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sition where hostile acts may be expected. This reasoning and the judgment founded upon it have met with general acceptance. But Dr. Lawrence dişsents from this view to differ with them. He maintains that the deliberate destruction of a cargo after the ship which carries it has passed under the power of the captor is no more incidental to the operation of capture, than the deliberate cutting of the throat of a prisoner after he has been taken is incidental to the operation of taking him. Each is a separate act, and must be judged on its own merits. Looked at in this way the burning of the cargo was a clear violation of the Third Article of the Declaration of Paris, which exempts neutral goods from capture, and a fortiori from destruction, when found under an enemy flag, unless they are contraband of war. Granted that there were good grounds for the destruction of the vessels, and that they could not be destroyed without destroying the cargoes, yet a wrong was done thereby to the neutral owners, and therefore full compensation was due to them. This should be the law of the future, unless the captors can prove that the cargo was contraband. Recent events show that the rage for destruction grows by what it feeds on. Germany claims to use the new weapon of the submarine in such a way as to destroy the old immunities of neutrals and non-combatants. According to her, there need be no search, in some cases even no summons to surrender, no provision of safety for the crew, no attempt to take the vessel into port for adjudication, nothing but one wild orgy of indiscriminate violence. The reply of the civilized world should be a refusal to surrender the slightest neutral prerogative. Unless the outworks are held inviolate the citadel will soon be carried, and warfare at sea will become as barbarous as it was directly after the fall of the Roman Empire.
To the further question as to whether belligerents have a right to sink neutral prizes at sea, till lately belligerent warships rarely went to this extremity. The British custom was to release rather than resort to it. In the case of the Actaeon (2 Dodson 48) Lord Stowell laid down that “if a belligerent ship destroys a neutral vessel, the owner thereof is entitled to be put in the same position as he was in before the destruction of his vessel, i. e., to recover damages and costs. The commander of a belligerent ship may have good reason for destroying a neutral vessel, but this does not relieve him from responsibility to the owner for damages.” The question was never very prominent in those days; but it sprang into importance during the Russo-Japanese War of 1904-5. Russia made a practice of sinking neutral vessels when her cruisers found it inconvenient to bring them in for adjudication, and Great Britain, along with other neutral Powers, challenged her right to do anything of the kind. The great case was that of the Knight Commander, a British vessel laden with a cargo of railway ma
of 1908-9, no agree
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terial. Her Russian captors declared this to be contraband, and sunk her off Yokohama, because of the proximity of an enemy's port and lack of coal to take her to Vladivostock. England claimed an indemnity of £105,000, and Russia refused to admit any liability. England then proposed that the case should be sent to arbitration; but Russia declined her proposal. The general question was discussed at the Hague Conference of 1907, but no agreement was reached. The Naval Conference of 1908-9, however, succeeded where the larger body had failed. The Declaration of London, which it drew up, laid down a general rule in accordance with British views in the words, “A neutral vessel which has been captured may not be destroyed by the enemy.” But it went on to admit the Russian idea of exceptions, and allowed destruction when observance of the rule would involve “danger to the safety of the warship, or to the success of the operations in which she is engaged at the time.” The ship's papers were, however, to be preserved and brought before a prize court, which must be convinced of the necessity of the destruction, and also of the liability of the vessel to capture and condemnation. Failing satisfactory proof of either or both of these, compensation must be paid (Arts. 48-52). This solution of the difficulty, says Dr. Lawrence, seems right in principle, but wrong in conceding to the belligerent cruiser too many grounds for destruction. The phrase “danger to the success of the operations in which she is engaged at the time” is much too elastic. It may be stretched to cover consequences that are both unimportant and remote. . Of course, the destruction by German submarines of American and other neutral vessels during the present war, without even a pretense of discovering by lawful search their true nationality, business and destination, is a gross illegality, whatever view may be taken of the sinking of neutral vessels after they have been detained and examined, and their papers and crews removed.
THROUGHOUT the war Germany has been insistent in its demands on the United States that their Government should stop the great trade in arms and munitions of war that has sprung up between American firms and the naval and military authorities of the Allies. Its appeals to what may be called the equities of neutrality, and the abusive threats of its highly-disciplined press, are calculated to raise a smile in an assembly of jurists where the law of contraband is well known, and the recent history of German trade not entirely forgotten. The Hague Conference of 1907 twice enacted that: “A neutral Power is not bound to prevent the export or transit, on behalf of one or other of the belligerents, of arms, munitions of war, or in general of anything that can be of use to an army or a fleet." These words appear in the Seventh Article of the Fifth Convention, and also in the Seventh Article
of the Thirteenth Convention. The signature of Germany is at the bottom of each of these international instruments. Moreover, the great firm of Krupp of Essen, which is so closely connected with the ruling powers in Germany as to be almost a department of the German War Office, has probably supplied more war material to belligerent States than any other trading company on the face of the earth. The Economist of May 24, 1913, declared that "the war in the Balkans has been in one of its aspects a competition between Krupp and Creusot, and the groups of bankers which support those eminent manufacturing concerns." And yet before 1914 had run its course the German Government was protesting at Washington against the supply of arms and ammunition to the Allies by American firms. Neutral Governments are hardly likely in future to take on themselves the tremendous and thankless task of endeavoring to stop the trade in arms of their subjects. If, says Dr. Lawrence, it should prove possible to obtain by general agreement a prohibition of the manufacture of warlike material by private persons or companies, the question will fall to the ground. The only other way in which it is likely to be brought to an end is by the growth of the feeling that it is immoral to make money out of the mutilation and slaughter of one's fellowcreatures; and at present the world is a long way off this altruistic attitude.
THERE IS a certain connection, he continues, between the question just discussed and the restrictions frequently laid during the present war by neutral Governments on the re-export of certain conimodities from their territories to those of the belligerents. These have been particularly conspicuous with regard to the Scandinavian States and Holland, though by no means confined to them. Greece, for instance, as we were informed through the press recently, has just resorted to a prohibition so sweeping in character that it covers “the export of all goods which might be considered contraband of war" (Star and Echo, June 1, 1915). Leaving out this drastic and probably unenforceable piece of domestic precaution, the cases resolve themselves into two classes
--those in which the goods come from the belligerent country in whose interest the restrictions are imposed, and those in which they come from other neutral countries. With the first class a belligerent can deal by the simple process of forbidding its own manufacturers and shippers to export the goods in question to the neutral States concerned, except under such conditions as shall render their further passage to the enemy practically impossible. But it has no right to demand action on the part of neutral Governments, though it may, of course, make friendly diplomatic requests. With the second class, belligerents have no right to interfere in any way, unless they are contraband in their own nature and there is satisfactory proof that they are destined ab initio for the enemy. Then, by putting them on its list of contraband, and in the case of conditional contraband giving notice that it will apply the doctrine of Continuous Transit in spite of Article 35 of the Declaration of London, it can gain the right of capturing them on the high seas. Any attempt to go beyond this, and forbid a trade between neutrals in goods which it does not venture to pronounce contraband, is a breach of International Law. The British attempt to keep certain goods from reaching Germany by a sort of “blockade” which is not a technical blockade, but nevertheless acts in some respects as if it were, must be placed in this category, though there may be truth in the contention that it interferes with neutral trades less than a real blockade or a real proclamation of contraband would do. Moreover, it must always be remembered that a State cannot make anything contraband by merely calling it so. It must convince neutrals that the goods in question are really useful for warlike purposes.
DR. LAWRENCE then discusses the somewhat new question of War Zone. No one, he says, has ever doubted that neutral individuals intrude upon a scene of conflict at their own risk. But it has been generally assumed that the risk should be confined to the area in which warlike operations were actually going on. And especially is this the case with regard to naval struggles. The high seas are free to all. Neutrals have as much right to use them for peaceful purposes as belligerents have to contend with one another upon them. When issue of battle is joined ships of third parties must keep out of the way of the conflict, lest they hamper the operations of the combatants and bring injury or destruction on themselves. But, on the other hand, belligerents must not choose waters already thronged with peaceful merchantment for the commencement of an engagement. Each must use what is common to all in such a way as not to hinder its lawful use by the other; and for this purpose a certain amount of give and take is necessary, just as it is in the ordinary experience of walking along crowded streets. If there must be any preference it should be given to those engaged in peaceful avocations.
Till lately this was so much a matter of course that few jurists troubled to formulate the doctrine on which it rests, that peace is the normal condition of mankind, and neutrals, as being still at peace, have a right to continue all their previous activities except such as have been expressly forbidden by International Law. But during the last few years we have witnessed the gradual development of an attempt to shift the presumption till it favors belligerents and their acts of hostility. In the Russo-Japanese War of 1904-5 the Japanese authorities told the Times correspond
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ent in the Haimun not to go north of a line drawn from Chifu to Chemulpo. This was a comparatively small matter. But scarcely had the present war commenced when both sides began to deliminate War Zones on the high seas. At first England simply warned neutrals against dangers due to the mines she had laid in these areas. This was done from motives of humanity, and if it had referred to a passing use of the waters in question for purposes connected with the conflict it might have merited praise rather than blame. But except in the case of a lawful blockade, the right of any Power to permanently occupy a given portion of the high seas with instruments of destruction and warn off neutrals as trespassers, is highly questionable. The claims of the Germans are greater still. They practically laid down, in the Decree of February 4, that within a certain area of sea around the British Isles the rights of traders and travelers were suspended. So far as this concerns neutrals it gives an example of outrageous interference with their rights and callous indifference to their sufferings. American, Danish, Swedish, Norwegian, and Dutch vessels have suffered; and doubtless a complete list would contain ships from other neutral countries. Fortunately for the world, America, in taking up the cause of her own citizens, is fighting the battle of all neutrals. The diplomatic correspondence now going on between Washington and Berlin is most instructive. The German reply to the American note on the case of the Lusitania reveals the true inwardness of the German mind, and exposes the full danger to civilization of the German policy. It comes merely to this, that the loss of innocent neutral lives is an unavoidable, though regrettable, consequence of submarine warfare waged as Germany is waging it today. The Westminster Gazette of June 1 summed up the controversy most admirably in a single sentence, when it wrote, “America says humanity must prevail over German necessity; Germany says perish humanity so that the submarine warfare may go on.” The United States in the course of her national existence has already on two occasions done great service to the cause of true neutrality. May she now succeed in doing a third, which will win for her to the end of time the gratitude of civilized mankind.
TIIE MEMBERS of the Grotius Society are largely members of the International Law Association whose last conference to have been held in September, 1914, at the Hague, was rudely interrupted by the War. Its members belong to all the belligerent and neutral nations and it therefore cannot hold another full meeting until peace comes. The DOCKET attended the three previous Conferences of that association—that at London in 1910, at Paris in 1912 and at Madrid in 1913, and has therefore a personal knowledge of how much was being accomplished by it in the great work of bringing the laws of the world both in private as well as