lated the chances of escape, and chosen to run the risks. To indemnify him for losses incurred might be to relieve the shipowner or shipper from the consequences of his want of foresight and caution. Whether it is expedient for England at the present day to agree to the immunity of private property at sea from capture, must be dictated by the circumstances of the particular war in which she might be engaged. It is quite conceivable that dif ferent considerations would weigh with her in a war with the United States1 from those which would arise in a war with France or Germany. In the case of the United States, it might be in the interest of both parties to localise the operations of war, and to interfere as little as possible (perhaps for the joint exclusion of neutral vessels) with the traffic across the Atlantic. In the case of a war with France or Germany, England might consider the closing of the sea to all traffic by the merchantmen of the enemy very much to her own interest. recur. 1 The following thoughtful passage in Capt. A. T. Mahan's great book on Sea Power is worth meditation in this connection :"The circumstances of naval war have changed so much within the last hundred years, that it may be doubted whether such disastrous effects on the one hand, or such brilliant prosperity on the other, as were seen in the wars between England and France, could now In her secure and haughty sway of the seas, England imposed a yoke on neutrals which will never again be borne; and the principle that the flag covers the goods is for ever secured. The commerce of a belligerent can therefore now be safely carried on in neutral ships, except when contrabrand of war or to blockaded ports; and as regards the latter, it is also certain that there will be no more paper blockades. Putting aside, therefore, the question of defending her seaports from capture or contribution, as to which there is practical unanimity in theory and entire indifference in practice, what need has the United States of sea power? Her commerce is even now carried on by others; why should her people desire that which, if possessed, must be defended at great cost?"-Influence of Sea Power upon History (1660-1783), 5th ed., London, p. 84 (no date). (Ref. dated Dec. 1889.) the other hand, there is the consideration of whether transfers of ships to neutral flags, which are not bona fide, are valid against a belligerent. In case of doubt, the rates of insurance might be almost as heavy under the neutral as under the belligerent flag. Belligerent cargo-owners, having the alternative of using a ship liable to capture or one not so liable, would naturally choose the latter; but would this affect the great mass of traffic of a carrying country like England, which alone possesses the means of doing its own trade? 3 Apart from expediency, necessity of war, that is, the necessity in which, by the nature of things, a commander is placed of preserving his own forces against destruction, and of defeating the forces of the enemy, might frustrate the operation of the bestdevised rules for the protection of private property. 2 It is interesting in this connection to read another passage in Capt. Mahan's Influence of Sea Power upon History, London, 1889: There was . . . an impression largely held by French officers of that day" (i.e. end of 18th century), "and yet more widely spread in the United States now, of the efficacy of commerce-destroying as a main reliance in war, especially when directed against a commercial country like Great Britain. . . . The harassment and distress caused to a country by serious interference with its commerce will be conceded by all. It is doubtless a most important secondary operation in naval war, and is not likely to be abandoned till war itself shall cease; but regarded as a primary and fundamental measure, sufficent in itself to crush an enemy, it is probably a delusion, and a most dangerous delusion, when presented in the fascinating garb of cheapness to the representatives of a people. For two hundred years England has been the great commercial nation of the world. More than any other, her wealth has been entrusted to the sea in war as in peace; yet of all nations she has ever been most reluctant to concede the immunities of commerce and the rights of neutrals. Regarded not as a matter of right but of policy, history has justified the refusal; and if she maintain her navy in full strength, the future will doubtless repeat the lesson of the past."-Pp. 539-540. This passage, by the bye, answers the question put in a letter to the Times, signed Pax (March 30, 1907), in which the distinguished writer asks if there is any known instance in which destruction of private property at sea-blockades excepted-has seriously affected the result of a war, probably in the sense he wishes to elicit. 3 The question has been dealt with very fully by the International Law Association in papers by Mr. Charles H. Butler, of the New York Bar, and the present writer at the Buffalo meeting in 1899; by Mr. Justice Phillimore, Mr. Wood Renton, M. Georges Marais, and Mr. C. C. Hyde on behalf of an American committee on the subject, at the Rouen meeting in 1900; and by Mr. Justice Kennedy at the Berlin meeting in 1966. See also articles in the June Nos. (1907) of the National Review, by Capt. Mahan, and Nineteenth Century, by Mr. Julian S. Corbett against, and of the Albany Review, by Mr. Francis W. Hirst, in favour of, Immunity. Prof. Oppenheim, in his International Law (1906, vol. ii. p. 186), observes that "whereas formerly continental opinion was nearly unanimous in postulating the abolition of the rule (e.g. liability to capture), the number of those is increasing who defend its preservation." Lastly, a question of contraband is involved. Contraband is necessarily and for obvious reasons excepted from the proposed immunity. Therefore the presence in the cargo of unconditional contraband (also enemy troops) would cancel the immunity of the ship and entail all the existing inconveniences, except confiscation, against innocent1 ship-owner and innocent cargoowners. The presence in the cargo of conditional contraband would entail the same inconveniences for the non-contraband cargo. The contractual adoption of the British rules as to pre-emption 2 might, however, dispense with trial by a Prize Court in the case of conditional contraband. 1 The proposers of immunity do not seem to have dealt with the consequences for the ship-owner of knowingly carrying unconditional contraband. 2 See p. 92, note 1. The advocates of immunity have hitherto confined themselves to the vague enunciation of a desire to see it adopted. The subject, however, can only be satisfactorily considered in connection with all its working conditions. For the purpose of ascertaining them, moreover, it is necessary to determine what is meant by immunity. Is the immunity that which is practised in regard to neutral private property at sea, or is it the supposed immunity of enemy private property on land? The consequences of the one point of view are very different from those of the other. The annexed draft forms of treaty treat the subject first from the one and then from the other. The note on the proposal of turning the difficulty by a system of National Indemnification, though beyond the scope of International Law and Practice, is added to enable the reader to take a comprehensive view of the question in its domestic as well as its international bearings. 4 See p. 172 et seq. and 176 et seq. 5 See p. 2:0. IX LIMITATION OF It seems contrary to common sense that neutral ships should be exposed to being detained, taken out of their course, and overhauled on mere suspicion of carrying contraband, when they are so far from the seat of war that there can be no presumption as to their destination. Neutrals have a right to carry on their ordinary business unmolested in so far as they do nothing to assist either belligerent. When they are beyond a certain distance from the seat of war, it seems reasonable that the presumption that they are merely carrying on their legitimate business be considered absolute. Such a limitation of the area of hostilities is not only feasible, but it was actually put in practice by the British Government during the Boer war. As early as January 1900 it was reported that the British Government had issued instructions to British naval commanders not to stop or search German merchant vessels at any places not in the vicinity of the seat of war. There is no British statement in our own publications, the only official information on the subject having been given by the German. Chancellor in a speech to the Reichstag. According to this information, the area was ultimately limited as north of Aden, and afterwards it was agreed that the immunity from search should be extended to all places beyond a distance from the seat of war equal to the distance from it of Aden. This was substantially correct, though the telegrams sent by the Admiralty can. hardly be said to have fixed any precise area. As a fact, the Commanders-in-Chief on the East Indies and Cape of Good Hope Stations were instructed that, in consequence of the great practical difficulty of proving-at ports so remote from the scene of war operations as Aden and Perim the real destination of contraband of war carried by vessels visiting those parts, directions were to be given to the officers concerned to cease to search such vessels, and to merely report to the Commander-inChief at the Cape the names of ships suspected of carrying contraband, and the date of clearance. In the course of the Russo-Japanese war the question was raised this time by Great Britain. Lord Lansdowne called the attention of the Russian Foreign Office to the extreme inconvenience to neutral commerce of the Russian search for contraband, not only in the proximity of the scene of war, but all over the world, and especially at places at which neutral commerce could be most effectually intercepted. "H.M. Government had become aware that a large addition was likely to be made to the number of Russian cruisers employed in this manner, and they had, therefore, to contemplate the possibility that such vessels would shortly be found patrolling the narrow seas which lie on the route from Great Britain to Japan in such a manner as to render it virtually impossible for any neutral vessel to escape their attention. The effects of such interference with neutral trade would be disastrous to legitimate commerce passing from a British port in the United Kingdom to a British port in the Far East." The British Government had no desire to place obstacles in the way of a belligerent desiring to take reasonable precautions in order to prevent the enemy from receiving supplies. They insisted, however, that the right of taking such precautions did not imply "a consequential right to intercept at any distance from the scene of operations, and without proof that the supplies in question were really destined for the use of the enemy's forces, any articles which that belligerent might determine to regard as contraband of war." 1 1 Lord Lansdowne to Sir C. Hardinge, August 10, 1904. The position thus assumed is not clear. On the one hand, the British claim did not, it is seen, go as far as the restriction Great Britain consented to place on her own right of search during the Boer war, seeming to apply only to the case of ships carrying conditional contraband. On the other, the complaint is based on the "interference" with neutral trade, which means the stoppage and search of vessels to ascertain whether they have contraband of any kind on board or not. It must not be forgotten that restriction of the rights of the belligerent necessarily entails extension of the duties of the neutral. The belligerent has an unquestioned right to "interfere" with all neutral vessels navigating in the direction. of the seat of war, for the purpose of ascertaining whether they are carrying any kind of contraband or not. Visit and search might be rendered less necessary by a system of certification of the ship's documents, as between States which ensure by domestic regulations a correspondingly strict observance of neutral duty.2 2 See suggestions on this subject, pp. 83 and 16c. X EXCLUSION OF SPECIFIC AREAS FROM HOSTILITIES, AND NEUTRALISATION BY PROCLAMATION FROM time to time questions of adding to existing neutralised When the Doggerbank incident occurred, the possibility of operations of war being carried on within a few miles of British home ports, and amid the busy traffic of the North Sea, was brought vividly home to British minds. 1 Several treaties, such as the Peace of Roeskilde (1658), the Russo-Swedish Treaties of 1759, the Russo-Swedish Treaty of 1780, and the Russo-Prussian Treaty of 1781, have declared the Baltic closed against all warfare. The Treaty of 1780 provided that Russia and Denmark, being equally interested to assure the safety and tranquillity of the Baltic Sea, "shall continue to sustain its character as a closed sea, in which all nations may and must navigate in peace. 2 The subject was revived as recently as March 1907 by the Paris correspondent of the Times. His communication elicited a letter to that paper (March 16) from the Danish Minister in London, in which he stated: "To maintain the free passage to the Baltic sans entrave quel conque is an obligation accepted by Denmark in the Treaty of March 14, 1857, with all European Powers; it is a recognised part of International Law. There is not a shadow of support for the belief that any Power contemplates a change. There is not a man alive in Denmark who does not reject the idea as one pregnant with danger to the neutral policy of his country, which King, Government, and people alike consider their salvation."-(See the further communications from correspondents of the Times, March 6, 11, 15, and 19.) ... There are many instances of neutralised areas, and among them a remarkable instance of practical neutralisation in the case of the American lakes. In 1817, at the instance of John Quincy Adams, the United States and Great Britain entered into a compact whereby the Great Lakes, and the waterways from them to the Ocean by the St. Lawrence River, which divide the United States from the Dominion of Canada, were practically excluded from any possible hostilities. Through a simple agreement, "conditions which make for peace and prosperity, and the absence of those which so often lead to disastrous war, have for nearly a century reigned over these great inland waters, whose commerce, conducted for the benefit of the States and nations of Europe and America, rivals that which passes through the Suez Canal or over the Mediterranean Sea, and with a result foreshadowed in these words of President Monroe in his communication to the Senate commending the proposed agreement: ΙΟ |