144 THE TWO HAGUE CONFERENCES 4 capture, except those carrying contraband of war or endeavoring to break a blockade. 3. The Treatment of Captured Merchant Crews This topic was not included within the Russian programme or proposals, but was introduced by the delegations of Great Britain and Belgium. Great Britain proposed that when a merchant ship belonging to the enemy, but navigating with an exclusively commercial object, is captured by a belligerent, the members of its crew who are subjects or citizens of a neutral power shall not be made prisoners of war. The proposition also included the captain and officers of the ship, provided that they too were citizens of a neutral nation and would give a promise in writing not to serve on an enemy's ship during the rest of the war. This proposition was adopted unanimously. Belgium's delegation proposed to extend this rule to the captain, officers, and crew of a captured merchant ship, even though they were subjects or citizens of one of the belligerent powers. And the commission and conference adopted this liberal proposal also unanimously. 4. The Exemption of Certain Ships This topic was brought before the IV Commission by Professor de Martens's question, "Are coast fishing boats, even those owned by the subjects of a belligerent state, proper subjects for capture (de bonne prise)?" This question was answered by an Austro-Hungarian proposal to exempt from capture small coasting vessels in general, - except for requisition in case of military necessity; and by a Portuguese proposal to exempt fishing boats from capture provided they do not approach war ships, or hinder the operations or place themselves at the service of a belligerent. If they did any of the excepted things, they were, according to the Portuguese proposal, to be treated as "auxiliary vessels"; and the large fishing vessels were to be considered merchant vessels, "a status," remarked Ambassador Choate, of the United States, "which is accorded them in the American courts." Count Tornielli, of Italy, proposed that the exemption of ships engaged in scientific or humanitarian missions should also be carefully considered. There was no objection whatever to these various rules as they have been observed in practice for many generations, and every one was glad to see them "definitively consecrated in a conventional arrangement." The rule as adopted in regard to fishing boats provided that their exemption should depend upon their being used exclusively for coast fishing. But no attempt was made to define the distance out to sea implied by the term "coast fishing," because of the variety of coasts and of the depths of fishing. Nor was an attempt made to fix a limit on the tonnage of fishing boats, a maximum number for the crew, or any special kind of construction. It was thought that the sole proviso necessary was that they should be used exclusively for fishing purposes, and a strict prohibition was placed both upon their owners and upon the states to utilize them for any military purposes whatsoever while preserving their peaceful appearance. The ancient custom of exempting ships engaged in scientific missions, which was strikingly illustrated by the case of "La Pérouse," was made the basis of the formal rule, proposed by the Italian delegation, exempting from 146 THE TWO HAGUE CONFERENCES capture ships charged either with scientific or with religious or philanthropic missions. 5. The Exemption of Mail This topic was not mentioned in the Russian programme, but was introduced in the IV Commission by the German delegation which proposed that correspondence conveyed by sea should be made inviolable, whatever its character, official or private, belligerent or neutral; that in case of the capture of the vessel carrying mail, the captor must provide for its expedition by the promptest means possible; and that, apart from the inviolability of postal correspondence, mail packet boats should be subject to the same conditions as other merchant ships, except that belligerents should abstain as much as possible from exercising over them the right of visit, and should make such visit with all possible consideration. This freedom demanded for mail in time of war as in time of peace was willingly conceded by the conference, which passed the rule as proposed by the German delegation, except that mail destined to or coming from a blockaded port is not to be inviolable. The general satisfaction was expressed by General Poortugael, of the Netherlands, who congratulated the conference on having at last incorporated in international law a reform which has been striven for for more than thirty years. D. THE RIGHTS AND DUTIES OF NEUTRALS a. THE CONFERENCE OF 1899 This topic was not mentioned in the Russian programme, but was introduced into the discussions of one of the naval subcommissions by a very elementary and relatively unimportant proposition. In connection with the question of the use of new arms and methods in naval warfare, Captain Schéine, of Russia, proposed that the contracting powers. concede to neutral states the "faculty" of sending their naval attachés to "the theater of maritime warfare," with the authorization and under the control of the competent military authorities of the belligerent powers. He argued that this action would give to neutral naval attachés the standing already conceded to military attachés in armies on land. Against this proposition it was at first argued that there was no urgent need of providing for the measure, as it was already being resorted to. And when Captain Schéine replied that a recent case had proved that need, the subcommission decided that the proposition was equivalent to compelling belligerents to admit neutrals on board their war ships; that, since the practice differed in different countries, its regulation should be left to special treaties between neutrals and the belligerents; and that neither the subcommission nor the conference was competent to deal with the matter. It therefore declined to discuss it further, and the question of neutral rights and duties on the sea was not again brought up in the first conference. But, as will be seen later, in consequence of an important resolution adopted by the first conference concerning neutral rights and duties on land, the maritime rights and duties of neutrals came up in far more important aspects in the Conference of 1907. 'Captain Schéine first used the word "right" (droit), but changed it to faculté. 142 THE TWO HAGUE CONFERENCES and Admiral Sperry, of the United States, said that the delay should be obligatory upon belligerents only within the limits of military necessities. France proposed as a compromise between the extremes of favor and right, that the statement be made that the "delay of favor is desirable," but that, if a merchant ship should be seized without warning, or before it could profit by a warning to make good its escape, it should not be confiscated, but either retained during the war and restored without indemnity after the war had ended, or requisitioned on condition of indemnity. This compromise proved acceptable to both parties to the controversy, and was adopted by the conference. As to the duration of the delay, the Russian proposal was merely for "a fixed time"; but the Netherlands delegation moved that the time should be fixed at "not less than five days." Admiral Sperry and other delegates objected to the fixing of any specific time, and it was finally decided that the ship should be permitted to depart "immediately, or after a sufficient delay of favor." There was general agreement that the delay of favor should apply both to merchant ships lying in the enemy's ports at the commencement of hostilities, and to those which, having left their last port of departure before the commencement of the war, enter the enemy's ports in ignorance of the hostilities. But when the question arose as to those ships encountered on the high seas in ignorance of the war, there was a decided difference of opinion. Great Britain championed the view that such ships should be accorded the same treatment as was provided for the other two classes. But Germany insisted upon the right of destroying them on the high seas, and argued that by |