13.

1 Lord Chancellor Loreburn (then Sir Robert Reid) in an interesting letter published in the Times of October 14, 1905, dwelt on the, he believes, practical uselessness of the present system of capture as a means of crippling the enemy in the following passage: "I will suppose Great Britain at war with one or more great Continental Powers, and let it also be supposed that the British fleet has established its naval supremacy and has even blockaded the entire coast-line of its enemies, which latter is an uncommonly strong hypothesis. In those condition the only damage we could do to our imaginary enemies would be the suppression for the time of their carrying trade. Part of their merchant navy would be captured, and the rest would be confined to port. The injury would not be deadly. They could live upon their own produce and upon the produce of their neighbours carried by rail. They could dis pense with sea-borne merchandise, or, if required, could purchase it from neighbours who had imported it into their own country, and, but for blockade, they could import it themselves in neutral vessels. Such is the full measure of the mischief we could do to a Continental enemy by a triumphant exercise of the right of capture at sea supplemented by the estab lishment of a complete blockade. He would be to a great degree invulnerable by the weapon of capture, because he lives on a continent. Now all the Great Powers in the world, except ourselves and far distant Japan, live on continents. . . . Were we confronted in war by two strong naval Powers, a considerable time would probably elapse before all the enemy squadrons were driven from the ocean. Is our merchant navy to be laid up all that time? Nor ought we to exclude the possibility of reverses or of a conflict so evenly sustained that neither side could for an indefinite time assert a decisive naval superiority. In order justly to estimate the bearing on British interests of the existing law of maritime capture, all contingencies must be regarded, at least if they are not extravagantly improbable."

"The private property of all citizens or subjects of the signatory Powers, with the exception of contraband of war, shall be exempt from capture or seizure on the High Seas or elsewhere by the armed vessels or the military forces of any of the said signatory Powers. But nothing herein contained shall extend exemption from seizure to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of any of the said Powers";

That the following Vau expressed by the Conference in reference thereto was adopted:

1 See Note on National Indemnity for captures, p. 200.

2 The London Tribune of July 25, 1906, published an article by "a Hamburg corre spondent" giving views held in the German shipping world on the subject. The article was as follows: "Whatever be the views of the German Government, there is no doubt that the great majority of our shippers and commercial men are anxious to enlarge the rights of neutrals, and are by no means inclined to allow their real interests to be lost sight of under the plea of State necessity. Nay, they go further. Not only do they wish to strengthen the present exemption of neutral property not contraband of war from capture, but they wish naval warfare to conform to the principles of war on land, and they would, therefore, extend the principle of exemption from the citizens of neutrals to the citizens of belligerents. In short, they would assert the principle that no ship or cargo which is not contraband of war may be seized in war by either belligerent without due payment of compensation. But it is generally held here that there is no hope of this reform of international law and custom being carried, so long as the English Admiralty and English jurists continue to regard the destruction of an enemy's commercial marine and of his trade as one of the principal means and objects of a naval war. A lively dispute has been going on in Germany as to whether the English Courts would even recognise in time of war insurances of German property and shipping that have been effected in English insurance companies. Obviously, until this question has been settled, it is in vain to hope for a recognition of the wider principle.

In the meantime, however, it may be well to refer to a work by E. Fitger, a gentleman of Bremen, entitled Die Rückwirkung des Ostasiatischen Krieges auf das Völkerrecht. Herr Fitger, who writes from the point of view rather of the great shipping liners than of the tramp vessels, which do a less regular trade, comes to the conclusion, first, that no neutral vessel taken by a belligerent on the ground that she is engaged in contraband trade should be confiscated or destroyed; in every case such a ship ought to be either released or taken to be adjudged by a Prize Court. Secondly, he insists that Prize Courts should be international institutions, and not tribunals appointed by the belligerent Power. Thirdly, Fitger holds that an effort should be made to restrict the definition of contraband, and especially to shorten the list of those articles which may lawfully, under certain conditions, be declared contraband; and, lastly, he wishes more security to be afforded to mail steamers.

Here it may be well to mention what has already been referred to in the Tribune, that, after the Declaration of Paris, both Hamburg and Bremen repeatedly affirmed the desir ability of protecting private property at sea. In the last few years neither Hamburg nor Bremen has passed any resolution in regard to the immunity of private property at sea in wartime; but the Deutscher Nautischer Verein, with which both chambers of commerce are intimately linked, passed resolutions in 1871, 1890, 1900, and 1905, the most specific being those of 1905, when the secretary of the Hamburg Chamber of Commerce, Dr. Gutschow, acted as reporter for the committee. The terms of the resolution are as follows:

The Nautische Verein (Maritime Union) resolve, with one dissentient, on a petition to the Imperial German Chancellor to exercise all the influence he can bring to bear in the direction that

(1) The international laws applying to the rights of belligerents in naval warfare be developed in a spirit of humanity, and with due regard to the circumstances of maritime intercourse; and especially that

(a) The seizure and destruction of private property (excepting contraband of war) belonging to subjects of the belligerent nations be declared inadmissible;

(6) The right of searching merchant vessels be exercised only in the case of ships proceeding to an enemy's port;

(c) The term contraband of war be defined.

The real and immediate question is what is likely to be the opinion of the Government of the greatest naval Power in the world. In short, it will depend upon the attitude of Great Britain at the Hague Conference whether the widespread desire for this great reform of the laws of capture at sea (which prevails not only in Germany, but throughout the shipping and commercial circles of the entire world) shall or shall not be speedily realised and carried out by an international convention.

3 See p. 4.

1. (a) The belligerent right to capture and appropriate as lawful prize merchant vessels belonging to subjects or citizens of the enemy State is abolished.

(b) Such vessels shall, nevertheless, be subject to capture and confiscation if they shall attempt to enter a blockaded port, after notice to them of the existence of the blockade.

(c) Such vessels carrying contraband of war, as hereinafter defined, shall also be liable to capture and confiscation.

2. By "notice" of a blockade is meant such notice as shall be given by the authorities at the last port called at by the vessel in question, or notice given by the commander of the blockading squadron. If the notice shall have been insufficiently precise to enable the captured merchant vessel to avoid the blockaded area, this shall be considered in attenuation by the Prize Court. The signatories hereof undertake, immediately after receipt of notice of a blockade, to bring it to the knowledge of the commanding officers of all vessels in their ports, and to endorse it, as far as practicable, on the ships' documents. Belligerent commanders, on inspection of any ship's documents, shall endorse thereon, among the usual particulars, notice of any blockade the naval authorities of his country may be exercising.1

1 Co-operation between the neutral and belligerent States is obviously indispensable to avoid uncertainty as regards notice. See proposed clauses altering law of blockade, p. 165. See also p. 207 et seq.

3. The distinction between absolute and conditional contraband of war is hereby abolished, the following articles alone being henceforth admissible as contraband of war: [List thereof to be agreed.2]

2 Enemy and neutral correspondence will have to be considered in fixing the enumeration. Compare list, p. 168. See as to Mail Ships, p. 170.

4. On the outbreak of war the belligerents shall fix the limits of the area and distance from the seat of war within which they will exercise their right of search for contraband of war.3 Outside this area or beyond this distance, production to the belligerent commander of the ship's papers with a certificate delivered by

3 See Chap. IX. and Draft VI. This provision is not strictly within the scope of the present assimilation, but it would find its proper place in a treaty on the lines of the present draft.

Considering that Art. 10 of the General Act of Berlin of

Feb. 26, 1885, provides that:

"In order to give a new guarantee of security to trade and industry, and to encourage by the maintenance of peace the development of civilisation in the countries mentioned in Article I.,1 and placed under the free-trade system, the High Signatory Parties to the present Act, and those who shall hereafter adopt it, bind themselves to respect the neutrality of the territories or portions of territories, belonging to the said countries, comprising therein the territorial waters, so long as the Powers which exercise or shall exercise the rights of Sovereignty or Protectorate over those territories, using their option of proclaiming themselves neutral, shall fulfil the duties which neutrality requires."

1 This Article extends the application of the free-trade declaration to all the territories forming the basin of the Congo and its tributaries. It adds a zone eastwards of the Congo Basin to the Indian Ocean, and concludes as follows: "It is agreed that, in extending the principle of free trade to this eastern zone, the Powers represented at the Conference only enter into an undertaking for themselves, and that this principle does not apply to territory belonging at present to any independent and sovereign State without its consent. The Powers undertake to employ their good offices with the Governments established on the African shore of the Indian Ocean with a view to obtaining their consent thereto, and, in any case, to assure the most favourable conditions of transit for all nations."

But that no provision has been made for the mode in which notice of such a proclamation of neutralisation shall be given; 2

2 The provision made for notice in case of occupation is as follows: "Any Power which shall henceforth take possession of any territory on the shores of the African Continent, situate outside its present possessions, or which, until now, having none, shall come to acquire any such possessions, and any Power which shall assume a protectorate, shall accompany the document relating thereto by a notification addressed to the other Powers, signatories to the present Act, in order to enable them, if need be, to make good any claims" (Art. 34).

"In case a Power exercising rights of Sovereignty or Protectorate in the countries mentioned in Article I., and placed under the free-trade system, should be involved in a war, then the High Signatory Parties to the present Act, and those who shall hereafter adopt it, bind themselves to lend their good offices in order that the territories belonging to this Power and comprised in the conventional free-trade zone shall, by the common consent of this Power and of the other belligerent or belligerents, be placed during the war under the rule of neutrality, and considered as belonging to a nonbelligerent State, the belligerents thenceforth abstaining from extending hostilities to the territories thus neutralised, and from using them as a basis for war-like operations."