cessity of translating for the use of counsel the speeches made before the tribunal inevitably caused great loss of time.

They therefore suggested that future protocols of submission should state the decision of the contracting parties on this subject.

In the Venezuela Indemnities case the language question gave rise to considerable trouble and even some wrangling, the original protocol of submission having provided that the proceedings should be carried on in the English language, while in its protocol of adhesion the French Government stipulated that this should not abridge the powers given to the court by the above Art. 38.

The North Sea Incident Commission of Inquiry also raised a good many points of procedure, and the regulations drawn up by the Commissioners may possibly be made the basis of a general code of procedure for use in the future in such Commissions.

Apart from these matters arising out of the first Conference and out of the experience and application of its work, several questions have become important which were not touched upon in 1899.

The Russian invitation to the Powers to reassemble summed all the question up as follows:

The Imperial Government, believing that it is necessary only to examine questions which press with particular urgency inasmuch as they arise from the experience of recent years, and without touching on those which belong to the limitation of Military and Naval Forces, proposes therefore as programme for the Conference the following principal points:

2. Additions to be made in the regulations of the Convention of 1899 touching the Laws and Practices of Land Warfare, among others the opening of hostilities, the rights of neutrals on land, &c. Declarations of 1899, one among them being renewable-the question of its renewal.

3. Elaboration of a Convention touching the Laws and Practices of Naval Warfare concerning—

The special operations of naval warfare, such as the bombardment of ports, towns, and villages by a naval force, the laying of mines, &c.

The transformation of commercial vessels into warships.

The private property of belligerents at

sea.

The delay to be accorded to commercial vessels in leaving neutral ports or those of the enemy after the outbreak of hostilities.

The rights and duties of neutrals at sea, among other questions that of contraband, the treatment to which the ships of belligerents should be subjected in neutral ports, destruction owing to vis major of neutral ships of commerce as prizes.

In the said Convention should be introduced arrangements relative to land warfare, which should be equally applicable to naval warfare.

Additions to be made in the Convention of 1899 for the adaptation to naval warfare of the principles of the Geneva Convention.

It is seen that the limitation of armaments, which was the chief point in the Russian programme for the Conference of 1899, is not included though mentioned. Nor does the new programme suggest that any questions may be added to the above. All it states as regards freedom of action is that the Imperial Government desires "to emphasize that the issue of this programme, and its eventual acceptance by the various States, must not be held to

formulated at the Conference regarding the solutions to be given to the questions submitted for discussion."

Since the programme was submitted different ministerial statements in this country and in Italy have reserved the right to introduce matter not included in the Russian programme, and

a

statement attributed by Reuter's Agency to Prof. F. de Martens, when he visited London and other capitals to fortify his Sovereign with the views of different Governments, assured the public that the limitation of armaments would be "the pièce de rêsistance of the programme," if either the British or the United States Government decided to place this question on the agenda. Personally he did not think the subject ripe for discussion, and he was convinced it would be "quite impossible to attain any practical result from the discussion." This, he stated, had been the result of his visits to Berlin and Paris, and was the opinion of his own Government. M. de Martens did not explain how he thought the subject might be made to ripen. Whether an open and vague discussion is the best way to ripen it may indeed be doubted. Such vague discussions are liable to result in an adverse decision as the safest way of escaping from immature proposals. To ensure the thorough sifting of a subject, which many, in every country of Europe, think might be satisfactorily handled, the appointment of an International Commission commends itself-a Commission which, if I may venture on a suggestion, should not be obliged to report its proceedings and not be exposed to the attacks of dissentient patriots or disappointed visionaries.

Of other questions submitted in the Russian programme a few points in the practice of neutrality may be dealt with. At present States enforce against their subjects and citizens some neutral duties, but they leave the bulk of them to be enforced by the belligerents. And, in fact, though it is clearly the duty of a State itself to for

bear from committing any act which may be of assistance to either belligerent, this duty cannot in reason be absolute as regards private persons merely within its territorial jurisdiction. In recent times, with the development of means of communication, it has, however, become possible for States to exercise a more effective control over the acts of their subjects and citizens than in the past, and the, so to speak, moral responsibility of neutral States has correspondingly increased. Down to the present day, though the practice is not uniform, no change of principle has resulted from the altered circumstances, and a much greater latitude is left to neutral subjects and citizens than is consistent with the idea of strict neutrality. great exception was consented to, as between Great Britain and the United States, in 1871, in the treaty of submission of the Alabama case to arbitration. Great Britain did not, it is true, assent to the rules laid down in the treaty as a statement of International Law; and though both she and the United States have Foreign Enlistment Acts, they are merely municipal laws, and lie quite outside the scope of International Law as it stands at pres

ent.

A

Even direct sales to belligerents of arms and munitions of war are still purely mercantile acts, and no purely mercantile acts have down to the present been regarded as a violation of neutrality. Yet it is quite conceivable that the sales might take such proportions as to involve national responsibility.

The same remarks apply to loans of money raised within the jurisdiction of a neutral State. It is certain that the greater credit of one of the belligerent States gives it an advantage over the other in procuring money for the purposes of war. The general practice of States, however, has as yet shown itself unfavorable to imposing restrictions.

The correlative of the restriction of belligerent right is, of course, the enlargement of neutral duty. Every movement towards relief of neutrals from the inconvenience of a state of belligerency to their subjects and citizens implies that neutral States themselves will enforce a stricter observance of their neutrality by their subjects and citizens. In accepting greater responsibility it will be useful to remember the ease with which in time of tension irritation breaks out. Precise, well-drawn rules would, no doubt, help to carry off any flood of neutral irritation which might break forth, if we were suddenly plunged into an important European war, and might save us from being ourselves, as a neutral State, dragged into some attitude exposing us to great national irritation on the part of some foreign belligerent, as, in the case of the United States, after the Alabama incidents, and as seemed to threaten in connection with the Bundesrath case. Of how far, however, Great Britain can go in this direction it is difficult to form a clear estimate at present. It would, of course, be contrary to the principle of the independence of States to seek to hold any State responsible for acts of infringement of neutrality by those within its jurisidiction which it does not possess legal machinery to repress. Several States have no enactments which specifically punish infringements of neutrality; in their case it is left to the belligerent himself to enforce such remedy as the law of nations permits. Other States treat certain violations of the laws of neutrality according to their consequences in causing national damage or difficulties. This is the case with France. It has also to be taken into account that acts which, on a small scale, may escape the control of a Government, may, on a large one, become notorious or come otherwise within official cognizance.

The ques

tion is how to bring the practice of neutrality into closer harmony than at present with the principle its character implies, while taking into account the different interests the same nations may have as possible belligerents as well as possible neutrals. The British Empire in this respect is in a particularly difficult and delicate position.

Among the points which arose in connection with the seizure of the Bundesrath, were also the questions of visit and search of mailships, and of the application of the doctrine of "continuous voyages." Both gave rise at the time to animated correspondence, which wound up with a declaration in the Reichstag (January 19th, 1900) by Count von Bülow, who stated that "the German Empire would not withhold its concurrence and support if a prospect were to arise of defining more distinctly than heretofore, in conjunction with other Powers, the lines of an international settlement of the disputed points of maritime law."

The question of immunity of private property at sea has always been a pet question of successive United States Presidents. In 1899 the United States delegates, in accordance with specific instructions from their Government, presented the following proposition:

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.

The question has been vigorously taken up of late also in this country. Lord Chancellor Loreburn (then Sir Robert Reid), in an interesting letter published in The Times of October 14th,

1905, dwelt on the, he believes, uselessness of the present practice as a means of crippling the enemy, in the following passage:

They

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 conditions 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 on their own produce and upon the produce of their neighbors carried by rail. could dispense with sea-borne merchandise, or if required could purchase it from neighbors 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 establishment 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.

An alternative proposal to immunity from capture which is made from time

to time is that the nation should either indemnify or insure the ship and cargɔ owners against capture. Different schemes to this effect were laid before the "Royal Commission on Supply of Food and Raw Material in Time of War." Discriminating between the proposed systems, the Commission decided as follows:

We are... of opinion that a system of national indemnity against loss from capture by the enemy would operate both as an additional security to the maintenance of our over-sea trade and as an important steadying influence upon prices. . . We wish to place distinctly on record our opinion that the advantages to be gained from some well-considered scheme of the kind seem to us largely to outweigh any objections which have been stated to us. We do not feel ourselves competent to draw out the precise terms of such a scheme, but we look rather in the direction of a National Indemnity than in that of National Insurance. We recognize that National Insurance may at first sight appear more attractive, since the amount received by the State in premiums would be something to set against what might have to be paid out on account of losses. But this economy seems to us to be more apparent than real, when it is remembered that the amount paid in premiums, both on the goods carried and the ships in which they come, is almost certain to be paid eventually by the consumer. Similarly, it has been suggested that National Insurance, owing to the payment of a premium by the shipowner, does not, to the same extent as National Indemnity, imply preferential treatment of a single industry; but, even granting that some preference would accrue to the shipowner, the importance of maintaining efficient means of transport in time of war and of keeping rates of freight, so far as possible, at a normal level, is so great as to outweigh this objection. Moreover, it appears to us that a scheme of National Indemnity will leave it more open to the Government, acting through the Admiralty or otherwise, to impose condi

tions, to prescribe rules, and to keep greater control of the risks that, in some form or another, will undoubtedly have to be run.

In conclusion, the appointment of a small expert Committee to investigate the subject and frame a scheme, after consultation with underwriters and others interested in the British mercantile marine, was recommended. The Commission has since been appointed.1

The report, it may be incidentally mentioned, has done much to allay apprehension as to the dangers to which our supply of food and raw material might be exposed. It would be unjust to insinuate that a similar examination of the question abroad may account for a diminution of ardor for the question of immunity outside these islands, but certainly from a statesman's point of view the question involves not only the contingency of swift cruisers being able to cripple imports of food into Great Britain, but also that of British fleets being able to injure the overseas trade of Great Britain's enemies.

Whether it would be expedient for this country to agree to immunity of private property at sea from capture would probably be dependent on the circumstances of the particular war in which it might be engaged. It is quite conceivable that different considerations would weigh in a war with the United States 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 localize the operations of war, and to interfere as little as

(1) It is composed as follows: The Right Hon.Austen Chamberlain, M.P.; the Right Hon. Sir R. B. Finlay, K.C., G.C.M.G.; Sir Thomas Glen Coates, Bart., M.P.; Sir J. L. Mackay, G.C. M.G.; Sir George Sydenham Clarke, G.C.M.G.; Sir George H. Murray, K.C.B.; Mr.H. Llewellyn Smith, C. B.; Captain C. L. Ottley, R.N., M.V.O.; Mr. Edward Beauchamp, M.P.; Mr. Henry Neville Gladstone; Mr. Frederick Huth Jackson, and Mr. Arthur Lindley; Mr. George H. Duckworth, secretary.

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, British statesmen might consider the closing of the sea to traffic by the merchantmen of the enemy favorable to British interests. But it is very difficult to say, in the abstract, whether England would be benefited by the immunity of her commerce from capture.

The

Of the other subjects referred to in the Russian invitation, two are likely to give rise to much discussion. one is the controverted right to destroy neutral captures, and the other the regulation of the laying of floating mines.

The question of sinking captures became an urgent one, owing to the destruction by the Russian Fleet, during the late war, of a number of captured neutral vessels without trial by a Prize Court. A serious controversy between the British and Russian Governments ensued, in which the Russian Government contended that "the captor of a neutral ship is within his rights if he sinks it, for the reason that it is difficult, or impossible, for him to convey it to a national port for adjudication by a Prize Court," or even inconvenient to do so, "because of the distance of the port to which the vessel should be brought," or because "her conveyance to such a port would take too much time or entail too great a consumption of coal," or because the "captor has not at his disposal a sufficient number of men from whom to provide a crew for the captured vessel." "The effects of a consistent application of these principles," Lord Lansdowne pointed out, "would justify the wholesale destruction of neutral ships taken by a vessel of war at a distance from her Own base, upon the ground that not such prizes had on board a sufficient amount of coal, with which such ships would probably in no circumstances have been supplied.