1 See text of the Declaration, p. 291. It is significant that, in spite of the Declaration of Paris, necessity of war has been held to justify the destruction of neutral property on an enemy's merchant vessel even without compensation. Thus, in 1870, the French cruiser Desaix captured the German vessels the Ludwig and the Vorwaerts and burned them on the day of capture. Part of the cargo of these vessels belonged to British subjects (neutrals) The owners claimed compensation, but the Conseil d'État held that, though the Declaration of Paris exempts the goods of a neutral on board an enemy's ship from confiscation, and entitles the owner to the proceeds in case of a sale, yet it gives him no claim to compensation for any damage resulting from the lawful capture of the ship, or from any subsequent and justifiable proceedings of the captors (Wheaton, p. 493-Dalloz, Jurisprudence Générale, 1872, Pt. III. p. 94).

Hall (International Law, p. 722), commenting on the above case, says: "It is to be regretted that no limits were set in this decision to the right of destroying neutral property embarked in an enemy's ship. That such property should be exposed to the consequences of necessary acts of war is only in accordance with principle, but to push the rights of a belligerent further is not easily justifiable, and might under some circumstances amount to an indirect repudiation of the Declaration of Paris. In the case, for example, of a State the ships of which were largely engaged in carrying trade, a general order given by its enemy to destroy instead of bringing in for condemnation would amount to a prohibition addressed to neutrals to employ as carriers vessels the right to use which was expressly conceded to them by the Declaration in question. It was undoubtedly intended by that Declaration that neutrals should be able to place their goods on board belligerent vesseis without as a rule incurring further risk than that of loss of market and time, and it ought to be incumbent upon a captor who destroys such goods together with his enemy's vessel to prove to the satisfaction of the Prize Court, and not merely to allege, that he has acted under the pressure of a real military necessity."

The italics are mine. If the captor does not succeed in proving the existence of a real military necessity, what then? An indemnity is the only remedy. Is not, according to the universal notion of equity, an indemnity due for loss of market and time? I do not see on what my late able friend relied for his restriction. The Declaration of Paris, in declaring that neutral goods on board an enemy ship are "not liable to capture," imposes no limitation of the kind he mentions.

2 See p. 165.

A MAIL ship occupies a distinctly different position from an ordinary cargo ship. To hold it up and delay the delivery of general correspondence is a more serious matter than to stop a cargo which can be insured against the risk of delay. On the arrest of the German mail steamers Bundesrath and General during the South African War, the German Government represented to the British Government that "it was highly desirable" that steamers flying the German mail-flag should not be stopped, and the British Government thereupon issued orders not to stop them on suspicion only (Parl. Papers: Africa, No. 1, 1900). This was a step towards assimilating mail steamers to public ships.

THE proposal to submit captures to a special international jurisdiction has often been made, and in fact it suggests itself, whenever there are two opinions concerning the justice of a Prize Court's decision.

The Institute of International Law some years ago (1887) after adopting a very full code of Prize Law, consisting of no fewer than 122 Articles and covering every branch of the subject, forwarded them to the different European Governments, with the expression of a wish that "in the future reform might take a still more complete shape by the institution of an International Tribunal for the trial of prize cases." The recommendation arose out of a proposal made to the Institute in 1876 by Mr. Westlake to form a Commission "for the examination of a project to organise an International Prize Court."

In 1877 the Institute adopted the following resolutions :

"L'Institut déclare que le système actuel des tribunaux et de l'administration de la justice en matière de prises est défectueux, et considère comme urgent de porter remède à cet état de choses par une nouvelle institution internationale. Il est d'avis qu'il y a lieu:

"1. De formuler par traité les principes généraux en matière de prises;

"2. De remplacer les tribunaux jusqu'ici exclusivement composés de juges appartenant à l'Etat belligérant par des tribunaux internationaux qui donnent aux particuliers intéressés de l'Etat neutre ou ennemi de plus amples garanties d'un jugement impartial; "3. De s'entendre sur une procédure commune à adopter en matière de prises.

"Toutefois l'Institut croit devoir déclarer que dès à présent il considérerait comme un progrès l'institution de tribunaux mixtes soit de première instance, soit d'appel, sur les bases du projet élaboré par M. Westlake."

Later on, when the code of prize regulations was drawn up by the Institute, the proposal was narrowed down to the sug gestion of an International Appeal Court only.

1 A question on the subject was put on February 19, 1907, by Mr. A. Herbert, who asked "whether the Government will instruct the British representatives at the forthcoming Hague Conference to press upon the Powers the adoption of an international agreement providing for an ultimate appeal from all Prize Courts to The Hague Tribunal." Sir H. Campbell- Bannerman replied: "This subject is not one of those expressly included in the Russian programme, but it will not be lost sight of, and has, in fact, already been mentioned by H.M. Government as a subject which might be included. I cannot, however, make statements about the instructions to be given to the British representatives as long as discussions about the programme are still proceeding."