The first case mentioned in this Article-as to taking a direct part in the hostilities-includes various forms of service, e.g., laying or removing mines, acting as a scout, or notifying a blockading squadron of the approach of vessels. The third case refers to a vessel that is wholly chartered by the enemy Government, for purposes more or less directly related to the war, especially for transport, e.g., a collier accompanying a fleet, a vessel providing the enemy's forces with provisions. The fourth case contemplates permanent service, whereas the service considered in Article 45 was only temporary service; so that under Article 46, so long as the service lasts "the vessel is liable to capture, even if, at the moment when an enemy cruiser searches her, she is engaged neither in the transport of troops nor in the transmission of intelligence" (d). It makes no difference, of course, if the neutral vessel is engaged in the forbidden service in pursuance of a contract entered into before the war; for the essential point is not the time of the contract, but the time of the service done. If a belligerent finds a neutral vessel, then, committing any of the more serious offences relating to unneutral service, he may confiscate not only the cargo belonging to the owner of the vessel, but all enemy goods even though they are not contraband; furthermore he may, if circumstances demand, sink the vessel.

One or two cases that occurred in recent wars (but before the Declaration of London) may be recalled, in order to illustrate the above rules. In 1894, during the war between China and Japan, the Kowshing, a British vessel, was hired by China to transport troops and war material to Korea. She was encountered by a Japanese cruiser and, refusing to be taken into a Japanese port, was sunk. Protests were made, but the Japanese proceeding was justifiable, inasmuch as the Kowshing being notified of the state of war by the Japanese commander-assuming she was ignorant of it before (for a formal declaration was not then obligatory)should have undertaken to discontinue her unneutral service (e).

During the Russo-Japanese war, 1904, in reference to the Haimun, a vessel flying the British flag and chartered by a British war correspondent for the purpose of sending wireless messages to neutral countries, the Russian authorities declared they would. regard as spies correspondents who sent such messages to the enemy from certain areas, and seize their ships. Great Britain and the United States protesting, Russia took no further action. In the first place, the sending of such messages could not amount to

(d) Report on the Declaration, ibid.

(e) Cf. Holland, Studies in International Law (Oxford, 1898), p. 126.

Enemy combatants on neutral vessels.

espionage; secondly, it could not be unneutral service if the messages were despatched to neutral countries (ƒ).

In the same war, a German vessel, the Industrie, was condemned by the Japanese Prize Court, on the ground that, whilst purporting to send war intelligence to a newspaper at Chefoo, she was found sending information to the enemy with regard to the Japanese naval movements (g).

Again, in 1905, a French steamship, the Quangnam, took a cargo of spirits from Saigon to the Russian squadron in Kamranh Bay; then proceeding ostensibly to Manila actually directed her course between Formosa and the Pescadores, and reached Hatto Channel, where she was seized by a Japanese cruiser. She was brought before the Japanese Prize Court, and condemned on the ground that she was employed in the enemy's service in carrying supplies to his fleet and in reconnoitring on his behalf (h).

“Any individual embodied in the armed forces of the enemy who is found on board a neutral merchant vessel may be made a prisoner of war, even though there be no ground for the capture of the vessel" (i).

This Article introduces a modification of the earlier British view, as expressed, for example, in the Trent controversy (ii). As in the case of Article 45, the expression "embodied in the armed forces" does not apply to purely civil officials and to persons who are on their way to take up military service but have not yet joined their corps. It is difficult to see the ground for differentiating between men enrolled and men proceeding to be enrolled. The provision savours more of compromise than of logical consistency.

The vessel will not be subject to capture if, for example, the persons embodied in the enemy forces came on board as ordinary passengers and the master was ignorant of their status. But if the vessel deviated from her ordinary voyage for the purpose receiving such persons on board, such deviation will constitute a presumption of unneutral service, and so will render her liable to seizure.

During the war between Italy and Turkey, 1912, a French mail-boat, the Manouba, proceeding from Marseilles to Tunis, was seized by an Italian cruiser, and taken into Cagliari, on the

(f) On this case, see Takahashi, pp. 387 seq.; Hershey, Russo-Japanese War, pp. 116 seq.; Smith and Sibley, Russo-Japanese War, pp. 82 seq.

(9) Takahashi, p. 732.

(h) Ibid. p. 735.

(i) Declar. of London, Art. 47. (ii) See supra, pp. 178, 331.

ground that she carried a number of Turkish passengers who were thought to be military officers on their way to the scene of hostilities, but who claimed to be in the medical service. The French Government protesting, the vessel was released and the suspected passengers were committed to the charge of the French consul at Tunis, who undertook to prevent their crossing over into Tripoli if they were found on enquiry to be combatants." Subsequently, however, their arrest was shown to be unwarranted, and Italy paid compensation to France in accordance with an award of the Hague Court of Arbitration (k).

TRADE CLOSED

TO THEM IN

TIME OF PEACE.

At the London Naval Conference a proposal was put forward NEUTRALS that a neutral vessel should be regarded as an enemy vessel if she CARRYING ON made, with the enemy's authorization, a voyage which she was only permitted to make after the outbreak of hostilities or during the two preceding months. Had this proposal been accepted by the Conference, the "rule of the war of 1756" would have been formally revived, whereby a ship was deemed to lose her neutral character if she engaged in a trade which had been reserved in time of peace to the national marine of the enemy (1). The rule in question is, nevertheless, considered by Great Britain to be a constituent element of international law; though in several quarters a stand has been made against it from time to time. Its legality has always been contested by the American Governmentfrom the time the United States acquired their independence right down to our own day when their delegates at the London Naval Conference strongly opposed it-and it appears in its origin to have been founded on principles different from those that were later urged in its defence.

During the war of 1756, the French Government, finding the trade with their colonies almost entirely cut off by the maritime. superiority of Great Britain, relaxed their monopoly of that trade, and allowed the Dutch, then neutral, to carry on the commerce between France and her colonies under special licenses or passes, granted for this particular purpose, excluding at the same time all other neutrals from the same trade. Many Dutch vessels so employed were captured by the British cruisers, and, together with their cargoes, were condemned by the Prize Courts, upon the

(k) Cf. Amer. Journ. of Inter. Law, vol. vii. (1913), p. 629.

(1) Cf. Art. 57 of the Declaration of London, which says that a neutral vessel, which is engaged in a trade

closed to her in time of peace, is out-
side the scope of the rule whereby
the character of a vessel is determined
by the flag she is entitled to fly,
supra, p. 572.

principle, that by such employment they were in effect incorporated into the French navigation, having adopted the commerce and character of the enemy, and identified themselves with his interests and purposes (m). They were, in the judgment of these courts, to be considered like transports in the enemy's service, and hence liable to capture and condemnation, upon the same principle with property condemned for carrying military persons or despatches. In these cases the property was considered pro hâc vice, as enemy's property, as so completely identified with his interests as to acquire a hostile character (n). So, where a neutral is engaged in a trade, which is exclusively confined to the subjects of any country, in peace and in war, and is interdicted to all others, and cannot at any time be avowedly carried on in the name of a foreigner, such a trade is considered so entirely national, that it must follow the hostile situation of the country (o). There is all the difference between this principle and the more modern doctrine which interdicts to neutrals, during war, all trade not open to them in time of peace, that there is between the granting by the enemy of special licenses to the subjects of the opposite belligerent, protecting their property from capture in a particular trade which the policy of the enemy induces him to tolerate, and a general exemption of such trade from capture. The former is clearly cause of confiscation, whilst the latter has never been deemed to have such an effect. The rule of the war of 1756' was originally founded upon the former principle: it was suffered to lie dormant during the war of the American Revolution; and when revived at the commencement of the war against France in 1793, was applied, with various relaxations and modifications, to the prohibition of all neutral traffic with the colonies and upon the coasts of the enemy. The principle of the rule was frequently vindicated by Sir W. Scott, in his masterly judgments in the High Court of Admiralty and in the writings of other British public jurists of great learning and ability. But the conclusiveness of their reasonings was ably contested by different American statesmen, and failed to procure the acquiescence of neutral Powers in this prohibition of their trade with the enemy's colonies. The question continued a fruitful source of contention between Great Britain and those Powers, until they became her allies or enemies

(m) Cf. Berens v. Rucker, 1 W. Bl. 313; Brymer v. Atkins, 1 H. Bl. 165. (n) See The Immanuel (1799), 2 C. Rob. 186; The Yonge Thomas, 3 C. Rob. 232, n. Cf. Phillimore, vol. iii.

.385.

(0) The Princessa (1799), 2 C. Rob. 52; The Anna Catherina, 4 C. Rob. 118; The Rendsborg (1802), 4 C. Rob. 121; The Vrow Anna Catherina (1803), 5 C. Rob. 161. Wheaton's Rep. vol. ii. Appendix, p. 29.

at the close of the war; but its practical importance was afterwards much diminished by the revolution which has since taken place. in the colonial system of Europe (p).

From time to time the rule has not been enforced even by Great Britain; and the Manual of Naval Prize Law of 1888 expressly stated that its general application was suspended, and that it would only be enforced under special instructions (q). As no agreement was arrived at on the subject at the Naval Conference of 1908-1909, it must be considered as being now an open one (r).

Another exception to the general freedom of neutral commerce THE LAW OF in time of war is to be found in the trade to ports or places be- BLOCKADE. sieged or blockaded by one of the belligerent Powers.

earlier

writers.

A blockade (that is, a war blockade as distinguished from a Definition. 'pacific blockade') may be defined as "an act of war carried out by the warships of a belligerent, detailed to prevent access to or departure from a defined part of the enemy's coast" (s). The preventive measures are enforced against vessels of all nations. The earlier text-writers all require that the siege or blockade Views of should actually exist, and be carried on by an adequate force, and not merely declared by proclamation, in order to render commercial intercourse with the port or place unlawful on the part of neutrals. Thus Grotius forbids the carrying any thing to besieged or blockaded places, "if it might impede the execution of the belligerent's lawful designs, and if the carriers might have known of the siege or blockade, as in the case of a town actually invested, or a port closely blockaded, and when a surrender or peace is already expected to take place" (t). And Bynkershoek, in commenting upon this passage, holds it to be "unlawful to carry any thing, whether contraband or not, to a place thus circumstanced; since those who are within may be compelled to surrender, not merely by the direct application of force, but also by the want of provisions and other necessaries. If, therefore, it should be lawful to carry to them what they are in need of, the belligerent might thereby be compelled to raise the siege or blockade, which would be doing him an injury, and therefore would be unjust. And because it cannot be known what articles the besieged may

(P) Wheaton's Rep. vol. i. Appendix, Note iii. See Madison, Examination of the British doctrine which subjects to capture a neutral trade not open in time of peace."

(9) Art. 141.

(r) Cf. Parl. Papers, Miscell. No. 4

(1909), p. 100; and Miscell. No. 5
(1909), p. 247.

(s) Cf. the British memorandum,
Parl. Papers, Miscell. No. 4 (1909),
p. 5; see also No. 5 (1909), p. 35.

(t) Grotius, De Jur. Bel. ac Pac. lib. iii. cap. 1, § 5, note 3.