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diff --git a/14447-h/14447-h.htm b/14447-h/14447-h.htm new file mode 100644 index 0000000..1bf9249 --- /dev/null +++ b/14447-h/14447-h.htm @@ -0,0 +1,9905 @@ +<?xml version="1.0" encoding="UTF-8"?> +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> + +<html xmlns="http://www.w3.org/1999/xhtml" lang="en"> + <head> + <meta http-equiv="Content-Type" content="text/html;charset=UTF-8" /> + <title> + Letters To The Times Upon War And Neutrality, by Sir Thomas Erskine Holland. + </title> + <style type="text/css"> +/*<![CDATA[ XML blockout */ +<!-- + p { margin-top: .75em; + text-align: justify; + margin-bottom: .75em; + } + h1,h2,h3,h4,h5,h6 { + text-align: center; /* all headings centered */ + clear: both; + } + hr { width: 33%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: auto; + margin-right: auto; + clear: both; + } + body{margin-left: 10%; + margin-right: 10%; + max-width: 40em; + } + + .TOCnum { display:none; } + .TOCchap {font-size:125%; text-align:center;padding-top:1.5em;} + .TOCchaptit {font-size:110%; text-align:center;padding-top:1em;padding-bottom:0.5em;} + .TOCsec {font-weight:bold; text-align:center;padding-top:1em;} + .TOCsectit {font-style:italic; text-align:center;padding-bottom:1em;} + + table {margin-left: auto; margin-right: auto;} + + .newpage {position: absolute; right: 4%; left: 95%; font-size: 66%;} + + .linenum {position: absolute; top: auto; left: 4%;} /* poetry number */ + .blockquot{margin-left: 5%; margin-right: 10%;} + + .intronotes {font-size: 90%; padding: 1em; border: thin solid gray;} + .postnotes {font-size: 90%; padding-left: 1em; border-left: thick double gray;} + .letterquot {font-size: 90%; margin-left: 10%; margin-right: 10%;} + .letterquot p {text-align: left;} + .quotedletter {font-size: 90%; margin-left: 10%; margin-right: 10%;} + + div.signature { line-height: 0.8em; } + .sigbody {text-align:right; padding-right: 6em; } + .signame {text-align:right; padding-right: 2em; margin-top:0;} + .sigdate {font-size: 90%; text-align: left; padding-left: 1em; } + + .sectionhead {text-align: center; font-size: 125%;} + .subsectionhead {text-align: center; font-size: 110%; font-style: italic;} + .lettertitle {text-align: center; padding-top: 2em; text-decoration:underline;} + .chaptertitle {text-align: center; font-size: 110%; font-weight: bold;} + .indexsubentry {margin-left: 2em;} + .indexsubsubentry {margin-left: 4em;} + + ins.correction {text-decoration:none; border-bottom: thin dotted gray;} + .center {text-align: center;} + + .indented {padding-left: 2em;} + .footnotes {border: dashed 1px;} + .footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} + .footnote .label {position: absolute; right: 84%; text-align: right;} + .fnanchor {vertical-align: super; font-size: .8em; padding-left:0.3em; + padding-right:0.3em;} + + .titlepagehuge {font-size:200%; font-weight:bold; text-align:center;} + .titlepagebig {font-size:125%; font-weight:bold; text-align:center;} + .titlepagesmall {font-weight:bold; text-align:center;} + // --> + /* XML end ]]>*/ + </style> + </head> +<body> +<div>*** START OF THE PROJECT GUTENBERG EBOOK 14447 ***</div> + +<p> </p> +<p> </p> +<p> </p> +<p> </p> +<p> </p> +<p> </p> +<h1>LETTERS UPON WAR AND NEUTRALITY</h1> +<p class="titlepagebig">(1881-1920)</p> +<p> </p> +<p> </p> +<p> </p> +<p> </p> +<p> </p> +<p> </p> + +<h2>LETTERS TO "THE TIMES"</h2> + +<p class="titlepagesmall">UPON</p> + +<p class="titlepagehuge">WAR AND NEUTRALITY</p> + +<p class="titlepagesmall">(1881-1920)</p> + +<p class="titlepagesmall">WITH SOME COMMENTARY</p> + +<p> </p> +<p class="titlepagesmall">BY</p> + +<p class="titlepagebig">SIR THOMAS ERSKINE HOLLAND</p> + +<p class="titlepagesmall">K.C., D.C.L., F.B.A.</p> + +<p class="titlepagesmall">FELLOW OF ALL SOULS COLLEGE<br /> +SOMETIME CHICHELE PROFESSOR OF INTERNATIONAL LAW<br /> +MEMBRE (PRÉSIDENT 1913) DE L'INSTITUT DE DROIT INTERNATIONAL<br /> +ETC., ETC.</p> + +<p> </p> +<p class="titlepagebig">THIRD EDITION</p> + +<p> </p> +<p class="titlepagebig">LONGMANS, GREEN, AND CO.</p> +<p class="titlepagesmall">39 PATERNOSTER ROW, LONDON<br /> +FOURTH AVENUE & 30TH STREET, NEW YORK<br /> +BOMBAY, CALCUTTA, AND MADRAS</p> + +<p class="titlepagebig">1921</p> + + +<p> </p> +<p> </p> + +<p class="sectionhead"> +PREFACE TO THE FIRST EDITION +</p> + +<p>For a good many years past I have been allowed to +comment, in letters to <i>The Times</i>, 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p class="prefacesignature"> +T. E. H.<br /> +EGGISHORN, SWITZERLAND,<br /> +<i>September</i> 14, 1909.<br /> +</p> + +<hr style='width: 45%;' /> + +<p class="sectionhead">PREFACE TO THE SECOND EDITION</p> + +<p>I have again to thank <i>The Times</i> 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.</p> + +<p>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.</p> + +<p class="prefacesignature"> +T. E. H.<br /> +OXFORD,<br /> +<i>January</i> 10, 1914.<br /> +</p> + +<hr style='width: 45%;' /> + +<p class="sectionhead">PREFACE TO THE THIRD EDITION</p> + +<p>This, doubtless final, edition of my letters upon War and +Neutrality contains, by renewed kind permission of <i>The +Times</i>, 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.</p> + +<p>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.</p> + +<p class="prefacesignature"> +T. E. H.<br /> +OXFORD,<br /> +<i>April</i> 25, 1921.<br /> +</p> + + + +<hr style="width: 65%;" /> +<h2><a name="CONTENTS" id="CONTENTS" />CONTENTS</h2> + +<div class="TOC"> +<div class="TOCchap"><a href="#CHAPTER_I">CHAPTER I</a></div> +<div class="TOCchaptit">MEASURES SHORT OF WAR FOR THE SETTLEMENT<br /> +OF INTERNATIONAL CONTROVERSIES</div> <span class="TOCnum">1</span> +<div class="TOCsec"><a href="#CHAPTER_I_SECTION_1">SECTION 1</a></div><br /> +<div class="TOCsectit">Friendly Measures</div> <span class="TOCnum">1</span> +<a href="#THE-PETITION-TO-THE-PRESIDENT-OF-THE-UNITED-STATES">The Petition to the President of the United States (1899)</a> <span class="TOCnum"><a href="#page002">2</a></span><br /> +<a href="#COMMISSIONS-OF-ENQUIRY-AND-THE-HAGUE-CONVENTION">Commissions of Enquiry and The Hague Convention (1904)</a> <span class="TOCnum"><a href="#page003">3</a></span><br /> +<a href="#THE-LEAGUE-OF-NATIONS-1919">The League of Nations (1919)</a> <span class="TOCnum"><a href="#page007">7</a></span><br /> +<a href="#THE-LEAGUE-OF-NATIONS-1919-B">The League of Nations (1919)</a> <span class="TOCnum"><a href="#page008">8</a></span><br /> +<a href="#THE-LEAGUE-OF-NATIONS-1920">The League of Nations (1920)</a> <span class="TOCnum"><a href="#page009">9</a></span> +<div class="TOCsec"><a href="#CHAPTER_I_SECTION_2">SECTION 2</a></div><br /> +<div class="TOCsectit">Pacific Reprisals</div> <span class="TOCnum"><a href="#page009">9</a></span> +<a href="#THE-BLOCKADE-OF-THE-MENAM">The Blockade of the Menam (1893)</a> <span class="TOCnum"><a href="#page010">10</a></span><br /> +<a href="#PACIFIC-BLOCKADE">Pacific Blockade (1897)</a> <span class="TOCnum"><a href="#page011">11</a></span><br /> +<a href="#THE-VENEZUELAN-CONTROVERSY">The Venezuelan Controversy (1902)</a> <span class="TOCnum"><a href="#page013">13</a></span><br /> +<a href="#THE-VENEZUELA-PROTOCOL">The Venezuela Protocol (1903)</a> <span class="TOCnum"><a href="#page018">18</a></span><br /> +<a href="#WAR-AND-REPRISALS">War and Reprisals (1908)</a> <span class="TOCnum"><a href="#page018">18</a></span> +<br /> +<div class="TOCchap"><a href="#CHAPTER_II">CHAPTER II</a></div> +<div class="TOCchaptit">STEPS TOWARDS A WRITTEN LAW OF WAR</div> <span class="TOCnum"><a href="#page022">22</a></span> +<a href="#COUNT-VON-MOLTKE-ON-THE-LAWS-OF-WARFARE">Count von Moltke on the Laws of Warfare (1881)</a> <span class="TOCnum"><a href="#page023">23</a></span><br /> +<a href="#PROFESSOR-BLUNTSCHLIS-REPLY-TO-COUNT-VON-MOLTKE">Professor Bluntschli's Reply to Count von Moltke (1881)</a> <span class="TOCnum"><a href="#page026">26</a></span><br /> +<a href="#THE-UNITED-STATES-NAVAL-WAR-CODE">The United States Naval War Code (1901)</a> <span class="TOCnum"><a href="#page029">29</a></span><br /> +<a href="#A-NAVAL-WAR-CODE">A Naval War Code (1902)</a> <span class="TOCnum"><a href="#page031">31</a></span> +<br /> +<div class="TOCchap"><a href="#CHAPTER_III">CHAPTER III</a></div> +<div class="TOCchaptit">TERMINOLOGY</div> <span class="TOCnum"><a href="#page033">33</a></span> +<a href="#INTERNATIONAL-TERMINOLOGY">International Terminology (1918)</a> <span class="TOCnum"><a href="#page033">33</a></span> +<br /> +<div class="TOCchap"><a href="#CHAPTER_IV">CHAPTER IV</a></div> +<div class="TOCchaptit">CONVENTIONS AND LEGISLATION</div> <span class="TOCnum"><a href="#page036">36</a></span> +<a href="#GOVERNMENT-BILLS-AND-INTERNATIONAL-CONVENTIONS">Government Bills and International Conventions (1911)</a> <span class="TOCnum"><a href="#page036">36</a></span><br /> +<a href="#THE-PRESENT-BILL-IN-PARLIAMENT">The present Bill in Parliament (1914)</a> <span class="TOCnum"><a href="#page038">38</a></span><br /> +<a href="#THE-FOREIGN-ENLISTMENT-BILL">The Foreign Enlistment Bill (1912)</a> <span class="TOCnum"><a href="#page039">39</a></span> +<br /> +<div class="TOCchap"><a href="#CHAPTER_V">CHAPTER V</a></div> +<div class="TOCchaptit">THE COMMENCEMENT OF WAR</div> <span class="TOCnum"><a href="#page041">41</a></span> +<div class="TOCsec"><a href="#CHAPTER_V_SECTION_1">SECTION 1</a></div><br /> +<div class="TOCsectit">Declaration of War</div> <span class="TOCnum"><a href="#page041">41</a></span> +<a href="#THE-SINKING-OF-THE-KOWSHING">The Sinking of the <i>Kowshing</i> (1894)</a> <span class="TOCnum"><a href="#page041">41</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_V_SECTION_2">SECTION 2</a></div><br /> +<div class="TOCsectit">The Immediate Effects of the Outbreak of War</div> <span class="TOCnum"><a href="#page044">44</a></span> +<a href="#FOREIGN-SOLDIERS-IN-ENGLAND">Foreign Soldiers in England (1909)</a> <span class="TOCnum"><a href="#page045">45</a></span><br /> +<a href="#THE-NAVAL-PRIZE-BILL-CIVIL-DISABILITIES-OF-ENEMY-SUBJECTS">The Naval Prize Bill: Civil Disabilities of Enemy Subjects (1911)</a> <span class="TOCnum"><a href="#page047">47</a></span><br /> +<a href="#ENEMY-SHIPS-IN-PORT">Enemy Ships in Port (1917)</a> <span class="TOCnum"><a href="#page049">49</a></span> +<br /> +<div class="TOCchap"><a href="#CHAPTER_VI">CHAPTER VI</a></div> +<div class="TOCchaptit">THE CONDUCT OF WARFARE</div> <span class="TOCnum"><a href="#page050">50</a></span> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_1">SECTION 1</a></div><br /> +<div class="TOCsectit">On the Open Sea</div> <span class="TOCnum"><a href="#page051">51</a></span> +<a href="#THE-FREEDOM-OF-THE-SEAS">The Freedom of the Seas? (1917)</a> <span class="TOCnum"><a href="#page051">51</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_2">SECTION 2</a></div><br /> +<div class="TOCsectit">In Other Waters</div> <span class="TOCnum"><a href="#page051">51</a></span> +<a href="#THE-SUEZ-CANAL">The Suez Canal (1898)</a> <span class="TOCnum"><a href="#page051">51</a></span><br /> +<a href="#THE-SUEZ-CANAL-B">The Suez Canal (1898)</a> <span class="TOCnum"><a href="#page053">53</a></span><br /> +<a href="#THE-SUEZ-CANAL-C">The Suez Canal (1898)</a> <span class="TOCnum"><a href="#page054">54</a></span><br /> +<a href="#THE-CLOSING-OF-THE-DARDANELLES">The Closing of the Dardanelles (1912)</a> <span class="TOCnum"><a href="#page055">55</a></span><br /> +<a href="#THE-CLOSING-OF-THE-DARDANELLES-B">The Closing of the Dardanelles (1912)</a> <span class="TOCnum"><a href="#page058">58</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_3">SECTION 3</a></div><br /> +<div class="TOCsectit">In a Special Danger Zone?</div> <span class="TOCnum"><a href="#page059">59</a></span> +<a href="#THE-GERMAN-THREAT">The German Threat (1915)</a> <span class="TOCnum"><a href="#page059">59</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_4">SECTION 4</a></div><br /> +<div class="TOCsectit">Aerial Warfare</div> <span class="TOCnum"><a href="#page061">61</a></span> +<a href="#THE-DEBATE-ON-AERONAUTICS">The Debate on Aeronautics (1909)</a> <span class="TOCnum"><a href="#page061">61</a></span><br /> +<a href="#THE-AERIAL-NAVIGATION-ACT">The Aerial Navigation Act (1913)</a> <span class="TOCnum"><a href="#page063">63</a></span><br /> +<a href="#SOVEREIGNTY-OVER-THE-AIR">Sovereignty over the Air (1913)</a> <span class="TOCnum"><a href="#page065">65</a></span><br /> +<a href="#ATTACK-FROM-THE-AIR-THE-ENFORCEMENT-OF-INTERNATIONAL-LAW">Attack from the Air: The Enforcement of International Law (1914)</a> <span class="TOCnum"><a href="#page066">66</a></span><br /> +<a href="#ATTACK-FROM-THE-AIR-THE-RULES-OF-INTERNATIONAL-LAW">Attack from the Air: The Rules of International Law (1914)</a> <span class="TOCnum"><a href="#page067">67</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_5">SECTION 5</a></div><br /> +<div class="TOCsectit">Submarines</div> <span class="TOCnum"><a href="#page069">69</a></span> +<a href="#GERMANY-AND-THE-HAGUE">Germany and the Hague (1914)</a> <span class="TOCnum"><a href="#page069">69</a></span><br /> +<a href="#THE-PIRATES">The "Pirates" (March 13, 1915)</a> <span class="TOCnum"><a href="#page070">70</a></span><br /> +<a href="#SUBMARINE-CREWS">Submarine Crews (March 22, 1915)</a> <span class="TOCnum"><a href="#page071">71</a></span><br /> +<a href="#MR-WILSONS-NOTE">Mr. Wilson's Note (May 16, 1915)</a> <span class="TOCnum"><a href="#page072">72</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_6">SECTION 6</a></div><br /> +<div class="TOCsectit">Lawful Belligerents</div> <span class="TOCnum"><a href="#page073">73</a></span> +<a href="#GUERILLA-WARFARE">Guerilla Warfare (1906)</a> <span class="TOCnum"><a href="#page073">73</a></span><br /> +<a href="#THE-RUSSIAN-USE-OF-CHINESE-CLOTHING">The Russian Use of Chinese Clothing (1904)</a> <span class="TOCnum"><a href="#page075">75</a></span><br /> +<a href="#THE-RIGHTS-OF-ARMED-CIVILIANS">The Rights of Armed Civilians (1914)</a> <span class="TOCnum"><a href="#page077">77</a></span><br /> +<a href="#CIVILIANS-IN-WARFARE-THE-RIGHT-TO-TAKE-UP-ARMS">Civilians in Warfare: The Right to take up Arms (1914)</a> <span class="TOCnum"><a href="#page078">78</a></span><br /> +<a href="#CIVILIANS-AND-A-RAID">Civilians and a Raid (1914)</a> <span class="TOCnum"><a href="#page079">79</a></span><br /> +<a href="#MISS-CAVELLS-CASE">Miss Cavell's Case (1915)</a> <span class="TOCnum"><a href="#page079">79</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_7">SECTION 7</a></div><br /> +<div class="TOCsectit">Privateering and the Declaration of Paris</div> <span class="TOCnum"><a href="#page080">80</a></span> +<a href="#OUR-MERCANTILE-MARINE-IN-WAR-TIME-A">Our Mercantile Marine in War Time (1898)</a> <span class="TOCnum"><a href="#page081">81</a></span><br /> +<a href="#OUR-MERCANTILE-MARINE-IN-WAR-TIME-B">Our Mercantile Marine in War Time (1898)</a> <span class="TOCnum"><a href="#page084">84</a></span><br /> +<a href="#OUR-MERCANTILE-MARINE-IN-WAR">Our Mercantile Marine in War (1898)</a> <span class="TOCnum"><a href="#page087">87</a></span><br /> +<a href="#THE-DECLARATION-OF-PARIS-1911">The Declaration of Paris (1911)</a> <span class="TOCnum"><a href="#page087">87</a></span><br /> +<a href="#THE-DECLARATION-OF-PARIS-1914">The Declaration of Paris (1914)</a> <span class="TOCnum"><a href="#page089">89</a></span><br /> +<a href="#THE-DECLARATION-OF-PARIS-1916">The Declaration of Paris (1916)</a> <span class="TOCnum"><a href="#page091">91</a></span><br /> +<a href="#THE-DECLARATION-OF-PARIS-1916-B">The Declaration of Paris (1916)</a> <span class="TOCnum"><a href="#page092">92</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_8">SECTION 8</a></div><br /> +<div class="TOCsectit">Assassination</div> <span class="TOCnum"><a href="#page093">93</a></span> +<a href="#THE-NATAL-PROCLAMATION">The Natal Proclamation (1906)</a> <span class="TOCnum"><a href="#page093">93</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_9">SECTION 9</a></div><br /> +<div class="TOCsectit">The Choice of Means of Injuring</div> <span class="TOCnum"><a href="#page094">94</a></span> +<a href="#BULLETS-IN-SAVAGE-WARFARE">Bullets in Savage Warfare (1903)</a> <span class="TOCnum"><a href="#page094">94</a></span><br /> +<a href="#GASES">Gases (1918)</a> <span class="TOCnum"><a href="#page097">97</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_10">SECTION 10</a></div><br /> +<div class="TOCsectit">The Geneva Convention</div> <span class="TOCnum"><a href="#page098">98</a></span> +<a href="#WOUNDED-HORSES-IN-WAR">Wounded Horses in War (1899)</a> <span class="TOCnum"><a href="#page098">98</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_11">SECTION 11</a></div><br /> +<div class="TOCsectit">Enemy Property in Occupied Territory</div> <span class="TOCnum"><a href="#page100">100</a></span> +<a href="#INTERNATIONAL-USUFRUCT">International "Usufruct" (1898)</a> <span class="TOCnum"><a href="#page101">101</a></span><br /> +<a href="#REQUISITIONS-IN-WARFARE">Requisitions in Warfare (1902)</a> <span class="TOCnum"><a href="#page103">103</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_12">SECTION 12</a></div><br /> +<div class="TOCsectit">Enemy Property at Sea</div> <span class="TOCnum"><a href="#page104">104</a></span> +<a href="#PRIVATE-PROPERTY-AT-SEA">Private Property at Sea (1913)</a> <span class="TOCnum"><a href="#page104">104</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_13">SECTION 13</a></div><br /> +<div class="TOCsectit">Martial Law</div> <span class="TOCnum"><a href="#page105">105</a></span> +<a href="#THE-EXECUTIONS-AT-PRETORIA">The Executions at Pretoria (1901)</a> <span class="TOCnum"><a href="#page106">106</a></span><br /> +<a href="#THE-PETITION-OF-RIGHT-1901">The Petition of Right (1901)</a> <span class="TOCnum"><a href="#page108">108</a></span><br /> +<a href="#THE-PETITION-OF-RIGHT-1902">The Petition of Right (1902)</a> <span class="TOCnum"><a href="#page109">109</a></span><br /> +<a href="#MARTIAL-LAW-IN-NATAL">Martial Law in Natal (1906)</a> <span class="TOCnum"><a href="#page111">111</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_14">SECTION 14</a></div><br /> +<div class="TOCsectit">The Naval Bombardment of Open Coast Towns</div> <span class="TOCnum"><a href="#page112">112</a></span> +<a href="#NAVAL-ATROCITIES">Naval Atrocities (1888)</a> <span class="TOCnum"><a href="#page113">113</a></span><br /> +<a href="#THE-NAVAL-MANOEUVRES-A">The Naval Manoeuvres (1888)</a> <span class="TOCnum"><a href="#page113">113</a></span><br /> +<a href="#THE-NAVAL-MANOEUVRES-B">The Naval Manoeuvres (1888)</a> <span class="TOCnum"><a href="#page117">117</a></span><br /> +<a href="#NAVAL-BOMBARDMENTS-OF-UNFORTIFIED-PLACES">Naval Bombardments of Unfortified Places (1904)</a> <span class="TOCnum"><a href="#page120">120</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_15">SECTION 15</a></div><br /> +<div class="TOCsectit">Belligerent Reprisals</div> <span class="TOCnum"><a href="#page123">123</a></span> +<a href="#REPRISALS-A">Reprisals (1917)</a> <span class="TOCnum"><a href="#page123">123</a></span><br /> +<a href="#REPRISALS-B">Reprisals (1917)</a> <span class="TOCnum"><a href="#page124">124</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VI_SECTION_16">SECTION 16</a></div><br /> +<div class="TOCsectit">Peace</div> <span class="TOCnum"><a href="#page124">124</a></span> +<a href="#UNDESIRABLE-PEACE-TALK">Undesirable Peace Talk (1915)</a> <span class="TOCnum"><a href="#page124">124</a></span> +<br /> +<div class="TOCchap"><a href="#CHAPTER_VII">CHAPTER VII</a></div> +<div class="TOCchaptit">THE RIGHTS AND DUTIES OF NEUTRALS</div> <span class="TOCnum"><a href="#page126">126</a></span> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_1">SECTION 1</a></div><br /> +<div class="TOCsectit">The Criterion of Neutral Conduct</div> <span class="TOCnum"><a href="#page126">126</a></span> +<a href="#PROFESSOR-DE-MARTENS-ON-THE-SITUATION">Professor de Martens on the Situation (1905)</a> <span class="TOCnum"><a href="#page126">126</a></span><br /> +<a href="#NEUTRALS-AND-THE-LAWS-OF-WAR">Neutrals and the Laws of War (1915)</a> <span class="TOCnum"><a href="#page127">127</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_2">SECTION 2</a></div><br /> +<div class="TOCsectit">The Duties of Neutral States, and the Liabilities of Neutral +Individuals, distinguished</div> <span class="TOCnum"><a href="#page129">129</a></span> +<a href="#CONTRABAND-OF-WAR-1904">Contraband of War (1904)</a> <span class="TOCnum"><a href="#page130">130</a></span><br /> +<a href="#COAL-FOR-THE-RUSSIAN-FLEET">Coal for the Russian Fleet (1904)</a> <span class="TOCnum"><a href="#page132">132</a></span><br /> +<a href="#GERMAN-WAR-MATERIAL-FOR-TURKEY">German War Material for Turkey (1911)</a> <span class="TOCnum"><a href="#page135">135</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_3">SECTION 3</a></div> +<div class="TOCsectit">Neutrality Proclamations</div> <span class="TOCnum"><a href="#page135">135</a></span> +<a href="#THE-BRITISH-PROCLAMATION-OF-NEUTRALITY-1904">The British Proclamation of Neutrality (1904)</a> <span class="TOCnum"><a href="#page136">136</a></span><br /> +<a href="#THE-BRITISH-PROCLAMATION-OF-NEUTRALITY-1904-B">The British Proclamation of Neutrality (1904)</a> <span class="TOCnum"><a href="#page138">138</a></span><br /> +<a href="#THE-BRITISH-PROCLAMATION-OF-NEUTRALITY-1911">The British Proclamation of Neutrality (1911)</a> <span class="TOCnum"><a href="#page141">141</a></span><br /> +<a href="#THE-PROCLAMATION-OF-NEUTRALITY">The Proclamation of Neutrality (1911)</a> <span class="TOCnum"><a href="#page143">143</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_4">SECTION 4</a></div> +<div class="TOCsectit">Neutral Hospitality</div> <span class="TOCnum"><a href="#page143">143</a></span> +<a href="#BELLIGERENT-FLEETS-IN-NEUTRAL-WATERS">Belligerent Fleets in Neutral Waters (1905)</a> <span class="TOCnum"><a href="#page144">144</a></span><br /> +<a href="#THE-APPAM">The <i>Appam</i> (1916)</a> <span class="TOCnum"><a href="#page146">146</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_5">SECTION 5</a></div> +<div class="TOCsectit">Carriage of Contraband</div> <span class="TOCnum"><a href="#page147">147</a></span> +<i>Absolute and Conditional Contraband</i> <span class="TOCnum"><a href="#page147">147</a></span><br /> +<span class="indented"><a href="#CONTRABAND-OF-WAR-1898">Contraband of War (1898)</a></span> <span class="TOCnum"><a href="#page147">147</a></span><br /> +<span class="indented"><a href="#IS-COAL-CONTRABAND-OF-WAR">Is Coal Contraband of War? (1904)</a></span> <span class="TOCnum"><a href="#page149">149</a></span><br /> +<span class="indented"><a href="#COTTON-AS-CONTRABAND-OF-WAR-1905">Cotton as Contraband of War (1905)</a></span> <span class="TOCnum"><a href="#page151">151</a></span><br /> +<span class="indented"><a href="#COTTON-AS-CONTRABAND-OF-WAR-1916">Cotton as Contraband of War (1916)</a></span> <span class="TOCnum"><a href="#page154">154</a></span><br /> +<span class="indented"><a href="#JAPANESE-PRIZE-LAW-1905">Japanese Prize Law (1905)</a></span> <span class="TOCnum"><a href="#page155">155</a></span><br /> +<span class="indented"><a href="#JAPANESE-PRIZE-LAW-1915">Japanese Prize Law (1915)</a></span> <span class="TOCnum"><a href="#page157">157</a></span><br /> +<i>Continuous Voyages</i> <span class="TOCnum"><a href="#page157">157</a></span><br /> +<span class="indented"><a href="#PRIZE-LAW">Prize Law (1900)</a></span> <span class="TOCnum"><a href="#page158">158</a></span><br /> +<span class="indented"><a href="#THE-ALLANTON-A">The <i>Allanton</i> (1904)</a></span> <span class="TOCnum"><a href="#page161">161</a></span><br /> +<i>Unqualified Captors</i> <span class="TOCnum"><a href="#page162">162</a></span><br /> +<span class="indented"><a href="#THE-ALLANTON-B">The <i>Allanton</i> (1904)</a></span> <span class="TOCnum"><a href="#page162">162</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_6">SECTION 6</a></div> +<div class="TOCsectit">Methods of Warfare as affecting Neutrals</div> <span class="TOCnum"><a href="#page164">164</a></span> +<i>Mines</i> <span class="TOCnum"><a href="#page164">164</a></span><br /> +<span class="indented"><a href="#MINES-IN-THE-OPEN-SEA">Mines in the Open Sea (1904)</a></span> <span class="TOCnum"><a href="#page164">164</a></span><br /> +<span class="indented"><a href="#TERRITORIAL-WATERS">Territorial Waters (1904)</a></span> <span class="TOCnum"><a href="#page166">166</a></span><br /> +<i>Cable-cutting</i> <span class="TOCnum"><a href="#page168">168</a></span><br /> +<span class="indented"><a href="#SUBMARINE-CABLES">Submarine Cables (1881)</a></span> <span class="TOCnum"><a href="#page168">168</a></span><br /> +<span class="indented"><a href="#SUBMARINE-CABLES-IN-TIME-OF-WAR">Submarine Cables in Time of War (1897)</a></span> <span class="TOCnum"><a href="#page169">169</a></span><br /> +<span class="indented"><a href="#SUBMARINE-CABLES-IN-TIME-OF-WAR-B">Submarine Cables in Time of War (1897)</a></span> <span class="TOCnum"><a href="#page171">171</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_7">SECTION 7</a></div> +<div class="TOCsectit">Destruction of Neutral Prizes</div> <span class="TOCnum"><a href="#page173">173</a></span> +<a href="#RUSSIAN-PRIZE-LAW">Russian Prize Law (1904)</a> <span class="TOCnum"><a href="#page174">174</a></span><br /> +<a href="#RUSSIAN-PRIZE-LAW-B">Russian Prize Law (1904)</a> <span class="TOCnum"><a href="#page177">177</a></span><br /> +<a href="#RUSSIAN-PRIZE-LAW-C">Russian Prize Law (1904)</a> <span class="TOCnum"><a href="#page178">178</a></span><br /> +<a href="#THE-SINKING-OF-NEUTRAL-PRIZES">The Sinking of Neutral Prizes (1905)</a> <span class="TOCnum"><a href="#page179">179</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_8">SECTION 8</a></div> +<div class="TOCsectit">An International Prize Court</div> <span class="TOCnum"><a href="#page181">181</a></span> +<a href="#AN-INTERNATIONAL-PRIZE-COURT">An International Prize Court (1907)</a> <span class="TOCnum"><a href="#page182">182</a></span><br /> +<a href="#A-NEW-PRIZE-LAW">A New Prize Law (1907)</a> <span class="TOCnum"><a href="#page183">183</a></span><br /> +<a href="#A-NEW-PRIZE-LAW-B">A New Prize Law (1907)</a> <span class="TOCnum"><a href="#page186">186</a></span><br /> +<a href="#A-NEW-PRIZE-LAW-C">A New Prize Law (1907)</a> <span class="TOCnum"><a href="#page189">189</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_9">SECTION 9</a></div> +<div class="TOCsectit">The Naval Prize Bill</div> <span class="TOCnum"><a href="#page191">191</a></span> +<a href="#THE-NAVAL-PRIZE-BILL-1910">The Naval Prize Bill (1910)</a> <span class="TOCnum"><a href="#page192">192</a></span><br /> +<a href="#THE-NAVAL-PRIZE-BILL-1911">The Naval Prize Bill (1911)</a> <span class="TOCnum"><a href="#page194">194</a></span><br /> +<a href="#NAVAL-PRIZE-MONEY">Naval Prize Money (1918)</a> <span class="TOCnum"><a href="#page195">195</a></span> +<br /> +<div class="TOCsec"><a href="#CHAPTER_VII_SECTION_10">SECTION 10</a></div> +<div class="TOCsectit">The Declaration of London</div> <span class="TOCnum"><a href="#page196">196</a></span> +<a href="#THE-DECLARATION-OF-LONDON-1909">The Declaration of London (1909)</a> <span class="TOCnum"><a href="#page196">196</a></span><br /> +<a href="#THE-DECLARATION-OF-LONDON-1910">The Declaration of London (1910)</a> <span class="TOCnum"><a href="#page197">197</a></span><br /> +<a href="#THE-DECLARATION-OF-LONDON-1911">The Declaration of London (1911)</a> <span class="TOCnum"><a href="#page199">199</a></span><br /> +<a href="#THE-DECLARATION-OF-LONDON-1911-B">The Declaration of London (1911)</a> <span class="TOCnum"><a href="#page202">202</a></span><br /> +<a href="#THE-DECLARATION-OF-LONDON-1911-C">The Declaration of London (1911)</a> <span class="TOCnum"><a href="#page203">203</a></span><br /> +<a href="#THE-DECLARATION-OF-LONDON-1915">The Declaration of London (1915)</a> <span class="TOCnum"><a href="#page204">204</a></span><br /> +<a href="#THE-DECLARATION-OF-LONDON-1916">The Declaration of London (1916)</a> <span class="TOCnum"><a href="#page205">205</a></span><br /> +<a href="#GERMANY-WRONG-AGAIN">Germany wrong again (1917)</a> <span class="TOCnum"><a href="#page207">207</a></span> +<br /> +<div class="TOCchap"><a href="#INDEX">INDEX</a></div> <span class="TOCnum"><a href="#page209">209</a></span><br /> +<span class="newpage"><a name="page001" id="page001">[001]</a></span> +</div> + + + + + +<hr style="width: 65%;" /> +<h2><a name="CHAPTER_I" id="CHAPTER_I" />CHAPTER I</h2> + +<p class="chaptertitle">MEASURES SHORT OF WAR FOR THE SETTLEMENT +OF INTERNATIONAL CONTROVERSIES</p> + + +<h3 class="sectionhead"><a name="CHAPTER_I_SECTION_1" />SECTION 1</h3> + +<p class="subsectionhead">Friendly Measures</p> + +<div class="intronotes"><p>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 <i>Parl. +Paper</i>, Russia, 1905, No. 3): this letter deals also with Arbitration, +under The Hague Convention of 1899.</p> + +<p>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, +<i>viz</i> (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.</p> + +<p>It remains to be seen how far the settlement of international +controversies has been facilitated by the establishment of a "League +<span class="newpage"><a name="page002" id="page002">[002]</a></span>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.</p></div> + +<p class="lettertitle"><a name="THE-PETITION-TO-THE-PRESIDENT-OF-THE-UNITED-STATES" />THE PETITION TO THE PRESIDENT OF THE UNITED STATES</p> + +<p>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 <i>New York World</i> 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 <i>Convention pour le règlement pacifique des +conflits internationaux</i>, prepared at the Conference [of 1899], +Art. 3 of which is to the following effect:—</p> + +<div class="letterquot"><p>"Les Puissances signataires jugent utile qu'une ou plusieurs Puissances +étrangères au conflit offrent de leur propre initiative, en tant +que les circonstances s'y prêtent, leurs bons offices ou leur médiation +aux États en conflit.</p> + +<p>"Le droit d'offrir les bons offices ou la médiation appartient aux +Puissances étrangères au conflit, même pendant le cours des hostilités.</p> + +<p>"L'exercice de ce droit ne peut jamais être considéré par l'une ou +l'autre des parties en litige comme un acte peu amical."</p></div> + +<p>Several remarks are suggested by the presentation of +this petition:—</p> + +<p>(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.</p> + +<p>(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 +<span class="newpage"><a name="page003" id="page003">[003]</a></span>useful and unobjectionable proceeding, in suitable cases +(<i>en tant que les circonstances s'y prêtent</i>). 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.</p> + +<p>(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.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, October 28 (1899).</div><br /> +</div> + +<div class="postnotes"><p><i>Par.</i> 2 (1).—The Convention of 1899 was ratified by Great Britain, +on September 4, 1900; and between that year and 1907 practically +all civilised Powers ratified or acceded to it. It is now, for almost all +Powers, superseded by The Hague Convention, No. i. of 1907, which, +reproduces Art. 3 of the older Convention, inserting, however, after +the word "utile," the words "et désirable."</p> + +<p><i>Ib.</i> (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.</p></div> + + +<p class="lettertitle"><a name="COMMISSIONS-OF-ENQUIRY-AND-THE-HAGUE-CONVENTION" />COMMISSIONS OF ENQUIRY AND THE HAGUE +CONVENTION</p> + +<p>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"<span class="newpage"><a name="page004" id="page004">[004]</a></span> +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.</p> + +<p>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.</p> + +<p>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.<span class="newpage"><a name="page005" id="page005">[005]</a></span></p> + +<p>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" (<i>voeux</i>), such as those which were also adopted +at The Hague. The operative phrases of most usual occurrence +in the convention are, accordingly, such as "jugent +utile"; "sont d'accord pour recommander"; "est reconnu +comme le moyen le plus efficace"; "se réservent de conclure +des accords nouveaux, en vue d'étendre l'arbitrage +obligatoire à tous les cas qu'elles jugeront possible de lui +soumettre."</p> + +<p>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 <i>entente cordiale</i>, 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 +<span class="newpage"><a name="page006" id="page006">[006]</a></span>made, would be more likely to lead to fresh misunderstandings +than to secure the peaceful settlement of disputed +questions.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 21 (1904).</div><br /> +</div> + +<div class="postnotes"><p><i>Pars.</i> 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.</p> + +<p><i>Par.</i> 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."</p> + +<p><i>Par.</i> 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 +<span class="newpage"><a name="page007" id="page007">[007]</a></span>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.</p> + +<p>But see now the three letters which follow.</p></div> + + +<p class="lettertitle"><a name="THE-LEAGUE-OF-NATIONS-1919" />THE LEAGUE OF NATIONS</p> + +<p>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.</p> + +<p>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:—</p> + +<p>(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 +<span class="newpage"><a name="page008" id="page008">[008]</a></span>regulation by the League of all questions relating to +"Labour" which may arise within its jurisdiction.</p> + +<p>(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.)</p> + +<p>(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."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 16 (1919).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-LEAGUE-OF-NATIONS-1919-B" /></p> + +<p>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.</p> + +<p>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."<span class="newpage"><a name="page009" id="page009">[009]</a></span></p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 20 (1919).</div><br /> +</div> + +<p class="lettertitle"><a name="THE-LEAGUE-OF-NATIONS-1920" /></p> + +<p>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."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, January 5 (1920).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_I_SECTION_2" />SECTION 2</h3> + +<p class="subsectionhead">Pacific Reprisals</p> + +<div class="intronotes"> +<p>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 desira<span class="newpage"><a name="page010" id="page010">[010]</a></span>bility +of more clearly distinguishing between war and reprisals. On +the various applications of a blockade in time of peace, see the author's +<i>Studies in International Law</i>, pp. 130-150.</p> +</div> + + +<p class="lettertitle"><a name="THE-BLOCKADE-OF-THE-MENAM" />THE BLOCKADE OF THE MENAM</p> + + + +<p>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.</p> + +<p>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.</p> + +<p>Or is France still at peace with Siam, and merely putting +upon her that form of pressure which is known as "pacific +blockade"?</p> + +<p>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 +<span class="newpage"><a name="page011" id="page011">[011]</a></span>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.</p> + +<p>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:—</p> + +<div class="letterquot"><p>"L'établissement d'un blocus en dehors de l'état de guerre ne doit +être considere comme permis par le droit des gens que sous les conditions +suivantes:—</p> + +<p>"1. Les navires de pavillon étranger peuvent entrer librement +malgré le blocus.</p> + +<p>"2. Le blocus pacifique doit être déclaré et notifié officiellement, +et maintenu par une force suffisante.</p> + +<p>"Les navires de la puissance bloquée qui ne respectent pas un pareil +blocus peuvent être séquestrés. Le blocus ayant cessé, ils doivent +être restitués avec leur cargaisons à leurs propriétaires, mais sans +dédommagement à aucun titre."</p></div> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Athenæum Club, July 26 (1893).</div><br /> +</div> + + +<p class="lettertitle"><a name="PACIFIC-BLOCKADE" />PACIFIC BLOCKADE</p> + +<p>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 +<span class="newpage"><a name="page012" id="page012">[012]</a></span>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.</p> + +<p>The opinion of statesmen and jurists upon this point +has undergone a change, and this because the practice +known as "pacific blockade" has itself changed. The +practice, which is comparatively modern, dating only from +1827, was at first directed against ships under all flags, +and ships arrested for breach of a pacific blockade were at +one time confiscated, as they would have been in time of +war. It has been purged of these defects as the result of +discussions, diplomatic and scientific. As now understood, +the blockade is enforced only against vessels belonging to +the "quasi-enemy," and even such vessels, when arrested, +are not confiscated, but merely detained till the blockade +is raised. International law does not stand still; and having +some acquaintance with Continental opinion on the topic +under consideration, I read with amazement "M.'s" assertion +that "the majority in number," "the most weighty in +authority" of the writers on international law "have never +failed to protest against such practices as indefensible in +principle." The fact is that the objections made by, e.g. +Lord Palmerston in 1846, and by several writers of textbooks, +to pacific blockade, had reference to the abuses +connected with the earlier stages of its development. As +directed only against the ships of the "quasi-enemy," it +has received the substantially unanimous approbation +of the Institut de Droit International at Heidelberg in +1887, after a very interesting debate, in which the advo<span class="newpage"><a name="page013" id="page013">[013]</a></span>cates +of the practice were led by M. Perels, of the Prussian +Admiralty, and its detractors by Professor Geffken. It is +true that in an early edition of his work upon international +law my lamented friend, Mr. Hall, did use the words attributed +to him by "M.": "It is difficult to see how a pacific +blockade is justifiable." But many things, notably Lord +Granville's correspondence with France in 1884 and the +blockade of the Greek coast in 1886, have occurred since +those words were written. If "M." will turn to a later edition +of the work in question he will see that Mr. Hall had completely +altered his opinion on the subject, or rather that, +having disapproved of the practice as unreformed, he +blesses it altogether in its later development. With reference +to the utility of the practice, I should like to call the attention +of "M." to a passage in the latest edition of Hall's book +which is perhaps not irrelevant to current politics:—</p> + +<div class="letterquot"><p>"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."</p></div> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, March 5 (1897).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-VENEZUELAN-CONTROVERSY" />THE VENEZUELAN CONTROVERSY</p> + +<p>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 +<span class="newpage"><a name="page014" id="page014">[014]</a></span>the more important of these questions from the rest, and to +indicate in each case the principles involved.</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page015" id="page015">[015]</a></span>by British subjects in the course of civil wars would come +next, and would need more careful scrutiny (on this point +the debates and votes of the Institut de Droit International, +at its meeting at Neuchâtel in 1900, may be consulted with +advantage). Last of all would come the claims of unpaid +bondholders, as to which Mr. Balfour would seem to endorse, +in principle, the statement made in 1880 by Lord Salisbury +who, while observing that "it would be an extreme assertion +to say that this country ought never to interfere on the part +of bondholders who have been wronged," went on to say that +"it would be hardly fair if any body of capitalists should +have it in their power to pledge the people of this country +to exertions of such an extensive character.... They +would be getting the benefit of an English guarantee without +paying the price of it."</p> + +<p>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.</p> + +<p>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, +<span class="newpage"><a name="page016" id="page016">[016]</a></span>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.</p> + +<p>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 <i>ipso facto</i> +"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.</p> + +<p>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 +<span class="newpage"><a name="page017" id="page017">[017]</a></span>views are entertained with reference to the acts which are +permissible under a "pacific blockade."</p> + +<p>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?</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 18 (1902).</div><br /> +<span class="newpage"><a name="page018" id="page018">[018]</a></span></div> + + +<p class="lettertitle"><a name="THE-VENEZUELA-PROTOCOL" />THE VENEZUELA PROTOCOL</p> + +<p>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—<i>viz.</i> the +desirability of keeping unblurred the line of demarcation +between such unfriendly pressure as constitutes "reprisals" +and actual war.</p> + +<p>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.</p> + +<p>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 <i>ipso facto</i> created a state of war between Great +Britain and Venezuela."</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February 17 (1903).</div><br /> +</div> + + +<p class="lettertitle"><a name="WAR-AND-REPRISALS" />WAR AND REPRISALS</p> + +<p>Sir,—Professor Westlake's interesting letter as to the +measures recently taken by the Netherlands Government in<span class="newpage"><a name="page019" id="page019">[019]</a></span> +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—<i>viz.</i> 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.</p> + +<p>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.</p> + +<p>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 <i>licentia laedendi</i> +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.</p> + +<p>The questions which remain for consideration would +seem to be the following:—<span class="newpage"><a name="page020" id="page020">[020]</a></span></p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>On the ambiguous character sometimes attaching to +reprisals as now practised, I may perhaps refer to an +article in the <i>Law Quarterly Review</i> for 1903, entitled "War +Sub Modo."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 26 (1908).</div><br /> +</div> + +<div class="postnotes"><p>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 +<span class="newpage"><a name="page021" id="page021">[021]</a></span>punishment does not take the form of the acquisition of territory by +any non-American Power."</p> + +<p>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 (<i>compromis</i>), or, after the arbitration, fails to comply +with the arbitral decision."<span class="newpage"><a name="page022" id="page022">[022]</a></span></p></div> + + + +<hr style="width: 65%;" /> +<h2><a name="CHAPTER_II" id="CHAPTER_II" />CHAPTER II</h2> + +<p class="chaptertitle">STEPS TOWARDS A WRITTEN LAW OF WAR</p> + + +<div class="intronotes"><p>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:—</p> + +<p>(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.</p> + +<p>(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, <i>cf. infra</i>, <a href="#CHAPTER_VI_SECTION_10">Ch. VI. Section 10</a>); 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.</p> + +<p>(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, +<span class="newpage"><a name="page023" id="page023">[023]</a></span>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.</p> + + +<p>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.</p> + +<p>The <i>Manuel des Lois de la Guerre sur Terre</i>, 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.</p> + +<p>The remaining letters in this chapter relate to the <i>Naval War Code</i>, +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 <i>chargé d'affaires</i> at Washington +and printed in <i>Parl. Papers, Miscell.</i> 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 <i>Instructions for the +Government of Armies of the United States</i>, 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 <i>Studies in International +Law</i>, 1898, p. 85. <i>Cf.</i> his <i>Manual of Naval Prize Law</i>, issued +by authority of the Admiralty in 1888, his <i>Handbook of the Laws and +Customs of War on Land</i>, issued by authority to the British Army in +1904, and his <i>The Laws of War on Land (written and unwritten)</i>, 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 <i>Manuel +des Lois de la Guerre sur Mer</i>, 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. <i>Cf.</i> the letters upon the <i>Declaration of London</i>, +in <a href="#CHAPTER_VII_SECTION_10">Ch. VII. Section 10</a>, <i>infra</i>.</p></div> + + +<p class="lettertitle"><a name="COUNT-VON-MOLTKE-ON-THE-LAWS-OF-WARFARE" />COUNT VON MOLTKE ON THE LAWS OF +WARFARE</p> + +<p>Sir,—You may perhaps think that the accompanying +letter, recently addressed by Count von Moltke to Professor<span class="newpage"><a name="page024" id="page024">[024]</a></span> +Bluntschli, is of sufficient general interest to be inserted +in <i>The Times</i>. 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 <i>Revue de +Droit International</i>, which will contain also Professor +Bluntschli's reply.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, January 29 (1881).</div><br /> +</div> + +<div class="quotedletter"><p>"Berlin, Dec. 11, 1880.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"A great step has been made in our own day by the establishment +<span class="newpage"><a name="page025" id="page025">[025]</a></span>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.</p> + +<p>"The greatest kindness in war is to bring it to a speedy conclusion. +It should be allowable with that view to employ all methods save those +which are absolutely objectionable ('dazu müssen alle nicht geradezu +verwerfliche Mittel freistehen'). I can by no means profess agreement +with the Declaration of St. Petersburg when it asserts that 'the weakening +of the military forces of the enemy' is the only lawful procedure +in war. No, you must attack all the resources of the enemy's Government: +its finances, its railways, its stores, and even its prestige. Thus +energetically, and yet with a moderation previously unknown, was the +late war against France conducted. The issue of the campaign was +decided in two months, and the fighting did not become embittered till +a revolutionary Government, unfortunately for the country, prolonged +the war for four more months.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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 +<span class="newpage"><a name="page026" id="page026">[026]</a></span>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.</p> + +<p>"COUNT VON MOLTKE, Field-Marshal-General."</p></div> + + +<p class="lettertitle"><a name="PROFESSOR-BLUNTSCHLIS-REPLY-TO-COUNT-VON-MOLTKE" />PROFESSOR BLUNTSCHLI'S REPLY TO COUNT +VON MOLTKE</p> + +<p>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 <i>The Times</i> of the 1st inst.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February (1881).</div><br /> +</div> + +<div class="quotedletter"><p>"Christmas, 1880.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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 +<span class="newpage"><a name="page027" id="page027">[027]</a></span>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:—</p> + +<p>"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.</p> + +<p>"2. To aid in elucidating and strengthening legal order even in +time of war.</p> + +<p>"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.</p> + +<p>"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 +<span class="newpage"><a name="page028" id="page028">[028]</a></span>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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"Dr. BLUNTSCHLI, Privy Councillor, Professor."<span class="newpage"><a name="page029" id="page029">[029]</a></span></p></div> + + +<p class="lettertitle"><a name="THE-UNITED-STATES-NAVAL-WAR-CODE" />THE UNITED STATES NAVAL WAR CODE.<a class="fnanchor" id="footnotetag01" name="footnotetag01" href= + "#footnote01">1</a></p> + +<p>Sir,—The "Naval War Code" of the United States, +upon which an interesting article appeared in <i>The Times</i> 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.</p> + +<p>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—<i>e.g.</i> 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 <i>Springbok</i> +and the <i>Peterhoff</i> 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 <i>Bundesrath</i> 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 +<span class="newpage"><a name="page030" id="page030">[030]</a></span>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 <i>Paquete Habana</i>), by affirming the absolute +immunity of coast fishing vessels, as such, from capture.</p> + +<p>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.<a class="fnanchor" id="footnotetag02" name="footnotetag02" href= + "#footnote02">2</a> 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.<a class="fnanchor" id="footnotetag03" name="footnotetag03" href= + "#footnote03">3</a> Art. 4 sets out substantially +the rules upon this subject for which I secured the +<i>imprimatur</i> of the Institut de Droit International in 1896.</p> + +<p>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.</p> + +<p>Thirdly, the code contains, very properly, some general +provisions applicable equally to warfare upon land (Arts. +1, 3, 8, 12, 54).</p> + +<p>Fourthly, it is clearly expressed; and it is brief, consisting +of only 54 articles, occupying 22 pages.</p> + +<p>Fifthly, it deals with two very distinct topics—<i>viz.</i> 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 +<span class="newpage"><a name="page031" id="page031">[031]</a></span>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, April 8 (1901).</div><br /> +</div> + + + + +<p class="lettertitle"><a name="A-NAVAL-WAR-CODE" />A NAVAL WAR CODE</p> + +<p>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.</p> + +<p>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:—</p> + +<div class="letterquot"><p>"Our code might be better arranged than its predecessor, and would +differ from it on certain questions, but should resemble it in clearness +<span class="newpage"><a name="page032" id="page032">[032]</a></span>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."</p></div> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, March 12 (1902).</div><br /> +<span class="newpage"><a name="page033" id="page033">[033]</a></span></div> + + + +<hr style="width: 65%;" /> +<h2><a name="CHAPTER_III" id="CHAPTER_III" />CHAPTER III</h2> + +<p class="chaptertitle">TERMINOLOGY</p> + +<p class="lettertitle"><a name="INTERNATIONAL-TERMINOLOGY" />INTERNATIONAL TERMINOLOGY</p> + + +<p>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 <i>ne sutor supra crepidam</i>. A.B.,<a class="fnanchor" id="footnotetag04a" name="footnotetag04a" href= + "#footnote04">4</a> for instance, wrote of +the Kaiser as guilty of "an indictable offence." X.Y.<a class="fnanchor" id="footnotetag04b" name="footnotetag04b" href= + "#footnote04">4</a> +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.<a class="fnanchor" id="footnotetag05" name="footnotetag05" href="#footnote05">5</a> 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 <i>inter se</i>, which is known +as "international law," can be enforced, in the last resort, +<span class="newpage"><a name="page034" id="page034">[034]</a></span>only by hostile State action—a fact which he seems to +suppose may entitle him to qualify the rules as "a +mockery."</p> + +<p>X.Y.<a class="fnanchor" id="footnotetag04c" name="footnotetag04c" href= + "#footnote04">4</a> 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.<a class="fnanchor" id="footnotetag04d" name="footnotetag04d" href= + "#footnote04">4</a> 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.</p> + +<p>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—<i>e.g.</i> 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 +<span class="newpage"><a name="page035" id="page035">[035]</a></span>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 19 (1918).</div><br /> +</div> + + + +<div class="postnotes"><p>A full discussion of the topics dealt with in the last paragraph of +this letter may be found in my <i>Elements of Jurisprudence</i>, 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 <i>Revue de +Droit International</i>, t. xii., pp. 565, &c.<span class="newpage"><a name="page036" id="page036">[036]</a></span></p></div> + + + +<hr style="width: 65%;" /> +<h2><a name="CHAPTER_IV" id="CHAPTER_IV" />CHAPTER IV</h2> + +<p class="chaptertitle">CONVENTIONS AND LEGISLATION</p> + + +<div class="intronotes"><p>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.</p> + +<p>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.</p></div> + + +<p class="lettertitle"><a name="GOVERNMENT-BILLS-AND-INTERNATIONAL-CONVENTIONS" />GOVERNMENT BILLS AND INTERNATIONAL +CONVENTIONS</p> + +<p>Sir,—You have already allowed me to point out how +singularly ill-adapted is the resuscitated "Naval Prize +Consolidation Bill"<a class="fnanchor" id="footnotetag06" name="footnotetag06" href="#footnote06">6</a> 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.</p> + +<p>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 <i>en +pleine connaissance de cause</i>.</p> + +<p>The "Geneva Convention Bill"<a class="fnanchor" id="footnotetag07" name="footnotetag07" href="#footnote07">7</a> is intended to facilitate +<span class="newpage"><a name="page037" id="page037">[037]</a></span>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>i.e.</i>, 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.</p> + +<p>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<span class="newpage"><a name="page038" id="page038">[038]</a></span> +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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">The Athenæum, July 7 (1911).</div><br /> +</div> + + + +<div class="postnotes"><p>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.</p></div> + + +<p class="lettertitle"><a name="THE-PRESENT-BILL-IN-PARLIAMENT" />THE PRESENT BILL IN PARLIAMENT</p> + +<p>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.</p> + +<p>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.</p> + +<p>As now resuscitated, the Bill is accompanied by a +memorandum containing information which will enable +<span class="newpage"><a name="page039" id="page039">[039]</a></span>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?</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, April 13, 1914.</div><br /> +</div> + +<div class="postnotes"><p>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. <i>Cf. supra</i>, +p. <a href="#page037">37</a>. It also was withdrawn, after sustaining much renewed criticism, +on July 17, 1914.</p></div> + + +<p class="lettertitle"><a name="THE-FOREIGN-ENLISTMENT-BILL" />THE FOREIGN ENLISTMENT BILL</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page040" id="page040">[040]</a></span>ships fitted for hostilities and restricting the hospitality +which may be extended to belligerent war ships?</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 23 (1912).</div><br /> +</div> + +<div class="postnotes"><p>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.<span class="newpage"><a name="page041" id="page041">[041]</a></span></p></div> + + + +<hr style="width: 65%;" /> +<h2><a name="CHAPTER_V" id="CHAPTER_V" />CHAPTER V</h2> + +<p class="chaptertitle">THE COMMENCEMENT OF WAR</p> + + +<h3 class="sectionhead"><a name="CHAPTER_V_SECTION_1" />SECTION 1</h3> + +<p class="subsectionhead">Declaration of War</p> + +<div class="intronotes"><p>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, <i>e.g.</i> 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 <i>Kowshing</i>, the present +writer may further refer to his <i>Studies in International Law</i>, 1898, +p. 126, and to Professor Takahashi's <i>International Law during the Chino-Japanese +War</i>, 1899, pp. 24, 192. But see now the note at the end +of the "Letter" which follows.</p></div> + + +<p class="lettertitle"><a name="THE-SINKING-OF-THE-KOWSHING" />THE SINKING OF THE <i>KOWSHING</i></p> + +<p>Sir,—The words of soberness and truth were spoken +with reference to the sinking of the <i>Kowshing</i> 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 +<span class="newpage"><a name="page042" id="page042">[042]</a></span>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.</p> + +<p>If the visiting, and eventual sinking, of the <i>Kowshing</i> +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.</p> + +<p>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 <i>à propos</i> 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 <i>Kowshing</i> +and threatening her with violence in case of disobedience +to his orders were acts of war.</p> + +<p>In the second place, the <i>Kowshing</i> had notice of the +existence of a war, at any rate from the moment when she +received the orders of the Japanese commander.</p> + +<p>The <i>Kowshing</i>, 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 <i>ruse de guerre</i> or otherwise, is +wholly immaterial.) Her liabilities, as such ship, were +twofold:—</p> + +<p>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.<span class="newpage"><a name="page043" id="page043">[043]</a></span></p> + +<p>2. As one of a fleet of transports and men-of-war engaged +in carrying reinforcements to the Chinese troops on the +mainland, the <i>Kowshing</i> 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.</p> + +<p>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 +<i>Kowshing</i>, 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 +<i>inter se</i>; 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.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Athenæum Club, August 6 (1894)</div><br /> +</div> + +<div class="postnotes"><p>The controversy caused by the sinking of the <i>Kowshing</i> in 1894 +was revived by the manner of the Japanese attack upon Port Arthur, +in 1904 (see Professor Takahashi's <i>International Law applied to the +Russo-Japanese War</i>, 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:—<span class="newpage"><a name="page044" id="page044">[044]</a></span></p> + +<p>(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.</p> + +<p>(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.</p> + +<p>(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 +<i>Annuaire de l'Institut</i>, t, xxi. p. 292.</p> + +<p>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—</p> + +<p>(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."</p> + +<p>And the Convention goes on to provide that—</p> + +<p>(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 <i>Laws of War on Land (written and unwritten)</i>, 1908, +P. 18.)</p></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_V_SECTION_2" />SECTION 2</h3> + +<p class="subsectionhead">The Immediate Effects of the Outbreak of War</p> + +<p class="subsectionhead">Enemy Residents</p> + +<div class="intronotes"><p>Before any actual hostilities have taken place, each belligerent +acquires, <i>ipso facto</i>, certain new rights over persons and property +belonging to the other, which happen to be at the time within its power,<span class="newpage"><a name="page045" id="page045">[045]</a></span> +<i>e.g.</i> 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.</p> + +<p>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: +<i>viz.</i> "What would be the <i>status</i> 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.</p> + +<p>The topic was again touched upon on March 3, in a question put +by Captain Faber, to which Mr. Haldane replied.</p></div> + + +<p class="lettertitle"><a name="FOREIGN-SOLDIERS-IN-ENGLAND" />FOREIGN SOLDIERS IN ENGLAND</p> + +<p>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.</p> + +<p>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 <i>Brown v. United States</i> +(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."</p> + +<p><span class="newpage"><a name="page046" id="page046">[046]</a></span>Vattel, is it true (1758), ventures to lay down that—</p> + +<div class="letterquot"><p>"Le Souverain qui déclare la guerre ne peut retenir les sujets de +ennemi qui se trouvent dans ses états au moment de la déclaration +... en leur permettant d'entrer dans ses terres et d'y séjourner, il leur +a promis tacitement toute liberté et toute sûreté pour le retour."</p></div> + +<p>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—</p> + +<div class="letterquot"><p>"for strictly military reasons, any nation is entitled to detain and to +intern soldiers found upon the territory at the outbreak of war."</p></div> + +<p>And I should be surprised if, under all circumstances, +as the learned Attorney-General seems to think probable—</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>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.</p> + +<p>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.</p> + +<p>I am only concerned to maintain that, as far as inter<span class="newpage"><a name="page047" id="page047">[047]</a></span>national +law is concerned, England has a free hand either +to expel resident enemies or to prevent them from leaving the +country, as may seem most conducive to her own safety.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February 25 (1909).</div><br /> +</div> + +<p> </p> + +<p class="subsectionhead">Civil Disabilities of Alien Enemies</p> + +<p class="lettertitle"><a name="THE-NAVAL-PRIZE-BILL-CIVIL-DISABILITIES-OF-ENEMY-SUBJECTS" />THE NAVAL PRIZE BILL<br /><br /> + +CIVIL DISABILITIES OF ENEMY SUBJECTS</p> + +<p>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 (<i>h</i>) of that Convention.</p> + +<p>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 (<i>h</i>). (1) Continental writers, <i>e.g.</i>, 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 <i>Laws of War on Land</i>,<span class="newpage"><a name="page048" id="page048">[048]</a></span> +1909, he will find that I carry this sceptical attitude so +far as to include the clause in question in brackets as +"apocryphal," with the comment that "it can hardly, +till its policy has been seriously discussed, be treated as a +rule of international law." I have accordingly maintained, +in correspondence with my Continental colleagues, that the +clause should be treated as "non avenue," as "un non +sens," on the ground that, while, torn from their context, +its words would seem ("ont faux air") to bear the Continental +interpretation, its position as part of a "Règlement," +in conformity with which the Powers are to "issue +instructions to their armed land forces," conclusively +negatives this interpretation. I will not to-day trouble +you in detail with the very curious history of the clause; +which, as originally proposed by Germany, merely prohibited +(a commander?) from announcing that the private claims +("réclamations") of enemy subjects would be unenforceable. +It is astonishing that no objection was raised by the +British or by the American delegates to the subsequent +transformation of this innocent clause into something very +different, first by the insertion of the words "en justice," +and later by the substitution of "droits et actions" for +"réclamations." The quiescence of the delegates is the +more surprising, as, at the first meeting of the sub-committee, +General de Gundel, in the plainest language, foreshadowed +what was aimed at by the clause.</p> + +<p>Art. 23 (<i>h</i>) 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 6 (1911).</div><br /> +</div> + +<div class="postnotes"><p>I may perhaps refer here to my <i>Laws of War on Land</i> (1908), p. 44, +where I describe as "apocryphal" Art. 23 (<i>h</i>) of the Hague Convention +No. iv. of 1907; and to my paper upon that article in the <i>Law Quarterly +Review</i> for 1912, pp. 94-98, reproduced in the <i>Revue de Droit Inter<span class="newpage"><a name="page049" id="page049">[049]</a></span>national</i>, +the <i>Revue Générale de Droit International Public</i>, and the +<i>Zeitschrift für Völkerrecht und Bundesstaatsrecht</i>, for the same year.</p> + +<p>The view there maintained was affirmed by the Court of Appeal +in <i>Porter</i> v. <i>Freudenberg</i>, [1915] 1 K.B. 857, <i>at</i> p. 874.</p></div> + +<p> </p> +<p class="subsectionhead">Enemy Ships in Port</p> + +<p class="lettertitle"><a name="ENEMY-SHIPS-IN-PORT" />ENEMY SHIPS IN PORT</p> + +<p>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.</p> + +<p>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, <i>it is desirable</i> +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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, April 7 (1917).</div><br /> +<span class="newpage"><a name="page050" id="page050">[050]</a></span></div> + + + +<hr style="width: 65%;" /> +<h2><a name="CHAPTER_VI" id="CHAPTER_VI" />CHAPTER VI</h2> + +<p class="chaptertitle">THE CONDUCT OF WARFARE</p> + + +<div class="intronotes"><p>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.</p> + +<p>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."</p> + +<p>The last phrase of paragraph 1 of Art. 8 relates to annual meetings +of the agents of the signatory Powers.</p> + +<p>Paragraph 2 of this Article relates to the presidency of a special +commissioner of the Ottoman Government over those meetings.</p> + +<p>On the whole question see <i>Parl. Papers, Egypt</i>, No. 1 (1888), +<i>Commercial</i>, No. 2 (1889), and the present writer's +<i>Studies in International Law</i>, pp. 275-293. Note must, of course, +now be taken of the constitutional changes resulting from the war of 1914.</p> + +<p>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.<span class="newpage"><a name="page051" id="page051">[051]</a></span></p></div> + + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_1" />SECTION 1</h3> + +<p class="subsectionhead">On the Open Sea</p> + + +<p class="lettertitle"><a name="THE-FREEDOM-OF-THE-SEAS" />"THE FREEDOM OF THE SEAS"?</p> + +<p>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, August 16 (1917).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_2" />SECTION 2</h3> + +<p class="subsectionhead">In Other Waters</p> + + +<p class="lettertitle"><a name="THE-SUEZ-CANAL" />THE SUEZ CANAL</p> + +<p>Sir,—Your correspondent "M.B." has done good service +by calling attention to the misleading nature of the often-repeated +<span class="newpage"><a name="page052" id="page052">[052]</a></span>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.</p> + +<p>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:—</p> + +<div class="letterquot"><p>"Les Délégués de la Grande-Bretagne ... pensent qu'il est de leur +devoir de formuler une réserve générale quant à l'application de ces +dispositions en tant qu'elles ne seraient pas compatibles avec l'état +transitoire et exceptionnel où se trouve actuellement l'Egypte, et qu'elles +pourraient entraver la liberté d'action de leur Gouvernement pendant +la période de l'occupation de l'Egypte par les forces de sa Majesté +Britannique."</p></div> + +<p>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 <i>Fortnightly +Review</i> 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.</p> + +<p>It may be worth while to enquire how far this state of +things would be affected by the Convention of 1888, were +<span class="newpage"><a name="page053" id="page053">[053]</a></span>it to come into operation. The <i>status</i> 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—<i>e.g.</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Brighton, October 4 (1898).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-SUEZ-CANAL-B" />THE SUEZ CANAL</p> + +<p>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.</p> + +<p>It is impossible to accept his suggestion that the article +which he quotes from the Treaty of Paris can be taken as +containing "an international official definition of neutralisation +as applied to waters." The article in question, after +declaring the Black Sea to be "neutralisée," no doubt goes +on to explain the sense in which this phrase is to be +understood, by laying down that the waters and ports of that +sea are perpetually closed to the ships of war of all nations. +It is, however, well known that such a state of things as is +described in the latter part of the article is so far from +<span class="newpage"><a name="page054" id="page054">[054]</a></span>being involved in the definition of "neutralisation" as +not even to be an ordinary accompaniment of that process. +Belgium is unquestionably "neutralised," but no one +supposes that the appearance in its waters and ports of ships +of war is therefore prohibited. The fact is that the term +"neutralisée" was employed in the Treaty of Paris as a +euphemism, intended to make less unpalatable to Russia +a restriction upon her sovereign rights which she took +the earliest opportunity of repudiating.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Brighton, October 6 (1898).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-SUEZ-CANAL-C" />THE SUEZ CANAL</p> + +<p>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 +<i>The Times</i> of yesterday?</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page055" id="page055">[055]</a></span>their willingness to agree to it," must, it can hardly be +doubted, share the view that the convention is operative +only <i>sub modo</i>.</p> + +<p>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.</p> + +<p>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."</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, October 9 (1898).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-CLOSING-OF-THE-DARDANELLES" />THE CLOSING OF THE DARDANELLES</p> + +<p>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 +<span class="newpage"><a name="page056" id="page056">[056]</a></span>action of the Turkish Government in closing the Dardanelles +to even commercial traffic.</p> + +<p>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 <i>dicta</i> 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.</p> + +<p>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.</p> + +<p>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:—</p> + +<div class="letterquot"><p>"Free from any impediment, the commerce in the ports and waters of +the Black Sea shall be subject only to regulations of health, Customs, +<span class="newpage"><a name="page057" id="page057">[057]</a></span>and police, framed in a spirit favourable to the development of +commercial transactions."</p></div> + +<p>And by Art. 3 of the Treaty of London:—</p> + +<div class="letterquot"><p>"The Black Sea remains open, as heretofore, to the mercantile +marine of all nations."</p></div> + +<p>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.</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page058" id="page058">[058]</a></span>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</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 22 (1912).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-CLOSING-OF-THE-DARDANELLES-B" />THE CLOSING OF THE DARDANELLES</p> + +<p>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 <i>séance</i> of the +Congress of Berlin, at which Art. 24 came up for discussion.</p> + +<p>The earlier Treaties, however, which were revived beyond +<span class="newpage"><a name="page059" id="page059">[059]</a></span>question by Art. 10 of the Treaty of 1879, grant to Russian +merchant vessels full rights of passage between the Black +Sea and the Ægean, exercisable, for all that appears, in +time of war as well as of peace, although these Treaties +contain no express words to that effect. Such rights, I +would again urge, if enjoyed by one Power, should be +enjoyed by all; upon terms to be settled, not by any pair +of Powers but by the Powers collectively.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, June 5 (1912).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_3" />SECTION 3</h3> + +<p class="subsectionhead">In a Special Danger Zone?</p> + + +<p class="lettertitle"><a name="THE-GERMAN-THREAT" />THE GERMAN THREAT</p> + +<p>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.</p> + +<p>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 îles Britanniques sont déclarées en état 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.</p> + +<p>2. These promised, and already perpetrated, atrocities +<span class="newpage"><a name="page060" id="page060">[060]</a></span>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.</p> + +<p>This procedure seems to have been followed, more or +less, by the submarines which sank the <i>Durward</i> 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 <i>Tokomaru</i>, the <i>Ikaria</i>, and the +hospital ship (!) <i>Asturias</i>, 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February 12 (1915).</div><br /> +<span class="newpage"><a name="page061" id="page061">[061]</a></span></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_4" />SECTION 4</h3> + +<p class="subsectionhead">Aerial Warfare</p> + +<div class="intronotes"><p>It may be desirable to supplement what is said in the following +letters by mentioning that the Declaration of 1899 (to remain in force +for five years) was largely ratified, though not by Great Britain; that of +1907 (to remain in force till the termination of the third Peace +Conference) was ratified by Great Britain and by most of the other great +Powers in 1909, not, however, by Germany or Austria; that aerial +navigation is regulated by the Acts, I & 2 Geo. 5, c. 4, and 2 & 3 Geo. 5, +c. 22; and that an agreement upon the subject was entered into +between France and Germany, on July 26, 1913, by exchange of notes, +"en attendant la conclusion d'une convention sur cette matière entre +un plus grand nombre d'états" (the international Conference held at +Paris in 1910 had failed to agree upon the terms of such a Convention); +and that Art. 25 of The Hague Convention of 1907, No. iv., was ratified +by Great Britain, and generally.</p></div> + + +<p class="lettertitle"><a name="THE-DEBATE-ON-AERONAUTICS" />THE DEBATE ON AERONAUTICS</p> + +<p>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.</p> + +<p>In the <i>Règlement</i> 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 <i>Règlement</i> was reissued in +1907 as an annexe to the, as yet not generally ratified, +Hague Convention No. iv. of that year, by the insertion, +<span class="newpage"><a name="page062" id="page062">[062]</a></span>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.</p> + +<p>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 <i>Règlement</i> +(cited, perhaps again by inadvertence, as that of 1899) as +to the Laws and Customs of War on Land.</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page063" id="page063">[063]</a></span>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, August 3 (1909).</div><br /> +</div> + + + +<p class="lettertitle"><a name="THE-AERIAL-NAVIGATION-ACT" />THE AERIAL NAVIGATION ACT<br /><br /> +PRACTICAL DIFFICULTIES</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page064" id="page064">[064]</a></span>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 <i>Rapporteur</i>, 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 +<i>aéronefs</i> 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 <i>aer</i>, 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.</p> + +<p>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 +<span class="newpage"><a name="page065" id="page065">[065]</a></span>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 <i>a priori</i>, but the difference between the +two schools of thinkers is instructive, as bearing upon the +extent to which those who belong to one or the other school +would incline towards measures of precaution against +abuses of the novel art. This difference was well summed +up at one of our meetings by Professor Westlake as follows: +"Conservation et passage, comment combiner ces deux +droits? Lequel des deux est la règle? Lequel l'exception? +Pour le Rapporteur (M. Fauchille) c'est le droit de passage +qui prime. Pour moi c'est le droit de conservation."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February 15 (1913).</div><br /> +</div> + + +<p class="lettertitle"><a name="SOVEREIGNTY-OVER-THE-AIR" />SOVEREIGNTY OVER THE AIR</p> + +<p>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 +<span class="newpage"><a name="page066" id="page066">[066]</a></span>territorial precaution, and those who, like the present +writer ("il se proclame opposé au principe de la liberté de +la navigation aérienne, et <ins class="correction" + title="Transcriber's note: Printed _s'entiendrait_ in original."> +s'en tiendrait</ins> plutôt au principe +<i>cuius est solum, huius est usque ad coelum</i>, en y apportant +au besoin quelques restrictions," "Annuaire," p. 821), +would subject all aerial access to the discretion of the +territorial Power.</p> + +<p>The discussion took place upon certain <i>bases</i>, and No. 3 +of these was ultimately adopted, though only by 21 against +10 votes, to the following effect: "La circulation aérienne +internationale est libre, sauf le droit pour les états +sous-jacents de prendre certaines mesures à déterminer, en vue +de leur sécurité et de celle des personnes et des biens de +leur territoire."</p> + +<p>The Institut then proceeded to deal with <i>bases</i> relating +to a time of war, but was unable to make much progress +with them in the time available. The debate upon the +"Régime juridique des aérostats" was not resumed at +Christiania in 1911, nor is it likely to be at Oxford "in the +autumn of the present year," as Mr. Cohen has been led to +suppose. Other arrangements were found to be necessary, +at a meeting which took place a week ago between myself +and the other members of our <i>bureau</i>.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 30 (1913).</div><br /> +</div> + + + +<p class="lettertitle"><a name="ATTACK-FROM-THE-AIR-THE-ENFORCEMENT-OF-INTERNATIONAL-LAW" />ATTACK FROM THE AIR<br /><br /> +THE ENFORCEMENT OF INTERNATIONAL LAW</p> + +<p>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 +<span class="newpage"><a name="page067" id="page067">[067]</a></span>to whom the Colonel appeals I should be glad to be allowed +to reply to the first of his questions.</p> + +<p>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:</p> + +<div class="letterquot"><p>"It is forbidden to attack or to bombard <i>by any means whatever +(par quelque moyen que ce soit)</i> towns, villages, habitations, or +buildings which are not defended."</p></div> + +<p>It clearly appears from the "Actes de la Conférence," <i>e.g.</i> +<i>T.</i> 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.</p> + +<p>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 <i>The Times</i> upon +War and Neutrality (1881-1918)."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, April 24 (1914).</div><br /> +</div> + + +<p class="lettertitle"><a name="ATTACK-FROM-THE-AIR-THE-RULES-OF-INTERNATIONAL-LAW" />ATTACK FROM THE AIR<br /><br /> + +THE RULES OF INTERNATIONAL LAW</p> + +<p>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, <i>by any means whatever</i>, +of towns, &c., which are not defended." This rule has +<span class="newpage"><a name="page068" id="page068">[068]</a></span>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 <i>aéronefs</i> +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.</p> + +<p>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 <i>prima +facie</i> "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 <i>Kriegsbrauch</i>, p. 22. One +also asks: Under what circumstances does a place, <i>prima +facie</i>, "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.</p> + +<p>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 +<span class="newpage"><a name="page069" id="page069">[069]</a></span>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 2 (1914).</div><br /> +</div> + +<div class="postnotes"><p>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.</p> + +<p>On the bombardment of undefended places, <i>cf. supra</i>, pp. <a href="#page030">30</a>, <a href="#page062">62</a>, +<a href="#page067">67</a>, <a href="#page068">68</a>; <i>infra</i>, pp. <a href="#page097">97</a>, <a href="#page109">109</a>, <a href="#page112">112</a>-123.</p> + +<p>On the authority of International Law, <i>supra</i>, pp. <a href="#page025">25</a>, <a href="#page066">66</a>, <a href="#page067">67</a>; <i>infra</i>, +pp. <a href="#page077">77</a>, <a href="#page114">114</a>, <a href="#page115">115</a>, <a href="#page137">137</a>, <a href="#page169">169</a>.</p></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_5" />SECTION 5</h3> + +<p class="subsectionhead">Submarines</p> + + +<p class="lettertitle"><a name="GERMANY-AND-THE-HAGUE" />GERMANY AND THE HAGUE</p> + +<p>Sir,—One excuse for German atrocities put forward, +as you report, in the <i>Kolnische Zeitung</i>, 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 <i>Zeitung</i>, the Conventions are, for present purposes, +waste paper. The argument is as technically correct as +<span class="newpage"><a name="page070" id="page070">[070]</a></span>its application would be unreasonable; and I should like +to recall the fact that, in the important prize case of the +<i>Möwe</i>, 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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 26 (1914).</div><br /> +</div> + +<div class="postnotes"><p>The charitable view taken in the last paragraph has, of course, not +been justified.</p> + +<p>For the <i>Möwe</i>, see 2 Lloyd, 70. On the restrictive article in The +Hague Convention, <i>cf. passim</i>.</p></div> + + +<p class="lettertitle"><a name="THE-PIRATES" />"THE PIRATES"</p> + +<p>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?</p> + +<p>A ship is regarded by international law as "piratical"<span class="newpage"><a name="page071" id="page071">[071]</a></span> +only if, upon the high seas, she either attacks other vessels, +without being commissioned by any State so to do (<i>nullius +Principis auctoritate</i>, 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, <i>e.g.</i>, 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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, March 13 (1915)</div><br /> +</div> + + +<p class="lettertitle"><a name="SUBMARINE-CREWS" />SUBMARINE CREWS</p> + +<p>Sir,—My letter in <i>The Times</i> 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 <i>ignoratio elenchi</i>, 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 +<span class="newpage"><a name="page072" id="page072">[072]</a></span>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, March 22 (1915).</div><br /> +</div> + + +<p class="lettertitle"><a name="MR-WILSONS-NOTE" />MR. WILSON'S NOTE</p> + +<p>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 <i>locus standi</i> 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.</p> + +<p>It may suffice to cite the paragraph which assumes as +indisputable</p> + +<div class="letterquot"><p>"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,"</p></div> + +<p>as also</p> + +<div class="letterquot"><p>"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."<span class="newpage"><a name="page073" id="page073">[073]</a></span></p></div> + +<p>[I assume that the word "unarmed" here does not +exclude the case of a vessel carrying arms solely for +defence.]</p> + +<p>The Note also recognises, what you some time ago +allowed me to point out,</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>Adding:—</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Brighton, May 15 (1915).</div><br /> +</div> + +<div class="postnotes"><p><i>Cf. supra</i>, p. <a href="#page070">70</a>.</p></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_6" />SECTION 6</h3> + +<p class="subsectionhead">Lawful Belligerents</p> + + +<p class="lettertitle"><a name="GUERILLA-WARFARE" />GUERILLA WARFARE</p> + +<p>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.</p> + +<p>1. Mr. Healy seemed to think that something turned +<span class="newpage"><a name="page074" id="page074">[074]</a></span>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.</p> + +<p>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."</p> + +<p>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 <i>Règlement</i> annexed to the Convention. This <i>Règlement</i>, +which is substantially a reproduction of the unratified +<i>projet</i> 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 <i>Règlement</i> should be seriously taken in +hand, our Government having now abandoned its <i>non +possumus</i> 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<span class="newpage"><a name="page075" id="page075">[075]</a></span> +(without the exercise of undue severity) to operations such +as those now being carried out in South Africa.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 7 (1900).</div><br /> +</div> + +<div class="postnotes"><p>"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.</p> + +<p>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 <i>Laws and Customs of War on Land</i>, which was issued to the Army +by authority in 1904. On the instructions issued by other National +Governments, see the author's <i>Laws of War on Land</i>, 1908, pp. 71-73.</p> + +<p>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 <i>Règlement</i> +annexed to the Convention of 1899, and by a statement that that +Convention, with its <i>Règlement</i>, is now superseded by Conventions +No. iv. (with its <i>Règlement</i>) and No. v. of 1907, of which account has +been taken in a new Handbook upon <i>Land Warfare</i>, issued by the War +Office in 1913.</p> + +<p>As to what is required from a lawful belligerent, see Arts. 1 and 2 +of the <i>Règlement</i> of 1899, practically repeated in that of 1907. The +substance of Art. 1 is set out in the letter which follows.</p> + +<p>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." +<i>Cf. infra</i>, pp. <a href="#page076">76</a>, <a href="#page079">79</a>.</p></div> + + +<p class="lettertitle"><a name="THE-RUSSIAN-USE-OF-CHINESE-CLOTHING" />THE RUSSIAN USE OF CHINESE CLOTHING</p> + +<p>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 (<i>f</i>) of the <i>Règlement</i> annexed to<span class="newpage"><a name="page076" id="page076">[076]</a></span> +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."</p> + +<p>Art. 1 of the <i>Règlement</i> 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, <i>viz.</i>:—</p> + +<div class="letterquot"><p>"(1) That of being commanded by a person responsible for his +subordinates;</p> + +<p>"(2) That of having a distinctive mark, recognisable at a distance;</p> + +<p>"(3) That of carrying their arms openly; and</p> + +<p>"(4) That of conducting their operations in accordance with the +laws and customs of war."</p></div> + +<p>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.</p> + +<p>All signatories of The Hague Convention are bound +to issue to their troops instructions in conformity with +the <i>Règlement</i> 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 <i>Règlement</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, October 21 (1904).</div><br /> +<span class="newpage"><a name="page077" id="page077">[077]</a></span></div> + + +<p class="lettertitle"><a name="THE-RIGHTS-OF-ARMED-CIVILIANS" />THE RIGHTS OF ARMED CIVILIANS</p> + +<p>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 <i>ipse dixit</i> of an Emperor, on the other.</p> + +<p>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 être conduits au supplice pour +avoir tenté de défendre leur pays, au péril de leur vie, ils +trouvent inscrit, sur le poteau au pied duquel ils seront +fusillés, l'article d'un Traité signé par leur propre gouvernement +qui d'avance les condamnait à mort."</p> + +<p><i>An Englishman's Home</i> 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 +<span class="newpage"><a name="page078" id="page078">[078]</a></span>shooting of the offending householder. It may be hardly +necessary to add that nothing in international usage justifies +execution of innocent wives and children.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, September 17 (1914).</div><br /> +</div> + +<div class="postnotes"><p>This letter was, it seems, perverted in the <i>Kreuz Zeitung</i>.</p></div> + + + +<p class="lettertitle"><a name="CIVILIANS-IN-WARFARE-THE-RIGHT-TO-TAKE-UP-ARMS" />CIVILIANS IN WARFARE<br /><br /> + +THE RIGHT TO TAKE UP ARMS</p> + +<p>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 <i>levée en masse</i> 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.</p> + +<p>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 <i>The Times</i> of September 19 +last, truthfully represented on the stage in <i>An Englishman's +Home</i>.</p> + +<p>In the same letter I wrote that "even in our own favoured +country it is most desirable that every one should know +<span class="newpage"><a name="page079" id="page079">[079]</a></span>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, October 26 (1914).</div><br /> +</div> + + +<p class="lettertitle"><a name="CIVILIANS-AND-A-RAID" />CIVILIANS AND A RAID</p> + +<p>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 <i>francs-tireurs</i>.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 24 (1914).</div><br /> +</div> + + +<p class="lettertitle"><a name="MISS-CAVELLS-CASE" />MISS CAVELL'S CASE</p> + +<p>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.<span class="newpage"><a name="page080" id="page080">[080]</a></span></p> + +<p>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 +<i>Kriegsbrauch</i>, 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.</p> + +<p>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?</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, October 26 (1915).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_7" />SECTION 7</h3> + +<p class="subsectionhead">Privateering</p> + +<div class="intronotes"><p>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 +<span class="newpage"><a name="page081" id="page081">[081]</a></span>to the Declaration of Paris, announced their intention to conduct the +war in accordance with the rules laid down by the Declaration.</p> + +<p>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," <i>viz.</i> 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."</p> + +<p>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.</p> + +<p>Ten years afterwards, <i>viz.</i> 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 <i>Malacca</i>; possibly also as to +ships "converted" on the High Seas.</p></div> + + +<p class="lettertitle"><a name="OUR-MERCANTILE-MARINE-IN-WAR-TIME-A" />OUR MERCANTILE MARINE IN WAR TIME</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page082" id="page082">[082]</a></span>with international law, and what would be the net amount +of the relief which they would afford.</p> + +<p>It is hardly necessary to say that non-compliance with +the provisions of the Declaration of Paris by a non-signatory +carries with it none of the consequences of a breach of the +law of nations. The framers of that somewhat hastily +conceived attempt to engraft a paper amendment upon +the slowly matured product of œcumenical opinion, far +from professing to make general law, expressly state that +the Declaration "shall not be binding except upon those +Powers who have acceded, or shall accede, to it." As +regards Spain and the United States the Declaration is +<i>res inter alios acta</i>.</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page083" id="page083">[083]</a></span>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 <i>in invitos</i> 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 +<span class="newpage"><a name="page084" id="page084">[084]</a></span>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">The Athenæum, April 16 (1898).</div><br /> +</div> + + +<p class="lettertitle"><a name="OUR-MERCANTILE-MARINE-IN-WAR-TIME-B" />OUR MERCANTILE MARINE IN WAR TIME</p> + +<p>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.</p> + +<p>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.</p> + +<p>It is really too clear for argument that privateers are +not, and cannot be treated as, pirates.</p> + +<p>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 +<span class="newpage"><a name="page085" id="page085">[085]</a></span>purpose. Sir George is still unable to discover for privateers +any other category than the "<i>status</i> 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—<i>e.g.</i> in the +<i>Savannah</i> and in the <i>Golden Rocket</i> (insurance) cases—that +even such vessels were not pirates <i>iure gentium</i>. 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.</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page086" id="page086">[086]</a></span>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.</p> + +<p>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Brighton, April 21 (1898).</div><br /> +<span class="newpage"><a name="page087" id="page087">[087]</a></span></div> + + +<p class="lettertitle"><a name="OUR-MERCANTILE-MARINE-IN-WAR" />OUR MERCANTILE MARINE IN WAR</p> + +<p>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>i.e.</i> 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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, April 27 (1898).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-PARIS-1911" />THE DECLARATION OF PARIS</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page088" id="page088">[088]</a></span>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.</p> + +<p>"Anglo-Saxon," on the other hand, is equally justified +in asserting that the "officially-recorded policy" of the +States, <i>i.e.</i> 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, +<span class="newpage"><a name="page089" id="page089">[089]</a></span>are generally accessible, but would refer, especially with +reference to the Declaration of Paris, to the volumes for +1904 and 1906.</p> + +<p>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.</p> + +<div class="signature"> +<span class="sigbody">I have the honour to be, Sir,<br /> +Your obedient servant,</span><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, January 4 (1911).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-PARIS-1914" />THE DECLARATION OF PARIS</p> + +<p>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."</p> + +<p>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 +<span class="newpage"><a name="page090" id="page090">[090]</a></span>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"—<i>viz.</i> 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.</p> + +<p>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:—</p> + +<div class="letterquot"><p>"Belligerents are forbidden to move across the territory of a neutral +Power troops or convoys, whether of munitions or of supplies."</p></div> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, August 12 (1914).</div><br /> +<span class="newpage"><a name="page091" id="page091">[091]</a></span></div> + +<p>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 <i>Minerva</i>, 6 C. Rob. +at p. 400—<i>viz.</i> 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.</p> + +<p>Even supposing the purchase to be unobjectionable, +the duty of Turkey to remove all belligerents from the +ships would be unquestionable.</p> + +<div class="postnotes"><p><i>Cf.</i> on the Declaration of Paris, <i>passim</i>, see Index; on the misuse +of Declarations, <i>infra</i>, p. <a href="#page092">92</a>; on privateering, <i>supra</i>, pp. <a href="#page080">80</a>-84.</p></div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-PARIS-1916" />THE DECLARATION OF PARIS</p> + +<p>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).</p> + +<p>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 +<span class="newpage"><a name="page092" id="page092">[092]</a></span>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.</p> + +<p>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"?</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, August 13 (1916).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-PARIS-1916-B" />THE DECLARATION OF PARIS</p> + +<p>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.</p> + +<p>I must be excused from following Mr. Bowles into a +<span class="newpage"><a name="page093" id="page093">[093]</a></span>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, August 17 (1916).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_8" />SECTION 8</h3> + +<p class="subsectionhead">Assassination</p> + + +<p class="lettertitle"><a name="THE-NATAL-PROCLAMATION" />THE NATAL PROCLAMATION</p> + +<p>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.</p> + +<p>By Art. 28 (<i>b</i>) 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 (<i>b</i>) 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 +<span class="newpage"><a name="page094" id="page094">[094]</a></span>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Brighton, April 17 (1906).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_9" />SECTION 9</h3> + +<p class="subsectionhead">The Choice of Means of Injuring</p> + + +<p class="lettertitle"><a name="BULLETS-IN-SAVAGE-WARFARE" />BULLETS IN SAVAGE WARFARE</p> + +<p>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.</p> + +<p>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."</p> + +<p>The law of the subject, as embodied in general international +<span class="newpage"><a name="page095" id="page095">[095]</a></span>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:—</p> + +<div class="letterquot"><p>"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.)</p> + +<p>"The right of belligerents to adopt means of injuring the enemy is +not unlimited." (Hague <i>Règlement</i>, Art. 22.)</p> + +<p>"Besides the prohibitions provided by special conventions [the +Declaration of St. Petersburg alone answers to this description] it is +in particular prohibited (<i>e</i>) to employ arms, projectiles, or +material of a nature to cause superfluous injury." (<i>Ib.</i> Art. 23.)</p></div> + +<p>The only special prohibition is that contained in the +Declaration of St. Petersburg, by which the contracting +parties—</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>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" +<span class="newpage"><a name="page096" id="page096">[096]</a></span>are hazily reminiscent, not of the <i>Règlement</i> +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—</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Athenæum Club, May 2 (1903).</div><br /> +</div> + +<div class="postnotes"><p>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.</p> + +<p>The provisions of Arts. 22 and 23 (<i>e</i>) of the <i>Règlement</i> 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 (<i>e</i>) of the <i>Règlement</i> annexed to the Hague +Convention, No. iv. of 1907, on the same subject, ratified by Great Britain on +November 27, 1909.</p> + +<p>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 (<i>e</i>) of The +Hague <i>Règlements</i>. The specially prohibited means of destruction +are, by the Declaration of St. Petersburg, explosive bullets; by The +Hague <i>Règlements</i>, Art. 23 (<i>a</i>) 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, <i>cf. supra</i>, p. <a href="#page022">22</a>. It must +be remarked that the Declarations of St. Petersburg and of The<span class="newpage"><a name="page097" id="page097">[097]</a></span> +Hague, unlike The Hague Règlements, apply to war at sea, as well as +on land.</p> + +<p><i>Cf. supra</i>, p. <a href="#page022">22</a>, and see the author's <i>The Laws of War on Land +(written and unwritten)</i>, 1908, pp. <a href="#page040">40</a>-43.</p></div> + + +<p class="lettertitle"><a name="GASES" />GASES</p> + +<p>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 "(<i>a</i>) poison or poisoned arms," "(<i>c</i>) 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."</p> + +<p>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.</p> + +<p>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, +<span class="newpage"><a name="page098" id="page098">[098]</a></span>and reparation. The rehabilitation and revision of international +law is a different business, and should be reserved +for a subsequent conference.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 29 (1918).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_10" />SECTION 10</h3> + +<p class="subsectionhead">The Geneva Convention</p> + +<div class="intronotes"><p>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.</p> + +<p>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>i.e.</i> 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."</p> + +<p>Thereupon, Mr. Lawrence Pike, on November 23, addressed to +<i>The Times</i> the letter which called forth the letter which follows.</p></div> + + +<p class="lettertitle"><a name="WOUNDED-HORSES-IN-WAR" />WOUNDED HORSES IN WAR</p> + +<p>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 +<span class="newpage"><a name="page099" id="page099">[099]</a></span>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.</p> + +<p>It is not the case that Art. 7 of the convention, which +merely confides to commanders-in-chief, under the instructions +of their respective Governments, "les détails d'exécution +de la présente convention," gives them any authority +to extend its scope beyond what is expressly stated to be +its object—<i>viz.</i> "l'amélioration du sort des militaires +blessés dans les armées en campagne." While, however, +the Geneva Convention, does not contemplate the relief of +animal suffering, it certainly cannot be "set up as a bar" +to the provision of such relief. Commanders who may +see their way to neutralising persons engaged in the succour +or slaughter of wounded horses would be quite within their +powers in entering into temporary agreements for that +purpose.</p> + +<p>I may add that the "Convention concerning the laws +and customs of war on land," prepared by the recent conference +at The Hague, and signed on behalf of most Governments, +including our own, though not yet ratified, contains +a chapter "Des malades et des blessés," which merely states +that the obligations of belligerents on this point are governed +by the Convention of Geneva of 1864, with such modifications +as may be made in it. Among the aspirations (<i>vœux</i>) +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.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +Oxford, November 2<span class="newpage"><a name="page100" id="page100">[100]</a></span>7 (1899).<br /> +</div> + +<div class="postnotes"><p>The "second Geneva Convention," above mentioned, was the +"Projet d'Articles additionnels," signed on October 20, 1868, but +never ratified.</p> + +<p>Art. 21 of the <i>Règlement</i> 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 <i>Règlement</i> of 1907, which mentions +"the Convention of Geneva," without mention of any date, or of +possible alterations. The Convention intended in this later <i>Règlement</i> +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 <i>supra</i>, p. <a href="#page037">37</a>. The later is somewhat wider in scope than +the earlier Convention, its recital referring to "the sick," as well +as to the wounded, and its first article naming not only "les militaires," +but also "les autres personnes officiellement attachées aux armées."</p> + +<p>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.</p> + +<p>"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. <i>supra</i>, +<a href="#CHAPTER_II">Chapters ii.</a> and <a href="#CHAPTER_IV">iv.</a></p></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_11" />SECTION 11</h3> + +<p class="subsectionhead">Enemy Property in Occupied Territory</p> + +<div class="intronotes"><p>By Art. 55 of The Hague <i>Règlement</i> of 1899, which reproduces Art. 7 +of the Brussels <i>Projet</i>, and is repeated as Art. 55 of the <i>Règlement</i> 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 +<span class="newpage"><a name="page101" id="page101">[101]</a></span>and situated in the hostile country. It must protect the substance +of these properties and administer them according to the rules of +usufruct."</p> + +<p>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."</p></div> + + +<p class="lettertitle"><a name="INTERNATIONAL-USUFRUCT" />INTERNATIONAL "USUFRUCT"</p> + +<p>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>i.e.</i> 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—<i>e.g.</i> 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.</p> + +<p>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 +<span class="newpage"><a name="page102" id="page102">[102]</a></span>of Roman private law to international use. "Dominium," +"Possessio," "Occupatio," have long been so adapted, +but it has yet to be proved that "Usufructus" is equally +malleable. I can recall no other use of the term in international +discussions than the somewhat rhetorical statement +that an invader should consider himself as merely the +"usufructuary" of the resources of the country which he +is invading; which is no more than to say that he should +use them "en bon père de famille." It will be a very +different matter to put a strict legal construction upon the +grant of the "usufruct" of Port Arthur. By way of +homage to the conception of such a grant, as presumably +creating at the outside a life-interest, Russia seems to have +taken it, in the first instance, only for twenty-five years. +One may, however, be pardoned for sharing, with reference +to this transaction, the scruples which were felt at Rome +as to allowing the grant of a usufruct to a corporation—"periculum +enim esse videbatur, ne perpetuus fieret."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, March 30 (1898).</div><br /> +</div> + +<p>P.S.—It would seem from M. Lehr's <i>Éléments du droit +civil Russe</i> that "usufruct" is almost unknown to the law +of Russia, though a restricted form of it figures in the code +of the Baltic provinces.</p> + +<div class="letterquot"><p>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.</p> + +<p>The Hague Convention of 1899 made no change in this respect. +Arts. 51 and 52 of the <i>Règlement</i> annexed to the Convention direct, it +is true, that receipts should be given for contributions ("un reçu sera +délivré aux contribuables") also for requisitions in kind, if not paid for +("elles seront constatées par des reçus"), but these receipts were to +be merely evidence that money or goods have been taken, and it was +left an open question, by whom, if at all, compensation was to be made +or the losses thus established.</p> + +<p>The <i>Règlement</i> of 1907 is more liberal than that of 1899 with reference +<span class="newpage"><a name="page103" id="page103">[103]</a></span>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 (<i>constatées</i>) +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.</p></div> + + +<p class="lettertitle"><a name="REQUISITIONS-IN-WARFARE" />REQUISITIONS IN WARFARE</p> + +<p>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—<i>viz.</i> 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 <i>constater</i> 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.</p> + +<p>An article in the current number of the <i>Review of Reviews</i>, +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 +<span class="newpage"><a name="page104" id="page104">[104]</a></span>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.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, July 30 (1962).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_12" />SECTION 12</h3> + +<p class="subsectionhead">Enemy Property at Sea</p> + + +<p class="lettertitle"><a name="PRIVATE-PROPERTY-AT-SEA" />PRIVATE PROPERTY AT SEA</p> + +<p>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."</p> + +<p>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 <i>Manual<span class="newpage"><a name="page105" id="page105">[105]</a></span> +of the Law of War on Land</i> by the first and second Peace +Conferences, has been, for some time past, working upon +a <i>Manual of the Laws of War at Sea</i>. 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 +(<i>Annuaire</i>, t. xxv., p. 602).</p> + +<p>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 <i>imprimatur</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 4 (1913).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_13" />SECTION 13</h3> + +<p class="subsectionhead">Martial Law</p> + +<div class="intronotes"><p>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.<span class="newpage"><a name="page106" id="page106">[106]</a></span></p> + +<p>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" (<i>Ex parte</i> 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 <i>The Times</i> of December 27, +1901, and January 4, 1902, maintained that the prohibition in question +was not confined to time of peace.</p> + +<p>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, +<i>See</i> Mcomini Mzinelwe and Wanda <i>v.</i> H.E. the Governor and the A.G. +for the Colony of Natal, 22 <i>Times Law Reports</i>, 413.</p></div> + + +<p class="lettertitle"><a name="THE-EXECUTIONS-AT-PRETORIA" />THE EXECUTIONS AT PRETORIA</p> + +<p>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—<i>viz.</i> +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 +<span class="newpage"><a name="page107" id="page107">[107]</a></span>the British <i>Manual of Military Law</i>, 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."</p> + +<p>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.</p> + +<p>I. The Hague "Convention on the laws and customs of +war on land" (ratified by twenty Powers) lays down:—</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>The Hague Conference, in adopting this article, adopted +also, as an "authentic interpretation" of it, a statement +that the indulgence granted to escapes does not apply to +such as are accompanied by "special circumstances," of +which the instances given are "complot, rébellion, émeute."</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>II. The United States Instructions:—</p> + +<div class="letterquot"><p>"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."</p> + +<p>"ARTICLE 78.—If prisoners of war, having given no pledge nor +made any promise on their honour, forcibly or otherwise, escape, and +<span class="newpage"><a name="page108" id="page108">[108]</a></span>are captured again in battle, having rejoined their own army, they +shall not be punished for their escape."</p> + +<p>"ARTICLE 124.—Breaking the parole is punished with death when +the person breaking the parole is captured again."</p></div> + +<p><i>Cf.</i> the French <i>Code de Justice Militaire</i>, Art. 204, and +other Continental codes to the same effect.</p> + +<p>III. The <i>Manuel des Lois de la guerre sur terre</i> of the +Institute of International Law lays down:—</p> + +<div class="letterquot"><p>"ARTICLE 68.—Si le fugitif +<ins class="correction" + title="Transcriber's note: Printed _ressasi_ in original text."> +ressaisi</ins> ou capturé de nouveau avait +donne sa parole de ne pas s'évader, il peut être privé des droits de +prisonnier de guerre."</p> + +<p>"ARTICLE 78.—Tout prisonnier libéré sur parole et repris portant +les armes contre le gouvernement auquel il l'avait donnée, peut être +privé des droits de prisonnier de guerre, à moins que, postérieurement +à sa liberation, il n'ait été compris dans un cartel d'échange sans +conditions."</p></div> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, June 17 (1901).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-PETITION-OF-RIGHT-1901" />THE PETITION OF RIGHT</p> + +<p>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:—</p> + +<p>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.<span class="newpage"><a name="page109" id="page109">[109]</a></span></p> + +<p>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:—</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>The text of these Commissions, the revocation of which +is demanded by the Petition, is still extant.</p> + +<p>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.</p> + +<p>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 <i>tempus belli</i>," said Rolls.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 31 (1901).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-PETITION-OF-RIGHT-1902" />THE PETITION OF RIGHT</p> + +<p>Sir,—In a letter which you allowed me to address to +you a few days ago, I dealt with two perfectly distinct +topics.</p> + +<p>In the first place I pointed out that the words occurring +in a recent judgment of the Privy Council, which were cited +<span class="newpage"><a name="page110" id="page110">[110]</a></span>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"?</p> + +<p>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. <i>v.</i> 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.</p> + +<p>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 +<span class="newpage"><a name="page111" id="page111">[111]</a></span>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, January 8 (1902).</div><br /> +</div> + + +<p class="lettertitle"><a name="MARTIAL-LAW-IN-NATAL" />MARTIAL LAW IN NATAL</p> + +<p>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 +<span class="newpage"><a name="page112" id="page112">[112]</a></span>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.</p> + +<p>This view, I venture to think, cannot now be seriously +controverted; and I am glad to find, on turning to Mr. +Clode's <i>Military and Martial Law</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_14" />SECTION 14</h3> + +<p class="subsectionhead">The Naval Bombardment of Open Coast Towns</p> + +<div class="intronotes"><p>The four letters which first follow were suggested by the British +Naval Manœuvres 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 +<span class="newpage"><a name="page113" id="page113">[113]</a></span>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." (<i>Parl. Paper</i>, +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 <i>Studies in International +Law</i>, 1898, p. 96.) The fifth letter was suggested by a Russian protest +against alleged Japanese action in 1904.</p> + +<p>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.</p></div> + + +<p class="lettertitle"><a name="NAVAL-ATROCITIES" />NAVAL ATROCITIES</p> + +<p>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 <i>Spider</i> 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?</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Athenæum Club, August 7 (1888).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-NAVAL-MANOEUVRES-A" />THE NAVAL MANŒUVRES</p> + +<p>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 <i>Ajax</i> 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<span class="newpage"><a name="page114" id="page114">[114]</a></span> +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."</p> + +<p>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?</p> + +<p>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, <i>mutatis mutandis</i>, to +operations conducted by naval forces against places on +land, are as follows:—</p> + +<div class="letterquot"><p>"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."</p> + +<p>"ARTICLE 16.—But if a town, &c., be defended, the commander of +<span class="newpage"><a name="page115" id="page115">[115]</a></span>the attacking forces should, before commencing a bombardment, +and except in the case of surprise, do all in his power to warn the +authorities."</p> + +<p>"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."</p> + +<p>"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."</p> + +<p>"ARTICLE 42.—Requisitions shall be made only by the authority +of the commandant of the locality occupied."</p></div> + +<p>These conclusions are substantially followed in the +chapter on the "Customs of War" contained in the <i>Manual +of Military Law</i> issued for the use of officers by the British +War Office.</p> + +<p>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 <i>a fortiori</i> +such as would have resulted from the anticipated shelling +during the night-time of the south coast of the Isle of Wight.</p> + +<p>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 +<span class="newpage"><a name="page116" id="page116">[116]</a></span>notwithstanding"? Are we, with Admiral Aube, to +speak of "cette monstrueuse association de mots: les +droits de la guerre"? If so, <i>cadit quæstio</i>, 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.</p> + +<p>The naval manœuvres have doubtless taught many +lessons of practical seamanship. They will have done +good service of another sort if they have brought to the +attention of responsible statesmen such questions as those +with which I have attempted to deal. It is essential that +the country should know the precise extent of the risks to +which our seaboard towns will be exposed in time of war, +and it is desirable that our naval forces should be warned +against any course of action, in their conduct of mimic +warfare, which could be cited against us, in case we should +ever have to complain of similar action on the part of a +real enemy.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, August 18 (1888).</div><br /> +<span class="newpage"><a name="page117" id="page117">[117]</a></span></div> + + +<p class="lettertitle"><a name="THE-NAVAL-MANOEUVRES-B" />THE NAVAL MANŒUVRES</p> + +<p>Sir,—In my first letter I called attention to certain +operations of the <i>Spider</i> 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 mediæval 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.</p> + +<p>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 <i>Manuel de Droit +International à l'Usage des Officiers de l'Armée de Terre</i>, +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:—</p> + +<div class="letterquot"><p>"What but the inordinate desire of popularity could have induced +<span class="newpage"><a name="page118" id="page118">[118]</a></span>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?"</p></div> + +<p>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."</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page119" id="page119">[119]</a></span>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 <i>The Times</i> 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.</p> + +<p>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 +<span class="newpage"><a name="page120" id="page120">[120]</a></span>properly undertaken by a naval squadron against an +undefended seaboard.</p> + +<div class="signature"> +<div class="sigbody">I am, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Llanfairfechan, August 27 (1888).</div><br /> +</div> + + +<p class="lettertitle"><a name="NAVAL-BOMBARDMENTS-OF-UNFORTIFIED-PLACES" />NAVAL BOMBARDMENTS OF UNFORTIFIED PLACES</p> + +<p>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—<i>viz.</i> +under what, if any, circumstances it is permissible +for a naval force to bombard an "open" coast town.</p> + +<p>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 <i>Règlement</i> 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 +<i>Règlement</i>, 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 +<span class="newpage"><a name="page121" id="page121">[121]</a></span>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" (<i>vœux</i>) 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."</p> + +<p>The topic is not a new one. You, Sir, allowed me +to raise it in your columns with reference to the naval +manœuvres of 1888, when a controversy ensued which +disclosed the existence of a considerable amount of naval +opinion in favour of practices which I ventured to think +in contravention of international law. It was also +thoroughly debated in 1896 at the Venice meeting of the +Institut de Droit International upon a report drafted by +myself, as chairman of a committee appointed a year +previously. This report lays down that the restrictions +placed by international law upon bombardments on land +apply also to those effected from the sea, except that such +operations are lawful for a naval force when undertaken +with a view to (1) obtaining supplies of which it is in need; +(2) destroying munitions of war or warships which may +be in a port; (3) punishing, by way of reprisal, violations +by the enemy of the laws of war. Bombardments for the +purpose of exacting a ransom or of putting pressure upon +the hostile Power by injury to peaceful individuals or their +property were to be unlawful. The views of the committee +were, in substance, adopted by the Institut, with the +omission only of the paragraph allowing bombardment by +way of reprisals.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, April 2 (1904).</div><br /> +</div> + +<div class="postnotes"><p>The "Hague Conference" and "Hague Convention" to which +reference was made in the last of these letters were, of course, those +of 1899.</p> + +<p>For the action taken by the Institut de Droit International in 1895 +<span class="newpage"><a name="page122" id="page122">[122]</a></span>and 1896, on the initiative of the present writer, see the <i>Annuaire de +l'Institut</i>, t. xiv p. 295, t. xv. pp. 145-151, 309, 317; and his +<i>Studies in International Law</i>, 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.</p> + +<p>The later growth of opinion has been in accordance with the views +maintained by the writer of these letters, and with the <i>Rapport</i> drafted +by him for the Institut. The Hague Conference of 1899, though +unable to discuss the subject, had registered a <i>væu</i> "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 <i>Parl. Paper, Miscell.</i> 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 <i>Acte Final</i> of the Conference further registers a <i>væu</i> 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." (<i>Parl. Paper, Miscell.</i> No. 1 (1908), p. 30.) This +Convention, No. iv. of 1907, in Art. 25 of the <i>Règlement</i> 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."</p> + +<p>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."<span class="newpage"><a name="page123" id="page123">[123]</a></span></p> + +<p>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.</p></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_15" />SECTION 15</h3> + +<p class="subsectionhead">Belligerent Reprisals</p> + + +<p class="lettertitle"><a name="REPRISALS-A" />REPRISALS</p> + +<p>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>i.e.</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 4 (1917).</div><br /> +<span class="newpage"><a name="page124" id="page124">[124]</a></span></div> + + +<p class="lettertitle"><a name="REPRISALS-B" />REPRISALS</p> + +<p>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.</p> + +<p>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, <i>viz.</i>: (1) of international law; +(2) of practical utility; (3) of morality and honour.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 9 (1917).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VI_SECTION_16" />SECTION 16</h3> + +<p class="subsectionhead">Peace</p> + + +<p class="lettertitle"><a name="UNDESIRABLE-PEACE-TALK" />UNDESIRABLE PEACE TALK</p> + +<p>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, +<span class="newpage"><a name="page125" id="page125">[125]</a></span>with reference to the terms of the treaty of peace by which +the world-war now raging will be brought to a close.</p> + +<p>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."</p> + +<p>Of the members of this committee (of thirteen), on +which Great Britain is represented only by Mr. Lowes +Dickenson (mistakenly described as a Cambridge Professor), +and America only by Mrs. Andrews, of Boston, the best +known are Professors Lammasch, of Vienna, and Schücking, +of Marburg. The "minimum programme" demands, <i>inter +alia</i>, "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 <i>provenance</i> 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?</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, October 16 (1915).</div><br /> +<span class="newpage"><a name="page126" id="page126">[126]</a></span></div> + + + +<hr style="width: 65%;" /> +<h2><a name="CHAPTER_VII" id="CHAPTER_VII" />CHAPTER VII</h2> + +<p class="chaptertitle">THE RIGHTS AND DUTIES OF NEUTRALS</p> + + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_1" />SECTION 1</h3> + +<p class="subsectionhead">The Criterion of Neutral Conduct</p> + +<div class="intronotes"><p>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.</p> + +<p>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.</p></div> + + +<p class="lettertitle"><a name="PROFESSOR-DE-MARTENS-ON-THE-SITUATION" />PROFESSOR DE MARTENS ON THE SITUATION</p> + +<p>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.</p> + +<p>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, +<span class="newpage"><a name="page127" id="page127">[127]</a></span>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.</p> + +<p>But what of the further <i>dictum</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 12 (1905).</div><br /> +</div> + + +<p class="lettertitle"><a name="NEUTRALS-AND-THE-LAWS-OF-WAR" />NEUTRALS AND THE LAWS OF WAR</p> + +<p>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 +<span class="newpage"><a name="page128" id="page128">[128]</a></span>upon the violations of international law by which those +injuries were brought about.</p> + +<p>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."</p> + +<p>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 <i>rebus inter alios actis</i>. +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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 28 (1915).</div><br /> +<span class="newpage"><a name="page129" id="page129">[129]</a></span></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_2" />SECTION 2</h3> + +<p class="subsectionhead">The Duties of Neutral States, and the Liabilities of Neutral +Individuals, distinguished</p> + +<div class="intronotes"> +<p>The duties of neutral States have been classified by the present +writer under the heads, of "Abstention," "Prevention," and "Acquiescence." +(<i>Transactions of the British Academy</i>, vol. ii, p. 55; reproduced +in the <i>Revue de Droit International</i>, the <i>Revista de Derecho International</i>, +and the <i>Marine Rundschau</i>.) 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, <i>e.g.</i> 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.</p> + +<p>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 "<i>In the absence of +special provisions to the contrary in the legislation of a neutral Power</i>, +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 +<span class="newpage"><a name="page130" id="page130">[130]</a></span>respective countries the <i>Status</i> of belligerent warships in their ports +laid waters."</p> + +<p>II. A neutral State is not bound to prevent such assistance being +rendered by its subjects to either belligerent as is involved in, <i>e.g.</i> +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.</p> + +<p>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 (<i>Annuaire</i>, +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 <i>not</i> 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."</p> +</div> + + +<p class="lettertitle"><a name="CONTRABAND-OF-WAR-1904" />CONTRABAND OF WAR</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page131" id="page131">[131]</a></span>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.</p> + +<p>Widely different from the above are the following three +topics, into the consideration of which discussions upon +contraband occasionally diverge:—</p> + +<p>1. The international duty of the neutral Government +not to allow its territory to become a base of belligerent +operations: <i>e.g.</i> 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 <i>Alabama</i>); 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.</p> + +<p>2. The powers conferred upon a Government by legislation +of restraining its subjects from intermeddling in a +war in which the Government takes no part. Of such +legislation our Foreign Enlistment Act is a striking example. +The large powers conferred by it have no commensurable +relation to the duties which attach to the position of +neutrality. Its effect is to enable the Government to pro<span class="newpage"><a name="page132" id="page132">[132]</a></span>hibit +and punish, from abundant caution, many acts on the +part of its subjects for which it would incur no international +liability. It does empower the Government to prevent the +use of its territory as a base: <i>e.g.</i> 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.</p> + +<p>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—<i>e.g.</i> +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."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, March 5 (1904).</div><br /> +</div> + + +<p class="lettertitle"><a name="COAL-FOR-THE-RUSSIAN-FLEET" />COAL FOR THE RUSSIAN FLEET</p> + +<p>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—<i>viz.</i> the shipment of contraband, +<span class="newpage"><a name="page133" id="page133">[133]</a></span>and the use of neutral territory as a base for belligerent +operations.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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, +<span class="newpage"><a name="page134" id="page134">[134]</a></span>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:</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 7 (1904).</div><br /> +<span class="newpage"><a name="page135" id="page135">[135]</a></span></div> + + +<p class="lettertitle"><a name="GERMAN-WAR-MATERIAL-FOR-TURKEY" />GERMAN WAR MATERIAL FOR TURKEY</p> + +<p>Sir,—The <i>Cologne Gazette</i> 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.</p> + +<p>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."</p> + +<p>The only fault to be found with the paragraph in the +<i>Cologne Gazette</i> 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 <i>Gazette</i> is not really under that impression.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 24 (1911).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_3" />SECTION 3</h3> + +<p class="subsectionhead">Neutrality Proclamations</p> + +<div class="intronotes"><p>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 <i>International +Law in the Russo-Chinese War</i> (1905), devoted to a consideration of +those criticisms.<span class="newpage"><a name="page136" id="page136">[136]</a></span></p></div> + + + +<p class="lettertitle"><a name="THE-BRITISH-PROCLAMATION-OF-NEUTRALITY-1904" />THE BRITISH PROCLAMATION OF +NEUTRALITY</p> + + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page137" id="page137">[137]</a></span>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 <i>Santissima Trinidad</i>, in President +Pierce's message of 1854, and in the statement by the +French Government in 1898, with reference to the case of +the <i>Fram</i>, that "the neutral State is not required to prevent +the sending of arms and ammunition by its subjects."</p> + +<p>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 <i>Ex parte Chavasse</i> (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 +<span class="newpage"><a name="page138" id="page138">[138]</a></span>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 28 (1904).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-BRITISH-PROCLAMATION-OF-NEUTRALITY-1904-B" />THE BRITISH PROCLAMATION OF +NEUTRALITY</p> + +<p>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.</p> + +<p>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.<span class="newpage"><a name="page139" id="page139">[139]</a></span></p> + +<p>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."</p> + +<p>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.</p> + +<p>The formula as it now stands, after the process of growth +already described, may be said to consist of seven parts—<i>viz.</i> +(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 +<span class="newpage"><a name="page140" id="page140">[140]</a></span>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."</p> + +<p>The question which I have ventured to raise is whether +the <i>textus receptus</i>, 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 5 (1904).</div><br /> +<span class="newpage"><a name="page141" id="page141">[141]</a></span></div> + + +<p class="lettertitle"><a name="THE-BRITISH-PROCLAMATION-OF-NEUTRALITY-1911" />THE BRITISH PROCLAMATION OF NEUTRALITY</p> + +<p>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.</p> + +<p>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 <i>Letters +upon War and Neutrality</i>, 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.</p> + +<p>The Proclamation just issued still answers to my description +of that of 1904, as consisting of seven parts—<i>viz.</i>: +(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.</p> + +<p>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 +<span class="newpage"><a name="page142" id="page142">[142]</a></span>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.</p> + +<p>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 <i>inter se</i>. 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">The Athenæum, October 9 (1911).</div><br /> +<span class="newpage"><a name="page143" id="page143">[143]</a></span></div> + + +<p class="lettertitle"><a name="THE-PROCLAMATION-OF-NEUTRALITY" />THE PROCLAMATION OF NEUTRALITY</p> + +<p>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?</p> + +<p>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.</p> + +<p>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—<i>viz.</i>, 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."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, October 31 (1911).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_4" />SECTION 4</h3> + +<p class="subsectionhead">Neutral Hospitality</p> + +<div class="intronotes"><p>The Hague Convention of 1907, No. xiii., not yet ratified by Great +Britain, suggests in Art. 12, with reference to the question here raised, +<span class="newpage"><a name="page144" id="page144">[144]</a></span>that "à défaut d'autres dispositions spéciales de la législation de la +Puissance neutre, il est interdit aux navires de guerre des belligérants +de demeurer dans les ports et rades ou dans les eaux territoriales de la +dite Puissance pendant plus de 24 heures sauf dans les cas prévues par +la présente Convention."</p></div> + + +<p class="lettertitle"><a name="BELLIGERENT-FLEETS-IN-NEUTRAL-WATERS" />BELLIGERENT FLEETS IN NEUTRAL WATERS</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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, <i>e.g.</i> the United States, +Egypt, China, Denmark, Sweden and Norway. So by<span class="newpage"><a name="page145" id="page145">[145]</a></span> +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:—</p> + +<div class="letterquot"><p>"(1) En aucun cas, un belligérant ne peut faire usage d'un port +Français, ou appartenant à un État protégé, dans un but de guerre, &c. +(2) La durée du séjour dans nos ports de belligérants, non accompagnés +d'une prise, n'a été limitée par aucune disposition spéciale; +mais pour être autorisés à y séjourner, ils sont tenus de se conformer +aux conditions ordinaires de la neutralité, qui peuvent se résumer ainsi +qu'il suit:—(<i>a</i>) ... (<i>b</i>) Les dits navires ne peuvent, <i>à l'aide de ressources +puisées à terre</i>, augmenter leur matériel de guerre, renforcer +leurs équipages, ni faire des enrôlements volontaires, même parmi +leurs nationaux. (<i>c</i>) Ils doivent s'abstenir de toute enquête sur les +forces, l'emplacement ou les ressources de leurs ennemis, ne pas +appareiller brusquement pour poursuivre ceux qui leur seraient signalés; +en un mot, s'abstenir de faire du lieu de leur résidence la base d'une +opération quelconque contre l'ennemi. (3) Il ne peut être fourni à un +belligérant que les vivres, denrées, et moyens de réparations nécessaires +à la subsistence de son équipage ou à la sécurité de sa navigation."</p></div> + +<p>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 <i>bonne volonté</i> 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<span class="newpage"><a name="page146" id="page146">[146]</a></span> +Hague Conference of 1899, and, more recently, by President +Roosevelt.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, April 20 (1905).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-APPAM" />THE APPAM</p> + +<p>Sir,—It is satisfactory to learn that the United States +Neutrality Board has decided adversely to the contention +that the <i>Appam</i> is a German ship of war. Her treatment +as a prize would then, <i>prima facie</i>, 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.</p> + +<p>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).</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February 4 (1916).</div><br /> +</div> + +<div class="postnotes"><p>Certain reservations on ratification do not affect Arts. 21 or 22.</p> + +<p>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 <i>Appam</i> was herself +<span class="newpage"><a name="page147" id="page147">[147]</a></span>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.</p></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_5" />SECTION 5</h3> + +<p class="subsectionhead">Carriage of Contraband. (Absolute and Conditional Contraband: +Continuous Voyages: Unqualified Captors: The Declaration of London)</p> + +<div class="intronotes"><p>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.</p> + + +<p class="subsectionhead">(Absolute and Conditional Contraband)</p> + +<p>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—<i>viz.</i> 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."</p> + +<p>An answer was thus supplied to the question suggested in this +letter, as to articles <i>ancipitis usus</i>.</p></div> + + +<p class="lettertitle"><a name="CONTRABAND-OF-WAR-1898" />CONTRABAND OF WAR</p> + +<p>Sir,—I fear that the mercantile community will hardly +profit so much as the managers of the Atlas Steamship Company +seem to expect by the information contained in their +letter which you print this morning. It was, indeed, un<span class="newpage"><a name="page148" id="page148">[148]</a></span>likely +that the courteous reply of the Assistant Secretary of +State at Washington to the enquiry addressed to him by +the New York agents of the company would contain a +declaration of the policy of the United States with reference +to contraband of war. The threefold classification of +"merchandise" (not of "contraband") quoted in the +reply occurs, in the judgment of the Supreme Court in the +well-known case of the <i>Peterhoff</i> (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.</p> + +<p>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 <i>ancipitis usus</i> ("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>i.e.</i> whether by confiscation or +merely by pre-emption.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 9 (1898).</div><br /> +</div> + +<div class="postnotes"><p>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.</p> + +<p>On foodstuffs, see the <i>Report of the Royal Commission on the Supply +of Food, &c., in Time of War</i>, 1905. <i>Cf.</i> also <i>infra.</i>, pp. <a href="#page174">174</a>, <a href="#page176">176</a>, <a href="#page177">177</a>. +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.</p> + +<p>The suggestion in the letter of February 20, 1904, that certain +words quoted from the Japanese instructions had been mistransmitted +<span class="newpage"><a name="page149" id="page149">[149]</a></span>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."</p> + +<p>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 <i>The Times</i> 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—<i>viz.</i> 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."</p> + +<p>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.</p></div> + + +<p class="lettertitle"><a name="IS-COAL-CONTRABAND-OF-WAR" />IS COAL CONTRABAND OF WAR?</p> + +<p>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 <i>The Times</i> 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 <i>ancipitis usus</i>, 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,<span class="newpage"><a name="page150" id="page150">[150]</a></span> +"for the enemy's army or navy, or in such cases where, <i>being +goods arriving, at enemy's territory</i>, there is reason to believe +that they are intended for use of enemy's army or navy."</p> + +<p>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."</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page151" id="page151">[151]</a></span>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, <i>ex +abundanti cautela</i>, as greatly to restrict what would otherwise +have been the legitimate trade of the company.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February 20 (1904).</div><br /> +</div> + + +<p class="lettertitle"><a name="COTTON-AS-CONTRABAND-OF-WAR-1905" />COTTON AS CONTRABAND OF WAR</p> + +<p>Sir,—The text of the decision of the Court of Appeal at +St. Petersburg in the case of the <i>Calchas</i> 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.</p> + +<p>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>i.e.</i> 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 +<span class="newpage"><a name="page152" id="page152">[152]</a></span>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 <i>Arabia</i> on December 14) +together with some other articles, among which it seemed +that raw cotton was not included.</p> + +<p>The final decision in the <i>Calchas</i> 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.</p> + +<p>The question had become a practical one in the case of +the <i>Calchas</i>. On July 25 this vessel, laden with, <i>inter alia</i>, +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 <i>Droit International</i>, t. iii (1887), +pp. 351-354, can scarcely be reconciled with her recent action.</p> + +<p>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 +<span class="newpage"><a name="page153" id="page153">[153]</a></span>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 +<i>Mrs. Alexander's Cotton</i>, 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."</p> + +<p>The decision of the Court of St. Petersburg in the case of +the <i>Calchas</i>, so far as it recognises the existence of a conditional +class of contraband, and that raw cotton, as <i>res +ancipitis usus</i>, must be treated in accordance with the rules +applicable to goods belonging to that class, has laid down an +unimpeachable proposition of law. Whether the view taken +by the Court of the facts of the case, so far as they relate to +the cotton cargo, is equally satisfactory, is a different and +less important question, upon which I refrain from troubling +you upon the present occasion.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +</div> + +<p>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 +<span class="newpage"><a name="page154" id="page154">[154]</a></span>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—<i>viz.</i> 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."</p> + +<div class="signature"> +T. E. H.<br /> +<div class="sigdate">Temple, July 1 (1905).</div><br /> +</div> + + +<p class="lettertitle"><a name="COTTON-AS-CONTRABAND-OF-WAR-1916" />COTTON AS CONTRABAND</p> + +<p>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"?</p> + +<p>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 +<span class="newpage"><a name="page155" id="page155">[155]</a></span>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, August 23 (1915).</div><br /> +</div> + + +<p class="lettertitle"><a name="JAPANESE-PRIZE-LAW-1905" />JAPANESE PRIZE LAW</p> + +<p>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.</p> + +<p>Your Correspondent observes that—</p> + +<div class="letterquot"><p>"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 +<span class="newpage"><a name="page156" id="page156">[156]</a></span>dealing with the various captured steamers, than the general principles +of the Treaty of Paris."</p></div> + +<p>Upon this paragraph let me remark:—</p> + +<p>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.)</p> + +<p>2. "The general principles" of that Declaration is a +phrase which conveys to me, I confess, no meaning.</p> + +<p>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.</p> + +<p>4. The existing prize law of Japan was promulgated on +March 7, 1904, not on August 20, 1894.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="newpage"><a name="page157" id="page157">[157]</a></span> +Powers within the circumference of the blockade"; but +that is a very different thing.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">The Athenæum, March 10 (1905).</div><br /> +</div> + + +<p class="lettertitle"><a name="JAPANESE-PRIZE-LAW-1915" />JAPANESE PRIZE LAW</p> + +<p>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, March 15 (1905).</div><br /> +</div> + +<p> </p> + +<p class="subsectionhead">(Continuous Voyages)</p> + +<div class="intronotes"><p>The opinion expressed in the letter which immediately follows, +that the American decisions, applying to carriage of contraband the +doctrine of "continuous voyages," seem to be "demanded by the +conditions of modern commerce, and might well be followed by a +British prize Court," was referred to by Lord Salisbury in a despatch +of January 10, 1900, to be communicated to Count von Bülow, with +reference to the seizure of <i>Bundesrath</i>. <i>Parl. Papers</i>, Africa, No. 1 +(1900), p. 19.</p> + +<p>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 <i>Yangtsze Insurance Association</i> +v. <i>Indemnity Mutual Marine Company</i>, [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.<span class="newpage"><a name="page158" id="page158">[158]</a></span> +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 <i>belligerents</i>, whether of <i>an +official</i> or a private character, found on board a <i>neutral</i> or enemy +ship on the High Seas is inviolable."</p> + +<p>The case of the <i>Allanton</i>, 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 <i>in dilecto</i> 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.</p> + +<p>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.</p></div> + + +<p class="lettertitle"><a name="PRIZE-LAW" />PRIZE LAW</p> + +<p>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 +<span class="newpage"><a name="page159" id="page159">[159]</a></span>responsible for the <i>Admiralty Manual of the Law of Prize</i>, 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.</p> + +<p>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—<i>viz.</i> 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.</p> + +<p>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 <i>Jonge +Margaretha</i> (1 Rob. 188); <i>cf.</i> Story, J., in the <i>Commercen</i> +(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 +<span class="newpage"><a name="page160" id="page160">[160]</a></span>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 <i>Haabet</i> (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"—<i>Imina</i> (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 <i>bona fide</i> 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—<i>Bermuda</i> (3 Wallace); <i>Peterhoff</i> +(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."</p> + +<p>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 <i>Orozembo</i> (6 Rob. 430) and <i>Atalanta</i> +(<i>ib.</i> 440). The alleged offence of the ship <i>Bundesrath</i> would +seem to be of this description.</p> + +<p>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 +<span class="newpage"><a name="page161" id="page161">[161]</a></span>towards neutral claimants, and prompt penetration of the +Protean disguises which illicit trade so readily assumes in +time of war.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, January 2 (1900).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-ALLANTON-A" />THE <i>ALLANTON (Continuous Voyage)</i></p> + +<p>Sir,—I venture to think that the letter which you +print this morning from my friend Dr. Baty, with reference +to the steamship <i>Allanton</i>, 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.</p> + +<p>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 <i>Doelwijk</i>, +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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, July 11 (1904).</div><br /> +<span class="newpage"><a name="page162" id="page162">[162]</a></span></div> + +<p> </p> +<p class="subsectionhead">(Unqualified Captors)</p> + +<div class="intronotes"><p>Among the objections raised by the British Government to the +capture by the Russian ship <i>Peterburg</i> in the Red Sea, on July 13, 1904, +of the P. and O. ss. <i>Malacca</i>, 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 <i>Malacca</i> 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.</p> + +<p>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 <i>Manuel des lois de la guerre maritime</i>, the drafting +of which occupied the whole of the session.</p></div> + + +<p class="lettertitle"><a name="THE-ALLANTON-B" />THE <i>ALLANTON (Unqualified Captors)</i></p> + +<p>Sir,—The indignation caused by the treatment of the +<i>Allanton</i> 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 <i>Malacca</i>, +equally strong steps should be taken for the release of the +<i>Allanton</i>"; 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.</p> + +<p>One would have supposed it to be notorious that the +<span class="newpage"><a name="page163" id="page163">[163]</a></span>facts which distinguish the one case from the other are, +first, that the capture of the <i>Malacca</i> 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 +<i>ab initio.</i></p> + +<p>I have not noticed any statement as to the actual constitution +of the prize Court concerned in the condemnation +of the <i>Allanton.</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, July 25 (1904).</div><br /> +</div> + +<p> </p> +<p class="subsectionhead">(Note upon the Declaration of London)</p> + +<div class="intronotes"><p>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, <i>Parl. +Paper, Miscell.</i> No. 1 (1908), p. 194.</p> + +<p>This task was accordingly among those undertaken at the Conference +of Maritime Powers held in London in 1908-1909, which resulted in +<span class="newpage"><a name="page164" id="page164">[164]</a></span>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, <i>infra</i>, pp. <a href="#page196">196</a>-207.</p></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_6" />SECTION 6</h3> + +<p class="subsectionhead">Methods of Warfare as affecting Neutrals</p> + +<p class="subsectionhead">(Mines)</p> + +<div class="intronotes"><p>On the views expressed in the first of the two letters which follow, +as also in the writer's British Academy paper on <i>Neutral Duties</i>, as +translated in the <i>Marine Rundschau</i>, see Professor von Martitz of +Berlin, in the <i>Transactions</i> 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 <i>Annuaire</i>, t. xxi. p. 330, t. xxii. p. 344, +t xxiii. p. 429, t. xxiv. pp. 286, 301.</p> + +<p>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."</p></div> + + +<p class="lettertitle"><a name="MINES-IN-THE-OPEN-SEA" />MINES IN THE OPEN SEA</p> + +<p>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 +<span class="newpage"><a name="page165" id="page165">[165]</a></span>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.</p> + +<p>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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 23 (1904).</div><br /> +<span class="newpage"><a name="page166" id="page166">[166]</a></span></div> + + +<p class="lettertitle"><a name="TERRITORIAL-WATERS" />TERRITORIAL WATERS</p> + +<p>Sir,—Most authorities would, I think, agree with +Admiral de Horsey that the line between "territorial +waters" and "the high sea" is drawn by international +law, if drawn by it anywhere, at a distance of three miles +from low-water mark. In the first place, the ridiculously +wide claims made, on behalf of certain States, by mediæval +jurists were cut down by Grotius to so much water as can +be controlled from the land. The Grotian formula was +then worked out by Bynkershoek with reference to the +range of cannon; and, finally, this somewhat variable test +was before the end of the eighteenth century, as we may +see from the judgments of Lord Stowell, superseded by +the hard-and-fast rule of the three-mile limit, which has +since received ample recognition in treaties, legislation, and +judicial decisions.</p> + +<p>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 <i>The Direct U.S. +Cable Co.</i> v. <i>Anglo-American Telegraph Co.</i> (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.</p> + +<p>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, <i>e.g.</i> by Professor de +Martens, that the distance shifts automatically in accord<span class="newpage"><a name="page167" id="page167">[167]</a></span>ance +with improvements in artillery. The whole matter +might well be included among the questions relating to +the rights and duties of neutrals, for the consideration of +which by a conference, to be called at an early date, a +wish was recorded by The Hague Conference, of 1899.</p> + +<p>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):—</p> + +<div class="letterquot"><p>"Art. 2.—La mer territoriale s'étend à six milles marins (60 au +degré de latitude) de la laisse de basse marée sur tout l'étendue des +côtes. Art. 3.—Pour les baies, la mer territoriale suit les sinuosités de la +côte, sauf qu'elle mesurée à partir d'une ligne droite tirée en travers +de la baie, dans la partie la plus rapprochée de l'ouverture vers la mer, +où l'écart entre les deux côtes de la baie est de douze milles marins +de largeur, à moins qu'un usage continu et séculaire n'ait consacré +une largeur plus grande. Art. 4.—En cas de guerre, l'état riverain +neutre a le droit de fixer, par la déclaration de neutralité, ou par +notification spéciale, sa zone neutre au dela de six milles, jusqu'à +portée du canon des côtes. Art. 5.—Tous les navires sans distinction +ont le droit de passage inoffensif par la mer territoriale, sauf le droit +des belligérants de règlementer et, dans un but de défense, de barrer le +passage dans la dite mer pour tout navire, et sauf le droit de neutres +de règlementer le passage dans la dite mer pour les navires de guerre +de toutes nationalités." (<i>Annuaire de l'Institut</i>, t. xiii. p. 329).</p></div> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, June 1 (1904).</div><br /> +</div> + +<div class="postnotes"><p>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.<span class="newpage"><a name="page168" id="page168">[168]</a></span></p></div> + +<p> </p> + +<p class="subsectionhead">(Cable-cutting)</p> + +<div class="intronotes"><p>With the letters which follow, compare the article by the present +writer on "Les cables sous-marins en temps de guerre," in the <i>Journal +de Droit International Privé</i>, 1898, p. 648.</p> + +<p>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 <i>Annuaire</i> for that year, pp. 301-332.</p> + +<p>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."</p> + +<p>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.</p></div> + + +<p class="lettertitle"><a name="SUBMARINE-CABLES" />SUBMARINE CABLES</p> + +<p>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 <i>Annuaire de l'Institut</i>, +1879-80, pp. 351-394). The conclusions ultimately adopted +by the Institut were as follows:—</p> + +<div class="letterquot"><p>"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.</p> + +<p>"2. A submarine-telegraph cable uniting two neutral territories +<span class="newpage"><a name="page169" id="page169">[169]</a></span>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."</p></div> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 23 (1881).</div><br /> +</div> + + +<p class="lettertitle"><a name="SUBMARINE-CABLES-IN-TIME-OF-WAR" />SUBMARINE CABLES IN TIME OF WAR</p> + +<p>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 <i>International</i> (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.</p> + +<p>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 +<span class="newpage"><a name="page170" id="page170">[170]</a></span>weight should have been given to the requirements of belligerents, +engaged possibly in a life-and-death struggle. "Ius +commerciorum æquum est," says Gentili; "at hoc æquius, +tuendæ salutis." There is accordingly no doubt that in +land warfare a belligerent may not only interrupt communications +by road, railway, post, or telegraph without giving +any ground of complaint to neutrals who may be thereby +inconvenienced, but may also lay hands on such neutral +property—shipping, railway carriages, or telegraphic plant—as +may be essential to the conduct of his operations, making +use of and even destroying it, subject only to a duty to +compensate the owners. This he does in pursuance of the +well-known "droit d'angarie," an extreme application of +which occurred in 1871, when certain British colliers were +sunk in the Seine by the Prussians in order to prevent the +passage of French gunboats up the river. Count Bismarck +undertook that the owners of the ships should be indemnified, +and Lord Granville did not press for anything further. +Such action, if it took place outside of belligerent territory, +would not be tolerated for a moment.</p> + +<p>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 +<span class="newpage"><a name="page171" id="page171">[171]</a></span>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 <i>terminus ad quem</i> is +enemy territory, subject only to a liability to indemnify +the neutral owners.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 21 (1897).</div><br /> +</div> + + +<p class="lettertitle"><a name="SUBMARINE-CABLES-IN-TIME-OF-WAR-B" />SUBMARINE CABLES IN TIME OF WAR</p> + +<p>Sir,—Will you allow me to refer in a few words to the +interesting letters upon the subject of submarine cables +which have been addressed to you by Mr. Parsoné and +Mr. Charles Bright? In asserting that "the question as to +the legitimacy of cable-cutting is covered by no precedent," +I had no intention of denying that belligerent interference +with cables had ever occurred. International precedents +are made by diplomatic action (or deliberate inaction) with +reference to facts, not by those facts themselves. To the +best of my belief no case of cable-cutting has ever been +made matter of diplomatic representation, and I understand +Mr. Parsoné to admit that no claim in respect of +damage to cables was presented to the mixed Commission +appointed under the Convention of 1883 between Great +Britain and Chile.<span class="newpage"><a name="page172" id="page172">[172]</a></span></p> + +<p>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:—</p> + +<div class="letterquot"><p>"Le câble télégraphique sous-marin qui unit deux territoires +neutres est inviolable.</p> + +<p>"Il est à désirer, quand les communications télégraphiques doivent +cesser par suite de l'état de guerre, que l'on se borne aux mesures +strictement nécessaires pour empêcher l'usage du cable, et qu'il soit mis +fin à ces mesures, ou que l'on en répare les consequences, aussitôt que +le permettra la cessation des hostilités."</p></div> + +<p>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.</p> + +<p>It may not be generally known that in 1864, before the +difficulties of the subject were thoroughly appreciated, a +convention was signed, though it never became operative, +by which Brazil, Hayti, Italy, and Portugal undertook to +recognise the "neutrality" in time of war of a cable to be +laid by one Balestrini. So, in 1869, the United States were +desirous of concluding a general convention which should +assimilate the destruction of cables in the high seas to +piracy, and should continue to be in force in time of war. +The Brussels conference of 1874 avoided any mention of +"câbles sous-marins."</p> + +<p>The moral of all that has been written upon this subject +is obviously that drawn by Mr. Charles Bright—<i>viz.</i> "the +<span class="newpage"><a name="page173" id="page173">[173]</a></span>urgent necessity of a system of cables connecting the +British Empire by direct and independent means—<i>i.e.</i> +without touching on foreign soil."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, June 3 (1897).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_7" />SECTION 7</h3> + +<p class="subsectionhead">Destruction of Neutral Prizes</p> + +<div class="intronotes"><p>A British ship, the <i>Knight Commander</i>, 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."</p> + +<p>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.</p> + +<p>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.</p> + +<p>The case of the <i>Knight Commander</i> 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.<span class="newpage"><a name="page174" id="page174">[174]</a></span></p> + +<p>The <i>Knight Commander</i> 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.</p> + +<p>The Institut de Droit International in its <i>Code des Prises maritimes</i>, +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 (<i>Annuaire</i> for 1888, t. ix. +p. 228; <i>cf. ib.</i> pp. 200, 201). (The <i>Manuel des lois de la guerre maritime</i>, +voted at Oxford in 1913, dealing exclusively with "les rapports +entre les belligérants," does not deal with the topic in question.) It +was, however, the opinion of the present writer, as will appear from +the following letters, that no rule of international law, by which the +sinking of even neutral prizes was absolutely prohibited, could be shown +to exist. He had previously touched upon this question in his evidence +before the Royal Commission on the Supply of Food, &c., in Time of +War, on November, 4, 1903, and returned to it later in his paper upon +"The Duties of Neutrals," read to the British Academy on April 12, +1905, <i>Transactions</i>, 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 <i>Knight Commander.</i></p> + +<p>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.</p></div> + + +<p class="lettertitle"><a name="RUSSIAN-PRIZE-LAW" />RUSSIAN PRIZE LAW</p> + +<p>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; +<span class="newpage"><a name="page175" id="page175">[175]</a></span>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.</p> + +<p>1. There is no doubt that by the Russian regulations +of 1895, Art. 21; and instructions of 1901, Art. 40, officers +are empowered to destroy their prizes at sea, no distinction +being drawn between neutral and enemy property, under +such exceptional circumstances as the bad condition or +small value of the prize, risk of recapture, distance from a +Russian port, danger to the Imperial cruiser or to the +success of her operations. The instructions of 1901, it may +be added, explain that an officer "incurs no responsibility +whatever" for so acting if the captured vessel is really +liable to confiscation and the special circumstances imperatively +demand her destruction. It is fair to say that not +dissimilar, though less stringent, instructions were issued +by France in 1870 and by the United States in 1898; also +that, although the French instructions expressly contemplate +"l'établissement des indemnités à attribuer aux +neutres," a French prize Court in 1870 refused compensation +to neutral owners for the loss of their property on board of +enemy ships burnt at sea.</p> + +<p>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 +<span class="newpage"><a name="page176" id="page176">[176]</a></span>the right of neutral owners to receive fall compensation +(<i>Actaeon</i>, 2 Dods. 48; <i>Felicity, ib.</i> 381; substantially +followed by Dr. Lushington in the <i>Leucade</i>, Spinks, 221). It +is not the case, as is alleged by the <i>Novoe Vremya</i>, that any +British regulations "contain the same provisions as the +Russian" on this subject. On the contrary, the Admiralty +Manual of 1888 allows destruction of enemy vessels only; +and goes so far in the direction of liberality as to order the +release, without ransom, of a neutral prize which either from +its condition, or from lack of a prize crew, cannot be sent +in for adjudication. The Japanese instructions of 1894 +permit the destruction of only enemy vessels; and Art. 50 +of the carefully debated "Code des prises" of the Institut +de Droit International is to the same effect. It may be +worth while to add that the eminent Russian jurist, M. de +Martens, in his book on international law, published some +twenty years ago, in mentioning that the distance of her +ports from the scenes of naval operations often obliges +Russia to sink her prizes, so that "ce qui les lois maritimes +de tous les états considèrent comme un moyen auquel il +n'y a lieu de recourir qu'à la dernière extrémité, se transformera +nécessairement pour nous en règle normale," foresaw +that "cette mesure d'un caractère général soulévera +indubitablement contre notre pays un mécontentement +universel."</p> + +<p>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 +<span class="newpage"><a name="page177" id="page177">[177]</a></span>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, August I (1904).</div><br /> +</div> + + +<p class="lettertitle"><a name="RUSSIAN-PRIZE-LAW-B" />RUSSIAN PRIZE LAW</p> + +<p>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 <i>Felicity</i>, +which decides only that, whatever may be the justification +for the destruction of a neutral prize, the neutral owner is +<span class="newpage"><a name="page178" id="page178">[178]</a></span>entitled, as against the captor, to full compensation for the +loss thereby sustained.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Eggishorn, Valais, Suisse, August 14 (1904).</div><br /> +</div> + + +<p class="lettertitle"><a name="RUSSIAN-PRIZE-LAW-C" />RUSSIAN PRIZE LAW</p> + +<p>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.</p> + +<p>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, <i>in the +absence of any indication to the contrary</i>, 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 "<i>at</i> page so-and-so."</p> + +<p>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, <i>after securing the ship's +papers, and subject to the right of the neutral owners to receive +full compensation</i>." 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 +<span class="newpage"><a name="page179" id="page179">[179]</a></span>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 <i>in extenso</i> the reports of the <i>Actaeon</i> (2 Dods. 48), +and the <i>Felicity</i> (<i>ib.</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Eggishorn, Suisse, August 26 (1904).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-SINKING-OF-NEUTRAL-PRIZES" />THE SINKING OF NEUTRAL PRIZES</p> + +<p>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:—</p> + +<p>1. There is no established rule of international law which +absolutely forbids, under any circumstances, the sinking of +a neutral prize. A <i>consensus gentium</i> 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.</p> + +<p>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.</p> + +<p>3. In the meantime, to adopt the language of the French +instructions, "On ne doit user de ce droit de destruction +<span class="newpage"><a name="page180" id="page180">[180]</a></span>qu'avec plus la grande réserve"; and it may well be that +any given set of instructions (<i>e.g.</i> the Russian) leaves on +this point so large a discretion to commanders of cruisers +as to constitute an intolerable grievance.</p> + +<p>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:—</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>It may be worth while to add that the published statements +on the subject for which I am responsible are contained +in the <i>Admiralty Manual of Prize Law</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Temple, June 29 (1905).</div><br /> +</div> + + +<div class="postnotes"><p>The Russian circular of April 3, 1906, inviting the Powers to a second +Peace Conference, included amongst the topics for discussion: "Destruction +par force majeure des bâtiments de commerce neutres arrêtés +comme prises," and the British delegates were instructed to urge the +acceptance of what their Government had maintained to be the existing +rule on the subject. The Conference of 1907 declined, however, to +define existing law, holding that its business was solely to consider what +should be the law in future. After long discussions, in the course of +which frequent reference was made to views expressed by the present +writer (see <i>Actes et Documents</i>, 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 (<i>vœu</i>) that this, and other un<span class="newpage"><a name="page181" id="page181">[181]</a></span>settled +points in the law of naval warfare, should be dealt with by a +subsequent Conference.</p> + +<p>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.</p> + +<p>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 <i>Parl. Paper, Miscell.</i> 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."</p></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_8" />SECTION 8</h3> + +<p class="subsectionhead">An International Prize Court</p> + +<div class="intronotes"><p>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.</p> + +<p>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.<span class="newpage"><a name="page182" id="page182">[182]</a></span></p></div> + + +<p class="lettertitle"><a name="AN-INTERNATIONAL-PRIZE-COURT" />AN INTERNATIONAL PRIZE COURT</p> + +<p>Sir—The idea suggested by the question addressed +on February 19 to the Government by Mr. A. Herbert—<i>viz.</i> +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.</p> + +<p>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 <i>Code des Prises maritimes</i>, finally +adopted at its Heidelberg meeting, in 1887, by the Institut +de Droit International. Art. 100 runs as follows:—</p> + +<div class="letterquot"><p>"Au début de chaque guerre, chacune des parties belligérantes +constitue un tribunal international d'appel en matière de prises +maritimes. Chacun de ces tribunaux est composé de cinq membres, +designés comme suit: L'état belligérant nommera lui-même le président +et un des membres. Il désignera en outre trois états neutres, +qui choisiront chacun un des trois autres membres."</p></div> + +<p>In the abstract, and supposing that a tribunal perfectly +satisfactory both to belligerents and neutrals could be +constituted, whether antecedently or <i>ad hoc</i>, there might be +much to be said for the proposal; subject, however, to one +condition—<i>viz.</i> 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 +<span class="newpage"><a name="page183" id="page183">[183]</a></span>doctrine of "continuous voyages," the right of sinking a +neutral prize, the moment from which a vessel becomes +liable for breach of blockade.</p> + +<p>Just as the <i>Alabama</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February 20 (1907).</div><br /> +</div> + + +<p class="lettertitle"><a name="A-NEW-PRIZE-LAW" />A NEW PRIZE LAW</p> + +<p>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.<span class="newpage"><a name="page184" id="page184">[184]</a></span></p> + +<p>The Conference may now be congratulated upon having +already given a <i>quietus</i> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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, <i>à propos</i> 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 +<span class="newpage"><a name="page185" id="page185">[185]</a></span>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 <i>Code des Prises maritimes</i>, 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.</p> + +<p>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:<span class="newpage"><a name="page186" id="page186">[186]</a></span> +"Le droit de visite ne serait exercé que pour constater le +caractère neutre du bâtiment de commerce." Does this +mean that the visiting officer, as soon as he has ascertained +from the ship's papers that she is neutral property, is to +make his bow and return to the cruiser whence he came? +If so, what has become of our existing right to detain any +vessel which has sailed for a blockaded port, or is carrying, +as a commercial venture, or even ignorantly, hostile troops +or despatches? No such definition as is proposed of an +"auxiliary ship-of-war" would safeguard the right in +question, since a ship, to come within that definition, must, +it appears, be under the orders of a belligerent fleet.</p> + +<p>I would venture to suggest that the motto of a reformer +of prize law should be <i>festina lente.</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, July 24 (1907).</div><br /> +</div> + + +<p class="lettertitle"><a name="A-NEW-PRIZE-LAW-B" />A NEW PRIZE LAW</p> + +<p>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, <i>à propos</i> 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.</p> + +<p>It would appear, from such imperfect information as +intermittently reaches Swiss mountain hotels, that a con<span class="newpage"><a name="page187" id="page187">[187]</a></span>viction +of the truth of this proposition is at length making +way among the delegates to The Hague Conference and +among observers of its doings. In a recent number of the +<i>Courrier de la Conférence</i>, a publication which cannot be +accused of lukewarmness in the advocacy of proposals for +the peaceful settlement of international differences, I find +an article entitled "Pas de Code Naval, pas de Cour des +Prises," to the effect that "l'acceptation de la Cour des +Prises est strictement conditionnelle à la rédaction du Code, +qu'elle aura à interpréter." Its decisions must otherwise +be founded upon the opinions of its Judges, "the majority +of whom will belong to a school which has never accepted +what Great Britain looks upon as the fundamental principles +of naval warfare." One learns also from other sources, +that efforts are being made to arrive, by a series of compromises, +at some common understanding upon the points +as to which the differences of view between the Powers are +most pronounced. It may, however, be safely predicted +that many years must elapse before any such result will +be achieved.</p> + +<p>In the meantime, a very different solution of the difficulty +has commended itself to the partisans of the proposed Court. +M. Renault, the accomplished Reporter of the committee +which deals in the first instance with the subject, after +stating that "sur beaucoup de points le droit de la guerre +maritime est encore incertain, et chaque État le formule +au gré de ses idées et de ses intérêts," lays down that, in +accordance with strict juridical reasoning, when international +law is silent an international Court should apply the law of +the captor. He is, nevertheless, prepared to recommend, +as the spokesman of the committee, that in such cases the +Judges should decide "d'après les +<ins class="correction" + title="Transcriber's note: Printed as _principles_ in original text."> +principes</ins> généraux de la +justice et de l'équité"—a process which I had, less complimentarily, +described as "evolving new rules out of their inner +consciousness." The Court, in pursuance of this confessedly +"hardie solution," would be called upon to "faire le droit."<span class="newpage"><a name="page188" id="page188">[188]</a></span></p> + +<p>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 +<i>ratio decidendi</i> 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.</p> + +<p>It is hardly necessary to combat the notion that there +already exists, <i>in nubibus</i>, 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 <i>dicta</i> 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 +<span class="newpage"><a name="page189" id="page189">[189]</a></span>who has to choose (as in the recent <i>Moray Firth</i> case) between +obedience to such rules and obedience to the legislative, +or quasi-legislative, acts of his own Government.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Eggishorn, Suisse, September 16 (1907).</div><br /> +</div> + + +<p class="lettertitle"><a name="A-NEW-PRIZE-LAW-C" />A NEW PRIZE LAW</p> + +<p>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.</p> + +<p>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 <i>a fortiori</i> to the ratification +of the Convention.</p> + +<p>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.</p> + +<p>I may add that it is surely too much to expect that +the rules in question will be discussed by the Powers, to +<span class="newpage"><a name="page190" id="page190">[190]</a></span>use Sir H. Campbell-Bannerman's phrase, "without any +political <i>arrière pensêe.</i>" Compromise between opposing +political interests must ever remain one of the most important +factors in the development of the law of nations.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, November 11 (1907).</div><br /> +</div> + +<div class="postnotes"><p>Although the establishment of an International Prize Court of +Appeal was not one of the topics included in the programme of the +Russian invitation; to a second Peace Conference, no objection was made +to its being taken into consideration, when proposals to that effect +were made by the British and American delegates to the Conference. +The idea seems first to have been suggested by Hübner, who proposed +to confer jurisdiction in cases of neutral prize on Courts composed +of ministers or consuls, accredited by neutrals to the belligerents, +together with commissioners appointed by the Sovereign of the captors +or of the country to which the prize has been brought, as also, perhaps, +"des personnes pleines de probité et de connaissances dans tout ce +qui concerne les Loix des Nations et les Traités des Puissances +modernes." The Court is to decide in accordance with treaties, "ou, +à leur défaut, la loi universelle des nations." <i>De la Saisie des Bâtiments +neutres</i> (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 <i>Code des Prises maritimes</i>, completed +in 1887, section 100.</p> + +<p>At the Conference of 1907, the work of several committees, and a +masterly report by Professor Renault, <i>Parl. Papers</i>, 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.</p> + +<p>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 +<i>Règlement</i>, relative to the laws and customs of maritime war, may be +mentioned in the programme of the next Conference."</p> + +<p>Thereupon, without waiting for the meeting of a third Hague +Conference, the British Government on February 27, 1908, addressed a +<span class="newpage"><a name="page191" id="page191">[191]</a></span>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."</p> + +<p>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.</p> + +<p>The Convention No. xii. of 1907 and the Declaration of London +of 1909 have alike failed to obtain ratification. <i>Cf.</i> now the two +immediately following sections, 9 and 10.</p> + +<p>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. <i>Cf. supra</i>, p. <a href="#page002">2</a>.</p></div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_9" />SECTION 9</h3> + +<p class="subsectionhead">The Naval Prize Bill</p> + +<div class="intronotes"><p>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. <i>supra</i>, p. <a href="#page036">36</a>. On the rejection of the Bill, see <i>ib.</i>, note 1.<span class="newpage"><a name="page192" id="page192">[192]</a></span></p></div> + + +<p class="lettertitle"><a name="THE-NAVAL-PRIZE-BILL-1910" />THE NAVAL PRIZE BILL</p> + +<p>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 <i>Manual of Naval Prise Law</i> 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.</p> + +<p>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.</p> + +<p>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.<span class="newpage"><a name="page193" id="page193">[193]</a></span></p> + +<p>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?</p> + +<p>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?</p> + +<p>But the question which, of all others <i>saute aux yeux</i>, +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.</p> + +<p>Is it too much of a counsel of perfection to suggest that +the debatable questions arising under the Convention of<span class="newpage"><a name="page194" id="page194">[194]</a></span> +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?</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, July 10 (1910).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-NAVAL-PRIZE-BILL-1911" />THE NAVAL PRIZE BILL</p> + +<p>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, +<span class="newpage"><a name="page195" id="page195">[195]</a></span>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 <i>obscurum per obscurius</i>, a +remedy worse than the disease."</p> + +<p>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?</p> + +<div class="signature"> +<div class="sigbody">Your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, July I (1911).</div><br /> +</div> + +<div class="postnotes"><p><i>Cf.</i> a letter of July 7, 1911, <i>supra</i>, p. <a href="#page036">36</a>.</p></div> + + +<p class="lettertitle"><a name="NAVAL-PRIZE-MONEY" />NAVAL PRIZE MONEY</p> + +<p>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.</p> + +<p>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 +<span class="newpage"><a name="page196" id="page196">[196]</a></span>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 <i>coup de grâce</i> 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, May 23 (1918).</div><br /> +</div> + +<hr style='width: 45%;' /> + +<h3 class="sectionhead"><a name="CHAPTER_VII_SECTION_10" />SECTION 10</h3> + +<p class="subsectionhead">The Declaration of London</p> + +<div class="intronotes"><p>For incidental mentions of the Declaration in earlier sections see +<i>supra</i>, pp. <a href="#page022">22</a>, <a href="#page022">36</a>, <a href="#page022">39</a>, <a href="#page055">55</a>, <a href="#page058">58</a>, <a href="#page080">80</a>, <a href="#page090">90</a>, <a href="#page092">92</a>, <a href="#page148">148</a>, <a href="#page154">154</a>, <a href="#page155">155</a>, <a href="#page156">156</a>, <a href="#page158">158</a>, +<a href="#page163">163</a>, <a href="#page164">164</a>, <a href="#page174">174</a>, <a href="#page181">181</a>, <a href="#page191">191</a>, <a href="#page193">193</a>, <a href="#page194">194</a>, <a href="#page195">195</a>, <a href="#page196">196</a>.</p> + +<p>See also my paper upon <i>Proposed Changes in the Law of Naval Prize</i>, +read to the British Academy on May 31, 1911, <i>Transactions</i>, vol. v., +of which a translation appeared in the <i>Revue de Droit International</i>, +N.S., t. xiii, pp. 336-355.</p></div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-LONDON-1909" />THE DECLARATION OF LONDON</p> + +<p>Sir,—The questions put last night by Mr. M'Arthur need, +perhaps, more fully considered answers than they received +from Mr. McKinnon Wood.</p> + +<p>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 +<span class="newpage"><a name="page197" id="page197">[197]</a></span>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."</p> + +<p>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—<i>e.g.</i> 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.</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, March 30 (1909).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-LONDON-1910" />THE DECLARATION OF LONDON</p> + +<p>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<span class="newpage"><a name="page198" id="page198">[198]</a></span> +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 <i>The Times</i> of yesterday, although +it contains some statements the inaccuracy of which it +may be desirable at once to point out.</p> + +<p>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 <i>rapport</i> (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.</p> + +<p>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 <i>transitoires</i>, 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 <i>ipso +facto</i> cease to be obligatory between its signatories on their +becoming belligerent.</p> + +<p>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 +<span class="newpage"><a name="page199" id="page199">[199]</a></span>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"?</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 28 (1910).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-LONDON-1911" />THE DECLARATION OF LONDON</p> + +<p>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.</p> + +<p>There is, however, a preliminary question upon which, +with your permission, I should like to say a few words. +My friend justly observes that in dealing with the Declaration +"the first necessity is to know what it is that we have +before us"; and he devotes his letter of January 31 to +maintaining that the Declaration must be read as interpreted +by the explanations of it given to the full Conference +by the Drafting Committee, of which M. Renault was presi<span class="newpage"><a name="page200" id="page200">[200]</a></span>dent. +Professor Westlake supports his opinion by a quotation +from the reply of the Foreign Office in November last to +the Edinburgh Chamber of Commerce (<i>Miscell.</i> 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:—</p> + +<div class="letterquot"><p>"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." (<i>Miscell.</i> 1909, No. 4, p. 94.)</p></div> + +<p>It is desirable to know upon what authority this statement +rests. I am aware of none. The nearest approach to +an assertion of anything like it occurred at The Hague +Conference of 1899, when the "approval" accorded to +"the work of the Second Committee, as embodied in the +articles voted and in the interpretative Report which +accompanies them" was alleged by M. de Martens to +amount to an acceptance of the Report "comme un commentaire +interprétatif authentique des articles votés." +(<i>Miscell.</i> 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</p> + +<div class="letterquot"><p>"Un commentaire précis, dégagé de tout controverse, qui, devenu +commentaire officiel par l'approbation de la Conférence, soit de nature +à guider les autorités diverses, administratives, militaires, judiciaires, +qui pourront avoir à l'appliquer." (<i>Miscell.</i> 1909, No. 5, p. 344.)</p></div> + +<p>It would seem that in each of these cases the adoption +of the Report, and even a suggestion or two for a change +<span class="newpage"><a name="page201" id="page201">[201]</a></span>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.</p> + +<p>So far as Governments are concerned, the adoption of a +Report by their Delegates is <i>res inter alios acta</i>. 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:—</p> + +<div class="letterquot"><p>"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);</p></div> + +<p>and Professor Fiore, of Naples, to the effect that what is +called "authentic interpretation" is not</p> + +<div class="letterquot"><p>"interpretazione propriamente detta, ma una dichiarazione di quello +che fu gia concordato, o un nuovo trattato" (Diritto Internazionale, +ss. 1, 118);</p></div> + +<p>and that</p> + +<div class="letterquot"><p>"il trattato non può essere interpretato che dalle stesse Parti (<i>i.e.</i> Stati) +contrahenti; e per la validità dell' atto è indispensabile che la relativa +convenzione di interpretazione abbia gli stessi requisiti ... di ogni +altra convenzione tra Stato e Stato" (Il Dir. Int. Codif., § 816).</p></div> + +<p>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 +<span class="newpage"><a name="page202" id="page202">[202]</a></span>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.</p> + +<p>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.</p> + +<p>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?</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February 16 (1911).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-LONDON-1911-B" />THE DECLARATION OF LONDON</p> + +<p>Sir,—Professor Westlake, replying in <i>The Times</i> 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 +<span class="newpage"><a name="page203" id="page203">[203]</a></span>ratified agreement being <i>res inter alios acta</i>. 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."</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, February 25 (1911).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-LONDON-1911-C" />THE DECLARATION OF LONDON</p> + +<p>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 +<i>obscurum per obscurius</i>, a remedy worse than the disease.</p> + +<p>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<span class="newpage"><a name="page204" id="page204">[204]</a></span> +"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."</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, March 1 (1911).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-LONDON-1915" />THE DECLARATION OF LONDON</p> + +<p>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.</p> + +<p>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 +<i>en bloc</i> 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.</p> + +<p>To put an end to this confusion, I venture to suggest +that, in concert with our Allies, the Declaration should be +<span class="newpage"><a name="page205" id="page205">[205]</a></span>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.</p> + +<p>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?</p> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, December 3 (1915).</div><br /> +</div> + + +<p class="lettertitle"><a name="THE-DECLARATION-OF-LONDON-1916" />THE DECLARATION OF LONDON</p> + +<p>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.</p> + +<p>Its admirers have, however, too long preserved it, +perhaps <i>sub spe rati</i>, in a state of suspended animation, +<span class="newpage"><a name="page206" id="page206">[206]</a></span>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.</p> + +<p>In December last I accordingly wrote as follows:—</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>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.</p> + +<p>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 (<i>h</i>) 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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +Brighton, July <span class="newpage"><a name="page207" id="page207">[207]</a></span>9 (1916).<br /> +</div> + +<div class="postnotes"><p>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.</p> + +<p>On misuses of the term "Declaration" <i>cf. supra</i>, pp. <a href="#page090">90</a>, <a href="#page091">91</a>, <a href="#page092">92</a>.</p></div> + + +<p class="lettertitle"><a name="GERMANY-WRONG-AGAIN" />GERMANY WRONG AGAIN</p> + +<p>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:—</p> + +<div class="letterquot"><p>"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."</p></div> + +<p>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.</p> + +<div class="signature"> +<div class="sigbody">I am, Sir, your obedient servant,</div><br /> +<div class="signame">T. E. HOLLAND</div><br /> +<div class="sigdate">Oxford, January 13 (1917).</div><br /> +<span class="newpage"><a name="page208" id="page208">[208]</a></span> +<span class="newpage"><a name="page209" id="page209">[209]</a></span></div> + + + +<hr style="width: 65%;" /> +<h2><a name="INDEX" id="INDEX" />INDEX</h2> + + +<div class="index"> +Absolute contraband. <i>See</i> Contraband<br /> +Abstention, <a href="#page129">129</a><br /> +Acquiescence, State duty of, <a href="#page129">129</a>, <a href="#page130">130</a>, <a href="#page133">133</a>, <a href="#page136">136</a><br /> +<i>Actæon</i>, the, <a href="#page176">176</a>, <a href="#page179">179</a><br /> +Acts of Parliament, <a href="#page061">61</a>, <a href="#page063">63</a><br /> +Admiralty Manual of Prize Law, <a href="#page156">156</a>, <a href="#page159">159</a>, <a href="#page192">192</a><br /> +Aerial warfare, <a href="#page061">61</a><br /> +Air, opposite views as to rights over, <a href="#page064">64</a>, <a href="#page065">65</a><br /> +Aircraft in war, <a href="#page069">69</a><br /> +<i>Alabama</i>, the, <a href="#page131">131</a>, <a href="#page183">183</a><br /> +<i>Alexander, Mrs., the cotton of</i>, <a href="#page153">153</a><br /> +Alien enemies, civil disabilities of, <a href="#page047">47</a>, <a href="#page049">49</a>, <a href="#page205">205</a><br /> +<i>Allanton</i>, the, <a href="#page158">158</a>, <a href="#page161">161</a>, <a href="#page162">162</a>, <a href="#page163">163</a><br /> +<i>Ancipitis usus</i>, articles, <a href="#page148">148</a><br /> +<i>Angarie, Droit d'</i>, <a href="#page170">170</a><br /> +<i>Appam</i>, the, <a href="#page146">146</a><br /> +<i>Arabia</i>, the, <a href="#page152">152</a><br /> +Arbitration, <a href="#page001">1</a>-6, <a href="#page184">184</a><br /> +<span class="indexsubentry">treaties, general, <a href="#page006">6</a>, <a href="#page007">7</a></span><br /> +<span class="indexsubentry">treaties, limited, <i>ib.</i></span><br /> +<span class="indexsubentry">cases fit for, <a href="#page005">5</a></span><br /> +<span class="indexsubentry">the Hague tribunal of, <a href="#page005">5</a></span><br /> +Armaments, limitation of, <a href="#page184">184</a><br /> +Armed civilians, <a href="#page077">77</a><br /> +<span class="indexsubentry">Neutralities, the, <a href="#page083">83</a></span><br /> +Army, duties of, <a href="#page077">77</a><br /> +Article <a href="#page023">23</a> (h), <a href="#page047">47</a>, <a href="#page049">49</a>, <a href="#page206">206</a>, <a href="#page207">207</a><br /> +<span class="indexsubentry">restricting application, <a href="#page146">146</a></span><br /> +Aspirations, <a href="#page099">99</a><br /> +Assassination, <a href="#page093">93</a><br /> +<i>Asturias</i>, the, <a href="#page060">60</a><br /> +Asylum to belligerent warships, <a href="#page129">129</a>, <a href="#page143">143</a><br /> +<i>Atalanta</i>, the, <a href="#page160">160</a><br /> +Aube, Admiral, <a href="#page116">116</a><br /> +Authentic interpretation, <a href="#page107">107</a>, <a href="#page196">196</a>, <a href="#page199">199</a>, <a href="#page201">201</a>, <a href="#page205">205</a><br /> +<br /> +<br /> +Baden-Powell, Sir G., <a href="#page081">81</a>, <a href="#page085">85</a>, <a href="#page087">87</a><br /> +Baker, Sir Sherston, <a href="#page085">85</a><br /> +Balfour, Mr. A.J., <a href="#page013">13</a>, <a href="#page015">15</a>, <a href="#page073">73</a>, <a href="#page074">74</a>, <a href="#page173">173</a><br /> +Balloons, projectiles from, <a href="#page030">30</a>, <a href="#page062">62</a><br /> +Base of operations, neutral duty as to, <a href="#page129">129</a>, <a href="#page134">134</a>, <a href="#page144">144</a>, <a href="#page145">145</a><br /> +Baty, Dr. T., <a href="#page161">161</a><br /> +Bays, <a href="#page166">166</a>, <a href="#page167">167</a><br /> +Belligerents, lawful, <a href="#page073">73</a>, <a href="#page075">75</a>, <a href="#page076">76</a>, <a href="#page077">77</a>, <a href="#page078">78</a>, <a href="#page079">79</a><br /> +Beresford, Lord Charles, <a href="#page118">118</a><br /> +<i>Bermuda</i>, the, <a href="#page160">160</a><br /> +Bills criticised, <a href="#page036">36</a>-40, <a href="#page047">47</a>, <a href="#page192">192</a><br /> +Birkenhead, Lord, <a href="#page135">135</a><br /> +Bismarck, Prince, <a href="#page170">170</a><br /> +Bliss, Sir H., <a href="#page150">150</a><br /> +Blockade,<br /> +<span class="indexsubentry">belligerent, <a href="#page029">29</a>, <a href="#page083">83</a>, <a href="#page156">156</a></span><br /> +<span class="indexsubentry">fictitious, <a href="#page057">57</a>, <a href="#page059">59</a></span><br /> +<span class="indexsubentry">pacific, <a href="#page009">9</a>-14, <a href="#page017">17</a></span><br /> +Bluntschli's reply to Von Moltke, <a href="#page026">26</a><br /> +Bombardment, <a href="#page062">62</a><br /> +<span class="indexsubentry">of open coast towns, <a href="#page030">30</a>, <a href="#page062">62</a></span><br /> +<span class="indexsubentry">from the air, <a href="#page112">112</a>, <a href="#page123">123</a></span><br /> +Bondholders, foreign, vindication of rights of, <a href="#page015">15</a><br /> +Bowles, Mr. Gibson, <a href="#page054">54</a>, <a href="#page087">87</a>, <a href="#page089">89</a>, <a href="#page090">90</a>, <a href="#page092">92</a>, <a href="#page141">141</a>, <a href="#page173">173</a>, <a href="#page177">177</a>, <a href="#page178">178</a>, <a href="#page198">198</a><br /> +Brandschatz, <a href="#page117">117</a><br /> +Brassard, effect of a, <a href="#page079">79</a><br /> +Bright, Sir Charles, <a href="#page171">171</a>, <a href="#page172">172</a><br /> +British Academy, author's paper at, <a href="#page174">174</a><br /> +British Manual of Military Law, <a href="#page074">74</a><br /> +<span class="indexsubentry">Handbooks on War on Land, <a href="#page075">75</a>, <a href="#page076">76</a></span><br /> +Brodrick, Mr., <a href="#page075">75</a><br /> +<i>Brown</i> v. <i>United States</i>, <a href="#page045">45</a><br /> +Brusa, Prof., <a href="#page130">130</a><br /> +Brussels Conference, the, of 1874, <a href="#page068">68</a>, <a href="#page074">74</a>, <a href="#page077">77</a>, <a href="#page114">114</a>, <a href="#page172">172</a><br /> +Bullets,<br /> +<span class="indexsubentry">expanding, <a href="#page022">22</a>, <a href="#page094">94</a>, <a href="#page096">96</a></span><br /> +<span class="indexsubentry">explosive, <a href="#page022">22</a>, <a href="#page094">94</a>, <a href="#page095">95</a></span><br /> +<span class="indexsubentry">in savage warfare, <a href="#page094">94</a></span><br /> +<i>Bundesrath</i>, the, <a href="#page029">29</a>, <a href="#page157">157</a>, <a href="#page160">160</a><br /> +Butler, General B.F., <a href="#page153">153</a><br /> +Bynkershoek, <a href="#page045">45</a>, <a href="#page071">71</a>, <a href="#page165">165</a>, <a href="#page166">166</a><br /> +<br /> +<br /> +Cable-cutting, <a href="#page030">30</a>, <a href="#page168">168</a>-173<br /> +Cables, submarine, <a href="#page168">168</a><br /> +Campbell-Bannerman, Sir H., <a href="#page189">189</a><br /> +Captors, unqualified, <a href="#page071">71</a>, <a href="#page073">73</a>, <a href="#page162">162</a>, <a href="#page163">163</a><br /> +Carson, Sir Edward, <a href="#page127">127</a><br /> +Cavell, Miss, case of, <a href="#page079">79</a><br /> +<i>Calchas</i>, the, <a href="#page151">151</a>, <a href="#page152">152</a>, <a href="#page153">153</a><br /> +Cecil, Lord Robert, <a href="#page008">8</a>, <a href="#page207">207</a><br /> +Channel tunnel, <a href="#page042">42</a><br /> +<i>Chavasse, ex parte</i>, <a href="#page137">137</a><br /> +Civilians armed, position of, <a href="#page077">77</a>, <a href="#page078">78</a>, <a href="#page079">79</a><br /> +Churchill, Mr. Winston, <a href="#page106">106</a><br /> +Claims, competitive, <a href="#page017">17</a><br /> +Clarke, Sir Edward, <a href="#page124">124</a><br /> +Clode, Mr., <a href="#page112">112</a><br /> +Closed localities, <a href="#page050">50</a><br /> +Clothing, use of enemy, <a href="#page075">75</a><br /> +Coal, <a href="#page176">176</a><br /> +<span class="indexsubentry">conditional contraband, <a href="#page149">149</a></span><br /> +<span class="indexsubentry">for belligerent fleet, <a href="#page131">131</a>, <a href="#page134">134</a></span><br /> +Coast fishing vessels, <a href="#page030">30</a><br /> +Codification of laws of war, <a href="#page022">22</a>, <a href="#page023">23</a><br /> +Cohen, Mr. Arthur, <a href="#page047">47</a>, <a href="#page203">203</a><br /> +Coltman, Mr., <a href="#page085">85</a><br /> +Commencement of war, <a href="#page041">41</a><br /> +<i>Commercen</i>, the, <a href="#page159">159</a><br /> +Commissioning on the High Seas, <a href="#page090">90</a><br /> +Commissions of enquiry, <a href="#page004">4</a><br /> +Compromise, the, between belligerent and neutral rights, <a href="#page133">133</a>, <a href="#page136">136</a>, <a href="#page164">164</a>, <a href="#page169">169</a><br /> +Conditional contraband. <i>See</i> Contraband<br /> +Conduct of warfare between belligerents, <a href="#page050">50</a><br /> +Conflict of Laws, <a href="#page034">34</a>, <a href="#page035">35</a><br /> +Continuous voyages, <a href="#page029">29</a>, <a href="#page157">157</a>, <a href="#page162">162</a>, <a href="#page183">183</a><br /> +"Contraband, a happy little," <a href="#page153">153</a><br /> +Contraband of war,<br /> +<span class="indexsubentry">what it is, <a href="#page130">130</a>, <a href="#page134">134</a>, <a href="#page159">159</a>, <a href="#page175">175</a></span><br /> +<span class="indexsubentry">absolute and conditional, <a href="#page147">147</a>, <a href="#page151">151</a>, <a href="#page152">152</a>, <a href="#page154">154</a>, <a href="#page158">158</a></span><br /> +<span class="indexsubentry">British proposal to abolish doctrine of, <a href="#page163">163</a>, <a href="#page184">184</a>, <a href="#page185">185</a></span><br /> +<span class="indexsubentry">coal, how far, <a href="#page132">132</a>, <a href="#page134">134</a>, <a href="#page149">149</a>, <a href="#page176">176</a></span><br /> +<span class="indexsubentry">cotton, how far, <a href="#page151">151</a>, <a href="#page152">152</a>, <a href="#page177">177</a></span><br /> +<span class="indexsubentry">food-stuffs, how far, <a href="#page176">176</a>, <a href="#page185">185</a></span><br /> +<span class="indexsubentry">Japanese rules as to, <a href="#page149">149</a>, <a href="#page155">155</a>, <a href="#page156">156</a></span><br /> +<span class="indexsubentry">misuse of the term, <a href="#page134">134</a></span><br /> +<span class="indexsubentry">no neutral duty to prohibit export of, <a href="#page113">113</a>, <a href="#page140">140</a></span><br /> +<span class="indexsubentry">Russian rules as to, <a href="#page154">154</a>, <a href="#page176">176</a></span><br /> +<span class="indexsubentry">the Declaration of London as to, <a href="#page164">164</a></span><br /> +<span class="indexsubentry">the two constituents of, <a href="#page159">159</a></span><br /> +Contractual debts, <a href="#page021">21</a><br /> +Contributions, <a href="#page102">102</a>, <a href="#page118">118</a><br /> +Conventions. <i>See</i> Geneva, Hague, &c.<br /> +<span class="indexsubentry">and Legislation, <a href="#page036">36</a></span><br /> +<span class="indexsubentry">"transitoires," <a href="#page198">198</a></span><br /> +Conversion. <i>See</i> Transformation<br /> +Convoy, <a href="#page031">31</a><br /> +Cotton, <a href="#page177">177</a><br /> +<span class="indexsubentry">as contraband, <a href="#page149">149</a>, <a href="#page151">151</a>, <a href="#page152">152</a></span><br /> +Court of International Justice, a permanent, <a href="#page002">2</a>, <a href="#page191">191</a><br /> +Criticism of Bills, <a href="#page036">36</a>-40, <a href="#page192">192</a><br /> +Customs Consolidation Act, <a href="#page185">185</a>3, <a href="#page132">132</a><br /> +<br /> +<br /> +Danger zone, a, <a href="#page059">59</a><br /> +Dardanelles, closing of, <a href="#page055">55</a>, <a href="#page058">58</a>, <a href="#page080">80</a>, <a href="#page090">90</a>, <a href="#page092">92</a><br /> +"Declaration," misuse of the term, <a href="#page090">90</a>, <a href="#page092">92</a>, <a href="#page206">206</a><br /> +Declaration, the, of London, <a href="#page022">22</a>, <a href="#page036">36</a>, <a href="#page039">39</a>, <a href="#page080">80</a>, <a href="#page092">92</a>, <a href="#page147">147</a>, <a href="#page149">149</a>, <a href="#page154">154</a>, <a href="#page155">155</a>, <a href="#page158">158</a>, <a href="#page161">161</a>, <a href="#page163">163</a>, <a href="#page164">164</a>, <a href="#page181">181</a>, <a href="#page191">191</a>, <a href="#page193">193</a>-207<br /> +<span class="indexsubentry">provisional adoption of, as modified, <a href="#page154">154</a>, <a href="#page204">204</a></span><br /> +<span class="indexsubentry">rejection of, <a href="#page206">206</a>, <a href="#page207">207</a></span><br /> +Declaration, the, of Paris, <a href="#page022">22</a>, <a href="#page026">26</a>, <a href="#page057">57</a>, <a href="#page059">59</a>, <a href="#page080">80</a>, <a href="#page081">81</a>, <a href="#page082">82</a>, <a href="#page083">83</a>, <a href="#page087">87</a>, <a href="#page089">89</a>, <a href="#page156">156</a>, <a href="#page198">198</a><br /> +<span class="indexsubentry">accession to, of Spain and Mexico, <a href="#page081">81</a>, <a href="#page086">86</a>, <a href="#page087">87</a>, <a href="#page088">88</a>, <a href="#page089">89</a>, <a href="#page091">91</a></span><br /> +Declaration, the, of St. Petersburg, <a href="#page022">22</a>, <a href="#page027">27</a>, <a href="#page091">91</a>, <a href="#page095">95</a>, <a href="#page096">96</a>, <a href="#page097">97</a><br /> +<span class="indexsubentry">von Moltke upon, <a href="#page025">25</a></span><br /> +Declaration of war, <a href="#page010">10</a>, <a href="#page041">41</a>, <a href="#page043">43</a><br /> +Declarations,<br /> +<span class="indexsubentry">mistaken view as to their not needing ratification, <a href="#page090">90</a>, <a href="#page091">91</a></span><br /> +<span class="indexsubentry">the three, of the Hague in 1899. <i>See</i> Hague</span><br /> +De Horsey, Admiral, <a href="#page118">118</a>, <a href="#page164">164</a><br /> +De Joinville, Prince, <a href="#page117">117</a><br /> +De Martens, Prof., <a href="#page162">162</a>, <a href="#page166">166</a>, <a href="#page176">176</a>, <a href="#page200">200</a><br /> +Deposit of delict, <a href="#page158">158</a><br /> +Despatches, enemy, <a href="#page156">156</a>, <a href="#page158">158</a>, <a href="#page160">160</a><br /> +Destination, <a href="#page008">8</a>, <a href="#page155">155</a>, <a href="#page156">156</a><br /> +Destruction of neutral prizes, <a href="#page022">22</a>, <a href="#page173">173</a>-181<br /> +Dickenson, Mr. Lowes, <a href="#page125">125</a><br /> +<i>Direct U.S. Cable Co.</i> v. <i>Anglo-American Tel. Co.</i>, <a href="#page166">166</a><br /> +Disguise, <a href="#page075">75</a>, <a href="#page076">76</a><br /> +Distinctive marks, <a href="#page077">77</a>, <a href="#page079">79</a><br /> +<i>Doelwijk</i>, the, <a href="#page161">161</a><br /> +Drago doctrine, the, <a href="#page020">20</a><br /> +<i>Droit d'angarie</i>, the, <a href="#page170">170</a><br /> +Dum-dum bullet. <i>See</i> Bullets<br /> +<i>Durward</i>, the, <a href="#page060">60</a><br /> +<br /> +<br /> +Embargo, <a href="#page011">11</a><br /> +Enemy,<br /> +<span class="indexsubentry">who is an ?, <ins class="correction" + title="Transcriber's note: Misprinted in original--intended page is not clear.">401</ins></span><br /> +<span class="indexsubentry">disabilities of, <a href="#page047">47</a>, <a href="#page049">49</a>, <a href="#page206">206</a></span><br /> +<span class="indexsubentry">goods in neutral bottoms, <a href="#page083">83</a></span><br /> +<span class="indexsubentry">in occupied territory, <a href="#page102">102</a></span><br /> +<span class="indexsubentry">merchant vessels at outbreak, <a href="#page045">45</a>, <a href="#page049">49</a></span><br /> +<span class="indexsubentry">property on land, <a href="#page102">102</a></span><br /> +<span class="indexsubentry">property at sea, <a href="#page029">29</a>, <a href="#page104">104</a>, <a href="#page184">184</a></span><br /> +<span class="indexsubentry">resident at outbreak, <a href="#page044">44</a></span><br /> +<span class="indexsubentry">service, <a href="#page157">157</a>, <a href="#page158">158</a>, <a href="#page186">186</a></span><br /> +"Englishman's Home, An," the play, <a href="#page077">77</a><br /> +Enquiry, international Commissions of, <a href="#page001">1</a>, <a href="#page003">3</a>, <a href="#page004">4</a>, <a href="#page006">6</a><br /> +Evans, Sir Samuel, <a href="#page070">70</a><br /> +<br /> +<br /> +False colours, <a href="#page030">30</a>, <a href="#page043">43</a>, <a href="#page076">76</a><br /> +Fauchille, M., <a href="#page047">47</a>, <a href="#page064">64</a>, <a href="#page065">65</a><br /> +<i>Felicity</i>, the, <a href="#page164">164</a>, <a href="#page166">166</a>, <a href="#page167">167</a>, <a href="#page175">175</a>, <a href="#page177">177</a>, <a href="#page179">179</a><br /> +Fiore, Prof., <a href="#page201">201</a><br /> +Fishing vessels, <a href="#page031">31</a><br /> +Flag of truce, <a href="#page076">76</a><br /> +Food-stuffs, <a href="#page148">148</a>, <a href="#page174">174</a><br /> +<span class="indexsubentry">how far contraband, <a href="#page148">148</a>, <a href="#page176">176</a>, <a href="#page185">185</a></span><br /> +Food, Royal Commission on, <a href="#page148">148</a>, <a href="#page174">174</a>, <a href="#page177">177</a><br /> +Foreign Enlistment Acts, the, <a href="#page131">131</a>, <a href="#page134">134</a>, <a href="#page138">138</a>, <a href="#page139">139</a>, <a href="#page141">141</a>, <a href="#page143">143</a><br /> +Foreign Enlistment Bills, new, <a href="#page039">39</a><br /> +Foreign soldiers, <a href="#page045">45</a><br /> +Forster, Arnold-, Mr., <a href="#page045">45</a><br /> +<i>Fox</i>, the, <a href="#page176">176</a>, <a href="#page177">177</a><br /> +<i>Fram</i>, the, <a href="#page137">137</a><br /> +<i>Francs-tireurs</i>, <a href="#page079">79</a><br /> +"Freedom of the seas," <a href="#page051">51</a>, <a href="#page097">97</a><br /> +French Government Manual for Land Warfare, <a href="#page117">117</a><br /> +Friendly methods of settlement, <a href="#page001">1</a><br /> +<br /> +<br /> +Gases, harmful, whether employment of, legitimate, <a href="#page022">22</a>, <a href="#page096">96</a>, <a href="#page097">97</a><br /> +Geffken, Prof., <a href="#page013">13</a><br /> +General principles of justice and equity, the, <a href="#page187">187</a>, <a href="#page189">189</a>, <a href="#page190">190</a>, <a href="#page193">193</a><br /> +Geneva Convention Bill, <a href="#page036">36</a><br /> +Geneva Conventions, the, <a href="#page022">22</a>, <a href="#page034">34</a>, <a href="#page067">67</a>, <a href="#page098">98</a>, <a href="#page100">100</a><br /> +<span class="indexsubentry">application of, to maritime warfare, <a href="#page030">30</a>, <a href="#page098">98</a></span><br /> +Gentili, A., <a href="#page170">170</a><br /> +Germany. <i>Cf.</i> Hague Conventions<br /> +<span class="indexsubentry">proclamation by, of a danger zone, <a href="#page059">59</a></span><br /> +<span class="indexsubentry">wrong as to Declaration of London, <a href="#page207">207</a></span><br /> +Giffen, Sir R., <a href="#page013">13</a><br /> +Gladstone, Mr., <a href="#page134">134</a><br /> +<i>Goeben</i> and <i>Breslau</i>, the, <a href="#page091">91</a><br /> +<i>Golden Rocket</i>, the, <a href="#page085">85</a><br /> +Good offices, <a href="#page001">1</a>, <a href="#page002">2</a>, <a href="#page003">3</a><br /> +Government authority, as a protection, <a href="#page072">72</a><br /> +Government Bills and International Conventions, <a href="#page036">36</a>-40, <a href="#page192">192</a>, <a href="#page195">195</a>, <a href="#page204">204</a><br /> +Granville, Lord, <a href="#page082">82</a>, <a href="#page085">85</a>, <a href="#page131">131</a>, <a href="#page170">170</a>, <a href="#page177">177</a><br /> +Greek coast, blockade of, <a href="#page013">13</a><br /> +Guerilla warfare, <a href="#page073">73</a><br /> +Gundel, General de, <a href="#page048">48</a><br /> +Grotius, <a href="#page045">45</a>, <a href="#page148">148</a>, <a href="#page155">155</a>, <a href="#page166">166</a>, <a href="#page168">168</a>, <a href="#page169">169</a><br /> +<br /> +<br /> +<i>Haabet</i>, the, <a href="#page160">160</a><br /> +Hague Conventions, the,<br /> +<span class="indexsubentry">of 1889, <a href="#page001">1</a>, <a href="#page002">2</a>, <a href="#page003">3</a>, <a href="#page006">6</a>, <a href="#page030">30</a>, <a href="#page061">61</a>, <a href="#page074">74</a>, <a href="#page075">75</a>, <a href="#page094">94</a>, <a href="#page102">102</a>, <a href="#page105">105</a>, <a href="#page107">107</a>, <a href="#page120">120</a>, <a href="#page184">184</a></span><br /> +<span class="indexsubentry">of 1907, <a href="#page001">1</a>, <a href="#page006">6</a></span><br /> +<span class="indexsubentry">applicable only between contracting Powers, <a href="#page069">69</a></span><br /> +<span class="indexsubentry">No. i., <a href="#page002">2</a>, <a href="#page003">3</a>, <a href="#page006">6</a></span><br /> +<span class="indexsubentry">No. ii., <a href="#page021">21</a>, <a href="#page022">22</a></span><br /> +<span class="indexsubentry">No. iii., <a href="#page022">22</a>, <a href="#page036">36</a>, <a href="#page044">44</a></span><br /> +<span class="indexsubentry">No. iv., <a href="#page022">22</a>, <a href="#page045">45</a>, <a href="#page060">60</a>, <a href="#page061">61</a>, <a href="#page067">67</a>, <a href="#page075">75</a>, <a href="#page076">76</a>, <a href="#page077">77</a>, <a href="#page096">96</a>, <a href="#page105">105</a>, <a href="#page107">107</a>, <a href="#page122">122</a>, <a href="#page168">168</a>, <a href="#page206">206</a></span><br /> +<span class="indexsubentry">No. v., <a href="#page022">22</a>, <a href="#page068">68</a>, <a href="#page075">75</a>, <a href="#page080">80</a>, <a href="#page090">90</a>, <a href="#page135">135</a>, <a href="#page168">168</a></span><br /> +<span class="indexsubentry">No. vi., <a href="#page022">22</a>, <a href="#page045">45</a>, <a href="#page070">70</a></span><br /> +<span class="indexsubentry">No. vii., <a href="#page022">22</a>, <a href="#page162">162</a></span><br /> +<span class="indexsubentry">No. viii., <a href="#page022">22</a>, <a href="#page045">45</a>, <a href="#page164">164</a></span><br /> +<span class="indexsubentry">No. ix., <a href="#page022">22</a>, <a href="#page068">68</a>, <a href="#page122">122</a></span><br /> +<span class="indexsubentry">No. x., <a href="#page022">22</a>, <a href="#page100">100</a>, <a href="#page130">130</a></span><br /> +<span class="indexsubentry">No. xi., <a href="#page022">22</a>, <a href="#page158">158</a></span><br /> +<span class="indexsubentry">No. xii., <a href="#page022">22</a>, <a href="#page036">36</a>, <a href="#page190">190</a>, <a href="#page194">194</a>, <a href="#page195">195</a>, <a href="#page197">197</a>, <a href="#page204">204</a></span><br /> +<span class="indexsubentry">No. xiii., <a href="#page022">22</a>, <a href="#page129">129</a>, <a href="#page143">143</a>, <a href="#page146">146</a></span><br /> +Hague Declarations, the, <a href="#page022">22</a>, <a href="#page030">30</a>, <a href="#page061">61</a>, <a href="#page062">62</a>, <a href="#page063">63</a>, <a href="#page064">64</a>, <a href="#page096">96</a><br /> +Hague <i>Règlements</i>, the, as to war on land, <a href="#page075">75</a>, <a href="#page076">76</a>, <a href="#page078">78</a>, <a href="#page093">93</a>, <a href="#page095">95</a>, <a href="#page100">100</a><br /> +Hague Tribunal, the, <a href="#page005">5</a><br /> +<span class="indexsubentry">reference to, not obligatory, <a href="#page025">25</a></span><br /> +Haldane, Mr. R.B., <a href="#page045">45</a><br /> +Hall, Mr. W.E., on pacific blockade, <a href="#page013">13</a><br /> +Harcourt, Sir W., <a href="#page074">74</a><br /> +Hardinge, Sir C., <a href="#page152">152</a><br /> +Herbert, Mr. Arnold, <a href="#page182">182</a>, <a href="#page184">184</a><br /> +Holland, Sir T.E., references to writings of, <a href="#page008">8</a>, <a href="#page009">9</a>, <a href="#page020">20</a>, <a href="#page023">23</a>, <a href="#page035">35</a>, <a href="#page044">44</a>, <a href="#page047">47</a>, <a href="#page050">50</a>, <a href="#page052">52</a>, <a href="#page066">66</a>, <a href="#page075">75</a>, <a href="#page097">97</a>, <a href="#page113">113</a>, <a href="#page122">122</a>, <a href="#page164">164</a>, <a href="#page168">168</a>, <a href="#page180">180</a>, <a href="#page192">192</a>, <a href="#page196">196</a><br /> +Honour and vital interests clause, the, <a href="#page004">4</a>, <a href="#page005">5</a>, <a href="#page006">6</a><br /> +Horses, wounded, <a href="#page098">98</a>, <a href="#page100">100</a><br /> +Horsey, Adml., <a href="#page118">118</a>, <a href="#page164">164</a>, <a href="#page166">166</a><br /> +Hostile assistance, <a href="#page088">88</a>, <a href="#page157">157</a>, <a href="#page160">160</a>, <a href="#page186">186</a><br /> +Hübner, <a href="#page190">190</a><br /> +<br /> +<br /> +<i>Ikaria</i>, the, <a href="#page060">60</a><br /> +<i>Imina</i>, the, <a href="#page160">160</a><br /> +Immediate effects of outbreak of war, the, <a href="#page045">45</a><br /> +Institut de Droit International, the, <a href="#page011">11</a>, <a href="#page012">12</a>, <a href="#page016">16</a>, <a href="#page023">23</a>, <a href="#page024">24</a>, <a href="#page030">30</a>, <a href="#page043">43</a>, <a href="#page044">44</a>, <a href="#page048">48</a>, <a href="#page063">63</a>, <a href="#page064">64</a>, <a href="#page065">65</a>, <a href="#page066">66</a>, <a href="#page068">68</a>, <a href="#page104">104</a>, <a href="#page105">105</a>, <a href="#page108">108</a>, <a href="#page121">121</a>, <a href="#page130">130</a>, <a href="#page162">162</a>, <a href="#page163">163</a>, <a href="#page164">164</a>, <a href="#page167">167</a>, <a href="#page168">168</a>, <a href="#page172">172</a>, <a href="#page174">174</a>, <a href="#page176">176</a>, <a href="#page182">182</a>, <a href="#page185">185</a>, <a href="#page190">190</a><br /> +<span class="indexsubentry">its <i>Manuel des lois de la guerre maritime</i>, <a href="#page163">163</a></span><br /> +<span class="indexsubentry">its <i>Manuel des lois de la guerre sur terre</i>, <a href="#page023">23</a>, <a href="#page024">24</a>, <a href="#page025">25</a>, <a href="#page027">27</a>, <a href="#page108">108</a></span><br /> +Instructions, national,<br /> +<span class="indexsubentry">on laws of war on land, <a href="#page075">75</a>, <a href="#page076">76</a></span><br /> +<span class="indexsubentry">on laws of war at sea:</span><br /> +<span class="indexsubsubentry">British, <a href="#page156">156</a>, <a href="#page180">180</a></span><br /> +<span class="indexsubsubentry">French, <a href="#page179">179</a></span><br /> +<span class="indexsubsubentry">Japanese, <a href="#page148">148</a>, <a href="#page149">149</a>, <a href="#page150">150</a>, <a href="#page155">155</a>, <a href="#page156">156</a>, <a href="#page157">157</a>, <a href="#page173">173</a></span><br /> +<span class="indexsubsubentry">Russian, <a href="#page154">154</a>, <a href="#page173">173</a>, <a href="#page174">174</a>, <a href="#page176">176</a>, <a href="#page177">177</a>, <a href="#page179">179</a></span><br /> +<span class="indexsubsubentry">United States, <a href="#page179">179</a></span><br /> +<i>International</i>, the, <a href="#page169">169</a><br /> +International Court of Appeal, an, <a href="#page184">184</a><br /> +International Justice, a Permanent Court of, <a href="#page002">2</a><br /> +International Law, the nature and authority of, <a href="#page066">66</a>, <a href="#page067">67</a>, <a href="#page077">77</a>, <a href="#page086">86</a>, <a href="#page114">114</a>, <a href="#page115">115</a>, <a href="#page116">116</a>, <a href="#page119">119</a>, <a href="#page127">127</a>, <a href="#page169">169</a>, <a href="#page188">188</a><br /> +International Prize Court, proposal for an, <a href="#page023">23</a>, <a href="#page181">181</a>-191<br /> +<br /> +<br /> +Jackson, Colonel, <a href="#page066">66</a>, <a href="#page068">68</a><br /> +James, Captain, <a href="#page114">114</a><br /> +Jenks, Mr., <a href="#page106">106</a>, <a href="#page108">108</a>, <a href="#page110">110</a><br /> +<i>Jonge Margaretha</i>, the, <a href="#page159">159</a><br /> +Just cause of war, <a href="#page083">83</a><br /> +"Justice and equity, general principles of," <a href="#page187">187</a>, <a href="#page189">189</a>, <a href="#page190">190</a>, <a href="#page193">193</a><br /> +<br /> +<br /> +Kent, Chancellor, <a href="#page045">45</a><br /> +Kleen, Mr., <a href="#page130">130</a>, <a href="#page133">133</a><br /> +<i>Knight-Commander</i>, the, <a href="#page173">173</a>, <a href="#page174">174</a><br /> +Kohler, Mr., <a href="#page047">47</a><br /> +<i>Kowshing</i>, the case of the, <a href="#page041">41</a>, <a href="#page043">43</a><br /> +"Kriegsbrauch," the, <a href="#page068">68</a>, <a href="#page080">80</a><br /> +<br /> +<br /> +Lambermont, Baron, <a href="#page077">77</a><br /> +Lammasch, Prof., <a href="#page125">125</a><br /> +Lansdowne, Marquess of, <a href="#page058">58</a>, <a href="#page133">133</a>, <a href="#page136">136</a>, <a href="#page149">149</a>, <a href="#page169">169</a>, <a href="#page173">173</a><br /> +Lawful belligerents, <a href="#page069">69</a>, <a href="#page078">78</a><br /> +League of Nations, the, <a href="#page001">1</a>, <a href="#page002">2</a>, <a href="#page007">7</a>, <a href="#page009">9</a>, <a href="#page191">191</a><br /> +Lehr, Prof., <a href="#page102">102</a><br /> +<i>Leucade</i>, the, <a href="#page176">176</a><br /> +Lincoln, President, <a href="#page074">74</a><br /> +Lieber's Instructions, <a href="#page074">74</a>, <a href="#page075">75</a><br /> +Localities closed to hostilities, <a href="#page052">52</a><br /> +London, Conference of, <a href="#page181">181</a>, <a href="#page190">190</a>, <a href="#page191">191</a><br /> +London, Declaration of, <a href="#page022">22</a>, <a href="#page055">55</a>, <a href="#page058">58</a>, <a href="#page092">92</a>, <a href="#page181">181</a>, <a href="#page191">191</a>, <a href="#page193">193</a>, <a href="#page194">194</a>, <a href="#page195">195</a>, <a href="#page196">196</a>-207<br /> +Lyons, Lord, <a href="#page169">169</a><br /> +<br /> +<br /> +MacDonell, Prof., <a href="#page172">172</a><br /> +McKenna, Mr., <a href="#page078">78</a><br /> +Mahan, Admiral, <a href="#page097">97</a><br /> +Mail steamers and bags, <a href="#page030">30</a><br /> +<i>Malacca</i>, the case of the, <a href="#page081">81</a>, <a href="#page162">162</a>, <a href="#page163">163</a><br /> +Mandates, <a href="#page008">8</a><br /> +Manning, Mr., <a href="#page045">45</a><br /> +Manual of military law, the British, <a href="#page107">107</a><br /> +Manuals of warfare<br /> +<span class="indexsubentry">on land, <a href="#page105">105</a></span><br /> +<span class="indexsubentry">at sea, <a href="#page105">105</a></span><br /> +Manuel des Lois de la guerre maritime, the, of Institut, <a href="#page023">23</a><br /> +Manual des Lois de la guerre sur terre, <a href="#page023">23</a>, <a href="#page024">24</a>, <a href="#page174">174</a><br /> +<i>Marais, ex parte</i>, <a href="#page106">106</a><br /> +Martens, de, Prof., <a href="#page126">126</a><br /> +Martial law, <a href="#page105">105</a>-112<br /> +Maurice, Colonel, <a href="#page042">42</a><br /> +<i>Mcomini and others</i> v. <i>Governor &c. of Natal</i>, <a href="#page107">107</a><br /> +Means of injuring, <a href="#page094">94</a><br /> +Measures short of war, <a href="#page001">1</a>-21<br /> +Mediation. <i>See</i> Good offices<br /> +Menam, blockade of the, <a href="#page010">10</a><br /> +Mercantile Marine in war, <a href="#page081">81</a>, <a href="#page084">84</a>, <a href="#page087">87</a><br /> +Merchant ships, visit of, <a href="#page060">60</a><br /> +Militia, <a href="#page077">77</a><br /> +<i>Minerva</i>, the, <a href="#page091">91</a><br /> +Mines, <a href="#page164">164</a><br /> +Moltke, von, on conduct of war, <a href="#page024">24</a><br /> +Monroe doctrine, the, <a href="#page017">17</a>, <a href="#page020">20</a><br /> +<i>Moray Firth</i>, the, <a href="#page189">189</a><br /> +Morley, Lord, <a href="#page058">58</a>, <a href="#page074">74</a><br /> +"Most favoured nation" clause, <a href="#page017">17</a><br /> +<i>Möwe</i>, the, <a href="#page070">70</a><br /> +"Murder," <a href="#page070">70</a>, <a href="#page071">71</a>, <a href="#page072">72</a>, <a href="#page084">84</a><br /> +Mutiny Acts, the, <a href="#page109">109</a><br /> +<br /> +<br /> +National Instructions, <a href="#page075">75</a>, <a href="#page076">76</a><br /> +Naval bombardments of open coast towns, <a href="#page030">30</a>, <a href="#page112">112</a>, <a href="#page123">123</a><br /> +Naval manœuvres of <a href="#page188">188</a>8, the, <a href="#page113">113</a>, <a href="#page123">123</a><br /> +Naval war code, a British, <a href="#page030">30</a>, <a href="#page031">31</a>, <a href="#page032">32</a><br /> +Naval warfare, <a href="#page022">22</a><br /> +Naval Prize (Consolidation) Bill, the, <a href="#page036">36</a>, <a href="#page191">191</a>-196, <a href="#page198">198</a><br /> +<span class="indexsubentry">object of, <a href="#page194">194</a>,195</span><br /> +<span class="indexsubentry">rejection of, <a href="#page196">196</a></span><br /> +Naval Prize money, <a href="#page195">195</a><br /> +Neutral conduct, the criterion of, <a href="#page125">125</a><br /> +Neutral duties, as classified by the author, <a href="#page129">129</a><br /> +Neutral hospitality, <a href="#page143">143</a><br /> +Neutral States and individuals, their liabilities distinguished, <a href="#page129">129</a>-135<br /> +Neutral territory, passage through, <a href="#page090">90</a><br /> +Neutral trade, the four inconveniences, to, <a href="#page159">159</a><br /> +Neutralisation, the term, <a href="#page053">53</a>, <a href="#page054">54</a><br /> +Neutrality,<br /> +<span class="indexsubentry">correlative to belligerency, <a href="#page010">10</a>, <a href="#page016">16</a>, <a href="#page019">19</a></span><br /> +<span class="indexsubentry">British proclamations of, <a href="#page130">130</a>, <a href="#page135">135</a>-143</span><br /> +Neutrals, methods of warfare affecting, <a href="#page164">164</a>-181<br /> +Non-combatants, <a href="#page072">72</a>, <a href="#page074">74</a><br /> +<i>Novoe Vremya</i>, the, <a href="#page176">176</a><br /> +<br /> +<br /> +Occupied territory,<br /> +<span class="indexsubentry">right of the invader in, <a href="#page080">80</a>, <a href="#page100">100</a></span><br /> +<span class="indexsubentry">not yet occupied, <a href="#page077">77</a></span><br /> +Oppenheim, Prof., <a href="#page047">47</a><br /> +<i>Orozembo</i>, the, <a href="#page160">160</a><br /> +"Ottoman Empire, ancient rule of the," <a href="#page056">56</a><br /> +<br /> +<br /> +Pacific blockade, <a href="#page010">10</a><br /> +Palmerston, Lord, <a href="#page012">12</a><br /> +Panama Canal, the, <a href="#page050">50</a><br /> +<i>Paquete Habana</i>, the, <a href="#page030">30</a><br /> +Paris. <i>See</i> Declaration of<br /> +Paris, Treaty of, <a href="#page053">53</a>, <a href="#page054">54</a>, <a href="#page056">56</a>, <a href="#page081">81</a>, <a href="#page087">87</a>, <a href="#page089">89</a>, <a href="#page155">155</a><br /> +"Pas de Code Naval, pas de Cour des Prises," <a href="#page187">187</a><br /> +Passage, <a href="#page064">64</a>, <a href="#page090">90</a><br /> +Peace talk, <a href="#page125">125</a><br /> +Peaceful settlement of disputes, the Conventions for,<br /> +<span class="indexsubentry">of 1899, <a href="#page002">2</a>, <a href="#page003">3</a>, <a href="#page006">6</a></span><br /> +<span class="indexsubentry">of 1907, <a href="#page002">2</a>, <a href="#page006">6</a></span><br /> +<span class="indexsubentry">are non-obligatory, <a href="#page173">173</a></span><br /> +Perels, Prof., <a href="#page016">16</a><br /> +Permanent Court of International Justice, a, <a href="#page191">191</a><br /> +<i>Peterburg</i>, the, <a href="#page162">162</a><br /> +<i>Peterhoff</i>, the, <a href="#page020">20</a>, <a href="#page149">149</a>, <a href="#page160">160</a><br /> +Petition of Right, the, <a href="#page106">106</a>, <a href="#page108">108</a>, <a href="#page109">109</a><br /> +Pike, Mr., <a href="#page098">98</a>, <a href="#page100">100</a><br /> +"Piracy," <a href="#page070">70</a>, <a href="#page071">71</a>, <a href="#page084">84</a><br /> +Poison, <a href="#page096">96</a><br /> +Pope's Note, the, <a href="#page051">51</a><br /> +Port, enemy ships in, <a href="#page049">49</a><br /> +<i>Porter</i> v. <i>Freudenberg</i>, <a href="#page049">49</a><br /> +Portsmouth, Lord, <a href="#page205">205</a><br /> +Pourtugael, den Beer, Prof., <a href="#page068">68</a><br /> +Pre-emption, <a href="#page148">148</a><br /> +Prevention, State duties of, <a href="#page129">129</a>, <a href="#page131">131</a><br /> +Prisoners of war, <a href="#page045">45</a>, <a href="#page106">106</a>, <a href="#page107">107</a><br /> +<span class="indexsubentry">liabilities of, <a href="#page106">106</a></span><br /> +Private International Law, <a href="#page034">34</a><br /> +Privateers, <a href="#page081">81</a>, <a href="#page084">84</a><br /> +<span class="indexsubentry">restrictions on, <a href="#page082">82</a></span><br /> +<span class="indexsubentry">commissioned liners are not, <a href="#page070">70</a></span><br /> +Private property at sea, <a href="#page184">184</a><br /> +Prize Court,<br /> +<span class="indexsubentry">the Russian, <a href="#page163">163</a></span><br /> +<span class="indexsubentry">an international Court of Appeal, <a href="#page023">23</a>, <a href="#page170">170</a>-182</span><br /> +<span class="indexsubentry">a settled prize law, must precede, <a href="#page181">181</a>, <a href="#page183">183</a>, <a href="#page185">185</a>, <a href="#page190">190</a>, <a href="#page191">191</a>, <a href="#page193">193</a></span><br /> +<span class="indexsubentry">a supreme, <a href="#page181">181</a></span><br /> +Prize Law Consolidation Bill, <a href="#page193">193</a>, <a href="#page194">194</a>, <a href="#page199">199</a><br /> +"Probable cause," <a href="#page083">83</a><br /> +Proclamations of neutrality, the British, criticised, <a href="#page135">135</a>-143<br /> +"Professors," <a href="#page119">119</a><br /> +Projectiles,<br /> +<span class="indexsubentry">from balloons, <a href="#page022">22</a>, <a href="#page030">30</a>, <a href="#page062">62</a></span><br /> +<span class="indexsubentry">for diffusion of gases, <a href="#page022">22</a>, <a href="#page096">96</a>, <a href="#page097">97</a></span><br /> +<br /> +<br /> +"Quasi-enemy," <a href="#page012">12</a><br /> +<br /> +<br /> +Radiotelegraphic stations, <a href="#page168">168</a><br /> +Rae, Mr., <a href="#page162">162</a><br /> +Ratification, <a href="#page203">203</a><br /> +Receipts, <a href="#page102">102</a><br /> +<i>Règlements</i>, the Hague. <i>See</i> Hague<br /> +Renault, Prof., <a href="#page172">172</a>, <a href="#page187">187</a>, <a href="#page190">190</a>, <a href="#page196">196</a>, <a href="#page198">198</a>, <a href="#page199">199</a><br /> +<span class="indexsubentry">Report of the force of (<i>see</i> Authentic Interpretation)</span><br /> +Reprisals,<br /> +<span class="indexsubentry">advantages of, <a href="#page014">14</a>, <a href="#page019">19</a></span><br /> +<span class="indexsubentry">how differing from war, <a href="#page009">9</a>, <a href="#page012">12</a>, <a href="#page014">14</a>, <a href="#page019">19</a></span><br /> +<span class="indexsubentry">opposite views as to, <a href="#page016">16</a></span><br /> +<span class="indexsubentry">species of, <a href="#page012">12</a>, <a href="#page015">15</a>, <a href="#page019">19</a></span><br /> +<span class="indexsubentry">United States, instructions as to, <a href="#page029">29</a></span><br /> +<span class="indexsubentry">belligerent, <a href="#page097">97</a>, <a href="#page123">123</a></span><br /> +Requisitions, <a href="#page102">102</a>, <a href="#page117">117</a><br /> +Restrictive clause, the, <a href="#page069">69</a>, <a href="#page146">146</a><br /> +Retaliation, <a href="#page097">97</a><br /> +Reward for, dead or alive, <a href="#page093">93</a><br /> +<i>R.</i> v. <i>Eyre</i>, <a href="#page110">110</a><br /> +Ridley, Sir E., <a href="#page077">77</a><br /> +Roman Law terminology, <a href="#page102">102</a><br /> +Roosevelt, Pres., <a href="#page146">146</a><br /> +Rosebery, Lord, <a href="#page158">158</a><br /> +Ross, Sir R., <a href="#page078">78</a><br /> +Russian Prize Law, <a href="#page162">162</a>, <a href="#page174">174</a>, <a href="#page176">176</a><br /> +<br /> +<br /> +Salisbury, Lord, <a href="#page003">3</a>, <a href="#page015">15</a>, <a href="#page052">52</a>, <a href="#page054">54</a>, <a href="#page157">157</a><br /> +<i>Santissima Trinidad</i>, the, <a href="#page137">137</a><br /> +Savage warfare, <a href="#page094">94</a><br /> +<i>Savannah</i>, the, <a href="#page085">85</a><br /> +Scott, Sir Walter, <a href="#page077">77</a>, <a href="#page091">91</a><br /> +Scott, Sir William, <a href="#page091">91</a><br /> +Search. <i>See</i> Visit and Search<br /> +Second Peace Conference Conventions Bill, <a href="#page037">37</a>, <a href="#page038">38</a>, <a href="#page039">39</a><br /> +Seely, Col., <a href="#page063">63</a><br /> +Ship, a "mere moveable," <a href="#page085">85</a><br /> +Shucking, Prof., <a href="#page125">125</a><br /> +Siam, <a href="#page010">10</a><br /> +Sinking. <i>See</i> Destruction<br /> +Smith (Lord Birkenhead) and Sibley, on International Law in the Russo-Japanese War, <a href="#page135">135</a><br /> +<i>Spider</i>, the, <a href="#page113">113</a>, <a href="#page117">117</a><br /> +Spies, <a href="#page072">72</a><br /> +<i>Springbok</i>, the, <a href="#page029">29</a><br /> +Stephen, Sir Herbert, <a href="#page124">124</a><br /> +Stewart, Mr. C., <a href="#page104">104</a><br /> +Story, J., <a href="#page159">159</a><br /> +Stowell, Lord, <a href="#page085">85</a>, <a href="#page159">159</a>, <a href="#page160">160</a>, <a href="#page161">161</a>, <a href="#page166">166</a>, <a href="#page175">175</a>, <a href="#page177">177</a>, <a href="#page178">178</a>, <a href="#page180">180</a>, <a href="#page197">197</a><br /> +Straits, <a href="#page052">52</a>, <a href="#page056">56</a><br /> +Submarine cables, <a href="#page168">168</a>, <a href="#page169">169</a>, <a href="#page171">171</a>, <a href="#page188">188</a><br /> +Submarines, <a href="#page069">69</a><br /> +Suez Canal, the, <a href="#page050">50</a>, <a href="#page051">51</a>, <a href="#page052">52</a>, <a href="#page054">54</a><br /> +Superfluous injury, <a href="#page094">94</a>, <a href="#page095">95</a><br /> +Suyematsu, Baron, <a href="#page149">149</a><br /> +Swettenham, Sir James, <a href="#page079">79</a><br /> +Sydenham, Lord, <a href="#page104">104</a><br /> +<br /> +<br /> +Takahashi, Prof., <a href="#page043">43</a><br /> +Terminology, <a href="#page033">33</a><br /> +Territorial waters, <a href="#page165">165</a>, <a href="#page166">166</a>, <a href="#page167">167</a><br /> +Tindal, le Chevalier, <a href="#page122">122</a><br /> +Tirpitz, Admiral von, <a href="#page070">70</a><br /> +<ins class="correction" + title="Transcriber's note: Spelled _Tokomaru_ where it appears in the text."> +<i>Tocumaro</i></ins>, the, <a href="#page060">60</a><br /> +Torpedoes, <a href="#page164">164</a><br /> +Transformation into ships of war, <a href="#page162">162</a><br /> +Treaties,<br /> +<span class="indexsubentry">who are the parties to, <a href="#page202">202</a>, <a href="#page207">207</a></span><br /> +<span class="indexsubentry">effect of war on, <a href="#page018">18</a>, <a href="#page198">198</a></span><br /> +Treaty, the Hay-Pauncefote, <a href="#page050">50</a><br /> +Twenty-three (h) clause, the, <a href="#page047">47</a>, <a href="#page206">206</a><br /> +Twenty-four hours rule, the, <a href="#page127">127</a>, <a href="#page144">144</a>, <a href="#page145">145</a><br /> +Ullmann, Prof., <a href="#page047">47</a>, <a href="#page106">106</a>, <a href="#page201">201</a><br /> +Unarmed merchantmen, <a href="#page072">72</a>, <a href="#page073">73</a><br /> +Undefended towns, <a href="#page030">30</a>, <a href="#page067">67</a>, <a href="#page068">68</a><br /> +Uniform, <a href="#page075">75</a><br /> +United States<br /> +<span class="indexsubentry">instructions for war on land, <a href="#page023">23</a>, <a href="#page073">73</a>, <a href="#page107">107</a></span><br /> +<span class="indexsubentry">naval war code, <a href="#page023">23</a>, <a href="#page030">30</a>, <a href="#page031">31</a>, <a href="#page088">88</a></span><br /> +<span class="indexsubentry">Naval War College, <a href="#page008">8</a></span><br /> +<span class="indexsubentry">ratification of Conventions, <a href="#page075">75</a></span><br /> +<span class="indexsubentry">views of, compared with British, <a href="#page029">29</a>, <a href="#page031">31</a></span><br /> +Unqualified captors, <a href="#page072">72</a>, <a href="#page073">73</a><br /> +Unratified Conventions, effect of, <a href="#page040">40</a><br /> +Usufruct, <a href="#page101">101</a><br /> +<br /> +<br /> +Vattel, <a href="#page046">46</a>, <a href="#page119">119</a><br /> +Venezuela, <a href="#page013">13</a>, <a href="#page018">18</a><br /> +Visit and search, <a href="#page072">72</a>, <a href="#page083">83</a>, <a href="#page084">84</a>, <a href="#page159">159</a>, <a href="#page186">186</a><br /> +"Violations of law of nations," term misapplied, <a href="#page140">140</a>, <a href="#page142">142</a><br /> +Vœux, <a href="#page005">5</a>, <a href="#page099">99</a>, <a href="#page121">121</a>, <a href="#page122">122</a>, <a href="#page167">167</a>, <a href="#page180">180</a>, <a href="#page190">190</a><br /> +Volunteers, <a href="#page077">77</a><br /> +<br /> +<br /> +War. <i>See</i> Reprisals<br /> +<span class="indexsubentry">Declaration of, <a href="#page010">10</a>, <a href="#page041">41</a></span><br /> +<span class="indexsubentry">legitimate object of, <a href="#page025">25</a>, <a href="#page095">95</a></span><br /> +<span class="indexsubentry"><i>sub modo</i>, <a href="#page020">20</a>, <a href="#page055">55</a></span><br /> +<span class="indexsubentry">written law of, <a href="#page022">22</a></span><br /> +Washington, the Three Rules of, <a href="#page086">86</a><br /> +Wellington, Duke of, <a href="#page117">117</a><br /> +Westbury, Lord, <a href="#page137">137</a><br /> +Westlake, Prof., <a href="#page018">18</a>, <a href="#page041">41</a>, <a href="#page065">65</a>, <a href="#page183">183</a>, <a href="#page199">199</a>, <a href="#page202">202</a><br /> +Wilson, Pres., <a href="#page072">72</a>, <a href="#page097">97</a>, <a href="#page127">127</a><br /> +Wolf, Mr., <a href="#page058">58</a><br /> +Wood, Mackinnon, Mr., <a href="#page196">196</a>, <a href="#page197">197</a>, <a href="#page200">200</a><br /> +Wounded and Sick. <i>See</i> Geneva Conventions<br /> +<span class="indexsubentry">horses, <a href="#page098">98</a>, <a href="#page100">100</a></span><br /> +<br /> +<br /> +<i>Yangtsze Insurance Association</i> v. <i>Indemnity Mutual Marine Company</i>, <a href="#page157">157</a><br /> +Younge, Mr., <a href="#page118">118</a><br /> +<br /> +<br /> +<i>Zamora</i>, the, <a href="#page207">207</a><br /> +Zone, a danger, <a href="#page059">59</a><br /> +</div> + +<p> </p> +<p> </p> +<p>Printed by SPOTTISWOODE, BALLANTYNE & CO. LTD.<br /> +Colchester, London & Eton, England<br /> +</p> + + + +<hr style="width: 65%;" /> +<h2><a name="BY_THE_SAME_AUTHOR" id="BY_THE_SAME_AUTHOR" />BY THE SAME AUTHOR</h2> + + +<p>AN ESSAY ON COMPOSITION DEEDS UNDER 24 AND 25 VICT. c. 134. +London, Sweet, 1864, 12mo. 7<i>s</i>.</p> + +<p>A PLAN FOR THE FORMAL AMENDMENT OF THE LAW OF ENGLAND. +London, Butterworths, 1867, 8vo. 1<i>s</i>.</p> + +<p>ESSAYS UPON THE FORM OF THE LAW. London, Butterworths, 1870, +8vo. 7<i>s</i>. 6<i>d</i>.</p> + +<p>THE INSTITUTES OF JUSTINIAN, edited as a recension of the Institutes +of Gaius. Oxford, Clarendon Press, 1873, second edit. 1881, +12mo. 5<i>s</i>.</p> + +<p>SELECT TITLES FROM THE DIGEST OF JUSTINIAN, edited, with C.L. +Shadwell. Oxford, Clarendon Press, 1874-1881, 8vo. 14<i>s</i>.</p> + +<p>ALBERICUS GENTILIS, an Inaugural Lecture delivered at All Souls +College, November 7, 1874. London, Macmillan, +1874, 8vo. 1<i>s</i>. 6<i>d</i>.</p> + +<p>ALBERICUS GENTILIS, tradotto da Aurelio Saffi. Roma, Loescher, 1884.</p> + +<p>THE BRUSSELS CONFERENCE OF 1874, and other diplomatic attempts +to mitigate the rigour of warfare. Oxford and London, James +Parker, 1876, 8vo. 1<i>s</i>. 6<i>d</i>.</p> + +<p>THE TREATY RELATIONS OF RUSSIA AND TURKEY, 1774 to 1853, with +an Appendix of Treaties. London, Macmillan, 1877, 12mo. 2<i>s</i>.</p> + +<p>ALBERICI GENTILIS DE IURE BELLI LIBRI TRES, edited. Oxford, +Clarendon Press, 1877, 4to. 21<i>s</i>.</p> + +<p>THE ELEMENTS OF JURISPRUDENCE. Oxford, Clarendon Press, 1880, +8vo, twelfth edit. 1916, 8vo. 14<i>s</i>.</p> + +<p>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. 12<i>s</i>. 6<i>d</i>.</p> + +<p>A MANUAL OF NAVAL PRIZE LAW. Issued by authority of the Lords +Commissioners of the Admiralty. London, Eyre & Spottiswoode, +1888, 8vo.</p> + +<p>STUDIES IN INTERNATIONAL LAW. Oxford, Clarendon Press, 1898, +8vo. 10<i>s</i>. 6<i>d</i>.</p> + +<p>THE LAWS AND CUSTOMS OF WAR ON LAND, &c. (issued by the War +Office to the British Army). London, Harrison & Sons, 1904, +12mo. 6<i>d</i>.</p> + +<p>NEUTRAL DUTIES IN A MARITIME WAR, as illustrated by recent events +(<i>from the Proceedings of the British Academy</i>). London, H. Frowde, +1905, 8vo. 1<i>s</i>.</p> + +<p>THE LAW OF WAR ON LAND (written and unwritten). Oxford, Clarendon +Press, 1908, 8vo. 6<i>s</i>. net.</p> + +<p>A VALEDICTORY RETROSPECT (1874-1910), being a Lecture delivered +at All Souls College, June 17, 1910. Oxford, at the Clarendon +Press, 1910. 1<i>s</i>.</p> + +<p>PROPOSED CHANGES IN NAVAL PRIZE LAW (<i>from the Proceedings of +the British Academy</i>). London, H. Frowde, 1911, 8vo. 1<i>s</i>.</p> + +<p>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.</p> + +<p>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. £2 2<i>s</i>. 6<i>d</i>.</p> + +<p> </p> + +<div class="footnotes"> +<p style="margin-left:10%;text-decoration:underline;">ENDNOTES</p> +<p class="footnote"><span class="label"><a href="#footnotetag01">1</a></span><a name="footnote01"></a>Withdrawn in 1904.</p> +<p class="footnote"><span class="label"><a href="#footnotetag02">2</a></span><a name="footnote02"></a><i>Infra</i>, <a href="#CHAPTER_VII_SECTION_6">Ch. VII. Section 6</a>.</p> +<p class="footnote"><span class="label"><a href="#footnotetag03">3</a></span><a name="footnote03"></a><i>Infra</i>, <a href="#CHAPTER_VI_SECTION_14">Ch. VI. Section 14</a>.</p> +<p class="footnote"><span class="label"><a href="#footnotetag04a">4</a></span><a name="footnote04"></a>Writer's names are omitted as immaterial.</p> +<p class="footnote"><span class="label"><a href="#footnotetag05">5</a></span><a name="footnote05"></a><i>Infra</i>, p. <a href="#page070">70</a>.</p> +<p class="footnote"><span class="label"><a href="#footnotetag06">6</a></span><a name="footnote06"></a>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. <i>infra</i>, pp. <a href="#page191">191</a>-196.</p> +<p class="footnote"><span class="label"><a href="#footnotetag07">7</a></span><a name="footnote07"></a>Cf. <i>infra</i>, p. <a href="#page098">98</a>. The Bill became an Act, 1 & 2 Geo. 5, c. 20.</p> +</div> + +<p> </p> + + +<p> </p> + +<hr style="width: 65%;" /> +<p>[Transcriber's Note: The spelling and usage of non-English words and +characters is occasionally inconsistent throughout the work. This etext +preserves the usage as it appears in the printed book, +except where noted.]</p> + +<div>*** END OF THE PROJECT GUTENBERG EBOOK 14447 ***</div> +</body> +</html> + + |