curious results." "1 In some cases "what has been on one side intended as an ultimatum, to be followed under certain contingencies and after a certain lapse of time by a declaration of war, has been, according to the strength or weakness of the Power receiving it, treated sometimes as an actual declaration of war, and thereupon at once acted upon; sometimes it has been regarded as only a rather more than ordinarily threatening communication, suggesting a more active stage of diplomacy; so that in either event a virtually complete surprise has been effected when hostilities have actually commenced. Of all these the most interesting and most curious is Lord Palmerston's misunderstanding of the withdrawal of the French Ambassador from London in 1850. It is abundantly clear that if ever the withdrawal of an ambassador was used as the modern equivalent of a declaration of war, or warning of war, to be followed by acts of hostility without further notice, that withdrawal of the French Ambassador was so regarded by the withdrawing Cabinet, and so understood by the French Senate and House of Representatives, to which it was announced. Yet in the most formal manner Lord Palmerston, who had had read to him the despatch recalling the Ambassador, declared that the recall was a purely friendly one. Now certainly, whatever may be the verdict of history as to the character and ability of Lord Palmerston, it will not be possible to declare that he was unversed in diplomatic usage, or that a misunderstanding which occurred when he was at the Foreign Office, in 1850, may not occur to-morrow, no matter who holds the seals of the Foreign Office." 2

On the other hand, in 1871 the recall of a Minister Plenipotentiary was interpreted in the opposite sense from that above, and again in a way different from that intended. "Certain passages in the President's Message, coupled with the abrupt recall of Mr. Motley, the United States Minister in England, had aroused fears in the minds of some who earnestly desired the maintenance of pacific relations between the Old and the New Country, that General Grant had resolved on presenting a categorical demand to the British Government, which, if not complied with, would at once be followed by the outbreak of hostilities. . . When, however, on a requisition from the Senate at Washington, the documents relative to Mr. Motley's recall were brought to view, it appeared that it was because that Minister had too much identified himself with the policy of Sumner" (that is, with a course too violently hostile to England, and almost threatening war),

of the owner. Of all the rights belonging to a State, under international law, that of legitimate self-defence or national conservation is the first and most sacred. "One last observation as regards the Kow-Shing incident. The question of indemnity incurred through the Kow-Shing incident was simply a civil matter, and therefore was quite outside public international law. Messrs. Jardine & Matheson, in accordance with the views of the British Government, as a fact, considered the sinking of the Kow-Shing as an act which took place after the opening of hostilities, and did not claim on that ground any reparation from Japan" (p. 16 et seq.).

See also Prof. T. E. Holland's Studies in International Law (1898), p. 126 et seq., whose view of the incident is not materially different from Prof. Ariga's.

4 It was only on February 10, two days after the Japanese began hostilities, that the Japanese Government issued a declaration of war. The translation of it into English was communicated by the Japanese Legation in London to the London morning papers the next day, and published by them on February 12. This Japanese Declaration of War was as follows:

"We, by the Grace of Heaven, the Emperor of Japan, seated on the Throne occupied by the same dynasty from time immemorial, do hereby make proclamation to all our loyal and brave subjects as follows:

"We hereby declare war against Russia, and we command our army and navy to carry on hostilities against her in obedience to duty and with all their strength, and we also command all our competent authorities to make every effort in pursuance of their duties and in accordance with their powers to attain the national aim, with all the means within the limits of the law of nations.

"We have always deemed it essential to international relations, and made it our constant aim to promote the pacific progress of our Empire in civilisation, to strengthen our friendly ties with other States, and to establish a state of things which would maintain enduring peace in the Extreme East, and assure the future security of our Dominion without injury to the rights and interests of other Powers.

"Our competent authorities have also performed their duties in obedience to our will, so that our relations with all Powers have been steadily growing in cordiality.

"It was thus entirely against our expectation that we have unhappily come to open hostilities against Russia.

"The integrity of Korea is a matter of gravest concern to this Empire, not only because of our traditional relations with that country, but because the separate existence of Korea is essential to the safety of our realm.

"Nevertheless, Russia, in disregard of her solemn treaty pledges to China and of her repeated assurances to other Powers, is still in occupation of Manchuria, and has consolidated and strengthened her hold upon those provinces, and is bent upon their final annexation.

"And since the absorption of Manchuria by Russia would render it impossible to maintain the integrity of China and would, in addition, compel the abandonment of all hope for peace in the Extreme East, we determined, in those circumstances, to settle the question by negotiations and to secure thereby a permanent peace.

"With that object in view our competent authorities by our order made proposals to Russia, and frequent conferences were held during the last six months.

"Russia, however, never met such proposals in a spirit of conciliation, but by her wanton delays put off the settlement of the serious question, and by ostensibly advocating peace on the one hand, while she was on the other extending her naval and military preparations, sought to accomplish her own selfish designs.

"We cannot in the least admit that Russia had from the first any serious or genuine desire for peace. She has rejected the proposals of our Government. The safety of Korea

is in danger. The interests of our Empire are menaced. The guarantees for the future which we have failed to secure by peaceful negotiations can now only be obtained by an appeal to arms.

"It is our earnest wish that by the loyalty and valour of our faithful subjects peace may soon be permanently restored and the glory of our Empire preserved."

5 A Reuter's telegram from St. Petersburg, dated February 10, reported :"In Imperial Court circles it is stated that the Emperor, on learning of the decision of the Japanese Government to break off diplomatic relations with Russia, said that "he saw in that act of folly an insolent and very offensive provocation to Russia, given at the very moment when she was doing her utmost to arrange a pacific settlement of the misunderstandings with Japan.

1 Maurice, Hostilities, etc., p. 6.

2 Maurice, Hostilities, etc., p. 6.

"not because he was too yielding to the claims of England." "Mr. Fish said it was expected that Mr. Motley would have represented the views of his Government, but that before he left America it became apparent that upon a question of controlling interest at that moment, occupying the attention of the thoughtful and prudent, to restrain the passions which had been excited by eloquent declamation and powerful rhetoric, Mr. Motley accepted the views upon which popular excitement had been stimulated and brought to the verge of dangerous irritation, rather than those which the President deemed to be sound, and based upon the true principles of public law." Mr. Fish went on to point out that in the teeth of his instructions Mr. Motley had talked of the "gravity of the occasion," of the "burning questions of grievance." "More than once he was said to have gone to the very verge of admissible diplomatic suggestion in alluding, without any authority for so doing, to the contingencies which would depend on negotiations concerning such vital questions." Thus when an ambassador was recalled because he was too threatening and warlike, his recall was supposed to be an act threatening war, and it tended to produce that very state of feeling between the two countries which has often led to sudden war.1

1 Annual Register for 1871, p. 283; and Maurice, Hostilities, etc., p. 79

Nothing more conclusively shows the danger of trusting to constructive notice of war than the consequences of President Cleveland's famous Message about Venezuela of December 17, 1895, in which he proposed to Congress to appoint a Commission to determine the boundary between British territory and Venezuela, adding that it would be the duty of the United States "to resist by every means in its power, as a wilful aggression upon its rights and interests, the appropriation by Great Britain of any lands, or the exercise of governmental jurisdiction over any territory, which, after investigation, the United States had determined of right belonged to Venezuela." President Cleveland's proposal was accepted by Congress. If any other Power but the United States had been concerned, there is little doubt that such intervention would have exposed the two countries to a very dangerous state of feeling; for although Great Britain did not pick up the glove thus thrown down, the whole world was deeply impressed. In three days. the value of American securities is estimated to have fallen by £100,000,000, and a panic in Wall Street on 20th December

obliged the President to issue a fresh Message in the afternoon to reassure the public.1

It seems difficult, in the face of so many difficulties, to lay down any rules capable of contractual adoption. It can, nevertheless, do nothing but good to reiterate the principle that the rules of conduct men are expected to observe in their business relations with each other should be observed in the business relations of nation with nation. This is no doubt all that is meant by the first clause of Prof. Rolin's rules set out above, which, with a slight modification, was accepted by the Institute at the Ghent meeting (Sept. 20, 1906). More than this is probably impossible.

The Rules adopted by the Institute at the Ghent meeting, in their entirety, however, are as follow::

(1) It is in accordance with the requirements of International Law, and with the spirit of fairness (loyauté) which nations owe one another in their mutual relations, as well as in the common interest of all States, that hostilities should not commence without previous and unequivocal notice.

(2) This notice may take the form of a declaration of war, pure and simple, or that of an ultimatum, duly notified to the adversary by the State about to commence war.

(3) Hostilities should not begin till after the expiry of a delay sufficient to ensure that the rule of previous and unequivocal notice may not be considered as eluded.

1 An instance of with how little warning war may be precipitated when Governments wish to quarrel. is the state of neutral inexpectancy which preceded the outbreak of the Franco-German war. Thus, on July 11, 1870, Lord Granville stated in the House of Lords that on receiving the seals of office a few days earlier he had had an official communication from the Under-Secretary, Mr. Hammond, at the Foreign Office, that with the exception of a capture of Englishmen by Greek brigands, he had never, during his long experience, known so great a lull in foreign affairs, and that he was not aware of any important question which would have to be dealt with. The same evening he received a telegram informing him of the choice which had been made by the Provisional Government of Spain of Prince Leopold of Hohenzollern, and of his acceptacce of the offer. This had led to "strong language," used at once by the French Government to the Prussian, and the existence of "a strong and excited public opinion in France." Three days afterwards the Benedetti incident occurred, and on the 19th of July war was formally declared. The whole period, therefore, between Mr. Hammond's statement and the incident which so raised French passions that war from that moment became inevitable, was two hours, and the whole period between Lord Granville's statement and the formal declaration of war was eight days. See Maurice, Hostilities, etc., p. xii.

It seems worthy of consideration whether the present practice of recalling diplomatic missions in acute cases of international difficulty is at all justifiable until hostilities have actually begun, and there is no further hope of avoiding war. The contractual abolition of the practice would remove one of the chief dangers of misunderstanding at critical moments, and, by prolonging negotiations under even limited treaties of arbitration like those based on the Anglo-French model, would add to the effectiveness of such treaties for the preservation of peace without altering their terms.2

2 See a suggested vau on the subject, p. 184.

distance of forty miles." These figures show that there must have been a mine at about every 100 yards. "In spite of this great plexus of destructive engines," communications with Vladivostok continued undisturbed during the period of eight months from April 15, 1905, when the Askold-Korsakoff line was laid, to November 9 of the same year, when the Japanese Admiralty replied to the Russian inquiry."

The danger involved for neutrals in these mines, however, has been amply shown by the destruction of four inoffensive merchantmen in the neighbourhood of Port Arthur. It is no answer, as regards the danger to neutrals, to say no neutral ships-nor indeed any ships at all-were injured by the Japanese mines on the high sea outside Vladivostok. The danger was there, and it was increased by derelict mines wandering beyond the dangerous area. Some dozen it seems drifted as far south as the Oki Islands, over 1000 miles away from where they were laid.1

As regards the questions set out above :-

(1) There is no doubt as to the illegality of laying mines. beyond the limits of territorial waters. In pretty general (but not universal) practice a zone of three miles along the coast-line is recognized as being under the sovereignty of the adjacent State. Bays not exceeding ten miles from headland to headland are assimilated to estuaries of the same width, the coastline from which the zone is calculated passing from such headland to headland. Beyond this zone is the High Sea, which is the common property of mankind, and belligerents have no right to interfere with its safety beyond exercising the rights of visit and search and effective blockade, which are specific and wellascertained rights, not capable of extension to cover the laying of mines.2

(2) As regards Territorial Waters, a right of inoffensive passage is universally recognised in favour of all navigators without distinction. Under the existing practice of Europeans, this right can only be abridged by the exigencies of the exercise of the belligerent right of effective blockade on the one side and the general exigencies of defence on the other. In 1894 the Institute of International Law laid down the rules governing the

1 The Daily Mail of March 13, 1906, contained the following paragraph, dated "OSTEND, March 11. "Some consternation was caused here on Thursday, when the Dover mail boat reported a floating mine off the coast. A tug was sent out to remove the mine, which was found to have drifted from the defences at Dunkirk. A French torpedo-boat arrived on Friday, and after paying £60 as salvage, took the mine away."

On October 15, 1906, the Standard announced that sixteen floating mines had got adrift in the Solent. Ten of them had been recovered, but the other six had not been found. The naval authorities at Portsmouth had issued a statement to the effect that so long as the mines remained in deep water there was no danger, but should they be carried inshore they would be a serious menace to small craft.

From Vladivostok a telegram of October 21, 1906, to the Times announced that the Russian steamer Variag, when leaving the harbour the day before, had struck a torpedo and sank immediately. Two hundred passengers perished, only one being rescued.

The Morning Leader announced, on October 24, 1906, from Copenhagen, that the German Government had notified the Danish Baltic Authorities that a floating mine had become detached during the recent manoeuvres, and could not be found.

These are only a few of many announcements in the daily newspapers showing the danger to navigation of floating mines.

2 See chapter on Territorial Waters, p. 109 et seq.

See Professor von Martitz' interesting paper on "Mines in Naval War," read at the Berlin meeting of the International Law Association (Oct. 1906), in which he claims for belligerents the right to lay down mines as far seawards as ten nautical miles (cannon-range) from the coast, cannon-range, in his opinion, still determining the width of the Territorial Waters' zone, subject to any contractual arrangement fixing it otherwise.