes as indisputable
+
+      "the rule that the lives of non-combatants, whether they be
+      of neutral citizenship or citizens of one of the nations at
+      war, cannot lawfully or rightfully be put in jeopardy by the
+      capture or destruction of unarmed merchantmen,"
+
+as also
+
+      "the obligation to take the usual precaution of visit and
+      search to ascertain whether a suspected merchantman is in
+      fact of belligerent nationality, or is in fact carrying
+      contraband under a neutral flag."
+
+
+[I assume that the word "unarmed" here does not exclude the case of a
+vessel carrying arms solely for defence.]
+
+The Note also recognises, what you some time ago allowed me to point
+out,
+
+      "the practical impossibility of employing submarines in the
+      destruction of commerce without disregarding those rules of
+      fairness, reason, justice, and humanity which modern opinion
+      regards as imperative."
+
+Adding:--
+
+      "It is practically impossible for them to make a prize of
+      her, and if they cannot put a prize crew on board, they
+      cannot sink her without leaving her crew and all on board her
+      to the mercy of the sea in her small boats."
+
+Nothing could be more satisfactory than the views thus authoritatively
+put forth, first as to the applicable law, and secondly as to the means
+by which its prescriptions can be carried out.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Brighton, May 15 (1915).
+
+
+    _Cf. supra_, p. 70.
+
+       *       *       *       *       *
+
+SECTION 6
+
+_Lawful Belligerents_
+
+
+GUERILLA WARFARE
+
+Sir,--When Mr. Balfour last night quoted certain articles of the
+"Instructions for the Government of Armies of the United States in 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, 1868
+by President Lincoln.
+
+2. To Mr. Morley's enquiry, "Have we no rules of our own?" the answer
+must be in the negative. The traditional policy of our War Office has
+been to "trust to the good sense of the British officer." This policy,
+though surprisingly justified by results, is so opposed to modern
+practice and opinion that, as far back as 1878-80, I endeavoured,
+without success, to induce the Office to issue to the Army some
+authoritative, though simple, body of instructions such as have been
+issued on the Continent of Europe and in America. The War Office was,
+however, content to include in its "Manual of Military Law," published
+in 1888, a chapter which is avowedly unauthoritative, and expressly
+stated to contain only "the opinions of the compiler, as drawn from the
+authorities cited."
+
+3. The answer to Sir William Harcourt's unanswered question, "Were there
+no rules settled at the Hague?" must be as follows. The Hague Convention
+of 1899, upon "the laws and customs of warfare," ratified by this
+country on September 4 last, binds the contracting parties to give to
+their respective armies instructions in conformity with the _Reglement_
+annexed to the Convention. This _Reglement_, which is substantially a
+reproduction of the unratified _projet_ of the Brussels Conference of
+1874, does deal, in Arts. 1-3, with guerilla warfare. It is no doubt
+highly desirable that, as soon as may be, the drafting of rules in
+accordance with the _Reglement_ should be seriously taken in hand, our
+Government having now abandoned its _non possumus_ attitude in the
+matter. It will, however, be found to be the case, as was pointed out by
+Mr. Balfour, that the sharp distinction between combatants and
+non-combatants contemplated by the ordinary laws of war is inapplicable
+(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's Instructions," issued in 1863 and reissued in 1898,
+    will doubtless be superseded, or modified, in consequence of
+    the United States having, on April 9, 1902, ratified the
+    Convention of 1899, and on March 10, 1908, that of 1907, as to
+    the Laws and Customs of War on Land.
+
+    The answer to Mr. Morley's enquiry in 1900 would not now be in
+    the negative. The present writer's representations resulted in
+    Mr. Brodrick, when Secretary for War, commissioning him to
+    prepare a Handbook of the _Laws and Customs of War on Land_,
+    which was issued to the Army by authority in 1904. On the
+    instructions issued by other National Governments, see the
+    author's _Laws of War on Land_, 1908, pp. 71-73.
+
+    The answer, given in the letter, to Sir William Harcourt's
+    question must now be supplemented by a reference to the
+    Handbook above mentioned as having contained rules founded upon
+    the _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, of which account has been taken in a new
+    Handbook upon _Land Warfare_, issued by the War Office in 1913.
+
+    As to what is required from a lawful belligerent, see Arts. 1
+    and 2 of the _Reglement_ of 1899, practically repeated in that
+    of 1907. The substance of Art. 1 is set out in the letter which
+    follows.
+
+    Art. 2 grants some indulgence to "the population of a territory
+    which has not been occupied who, on the approach of the enemy,
+    spontaneously take up arms to resist the invading troops,
+    without having had time to organise themselves in accordance
+    with Art. 1." _Cf. infra_, pp. 76, 79.
+
+
+THE RUSSIAN USE OF CHINESE CLOTHING
+
+Sir,--If Russian troops have actually attacked while disguised in
+Chinese costume, they have certainly violated the laws of war. It may,
+however, be worth while, to point out that the case is not covered, as
+might be inferred from the telegram forwarded to you from Tokio on
+Wednesday last, by the text of Art. 23 (_f_) of the _Reglement_ annexed
+to The Hague Convention "on the laws and customs of war on land." This
+article merely prohibits "making improper use of the flag of truce, of
+the national flag or the military distinguishing marks and the uniform
+of the enemy, as well as of the distinguishing signs of the Geneva
+Convention."
+
+Art. 1 of the _Reglement_ is more nearly in point, insisting, as it
+does, that even bodies not belonging to the regular army, which, it is
+assumed, would be in uniform (except in the case of a hasty rising to
+resist invasion), shall, in order to be treated as "lawful
+belligerents," satisfy the following requirements, viz.:--
+
+      "(1) That of being commanded by a person responsible for his
+      subordinates;
+
+      "(2) That of having a distinctive mark, recognisable at a
+      distance;
+
+      "(3) That of carrying their arms openly; and
+
+      "(4) That of conducting their operations in accordance with
+      the laws and customs of war."
+
+The fact that, in special circumstances, as in the Boer war, marks 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 _Reglement_ 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 _Reglement_ 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).
+
+
+THE RIGHTS OF ARMED CIVILIANS
+
+Sir,--It is interesting to be reminded by Sir Edward Ridley of the view
+taken by Sir Walter Scott of the right and duty of civilians to defend
+themselves against an invading enemy. International law is, however,
+made neither by the ruling of an "impartial historian," on the one hand,
+nor by the _ipse dixit_ of an Emperor, on the other.
+
+In point of fact, the question raised by Sir Edward is not an open one,
+and, even in our own favoured country, it is most desirable that every
+one should know exactly how matters stand. The universally accepted
+rules as to the persons who alone can claim to act with impunity as
+belligerents are set forth in that well-known "scrap of paper" The Hague
+Convention No. iv. of 1907; to the effect that members of "an army" (in
+which term militia and bodies of volunteers are included) must (1) be
+responsibly commanded, (2) bear distinctive marks, visible at a
+distance, (3) carry their arms openly, and (4) conform to the laws of
+war. By way of concession, inhabitants of a district not yet "occupied"
+who spontaneously rise to resist invasion, without having had time to
+become organised, will be privileged if they conform to requirements (3)
+and (4). These rules are practically a republication of those of The
+Hague Convention of 1899, which again were founded upon the
+recommendations of the Brussels Conference of 1874, although, at the
+Conference, Baron Lambermont regretted that "si les citoyens doivent
+etre conduits au supplice pour avoir tente de defendre leur pays, au
+peril de leur vie, ils trouvent inscrit, sur le poteau au pied duquel
+ils seront fusilles, l'article d'un Traite signe par leur propre
+gouvernement qui d'avance les condamnait a mort."
+
+_An Englishman's Home_ was a play accurately representing the accepted
+practice, shocking as it must be. I remember the strength of an epithet
+which was launched from the gallery at the German officer on his
+ordering the shooting of the offending householder. It may be hardly
+necessary to add that nothing in international usage justifies execution
+of innocent wives and children.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, September 17 (1914).
+
+
+    This letter was, it seems, perverted in the _Kreuz Zeitung_.
+
+
+CIVILIANS IN WARFARE
+
+THE RIGHT TO TAKE UP ARMS
+
+Sir,--I have read with some surprise so much of Sir Ronald Ross's letter
+of to-day as states that "the issue still remains dark" as to the right
+of civilians to bear arms in case of invasion. It has long been settled
+that non-molestation of civilians by an invader is only possible upon
+the understanding that they abstain from acts of violence against him.
+Modern written international law has defined, with increasing
+liberality, by the draft Declaration of 1874 and the Conventions of 1899
+and 1907, the persons who will be treated as lawful belligerents. Art. 1
+of The Hague Regulations of 1907 recognises as such, not only the
+regular army, but also militia and volunteers. Art. 2 grants indulgence
+to a _levee en masse_ of "la population" (officially mistranslated "the
+inhabitants") of a territory not yet occupied. Art. 3, also cited by Sir
+Ronald, has no bearing upon the question.
+
+The rules are, I submit, as clear as they could well be made, and are
+decisive against the legality of resistance by individual civilians, the
+sad, but inevitable consequence of which was, as I pointed out in _The
+Times_ of September 19 last, truthfully represented on the stage in _An
+Englishman's Home_.
+
+In the same letter I wrote that "even in our own favoured country it is
+most desirable that every one should know exactly how matters stand."
+There are, however, obvious objections, possibly not insuperable, to
+this result being brought about, as is proposed by Sir Ronald Ross, by
+Government action.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, October 26 (1914).
+
+
+CIVILIANS AND A RAID
+
+Sir,--It is satisfactory to learn, from Mr. McKenna's answer to a
+question last night, that the duty of the civilian population, at any
+rate in certain counties, is engaging the attention of Government. I
+confess, however, to having read with surprise Mr. Tennant's
+announcement that "it was provided by The Hague Convention that the
+wearing of a brassard ensured that the wearer would be regarded as a
+belligerent." It ought surely to be now generally known that, among the
+four conditions imposed by the Convention upon Militia and bodies of
+Volunteers, in order to their being treated as belligerents, the third
+is "that they shall bear a distinctive mark, fixed and recognisable at a
+distance." Whether an enemy would accept the mere wearing of a brassard
+as fulfilling this condition is perhaps an open question upon which some
+light may be thrown by the controversies of 1871 with reference to
+_francs-tireurs_.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, November 24 (1914).
+
+
+MISS CAVELL'S CASE
+
+Sir,--The world-wide abhorrence of the execution of Miss Cavell,
+aggravated as it was by the indecent and stealthy haste with which it
+was carried out, is in no need of enhancement by questionable arguments,
+such as, I venture to say, are those addressed to you by Sir James
+Swettenham.
+
+It is, of course, the case that Germany is in Belgium only as the result
+of her deliberate violation of solemnly contracted treaties, but she is
+in military "occupation" of the territory. From such "occupation" it
+cannot be disputed that there flow certain rights of self-defence. No
+one, for instance, would have complained of her stern repression of
+civilian attacks upon her troops, so long as it was confined to actual
+offenders. The passages quoted by Sir James from Hague Convention v.,
+and from the _Kriegsbrauch_, relate entirely to the rights and duties of
+Governments, and have no bearing upon the tragical abuse of jurisdiction
+which is occupying the minds of all of us.
+
+May I take this opportunity of calling attention to the fresh evidence
+afforded by the new Order in Council of our good fortune in not being
+bound by the Declaration of London, which erroneously professed to
+"correspond in substance with the generally recognised principles of
+International Law"? Is it too late, even now, to announce, by a
+comprehensive Order in Council, any relaxations which we and our Allies
+think proper to make of well-established rules of Prize Law, without any
+reference to the more and more discredited provisions of the
+Declaration, the partial and provisional adoption of which seems, at the
+outbreak of the war, to have been thought likely to save trouble?
+
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, October 26 (1915).
+
+       *       *       *       *       *
+
+SECTION 7
+
+_Privateering_
+
+    The three letters which immediately follow were written to
+    point out that neither belligerent in the war of 1898 was under
+    any obligation not to employ privateers. Within, however, a few
+    days after the date of the second of these letters, both the
+    United States and Spain, though both still to be reckoned among
+    the few powers which had not acceded to the Declaration of
+    Paris, announced their intention to conduct the war in
+    accordance with the rules laid down by the Declaration.
+
+    Art. 3 of the Spanish Royal Decree of April 23 was to the
+    effect that "notwithstanding that Spain is not bound by the
+    Declaration signed in Paris on April 16, 1856, as she expressly
+    stated her wish not to adhere to it, my Government, guided by
+    the principles of international law, intends to observe, and
+    hereby orders that the following regulations for maritime law
+    be observed," viz. Arts. 2, 3, and 4 of the Declaration,
+    after setting out which, the Decree proceeds to state that the
+    Government, while maintaining "their right to issue letters of
+    marque, ... will organise, for the present, a service of
+    auxiliary cruisers ... subject to the statutes and jurisdiction
+    of the Navy."
+
+    The Proclamation of the President of the United States of April
+    26 recited the desirability of the war being "conducted upon
+    principles in harmony with the present views of nations, and
+    sanctioned by their recent practice," and that it "has already
+    been announced that the policy of the Government will not be to
+    resort to privateering, but to adhere to the rules of the
+    Declaration of Paris," and goes on to adopt rules 2, 3, and 4
+    of the Declaration.
+
+    Ten years afterwards, viz. on January 18, 1908, Spain
+    signified "her entire and definitive adhesion to the four
+    clauses contained in the Declaration," undertaking scrupulously
+    to conduct herself accordingly. Mexico followed suit on
+    February 13, 1909. The United States are therefore now the only
+    important Power which has not formally bound itself not to
+    employ privateers. It seems unlikely that privateers, in the
+    old sense of the term, will be much heard of in the future,
+    though many questions may arise as to "volunteer navies" and
+    subsidised liners, such as those touched upon in the last
+    section, with reference to captures made by the _Malacca_;
+    possibly also as to ships "converted" on the High Seas.
+
+
+OUR MERCANTILE MARINE IN WAR TIME
+
+Sir,--There can be no doubt that serious loss would be occasioned 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 bottoms.
+
+Before, however, adopting the measures recommended, with a view to the
+prevention of this loss, by Sir George Baden-Powell in your issue of
+this morning, it would be desirable to enquire how far they would be in
+accordance with international law, and what would be the net amount of
+the relief which they would afford.
+
+It is hardly necessary to say that non-compliance with the provisions of
+the Declaration of Paris by a non-signatory carries with it none of the
+consequences of a breach of the law of nations. The framers of that
+somewhat hastily conceived attempt to engraft a paper amendment upon the
+slowly matured product of 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
+intelligible. Privateers would, of course, be placed under the
+restrictions which were imposed in 1870, in accordance with Lord
+Granville's instructions, even on the men-of-war of belligerents. They
+would be forbidden to bring in prizes, to stay more than twenty-four
+hours, to leave within twenty-four hours of the start of a ship of the
+other belligerent, to take more coal than enough to carry them to the
+nearest home port, and to take any further supply of coal within three
+months. We might, no doubt, carry discouragement of privateers by so
+much further as to make refusal of coal absolute in their case, but
+hardly so far as to deny entry to them under stress of weather.
+
+The difficulties in the way of accepting Sir G. Baden-Powell's other
+suggestion are of a different order. Although we could not complain of
+the confiscation by either of the supposed belligerents of enemy
+property found in British vessels, as being a violation of international
+duty, we might, at our own proper peril, announce that we should treat
+such confiscation as "an act of war." International law has long
+abandoned the attempt to define a "just cause of war." That must be left
+to the appreciation of the nations concerned. So to announce would be,
+in effect, to say: "Although by acting as you propose you would violate
+no rule, yet the consequences would be so injurious to me that I should
+throw my sword into the opposite scale." We should be acting in the
+spirit of the "Armed Neutralities" of 1780 and 1800. The expediency of
+so doing depends, first, upon the extent to which the success of our
+action would obviate the mischief against which it would be directed;
+and, secondly, upon the likelihood that the benefit which could be
+obtained only by imposing a new rule of international law _in invitos_
+would counterbalance the odium incurred by its imposition. On the former
+question it may be worth while to remind the mercantile community that,
+even under the Declaration of Paris, neutral trade must inevitably be
+put to much inconvenience. Any merchant vessel may be stopped with a
+view to the verification of her national character, of which the flag is
+no conclusive evidence. She is further liable to be visited and searched
+on suspicion of being engaged in the carriage of contraband, or of enemy
+military persons, or of despatches, or in running a blockade. Should the
+commander of the visiting cruiser "have probable cause" for suspecting
+any of these things, though the vessel is in fact innocent of them, he
+is justified in putting a prize crew on board and sending her into port,
+with a view to the institution of proceedings against her in a prize
+Court. A non-signatory of the Declaration of Paris may investigate and
+penalise, in addition to the above-mentioned list of offences, the
+carriage of enemy goods. This is, no doubt, by far the most important
+branch of the trade which is carried on for belligerents by neutrals,
+but it must not be forgotten that even were this branch of trade
+universally indulged, in accordance with the Declaration of Paris
+neutral commerce would still remain liable to infinite annoyance from
+visit and search, with its possible sequel in a prize Court.
+
+The question of the balance between benefit to be gained and odium to be
+incurred by insisting upon freedom to carry the goods of belligerents I
+leave to the politicians.
+
+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 light upon the views of the
+Government, both as to existing rules of international law and as to the
+policy demanded by the interests 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 replies can be given only with
+reference to concrete cases by a prize Court.
+
+You may perhaps, therefore, allow me in the meantime 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 Declaration of Paris
+was not a piece of legislation, but a contract, producing no effect upon
+the rights and duties of nations which were not parties to it. We did
+not thereby, as he supposes, "decline to recognise private vessels of
+war as competent to use force on neutral merchantmen." We merely bound
+ourselves not to use such vessels for such a purpose. Sir George is
+still unable to discover for privateers any other category than the
+"_status_ of pirate." He admits that it would not be necessary for their
+benefit to resort to "the universal use of the fore-yard-arm." Let me
+assure him that the bearer of a United States private commission of war
+would run no risk even of being hanged at Newgate. President Lincoln, it
+is true, at the outset of the Civil War, threatened to treat as pirates
+vessels operating under the "pretended authority" of the rebel States;
+but he was speedily instructed by his own law Courts--e.g. in the
+_Savannah_ and in the _Golden Rocket_ (insurance) cases--that even such
+vessels were not pirates _iure gentium_. It is also tolerably
+self-evident that we cannot absolutely "close" our ports to any class of
+vessels. There is no inconsistency here between my friend Sir Sherston
+Baker and myself. We can discourage access, and of course, by refusal of
+coal, render egress impossible for privateers. Mr. Coltman would
+apparently be inclined to carry this policy so far that he would disarm
+and intern even belligerent ships of war which should visit our ports: a
+somewhat hazardous innovation, one would think.
+
+It is quite possible that the question of privateering may not become a
+practical one during the approaching war. Both parties may expressly
+renounce the practice, or they may follow the example of Prussia in
+1870, and Russia at a later date, in commissioning fast liners under the
+command of naval officers--a practice, by the by, which is not, as Sir
+George seems to think, "right in the teeth of the Declaration of Paris."
+See Lord Granville's despatch in 1870.
+
+On Sir George's proposals with reference to the carriage of enemy goods,
+little more need be said, except to deprecate arguments founded upon the
+metaphorical statement that "a vessel is part of the territory covered
+by her flag," a statement which Lord Stowell found it necessary to meet
+by the assertion that a ship is a "mere movable." There can be no
+possible doubt of the right, under international law, of Spain and the
+United States to visit and search neutral ships carrying enemy's goods,
+and to confiscate such goods when found. They may also visit and search
+on many other grounds, and the question (one of policy) is whether,
+rather than permit this addition to the list, we choose to take a step
+which would practically make us belligerent. This question also, it may
+be hoped, will not press for solution.
+
+In any case, let me express my cordial concurrence with your hope that,
+when hostilities are over, some really universal and lasting agreement
+may be arrived at with reference to the matters dealt with, as I venture
+to think prematurely, by the Declaration of Paris. A reform of maritime
+law to which the United States are not a party is of little worth. That
+search for contraband of war can ever be suppressed I do not believe,
+and fear that it may be many years before divergent national interests
+can be so far reconciled as to secure an agreement as to the list of
+contraband articles. In the meantime this country is unfortunately a
+party to that astonishing piece of draftsmanship, the "three rules" of
+the Treaty of Washington, to which less reference than might have been
+expected has been made in recent discussions. The ambiguities of this
+document, which have prevented it from ever being, as was intended,
+brought to the notice of the other Powers, with a view to their
+acceptance of it, are such that, its redrafting, or, better still, its
+cancellation, should be the first care of both contracting parties when
+the wished for congress shall take place.
+
+May I add that no serious student of international law is likely either
+to overrate the authority which it most beneficially exercises, or to
+conceive of it as an unalterable body of theory.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Brighton, April 21 (1898).
+
+
+OUR MERCANTILE MARINE IN WAR
+
+Sir,--Let me assure Sir George Baden-Powell that if, as he seems to
+think, I have been unsuccessful in grasping the meaning of his very
+interesting letters, it has not been from neglect to study them with the
+attention which is due to anything which he may write. How privateering,
+previously innocent, can have become piratical, _i.e._ an offence,
+everywhere justiciable, against the Law of Nations, if the 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 Art. 7 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 1889) 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).
+
+
+THE DECLARATION OF PARIS
+
+Sir,--There is really no question at issue between your two
+correspondents Mr. Gibson Bowles and "Anglo-Saxon" as to the attitude of
+the United States towards the Declaration of Paris.
+
+Mr. Bowles rightly maintains that the United States has not acceded to
+the Declaration as a whole, or to its second article, which exempts from
+capture enemy property in neutral ships. He means, of course, that
+neither the whole nor any part of that Declaration has been ratified by
+the President with the advice and consent of the Senate. The whole
+contains, indeed, an article on privateering, to which, as it stands,
+the United States have always objected, and no part of the Declaration
+can be accepted separately.
+
+"Anglo-Saxon," on the other hand, is equally justified in asserting that
+the "officially-recorded policy" of the States, _i.e._ of the Executive,
+is in accordance with Art. 2 of the Declaration. This policy has been
+consistently followed for more than half a century. Its strongest
+expression is perhaps to be found in the President's Proclamation of
+April 26, 1898, in which, after reciting that it being desirable that
+the war with Spain "should be conducted upon principles in harmony with
+the present views of nations and sanctioned by their recent practice, it
+has already been announced that the policy of the Government will not be
+to resort to privateering, but to adhere to the rules for the
+Declaration of Paris," he goes on to "declare and proclaim" the three
+other articles of the Declaration. The rule of Art. 2, as to exemption
+of enemy goods in neutral ships, was embodied in Art. 19 of the Naval
+War Code of 1900 (withdrawn in 1904, for reasons not affecting the
+article in question), and reappears in Art. 17, amended only by the
+addition of a few words relating to "hostile assistance" in the draft
+Code which the United States delegates to the Conferences of 1907 and
+1908 were instructed to bring forward "with the suggested changes, and
+such further changes as may be made necessary by other agreements
+reached at the Conference, as a tentative formulation of the rules which
+should be considered." (My quotation is from the instructions as
+originally issued in English.) Such changes as have been made in the
+Code are due to discussions which have taken place between high naval
+and legal authorities at the Naval War College. I do not know whether
+the annual reports of these discussions, with which I am kindly
+supplied, are generally accessible, but would refer, especially with
+reference to the Declaration of Paris, to the volumes for 1904 and 1906.
+
+It can hardly be necessary to add that no acts of the Executive, such as
+the Proclamation of 1898, the order putting in force the Code of 1900,
+or the instructions to delegates in 1907 and 1909, amount to anything
+like a ratification of the Declaration in the manner prescribed by the
+Constitution of the United States.
+
+I have the honour to be, Sir,
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, January 4 (1911).
+
+
+THE DECLARATION OF PARIS
+
+Sir,--Mr. Gibson Bowles resuscitates this morning his crusade against
+the Declaration of 1856. It is really superfluous to argue in support of
+rules which have met with general acceptance for nearly sixty years
+past, to all of which Spain and Mexico, who were not originally parties
+to the Declaration, announced their formal adhesion in 1907, while the
+United States, which for well-known reasons declined to accede to the
+Declaration, described, in 1898, all the articles except that dealing
+with privateering as "recognised rules of International Law."
+
+It may, however, be worth while to point out why it was that no
+provision was made for the ratification of the Declaration of 1856, or
+for that of 1868 relating to the use of explosive bullets. At those
+dates, when the first steps were being taken towards the general
+adoption of written rules for the conduct of warfare, it was, curiously
+enough, supposed that agreement upon such rules might be sufficiently
+recorded without the solemnity of a treaty. This was, in my opinion, a
+mistake, which has been avoided in more recent times, in which the
+written law of war has been developed with such marvellous rapidity. Not
+only have codes of such rules been promulgated in regular "Conventions,"
+made in 1899, 1906, and 1907, but the so-called "Declarations," dealing
+with the same topic, of 1899, 1907, and 1909 have been as fully equipped
+as were those Conventions with provisions for ratification. The
+distinction between a "Convention" and a "Declaration" is therefore now
+one without a difference, and should no longer be drawn. Nothing in the
+nature of rules for the conduct of warfare can prevent their expression
+in Conventions, and the reason which seems to have promoted the
+misdescription of the work of the London Conference of 1908-9 as a
+"Declaration"--viz. an imaginary difference between rules for the
+application of accepted principles and wholly new rules--is founded in
+error. Much of the contents of The Hague "Conventions" is as old as the
+hills while much of the "Declaration" of London is revolutionary.
+
+This by the way. It is not very clear whether Mr. Gibson Bowles, in
+exhorting us to denounce the Declaration, relies upon its original lack
+of ratification, or upon some alleged "privateering" on the part of the
+Germans. Nothing of the kind has been reported. The commissioning of
+warships on the high seas is a different thing, which may possibly be
+regarded as an offence of a graver nature. Great Britain is not going to
+imitate the cynical contempt for treaties, evidenced by the action of
+Germany in Belgium and Luxemburg, in disregard not only of the
+well-known treaties of 1889 and 1867, but of a quite recent solemn
+undertaking, to which I have not noticed any reference. Art. 2 of The
+Hague Convention No. v. of 1907, ratified by her in 1909, is to the
+following effect:--
+
+      "Belligerents are forbidden to move across the territory of a
+      neutral Power troops or convoys, whether of munitions or of
+      supplies."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, August 12 (1914).
+
+The true ground for objecting to the legality of the purchase by Turkey
+of the German warships which have been forced to take refuge in her
+waters is no doubt that stated by Sir William Scott in the _Minerva_, 6
+C. Rob. at p. 400--viz. that it would enable the belligerent to whom
+the ships belong "so far to rescue himself from the disadvantage into
+which he has fallen as to have the value at least restored to him by a
+neutral purchaser." The point is not touched upon in the (draft)
+Declaration of London.
+
+Even supposing the purchase to be unobjectionable, the duty of Turkey to
+remove all belligerents from the ships would be unquestionable.
+
+
+    _Cf._ on the Declaration of Paris, _passim_, see Index; on the
+    misuse of Declarations, _infra_, p. 92; on privateering,
+    _supra_, pp. 80-84.
+
+
+THE DECLARATION OF PARIS
+
+Sir,--The resuscitation, a few days ago, in the House of Commons of an
+old controversy reminds one of the mistaken procedure which made such a
+controversy possible. It can hardly now be doubted that the rules set
+forth in the Declaration of Paris of 1856, except possibly the
+prohibition of privateering, have by general acceptance during sixty
+years, strengthened by express accessions on the part of so many
+Governments, become a portion of international law, and are thus binding
+upon Great Britain, notwithstanding her omission to ratify the
+Declaration. This omission is now seen to have been a mistake. So also
+was the description of the document as a "declaration." Both mistakes
+were repeated in 1868 with reference to the "Declaration" of St.
+Petersburg (as to explosive bullets).
+
+In those early attempts at legislation for the conduct of warfare it
+seems to have been thought sufficient that the conclusions arrived at by
+authorised delegates should be announced without being embodied in a
+treaty. Surely, however, what purported to be international agreements
+upon vastly important topics ought to have been accompanied by all the
+formalities required for "conventions," and should have been so
+entitled. In later times this has become the general rule for the
+increasingly numerous agreements which bear upon the conduct of
+hostilities. Thus we have The Hague "conventions" of 1899 and 1907, and
+the Geneva "convention" of 1906, all duly equipped with provisions for
+ratification. Such provisions are also inserted in certain other recent
+agreements dealing with aerial bombardments, gases, and expanding
+bullets, which it has nevertheless pleased their contrivers to
+misdescribe as "declarations." Equally so misdescribed was the deceased
+Declaration of London, with a view, apparently, to suggesting, as was
+far from being the case, that it was a mere orderly statement of
+universally accepted principles, creating no new obligations.
+
+Is it not to be desired that all future attempts for the international
+regulation of warfare should not only be specifically made subject to
+ratification, but should also, in accordance with fact, be described as
+"conventions"?
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, August 13 (1916).
+
+
+THE DECLARATION OF PARIS
+
+Sir,--If Mr. Gibson Bowles, whose courteous letter I have just been
+reading, will look again at my letter of the 18th, I think he will see
+that I there carefully distinguished between the Declaration of Paris,
+which, as is notorious, must be accepted as a whole or not at all, and
+the rules set forth in it, "except, possibly, the prohibition of
+privateering," which I thought, for the reasons which I stated, might be
+taken to have become a portion of International Law.
+
+I must be excused from following Mr. Bowles into a discussion of the
+bearing of those rules upon the Order in Council of March 11, 1915--a
+large and delicate topic, which must be studied in elaborate dispatches
+exchanged between this country and the United States.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, August 17 (1916).
+
+       *       *       *       *       *
+
+SECTION 8
+
+_Assassination_
+
+
+THE NATAL PROCLAMATION
+
+Sir,--It was reported a few days ago that the Natal Government 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 Art. 28 (_b_) of The Hague Regulations, "it is especially prohibited
+to kill or wound treacherously individuals belonging to the hostile
+nation or army": words which, one cannot doubt, would include not only
+assassination of individuals, but also, by implication, any offer for an
+individual "dead or alive." The Regulations are, of course, technically
+binding only between signatories of the convention to which they are
+appended; but Art. 28 (_b_) is merely an express enactment of a
+well-established rule of the law of nations. A recent instance of its
+application occurred, before the date of The Hague Convention, during
+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).
+
+       *       *       *       *       *
+
+SECTION 9
+
+_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 onrush 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, "by 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 embodied in general international national
+agreements, is to be found in four paragraphs; to which, be it observed,
+nothing is added by the unwritten, or customary, law of nations. Of
+these paragraphs, which I shall set out textually, three affirm general
+principles, while the fourth contains a specific prohibition. The
+general provisions are as follows:--
+
+      "The 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." (_Ib._ Art. 23.)
+
+The only special prohibition is that contained in the Declaration of St.
+Petersburg, by which the contracting parties--
+
+      "Engage mutually to renounce, in case of war among
+      themselves, the employment by their military or naval forces
+      of any projectile of a weight below 400 grammes which is
+      either explosive or charged with fulminating or inflammable
+      substances."
+
+No one, so far as I am aware, has any wish to employ a bullet weighing
+less than 14 oz. which is either explosive or charged as above. So far,
+therefore, as the generally accepted laws of warfare are concerned, the
+only question as to the employment of Dum Dum or other expanding bullets
+is whether they "uselessly aggravate the sufferings of disabled men, or
+render their death inevitable"; in other words, whether they are "of a
+nature to cause superfluous injury." It is, however, probable that
+people who glibly talk of such bullets being "prohibited by The Hague
+Convention" are hazily reminiscent, not of the _Reglement_ appended to
+that convention, but of a certain "Declaration," signed by the delegates
+of many of the Powers represented at The Hague in 1899, to the effect
+that--
+
+      "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 Declaration last mentioned (No. 3 of the first Peace
+    Conference) is now something more than waste paper, having been
+    generally ratified. Great Britain, on August 17, 1907, at the
+    fourth plenary sitting of the Second Peace Conference,
+    announced her adhesion to it, as also to the, also generally
+    ratified, Declaration No. 2 of 1899, which forbids the
+    employment of projectiles constructed solely for the diffusion
+    suffocating or harmful gases.
+
+    The provisions of Arts. 22 and 23 (_e_) of the _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, ratified by Great Britain on November 27,
+    1909.
+
+    The written agreements as to the choice of weapons may be taken
+    therefore to start from the general principles laid down in the
+    preamble to the Declaration of St. Petersburg (though held by
+    some Powers to err in the direction of liberality), and in
+    Arts. 22 and 23 (_e_) of The Hague _Reglements_. The specially
+    prohibited means of destruction are, by the Declaration of St.
+    Petersburg, explosive bullets; by The Hague _Reglements_, Art.
+    23 (_a_) poison or poisoned arms; by The Hague Declarations of
+    1898, Nos. 2 and 3, "projectiles the sole object of which is
+    the diffusion of asphyxiating or harmful gases," and "bullets
+    which expand or flatten easily in the human body, such as
+    bullets with a hard casing, which does not entirely cover the
+    core, or is pierced with incisions." As to Declaration No. 1,
+    _cf. supra_, p. 22. It must be remarked that the Declarations
+    of St. Petersburg and of The Hague, unlike The Hague
+    Reglements, apply to war at sea, as well as on land.
+
+    _Cf. supra_, p. 22, and see the author's _The Laws of War on
+    Land (written and unwritten)_, 1908, pp. 40-43.
+
+
+GASES
+
+Sir,--The weightily signed medical protest which you publish this
+morning will be widely welcomed. The German employment of poisonous
+gases for military purposes, which the Allies were obliged, reluctantly,
+though necessarily, to reciprocate, was, of course, prohibited by
+international Acts to which Germany is a party. Not only does the
+Declaration of 1899 specifically render unlawful "the use of projectiles
+the sole object of which is the diffusion of asphyxiating or harmful
+gases," but the Hague Conventions of 1899 and 1907 both forbid, in
+general terms, the employment of "(_a_) poison or poisoned arms," "(_c_)
+arms, projectiles, or material of a nature to cause superfluous
+suffering." The United States, like the rest of the world, are a party
+to the two Conventions, and would doubtless, after the experiences of
+recent years, no longer hesitate, as hitherto, to adhere to the
+Declaration of 1899; in accordance with Admiral Mahan's view at that
+date, to the effect that "the effect of gas shells has yet to be
+ascertained," and, in particular, "whether they would be more, or less,
+merciful than missiles now available."
+
+The prohibition ought, no doubt, to be renewed and, if possible,
+strengthened; but this is surely not, as your correspondents suggest,
+work for the Peace Congress. The rules for naval warfare set out in the
+Declaration of Paris of 1856 form no part of the Treaty of Paris of that
+year.
+
+I venture to make a similar remark with reference to any discussion by
+the Peace Congress of "the freedom of the seas," a topic unfortunately
+included by President Wilson among his "14 points." The peace delegates
+will be concerned with questions of regroupings of territory, penalties,
+and reparation. The rehabilitation and revision of international law is
+a different business, and should be reserved for a subsequent
+conference.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, November 29 (1918).
+
+       *       *       *       *       *
+
+SECTION 10
+
+_The Geneva Convention_
+
+    As far back as the year 1870, the Society for the Prevention of
+    Cruelty to Animals exerted itself to induce both sides in the
+    great war then commencing to make some special provision for
+    relieving, or terminating, the sufferings of horses wounded in
+    battle.
+
+    In 1899 it made the same suggestion to the British War Office,
+    but the reply of the Secretary of State was to the effect that
+    "he is informed that soldiers always shoot badly wounded horses
+    after, or during, a battle, whenever they are given time to do
+    so, _i.e._ whenever the operation does not involve risk to
+    human life. He fears that no more than this can be done unless
+    and until some international convention extends to those who
+    care for wounded animals the same protection for which the
+    Geneva Convention provides in the case of men; and he would
+    suggest that you should turn your efforts in that direction."
+
+    Thereupon, Mr. Lawrence Pike, on November 23, addressed to _The
+    Times_ the letter which called forth the letter which follows.
+
+
+WOUNDED HORSES IN WAR
+
+Sir,--Everyone must sympathise with the anxiety felt by Mr. L.W. Pike 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 amendment from time to
+time," but wrong in supposing that they can be amended "by the setting
+up of precedents." The convention can be amended only by a new
+convention.
+
+It is not the case that Art. 7 of the convention, which merely confides
+to commanders-in-chief, under the instructions of their respective
+Governments, "les details d'execution de la presente convention," gives
+them any authority to extend its scope beyond what is expressly stated
+to be its object--viz. "l'amelioration du sort des militaires blesses
+dans les armees en campagne." While, however, the Geneva Convention,
+does not contemplate the relief of animal suffering, it certainly cannot
+be "set up as a bar" to the provision of such relief. Commanders who may
+see their way to neutralising persons engaged in the succour or
+slaughter of wounded horses would be quite within their powers in
+entering into temporary agreements for that purpose.
+
+I may add that the "Convention concerning the laws and customs of war on
+land," prepared by the recent conference at The Hague, and signed on
+behalf of most Governments, including our own, though not yet ratified,
+contains a chapter "Des malades et des blesses," which merely states
+that the obligations of belligerents on this point are governed by the
+Convention of Geneva of 1864, with such modifications as may be made in
+it. Among the aspirations (_voeux_) 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 obligations of belligerents, with reference to the care of
+    the sick and wounded, are governed by the Convention of Geneva
+    of August 22, 1864, subject to alterations which may be made in
+    it," is now represented by Art. 21 of The Hague _Reglement_ of
+    1907, which mentions "the Convention of Geneva," without
+    mention of any date, or of possible alterations. The 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 British
+    ratification, of April 16, 1907, was subject to a reservation,
+    the necessity for which was intended to be removed by 1 & 2
+    Geo. 5, c. 20, as to which, see _supra_, p, 37. The later is
+    somewhat wider in scope than the earlier Convention, its
+    recital referring to "the sick," as well as to the wounded, and
+    its first article naming not only "les militaires," but also
+    "les autres personnes officiellement 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
+    again, in 1903, pressed upon the British Government their
+    desire that the new Convention should extend protection to
+    persons engaged in relieving the sufferings of wounded horses.
+    The British delegates to the Conference, however, who had
+    already been appointed, and were holding meetings in
+    preparation for it, were not prepared to advise the insertion
+    of provisions for this purpose in the revised Convention of
+    Geneva.
+
+    "The principles of the Geneva Convention" of 1864 were applied
+    to naval warfare by The Hague Convention No. iii. of 1899, and
+    those of the Geneva Convention of 1906 by The Hague Convention
+    No. x. of 1907 respectively. Both were ratified by Great
+    Britain. Cf. _supra_, Chapters ii. and iv.
+
+       *       *       *       *       *
+
+SECTION 11
+
+_Enemy Property in Occupied Territory_
+
+    By Art. 55 of The Hague _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
+    undertakings belonging to the hostile State and situated in the
+    hostile country. It must protect the substance of these
+    properties and administer them according to the rules of
+    usufruct."
+
+    The following letter touches incidentally upon the description
+    of the rights of an invader over certain kinds of State
+    property in the occupied territory as being those of a
+    "usufructuary."
+
+
+INTERNATIONAL "USUFRUCT"
+
+Sir,--The terminology of the law of nations has been enriched by a new
+phrase. We are all getting accustomed to "spheres of influence." We have
+been meditating for 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 ascertained 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 usufructuary 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 "Usufructus" is equally malleable. I can recall no other
+use of the term in international discussions than the somewhat
+rhetorical statement that an invader should consider himself as merely
+the "usufructuary" of the resources of the country which he is invading;
+which is no more than to say that he should use them "en bon 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 life-interest, Russia seems to have taken it, in the first
+instance, only for twenty-five years. One may, however, be pardoned for
+sharing, with reference to this transaction, the scruples which were
+felt at Rome as to allowing the grant of a usufruct to a
+corporation--"periculum enim esse videbatur, ne perpetuus fieret."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, March 30 (1898).
+
+P.S.--It would seem from M. Lehr's _Elements 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,
+    international law imposes no liability on an invader to pay for
+    requisitioned property or services, or to honour any receipts
+    which he may have given for them.
+
+    The Hague Convention of 1899 made no change in this respect.
+    Arts. 51 and 52 of the _Reglement_ annexed to the Convention
+    direct, it is true, that receipts should be given for
+    contributions ("un recu sera delivre aux contribuables") also
+    for requisitions in kind, if not paid for ("elles seront
+    constatees par des recus"), but these receipts were to be
+    merely evidence that money or goods have been taken, and it was
+    left an open question, by whom, if at all, compensation was to
+    be made or the losses thus established.
+
+    The _Reglement_ of 1907 is more liberal than that of 1899 with
+    reference to requisitioned property (though not with reference
+    to contributions). By the new Art. 52, "supplies furnished in
+    kind shall be paid for, so far as possible, on the spot. If
+    not, they shall be vouched for (_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.
+
+
+REQUISITIONS 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
+liability of the British Government to pay for stock requisitioned
+during the late war from private enemy owners. It should be clearly
+understood that no such liability 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 indemnifying 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 current number of the _Review of Reviews_, to which my
+attention has just been called, contains some extraordinary statements
+upon the topic under discussion. The uninformed public is assured that
+"we owe the Boers payment in full for all the devastation which we have
+inflicted upon their private property ... it is our plain legal
+obligation, from the point of view of international law, to pay it to
+the last farthing." Then The Hague Convention is invoked as permitting
+interference with private property "only on condition that it is paid
+for in cash by the conqueror, and, if that is not possible at the
+moment, he must in every case give a receipt, which he must discharge at
+the conclusion of hostilities." There is no such provision as to
+honouring receipts in this much-misquoted convention.
+
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, July 30 (1962).
+
+       *       *       *       *       *
+
+SECTION 12
+
+_Enemy Property at Sea_
+
+
+PRIVATE PROPERTY AT SEA
+
+Sir,--The letter which you print this morning from Mr. Charles Stewart
+can hardly be taken as a serious contribution to the discussion of a
+question which has occupied for many years the attention of politicians,
+international lawyers, shipowners, traders, and naval experts. Mr.
+Stewart actually thinks that Lord Sydenham's argument to the effect that
+"the fear of the severe economic strain which must result from the
+stoppage of a great commerce is a factor which makes for peace" may be
+fairly paraphrased as advice to "retain the practice because it is so
+barbarous that it will sicken the enemy of warfare." He goes on to say
+that this argument "would apply equally to the poisoning of wells and to
+the use of explosive bullets."
+
+It may be worth while to contrast with the attitude of a writer who
+seems unable to distinguish between economic pressure and physical
+cruelty that taken up by a competent body, the large majority of the
+members of which belong to nations which, for various reasons, incline
+to the abolition of the usage in question. The Institut de Droit
+International, encouraged by the weight attached to its _Manual of the
+Law of War on Land_ by the first and second Peace Conferences, has been,
+for some time past, working upon a _Manual of the Laws of War at Sea_.
+At its Christiania meeting in 1912 the Institut, while maintaining the
+previously expressed opinion of a majority of its members in favour of a
+change in the law, recognised that such a change has not yet come to
+pass, and that, till it occurs, regulations for the exercise of capture
+are indispensable, and directed the committee charged with the topic to
+draft rules presupposing the right of capture, and other rules to be
+applied should the right be hereafter surrendered (_Annuaire_, t. xxv.,
+p. 602).
+
+The committee accordingly prepared a draft, framed in accordance with
+the existing practice, to the discussion of which the Institut devoted
+the whole of its recent session at Oxford, eventually giving its
+_imprimatur_ to a Manual of the law of maritime warfare, as between the
+belligerents, in 116 articles. As opportunity serves, the committee will
+prepare a second draft, proceeding upon the hypothesis that the right of
+capturing private property at sea has been surrendered, which, in its
+turn, will be debated, word for word, by the Institut de Droit
+International.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, November 4 (1913).
+
+       *       *       *       *       *
+
+SECTION 13
+
+_Martial Law_
+
+    The first of the letters which follow has reference to the case
+    of two Boer prisoners who, having taken the oath of neutrality
+    on the British occupation of Pretoria, attempted to escape from
+    the town. Both were armed, and one of them fired upon and
+    wounded a sentinel who called upon them to stop. They were
+    tried by court-martial, condemned to death, and shot on June
+    11, 1901. The Hague Convention quoted in the letter is that of
+    1899, but the same Art. 8 figures in the Convention of 1907.
+
+    The second and third of these letters relate to a question of
+    English public law, growing out of the exercise of martial law
+    in British territory in time of war. One Marais, accused of
+    having contravened the martial law regulations of May 1, 1901,
+    was imprisoned in Cape Colony by military authority, and the
+    Supreme Court at the Cape held that it had no authority to
+    order his release. The Privy Council refused an application for
+    leave to appeal against this decision, saying that "no doubt
+    has ever existed that, when war actually prevails, the ordinary
+    courts have no jurisdiction over the action of the military
+    authorities"; adding that "the framers of the Petition of Right
+    knew well what they meant when they made a condition of peace
+    the ground of the illegality of unconstitutional procedure"
+    (_Ex parte_ D.F. Marais, [1902] A.C. 109). Thereupon arose a
+    discussion as to the extent of the prohibition of the exercise
+    of martial law contained in the Petition of Right; and Mr.
+    Edward Jenks, in letters to _The Times_ of December 27, 1901,
+    and January 4, 1902, maintained that the prohibition in
+    question was not confined to time of peace.
+
+    The last letter deals with the true character of a Proclamation
+    of Martial Law, and was suggested by the refusal of the Privy
+    Council, on April 2, 1906, to grant leave to appeal from
+    sentences passed in Natal by court-martial, in respect of acts
+    committed on February 8, 1906, whereby retrospective effect
+    had, it was alleged, been given to a proclamation not issued
+    till the day after the acts were committed, _See_ Mcomini
+    Mzinelwe and Wanda _v._ H.E. the Governor and the A.G. for the
+    Colony of Natal, 22 _Times Law Reports_, 413.
+
+
+THE EXECUTIONS AT PRETORIA
+
+Sir,--No doubt is possible that by international law, as probably by
+every system of national law, all necessary means, including shooting,
+may be employed to prevent the escape of a prisoner of war. The question
+raised by the recent occurrence at Pretoria is, however, a different
+one--viz. What are the circumstances in connection with an attempt to
+escape which justify execution after trial by court-martial of the
+persons concerned in it? This question may well be dealt with a part
+from the facts, as to which we are as yet imperfectly informed, which
+have called for Mr. Winston Churchill's letter. With the arguments of
+that letter I in the main agree, but should not attach so much
+importance as Mr. Churchill appears to do to a chapter of the British
+_Manual of Military Law_, which, though included in a Government
+publication, cannot be taken as official, since it is expressly stated
+"to have no official authority" and to "express only the opinions of the
+compiler, as drawn from the authorities cited."
+
+I propose, without comment, to call attention to what may be found upon
+this subject in conventional International Law, in one or two
+representative national codes, and in the considered judgment of the
+leading contemporary international lawyers.
+
+I. The Hague "Convention on the laws and customs of war on land"
+(ratified by twenty Powers) lays down:--
+
+      "ARTICLE 8.--Prisoners of war shall be subject to the laws,
+      regulations, and orders in force in the army of the State
+      into whose hands they have fallen. Any act of insubordination
+      warrants the adoption as regards them of such measures of
+      severity as may be necessary. Escaped prisoners, recaptured
+      before they have succeeded in rejoining their army, or before
+      quitting the territory occupied by the army that captured
+      them, are liable to disciplinary punishment. Prisoners who
+      after succeeding in escaping are again taken prisoners are
+      not liable to any punishment for their previous flight."
+
+The Hague Conference, in adopting this article, adopted also, as an
+"authentic interpretation" of it, a statement that the indulgence
+granted to escapes does not apply to such as are accompanied by "special
+circumstances," of which the instances given are "complot, rebellion,
+emeute."
+
+      "ARTICLE 12.--Any prisoner of war who is liberated on parole
+      and recaptured bearing arms against the Government to which
+      he had pledged his honour, or against the allies of that
+      Government, forfeits his right to be treated as a prisoner of
+      war, and can be put on his trial."
+
+II. The United States Instructions:--
+
+      "ARTICLE 77.--A prisoner of war may be shot or otherwise
+      killed in his flight; but neither death nor any other
+      punishment shall be inflicted on him simply for his
+      attempt.... If, however, a conspiracy is discovered, the
+      purpose of which is a united or general escape, the
+      conspirators may be rigorously punished even with death, &c."
+
+      "ARTICLE 78.--If prisoners of war, having given no pledge nor
+      made any promise on their honour, forcibly or otherwise,
+      escape, and are captured again in battle, having rejoined
+      their own army, they shall not be punished for their escape."
+
+      "ARTICLE 124.--Breaking the parole is punished with death when
+      the person breaking the parole is captured again."
+
+_Cf._ the French _Code de Justice Militaire_, Art. 204, and 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[B] 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 l'avait
+      donnee, peut etre prive des droits de prisonnier de guerre, a
+      moins que, posterieurement a sa liberation, il n'ait ete
+      compris dans un cartel d'echange sans conditions."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, June 17 (1901).
+
+
+THE PETITION OF RIGHT
+
+Sir,--This is, I think, not a convenient time, nor perhaps are 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 disquieted 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 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 unqualified," 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 shore as was the war
+with France in 1628, did not produce such a state of things as was
+described by the advocates of the Petition as "a time of war." "We have
+now no army in the field, and it is no time of war," said Mason in the
+course of the debates. "If the Chancery and Courts of Westminster be
+shut up, it is time of war, but if the Courts be open, it is otherwise;
+yet, if war be in any part of the Kingdom, that the Sheriff cannot
+execute the King's writ, there is _tempus belli_," said Rolls.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 31 (1901).
+
+
+THE PETITION OF RIGHT
+
+Sir,--In a letter which you allowed me to address to you a few days ago,
+I dealt with two perfectly distinct topics.
+
+In the first place I pointed out that the words occurring in a 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 document,
+but merely contain an accurate statement of fact as to the line of
+argument followed by the supporters of the Petition in the House of
+Commons. Can Mr. Jenks really suppose that in making this remark I was
+"appealing from the 'text of the Petition' to the debates in
+Parliament"?
+
+I then proceeded to deal very shortly with the Petition itself, showing
+that while it neither condemns nor approves of the application of
+martial law in time of war (see Lord Blackburn's observations in R. _v._
+Eyre), the prohibition contained in its martial law clauses, so far from
+being "absolute and unqualified," relates exclusively to "commissions of
+like nature" with certain commissions which had been lately issued (at a
+time which admittedly, for the purposes of this discussion, was not "a
+time of war"), the text of which is still preserved, and the character
+of which is set forth in the Petition itself, as having authorised
+proceedings within the land, "according to the justice of martial law,
+against such soldiers or mariners," as also against "such other
+dissolute persons joining with them," &c. The description of these
+commissions, be it observed, is not merely introduced into the Petition
+by way of recital, but is incorporated by express reference into the
+enacting clause.
+
+Thus much and no more I thought it desirable to say upon these two
+topics by way of dissent from a letter of Mr. Jenks upon the subject. In
+a second letter Mr. Jenks rides off into fresh country. I do not propose
+to follow him into the history of the conferences which took place in
+May, 1628, after the framing of the Petition of Right, except to remark
+that what passed at these conferences is irrelevant to the
+interpretation to be placed upon the Petition, and, if relevant, would
+be opposed to Mr. Jenks's contention. It is well known that the Lords
+pressed the Commons to introduce various amendments into the Petition
+and to add to it the famous reservation of the "sovereign power" of the
+King. One of the proposed amendments referred, as Mr. Jenks says, to
+martial law, forbidding its application to "any but soldiers and
+mariners," or "in time of peace, or when your Majesty's Army is not on
+foot." The Commons' objection to this seems to have been that it was
+both unnecessary and obscurely expressed. "Their complaint is against
+commissions in time of peace." "It may be a time of peace, and yet his
+Majesty's Army may be on foot, and that martial law was not lawful here
+in England in time of peace, when the Chancery and other Courts do sit."
+"They feared that this addition might extend martial law to the trained
+bands, for the uncertainty thereof." The objections of the Commons were,
+however, directed not so much to the amendments in detail as to any
+tampering with the text of the Petition. "They would not alter any part
+of the Petition" (nor did they, except by expunging two words alleged to
+be needlessly offensive), still less would they consent to add to it the
+reservation as to the "sovereign power" of the King.
+
+The story of these abortive conferences, however interesting
+historically, appears to me to have no bearing upon the legality of
+martial law, and I have no intention of returning to the subject.
+
+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. Clode's _Military and Martial Law_
+that the passage cited in support of Mr. Jellicoe's contention as to a
+proclamation having no retroactive application is merely to the effect
+that this is so, if certain statements, made many years ago in a debate
+upon the subject, are correct. As to their correctness, or otherwise,
+Mr. Clode expresses no opinion.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+
+       *       *       *       *       *
+
+SECTION 14
+
+_The Naval Bombardment of Open Coast Towns_
+
+    The four letters which first follow were suggested by the
+    British Naval Manoeuvres of 1888, during which operations
+    were supposed to be carried on, by the squadron playing the
+    part of a hostile fleet, which I ventured to assert to be in
+    contravention of international law. Many letters were written
+    by naval men in a contrary sense, and the report of a committee
+    of admirals appointed to consider, among other questions, "the
+    feasibility and expediency of cruisers making raids on an
+    enemy's coasts and unprotected towns for the purpose of levying
+    contributions," was to the effect that "there can be no doubt
+    about the feasibility of such operations by a maritime enemy
+    possessed of sufficient power; and as to the expediency, there
+    can be as little doubt but that any Power at war with Great
+    Britain will adopt every possible means of weakening her enemy;
+    and we know of no means more efficacious for making an enemy
+    feel the pinch of war than by thus destroying his property and
+    touching his pocket." (_Parl. Paper_, 1889 [c. 5632], pp. 4,
+    8.) The supposed hostile squadron had, it seems, received
+    express instructions "to attack any port in Great Britain."
+    (See more fully in the writer's _Studies in International Law_,
+    1898, p. 96.) The fifth letter was suggested by a Russian
+    protest against alleged Japanese action in 1904.
+
+    The subsequent history of this controversy, some account of
+    which will be found at the end of this section, has, it is
+    submitted, established the correctness of the views maintained
+    in it.
+
+
+NAVAL ATROCITIES
+
+Sir,--I trust we may soon learn on authority whether or no the 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 "shelling the fine marine residences
+and watering-places in the Vale of Clyde." Can this be true, and was
+there really any ground for expecting that "a bombardment of the outside
+coast of the Isle of Wight" would take place last night?
+
+Your obedient servant,
+T. E. HOLLAND.
+Athenaeum Club, 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 correspondent on board Her Majesty's ship _Ajax_ yesterday told us
+something of the opinion of the fleet as to the bombardment and
+ransoming of defenceless seaboard towns, going on to predict that, in a
+war in which England should be engaged, privateers would again be as
+plentiful as in the days of Paul Jones, and assuring us that in such a
+war "not the slightest respect would be paid to old-fashioned treaties,
+protocols, or other diplomatic documents." Captain James appears, from
+his letter which you print to-day, to be of the same opinion as the
+fleet, with reference both to bombardments and to privateers; telling us
+also in plain language that "the talk about international law is all
+nonsense."
+
+Two questions are thus raised which seem worthy of serious
+consideration. First, what are the rules of international law with
+reference to the bombardment of open towns from the sea (I leave out of
+consideration the better understood topic of privateering)? Secondly,
+are future wars likely to be conducted without regard to international
+law?
+
+1. I need hardly say that I do not, as Captain James supposes, contend
+"that unfortified towns will never be bombarded or ransomed."
+International law has never prohibited, though it has attempted to
+restrict, the bombardment of such towns. Even in 1694 our Government
+defended the destruction of Dieppe, Havre, and Calais only as a measure
+of retaliation, and in subsequent naval wars operations of this kind
+have been more and more carefully limited, till in the Crimean war our
+cruisers were careful to abstain from doing further damage than was
+involved in the confiscation or destruction of stores of arms and
+provisions. The principles involved were carefully considered by the
+military delegates of all the States of Europe at the Brussels
+Conference of 1874, and their conclusions, which apply, I conceive,
+_mutatis mutandis_, to operations conducted by naval forces against
+places on land, are as follows:--
+
+      "ARTICLE 15.--Fortified places are alone liable to be
+      besieged. Towns, agglomerations of houses, or villages which
+      are open or undefended cannot be attacked or bombarded."
+
+      "ARTICLE 16.--But if a town, &c., be defended, the commander
+      of the attacking forces should, before commencing a
+      bombardment, and except in the case of surprise, do all in his
+      power to warn the authorities."
+
+      "ARTICLE 40.--As private property should be respected, the
+      enemy will demand from parishes or the inhabitants only such
+      payments and services as are connected with the necessities of
+      war generally acknowledged, in proportion to the resources of
+      the country."
+
+      "ARTICLE 41.--The enemy in levying contributions, whether as
+      equivalents for taxes or for payments which should be made in
+      kind, or as fines, will proceed, as far as possible, according
+      to the rules of the distribution and assessment of the taxes
+      in force in the occupied territory. Contributions can be
+      imposed only on the order and on the responsibility of the
+      general in chief."
+
+      "ARTICLE 42.--Requisitions shall be made only by the authority
+      of the commandant of the locality occupied."
+
+These conclusions are substantially followed in the chapter on the
+"Customs of War" contained in the _Manual of Military Law_ issued for
+the use of officers by the British War Office.
+
+The bombardment of an unfortified town would, I conceive, be lawful--(1)
+as a punishment for disloyal conduct; (2) in extreme cases, as
+retaliation for disloyal conduct elsewhere; (3) for the purpose of
+quelling armed resistance (not as a punishment for resistance when
+quelled); (4) in case of refusal of reasonable supplies requisitioned,
+or of a reasonable money contribution in lieu of supplies. It would, I
+conceive, be unlawful--(1) for the purpose of enforcing a fancy
+contribution or ransom, such as we were told was exacted from Liverpool;
+(2) by way of wanton injury to private property, such as was supposed to
+have been caused in the Clyde and at Folkestone, and _a fortiori_ such
+as would have resulted from the anticipated shelling during the
+night-time of the south coast of the Isle of Wight.
+
+2. Is it the case that international law is "all nonsense," and that
+"when we are at war with an enemy he will do his best to injure us: he
+will do so in what way he thinks proper, all treaties and all so-called
+international law notwithstanding"? Are we, with Admiral Aube, to speak
+of "cette monstrueuse association de mots: les droits de la guerre"? If
+so, _cadit quaestio_, and a vast amount of labour has been wasted during
+the last three centuries. I can only say that such a view of the future
+is not in accordance with the teachings of the past. The body of
+accepted usage, supplemented by special conventions, which is known as
+international law, has, as a matter of fact, exercised, even in time of
+war, a re staining influence on national conduct. This assertion might
+be illustrated from the discussions which have arisen during recent wars
+with reference to the Geneva Conventions to the treatment of the wounded
+and the St. Petersburg declaration against the use of explosive bullets.
+The binding obligation of these instruments, which would doubtless be
+classed by your correspondent with the fleet among "old-fashioned
+treaties, protocols, and other diplomatic documents," has never been
+doubted, while each party has eagerly endeavoured to disprove alleged
+infractions of them.
+
+The naval manoeuvres have doubtless taught many lessons of practical
+seamanship. They will have done good service of another sort if they
+have brought to the attention of responsible statesmen such questions as
+those with which I have attempted to deal. It is essential that the
+country should know the precise extent of the risks to which our
+seaboard towns will be exposed in time of war, and it is desirable that
+our naval forces should be warned against any course of action, in their
+conduct of mimic warfare, which could be cited against us, in case we
+should ever have to complain of similar action on the part of a real
+enemy.
+
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, August 18 (1888).
+
+
+THE NAVAL MANOEUVRES
+
+Sir,--In my first letter I called attention to certain operations of the
+_Spider_ and her consorts which seemed to be inspired by no principle
+beyond that of doing unlimited 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 principles
+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 I have stated it to
+be is, indeed, overwhelming; but I should like to call special attention
+to the _Manuel de Droit International a l'Usage des Officiers de l'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 contributions. The Duke of Wellington, 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 advocated
+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 civilised portions
+      of mankind?"
+
+The naval historian, Mr. Younge, in commenting on the burning of Paita,
+in Chili, as far back as 1871, for non-compliance with a demand for a
+money contribution (ultimately reduced to a requisition of provisions
+for the ships), speaks of it as "worthy only of the most lawless pirate
+or buccaneer, ... as a singular proof of how completely the principles
+of civilised warfare were conceived to be confined to Europe."
+
+Such exceptional acts as the burning of Paita, or the bombardment of
+Valparaiso, mentioned by Mr. Herries, will, of course, occur from time
+to time. My position is that they are so far stigmatised as barbarous by
+public opinion that their perpetration in civilised warfare may be
+regarded as improbable; in other words, that they are forbidden by
+international law.
+
+It is a further question whether the rules of international law on this
+point are to be changed or disregarded in future. Do we expect, and are
+we desirous, that future wars shall be conducted in accordance with
+buccaneering precedent, or with what has hitherto been the general
+practice of the nineteenth century? Your naval correspondents incline to
+revert to buccaneering and thus to the introduction into naval coast
+operations of a rigour long unknown to the operations of military forces
+on land; but they do so with a difference. Lord Charles Beresford
+(writing early in the controversy) asserts the permissibility of
+ransoming and destroying, without any qualifying expressions; while
+Admiral de Horsey would apparently only ask "rich" towns for
+contributions, insisting also that a contribution must be "reasonable,"
+and expressly repudiating any claim to do "wanton injury to property of
+poor communities, and still less to individuals." In the light of these
+concessions, I venture to claim Admiral de Horsey's concurrence in my
+condemnation of most of the doings mentioned in my first letter,
+although on the whole he ranges himself on the side of the advocates of
+what I maintain to be a change in the existing law of war. Whether or no
+the existing law needs revision is a question for politicians and for
+military and naval experts. It is within my province only to express a
+hope that the contradiction between existing law and new military
+necessities (if, indeed, such contradiction exists) will not be solved
+by a repudiation of all law as "nonsense"; and, further, that, if a
+change of law is to be effected, it will be done with due deliberation
+and under a sense of responsibility. It should be remembered that
+operations conducted with the apparent approval of the highest naval
+authorities, and letters in _The Times_ from distinguished admirals, are
+in truth the stuff that public opinion, and in particular that
+department of public opinion known as "international law," is made of.
+
+The ignorance, by the by, which certain of my critics have displayed of
+the nature and claims of international law is not a little surprising.
+Some seem to identify it with treaties; others with "Vattel." Several,
+having become aware that it is not law of the kind which is enforced by
+a policeman or a County Court bailiff, have hastened, much exhilarated,
+to give the world the benefit of their discovery. Most of them are under
+the impression that it has been concocted by "bookworms," "jurists,"
+"professors," or other "theorists," instead of, as is the fact, mainly
+by statesmen, diplomatists, prize courts, generals and admirals. This
+is, however, a wide field, into which I must not stray. I have even
+avoided the pleasant by-paths of disquisition on contraband,
+privateering, and the Declaration of Paris generally, into which some of
+your correspondents have courteously invited me. I fear we are as yet
+far from having disposed of the comparatively simple question as to the
+operations which may be properly undertaken by a naval squadron against
+an undefended seaboard.
+
+I am, your obedient servant,
+T. E. HOLLAND.
+Llanfairfechan, August 27 (1888).
+
+
+NAVAL BOMBARDMENTS OF UNFORTIFIED PLACES
+
+Sir,--The protest reported to have been lodged by the Russian Government
+against the bombardment by the Japanese fleet of a quarantine station on
+the island of San-shan-tao, apart from questions of fact, as to which we
+have as yet no reliable information, recalls attention 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
+_Reglement_ 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 _Reglement_, but a proposal
+to bring such action within the scope of its 25th Article, which
+prohibits "the attack or bombardment of towns, villages, habitations, or
+buildings which are not defended," was expressly negatived by the
+Conference of The Hague. It became abundantly clear, during the
+discussion of this proposal, that the only chance of an agreement being
+arrived at was that any allusion to maritime warfare should be carefully
+avoided. It was further ultimately admitted, even by the advocates of
+the proposal, that the considerations applicable to bombardments by an
+army and by a naval force respectively are not identical. It was, for
+instance, urged that an army has means other than those which may alone
+be 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 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 contravention of international law. It was also thoroughly debated in
+1896 at the Venice meeting of the Institut de Droit International upon a
+report drafted by myself, as chairman of a committee appointed a year
+previously. This report lays down that the restrictions placed by
+international law upon bombardments on land apply also to those effected
+from the sea, except that such operations are lawful for a naval force
+when undertaken with a view to (1) obtaining supplies of which it is in
+need; (2) destroying munitions of war or warships which may be in a
+port; (3) punishing, by way of reprisal, violations by the enemy of the
+laws of war. Bombardments for the purpose of exacting a ransom or of
+putting pressure upon the hostile Power by injury to peaceful
+individuals or their property were to be unlawful. The views of the
+committee were, in substance, adopted by the Institut, with the omission
+only of the paragraph allowing bombardment by way of reprisals.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, April 2 (1904).
+
+
+    The "Hague Conference" and "Hague Convention" to which
+    reference was made in the last of these letters were, of
+    course, those of 1899.
+
+    For the action taken by the Institut de Droit International in
+    1895 and 1896, on the initiative of the present writer, see the
+    _Annuaire de l'Institut_, t. xiv p. 295, t. xv. pp. 145-151,
+    309, 317; and his _Studies in International Law_, pp. 106-111.
+    See also, at p. 104 of the same work, an opinion given by him
+    to the Chevalier Tindal as to the liability of The Hague to be
+    bombarded.
+
+    The later growth of opinion has been in accordance with the
+    views maintained by the writer of these letters, and with the
+    _Rapport_ drafted by him for the Institut. The Hague Conference
+    of 1899, though unable to discuss the subject, had registered a
+    _vaeu_ "that the proposal to regulate the question of the
+    bombardment of ports, towns and villages by a naval force may
+    be referred for examination to a future Conference." See _Parl.
+    Paper, Miscell._ No. 1 (1889), pp. 139, 146, 162, 165, 258,
+    283. At the Conference of 1907 a Convention, No. ix., was
+    accordingly signed and generally ratified, notably by Germany
+    and Great Britain, Art. 1 of which prohibits "the bombardment
+    by naval forces of ports towns, villages, houses, or buildings
+    which are not defended," Germany, France, Great Britain and
+    Japan dissenting from the second paragraph of this article,
+    which explains that a place is not to be considered to be
+    defended merely because it is protected by submarine
+    contact-mines. Bombardment is, however, permitted, by Art. 2,
+    of places which are, in fact, military or naval bases, and, by
+    Arts. 3 and 4, of places which refuse to comply with reasonable
+    requisitions for food needed by the fleet, though not for
+    refusal of money contributions. The _Acte Final_ of the
+    Conference further registers a _vaeu_ that "the Powers should,
+    in all cases, apply, as far as possible, to war at sea the
+    principles of the Convention concerning the laws and customs of
+    war on land." (_Parl. Paper, Miscell._ No. 1 (1908), p. 30.)
+    This Convention, No. iv. of 1907, in Art. 25 of the _Reglement_
+    annexed to it, lays down that "the attack or bombardment, by
+    whatsoever means, of towns, villages, habitations, or buildings
+    which are not defended is prohibited."
+
+    The British Government had, in 1907, so far departed from the
+    Admiralty views of 1888 as to instruct their delegates to the
+    Conference of that year to the effect that "the Government
+    consider that the objection, on humanitarian grounds, to the
+    bombardment of unfortified towns is too strong to justify a
+    resort to that measure, even though it may be permissible under
+    the abstract doctrines of international law [?]. They wish it,
+    however, to be clearly understood that any general prohibition
+    of such practice must not be held to apply to such operations
+    as the bombardment of towns or places used as bases or
+    storehouses of naval or military equipment or supply, or ports
+    containing fighting ships, and that the landing of troops, or
+    anything partaking of the character of a military or naval
+    operation, is also not covered."
+
+    It is hardly necessary to chronicle the indignation aroused by
+    the raids upon undefended coast towns carried out by German
+    cruisers during the war of 1914, in violation of modern
+    International Law and notwithstanding the German ratification
+    of Convention No. ix. of 1907.
+
+       *       *       *       *       *
+
+SECTION 15
+
+_Belligerent Reprisals_
+
+
+REPRISALS
+
+Sir,--The controversy as to the legitimacy of the recent attack on
+Freiburg tends to stray into irrelevancies. If the attack was made upon
+barracks or troop trains no one would surely criticise what is of
+everyday occurrence, although not unlikely to cause incidentally death
+or injury to innocent persons. There seems, however, to be no reason for
+supposing that such military objects were in view, or that our
+aeroplanes were instructed to confine their activity, as far as
+possible, to the attainment of such objects. We must assume, for any
+useful discussion of the question raised, that the operation was
+deliberately intended to result in injury to the property and persons of
+civilian inhabitants, not, of course, by way of vengeance, but by way of
+reprisal--_i.e._ with the practical object of inducing the enemy to
+abstain in the future from his habitually practised illegal barbarities.
+Such reprisals, as is to-day so well explained by your correspondent
+"Jurist," are no violations of international law. Objections might, of
+course, be made to them as unlikely to produce their hoped-for effect,
+or as repugnant to our feelings of humanity or honour. They are not
+illegal.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, May 4 (1917).
+
+
+REPRISALS
+
+Sir,--If my friend Sir Edward Clarke will glance again at my letter of
+Monday, he will, I think, cease to be surprised that it contains no
+answer to his censure from an ethical standpoint of our treatment of
+Freiburg. My object was merely to indicate the desirability of keeping
+the question whether acts of the kind are in violation of international
+law (which I answered in the negative) distinct from questions, which I
+catalogued, as to their practical inutility, with which some of your
+correspondents have occupied themselves, or their repugnancy to feelings
+of honour and humanity with which Sir Edward has dealt exclusively. Any
+discussion of political expediency or of high morals would have been
+beside my purpose.
+
+It is curious that Sir Herbert Stephen should to-day speak of my letter
+of the 7th as a defence of the aerial bombardment of Freiburg. It
+neither attacked nor defended the bombardment, but, solely in the
+interests of clear thinking, indicated the desirability of keeping
+distinct the three points of view from which the topic may be regarded,
+viz.: (1) of international law; (2) of practical utility; (3) of
+morality and honour.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, May 9 (1917).
+
+       *       *       *       *       *
+
+SECTION 16
+
+_Peace_
+
+
+UNDESIRABLE PEACE TALK
+
+Sir,--There has been more than enough of premature discussion by groups
+of well-meaning amateurs, not unfrequently wirepulled by influences
+hostile to this country, with reference to the terms of the treaty of
+peace by which the world-war now raging will be brought to a close.
+
+Movements of the kind have culminated in the action of a body rejoicing
+in the somewhat cumbrous title of the "International Central
+Organisation for a Durable Peace," which is inviting members of about
+fifty societies, of very varying degrees of competence, to a
+cosmopolitan meeting, to be held at Berne in December next. Lest the
+unwary should be beguiled into having anything to do with the plausible
+offer made to them that they should, there and then, assist in compiling
+"a scientific dossier, containing material that will be of vast
+importance to the diplomats who may be chosen to participate in the
+peace congress itself," it may be worth while to call attention to the
+composition of the executive committee by which the invitations are
+issued, and to its "minimum programme."
+
+Of the members of this committee (of thirteen), on which Great Britain
+is represented only by Mr. Lowes Dickenson (mistakenly described as a
+Cambridge Professor), and America only by Mrs. Andrews, of Boston, the
+best known are Professors Lammasch, of Vienna, and Schuecking, of
+Marburg. The "minimum programme" demands, _inter alia_, "equal rights
+for all nations in the colonies, &c.," of the Powers; submission of all
+disputes to "pacific procedure," joint action by the Powers against any
+one of them resorting to military measures, rather than to such
+procedure; and that "the right of prize shall be abolished, and the
+freedom of the seas shall be guaranteed." The _provenance_ of this
+"minimum programme" is sufficiently obvious. What is likely to be the
+character of such a "maximum programme" as will doubtless be aimed at by
+the proposed gathering?
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, October 16 (1915).
+
+
+
+
+CHAPTER VII
+
+THE RIGHTS AND DUTIES OF NEUTRALS
+
+
+SECTION 1
+
+_The Criterion of Neutral Conduct_
+
+    The main object of the first of the following letters was to
+    assert, as against any possible misunderstanding of phraseology
+    attributed to a great international lawyer (since lost to
+    science and to his friends by his sudden death on June 20,
+    1909), the authority by which alone neutral rights and duties
+    are defined.
+
+    The letter also touches upon the limit of time which a neutral
+    Power is bound to place upon the stay in its ports of
+    belligerent ships of war; a topic more fully discussed in
+    Section 4.
+
+
+PROFESSOR DE MARTENS ON THE SITUATION
+
+Sir,--The name of my distinguished friend, M. de Martens, carries so
+much weight that I hope you will allow me at once to say that I am
+convinced that to-day's telegraphic report of some communication made by
+him to the St. Petersburg newspapers fails to convey an accurate account
+of the views which he has thus expressed.
+
+On matters of fact it would appear that he is no better informed than
+are most of us in this country; and under matters of fact may be
+included the breaches of neutrality which he is represented as
+counter-charging against the Japanese. It is exclusively with the views
+on questions of law which are attributed to Professor de Martens that I
+am now concerned. He is unquestionably right in saying, as I pointed out
+in a recent letter, that the hard-and-fast rule, fixing 24 hours as the
+limit, under ordinary circumstances, of the stay of a belligerent
+warship in neutral waters, is not yet universally accepted as a rule of
+international law; and, in particular, is not adopted by France.
+
+But what of the further _dictum_ attributed to Professor de Martens, to
+the effect that "each country is its own judge as regards the discharge
+of its duties as a neutral"? This statement would be a superfluous
+truism if it meant merely that each country, when neutral, must, in the
+first instance, decide for itself what courses of action are demanded
+from it under the circumstances. The words may, however, be read as
+meaning that the decision of the neutral country, as to the propriety of
+its conduct, is final, and not to be questioned by other Powers. An
+assertion to this effect would obviously be the negation of the whole
+system of international law, of which Professor de Martens is so great a
+master, resting, as that system does, not on individual caprice, but
+upon the agreement of nations in restraint of the caprice of any one of
+them. The last word, with reference to the propriety of the conduct of
+any given State, rests, of course, not with that State; but with its
+neighbours. "Securus indicat orbis terrarum." Any Power which fails in
+the discharge, to the best of its ability, of a generally recognised
+duty, is likely to find that self-satisfaction is no safeguard against
+unpleasant consequences. Professor de Martens would, I am certain,
+endorse this statement.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, May 12 (1905).
+
+
+NEUTRALS AND THE LAWS OF WAR
+
+Sir,--The interesting address by Sir Edward Carson reported in your
+issue of yesterday will remind many of us of our regret that President
+Wilson, in Notes complaining of injuries sustained by American citizens,
+dwelt so slightly upon the violations of international law by which
+those injuries were brought about.
+
+Sir Edward seems, however, to have made use of certain expressions which
+might be taken to imply a view of neutral responsibility which can
+hardly be accepted. The United States were warned in the address that
+they will not "by a mere Note maintain the obligations which are put
+upon them, as parties to international law, which are to prevent
+breaches of civilisation and to mitigate the horrors of war." Neutrals
+were spoken of as "the executives of international law," and as alone
+standing "behind the conventions" (for humanising warfare). "Abolish,"
+we were told, "the power of neutrals, and you have abolished
+international law itself."
+
+Is this so? The contract into which a State enters with other States, by
+adopting the customary laws of war and by ratifying express Conventions
+dealing with the same subject, obliges it, while remaining neutral, to
+submit to certain inconveniences resulting from the war, and, when
+belligerent, to abstain from certain modes of carrying on hostilities.
+It is assuredly no term of the contract that the State in question shall
+sit in judgment upon its co-contractors and forcibly intervene in _rebus
+inter alios actis_. Its hands are absolutely free. It may remain a
+quiescent spectator of evil, or, if strong enough and indignant with the
+wrongdoing, may endeavour to abate the mischief by remonstrance, and, in
+the last resort, by taking sides against the offender. Let us hope that
+at the present crisis the United States may see their way to choosing
+the better part.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, November 28 (1915).
+
+       *       *       *       *       *
+
+SECTION 2
+
+_The Duties of Neutral States, and the Liabilities of Neutral
+Individuals, distinguished_
+
+    The duties of neutral States have been classified by the
+    present writer under the heads, of "Abstention," "Prevention,"
+    and "Acquiescence." (_Transactions of the British Academy_,
+    vol. ii, p. 55; reproduced in the _Revue de Droit
+    International_, the _Revista de Derecho International_, and the
+    _Marine Rundschau_.) In the three letters which follow, an
+    attempt is made to point out the confusion which has resulted
+    from failure to distinguish between the two last-mentioned
+    heads of neutral duty; on the one hand, namely, the cases in
+    which a neutral government is bound itself to come forward and
+    take steps to prevent certain classes of action on the part of
+    belligerents, or of its own subjects, e.g. the overstay in its
+    ports of belligerent fleets, or the export from its shores of
+    ships of war for belligerent use; and, on the other hand, the
+    cases in which the neutral government is bound only to
+    passively acquiesce in interference by belligerents with the
+    commerce of such of its subjects as may choose, at their own
+    risk and peril, to engage in carriage of contraband, breach of
+    blockade, and the like.
+
+    I. A neutral State is bound to prevent its territory from
+    becoming, in any way, a "base of operations" for either
+    belligerent. Of the various obligations thus arising, the
+    following letters deal with the duty of the State (1) to
+    prevent the departure from its ports of vessels carrying coal
+    intended to supply directly the needs of a belligerent fleet;
+    and (2) to prevent the reception accorded in its ports to
+    belligerent warships from being such as will unduly facilitate
+    their subsequent operations. It is pointed out that the rule
+    adopted by the United States and this country, as well as by
+    some others, when neutral, by which the stay of belligerent
+    warships is limited to twenty-four hours, has not been adopted
+    by the nations of the European continent. The attempt made at
+    The Hague Conference of 1907 to secure the general acceptance
+    of this rule was unsuccessful; and Convention No. xiii. of that
+    year, not yet ratified by Great Britain, which deals with this
+    subject, merely lays down, in Art. 12, that "_In the absence of
+    special provisions to the contrary in the legislation of a
+    neutral Power_, belligerent warships are not permitted to
+    remain in the ports, roadsteads, or territorial waters of the
+    said Power for more than twenty-four hours, except in the cases
+    covered by this Convention." Art. 27 obliges the contracting
+    Powers to "communicate to each other in due course all laws,
+    proclamations, and other enactments, regulating in their
+    respective countries the _Status_ of belligerent warships in
+    their ports laid waters."
+
+    II. A neutral State is not bound to prevent such assistance
+    being rendered by its subjects to either belligerent as is
+    involved in, e.g. blockade-running or carriage of contraband;
+    but merely to acquiesce in the loss and inconvenience which may
+    in consequence be inflicted by the belligerents upon persons so
+    acting. In order to explain this statement, it became necessary
+    to say much as to the true character of "carriage of
+    contraband" (although this topic is more specifically dealt
+    with in the letters contained in Section 5), and to point out
+    that such carriage is neither a breach of international law nor
+    forbidden by the law of England. For the same reason, it seemed
+    desirable to criticise some of the clauses now usually inserted
+    in British Proclamations of Neutrality.
+
+    The view here maintained commended itself to the Institut de
+    Droit International, at its Cambridge and Venice sessions,
+    1895, 1896, as against the efforts of MM Kleen and Brusa to
+    impose on States a duty of preventing carriage of contraband by
+    its subjects (_Annuaire_, t. xiv. p. 191, t. xv. p. 205). It
+    has now received formal expression in The Hague Convention No.
+    x. of 1907, Art. 7 of which lays down that "a neutral Power is
+    _not_ bound to prevent the export or transit, for the use of
+    either belligerent, of arms, ammunition, or, in general, of
+    anything which could be of use to an army or fleet."
+
+
+CONTRABAND OF WAR
+
+Sir,--As a good deal of discussion is evidently about to take place as
+to the articles which may be properly treated as contraband of war, and,
+in particular, as to coal being properly so treated, I venture to think
+that it may be desirable to reduce this topic (a sufficiently large one)
+to its true dimensions by distinguishing it from other topics with which
+it is too liable to be confused.
+
+Articles are "contraband of war" which a belligerent is justified in
+intercepting while in course of carriage to his enemy, although such
+carriage is being effected by a neutral vessel. Whether any given
+article should be treated as contraband is, in the first instance,
+entirely a question for the belligerent Government and its Prize Court.
+A neutral Government has no right to complain, of hardships which may
+thus be incurred by vessels sailing under its flag, but is bound to
+acquiesce in the views maintained by the belligerent Government and its
+Courts, unless these views involve, in the language employed by Lord
+Granville in 1861, "a flagrant violation of international law." This is
+the beginning and end of the doctrine of contraband. A neutral
+Government has none other than this passive duty of acquiescence. Its
+neutrality would not be compromised by the shipment from its shores, and
+the carriage by its merchantmen, of any quantity of cannon, rifles, and
+gunpowder.
+
+Widely different from the above are the following three topics, into the
+consideration of which discussions upon contraband occasionally
+diverge:--
+
+1. The international duty of the neutral Government not to allow its
+territory to become a base of belligerent operations: e.g. by the
+organisation on its shores of an expedition, such as that which in 1828
+sailed from Plymouth in the interest of Dona Maria; by the despatch from
+its harbours for belligerent use of anything so closely resembling an
+expedition as a fully equipped ship of war (as was argued in the case of
+the _Alabama_); by the use of its ports by belligerent ships of war for
+the reception of munitions of war, or, except under strict limitations,
+for the renewal of their stock of coal; or by such an employment of its
+colliers as was alleged during the Franco-Prussian war to have
+implicated British merchantmen in the hostile operations of the French
+fleet in the North Sea. The use of the term "contraband" with reference
+to the failure of a neutral State to prevent occurrences of this kind is
+purely misleading.
+
+2. The powers conferred upon a Government by legislation of restraining
+its subjects from intermeddling in a war in which the Government takes
+no part. Of such legislation our Foreign Enlistment Act is a striking
+example. The large powers conferred by it have no commensurable relation
+to the duties which attach to the position of neutrality. Its effect is
+to enable the Government to prohibit and punish, from abundant caution,
+many acts on the part of its subjects for which it would incur no
+international liability. It does empower the Government to prevent the
+use of its territory as a base: e.g. by aid directly rendered thence
+to a belligerent fleet; but it, of course, gives no right of
+interference with the export or carriage of articles which may be
+treated as contraband.
+
+3. The powers conferred upon a Government by such legislation as section
+150 of the Customs Consolidation Act; 1853, now reproduced in a later
+enactment, of forbidding at any time, by Order in Council, the export of
+articles useful in war. The power thus given has no relation to
+international duty, and is mainly intended to be exercised, in the way
+of self-protection, when Great Britain is, or is likely to be, engaged
+in war. The object of the enactment is to enable the Government to
+retain in the country articles of which we may ourselves be in need, or
+to prevent them from reaching the hands of our enemies. The articles
+enumerated--e.g. arms, ammunition, marine engines, &c.--are, neither
+in the Act of 1853 nor in the Order in Council of the following year,
+described as "contraband of war."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, March 5 (1904).
+
+
+COAL FOR THE RUSSIAN FLEET
+
+Sir,--The use of coal for belligerent purposes is, of course, of
+comparatively modern date, and it is hardly surprising to find that the
+mercantile community, as would appear from your marine insurance article
+of this morning, does not clearly distinguish between the different
+classes of questions to which such use may give rise. There is indeed a
+widely prevalent confusion, even in quarters which ought to be better
+informed, between two topics which it is essential to keep
+separate--viz. the shipment of contraband, and the use of neutral
+territory as a base for belligerent operations.
+
+A neutral Government (our own at the present moment) occupies a very
+different position with reference to these two classes of acts. With
+reference to the former, its international duty (as also its national
+policy) is merely one of acquiescence. It is bound to stand aside, and
+make no claim to protect from the recognised consequences of their acts
+such of its subjects as are engaged in carriage of contraband. So far as
+the neutral Government is concerned, its subjects may carry even cannon
+and gunpowder to a belligerent port, while the belligerent, on the other
+hand, who is injured by the trade may take all necessary stops to
+suppress it.
+
+Such is the compromise which long experience has shown to be both
+reasonable and expedient between the, in themselves irreconcilable,
+claims of neutral and belligerent States. So far, it has remained
+unshaken by the arguments of theorists, such as the Swedish diplomatist
+M. Kleen, who would impose upon neutral Governments the duty of
+preventing the export of contraband by their subjects. A British trader
+may, therefore, at his own proper risk, despatch as many thousand tons
+of coal as he chooses, just as he may despatch any quantity of rifles or
+bayonets, to Vladivostok or to Nagasaki.
+
+It by no means follows that British shipowners may charter their vessels
+"for such purposes as following the Russian fleet with coal supplies."
+Lord Lansdowne's recent letter to Messrs. Woods, Tylor, and Brown is
+explicit to the effect that such conduct is "not permissible." Lord
+Lansdowne naturally confined himself to answering the question which had
+been addressed by those gentlemen to the Foreign Office; but the reason
+for his answer is not far to seek. The unlawfulness of chartering
+British vessels for the purpose above mentioned is wholly unconnected
+with the doctrine of contraband, but is a consequence of the
+international duty, which if incumbent on every neutral State, of seeing
+that its territory is not made a base of belligerent operations. The
+question was thoroughly threshed out as long ago as 1870, when Mr.
+Gladstone said in the House Of Commons that the Government had adopted
+the opinion of the law officers:
+
+      "That if colliers are chartered for the purpose of attending
+      the fleet of a belligerent and supplying it with coal, to
+      enable it to pursue its hostile operations, such colliers
+      would, to all practical purposes, become store-ships to the
+      fleet, and would be liable, if within reach, to the operation
+      of the English law under the (old) Foreign Enlistment Act."
+
+British colliers attendant on a Russian fleet would be so undeniably
+aiding and abetting the operations of that fleet as to give just cause
+of complaint against us to the Government of Japan. The British shipper
+of coal to a belligerent fleet at sea, besides thus laying his
+Government open to a charge of neglect of an international duty, lays
+himself open to criminal proceedings under the Foreign Enlistment Act of
+1870. By section 8 (3) and (4) of that Act "any person within H.M.
+Dominions" who (subject to certain exceptions) equips or despatches any
+ship, with intent, or knowledge, that the same will be employed in the
+military or naval service of a foreign State, at war with any friendly
+State, is liable to fine or imprisonment, and to the forfeiture of the
+ship. By section 30, "naval service" covers "user as a store-ship," and
+"equipping" covers furnishing a ship with "stores or any other thing
+which is used in or about a ship for the purpose of adapting her for
+naval service." Our Government has, therefore, ample powers for
+restraining, in this respect, the use of its territory as a base. It has
+no power, had it the wish (except for its own protection, under a
+different statute), to restrain the export of contraband of war.
+
+It would tend to clearness of thought if the term "contraband" were
+never employed in discussions with reference to prohibition of the
+supply of coal to a belligerent fleet at sea.
+
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, November 7 (1904).
+
+
+GERMAN WAR MATERIAL FOR TURKEY
+
+Sir,--The _Cologne Gazette_ rightly treats as incredible the rumour,
+mentioned by your Sofia Correspondent, that a trainload of munitions of
+war had been despatched by the German Government for the use of Turkey,
+while admitting that such a consignment may very likely have been
+forwarded from private German workshops.
+
+It has long been settled international law that a neutral Government,
+while, on the one hand, it is precluded from itself supplying munitions
+to a belligerent, is, on the other hand, not bound to prevent private
+individuals from so acting. The latter half of this rule has now
+received written expression in Art. 7 of The Hague Convention No. v. of
+1907, which deals with "Neutral Powers and Persons in War on Land."
+
+The only fault to be found with the paragraph in the _Cologne Gazette_
+quoted by your Berlin Correspondent, supposing it to be correctly
+transcribed, would be that it seems to imply that the above-mentioned
+Art. 7 legitimatises the supply of war material to belligerents by
+"neutral States." It is, however, obvious from the rest of the paragraph
+that the _Gazette_ is not really under that impression.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 24 (1911).
+
+       *       *       *       *       *
+
+SECTION 3
+
+_Neutrality Proclamations_
+
+    The criticisms directed against the Proclamation of 1904, in
+    the first two letters which follow, have produced some
+    improvement in Proclamations of later date. See the last two
+    letters of this section. See also Appendix A in F.E. Smith and
+    N.W. Sibley's _International Law in the Russo-Chinese War_
+    (1905), devoted to a consideration of those criticisms.
+
+
+THE BRITISH PROCLAMATION OF NEUTRALITY
+
+Sir,--You were good enough to insert in your issue of November 9 some
+observations which I had addressed to you upon the essential difference
+between carriage of contraband, which takes place at the risk of the
+neutral shipowner, and use of neutral territory as a base for
+belligerent operations, an act which may implicate the neutral Power
+internationally, while also rendering the shipper liable to penal
+proceedings on the part of his own Government. I am gratified, to find
+that the views thus expressed by me are in exact accordance with those
+set forth by Lord Lansdowne in his reply of November 25 to the Chamber
+of Shipping of the United Kingdom. Perhaps you will allow me to say
+something further upon the same subject, suggested by several letters
+which appear in your paper of this morning. I am especially desirous of
+emphasising the proposition that carriage of contraband is no offence,
+either against international law or against the law of England.
+
+1. The rule of international law upon the subject may, I think, be
+expressed as follows: "A belligerent is entitled to capture a neutral
+ship engaged in carrying contraband of war to his enemy, to confiscate
+the contraband cargo, and, in some cases, to confiscate the ship also,
+without thereby giving to, the Power to whose subjects the property in
+question belongs any ground for complaint." Or, to vary the phrase, "a
+neutral Power is bound to acquiesce in losses inflicted by a belligerent
+upon such of its subjects as are engaged in adding to the military
+resources of the enemy of that belligerent." This is the rule to which
+the nations have consented, as a compromise between the right of the
+neutral State that its subjects should carry on their trade without
+interruption, and the right of the belligerent State to prevent that
+trade from bringing an accession of strength to his enemy. International
+law here, as always, deals with relations between States, and has
+nothing to do with the contraband trader, except in so far as it
+deprives him of the protection of his Government. If authority were
+needed for what is here advanced, it might be found in Mr. Justice
+Story's judgment in the _Santissima Trinidad_, in President Pierce's
+message of 1854, and in the statement by the French Government in 1898,
+with reference to the case of the _Fram_, that "the neutral State is not
+required to prevent the sending of arms and ammunition by its subjects."
+
+2. Neither is carriage of contraband any offence against the law of
+England; as may be learnt, by any one who is in doubt as to the
+statement, from the lucid language of Lord Westbury in _Ex parte
+Chavasse_ (34 L.J., Bkry., 17). And this brings me to the gist of this
+letter. I have long thought that the form of the Proclamation of
+Neutrality now in use in this country much needs reconsideration and
+redrafting. The clauses of the Proclamation which are set out by Mr.
+Gibson Bowles in your issue of this morning rightly announce that every
+person engaging in breach of blockade or carriage of contraband "will be
+justly liable to hostile capture and to the penalties denounced by the
+law of nations in that behalf, and will in no wise obtain protection
+from us against such capture or such penalties." So far, so good. But
+the Proclamation also speaks of such acts as those just mentioned as
+being done "in contempt of this our Royal Proclamation, in derogation of
+their duty as subjects of a neutral Power in a war between other Powers,
+or in violation or contravention of the law of nations in that behalf."
+It proceeds to say that all persons "who may misconduct themselves in
+the premises ... will incur our high displeasure for such misconduct." I
+venture to submit that all these last-quoted phrases are of the nature
+of misleading rhetoric, and should be eliminated from a statement the
+effective purport of which is to warn British subjects of the treatment
+to which certain courses of conduct will expose them at the hands of
+belligerents, and to inform them that the British Government will not
+protect them against such treatment. The reason why our Government will
+abstain from interference is, not that such courses of action are
+offences either against international or English law, but that it has no
+right to so interfere; having become a party to a rule of international
+law, under which a neutral Government waives the right, which it would
+otherwise possess, to protect the trade of its subjects from
+molestation.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, November 28 (1904).
+
+
+THE BRITISH PROCLAMATION OF NEUTRALITY
+
+Sir,--Enquiries which have reached me with reference to the observations
+which I recently addressed to you upon the British Proclamation of
+Neutrality induce me to think that some account of the development of
+the text of the proclamation now in use may be of interest to your
+readers. The proclamations with which I am acquainted conform to one or
+other of two main types, each of which has its history.
+
+1. The earlier proclamations merely call attention to the English law
+against enlistments, &c., for foreign service; and command obedience to
+the law, upon pain of the penalties thereby inflicted, "and of his
+Majesty's high displeasure." In the proclamation of 1817, the tacit
+reference is doubtless to certain Acts of George II, which, having been
+passed for a very different purpose, and having proved inadequate in
+their new application, were repealed by the Foreign Enlistment Act of
+1819. This is the Act to which reference is made in the proclamations of
+1823 and 1825; in the former of which we first get a recital of
+neutrality; while in the latter the clause enjoining all subjects
+strictly to observe the duties of neutrality and to respect the exercise
+of belligerent rights first makes its appearance.
+
+2. The proclamation of 1859 is of a very different character, bearing
+traces of the influence of the ideas which had inspired the action of
+President Washington in 1793. While carrying on the old, it presents
+several new features. British subjects are enjoined to abstain from
+violating, not only "the laws and statutes of the realm," but also (for
+the first time) "the law of nations." They are also (for the first time)
+warned that, if any of them "shall presume, in contempt of this our
+Royal Proclamation, and of our high displeasure, to do any acts in
+derogation of their duty as subjects of a neutral Sovereign, ... or in
+violation of the law of nations, ... as, more especially," by breach of
+blockade, or carriage of contraband, &c., they will "rightfully incur,
+and be justly liable to, hostile capture, and to the penalties denounced
+by the law of nations in that behalf"; and notice is (for the first
+time) given that those "who may misconduct themselves in the premises
+will do so at their peril, and of their own wrong; and that they will in
+no wise obtain any protection from Us against such capture, or such
+penalties as aforesaid, but will, on the contrary, incur Our high
+displeasure by such misconduct."
+
+The proclamations of 1861 and February and March 1866 complicate
+matters, by making the warning clause as to blockade and contraband
+apply also to the statutory offences of enlistment, &c.; but the
+proclamation of June, 1866, gets rid of this complication by returning
+to the formula of 1859, which has been also followed in 1870, 1877,
+1898, and in the present year.
+
+The formula as it now stands, after the process of growth already
+described, may be said to consist of seven parts--viz. (1) a recital
+of neutrality; (2) a command to subjects to observe a strict neutrality,
+and to abstain from contravention of the laws of the realm or the law of
+nations in relation thereto; (3) a recital of the Foreign Enlistment Act
+of 1870; (4) a command that the statute be obeyed, upon pain of the
+penalties thereby imposed, "and of Our high displeasure"; (5) a warning
+to observe the duties of neutrality, and to respect the exercise of
+belligerent rights; (6) a further warning to those who, in contempt of
+the proclamation "and of Our high displeasure," may do any acts "in
+derogation of neutral duty, or in violation of the law of nations,"
+especially by breach of blockade, carriage of contraband, &c., that they
+will be liable to capture "and to the penalties denounced by the law of
+nations"; (7) a notification that persons so misconducting themselves
+"will in no wise obtain any protection from Us," but will, "on the
+contrary, incur Our high displeasure by such misconduct."
+
+The question which I have ventured to raise is whether the _textus
+receptus_, built up, as it has been, by successive accretions, is
+sufficiently in accordance with the facts to which it purports to call
+the attention of British subjects to be properly submitted to His
+Majesty for signature. I would suggest for consideration: 1. Whether the
+phrases commanding obedience, on pain of His Majesty's "high
+displeasure," and the term "misconduct," should not be used only with
+reference to offences recognised as such by the law of England. 2.
+Whether such condensed, and therefore incorrect, though very commonly
+employed, expressions as imply that breach of blockade and carriage of
+contraband are "in violation of the law of nations," and are liable to
+"the penalties denounced by the law of nations," should not be replaced
+by expressions more scientifically correct. The law of nations neither
+prohibits the acts in question nor prescribes penalties to be incurred
+by the doers of them. What it really does is to define the measures to
+which a belligerent may resort for the suppression of such acts, without
+laying himself open to remonstrance from the neutral Government to which
+the traders implicated owe allegiance.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 5 (1904).
+
+
+THE BRITISH PROCLAMATION OF NEUTRALITY
+
+Sir,--I am glad that Mr. Gibson Bowles has called attention to certain
+respects in which the Proclamation of Neutrality issued by our
+Government on the 3rd of the present month differs from that issued on
+February 11, 1904.
+
+In two letters addressed to you with reference to the Proclamation of
+that year, I ventured to point out what appeared to me to be its
+defects, alike from a scientific and from a practical point of view. The
+present Proclamation has slightly minimised these defects, but, as a
+whole, remains open to the objections which I then raised. I have no
+wish to repeat in detail the contents of my letters of 1904, especially
+as they may be now found in my _Letters upon War and Neutrality_,
+published in 1909, pp. 95 and 98, but am unwilling not to take this
+opportunity once more to urge the desirability of redrafting the
+document in question.
+
+The Proclamation just issued still answers to my description of that of
+1904, as consisting of seven parts--viz.: (1) A recital of neutrality;
+(2) a command to subjects to observe a strict neutrality, and to abstain
+from contravention of the laws of the realm or the Law of Nations in
+relation thereto; (3) a recital of the Foreign Enlistment Act, 1870; (4)
+a command that the statute be obeyed, upon pain of the penalties thereby
+imposed, and of "Our high displeasure"; (5) a warning to observe the
+duties of neutrality and to respect the exercise of belligerent rights;
+(6) a further warning that any persons presuming, in contempt of the
+Proclamation, to do acts in derogation of their duty as subjects of a
+neutral Power, or of the Law of Nations, will incur the penalties
+denounced by such law; (7) a notice that persons so misconducting
+themselves will obtain no protection from their Sovereign.
+
+With the phraseology of No. 1, reciting British neutrality, and Nos.
+2-5, dealing with the duties of British subjects under the Foreign
+Enlistment Act of 1870, and constituting the bulk of the Proclamation,
+little serious fault can be found. It is well that such persons should
+be warned of the penalties which they may incur, including the Royal
+displeasure.
+
+The remaining two clauses relate, however, to matters of a totally
+different character from those previously mentioned, and care should
+therefore have been taken, but has not been taken, to make this
+perfectly clear. I would further remark upon these clauses: (1) That I
+agree with Mr. Bowles in regretting the omission here of the specific
+mention made in 1904 of "breach of blockade," "carriage of contraband,"
+&c., as specimens of the acts undoubtedly contemplated in these two
+clauses; (2) that it is a mistake to describe acts of this kind as being
+in derogation of "the duty of subjects of a neutral Power," or "in
+violation of the Law of Nations," or as "liable to the penalties
+denounced by such law." Carriage of contraband, and acts of the same
+class, are notoriously not condemned by English law, neither are they,
+in any proper sense, breaches of the Law of Nations, which, speaking
+scientifically, never deals with individuals, as such, but only with the
+rights and duties of States _inter se_. What the Law of Nations really
+does is, as I said in 1904, "to define the measures to which a
+belligerent may resort for the suppression of such acts, without laying
+himself open to remonstrance from the neutral Government to which the
+traders implicated owe allegiance"; (3) that on the other hand, I am
+glad to find that, in accordance with my suggestion, while it continues
+very properly to be stated that persons doing the acts under discussion
+"will in no wise obtain any protection from Us against such capture,
+&c.," the further statement that such persons "will, on the contrary,
+incur Our high displeasure by such misconduct," has now been with equal
+propriety omitted.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+The Athenaeum, October 9 (1911).
+
+
+THE PROCLAMATION OF NEUTRALITY
+
+Sir,--May I be allowed to point out that two questions arise upon the
+recent British Proclamation of Neutrality which were not, as they should
+have been, in the House of Commons last night, kept entirely distinct?
+
+The Government has surely done right in now omitting, as I suggested in
+1904, with reference to certain classes of acts which are prohibited
+neither by English nor by International Law, a phrase announcing that
+the doers of them would incur the King's "high displeasure"; while
+retaining the warning that doers of such acts must be prepared for
+consequences from which their own Government will not attempt to shield
+them.
+
+On the other hand, our Government has surely erred in not specifying, as
+in previous Proclamations, the sort of acts to which this warning
+relates--viz., to acts such as carriage of contraband, enemy service,
+and breach of blockade, which differ wholly in character from those
+violations of the Foreign Enlistment Act against which the bulk of the
+Proclamation is directed. As the Proclamation now stands, no clear
+transition is marked between breaches of English law and the unspecified
+acts which, though perfectly legal, will forfeit for the doers of them
+any claim to British protection from the consequences involved. Traders
+are left to find out as best they may the meaning of the general words
+"any acts in derogation of their duty as subjects of a neutral Power."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, October 31 (1911).
+
+       *       *       *       *       *
+
+SECTION 4
+
+_Neutral Hospitality_
+
+    The Hague Convention of 1907, No. xiii., not yet ratified by
+    Great Britain, suggests in Art. 12, with reference to the
+    question here raised, that "a defaut d'autres dispositions
+    speciales de la legislation de la Puissance neutre, il est
+    interdit aux navires de guerre des belligerants de demeurer
+    dans les ports et rades ou dans les eaux territoriales de la
+    dite Puissance pendant plus de 24 heures sauf dans les cas
+    prevues par la presente Convention."
+
+
+BELLIGERENT FLEETS IN NEUTRAL WATERS
+
+Sir,--A novel question as to belligerent responsibilities would be
+suggested for solution if, as seems to be reported in Paris, Admiral
+Rozhdestvensky over-stayed his welcome in the waters of Madagascar,
+although ordered to leave them by his own Government in compliance with
+"pressing representations" on the part of the Government of France.
+
+A much larger question is, however, involved in the discussion which has
+arisen as to the alleged neglect by France to prevent the use of her
+Cochin-Chinese waters by the Russians as a base of operations against
+Japan. We are as yet in the dark as to what is actually occurring in
+those waters, and are, perhaps, for that very reason in a better
+position for endeavouring to ascertain what are the obligations imposed
+on a neutral in such a case by international law.
+
+It is admitted on all hands that a neutral Power is bound not to permit
+the "asylum" which she may grant to ships of war to be so abused as to
+render her waters a "base of operations" for the belligerent to which
+those ships belong. Beyond this, international law speaks at present
+with an uncertain voice, leaving to each Power to resort to such
+measures in detail as may be necessary to ensure the due performance of
+a duty which, as expressed in general terms, is universally recognised.
+
+The rule enforced since 1862 by Great Britain for this purpose limits
+the stay of a belligerent warship, under ordinary circumstances, to a
+period of twenty-four hours; and the same provision will be found in the
+neutrality proclamations issued last year by, e.g. the United States,
+Egypt, China, Denmark, Sweden and Norway. So by Japan and Russia in
+1898. This rule, convenient and reasonable as it is, is not yet a rule
+of international law; as Lord Percy has had occasion to point out, in
+replying to a question addressed to him in the House of Commons. The
+proclamations of most of the Continental Powers do not commit their
+respective Governments to any period of time, and the material clauses
+of the French circular, to which most attention will be directed at the
+present time, merely provide as follows:--
+
+      "(1) En aucun cas, un belligerant ne peut faire usage d'un
+      port Francais, ou appartenant a un Etat protege, dans un but
+      de guerre, &c. (2) La duree du sejour dans nos ports de
+      belligerants, non accompagnes 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_) ... (_b_) Les dits navires ne peuvent, _a
+      l'aide de ressources 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,
+      l'emplacement ou les ressources de leurs ennemis, ne pas
+      appareiller 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
+      l'ennemi. (3) Il ne peut etre fourni a un belligerant que les
+      vivres, denrees, et moyens de reparations necessaires a la
+      subsistence de son equipage ou a la securite de sa
+      navigation."
+
+Under the twenty-four hours rule, the duty of the neutral Government is
+clear. Under the French rules, all must evidently turn upon the wisdom
+and _bonne volonte_ of the officials on the spot, and of the home
+Government, so far as it is in touch with them. We have no reason to
+suppose that the qualities in question will not characterise the conduct
+of the French at the present moment. There can, however, be no doubt
+that a better definition of the mode in which a neutral Power should
+prevent abusive use of the asylum afforded by its ports and waters is
+urgently required. The point is one which must prominently engage the
+attention of the special conference upon the rights and duties of
+neutrals, for which a wish was expressed by The Hague Conference of
+1899, and, more recently, by President Roosevelt.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, April 20 (1905).
+
+
+THE APPAM
+
+Sir,--It is satisfactory to learn that the United States Neutrality
+Board has decided adversely to the contention that the _Appam_ is a
+German ship of war. Her treatment as a prize would then, _prima facie_,
+seem to be governed by Art. 21 of The Hague Convention, No. xiii., which
+provides for her being released, together with her officers and crew,
+while the prize crew is to be interned. This Convention has been duly
+ratified both by Germany and by the United States. Its non-ratification
+by Great Britain is, I conceive, irrelevant.
+
+But Germany contends that the situation is governed by Art. 19, the text
+of which has been several times set out in your columns, of the old
+Convention of 1799. This may startle those who are acquainted with what
+occurred at The Hague in 1907, and I have seen no reference to what must
+be the gist of the German argument on the point. They no doubt argue
+that the old Convention remains unrepealed by No. xiii. of The Hague,
+because the latter Convention is of no effect, in pursuance of its
+common form Art. 28, to the effect that:--"The provisions of the present
+Convention do not apply except between contracting Powers, and then only
+if all the belligerents are parties to the Convention" (which is by no
+means the case).
+
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, February 4 (1916).
+
+
+    Certain reservations on ratification do not affect Arts. 21 or
+    22.
+
+    The State Department ruled that the case did not fall within
+    the protecting clauses of the Treaty of 1799, which granted
+    asylum only to ships of war accompanying prizes, whereas the
+    _Appam_ was herself a prize. Proceedings by the owners in the
+    local Federal Court for possession of the ship resulted in a
+    decision in their favour, against which the Germans are
+    appealing in the Supreme Court. They do not seem to have raised
+    the objection, mentioned in the letter, as to the applicability
+    of Convention viii.
+
+
+       *       *       *       *       *
+
+SECTION 5
+
+_Carriage of Contraband. (Absolute and Conditional Contraband:
+Continuous Voyages: Unqualified Captors: The Declaration of London)_
+
+    The letters included in the preceding sections 2 and 3 touched
+    incidentally upon carriage of contraband, in relation to other
+    departments of the law affecting neutrals. The eight letters
+    which follow, suggested respectively by the Spanish-American,
+    the Boer, and the Russo-Japanese wars, deal exclusively with
+    this topic, which seems likely to be henceforth governed no
+    longer only by customary and judge-made law, but largely also
+    by written rules, such as those suggested by the unratified
+    Declaration of London of 1909.
+
+
+    (_Absolute and Conditional Contraband_)
+
+    The divergence which has so long existed between Anglo-American
+    and Continental views upon contraband was very noticeable at
+    the commencement of the war of 1898, which gave occasion to the
+    letter which immediately follows. While the Spanish Decree of
+    April 23 set out only one list of contraband goods, the United
+    States Instructions of June 20 recognised two lists--viz. of
+    "absolute" and of "conditional" contraband, including under the
+    latter head "coal when destined for a naval station, a port of
+    call, or a ship or ships of the enemy; materials for the
+    construction of railways or telegraphs, and money, when such
+    materials or money are destined for an enemy's forces,
+    provisions, when destined for an enemy's ship or ships, for a
+    place besieged."
+
+    An answer was thus supplied to the question suggested in this
+    letter, as to articles _ancipitis usus_.
+
+
+CONTRABAND OF WAR
+
+Sir,--I fear that the mercantile community will hardly profit so much as
+the managers of the Atlas Steamship Company seem to expect by the
+information contained in their letter which you print this morning. It
+was, indeed, unlikely that the courteous reply of the Assistant
+Secretary of State at Washington to the enquiry addressed to him by the
+New York agents of the company would contain a declaration of the policy
+of the United States with reference to contraband of war. The threefold
+classification of "merchandise" (not of "contraband") quoted in the
+reply occurs, in the judgment of the Supreme Court in the well-known
+case of the _Peterhoff_ (5 Wallace, 58), but it is substantially that of
+Grotius, and has long been accepted in this country and in the United
+States, while the Continent is, generally speaking, inclined to deny the
+existence of "contraband by accident," and to recognise only such a
+restricted list of contraband as was contained in the Spanish decree of
+April 24 last.
+
+The questions upon which shippers are really desirous of information
+(which they are, however, perhaps not likely to obtain, otherwise than
+from decisions of prize Courts) are of a less elementary character. They
+would like to know what articles _ancipitis usus_ ("used for purposes of
+war or peace according to circumstances") will be treated by the United
+States as contraband, and with what penalty the carriage of such
+articles will be visited--_i.e._ whether by confiscation or merely by
+pre-emption.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, May 9 (1898).
+
+
+    The four letters which next follow also relate to the two
+    classes of contraband goods, with especial reference to the
+    character attributed to foodstuffs, coal and cotton.
+
+    On foodstuffs, see the _Report of the Royal Commission on the
+    Supply of Food, &c., in Time of War_, 1905. _Cf._ also
+    _infra._, pp. 174, 176, 177. They were placed by the unratified
+    Declaration of London, Art. 24, in the class of conditional
+    contraband; as is also coal. By Art. 28 of the Declaration, raw
+    cotton was enumerated among the articles which cannot be
+    declared contraband of war.
+
+    The suggestion in the letter of February 20, 1904, that certain
+    words quoted from the Japanese instructions had been
+    mistransmitted or misquoted was borne out by the Regulations
+    governing captures at sea, issued on March 15, 1904, Art. 14 of
+    which announces that certain goods are contraband "in case they
+    are destined to the enemy's army or navy, or in case they are
+    destined to the enemy's territory, and from the landing place
+    it can be inferred that they are intended for military
+    purposes."
+
+    The letters of March 10 and 15, 1905, will sufficiently explain
+    themselves. The accuracy of the statements contained in them
+    was vouched for by Baron Suyematsu, in a letter which appeared
+    in _The Times_ for March 16, to the effect that: "In Japan the
+    matters relating to the organisation and procedure of the prize
+    court, and the matters relating to prize, contraband goods,
+    &c., are regulated by two separate sets of laws.... The
+    so-called prize Court law of August 20, 1894, and amendment
+    dated March 1, 1904, which your correspondent refers to, are
+    the provisions relating to the former matters. The rules
+    regulating the latter matters--viz. prize, contraband goods,
+    &c., are not comprised in them. The rules which relate to the
+    latter matters, as existing at present, are consolidated and
+    comprised in an enactment which was issued on March 7, 1904....
+    Under the circumstances I can only repeat what Professor
+    Holland says ... in other words, I fully concur with the views
+    taken by the Professor."
+
+    The distinction between articles which are "absolutely
+    contraband," those which are "conditionally contraband," and
+    those which are incapable of being declared contraband was
+    expressly adopted in Arts. 22, 24, and 28 of the unratified
+    Declaration of London of 1909, as to which, see the comment at
+    the end of this section, as also the whole of Section 10.
+
+
+IS COAL CONTRABAND OF WAR?
+
+Sir,--This question has now been answered, in unmistakable terms, on
+behalf of this country by Lord Lansdowne in his reply, which you printed
+yesterday, to Messrs. Powley, Thomas, and Co., and on behalf of Japan by
+the proclamation which appears in _The Times_ of to-day. Both of these
+documents set forth the old British doctrine, now fully adopted in the
+United States, and beginning to win its way on the Continent of Europe,
+that, besides articles which are absolutely contraband, other articles
+_ancipitis usus_, and amongst them coal, may become so under certain
+conditions. "When destined," says Lord Lansdowne, "for warlike as
+opposed to industrial use." "When destined," says Japan, "for the
+enemy's army or navy, or in such cases where, _being goods arriving, at
+enemy's territory_, there is reason to believe that they are intended
+for use of enemy's army or navy."
+
+I may say that the words which I have italicised must, I think, have
+been mistranslated or mistransmitted. Their intention is, doubtless,
+substantially that which was more clearly expressed in the Japanese
+proclamation of 1894 by the words: "Either the enemy's fleet at sea or a
+hostile port used exclusively or mainly for naval or military
+equipment."
+
+A phrase in your issue of to-day with reference to the Cardiff coal
+trade suggests that it may be worth while to touch upon the existence of
+a widely-spread confusion between the grounds on which export of coal
+may be prohibited by a neutral country and those which justify its
+confiscation, although on board a neutral ship, by a belligerent. A
+neutral State restrains, under certain circumstances, the export of
+coal, not because coal is contraband, but because such export is
+converting the neutral territory into a base of belligerent operations.
+The question of contraband or no contraband only arises between the
+neutral carrier and the belligerent when the latter claims to be
+entitled to interfere with the trade of the former.
+
+Since the rules applicable to the carriage of coal are, I venture to
+think, equally applicable, to the carriage of foodstuffs, I may perhaps
+be allowed to add a few words with reference to the letter addressed to
+you a day or two ago by Sir Henry Bliss. I share his desire for some
+explanation of the telegram which reached you on the 12th of this month
+from British Columbia. One would like to know: (1) What is "the
+Government," if any, which has instructed the Empress Line not to
+forward foodstuffs to Japan; (2) whether the refusal relates to
+foodstuffs generally, or only to those with a destination for warlike
+use; (3) what is meant by the statement that "the steamers of the
+Empress Line belong to the Naval Reserve"? I presume the meaning to be
+that the line is subsidised with a view to the employment of the ships
+of the company as British cruisers when Great Britain is at war. The
+bearing of this fact upon the employment of the ships when Great Britain
+is at peace is far from apparent. It is, of course, possible that the
+Government contract with the company may have been so drawn, _ex
+abundanti cautela_, as greatly to restrict what would otherwise have
+been the legitimate trade of the company.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, February 20 (1904).
+
+
+COTTON AS CONTRABAND OF WAR
+
+Sir,--The text of the decision of the Court of Appeal at St. Petersburg
+in the case of the _Calchas_ has at length reached this country, and we
+are thus informed, upon the highest authority, though, perhaps, not in
+the clearest language, of the meaning which is now to be placed upon the
+Russian notification that cotton is contraband of war.
+
+This notification, promulgated on April 21, 1904, was received with
+general amazement, not diminished by an official gloss to the effect
+that it "applied only to raw cotton suitable for the manufacture of
+explosives, and not to yarn or tissues." It must be remembered that at
+the date mentioned, and for some months afterwards, Russia stoutly
+maintained that all the articles enumerated in her list of contraband of
+February 28, 1904, and in the additions to that list, were "absolutely"
+such; _i.e._ were confiscable if in course of carriage to any enemy's
+port, irrespectively of the character of that port, or of the use to
+which the articles would probably be put. It was only after much
+correspondence, and the receipt of strong protests from Great Britain
+and the United States, that Russia consented to recognise the well-known
+distinction between "absolute" and "conditional" contraband; the latter
+class consisting of articles useful in peace as well as for war, the
+character of which must, therefore, depend upon whether they are, in
+point of fact, destined for warlike or for peaceful uses. This
+concession was made about the middle of September last, and it was then
+agreed that provisions should be placed in the secondary category (as
+was duly explained in the Petersburg judgment in the case of the
+_Arabia_ on December 14) together with some other articles, among which
+it seemed that raw cotton was not included.
+
+The final decision in the _Calchas_ case marks a welcome change of
+policy. Cotton has now followed foodstuffs into the category of
+"conditional" contraband, and effect has so far been given to the
+representations on the subject made by Mr. Hay in circular despatches of
+June 10 and August 30, 1904, and by Sir Charles Hardinge, in a note
+presented to Count Lamsdorff on October 9 of the same year.
+
+The question had become a practical one in the case of the _Calchas_. On
+July 25 this vessel, laden with, _inter alia_, nine tons of raw cotton
+for Yokohama and Kobe, was seized by a Russian cruiser and carried into
+Vladivostok, where, on September 18, the cotton, together with other
+portions of her cargo, was condemned as absolutely contraband. The
+reasons for repudiating this decision, and the notification to which it
+gave effect, were not far to seek, and it may still be worth while to
+insist upon them. As against Russia, it is well to recall that, from the
+days of the Armed Neutralities onwards, her traditional policy has been
+to favour a very restricted list of contraband; that when in 1877, as
+again in 1900 and 1904, she included in it materials "servant de faire
+sauter les obstacles," the examples given of such materials were things
+so immediately fitted for warlike use as "les mines, les torpilles, la
+dynamite," &c.; and that what is said as to "conditional contraband" by
+her trusted adviser, Professor de Martens, in his _Droit International_,
+t. iii (1887), pp. 351-354, can scarcely be reconciled with her recent
+action.
+
+But a still stronger argument against the inclusion of cotton in the
+list of "absolute" contraband is that this is wholly without precedent.
+It has, indeed, been alleged that cotton was declared to be "contraband"
+by the United States in their Civil War. The Federal proclamations will,
+however, be searched in vain for anything of the kind. The mistake is
+due to an occasional loose employment of the term, as descriptive of
+articles found by an invader in an enemy's territory, which, although
+the property of private, and even neutral, individuals, happen to be so
+useful for the purposes of the war as to be justly confiscated. That
+this was so will appear from an attentive reading of the case of _Mrs.
+Alexander's Cotton_, in 1861 (2 Wallace, 404), and of the arguments in
+the claim made by Messrs. Maza and Larrache against the United States in
+1886 (Foreign Relations of U.S., 1887). A similarly loose use of the
+term was its application by General B.F. Butler to runaway slaves who
+had been employed on military works--an application of which he
+confessed himself "never very proud as a lawyer," though "as an
+executive officer, much comforted with it." The phrase caught the
+popular fancy, came to be applied to slaves generally, and was
+immortalised in a song, long a favourite among negro children, the
+refrain of which was "I'se a happy little contraband."
+
+The decision of the Court of St. Petersburg in the case of the
+_Calchas_, so far as it recognises the existence of a conditional class
+of contraband, and that raw cotton, as _res ancipitis usus_, must be
+treated in accordance with the rules applicable to goods belonging to
+that class, has laid down an unimpeachable proposition of law. Whether
+the view taken by the Court of the facts of the case, so far as they
+relate to the cotton cargo, is equally satisfactory, is a different and
+less important question, upon which I refrain from troubling you upon
+the present occasion.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+
+P.S.--It may be worth while to add, for the benefit of those only who
+care to be provided with a clue (not to be found in the judgment)
+through the somewhat labyrinthine details of the question under
+discussion, a summary of its history. The Russian rules as to contraband
+are contained in several documents--viz. the "Regulations as to Naval
+Prize" of 1895, Arts. 11-14; the "Admiralty Instructions" of 1900, Arts.
+97, 98, and the appended "Special Declaration" as to the articles
+considered to be contraband (partly modelled on the list of 1877); the
+"Imperial Order" of February 28, 1904, rule 6 (this Order keeps alive
+the rules of 1895 and 1900, except in so far as they are varied by it);
+the "Order" of March 19, 1904, defining "food" and bringing machinery of
+certain kinds into the list of contraband; the "Order," of April 21,
+1904, bringing "raw cotton" into the list; and, lastly, the
+"Instructions" of September 30 and October 28, 1904, recognising, in
+effect, a class of "conditional" contraband, placing foodstuffs in this
+class, as also, ultimately, other objects "capable of warlike use and
+not specified in sections 1-9 of rule 6."
+
+T. E. H.
+Temple, July 1 (1905).
+
+
+COTTON AS CONTRABAND
+
+Sir,--Your correspondent "Judex" will rejoice, as I do, that cotton has
+now been declared to be "absolute contraband." May I, however, suggest
+that the topic should be discussed without any reference to the
+fortunately unratified Declaration of London, that premature attempt to
+codify the law of maritime warfare, claiming, misleadingly, that its
+rules "correspond in substance with the generally recognised principles
+of international law"?
+
+It is surely regrettable that, by the Order in Council of August 20,
+1914, our Government adopted the provisions of the Declaration "during
+the present hostilities," and "subject to various additions and
+modifications," the list of which has since been considerably extended.
+This half-hearted course of action painfully recalls certain vicious
+methods of legislation by reference, and was additionally uncalled for,
+since, as has been shown by recent events, about two-thirds of the rules
+laid down by the Declaration are inapplicable to modern warfare.
+
+The straightforward announcement made by the United States in their Note
+of January 25 is surely far preferable. It states in plain terms that,
+"As the Declaration of London is not in force, the rules of
+international law only apply. As to articles to be regarded as
+contraband there is no general agreement between nations." In point of
+fact, the hard-and-fast categories of neutral imports, suggested by the
+threefold Grotian division, as set forth in the Declaration, are
+unlikely ever to be generally accepted. Even Grotius is careful to limit
+his proposals, and Bynkershoek, in commenting upon them, points out that
+the test of contraband of the most noxious kind must be the, possibly
+exceptional, importance of objects for hostile use; their being of use
+also for non-hostile purposes being immaterial ("nec interesse an et
+extra bellum usum praebeant"). The application of these remarks to the
+case of cotton is sufficiently obvious.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, August 23 (1915).
+
+
+JAPANESE PRIZE LAW
+
+Sir,--I hope you will allow me space for a few words with reference to
+some statements occurring to-day in your Marine Insurance news which I
+venture to think are of a misleading character.
+
+Your Correspondent observes that--
+
+      "Although the Japanese are signatories to the Treaty of
+      Paris, it should not be forgotten that they haw a Prize Court
+      Law of their own (August 20, 1894), and are more likely to
+      follow its provisions, in dealing with the various captured
+      steamers, than the general principles of the Treaty of
+      Paris."
+
+Upon this paragraph let me remark:--
+
+1. The action of the Japanese is in full accordance with the letter and
+spirit of all four articles of the Declaration of Paris. ("The Treaty of
+Paris" has, of course, no bearing upon prize law.)
+
+2. "The general principles" of that Declaration is a phrase which
+conveys to me, I confess, no meaning.
+
+3. The Japanese have, of course, a prize law of their own, borrowed, for
+the most part, from our own Admiralty Manual of Prize Law. Neither the
+British nor the Japanese instructions are in conflict with, or indeed
+stand in any relation to, the Declaration of Paris.
+
+4. The existing prize law of Japan was promulgated on March 7, 1904, not
+on August 20, 1894.
+
+Your Correspondent goes on to say that the Japanese definition of
+contraband "is almost as sweeping as was the Russian definition, to
+which the British Government took active objection last summer." So far
+is this from being the case that the Japanese list is practically the
+same as our own, both systems recognising the distinction between
+"absolute" and "conditional" contraband, which, till the other day, was
+ignored by Russia.
+
+The Japanese rules as to the cases in which ships carrying contraband
+may be confiscated are quite reasonable and in accordance with British
+views. The third ground for confiscation mentioned by your Correspondent
+does not occur in the instructions of 1904.
+
+Ships violating a blockade are, of course, confiscable; but the Japanese
+do not, as your Correspondent seems to have been informed, make the
+existence of a blockade conditional upon its having been "notified to
+the Consuls of all States in the blockaded port." Commanders are, no
+doubt, instructed to notify the fact, "as far as possible, to the
+competent authorities and the Consuls of the neutral Powers within the
+circumference of the blockade"; but that is a very different thing.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+The Athenaeum, March 10 (1905).
+
+
+JAPANESE PRIZE LAW
+
+Sir,--Let me assure your correspondent upon Marine Insurance that I have
+been familiar, ever since its promulgation, with the Japanese prize law
+of 1894, quoted by him as authority for statements made in your issue of
+March 10, the misleading character of which I felt bound to point out in
+a letter of the same date. All the topics mentioned by him on that
+occasion, and to-day, are, however, regulated, not by that law, but by
+notifications and instructions issued from time to time during 1904.
+
+I make it my business not only to be authoritatively informed on such
+matters, but also to see that my information is up to date.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, March 15 (1905).
+
+
+_(Continuous Voyages)_
+
+    The opinion expressed in the letter which immediately follows,
+    that the American decisions, applying to carriage of contraband
+    the doctrine of "continuous voyages," seem to be "demanded by
+    the conditions of modern commerce, and might well be followed
+    by a British prize Court," was referred to by Lord Salisbury in
+    a despatch of January 10, 1900, to be communicated to Count von
+    Buelow, with reference to the seizure of _Bundesrath_. _Parl.
+    Papers_, Africa, No. 1 (1900), p. 19.
+
+    The distinction, drawn in the same letter, between "carriage of
+    contraband" and "enemy service," which has sometimes been lost
+    sight of, was established in the case of _Yangtsze Insurance
+    Association_ v. _Indemnity Mutual Marine Company_, [1908] K.B.
+    910, in which it was held by Bigham, J., that the transport of
+    military officers of a belligerent State, as passengers in a
+    neutral ship, is not a breach or a warranty against contraband
+    of war in a policy of marine insurance. The carriage of enemy
+    despatches will no longer be generally treated as "enemy
+    service" since The Hague Convention, No. xi. of 1907, ratified
+    by most of the Powers, including Great Britain, on November 27,
+    1909, by Art. 1 provides that, except in the case of breach of
+    blockade, "the postal correspondence of neutrals or
+    _belligerents_, whether of _an official_ or a private
+    character, found on board a _neutral_ or enemy ship on the High
+    Seas is inviolable."
+
+    The case of the _Allanton_, which gave occasion for the letter
+    of July 11, 1904, was as follows. This British ship left
+    Cardiff on February 24 of that year, with a cargo of coal to be
+    delivered either at Hong-Kong or Sasebo. On arrival at
+    Hong-Kong, she found orders to deliver at Sasebo, and, having
+    made delivery accordingly, was chartered by a Japanese company
+    at another Japanese port, to carry coal to a British firm at
+    Singapore. On her way thither, she was captured by a Russian
+    squadron and taken in to Vladivostok, where on June 24 she was
+    condemned by the prize Court for carriage of contraband. The
+    Court held, ignoring the rule that a vessel ceases to be _in
+    dilecto_ when she has "deposited" her contraband (since
+    affirmed by Art. 38 of the Declaration of London of 1909), that
+    she was liable in respect of her voyage to Sasebo; as also in
+    respect of the voyage on which she was captured, on the ground
+    that her real destination was at that time the Japanese fleet,
+    or some Japanese port. This decision was reversed, as to both
+    ship and cargo, by the Court of Appeal at St. Petersburg, on
+    October 22 of the same year.
+
+    The doctrine of "continuous voyages" was by the Declaration of
+    London, Art. 30, recognised in the case of "absolute," but by
+    Art. 35 was stated to be inapplicable to the case of
+    "conditional" contraband.
+
+
+PRIZE LAW
+
+Sir,--Questions of maritime international law which are likely to give
+rise not only to forensic argument in the prize Courts which we have
+established at Durban and at the Cape, but also to diplomatic
+communications between Great Britain and neutral Governments, should
+obviously be handled just now with a large measure of reserve. Lord
+Rosebery has, however, in your columns called upon our Government to
+define its policy with reference to foodstuffs as contraband of war,
+while several other correspondents have touched upon, cognate topics.
+You may perhaps therefore be disposed to allow one who is responsible
+for the _Admiralty Manual of the Law of Prize_, to which reference has
+been made by your correspondent "S.," to make a few statements as to
+points upon which it may be desirable for the general reader to be in
+possession of information accurate, one may venture to hope, as far as
+it goes.
+
+Of the four inconveniences to which neutral trading vessels are liable
+in time of war, "blockade" may be left out of present consideration. You
+can only blockade the ports of your enemy, and the South African
+Republics have no port of their own. The three other inconveniences
+must, however, all be endured--viz. prohibition to carry "contraband,"
+prohibition to engage in "enemy service," and liability to be "visited
+and searched" anywhere except within three miles of a neutral coast, in
+order that it may be ascertained whether they are disregarding either of
+these prohibitions, as to the meaning of which some explanation may not
+be superfluous.
+
+1. "Carriage of contraband" implies (1) that the goods carried are fit
+for hostile use; (2) that they are on their way to a hostile
+destination. Each of these requirements has given rise to wide
+divergence of views and to a considerable literature. As to (1), while
+Continental opinion and practice favour a hard-and-fast list of
+contraband articles, comprising only such as are already suited, or can
+readily be adapted, for use in operations of war, English and American
+opinion and practice favour a longer list, and one capable of being from
+time to time extended to meet the special exigencies of the war. In such
+a list may figure even provisions, "under circumstances arising out of
+the particular situation of the war," especially if "going with a highly
+probable destination to military use"--Lord Stowell in the _Jonge
+Margaretha_ (1 Rob. 188); _cf._ Story, J., in the _Commercen_ (1 Wheat.
+382), the date and purport of which are, by the by, incorrectly given by
+"S." It would be in accordance with our own previous practice and with
+Lord Granville's despatches during the war between France and China in
+1885, if we treated flour as contraband only when ear-marked as destined
+for the use of enemy fleets, armies, or fortresses. Even in such cases
+our practice has been not to confiscate the cargo, but merely to
+exercise over it a right of "pre-emption," so as to deprive the enemy of
+its use without doing more injury than can be helped to neutral
+trade--as is explained by Lord Stowell in the _Haabet_ (2 Rob. 174). As
+to (2), the rule was expressed by Lord Stowell to be that "goods going
+to a neutral port cannot come under the description of contraband, all
+goods going there being equally lawful"--_Imina_ (3 Rob. 167); but
+innovations were made upon this rule during the American Civil War which
+seem to be demanded by the conditions of modern commerce, and might well
+be followed by a British prize Court. It was held that contraband goods,
+although _bona fide_ on their way to a neutral port, might be condemned,
+if intended afterwards to reach the enemy by another ship or even by
+means of land carriage--_Bermuda_ (3 Wallace); _Peterhoff_ (5 Wallace).
+A consignment to Lorenzo Marques, connected as is the town by only forty
+miles of railway with the Transvaal frontier, would seem to be well
+within the principles of the Civil War cases as to "continuous voyages."
+
+2. The carriage by a neutral ship of enemy troops, or of even a few
+military officers, as also of enemy despatches, is an "enemy service" of
+so important a kind as to involve the confiscation of the vessel
+concerned, a penalty which, under ordinary circumstances, is not imposed
+upon carriage of "contraband" property so called. See Lord Stowell's
+luminous judgments in _Orozembo_ (6 Rob. 430) and _Atalanta_ (_ib._
+440). The alleged offence of the ship _Bundesrath_ would seem to be of
+this description.
+
+The questions, both of "contraband" and of "enemy service," with which
+our prize Courts must before long have to deal, will be such as to
+demand from the Judges a competent knowledge of the law of prize,
+scrupulous fairness towards neutral claimants, and prompt penetration of
+the Protean disguises which illicit trade so readily assumes in time of
+war.
+
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, January 2 (1900).
+
+
+THE _ALLANTON_ _(Continuous Voyage)_
+
+Sir,--I venture to think that the letter which you print this morning
+from my friend Dr. Baty, with reference to the steamship _Allanton_,
+calls for a word of warning; unless, indeed, it is to be taken as merely
+expressing the private opinion of the writer as to what would be a
+desirable rule of law.
+
+It would be disastrous if shipowners and insurers were to assume, that a
+neutral vessel, if destined for a neutral port, is necessarily safe from
+capture. Words at any rate capable of this construction may, no doubt,
+be quoted from one of Lord Stowell's judgments, now more than a century
+old; but many things have happened, notably the invention of railways,
+since the days of that great Judge. The United States cases, decided in
+the sixties (as Dr. Baty thinks, "on a demonstrably false analogy"), in
+which certain ships were held to be engaged in the carriage of
+contraband, although their destination was a neutral port, were
+substantially approved of by Great Britain. Their principle wast adopted
+by Italy, in the _Doelwijk_, in 1896, and was supported by Great Britain
+in the correspondence upon this subject which took place with Germany in
+1900. It was endorsed, after prolonged discussion, by the Institut de
+Droit International in 1896.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, July 11 (1904).
+
+
+_(Unqualified Captors)_
+
+    Among the objections raised by the British Government to the
+    capture by the Russian ship _Peterburg_ in the Red Sea, on July
+    13, 1904, of the P. and O. ss. _Malacca_, for carriage of
+    contraband were (1) that the so-called contraband consisted of
+    government ammunition for the use of the British fleet in
+    Chinese waters; and (2) what was more serious, that the
+    capturing vessel, which belonged to the Russian volunteer
+    fleet, after issuing from the Black Sea under the commercial
+    flag had subsequently, and without touching at any Russian
+    port, brought up guns from her hold, and had proceeded to
+    exercise belligerent rights under the Russian naval flag. In
+    consequence of the protest of the British Government, and to
+    close the incident, the _Malacca_ was released at Algiers,
+    after a purely formal examination, on July 27, and Russia
+    agreed to instruct the officers of her volunteer fleet not to
+    make any similar captures.
+
+    The question of the legitimacy of the transformation on the
+    high seas into a ship-of-war of a vessel which has previously
+    been sailing under the commercial flag was much discussed at
+    The Hague Conference of 1907, but without result. Opinions were
+    so much divided upon the point, that no mention of it is made
+    in Convention No. vii. of that year, ratified by Great Britain
+    on November 27, 1909, "as to the transformation of merchant
+    vessels into ships-of-war." At the session of the Institut de
+    Droit International held at Oxford in 1913, this question was
+    discussed, and rules relating to it will be found in Section 2
+    of the _Manuel des lois de la guerre maritime_, the drafting of
+    which occupied the whole of the session.
+
+
+THE _ALLANTON_ _(Unqualified Captors)_
+
+Sir,--The indignation caused by the treatment of the _Allanton_ is
+natural, and will almost certainly prove to be well founded; but Mr.
+Rae, in the letter which you print this morning, overstates a good case.
+He asks that, "whatever steps are taken for the release of the
+_Malacca_, equally strong steps should be taken for the release of the
+_Allanton_"; and he can see no difference between the cases of the two
+ships, except that the former is owned by a powerful company in the
+habit of carrying British mails, while the latter is his private
+property.
+
+One would have supposed it to be notorious that the facts which
+distinguish the one case from the other are, first, that the capture of
+the _Malacca_ was effected by a vessel not entitled to exercise
+belligerent rights; and, secondly, that Great Britain is prepared to
+claim the incriminated cargo as belonging to the British Government.
+Capture by an unqualified cruiser is so sufficient a ground for a claim
+of restoration and compensation that, except perhaps as facilitating the
+retreat of Russia from a false position, it would seem, to say the
+least, superfluous to pray in aid any other reason for the cancellation
+of an act unlawful _ab initio._
+
+I have not noticed any statement as to the actual constitution of the
+prize Court concerned in the condemnation of the _Allanton._ Under Rule
+54 of the Russian Naval Regulations of 1895, a "Port Prize Court" must,
+for a decree of confiscation, consist of six members, of whom three must
+be officials of the Ministries of Marine, Justice, and Foreign Affairs
+respectively. An "Admirals' Prize Court," for the same purpose, need
+consist of only four members, all of whom are naval officers.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, July 25 (1904).
+
+
+_(Note upon the Declaration of London)_
+
+    The British delegates to The Hague Conference of 1907 were
+    instructed that H.M. Government "are ready and willing for
+    their part, in lieu of endeavouring to frame new and more
+    satisfactory rules for the prevention of contraband trade in
+    the future, to abandon the principle of contraband of war
+    altogether, thus allowing the oversea trade in neutral vessels
+    between belligerents on the one hand and neutrals on the other,
+    to continue during war without any restriction," except with
+    reference to blockades. This proposal, fortunately, was not
+    accepted by the Conference, which was unable even to agree upon
+    lists of contraband articles, and recommended that the question
+    should be further considered by the Governments concerned,
+    _Parl. Paper, Miscell._ No. 1 (1908), p. 194.
+
+    This task was accordingly among those undertaken at the
+    Conference of Maritime Powers held in London in 1908-1909,
+    which resulted in a Declaration, Arts. 22-44 of which
+    constituted a fairly complete code of the law of contraband.
+    Reference has already been made, in comments upon letters
+    comprised in previous sections, to this Declaration, the
+    demerits and history of which are more fully dealt with in
+    section 10, _infra_, pp. 196-207.
+
+       *       *       *       *       *
+
+SECTION 6
+
+_Methods of Warfare as affecting Neutrals_
+
+_(Mines)_
+
+    On the views expressed in the first of the two letters which
+    follow, as also in the writer's British Academy paper on
+    _Neutral Duties_, as translated in the _Marine Rundschau_, see
+    Professor von Martitz of Berlin, in the _Transactions_ of the
+    International Law Association, 1907. The Institut de Droit
+    International has for some years past had under its
+    consideration questions relating to mines, and has arrived at
+    conclusions which will be found in its _Annuaire_, t. xxi. p.
+    330, t. xxii. p. 344, t xxiii. p. 429, t. xxiv. pp. 286, 301.
+
+    The topic has also been dealt with in The Hague Convention, No.
+    viii. of 1907, ratified with a reservation, by Great Britain on
+    November 27, 1907. By Art. 1 it is forbidden "(1) to lay
+    unanchored automatic-contact mines, unless they are so
+    constructed as to become harmless one hour at most after he who
+    has laid them has lost control over them; (2) to lay anchored
+    automatic-contact mines which do not become harmless as soon as
+    they have broken loose from their moorings; (3) to employ
+    torpedoes which do not become harmless when they have missed
+    their mark." By Art. 2, (which is, however, not accepted by
+    France or Germany) it is forbidden "to lay automatic-contact
+    mines off the coast and ports of an enemy, with the sole object
+    of intercepting commercial navigation."
+
+
+MINES IN THE OPEN SEA
+
+Sir,--The question raised in your columns by Admiral do Horsey with
+reference to facts as to which we are as yet imperfectly informed, well
+illustrates the perpetually recurring conflict between belligerent and
+neutral interests. They are, of course, irreconcilable, and the rights
+of the respective parties can be defined only by way of compromise. It
+is beyond doubt that the theoretically absolute right of neutral ships,
+whether public or private, to pursue their ordinary routes over the high
+sea in time of war, is limited by the right of the belligerents to fight
+on those seas a naval battle, the scene of which can be approached by
+such ships only at their proper risk and peril. In such a case the
+neutral has ample warning of the danger to which he would be exposed did
+he not alter his intended course. It would, however, be an entirely
+different affair if he should find himself implicated in belligerent war
+risks, of the existence of which it was impossible for him to be
+informed, while pursuing his lawful business in waters over which no
+nation pretends to exercise jurisdiction.
+
+It is certain that no international usage sanctions the employment by
+one belligerent against the other of mines, or other secret
+contrivances, which would, without notice, render dangerous the
+navigation of the high seas. No belligerent has ever asserted a right to
+do anything of the kind; and it may be in the recollection of your
+readers that strong disapproval was expressed of a design, erroneously
+attributed to the United States a few years since, of effecting the
+blockade of certain Cuban ports by torpedoes, instead of by a cruising
+squadron. These, it was pointed out, would superadd to the risk of
+capture and confiscation, to which a blockade-runner is admittedly
+liable, the novel penalty of total destruction of the ship and all on
+board.
+
+It may be worth while to add, as bearing upon the question under
+discussion, that there is a tendency in expert opinion towards allowing
+the line between "territorial waters" and the "high seas" to be drawn at
+a considerably greater distance than the old measurement of three miles
+from the shore.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, May 23 (1904).
+
+
+TERRITORIAL WATERS
+
+Sir,--Most authorities would, I think, agree with Admiral de Horsey that
+the line between "territorial waters" and "the high sea" is drawn by
+international law, if drawn by it anywhere, at a distance of three miles
+from low-water mark. In the first place, the ridiculously wide claims
+made, on behalf of certain States, by 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 received ample recognition in treaties, legislation, and
+judicial decisions.
+
+The subordinate question, also touched upon by the Admiral, of the
+character to be attributed to bays, the entrance to which exceeds six
+miles in breadth, presents more difficulty than that relating to
+strictly coastal waters. I will only say that the Privy Council, in _The
+Direct U.S. Cable Co._ v. _Anglo-American Telegraph Co._ (L.R. 2 App.
+Ca. 394), carefully avoided giving an opinion as to the international
+law applicable to such bays, but decided the case before them, which had
+arisen with reference to the Bay of Conception, in Newfoundland, on the
+narrow ground that, as a British Court, they were bound by certain
+assertions of jurisdiction made in British Acts of Parliament.
+
+The three-mile distance has, no doubt, become inadequate in consequence
+of the increased range of modern cannon, but no other can be substituted
+for it without express agreement of the Powers. One can hardly admit the
+view which has been maintained, e.g. by Professor de Martens, that the
+distance shifts automatically in accordance with improvements in
+artillery. The whole matter might well be included among the questions
+relating to the rights and duties of neutrals, for the consideration of
+which by a conference, to be called at an early date, a wish was
+recorded by The Hague Conference, of 1899.
+
+In the meantime it may be worth while to call attention to the view of
+the subject taken by a specially qualified and representative body of
+international experts. The Institut de Droit International, after
+discussions and enquiries which had lasted for several years, adopted,
+at their Paris meeting in 1894, the following resolutions, as a
+statement of what, in the opinion of the Institut, would be reasonable
+rules with reference to territorial waters (I cite only those bearing
+upon the extent of such waters):--
+
+      "Art. 2.--La mer territoriale s'etend a six milles marins (60
+      au degre de latitude) de la laisse de basse maree sur tout
+      l'etendue des cotes. Art. 3.--Pour les baies, la mer
+      territoriale suit les sinuosites de la cote, sauf qu'elle
+      mesuree a partir d'une ligne droite tiree en travers de la
+      baie, dans la partie la plus rapprochee de l'ouverture vers
+      la mer, ou l'ecart entre les deux cotes de la baie est de
+      douze milles marins de largeur, a moins qu'un usage continu
+      et seculaire n'ait consacre une largeur plus grande. Art.
+      4.--En cas de guerre, l'etat riverain neutre a le droit de
+      fixer, par la declaration de neutralite, ou par notification
+      speciale, sa zone neutre au dela de six milles, jusqu'a
+      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 de neutres de
+      reglementer le passage dans la dite mer pour les navires de
+      guerre de toutes nationalites." (_Annuaire de l'Institut_, t.
+      xiii. p. 329).
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, June 1 (1904).
+
+
+    A French decree, of October 18, 1912, accordingly extends, when
+    France is neutral, her territorial waters to a distance of six
+    miles (11 kilom.) from low-water mark.
+
+
+_(Cable-cutting)_
+
+    With the letters which follow, compare the article by the
+    present writer on "Les cables sous-marins en temps de guerre,"
+    in the _Journal de Droit International 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 belligerents (1) to
+    install on neutral territory a radio-telegraphic station, or
+    any other apparatus, for communicating with their land or sea
+    forces; (2) to employ such apparatus, established by them there
+    before the war, for purely military purposes. By Art. 5, a
+    neutral Power is bound to permit nothing of the sort.
+
+
+SUBMARINE CABLES
+
+Sir,--The possibility of giving some legal protection to submarine
+cables has been carefully considered by the Institut de Droit
+International. A committee was appointed in 1878 to consider the
+subject, and the presentation of its report to the meeting at Brussels
+in 1879 was followed by an interesting discussion (see the _Annuaire de
+l'Institut_, 1879-80, pp. 351-394). The conclusions ultimately adopted
+by the Institut were as follows:--
+
+      "1. It would be very useful if the various States would come
+      to an understanding to declare that destruction of, or injury
+      to, submarine cables in the high seas is an offence under the
+      Law of Nations, and to fix precisely the wrongful character
+      of the acts, and the appropriate penalties. With reference to
+      the last-mentioned point, the degree of uniformity attainable
+      must depend on the amount of difference between systems of
+      criminal legislation. The right of arresting offenders, or
+      those presumed to be such, might be given to the public
+      vessels of all nations, under conditions regulated by
+      treaties, but the right to try them should be reserved to the
+      national Courts of the vessel arrested.
+
+      "2. A submarine-telegraph cable uniting two neutral
+      territories is inviolable. It is desirable that, when
+      telegraphic communication must be interrupted in consequence
+      of war, a belligerent should confine himself to such measures
+      as are absolutely necessary to prevent the cable from being
+      used, and that such measures should be discontinued, or that
+      any damage caused by them, should be repaired as soon as the
+      cessation of hostilities may permit."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, November 23 (1881).
+
+
+SUBMARINE CABLES IN TIME OF WAR
+
+Sir,--I venture to think that the question which has been raised as to
+the legitimacy of cable-cutting is not so insoluble as most of the
+allusions to it might lead one to suppose. It is true that no light is
+thrown upon it by the Convention of 1884, which relates exclusively to
+time of peace, and was indeed signed by Lord Lyons, on behalf of Great
+Britain, only with an express reservation to that effect. Nor are we
+helped by the case to which attention was called in your columns some
+time since by Messrs. Eyre and Spottiswoode. Their allusion was
+doubtless to the _International_ (L.R. 3 A. and E. 321), which is
+irrelevant to the present enquiry. The question is a new one, but,
+though covered by no precedent, I cannot doubt that it is covered by
+certain well-established principles of international law, which, it is
+hardly necessary to remark, is no cut-and-dried system but a body of
+rules founded upon, and moving with, the public opinion of nations.
+
+That branch of international law which deals with the relations of
+neutrals and belligerents is, of course, a compromise between what
+Grotius calls the "belli rigor" and the "commerciorum libertas." The
+terms of the compromise, originally suggested partly by equity, partly
+by national interest, have been varied and re-defined, from time to
+time, with reference to the same considerations. It is perhaps
+reasonable that, in settling these terms, preponderant weight should
+have been given to the requirements of belligerents, engaged possibly in
+a life-and-death struggle. "Ius commerciorum aequum est," says Gentili;
+"at hoc aequius, tuendae salutis." There is accordingly no doubt that in
+land warfare a belligerent may not only interrupt communications by
+road, railway, post, or telegraph without giving any ground of complaint
+to neutrals who may be thereby inconvenienced, but may also lay hands on
+such neutral property--shipping, railway carriages, or telegraphic
+plant--as may be essential to the conduct of his operations, making use
+of and even destroying it, subject only to a duty to compensate the
+owners. This he does in pursuance of the well-known "droit d'angarie,"
+an extreme application of which occurred in 1871, when certain British
+colliers were sunk in the Seine by the Prussians in order to prevent the
+passage of French gunboats up the river. Count Bismarck undertook that
+the owners of the ships should be indemnified, and Lord Granville did
+not press for anything further. Such action, if it took place outside of
+belligerent territory, would not be tolerated for a moment.
+
+The application of these principles to the case of submarine cables
+would appear to be, to a certain point at any rate, perfectly clear.
+Telegraphic communication with the outside world may well be as
+important to a State engaged in warfare as similar means of
+communication between one point and another within its own territory.
+Just as an invader would without scruple interrupt messages, and even
+destroy telegraphic plant, on land, so may he thus act within the
+enemy's territorial waters, or, perhaps, even so far from shore as he
+could reasonably place a blockading squadron. It may be objected that a
+belligerent has no right to prevent the access of neutral ships to
+unblockaded portions of the enemy's coast on the ground that by carrying
+diplomatic agents or despatches they are keeping up the communications
+of his enemy with neutral Governments. But this indulgence rests on the
+presumption that such official communications are "innocent," a
+presumption obviously inapplicable to telegraphic messages
+indiscriminately received in the course of business. It would seem,
+therefore, to be as reasonable as it is in accordance with analogy, that
+a belligerent should be allowed, within the territorial waters of his
+enemy, to cut a cable, even though it may be neutral property, of which
+the _terminus ad quem_ is enemy territory, subject only to a liability
+to indemnify the neutral owners.
+
+The cutting, elsewhere than in the enemy's waters, of a cable connecting
+enemy with neutral territory receives no countenance from international
+law. Still less permissible would be the cutting of a cable connecting
+two neutral ports, although messages may pass through it which, by
+previous and subsequent stages of transmission, may be useful to the
+enemy.
+
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, May 21 (1897).
+
+
+SUBMARINE CABLES IN TIME OF WAR
+
+Sir,--Will you allow me to refer in a few words to the interesting
+letters upon the subject of submarine cables which have been addressed
+to you by Mr. 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 belligerent interference
+with cables had ever occurred. International precedents are made by
+diplomatic action (or deliberate inaction) with reference to facts, not
+by those facts themselves. To the best of my belief no case of
+cable-cutting has ever been made matter of diplomatic representation,
+and I understand Mr. 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 "Belligerents and Neutrals,"
+reported in your issue of this morning, I observe that Mr. Macdonell
+suggests that the Institut de Droit International might usefully study
+the question of cables in time of war. It may, therefore, be well to
+state that this service hat already been rendered. The Institut, at its
+Paris meeting in 1878, appointed a committee, of which M. Renault was
+chairman, to consider the whole subject of the protection of cables,
+both in peace and in war; and at its Brussels meeting, in 1879,
+carefully discussed the exhaustive report of its committee and voted
+certain "conclusions," notably the following:--
+
+      "Le cable telegraphique sous-marin qui unit deux territoires
+      neutres est inviolable.
+
+      "Il est a desirer, quand les communications telegraphiques
+      doivent cesser par suite de l'etat de guerre, que l'on se
+      borne aux mesures strictement necessaires pour empecher
+      l'usage du cable, et qu'il soit mis fin a ces mesures, ou que
+      l'on en repare les consequences, aussitot que le permettra la
+      cessation des hostilites."
+
+It was in no small measure due to the initiative of the Institut that
+diplomatic conferences were held at Paris, which in 1882 produced a
+draft convention for the protection of cables, not restricted in its
+operation to time of peace; and in 1884 the actual convention, which is
+so restricted.
+
+It may not be generally known that in 1864, before the difficulties of
+the subject were thoroughly appreciated, a convention was signed, though
+it never became operative, by which Brazil, Hayti, Italy, and Portugal
+undertook to recognise the "neutrality" in time of war of a cable to be
+laid by one Balestrini. So, in 1869, the United States were desirous of
+concluding a general convention which should assimilate the destruction
+of cables in the high seas to piracy, and should continue to be in force
+in time of war. The Brussels conference of 1874 avoided any mention of
+"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 7
+
+_Destruction of Neutral Prizes_
+
+    A British ship, the _Knight Commander_, bound from New York to
+    Yokohama and Kobe, was stopped on July 23, 1904, by a Russian
+    cruiser, and as her cargo consisted largely of railway
+    material, was considered to be engaged in carriage of
+    contraband. Her crew and papers were taken on board the
+    cruiser, and she was sent to the bottom by fire from its guns.
+    The reasons officially given for this proceeding were that:
+    "The proximity of the enemy's port, the lack of coal on board
+    the vessel to enable her to be taken into a Russian port, and
+    the impossibility of supplying her with coal from one of the
+    Russian cruisers, owing to the high seas running at the time,
+    obliged the commander of the Russian cruiser to sink her."
+
+    The Russian Regulations as to Naval Prize, Art. 21, allowed a
+    commander "in exceptional cases, when the preservation of a
+    captured vessel appears impossible on account of her bad
+    condition or entire worthlessness, the danger of her recapture
+    by the enemy, or the great distance or blockade of ports, or
+    else on account of danger threatening the ship which has made
+    the capture, or the success of her operations," to burn or sink
+    the prize.
+
+    The Japanese Regulations, Art. 91, were to the same effect in
+    cases where the prize (1) cannot be navigated owing to her
+    being unseaworthy, or to dangerous seas; (2) is likely to be
+    recaptured by the enemy; (3) cannot be navigated without
+    depriving the ship-of-war of officers and men required for her
+    own safety.
+
+    The case of the _Knight Commander_ was the subject of comment,
+    on the 27th of the same month, in both Houses of Parliament. In
+    the House of Lords, Lord Lansdowne spoke of what had occurred
+    as "a very serious breach of international law," "an outrage,"
+    against which it had been considered "a duty to lodge a strong
+    protest." In the House of Commons, Mr. Balfour described it as
+    "entirely contrary to the accepted practice of civilised
+    nations." Similar language was used in Parliament on August 10,
+    when Mr. Gibson Bowles alluded to my letter of the 6th, in a
+    way which gave occasion for that of the 14th.
+
+    The _Knight Commander_ was condemned by the Prize Court at
+    Vladivostok on August 16, 1904, and the sentence was confirmed
+    on December 5, 1905, by the Court of Appeal at St. Petersburg,
+    which found it "impossible to agree that the destruction of a
+    neutral vessel is contrary to the principles of international
+    law." The Russian Government remained firm on the point, and in
+    1908 declined to submit the case to arbitration.
+
+    The Institut de Droit International in its _Code des Prises
+    maritimes_, voted in 1887, Art. 50 (not, be it observed,
+    professing to state the law as it is, but as it should be), had
+    taken a view in accordance with that maintained by the British
+    Government (_Annuaire_ for 1888, t. ix. p. 228; _cf. ib._ pp.
+    200, 201). (The _Manuel des lois de la guerre maritime_, voted
+    at Oxford in 1913, dealing exclusively with "les rapports entre
+    les belligerants," does not deal with the topic in question.)
+    It was, however, the opinion of the present writer, as will
+    appear from the following letters, that no rule of
+    international law, by which the sinking of even neutral prizes
+    was absolutely prohibited, could be shown to exist. He had
+    previously touched upon this question in his evidence before
+    the Royal Commission on the Supply of Food, &c., in Time of
+    War, on November, 4, 1903, and returned to it later in his
+    paper upon "The Duties of Neutrals," read to the British
+    Academy on April 12, 1905, _Transactions_, ii. p. 66. It was
+    reproduced in French, German, Belgian, and Spanish periodicals,
+    and was cited in the judgment of the St. Petersburg Court of
+    Appeal in the case of the _Knight Commander._
+
+    The subsequent history of the question, and, in particular, of
+    the rules suggested in Arts. 48-54 of the unratified
+    Declaration of London, may be claimed in favour of the
+    correctness of the opinion maintained in the letters.
+
+
+RUSSIAN PRIZE LAW
+
+Sir,--The neutral Powers have serious ground of complaint as to the mode
+in which Russia is conducting operations at sea. It may, however, be
+doubted whether public opinion is sufficiently well informed to be
+capable of estimating the comparative gravity of the acts which are just
+now attracting attention. Putting aside for the moment questions arising
+out of the Straits Convention of 1856, as belonging to a somewhat
+different order of ideas, we may take it that the topics most needing
+careful consideration relate to removal of contraband from the ship that
+is carrying it without taking her in for adjudication; interference with
+mail steamers and their mail bags; perversely wrong decisions of Prize
+Courts; confiscation of ships as well as of their contraband cargo;
+destruction of prizes at sea; the list of contraband. Of these topics,
+the two last mentioned are probably the most important, and on each of
+these I will ask you to allow me to say a few words.
+
+1. There is no doubt that by the Russian regulations of 1895, Art. 21;
+and instructions of 1901, Art. 40, officers are empowered to destroy
+their prizes at sea, no distinction being drawn between neutral and
+enemy property, under such exceptional circumstances as the bad
+condition or small value of the prize, risk of recapture, distance from
+a Russian port, danger to the Imperial cruiser or to the success of her
+operations. The instructions of 1901, it may be added, explain that an
+officer "incurs no responsibility whatever" for so acting if the
+captured vessel is really liable to confiscation and the special
+circumstances imperatively demand her destruction. It is fair to say
+that not dissimilar, though less stringent, instructions were issued by
+France in 1870 and by the United States in 1898; also that, although the
+French instructions expressly contemplate "l'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 justifiable only
+in cases of "the gravest importance to the captor's own State," after
+securing the ship's papers and subject to the right of neutral owners to
+receive fall compensation (_Actaeon_, 2 Dods. 48; _Felicity, ib._ 381;
+substantially followed by Dr. Lushington in the _Leucade_, Spinks, 221).
+It is not the case, as is alleged by the _Novoe Vremya_, that any
+British regulations "contain the same provisions as the Russian" on this
+subject. On the contrary, the Admiralty Manual of 1888 allows
+destruction of enemy vessels only; and goes so far in the direction of
+liberality as to order the release, without ransom, of a neutral prize
+which either from its condition, or from lack of a prize crew, cannot be
+sent in for adjudication. The Japanese instructions of 1894 permit the
+destruction of only enemy vessels; and Art. 50 of the carefully debated
+"Code des prises" of the Institut de Droit International is to the same
+effect. It may be worth while to add that the eminent Russian jurist, M.
+de Martens, in his book on international law, published some twenty
+years ago, in mentioning that the distance of her ports from the scenes
+of naval operations often obliges Russia to sink her prizes, so that "ce
+qui les lois maritimes de tous les etats considerent comme un moyen
+auquel il n'y a lieu de recourir qu'a la derniere extremite, se
+transformera necessairement pour nous en regle 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 cotton
+during the American Civil War will be found on examination to have no
+bearing on the question under consideration. I touch to-day upon this
+large subject only to express a hope that our Government, in concert, if
+possible, with other neutral Governments, has communicated to that of
+Russia, with reference to its list of prohibited articles, a protest in
+language as unmistakable as that employed by our Foreign Office in 1885;
+"I regret to have to inform you, M. l'Ambassadeur," wrote Lord
+Granville, "that Her Majesty's Government feel compelled to take
+exception to the proposed measure, as they cannot admit that,
+consistently with the law and practice of nations, and with the rights
+of neutrals, provisions in general can be treated as contraband of war."
+A timely warning that a claim is inadmissible is surely preferable to
+waiting till bad feeling has been aroused by the concrete application of
+an objectionable doctrine.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, August I (1904).
+
+
+RUSSIAN PRIZE LAW
+
+Sir,--From this hilltop I observe that, in the debate of Thursday last,
+Mr. Gibson Bowles, alluding to a letter of mine which appeared in your
+issue of August 6, complained that I "had not given the proper
+reference" to Lord Stowell's judgments. Mr. Bowles seems to be unaware
+that in referring to a decided case the page mentioned is, in the
+absence of any indication to the contrary, invariably that on which the
+report of the case commences. I may perhaps also be allowed to say that
+he, in my opinion, misapprehends the effect of the passage quoted by him
+from the _Felicity_, which decides only that, whatever may be the
+justification for the destruction of a neutral prize, the neutral owner
+is entitled, as against the captor, to full compensation for the loss
+thereby sustained.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Eggishorn, Valais, Suisse, August 14 (1904).
+
+
+RUSSIAN PRIZE LAW
+
+Sir,--Mr. Gibson Bowles has, I find, addressed to you a letter in which
+he attempts to controvert two statements of mine by the simple expedient
+of omitting essential portions of each of them.
+
+1. Mr. Bowles having revealed himself as unaware that the mode in which
+I had cited a group of cases upon destruction of prizes was the correct
+mode, I thought it well to provide him with the rudimentary information
+that, "in referring to a decided case, the page, mentioned is, _in the
+absence of any indication to the contrary_, invariably that on which the
+report of the case commences." He replies that he has found appended to
+a citation of a passage in a judgment the page in which this passage
+occurs. May I refer him, for an explanation of this phenomenon, to the
+words (now italicised) omitted in his quotation of my statement? It is,
+of course, common enough, when the reference is obviously not to the
+case as a whole but to an extract from it, thus to give a clue to the
+extract, the formula then employed being frequently "_at_ page
+so-and-so."
+
+2. I had summarised the effect, as I conceive it, of the group of cases
+above mentioned in the following terms: "Such action is justifiable only
+in cases of the gravest importance to the captor's own State, _after
+securing the ship's papers, and subject to the right of the neutral
+owners to receive full compensation_." Here, again, while purporting to
+quote me, Mr. Bowles omits the all-important words now italicised. I am,
+however, maltreated in good company. Mr. Bowles represents Lord Stowell
+as holding that destruction of neutral property cannot be justified,
+even in cases of the gravest importance to the captor's own State. What
+Lord Stowell actually says, in the very passage quoted by Mr. Bowles, is
+that "to the neutral can only be justified, under any such
+circumstances, by a full restitution in value." I would, suggest that
+Mr. Bowles should find an opportunity for reading _in extenso_ the
+reports of the _Actaeon_ (2 Dods. 48), and the _Felicity_ (_ib._ 881),
+as also for re-reading the passage which occurs at p. 386 of the latter
+case, before venturing further into the somewhat intricate
+technicalities of prize law.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Eggishorn, Suisse, August 26 (1904).
+
+
+THE SINKING OF NEUTRAL PRIZES
+
+Sir,--In your St. Petersburg correspondence of yesterday I see that some
+reference is made to what I have had occasion to say from time to time
+upon the vexed question of the sinking of neutral vessels, and your
+Correspondent thinks it "would be decidedly interesting" to know whether
+I have really changed my opinion on the subject. Perhaps, therefore, I
+may be allowed to state that my opinion on the subject has suffered no
+change, and may be summarised as follows:--
+
+1. There is no established rule of international law which absolutely
+forbids, under any circumstances, the sinking of a neutral prize. A
+_consensus gentium_ to this effect will hardly be alleged by those who
+are aware that such sinking is permitted by the most recent prize
+regulations of France, Russia, Japan, and the United States.
+
+2. It is much to be desired that the practice should be, by future
+international agreement, absolutely forbidden--- that the lenity of
+British practice in this respect should become internationally
+obligatory.
+
+3. In the meantime, to adopt the language of the French instructions,
+"On ne doit user de ce droit de destruction qu'avec plus la grande
+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 published statements on the
+subject for which I am responsible are contained in the _Admiralty
+Manual of Prize Law_ of 1888 (where section 808 sets out the lenient
+British instructions to commanders, without any implication that
+instructions of a severer kind would have been inconsistent with
+international law); in letters which appeared in your columns on August
+6, 17, and 30, 1904; and in a paper on "Neutral Duties in a Maritime
+War, as illustrated by recent events," read before the British Academy
+in April last, a French translation of which is in circulation on the
+Continent.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Temple, June 29 (1905).
+
+
+    The Russian circular of April 3, 1906, inviting the Powers to a
+    second Peace Conference, included amongst the topics for
+    discussion: "Destruction par force majeure des 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), the Conference
+    failed to arrive at any conclusion as to the desirability of
+    prohibiting the destruction of neutral prizes, and confined
+    itself to the expression of a wish (_voeu_) that this, and
+    other unsettled points in the law of naval warfare, should be
+    dealt with by a subsequent Conference.
+
+    This question was, accordingly, one of those submitted to a
+    Conference of ten maritime Powers, which was convoked by Great
+    Britain in 1908, for reasons upon which something will be said
+    in the next section.
+
+    The question of sinking was fully debated in this Conference,
+    with the assistance of memoranda, in which the several Powers
+    represented explained their divergent views upon it, and of
+    reports prepared by committees specially appointed for the
+    purpose. It soon became apparent that the British proposal for
+    an absolute prohibition of the destruction of neutral prizes
+    had no chance of being accepted; while, on the other hand, it
+    was generally agreed that the practice is permissible only in
+    exceptional cases. (See _Parl. Paper, Miscell._ No. 5 (1909),
+    pp. 2-63, 99-102, 120, 189, 205, 215, 223, 248, 268-278, 323,
+    365.) Arts. 48-54 of the Declaration, signed by the delegates
+    to the Conference on February 26, 1909, but not ratified by
+    Great Britain, related to this question. After laying down, in
+    Art. 48, the general principle that "a neutral prize cannot be
+    destroyed by the captor, but should be taken into such port as
+    is proper for the legal decision of the rightfulness of the
+    capture" the Declaration proceeded, in Art. 49, to qualify this
+    principle by providing that "exceptionally, a neutral vessel
+    captured by a belligerent warship, which would be liable to
+    confiscation, may be destroyed, if obedience to Art. 48 might
+    compromise the safety of the warship, or the success of the
+    operations in which she is actually engaged."
+
+       *       *       *       *       *
+
+SECTION 8
+
+_An International Prize Court_
+
+    The forecast, incidentally attempted in the following letters,
+    of the general results likely to be arrived at by the second
+    Peace Conference, has been justified by the event. As much may
+    be claimed for the views maintained upon the topic with which
+    these letters were more specifically concerned. Instead of
+    letting loose the judges of the proposed International prize
+    Court to "make law," in accordance with what might happen to be
+    their notions of "the general principles of justice and
+    equity," a serious attempt has been made to supply them with a
+    Code of the law which they would be expected to administer.
+
+    Some account will be given at the end of this section of the
+    movement towards the establishment of an International Court of
+    Appeal in oases of prize.
+
+
+AN INTERNATIONAL PRIZE COURT
+
+SIR--The idea suggested by the question addressed on February 19 to the
+Government by Mr. A. Herbert--viz. that the appeal in prize cases
+should lie, not to a Court belonging to the belligerent from whose Court
+of first instance the appeal is brought, but to an international
+tribunal, has a plausible appearance of fairness, but involves many
+preliminary questions which must not be lost sight of.
+
+Prize Courts are, at present, Courts of enquiry, to which a belligerent
+Government entrusts the duty of ascertaining whether the captures made
+by its officers have been properly made, according to the views of
+international law entertained by that Government. There exists, no
+doubt, among Continental jurists, a considerable body of opinion in
+favour of giving to Courts of Appeal, at any rate, in prize cases a
+wholly different character. This opinion found its expression in Arts.
+100-109 of the _Code des Prises maritimes_, finally adopted at its
+Heidelberg meeting, in 1887, by the Institut de Droit International.
+Art. 100 runs as follows:--
+
+      "Au debut de chaque guerre, chacune des parties belligerantes
+      constitue un tribunal international d'appel en matiere de
+      prises maritimes. Chacun de ces tribunaux est compose de cinq
+      membres, designes comme suit: L'etat belligerant nommera
+      lui-meme le president et un des membres. Il designera en
+      outre trois etats neutres, qui choisiront chacun un des trois
+      autres membres."
+
+In the abstract, and supposing that a tribunal perfectly satisfactory
+both to belligerents and neutrals could be constituted, whether
+antecedently or _ad hoc_, there might be much to be said for the
+proposal; subject, however, to one condition--viz. that an agreement
+had been previously arrived at as to the law which the Court is to
+apply. At the present time there exists, on many vital questions of
+prize law, no such agreement. It will be sufficient to mention those
+relating to the list of contraband, the distinction between "absolute"
+and "conditional" contraband, the doctrine of "continuous voyages," the
+right of sinking a neutral prize, the moment from which a vessel becomes
+liable for breach of blockade.
+
+Just as the _Alabama_ arbitration would have been impossible had not an
+agreement been arrived at upon the principles in accordance with which
+neutral duties as to the exit of ships of war were to be construed, so,
+also, before an international Court can be empowered to decide questions
+of prize, whether in the first instance or on appeal, it is
+indispensable that the law to be applied on the points above mentioned,
+and many others, should have been clearly defined and accepted, if not
+generally, at least by all parties concerned. The moral which I would
+venture to draw is, therefore, that although questions of fact, arising
+out of capture of a prize, might sometimes be submitted to a tribunal of
+arbitration, no case, involving rules of law as to which nations take
+different views, could possibly be so submitted. One is glad, therefore,
+to notice that the Prime Minister's reply to Mr. A. Herbert was of the
+most guarded character. The settlement of the law of prize must
+necessarily precede any general resort to an international prize Court;
+and if the coming Hague Conference does no more than settle some of the
+most pressing of these questions, it will have done much to promote the
+cause of peace.
+
+I am, your obedient servant,
+T. E. HOLLAND.
+Oxford, February 20 (1907).
+
+
+A NEW PRIZE LAW
+
+Sir,--The leading articles which you have recently published upon the
+doings of the Peace Conference, as also the weighty letter addressed to
+you by my eminent colleague, Professor Westlake, will have been welcomed
+by many of your readers who are anxious that the vital importance of
+some of the questions under discussion at The Hague should not be lost
+sight of.
+
+The Conference may now be congratulated upon having already given a
+_quietus_ to several proposals for which, whether or not they may be
+rightly described as Utopian, the time is admittedly not yet ripe. Such
+has been the fate of the suggestions for the limitation of armaments,
+and the exemption from capture of private property at sea. Such also,
+there is every reason to hope, is the destiny which awaits the still
+more objectionable proposals for rendering obligatory the resort to
+arbitration, which by the Convention of 1899 was wisely left optional.
+
+Should the labours of the delegates succeed in placing some restrictions
+upon the employment of submarine mines, the bombardment of open coast
+towns, and the conversion of merchant vessels into ships of war; in
+making some slight improvements in each of the three Conventions of
+1899; and in solving some of the more pressing questions as to the
+rights and duties of neutrals, especially with reference to the
+reception in their ports of belligerent warships, it will have more than
+justified the hopes for its success which have been entertained by
+persons conversant with the difficulty and complexity of the problems
+involved.
+
+But what shall we say of certain proposals for revolutionising the law
+of prize, which still remain for consideration, notably for the
+establishment of an international Court of Appeal, and for the abolition
+of contraband? It can hardly be supposed that either suggestion will win
+its way to acceptance.
+
+1. The British scheme for an international Court of Appeal in prize
+cases is, indeed, far preferable to the German; but the objections to
+anything of the kind would seem to be, for the present, insuperable,
+were it only for the reason which you allowed me to point out, some
+months ago, _a propos_ of a question put in the House of Commons by Mr.
+Arnold Herbert. As long as nations hold widely different views on many
+points of prize law, it cannot be expected that they should agree
+beforehand that, when belligerent, they will leave it to a board of
+arbitrators to say which of several competing rules shall be applied to
+any given case of capture, or to evolve out of their inner consciousness
+a new rule, hitherto unknown to any national prize Court. It would seem
+that the German advocates of the innovation claim in its favour the
+authority of the Institut de Droit International. Permit me, therefore,
+as one who has taken part in all the discussions of the Institut upon
+the subject, to state that when it was first handled, at Zurich, in
+1878, the difficulties in the way of an international Court were
+insisted on by such men as Asser, Bernard, Bluntschli, Bulmerincq, and
+Neumann, and the vote of a majority in its favour was coupled with one
+which demanded the acceptance by treaty of a universally applicable
+system of prize law. The drafting of such a system was accordingly the
+main object of the _Code des Prises maritimes_, which, after occupying
+several sessions of the Institut, was finally adopted by it, at
+Heidelberg, in 1887. Only ten of the 122 sections of this Code deal with
+an international Court of Appeal. A complete body of law, by which
+States have agreed to be bound, must, one would think, necessarily
+precede the establishment of a mixed Court by which that law is to be
+interpreted.
+
+2. While the several delegations are vying with one another in devising
+new definitions of contraband, there would seem to be little likelihood
+that the British proposal for its total abandonment will be seriously
+entertained. Such a step could be justified, if at all, from the point
+of view of national interest, only on the ground that it might possibly
+throw increased difficulties in the way of an enemy desirous, even by
+straining the existing law, of interfering with the supply of foodstuffs
+to the British Islands. I propose, for the present, only to call
+attention to the concluding paragraph of the British notice of motion on
+this point, which would seem to imply much more than the abandonment of
+contraband. The words in question, if indeed they are authentically
+reported, are as follows: "Le droit de visite ne serait exerce que pour
+constater le caractere neutre du batiment de commerce." Does this mean
+that the visiting officer, as soon as he has ascertained from the ship's
+papers that she is neutral property, is to make his bow and return to
+the cruiser whence he came? If so, what has become of our existing right
+to detain any vessel which has sailed for a blockaded port, or is
+carrying, as a commercial venture, or even ignorantly, hostile troops or
+despatches? No such definition as is proposed of an "auxiliary
+ship-of-war" would safeguard the right in question, since a ship, to
+come within that definition, must, it appears, be under the orders of a
+belligerent fleet.
+
+I would venture to suggest that the motto of a reformer of prize law
+should be _festina lente._ The existing system is the fruit of practical
+experience extending over several centuries, and, though it may need,
+here and there, some readjustment to new conditions, brought about by
+the substitution of steam for sails, is not one which can safely be
+pulled to pieces in a couple of months. Let us leave something for
+future Hague Conferences.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, July 24 (1907).
+
+
+A NEW PRIZE LAW
+
+Sir,--In a letter under the above heading, for which you were so good as
+to find room in July last, I returned to the thesis which I had ventured
+to maintain some months previously, _a propos_ of a question put in the
+House of Commons. My contention was that the establishment of an
+international prize Court, assuming it to be under any circumstances
+desirable, should follow, not precede, a general international agreement
+as to the law which the Court is to administer.
+
+It would appear, from such imperfect information as intermittently
+reaches Swiss mountain hotels, that a conviction of the truth of this
+proposition is at length making way among the delegates to The Hague
+Conference and among observers of its doings. In a recent number of the
+_Courrier de la 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 "l'acceptation de la
+Cour des Prises est strictement conditionnelle a la redaction du Code,
+qu'elle aura a 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 Great Britain looks upon as the
+fundamental principles of naval warfare." One learns also from other
+sources, that efforts are being made to arrive, by a series of
+compromises, at some common understanding upon the points as to which
+the differences of view between the Powers are most pronounced. It may,
+however, be safely predicted that many years must elapse before any such
+result will be achieved.
+
+In the meantime, a very different solution of the difficulty has
+commended itself to the partisans of the proposed Court. M. Renault, the
+accomplished Reporter of the committee which deals in the first instance
+with the subject, after stating that "sur beaucoup de points le droit de
+la guerre maritime est encore incertain, et chaque Etat le formule au
+gre de ses idees et de ses interets," lays down that, in accordance with
+strict juridical reasoning, when international law is silent an
+international Court should apply the law of the captor. He is,
+nevertheless, prepared to recommend, as the spokesman of the committee,
+that in such cases the Judges should decide "d'apres les principes[C]
+generaux de la justice et de l'equite"--a process which I had, less
+complimentarily, described as "evolving new rules out of their inner
+consciousness." The Court, in pursuance of this confessedly "hardie
+solution," would be called upon to "faire le droit."
+
+One may be permitted to hope that this proposal will not be accepted.
+The beneficent action of English Judges in developing the common law of
+England may possibly be cited in its favour; but the analogy is
+delusive. The Courts of a given country in evolving new rules of law are
+almost certain to do so in accordance with the views of public policy
+generally entertained in that country. Should they act otherwise their
+error can be promptly corrected by the national Legislature. Far
+different would be the effect of the decision of an international Court,
+in which, though it might run directly counter to British theory and
+practice, Great Britain would have bound herself beforehand to
+acquiesce. The only quasi-legislative body by which the _ratio
+decidendi_ of such a decision could be disallowed would be an
+international gathering in which British views might find scanty
+support. The development of a system of national law by national Judges
+offers no analogy to the working of an international Court, empowered,
+at its free will and pleasure, to disregard the views of a sovereign
+Power as to the proper rule to be applied in cases as to which
+international law gives no guidance. In such cases the ultimate
+adjustment of differences of view is the appropriate work, not of a law
+Court, but of diplomacy.
+
+It is hardly necessary to combat the notion that there already exists,
+_in nubibus_, a complete system of prize law, which is in some
+mysterious way accessible to Judges, and reveals to them the rule
+applicable to each new case as it arises. This notion, so far as it is
+prevalent, seems to have arisen from a mistaken reading of certain
+_dicta_ of Lord Stowell, in which that great Judge, in his finest
+eighteenth-century manner, insists that the law which it was his duty to
+administer "has no locality" and "belongs to other nations as well as
+our own." He was, of course, thinking of the rules of prize law upon
+which the nations are agreed, not of the numerous questions upon which
+no agreement exists, and was dealing with the difficult position of a
+Judge who has to choose (as in the recent _Moray Firth_ case) between
+obedience to such rules and obedience to the legislative, or
+quasi-legislative, acts of his own Government.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Eggishorn, Suisse, September 16 (1907).
+
+
+A NEW PRIZE LAW
+
+Sir,--The speech of the Prime Minister at the Guildhall contains a
+paragraph which will be read with a sense of relief by those who, like
+myself, have all along viewed with surprise and apprehension The Hague
+proposals for an international prize Court.
+
+Sir H. Campbell-Bannerman admits that "it is desirable, and it may be
+essential, that, before legislation can be undertaken to make such a
+Court effective, the leading maritime nations should come to an
+agreement as to the rules regarding some of the more important subjects
+of warfare which are to be administered by the Court"; and his
+subsequent eulogy of the Court presupposes that it is provided with "a
+body of rules which has received the sanction of the great maritime
+Powers." What is said as to the necessary postponement of any
+legislation in the sense of The Hague Convention must, of course, apply
+_a fortiori_ to the ratification of the Convention.
+
+We have here, for the first time, an authoritative repudiation of the
+notion that fifteen gentlemen of mixed nationality composing an
+international prize Court, are to be let loose to "make law," in
+accordance with what may happen to be their conceptions of "justice and
+equity." It seems at last to be recognised that such a Court cannot be
+set to work unless, and until, the great maritime Powers shall have come
+to an agreement upon the rules of law which the Court is to administer.
+
+I may add that it is surely too much to expect that the rules in
+question will be discussed by the Powers, to use Sir H.
+Campbell-Bannerman's phrase, "without any political _arriere pensee._"
+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 Huebner, who proposed to confer jurisdiction in
+    cases of neutral prize on Courts composed of ministers or
+    consuls, accredited by neutrals to the belligerents, together
+    with commissioners appointed by the Sovereign of the captors or
+    of the country to which the prize has been brought, as also,
+    perhaps, "des personnes pleines de 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 Batiments neutres_ (1759), ii. pp.
+    45-61. The Institut de Droit International, after discussions
+    extending over several years, accepted the principle of an
+    International Court of Appeal, though only in combination with
+    a complete scheme of prize law, in its _Code des Prises
+    maritimes_, completed in 1887, section 100.
+
+    At the Conference of 1907, the work of several committees, and
+    a masterly report by Professor Renault, _Parl. Papers_, No. iv.
+    (1908), p. 9, resulted in The Hague Convention, No. xii. of
+    that year, providing for the establishment of a mixed Court of
+    Appeal from national prize Courts.
+
+    According to Art. 7 of this Convention, in default of any
+    relevant treaty between the Governments of the litigant
+    parties, and of generally recognised rules of international law
+    bearing upon the question at issue, the Court is to decide "in
+    accordance with the general principles of justice and equity."
+    It seems, however, to have been soon perceived that the
+    proposal to institute a Court, unprovided with any fixed system
+    of law by which to decide the cases which might be brought
+    before it, could not well be entertained, and the Final Act of
+    the Conference accordingly expresses a wish that "the
+    preparation of a _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 establishment of
+    the International Prize Court would not meet with general
+    acceptance so long as vagueness and uncertainty exist as to the
+    principles which the Court, in dealing with appeals brought
+    before it, would apply to questions of far-reaching importance,
+    affecting naval policy and practice," went on to propose that
+    another Conference should meet in London, in the autumn of the
+    same year, "with the object of arriving at an agreement as to
+    what are the generally recognised principles of international
+    law within the meaning of paragraph 2 of Article 7 of the
+    Convention, as to those matters wherein the practice of nations
+    has varied, and of then formulating the rules which, in the
+    absence of special treaty provisions applicable to a particular
+    case, the Court should observe in dealing with appeals brought
+    before it for decision.... It would be difficult, if not
+    impossible, for H.M. Government to carry the legislation
+    necessary to give effect to the Convention, unless they could
+    assure both Houses of the British Parliament that some more
+    definite understanding had been reached as to the rules by
+    which the new Tribunal should be governed."
+
+    In response to this invitation, delegates from ten principal
+    maritime States assembled at the Foreign Office on December 4,
+    1908, and after discussing the topics to which their attention
+    was directed, viz.: (1) Contraband; (2) Blockade; (3)
+    Continuous voyage; (4) Destruction of neutral prizes; (5)
+    Unneutral service; (6) Conversion of merchant vessels into
+    warships on the high seas; (7) Transfer to a neutral flag; (8)
+    Nationality or domicil, as the test of enemy property; signed
+    on February 26, 1909, the Declaration of London.
+
+    The Convention No. xii. of 1907 and the Declaration of London
+    of 1909 have alike failed to obtain ratification. _Cf._ now the
+    two immediately following sections, 9 and 10.
+
+    An ultimate Court of Appeal in cases of Prize seems now likely
+    to be provided by the "Permanent Court of International
+    Justice," proposed by the League of Nations in pursuance of
+    Art. 14 of the Treaty of Versailles. See also Art. 24 of the
+    Treaty. _Cf. supra_, p. 2.
+
+       *       *       *       *       *
+
+SECTION 9
+
+_The Naval Prize Bill_
+
+    The first two letters in this section contain the criticisms of
+    the Bill to which allusion is made in the first lines of a
+    letter of later date, q.v. _supra_, p. 36. On the rejection of
+    the Bill, see _ib._, note 1.
+
+
+THE NAVAL PRIZE BILL
+
+Sir--A paternal interest in the Naval Prize Bill may perhaps be thought
+a sufficient excuse for the few remarks which I am about to make upon
+it. The Bill owes its existence to a suggestion made by me, just ten
+years ago, while engaged in bringing up to date for the Admiralty my
+_Manual of Naval Prise Law_ of 1888. It was drafted by me, after
+prolonged communications with Judges, Law Officers, and the Government
+Departments concerned, so as not only to reproduce the provisions of
+several "cross and cuffing" statutes dealing with the subject, but also
+to exhibit them in a more logical order than is always to be met with in
+Acts of Parliament.
+
+The Bill was thought of sufficient importance to be mentioned on two
+occasions in the King's Speech, and has been several times passed, after
+careful consideration, by the House of Lords; but pressure of other
+business has hitherto impeded its passage through the House of Commons.
+It has now been reintroduced, this time in the Lower House, with an
+imposing backing of Government support; primarily, no doubt, with a view
+to facilitating the ratification of The Hague Convention for the
+establishment of an International Prize Court of Appeal. For this
+purpose, several pieces of new cloth have been sewn into the old
+garment, and I may perhaps be allowed to call attention to three or four
+points in which, on a first reading, the new clauses strike one as
+needing reconsideration.
+
+Tactical reasons have, no doubt, operated to induce the Government to
+include in the Consolidation Bill the provisions for which statutory
+authority must be obtained before it will be possible to ratify the
+Convention; instead of first introducing a Bill having this sole object
+in view, and afterwards, should this be passed, inserting the new law in
+a reintroduced Consolidation Bill.
+
+The course adopted necessitates an otherwise unnecessary preamble, and
+the qualification of the new Part III. by the words "in the event of an
+International Prize Court being established" (Clause 23). The reference,
+by the by, in this clause to "the said Convention" is somewhat awkward,
+no mention of any Convention having occurred previously, except in the
+preamble of the Bill. Is not also the statutory approval given by this
+clause, not only to the Convention of 1907 but also to "any Convention
+amending the same," somewhat startling, as tending to exclude
+Parliamentary criticism of such an amending Convention before its
+ratification?
+
+By Clause 9, the members of the Judicial Committee who are to be
+nominated to act as the British Court of Appeal in cases of prize are to
+be described by the novel title of "the Supreme Prize Court." Is not the
+use made of the term "Supreme" in the Judicature Acts, as covering both
+the High Court and the Court of Appeal, already sufficiently
+unsatisfactory?
+
+But the question which, of all others _saute aux yeux_, in reading the
+new Part III., is whether the Convention is to be approved as it stands,
+irrespectively of a general acceptance of the new Code of Prize Law
+contained in the Declaration of London of 1909. The objections to Art. 7
+of the Contention, providing that, in the absence of rules of
+International Law generally recognised (and on many points of Prize Law
+there are no such rules), the Court is to decide in accordance with
+(what it may be pleased to consider) "the general principles of law and
+equity," are well known. The purpose of the Declaration of London
+(itself the subject of much difference of opinion) was to curtail this
+licence of decision, by providing the Court with so much ascertained
+Prize Law as to render action under the too-elastic phrase above quoted
+almost inconceivable.
+
+Is it too much of a counsel of perfection to suggest that the debatable
+questions arising under the Convention of 1907 and the Declaration of
+1909 should first be threshed out in discussions on a Bill dealing with
+those questions only; and that the decision, if any, thus arrived at
+should be subsequently inserted, freed from hypothesis, in the
+Consolidation Bill which has so long awaited the leisure of the House of
+Commons?
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, July 10 (1910).
+
+
+THE NAVAL PRIZE BILL
+
+Sir,--The Government has so far yielded to the representations of the
+Opposition as to have refrained from forcing on Friday night a division
+upon the Naval Prize Bill. Is it too much to hope that the Government
+may even now withdraw altogether a measure so ill adapted to place
+fairly before Parliament the question of the desirability of ratifying
+two documents held by a large body of competent opinion to be certain,
+if ratified, seriously to endanger the vital interests of the country?
+The Bill, as I have already pointed out, as originally drawn, was a
+careful consolidation of the law and procedure governing British Courts
+of Prize. Into this has now been incongruously thrust a set of clauses
+intended to give effect to a novel and highly controversial proposal for
+the creation of an International Prize Court. About the Declaration of
+London, alleged to contain a body of law which would adequately equip
+such a Court for the performance of its duties, not a word is said in
+the Bill; yet, should approval of the Bill be snatched by a purely party
+majority, the intention of the Government is to proceed straightway to
+the ratification both of the Prize Court Convention and the Declaration.
+Whether they intend also to endeavour to obtain the ratification, as an
+auxiliary Convention, of the lengthy covering commentary upon the
+Declaration, supplied by the committee by which the Declaration was
+drafted, does not yet appear. Of such a step I have already written that
+it "would be calamitous should a practice be introduced of attempting to
+cure the imperfect expression of a treaty by tacking on to it an equally
+authoritative reasoned commentary. The result would be _obscurum per
+obscurius_, a remedy worse than the disease."
+
+The alternatives before Parliament on Monday next will be either, by
+reading the Naval Prize Bill a second time, to bring about, in the teeth
+of protests from those best qualified to express an independent opinion
+upon the subject, the immediate ratification of the Convention and the
+Declaration, or to ask that before, this momentous step is taken the
+infinitely complex and delicate questions involved should be examined
+and passed upon by a Commission of representative experts. Which shall
+it be?
+
+Your obedient servant,
+T. E. HOLLAND.
+Oxford, July I (1911).
+
+
+    _Cf._ a letter of July 7, 1911, _supra_, p. 36.
+
+
+NAVAL PRIZE MONEY
+
+Sir,--The existing enactments as to prize bounty are, it seems,
+unsuitable to present conditions of naval warfare, and are accordingly
+to be varied by a bill shortly to be introduced.
+
+May I venture to recommend that the Bill should contain merely the
+half-dozen clauses needed for this purpose, leaving untouched for
+subsequent uncontroversial passage, the Naval Prize Consolidation with
+Amendments Bill? This Bill, suggested and drafted by myself, in the
+spacious times of peace, in consultation with the Admiralty and other
+Government Departments, as also with the Judge of the Admiralty Division
+and the Law Officers (including the present Lord Chancellor), was twice
+mentioned in the King's Speech, and several times, after careful
+consideration, passed by the House of Lords, but still awaits the
+leisure of the Lower House. It deserved a better fate than to have been
+used, in 1911, as a corpus vile for facilitating the ratification of the
+Convention for an International Prize Court and of the Declaration of
+London; receiving, most fortunately, as so perverted, its _coup de
+grace_ from the Lords. It should be passed as an artistic whole, apart
+from any contentious matter, account having, of course, been taken of
+recent legislation by which it may have been, here and there, affected.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, May 23 (1918).
+
+       *       *       *       *       *
+
+SECTION 10
+
+The Declaration of London
+
+    For incidental mentions of the Declaration in earlier sections
+    see _supra_, pp. 22, 36, 39, 55, 58, 80, 90, 92, 148, 149, 154,
+    155, 156, 158, 163, 164, 174, 181, 191, 193, 194, 195, 196.
+
+    See also my paper upon _Proposed Changes in the Law of Naval
+    Prize_, read to the British Academy on May 31, 1911,
+    _Transactions_, vol. v., of which a translation appeared in the
+    _Revue de Droit International_, N.S., t. xiii, pp. 336-355.
+
+
+THE DECLARATION OF LONDON
+
+Sir,--The questions put last night by Mr. M'Arthur need, perhaps, more
+fully considered answers than they received from Mr. McKinnon Wood.
+
+With reference to the first answer, it may be worth while to point out
+that, in Art. 66 of the Declaration, the Powers undertake not only, as
+in the passage quoted, "to give the necessary instructions to their
+authorities and armed forces," but also "to take the measures which may
+be proper for guaranteeing the application of the rules Contained in the
+Declaration by their Courts, and, in particular, by their Courts of
+Prize." The "authentic commentary" upon the article in M. Renault's
+"Report" explains that the measures in question "may vary in different
+countries, and may or may not require the intervention of the
+Legislature."
+
+The second answer lays down broadly that "the decisions of the British
+Prize Courts are founded on International Law, and not on municipal
+enactments." Our Prize Courts have, no doubt, on most points, decided in
+accordance with International Law, in the sense of the principles
+generally followed by civilised nations; but, on not a few points, in
+accordance with the British view of what is, or ought to be,
+International Law, in opposition to views persistently maintained by
+other countries--e.g. with reference to the moment from which a
+blockade-runner becomes liable to capture. The fact is that, whatever
+grandiloquent language may have been judicially employed by Lord Stowell
+in a contrary sense, it will now hardly be denied that a Prize Court
+sits by national, not international, authority, and is bound to take the
+view of International Law which, if any, is prescribed to it by the
+constitutionally expressed will of its own Government.
+
+The Declaration of London is in many ways a great achievement; but one
+is glad to learn from Mr. McKinnon Wood's third answer that opportunity
+will be given for discussing all important points in connexion with its
+rules.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, March 30 (1909).
+
+
+THE DECLARATION OF LONDON
+
+Sir,--Both the Prize Court Convention of 1907 and its complement, the
+London Declaration of 1909, stand greatly in need of full and
+well-informed discussion before receiving the Parliamentary approval
+which ought to be a condition precedent to the ratification of either of
+them. It is well, therefore, that many Chambers of Commerce have called
+the attention of Government to the detriment to British interest which
+may in their opinion result from these agreements if ratified, although
+the representations thus made exhibit, in some cases, so little
+technical knowledge as to have been readily disposed of by the Foreign
+Secretary. For the same reason, I welcome the letter from Mr. Gibson
+Bowles, which appeared in _The Times_ of yesterday, although it contains
+some statements the inaccuracy of which it may be desirable at once to
+point out.
+
+1. The Declaration of Paris is neither implicitly nor explicitly adopted
+by the Declaration of London, "as a part of the common law of nations
+which can no longer be disputed." The later makes no mention of the
+earlier one, and M. Benault's _rapport_ (as to the interpretative
+authority of which opinions may well differ) applies the words quoted,
+not to the Paris Declaration as a whole, but to one only of its
+articles. Mr. Bowles's statement that "the Declaration of London, if
+adopted, would reaffirm, and its ratification would in effect, for the
+first time ratify, the Declaration of Paris" cannot be supported.
+
+2. Mr. Bowles asserts it to be "an unquestioned doctrine of the Law of
+Nations that war abrogates and annuls treaty obligations between
+belligerents." One would have supposed it to be common knowledge that
+large classes of treaties are wholly unaffected by war. Such are, for
+instance, what are called conventions _transitoires_, because their
+effect is produced once for all, as in the case of cessions of
+territory; and, notably, treaties entered into for the regulation of the
+conduct of war, such as the Geneva Convention, many of The Hague
+Conventions of 1907, and the Declaration of Paris itself, which Mr.
+Bowles appears to think would _ipso facto_ cease to be obligatory
+between its signatories on their becoming belligerent.
+
+It is a pleasure to be able to agree with Mr. Bowles in his wish that
+the Naval Prize Bill, if reintroduced, should be rejected, though I
+would rather say "withdrawn." You have already allowed me (on July 10)
+to point out that if the Convention and Declaration are to be
+effectively discussed in Parliament they should be disentangled from
+that Bill, into which the Convention, and, by implication, the
+Declaration, have been incongruously thrust. This practically
+non-contentious Consolidation Bill, after several times securing the
+approval of the House of Lords, has hitherto for several years awaited
+the leisure of the House of Commons, but was suddenly reintroduced last
+Session, apparently as an unobtrusive vehicle for the new and highly
+debatable matter contained in the two above-mentioned documents. May I
+now repeat my suggestion that "the debatable questions arising under the
+Convention of 1907 and the Declaration of 1909 should first be threshed
+out in discussions on a Bill dealing with these questions only; and that
+the decision, if any, thus arrived at should be subsequently inserted,
+freed from hypothesis, in the Consolidation Bill"?
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 28 (1910).
+
+
+THE DECLARATION OF LONDON
+
+Sir,--I have read Professor Westlake's letters upon the Declaration of
+London with the attention due to anything written by my very learned
+friend, but, although myself opposed to the ratification alike of the
+Prize Court Convention and of its complement, the Declaration, do not at
+present wish to enter upon the demerits of either instrument.
+
+There is, however, a preliminary question upon which, with your
+permission, I should like to say a few words. My friend justly observes
+that in dealing with the Declaration "the first necessity is to know
+what it is that we have before us"; and he devotes his letter of January
+31 to maintaining that the Declaration must be read as interpreted by
+the explanations of it given to the full Conference by the Drafting
+Committee, of which M. Renault was president. Professor Westlake
+supports his opinion by a quotation from the reply of the Foreign Office
+in November last to the Edinburgh Chamber of Commerce (_Miscell._ 1910,
+No. 4, p. 21). I may mention that a similar reply had been given, a year
+previously, by Mr. McKinnon Wood to a question in the House of Commons.
+The source of these replies is doubtless to be found in a paragraph of
+the Report, addressed on March 1, 1909, to Sir Edward Grey, of the
+British Delegates to the London Conference, which runs as follows:--
+
+      "It should be borne in mind that, in accordance with the
+      principles and practice of Continental jurisprudence, such a
+      Report is considered an authoritative statement of the
+      meaning and intention of the instrument which it explains,
+      and that consequently foreign Governments and Courts, and no
+      doubt also the International Prize Court, will construe and
+      interpret the provisions of the Declaration by the light of
+      the Commentary given in the Report." (_Miscell._ 1909, No. 4,
+      p. 94.)
+
+It is desirable to know upon what authority this statement rests. I am
+aware of none. The nearest approach to an assertion of anything like it
+occurred at The Hague Conference of 1899, when the "approval" accorded
+to "the work of the Second Committee, as embodied in the articles voted
+and in the interpretative Report which accompanies them" was alleged by
+M. de Martens to amount to an acceptance of the Report "comme un
+commentaire interpretatif authentique des articles votes." (_Miscell._
+1899, No. 1, p. 165.) The drafting Report presented to the Geneva
+Conference of 1906 is merely said to have been "adopted" (Actes, p.
+286); and M. Renault's Report to the Conference of London was similarly
+merely "accepted," although he presented it as containing
+
+      "Un commentaire precis, degage de tout controverse, qui,
+      devenu commentaire officiel par l'approbation de la
+      Conference, soit de nature a guider les autorites diverses,
+      administratives, militaires, judiciaires, qui pourront avoir
+      a l'appliquer." (_Miscell._ 1909, No. 5, p. 344.)
+
+It would seem that in each of these cases the adoption of the Report,
+and even a suggestion or two for a change in its phraseology, amounted
+to nothing more than an expression of opinion on the part of the
+Delegates to the Conference that the Report contained explanations which
+had satisfied themselves, and might satisfy their Governments, that the
+Convention which they were about to forward to those Governments might
+safely be accepted.
+
+So far as Governments are concerned, the adoption of a Report by their
+Delegates is _res inter alios acta_. An "authentic interpretation" of a
+contract can be given only by the parties to it, who, in the case of a
+treaty, are the States concerned. If these States desire to give to the
+report of a drafting committee the force of an authentic interpretation
+of their contract, they can surely do so only by something amounting to
+a supplementary convention. Writers upon international law naturally
+throw but little light upon questions to which the somewhat novel
+practice of argumentative drafting Reports has given rise; but I may
+cite Professor Ullmann, of Vienna, as saying:--
+
+      "Eine authentische Interpretation kann nur die durch
+      Kontrahenten selbst, in einem gemeinschaftlichen, ihren
+      Willen ausser Zweifel setzenden Acte (einem Nachtrags-oder
+      Erlauterungsvertrage), erfolgen" (Volkerrecht, p. 282);
+
+and Professor Fiore, of Naples, to the effect that what is called
+"authentic interpretation" is not
+
+      "interpretazione propriamente detta, ma una dichiarazione di
+      quello che fu gia concordato, o un nuovo trattato" (Diritto
+      Internazionale, ss. 1, 118);
+
+and that
+
+      "il trattato non puo essere interpretato che dalle stesse
+      Parti (_i.e._ Stati) contrahenti; e per la validita dell'
+      atto e indispensabile che la relativa convenzione di
+      interpretazione abbia gli stessi requisiti ... di ogni altra
+      convenzione tra Stato e Stato" (Il Dir. Int. Codif., Sec. 816).
+
+I would submit that such a Report as that which accompanies the
+Declaration of London has no claim to the sort of interpretative
+authority which has been attributed to it; nor is it desirable that the
+requisite steps should be taken for giving it that authority. It would
+be calamitous should a practice be introduced of attempting to cure the
+imperfect expression of a treaty by tacking on to it an equally
+authoritative reasoned commentary, likely, as in the present case, to be
+enormously longer than the test to which it relates.
+
+It is a wholly different question whether Governments or Courts would be
+inclined to take notice of such a Report, among other facts antecedent
+to a Convention, or Declaration, which they might be called upon to
+construe. A British Court would not, I conceive, be so inclined. On the
+probable inclinations of Continental Courts, and of an International
+Prize Court, should one be instituted, further expert information would
+seem to be called for.
+
+The fact is that the vitally important questions of theory and practice
+raised by the Convention and the Declaration need calmer and better
+instructed discussion than they have yet received. Ought they not to be
+referred to a Royal Commission, on which should be placed
+representatives of the Navy and Merchant Service, of the corn trade, and
+of the Colonies, together with international lawyers, in touch with the
+views of their Continental colleagues?
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, February 16 (1911).
+
+
+THE DECLARATION OF LONDON
+
+Sir,--Professor Westlake, replying in _The Times_ of to-day to the
+arguments by which I had endeavoured to show that the Report made to the
+Conference of London has no pretensions to be treated as an authentic
+interpretation of the Declaration prepared by the Conference, still
+maintains that "the essential question will be, what the agreement was
+that the Conference arrived at." I had maintained, on the contrary, that
+the essential question will be, What is the agreement entered into by
+the Powers, as evidenced by their ratifications? anything outside of the
+ratified agreement being _res inter alios acta_. I should not be
+justified in asking you to allow me to repeat the contents of my letter
+of Monday last in support of this view. The pleadings are, I think,
+exhausted. "Therefore let a jury come."
+
+I should like, however, to point out that I did not, as my friend seems
+to think, attribute the acceptance of the Report to the delegates
+"singly." It was, no doubt accepted by all present without protest. My
+colleague will, I am sure, pardon me if I add that I cannot concur in
+his exegesis of my citations from Ullmann and Fiore.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, February 25 (1911).
+
+
+THE DECLARATION OF LONDON
+
+Sir,--It is satisfactory that so high an authority as Mr. Arthur Cohen
+distinctly accedes to the view that the Declaration of London ought not
+to be ratified as it stands. I should, however, be sorry were his
+suggestion accepted that the Declaration and the argumentative report
+which accompanies it might be ratified together. The result would be
+_obscurum per obscurius_, a remedy worse than the disease.
+
+I shall ask leave to add that, if Mr. Cohen will take the trouble to
+look again at my letters of February 10 and 25, he will cease to suppose
+it possible that in writing "the pleadings are, I think, exhausted,
+&c.," I meant to convey that no further discussion of the merits or
+demerits of the Declaration was required. On the contrary I expressly
+limited myself to a consideration of the preliminary question, whether
+interpretative authority would rightly be attributed to the report in
+question, stating that, while opposed to the ratification alike of the
+Prize Court Convention and of the Declaration, I did not, for the
+present, wish to enter upon the demerits of either instrument; and ended
+my first letter by suggesting the reference to a Royal Commission of
+"the vitally important questions of theory and practice raised by the
+Convention and the Declaration," as needing "calmer and better
+instructed discussion than they have yet received."
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, March 1 (1911).
+
+
+THE DECLARATION OF LONDON
+
+Sir,--After Tuesday's debate in the House of Lords it may be hoped that
+not even "the man in the street" will suppose the Declaration of London
+to be anything more than an objectionable draft, by which no country has
+consented to be bound. Every day of the war makes more apparent our debt
+to the House of Lords for having, four years ago, prevented the British
+Government from ratifying either the International Prize Court
+Convention or this Declaration, which, while misleadingly professing
+that its provisions "correspond in substance with the generally
+recognised principles of international law," contains, interspersed with
+truisms familiar to all concerned with such matters, a good many
+undesirable novelties.
+
+This being so, it was surely unfortunate that our Government, with a
+view apparently to saving time and trouble, decided, in the early days
+of the war, to adopt the Declaration _en bloc_ as a statement of prize
+law "during the present hostilities," subject, however, to "certain
+additions and modifications"; to which it, of course, retained the power
+of making additions. This power has been so freely exercised, and large
+portions of the Declaration, not thereby affected, have proved to be so
+inapplicable to modern conditions, as disclosed by the war, that the
+document, so far from providing reliable guidance, is now a mere source
+of hopeless confusion.
+
+To put an end to this confusion, I venture to suggest that, in concert
+with our Allies, the Declaration should be finally consigned to
+oblivion. Either let its place be taken by some clear and simple
+statement of unquestioned prize law, for the use of commanders and
+officials (something like a confidential document in the drafting of
+which I had a hand some years ago, but, of course, brought up to date),
+or let established principles take care of themselves, certain doubtful
+points only being dealt with, from time to time, by Orders in Council.
+
+While heartily concurring in Lord Portsmouth's description of the
+unratified "Declaration" as "rubbish," I regret that he seems to
+relegate to the same category even those generally ratified "Hague
+Conventions" which, as far as they go, mark a real advance upon
+previously accepted rules. Still less acceptable is his advice to "sweep
+away juridical niceties" in the conduct of hostilities. Did he intend
+thus to describe the whole fabric of the rules by which international
+law has endeavoured, with considerable success, to restrain barbarity in
+warfare?
+
+I must mention that this letter was written before seeing this morning
+the letter of Mr. Gibson Bowles, my worthy ally in attacks upon the
+Declaration.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, December 3 (1915).
+
+
+THE DECLARATION OF LONDON
+
+Sir,--You have allowed me, in a good many letters, to criticise the
+Declaration of London, both in its original inception and in its
+subsequent applications. Thanks to the House of Lords, the Declaration,
+which erroneously professed to "correspond in substance with the
+generally recognised principles of International Law," has remained
+unratified, and therefore diplomatically of no effect.
+
+Its admirers have, however, too long preserved it, perhaps _sub spe
+rati_, in a state of suspended animation, using it by way of, as they
+supposed, a convenient handbook of maritime law for the purposes of the
+present war, though subject to such variations as might from time to
+time be found convenient by the Allies. The mistake thus made soon
+became apparent. The elaborate classification of contraband had to be at
+once thrown overboard, and most of the remaining provisions of the
+Declaration proved to be inapplicable to modern warfare.
+
+In December last I accordingly wrote as follows:--
+
+      "To put an end to this confusion, I venture to suggest that,
+      in concert with our Allies, the Declaration should be finally
+      consigned to oblivion. Either let its place be taken by some
+      clear and simple statement of unquestioned prize law, for the
+      use of commanders and Officials, ... or established
+      principles take care of themselves, certain doubtful points
+      only being dealt with from time to time by Orders in
+      Council."
+
+I need hardly say that to anyone holding the views thus expressed,
+yesterday's Order in Council must be most satisfactory; getting rid, as
+it does for good and all, of the unfortunate Declaration, leaving the
+application of established principles to those acquainted with them and
+promulgating authoritative guidance on specific novel questions.
+
+I may perhaps add a word or two on the undesirability of describing as
+"Declarations" documents which, being equipped with provisions for
+ratification, although they may profess to set out old law, differ in no
+respect from other conventions. Also, as to the need for greater caution
+on the part of our representatives than has been shown by their
+acceptance of various craftily suggested anti-British suggestions, such
+as were several embodied in the Declaration in question, and notably
+that of the notorious cl. 23 (_h_) of The Hague Convention iv., the
+interpretation of which has exercised the ingenuity of the Foreign
+Office and, more recently, of the Court of Appeal.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Brighton, July 9 (1916).
+
+
+    On July 7, 1916, an Order in Council was made, revoking all
+    Orders by which the provisions of the Declaration had been
+    adopted, or modified, for the duration of the war; stating the
+    intention of the Allies to exercise their belligerent rights at
+    sea in strict accordance with the law of nations; but dealing
+    specifically with certain doubtful points. The Order was
+    accompanied by a memorandum, drawn up by the British and French
+    Governments, explaining how their expectation that in the
+    Declaration they would find "a suitable digest of principles
+    and compendium of working rules" had not been realised. See
+    also Lord Robert Cecil in the House of Commons on August 23,
+    with reference to the Zamora case, [1916] 2 Ch. c. 77.
+
+    On misuses of the term "Declaration" _cf. supra_, pp. 90, 91,
+    92.
+
+
+GERMANY WRONG AGAIN
+
+Sir,--The new German Note handed on Thursday last to the representatives
+of the neutral Powers supports its allegation that the four Allied
+Powers "have trampled upon right and torn up the treaties on which it
+was based" by the following statement:--
+
+      "Already in the first weeks of the war England had renounced
+      the Declaration of London, the contents of which her own
+      delegates had recognised as binding in international law."
+
+It is surely notorious that the delegates of a Power, by agreeing to the
+draft of a treaty, give to it no international validity, which results
+only when the treaty has been ratified by their Government. The
+Declaration of London has, most fortunately, never been ratified by the
+Government of Great Britain.
+
+I am, Sir, your obedient servant,
+T. E. HOLLAND.
+Oxford, January 13 (1917).
+
+
+
+
+INDEX
+
+
+Absolute contraband. _See_ Contraband
+Abstention, 129
+Acquiescence, State duty of, 129, 130, 133, 136
+_Actaeon_, the, 176, 179
+Acts of Parliament, 61, 63
+Admiralty Manual of Prize Law, 156, 159, 192
+Aerial warfare, 61
+Air, opposite views as to rights over, 64, 65
+Aircraft in war, 69
+_Alabama_, the, 131, 183
+_Alexander, Mrs., the cotton of_, 153
+Alien enemies, civil disabilities of, 47, 49, 205
+_Allanton_, the, 158, 161, 162, 163
+_Ancipitis usus_, articles, 148
+_Angarie, Droit d'_, 170
+_Appam_, the, 146
+_Arabia_, the, 152
+Arbitration, 1-6, 184
+   treaties, general, 6, 7
+   treaties, limited, _ib._
+   cases fit for, 5
+   the Hague tribunal of, 5
+Armaments, limitation of, 184
+Armed civilians, 77
+   Neutralities, the, 83
+Army, duties of, 77
+Article 23 (h), 47, 49, 206, 207
+   restricting application, 146
+Aspirations, 99
+Assassination, 93
+_Asturias_, the, 60
+Asylum to belligerent warships, 129, 143
+_Atalanta_, the, 160
+Aube, Admiral, 116
+Authentic interpretation, 107, 196, 199, 201, 205
+
+
+Baden-Powell, Sir G., 81, 85, 87
+Baker, Sir Sherston, 85
+Balfour, Mr. A.J., 13, 15, 73, 74, 173
+Balloons, projectiles from, 30, 62
+Base of operations, neutral duty as to, 129, 134, 144, 145
+Baty, Dr. T., 161
+Bays, 166, 167
+Belligerents, lawful, 73, 75, 76, 77, 78, 79
+Beresford, Lord Charles, 118
+_Bermuda_, the, 160
+Bills criticised, 36-40, 47, 192
+Birkenhead, Lord, 135
+Bismarck, Prince, 170
+Bliss, Sir H., 150
+Blockade,
+   belligerent, 29, 83, 156
+   fictitious, 57, 59
+   pacific, 9-14, 17
+Bluntschli's reply to Von Moltke, 26
+Bombardment, 62
+   of open coast towns, 30, 62
+   from the air, 112, 123
+Bondholders, foreign, vindication of rights of, 15
+Bowles, Mr. Gibson, 54, 87, 89, 90, 92, 141, 173, 177, 178, 198
+Brandschatz, 117
+Brassard, effect of a, 79
+Bright, Sir Charles, 171, 172
+British Academy, author's paper at, 174
+British Manual of Military Law, 74
+   Handbooks on War on Land, 75, 76
+Brodrick, Mr., 75
+_Brown_ v. _United States_, 45
+Brusa, Prof., 130
+Brussels Conference, the, of 1874, 68, 74, 77, 114, 172
+Bullets,
+   expanding, 22, 94, 96
+   explosive, 22, 94, 95
+   in savage warfare, 94
+_Bundesrath_, the, 29, 157, 160
+Butler, General B.F., 153
+Bynkershoek, 45, 71, 165, 166
+
+
+Cable-cutting, 30, 168-173
+Cables, submarine, 168
+Campbell-Bannerman, Sir H., 189
+Captors, unqualified, 71, 73, 162, 163
+Carson, Sir Edward, 127
+Cavell, Miss, case of, 79
+_Calchas_, the, 151, 152, 153
+Cecil, Lord Robert, 8, 207
+Channel tunnel, 42
+_Chavasse, ex parte_, 137
+Civilians armed, position of, 77, 78, 79
+Churchill, Mr. Winston, 106
+Claims, competitive, 17
+Clarke, Sir Edward, 124
+Clode, Mr., 112
+Closed localities, 50
+Clothing, use of enemy, 75
+Coal, 176
+   conditional contraband, 149
+   for belligerent fleet, 131, 134
+Coast fishing vessels, 30
+Codification of laws of war, 22, 23
+Cohen, Mr. Arthur, 47, 203
+Coltman, Mr., 85
+Commencement of war, 41
+_Commercen_, the, 159
+Commissioning on the High Seas, 90
+Commissions of enquiry, 4
+Compromise, the, between belligerent and neutral rights, 133, 136, 164,
+     169
+Conditional contraband. _See_ Contraband
+Conduct of warfare between belligerents, 50
+Conflict of Laws, 34, 35
+Continuous voyages, 29, 157, 162, 183
+"Contraband, a happy little," 153
+Contraband of war,
+   what it is, 130, 134, 159, 175
+   absolute and conditional, 147, 151, 152, 154, 158
+   British proposal to abolish doctrine of, 163, 184, 185
+   coal, how far, 132, 134, 149, 176
+   cotton, how far, 151, 152, 177
+   food-stuffs, how far, 176, 185
+   Japanese rules as to, 149, 155, 156
+   misuse of the term, 134
+   no neutral duty to prohibit export of, 113, 140
+   Russian rules as to, 154, 176
+   the Declaration of London as to, 164
+   the two constituents of, 159
+Contractual debts, 21
+Contributions, 102, 118
+Conventions. _See_ Geneva, Hague, &c.
+   and Legislation, 36
+   "transitoires," 198
+Conversion. _See_ Transformation
+Convoy, 31
+Cotton, 177
+   as contraband, 149, 151, 152
+Court of International Justice, a permanent, 2, 191
+Criticism of Bills, 36-40, 192
+Customs Consolidation Act, 1853, 132
+
+
+Danger zone, a, 59
+Dardanelles, closing of, 55, 58, 80, 90, 92
+"Declaration," misuse of the term, 90, 92, 206
+Declaration, the, of London, 22, 36, 39, 80, 92, 147, 149, 154, 155,
+     158, 161, 163, 164, 181, 191, 193-207
+   provisional adoption of, as modified, 154, 204
+   rejection of, 206, 207
+Declaration, the, of Paris, 22, 26, 57, 59, 80, 81, 82, 83, 87, 89, 156,
+     198
+   accession to, of Spain and Mexico, 81, 86, 87, 88, 89, 91
+Declaration, the, of St. Petersburg, 22, 27, 91, 95, 96, 97
+   von Moltke upon, 25
+Declaration of war, 10, 41, 43
+Declarations,
+   mistaken view as to their not needing ratification, 90, 91
+   the three, of the Hague in 1899. _See_ Hague
+De Horsey, Admiral, 118, 164
+De Joinville, Prince, 117
+De Martens, Prof., 162, 166, 176, 200
+Deposit of delict, 158
+Despatches, enemy, 156, 158, 160
+Destination, 8, 155, 156
+Destruction of neutral prizes, 22, 173-181
+Dickenson, Mr. Lowes, 125
+_Direct U.S. Cable Co._ v. _Anglo-American Tel. Co._, 166
+Disguise, 75, 76
+Distinctive marks, 77, 79
+_Doelwijk_, the, 161
+Drago doctrine, the, 20
+_Droit d'angarie_, the, 170
+Dum-dum bullet. _See_ Bullets
+_Durward_, the, 60
+
+
+Embargo, 11
+Enemy,
+   who is an ?, 401[E]
+   disabilities of, 47, 49, 206
+   goods in neutral bottoms, 83
+   in occupied territory, 102
+   merchant vessels at outbreak, 45, 49
+   property on land, 102
+   property at sea, 29, 104, 184
+   resident at outbreak, 44
+   service, 157, 158, 186
+"Englishman's Home, An," the play, 77
+Enquiry, international Commissions of, 1, 3, 4, 6
+Evans, Sir Samuel, 70
+
+
+False colours, 30, 43, 76
+Fauchille, M., 47, 64, 65
+_Felicity_, the, 164, 166, 167, 175, 177, 179
+Fiore, Prof., 201
+Fishing vessels, 31
+Flag of truce, 76
+Food-stuffs, 148, 174
+   how far contraband, 148, 176, 185
+Food, Royal Commission on, 148, 174, 177
+Foreign Enlistment Acts, the, 131, 134, 138, 139, 141, 143
+Foreign Enlistment Bills, new, 39
+Foreign soldiers, 45
+Forster, Arnold-, Mr., 45
+_Fox_, the, 176, 177
+_Fram_, the, 137
+_Francs-tireurs_, 79
+"Freedom of the seas," 51, 97
+French Government Manual for Land Warfare, 117
+Friendly methods of settlement, 1
+
+
+Gases, harmful, whether employment of, legitimate, 22, 96, 97
+Geffken, Prof., 13
+General principles of justice and equity, the, 187, 189, 190, 193
+Geneva Convention Bill, 36
+Geneva Conventions, the, 22, 34, 67, 98, 100
+   application of, to maritime warfare, 30, 98
+Gentili, A., 170
+Germany. _Cf._ Hague Conventions
+   proclamation by, of a danger zone, 59
+   wrong as to Declaration of London, 207
+Giffen, Sir R., 13
+Gladstone, Mr., 134
+_Goeben_ and _Breslau_, the, 91
+_Golden Rocket_, the, 85
+Good offices, 1, 2, 3
+Government authority, as a protection, 72
+Government Bills and International Conventions, 36-40, 192, 195, 204
+Granville, Lord, 82, 85, 131, 170, 177
+Greek coast, blockade of, 13
+Guerilla warfare, 73
+Gundel, General de, 48
+Grotius, 45, 148, 155, 166, 168, 169
+
+
+_Haabet_, the, 160
+Hague Conventions, the,
+   of 1889, 1, 2, 3, 6, 30, 61, 74, 75, 94, 102, 105, 107, 120, 184
+   of 1907, 1, 6
+   applicable only between contracting Powers, 69
+   No. i., 2, 3, 6
+   No. ii., 21, 22
+   No. iii., 22, 36, 44
+   No. iv., 22, 45, 60, 61, 67, 75, 76, 77, 96, 105, 107, 122, 168, 206
+   No. v., 22, 68, 75, 80, 90, 135, 168
+   No. vi., 22, 45, 70
+   No. vii., 22, 162
+   No. viii., 22, 45, 164
+   No. ix., 22, 68, 122
+   No. x., 22, 100, 130
+   No. xi., 22, 158
+   No. xii., 22, 36, 190, 194, 195, 197, 204
+   No. xiii., 22, 129, 143, 146
+Hague Declarations, the, 22, 30, 61, 62, 63, 64, 96
+Hague _Reglements_, the, as to war on land, 75, 76, 78, 93, 95, 100
+Hague Tribunal, the, 5
+   reference to, not obligatory, 25
+Haldane, Mr. R.B., 45
+Hall, Mr. W.E., on pacific blockade, 13
+Harcourt, Sir W., 74
+Hardinge, Sir C., 152
+Herbert, Mr. Arnold, 182, 184
+Holland, Sir T.E., references to writings of, 8, 9, 20, 23, 35, 44, 47,
+     50, 52, 66, 75, 97, 113, 122, 164, 168, 180, 192, 196
+Honour and vital interests clause, the, 4, 5, 6
+Horses, wounded, 98, 100
+Horsey, Adml., 118, 164, 166
+Hostile assistance, 88, 157, 160, 186
+Huebner, 190
+
+
+_Ikaria_, the, 60
+_Imina_, the, 160
+Immediate effects of outbreak of war, the, 45
+Institut de Droit International, the, 11, 12, 16, 23, 24, 30, 43, 44,
+     48, 63, 64, 65, 66, 68, 104, 105, 108, 121, 130, 162, 163, 164,
+     167, 168, 172, 174, 176, 182, 185, 190
+   its _Manuel des lois de la guerre maritime_, 163
+   its _Manuel des lois de la guerre sur terre_, 23, 24, 25, 27, 108
+Instructions, national,
+   on laws of war on land, 75, 76
+   on laws of war at sea:
+      British, 156, 180
+      French, 179
+      Japanese, 148, 149, 150, 155, 156, 157, 173
+      Russian, 154, 173, 174, 176, 177, 179
+      United States, 179
+_International_, the, 169
+International Court of Appeal, an, 184
+International Justice, a Permanent Court of, 2
+International Law, the nature and authority of, 66, 67, 77, 86, 114,
+     115, 116, 119, 127, 169, 188
+International Prize Court, proposal for an, 23, 181-191
+
+
+Jackson, Colonel, 66, 68
+James, Captain, 114
+Jenks, Mr., 106, 108, 110
+_Jonge Margaretha_, the, 159
+Just cause of war, 83
+"Justice and equity, general principles of," 187, 189, 190, 193
+
+
+Kent, Chancellor, 45
+Kleen, Mr., 130, 133
+_Knight-Commander_, the, 173, 174
+Kohler, Mr., 47
+_Kowshing_, the case of the, 41, 43
+"Kriegsbrauch," the, 68, 80
+
+
+Lambermont, Baron, 77
+Lammasch, Prof., 125
+Lansdowne, Marquess of, 58, 133, 136, 149, 169, 173
+Lawful belligerents, 69, 78
+League of Nations, the, 1, 2, 7, 9, 191
+Lehr, Prof., 102
+_Leucade_, the, 176
+Lincoln, President, 74
+Lieber's Instructions, 74, 75
+Localities closed to hostilities, 52
+London, Conference of, 181, 190, 191
+London, Declaration of, 22, 55, 58, 92, 181, 191, 193, 194, 195, 196-207
+Lyons, Lord, 169
+
+
+MacDonell, Prof., 172
+McKenna, Mr., 78
+Mahan, Admiral, 97
+Mail steamers and bags, 30
+_Malacca_, the case of the, 81, 162, 163
+Mandates, 8
+Manning, Mr., 45
+Manual of military law, the British, 107
+Manuals of warfare
+   on land, 105
+   at sea, 105
+Manuel des Lois de la guerre maritime, the, of Institut, 23
+Manual des Lois de la guerre sur terre, 23, 24, 174
+_Marais, ex parte_, 106
+Martens, de, Prof., 126
+Martial law, 105-112
+Maurice, Colonel, 42
+_Mcomini and others_ v. _Governor &c. of Natal_, 107
+Means of injuring, 94
+Measures short of war, 1-21
+Mediation. _See_ Good offices
+Menam, blockade of the, 10
+Mercantile Marine in war, 81, 84, 87
+Merchant ships, visit of, 60
+Militia, 77
+_Minerva_, the, 91
+Mines, 164
+Moltke, von, on conduct of war, 24
+Monroe doctrine, the, 17, 20
+_Moray Firth_, the, 189
+Morley, Lord, 58, 74
+"Most favoured nation" clause, 17
+_Moewe_, the, 70
+"Murder," 70, 71, 72, 84
+Mutiny Acts, the, 109
+
+
+National Instructions, 75, 76
+Naval bombardments of open coast towns, 30, 112, 123
+Naval manoeuvres of 1888, the, 113, 123
+Naval war code, a British, 30, 31, 32
+Naval warfare, 22
+Naval Prize (Consolidation) Bill, the, 36, 191-196, 198
+   object of, 194,195
+   rejection of, 196
+Naval Prize money, 195
+Neutral conduct, the criterion of, 125
+Neutral duties, as classified by the author, 129
+Neutral hospitality, 143
+Neutral States and individuals, their liabilities distinguished, 129-135
+Neutral territory, passage through, 90
+Neutral trade, the four inconveniences, to, 159
+Neutralisation, the term, 53, 54
+Neutrality,
+   correlative to belligerency, 10, 16, 19
+   British proclamations of, 130, 135-143
+Neutrals, methods of warfare affecting, 164-181
+Non-combatants, 72, 74
+_Novoe Vremya_, the, 176
+
+
+Occupied territory,
+   right of the invader in, 80, 100
+   not yet occupied, 77
+Oppenheim, Prof., 47
+_Orozembo_, the, 160
+"Ottoman Empire, ancient rule of the," 56
+
+
+Pacific blockade, 10
+Palmerston, Lord, 12
+Panama Canal, the, 50
+_Paquete Habana_, the, 30
+Paris. _See_ Declaration of
+Paris, Treaty of, 53, 54, 56, 81, 87, 89, 155
+"Pas de Code Naval, pas de Cour des Prises," 187
+Passage, 64, 90
+Peace talk, 125
+Peaceful settlement of disputes, the Conventions for,
+   of 1899, 2, 3, 6
+   of 1907, 2, 6
+   are non-obligatory, 173
+Perels, Prof., 16
+Permanent Court of International Justice, a, 191
+_Peterburg_, the, 162
+_Peterhoff_, the, 20, 149, 160
+Petition of Right, the, 106, 108, 109
+Pike, Mr., 98, 100
+"Piracy," 70, 71, 84
+Poison, 96
+Pope's Note, the, 51
+Port, enemy ships in, 49
+_Porter_ v. _Freudenberg_, 49
+Portsmouth, Lord, 205
+Pourtugael, den Beer, Prof., 68
+Pre-emption, 148
+Prevention, State duties of, 129, 131
+Prisoners of war, 45, 106, 107
+   liabilities of, 106
+Private International Law, 34
+Privateers, 81, 84
+   restrictions on, 82
+   commissioned liners are not, 70
+Private property at sea, 184
+Prize Court,
+   the Russian, 163
+   an international Court of Appeal, 23, 170-182
+   a settled prize law, must precede, 181, 183, 185, 190, 191, 193
+   a supreme, 181
+Prize Law Consolidation Bill, 193, 194, 199
+"Probable cause," 83
+Proclamations of neutrality, the British, criticised, 135-143
+"Professors," 119
+Projectiles,
+  from balloons, 22, 30, 62
+  for diffusion of gases, 22, 96, 97
+
+
+"Quasi-enemy," 12
+
+
+Radiotelegraphic stations, 168
+Rae, Mr., 162
+Ratification, 203
+Receipts, 102
+_Reglements_, the Hague. _See_ Hague
+Renault, Prof., 172, 187, 190, 196, 198, 199
+   Report of the force of (_see_ Authentic Interpretation)
+Reprisals,
+   advantages of, 14, 19
+   how differing from war, 9, 12, 14, 19
+   opposite views as to, 16
+   species of, 12, 15, 19
+   United States, instructions as to, 29
+   belligerent, 97, 123
+Requisitions, 102, 117
+Restrictive clause, the, 69, 146
+Retaliation, 97
+Reward for, dead or alive, 93
+_R._ v. _Eyre_, 110
+Ridley, Sir E., 77
+Roman Law terminology, 102
+Roosevelt, Pres., 146
+Rosebery, Lord, 158
+Ross, Sir R., 78
+Russian Prize Law, 162, 174, 176
+
+
+Salisbury, Lord, 3, 15, 52, 54, 157
+_Santissima Trinidad_, the, 137
+Savage warfare, 94
+_Savannah_, the, 85
+Scott, Sir Walter, 77, 91
+Scott, Sir William, 91
+Search. _See_ Visit and Search
+Second Peace Conference Conventions Bill, 37, 38, 39
+Seely, Col., 63
+Ship, a "mere moveable," 85
+Shucking, Prof., 125
+Siam, 10
+Sinking. _See_ Destruction
+Smith (Lord Birkenhead) and Sibley, on International Law in the
+     Russo-Japanese War, 135
+_Spider_, the, 113, 117
+Spies, 72
+_Springbok_, the, 29
+Stephen, Sir Herbert, 124
+Stewart, Mr. C., 104
+Story, J., 159
+Stowell, Lord, 85, 159, 160, 161, 166, 175, 177, 178, 180, 197
+Straits, 52, 56
+Submarine cables, 168, 169, 171, 188
+Submarines, 69
+Suez Canal, the, 50, 51, 52, 54
+Superfluous injury, 94, 95
+Suyematsu, Baron, 149
+Swettenham, Sir James, 79
+Sydenham, Lord, 104
+
+
+Takahashi, Prof., 43
+Terminology, 33
+Territorial waters, 165, 166, 167
+Tindal, le Chevalier, 122
+Tirpitz, Admiral von, 70
+_Tocumaro_, the, 60[D]
+Torpedoes, 164
+Transformation into ships of war, 162
+Treaties,
+   who are the parties to, 202, 207
+   effect of war on, 18, 198
+Treaty, the Hay-Pauncefote, 50
+Twenty-three (h) clause, the, 47, 206
+Twenty-four hours rule, the, 127, 144, 145
+Ullmann, Prof., 47, 106, 201
+Unarmed merchantmen, 72, 73
+Undefended towns, 30, 67, 68
+Uniform, 75
+United States
+   instructions for war on land, 23, 73, 107
+   naval war code, 23, 30, 31, 88
+   Naval War College, 8
+   ratification of Conventions, 75
+   views of, compared with British, 29, 31
+Unqualified captors, 72, 73
+Unratified Conventions, effect of, 40
+Usufruct, 101
+
+
+Vattel, 46, 119
+Venezuela, 13, 18
+Visit and search, 72, 83, 84, 159, 186
+"Violations of law of nations," term misapplied, 140, 142
+Voeux, 5, 99, 121, 122, 167, 180, 190
+Volunteers, 77
+
+
+War. _See_ Reprisals
+   Declaration of, 10, 41
+   legitimate object of, 25, 95
+   _sub modo_, 20, 55
+   written law of, 22
+Washington, the Three Rules of, 86
+Wellington, Duke of, 117
+Westbury, Lord, 137
+Westlake, Prof., 18, 41, 65, 183, 199, 202
+Wilson, Pres., 72, 97, 127
+Wolf, Mr., 58
+Wood, Mackinnon, Mr., 196, 197, 200
+Wounded and Sick. _See_ Geneva Conventions
+   horses, 98, 100
+
+
+_Yangtsze Insurance Association_ v. _Indemnity Mutual Marine Company_,
+   157
+Younge, Mr., 118
+
+
+_Zamora_, the, 207
+Zone, a danger, 59
+
+
+
+
+Printed by SPOTTISWOODE, BALLANTYNE & CO. LTD.
+Colchester, London & Eton, England
+
+
+
+
+BY THE SAME AUTHOR
+
+
+AN ESSAY ON COMPOSITION DEEDS UNDER 24 AND 25 VICT. c. 134. London,
+Sweet, 1864, 12mo. 7s.
+
+A PLAN FOR THE FORMAL AMENDMENT OF THE LAW OF ENGLAND. London,
+Butterworths, 1867, 8vo. 1s.
+
+ESSAYS UPON THE FORM OF THE LAW. London, Butterworths, 1870, 8vo. 7s.
+6d.
+
+THE INSTITUTES OF JUSTINIAN, edited as a recension of the Institutes of
+Gaius. Oxford, Clarendon Press, 1873, second edit. 1881, 12mo. 5s.
+
+SELECT TITLES FROM THE DIGEST OF JUSTINIAN, edited, with C.L. Shadwell.
+Oxford, Clarendon Press, 1874-1881, 8vo. 14s.
+
+ALBERICUS GENTILIS, an Inaugural Lecture delivered at All Souls College,
+November 7, 1874. London, Macmillan, 1874, 8vo. 1s. 6d.
+
+ALBERICUS GENTILIS, tradotto da Aurelio Saffi. Roma, Loescher, 1884.
+
+THE BRUSSELS CONFERENCE OF 1874, and other diplomatic attempts to
+mitigate the rigour of warfare. Oxford and London, James Parker, 1876,
+8vo. 1s. 6d.
+
+THE TREATY RELATIONS OF RUSSIA AND TURKEY, 1774 to 1853, with an
+Appendix of Treaties. London, Macmillan, 1877, 12mo. 2s.
+
+ALBERICI GENTILIS DE IURE BELLI LIBRI TRES, edited. Oxford, Clarendon
+Press, 1877, 4to. 21s.
+
+THE ELEMENTS OF JURISPRUDENCE. Oxford, Clarendon Press, 1880, 8vo,
+twelfth edit. 1916, 8vo. 14s.
+
+THE EUROPEAN CONCERT IN THE EASTERN QUESTION: a Collection of Treaties
+and other Public Acts, Edited, with Introductions and Notes. Oxford,
+Clarendon Press, 1885, 8vo. 12s. 6d.
+
+A MANUAL OF NAVAL PRIZE LAW. Issued by authority of the Lords
+Commissioners of the Admiralty. London, Eyre & Spottiswoode, 1888, 8vo.
+
+STUDIES IN INTERNATIONAL LAW. Oxford, Clarendon Press, 1898, 8vo. 10s.
+6d.
+
+THE LAWS AND CUSTOMS OF WAR ON LAND, &c. (issued by the War Office to
+the British Army). London, Harrison & Sons, 1904, 12mo. 6d.
+
+NEUTRAL DUTIES IN A MARITIME WAR, as illustrated by recent events (_from
+the Proceedings of the British Academy_). London, H. Frowde, 1905, 8vo.
+1s.
+
+THE LAW OF WAR ON LAND (written and unwritten). Oxford, Clarendon Press,
+1908, 8vo. 6s. net.
+
+A VALEDICTORY RETROSPECT (1874-1910), being a Lecture delivered at All
+Souls College, June 17, 1910. Oxford, at the Clarendon Press, 1910.
+1s.
+
+PROPOSED CHANGES IN NAVAL PRIZE LAW (_from the Proceedings of the
+British Academy_). London, H. Frowde, 1911, 8vo. 1s.
+
+R. ZOUCHAEI IURIS ET IUDICII FECIALIS, sive Iuris inter gentes
+explicatio, edited in 2 vols., with biographical and bibliographical
+Introduction, for the Carnegie Institution of Washington, at the Oxford
+University Press, 1911, 4to. $4.
+
+IOHANNIS DB LIGNANO DB IURE BELLI, edited from the fourteenth-century
+MS., with biographical and bibliographical Introduction, for the
+Carnegie Institution of Washington, at the Oxford University Press,
+1917, 4to. L2 2s. 6d.
+
+
+
+
+
+
+[Transcriber's Note: The spelling and usage of non-English words and
+characters is occasionally inconsistent throughout the work. This etext
+preserves the usage in each instance as it appears in the printed book,
+except in cases of probable error as noted below.]
+
+[Note A: Printed _s'entiendrait_ in original.]
+
+[Note B: Printed _ressasi_ in original.]
+
+[Note C: Printed _principles_ in original.]
+
+[Note D: Spelled _Tokomaru_ where it appears in the text.]
+
+[Note E: Misprinted in original--intended page unknown.]
+
+
+
+
+
+End of the Project Gutenberg EBook of Letters To "The Times" Upon War And
+Neutrality (1881-1920), by Thomas Erskine Holland
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