protect Belgium. We can only say that the argument cuts both ways. If a foreign Power were to violate the guaranteed neutrality of Belgium, and to invest or occupy Antwerp, the new fortifications would be inestimably valuable in bringing that Power to book. It cannot be assumed that power will only be used for purposes of illegality. If Holland is legally entitled to make herself strong on the Scheldt, we have no right to presume that she does so with improper and illegal motives. She was called upon to make great sacrifices, for the peace of Europe, in 1830: that is no reason. for expecting her to make further sacrifices now, and to regard the sacred stream of the Scheldt as a thing taboo. We are gravely told that Descamps, Guillaume and Nys all maintain the view that Holland is bound by all the engagements regarding Belgium and the Scheldt which the Four powers made with each other in 1831, when they created the kingdom of Belgium; that she is bound by some nebulous doctrine to refrain from doing anything which might conceivably hamper them in their future protective tenderness towards their Orion-child. But each one of these three gentlemen is an eminent Belgian !

The Dutch jurist, Den Beer Poortugael, brushes away the flimsy contention, and lays down the sound principle, and the only safe one, that nothing that the Four Powers did can affect Holland, save in so far as she expressly agreed to it. An undefined quadruple supremacy over the Scheldt would be a monstrosity which fortunately does not exist.

A more important question is whether, assuming the forts to be built, they could be used in order to deny a passage to troops coming to maintain the neutrality of Belgium. Holland does not claim to be able to do this in time of peace. In war, the usual theory of the right of a neutral to refuse passage to warlike expeditions would seem to justify her in closing the Scheldt. Many authors question

whether a nation can ever concede, even expressly, to another, liberty to use its territory or waters for the purpose of attacking another. Much less can it be obliged by an implicit understanding of a nebulous and uncertain character to do so. True, an onslaught upon Belgium would be an international wrong. But if Holland

desired to resent it as such, it must be by war, or by steps which would inevitably involve her in war. There is no obligation upon her to act as policeman, to pronounce judgment upon the wrong-doer and to allow his enemies the hospitality of her waters.

It is impossible to suggest that Holland has expressly bound herself to permit the transit of warships along the Scheldt. The interminable correspondence at the time of the separation of Belgium (see Brit. State Papers, Vol. XIX, p. 54 et passim) is directed to the securing for Belgium of commercial advantages, and commercial advantages only. The definitive treaty with Holland (which was not signed until 1839)1 merely applies to the Scheldt the general principles of the Treaty of Vienna (Arts. CVIII et seq.) of 1814. These are limited to a grant of free transit "sous le rapport du commerce"; and while the Belgian war was going on, the right of Holland to close the Scheldt entirely was practically admitted. Consequently, the Belgian advocates are forced to rely on the shadowy assertion that Holland is bound in some unknown way to make things smooth for the Powers which undertook the protection of Belgium.

It is well known that the Dutch king only yielded in the very last resort to the creation of Belgium, and that, largely because he was left with the control of the Scheldt. Imagine his astonishment if he had learnt that he was never to fortify it! The Times' correspondent, who advocates with so engaging an air “Dutch-Belgian" solidarity, might have reminded his readers that, but for Belgium and

1 Brit. S. P., XXVII, p. 990.

her backers of 1830, the Low Countries would have formed. one kingdom to-day.

It is to be regretted that the campaign against the Dutch defences was initiated. Suspicions often produce realities. The effect of the imputations may be to bring about the Netherlands-German combination, which is so greatly to be deprecated.

NOTE: The application of the above considerations to the present unfortunate circumstances is readily made. In the view which has been put forward above, the Scheldt at its mouth is as much Dutch territory as the Zuider Zeemuch more so than the Belts and the Sound are Danish. There can be no doubt that Holland is entitled to deny its passage alike to either belligerent combination for offensive purposes. It is understood that Holland prevented its passage for the exit from Antwerp of Belgian prizes. If that be so, she is bound, not only by the modern strict conception of neutrality, but by the much older rule of impartiality, to refuse its passage by ships bent on warlike missions to and from that city. It is difficult to understand, however, in what way duly condemned prizes differ from other mercantile vessels and it may be that it was not a Dutch interdict, but other considerations, which prevented the Belgians from sending the ships away. In that case, the rule of impartiality could not be invoked: but it would still remain, in the modern view, improper for Holland to permit her waters to be traversed by an armed belligerent force. It is not like the case of the resort of a fleet at sea to a neutra port, or its casual transit of the three-mile limit, in which cases of "simple passage," Art. 10 of The XIII Hague Convention of 1907 rightly sees no violation of neutrality. Such a fleet is exercising its general practice of visiting the open harbours and the open waters of a friend. But foreign ships are out of place in the inland waters of a State. The

Scheldt is such an inland water, and although, by a special exception, Holland cannot object to its commercial use, foreign ships-of-war are out of place when they navigate it. Here there is not "simple passage." The concession of such a privilege would be incompatible with the neutral duty not to furnish one belligerent with the means of harming another. Of course, it would equally apply to the case of British ships ascending the river to bombard Antwerp. The establishment of a base at Antwerp, from which craft would habitually traverse Dutch territory as a passage to and from the North Sea, would therefore at once oblige the Netherlands to declare for one or the other belligerent. It would amount to making Dutch territory a base of operations. Germany has much easier means at command of precipitating such a conclusion. As the Times observes: "It is the irony of the situation that the view, which Dutch philo-Germans favoured, places Germany, now that she is in possession of Antwerp, in a dilemma—either to be unable to make much use of it, or to violate the neutrality of Holland."

The Danes appear to deny the Belts and Sound to all belligerents. In a previous issue, we came to the determination that their claim to these waters is probably justified. They have a clear right to prevent their being used for warlike purposes. But have they any duty to do so?

It is a somewhat difficult point: for there is no doubt that the mere transit of territorial waters by a cruising belligerent need not be prevented. Yet, where the transit is not a casual circumstance in the voyage, but is of such direct military service as to be comparable with the use of that territory as a base, the duty of the neutral seems to be to forbid it. A little reflection will show why this should be so. If a vessel is making a voyage, and in the course of it puts into neutral ports, or traverses neutral territorial waters which she might, if she chose, skirt instead, she is doing

what may indeed be necessary in order to enable her to do ultimate damage-but there is no single crucial and vital point which it is necessary for her to use. She can be attacked by her enemy at any point of her voyage.

If she makes use of one neutral port with immunity, she may be destroyed in issuing from another. Links, and necessary links, in a chain, there is no reason why they should all be broken for her by their neutral owners. But in the case of the Scheldt and the Danish channels, passage of the territorial water is an eminent and vital feature of the voyage. The use made of the channel is not only necessary but unique. In other words, the ordinary resort to a victualling port is necessary to the cruiser, but not nearly sufficient: the passage through the bottle-neck is necessary, and may be sufficient as well. It is true that the passage of the Sound was permitted to the allied fleets in 1854, but neutral obligations had not then been raised to the perhaps over-anxious pitch to which the Alabama affair subsequently elevated them. TH. BATY.

N°

VII. THE LAW OF PRIZE.1

O Prize Court has sat in this country since Dr. Lushington, 60 years ago, decided a small number of important cases arising out of the Crimean War. Even in his day marked changes had occurred in navigation, commerce and trade since Lord Stowell, in the Revolutionary and Napoleonic Wars, laid down the principles of our Prize law. The methods of conducting warfare had changed also; and at the present day the changes are still greater. The ships subject to Prize law are no longer sailing vessels of 300 to 400 tons, dispatched on an adventure in which the master was often jointly interested

1 Prize Law. By Viscount Tiverton. London: Butterworth & Co. 1914.