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LONDON: MACMILLAN & CO., LTD.
WAR AND NEUTRALITY
IN THE FAR EAST

WAR AND NEUTRALITY
IN THE FAR EAST
Toph
BY
LAWRENCE, M.A., LL.D.
LECTURER IN INTERNATIONAL LAW AT THE ROYAL NAVAL COLLEGE,
GREENWICH, AND RECTOR OF UPTON LOVEL, WILTS, ASSOCIATE
OF THE INSTITUTE OF INTERNATIONAL LAW, AUTHOR OF
PRINCIPLES OF INTERNATIONAL LAW,'
'THE
ETC.,
SOMETIME FELLOW AND TUTOR OF DOWNINO
COLLEGE, CAMBRIDGE, AND DEPUTY-FROFESSOR
OF INTERNATIONAL LAW IN THE
UNIVERSITY OF CAMBRIDGE
SECOND EDITION, ENLARGED
London
MACMILLAN AND CO., LIMITED
NEW YORK: THE MACMILLAN COMPANY
All rights reserved
1904
DS
517
.L42
1904
First Edition, June 1904
Second Edition, September 1904
PREFACE TO THE SECOND EDITION
THOUGH a Second Edition of this book appears
within three months of the publication of the
first, new matter to the extent of nearly seventy
pages has been introduced. A fuller considera-
tion of the position of mail-steamers has been
rendered indispensable by the seizure of the
Prinz Heinrich. The exploits of the Peterburg
and the Smolensk made it needful to examine
more fully than before the legal status of the
Russian Volunteer Fleet, and the international
regulations which control the navigation of the
Bosphorus and the Dardanelles. The extra-
ordinary trial of the Allanton, and the still more
extraordinary destruction of the Knight Com-
mander without trial, have caused the addition
of a new chapter; while the seizure by the
Japanese of a Russian destroyer in the harbour
of Chifu has necessitated further consideration
V
vi
WAR AND NEUTRALITY
of the neutrality of China. The inclusion of
these and other matters has, I hope, brought
the book up to date, and thus increased its
usefulness.
It is pleasant to be able to chronicle the
acceptance of two views contained in the original
text. The correspondent of the Times on board
the Haimun has stated that the use of wireless
telegraphy to report the operations of belligerents
must be controlled by International Law; and
the Prime Minister has declared that belligerent
vessels which use the coal obtained in British
ports for purposes other than those for which it
was granted will not be allowed further supplies.
T. J. LAWRENCE.
UPTON LOVEL RECTORY, WILTS,
September 8, 1904.
PREFACE TO THE FIRST EDITION
THIS little book contains the substance of four
lectures given at Cambridge in the Easter Term
of the present year, and a paper read at the Royal
United Service Institution on May 25. Many
of the topics dealt with on these occasions have
been amplified, and several questions left un-
touched then are now carefully considered. On
one point only have I seen reason to alter a
conclusion previously expressed. At the United
Service Institution, while advocating as an object
to be kept in view the prohibition of any supplies
of coal to belligerent warships in neutral ports, I
argued that it would be difficult to propose this
and at the same time assert that coal destined for
the ordinary purposes of civil life was not con-
traband of war. Further reflection, and the
arguments brought forward in the discussion
which followed my paper, have convinced me
vii
viii
WAR AND NEUTRALITY
that the difficulty is more apparent than real.
I still hold that total prohibition, though emi-
nently desirable in itself, is impossible for the
present; but the supposed inconsistency of ad-
vocating it and also maintaining that coal is not
always contraband vanishes when we consider
that the supreme importance of a commodity
for warlike purposes does not make it less
supremely important for domestic uses. The
need of coal for both can hardly be exaggerated;
and therefore it is advisable that neutrals should
not permit combatant vessels to be supplied with
it in their ports, while belligerents should not
attempt to stop a neutral trade in it for the
purpose of satisfying the wants of the ordinary
civilian population of the enemy's country.
My thanks are due, and are hereby tendered,
to several friends for valuable aid. Without the
advice and encouragement of Dr. C. S. Kenny,
Reader in English Law in the University of
Cambridge, the lectures at Cambridge would never
have been given, and this book would never
have been written. Captain E. J. W. Slade,
R.N., M.V.O., Captain of the Royal Naval College,
Greenwich, has most kindly supplied me with
PREFACE
ix
information at a time when the pressure of his
own work was very heavy upon him. I have
felt at every turn the advantage of many a long
discussion with Captain A. A. C. Galloway, R.N.,
now in command of the Revenge, on the problems
of International Law raised by the changed
conditions of modern warfare and
warfare and modern
commerce. Miss E. P. Hughes has ungrudgingly
given me the fruit of the experience gained in
her educational mission to Japan, and her know-
ledge of the inner life of the Japanese people.
Had Rear-Admiral H. J. May been still alive,
I should have rejoiced to convey to him my
grateful acknowledgments of pregnant hints and
subtle suggestions. Unfortunately it is not pos-
sible to do more than pay a tribute to his memory.
I hope no landsman's misapprehensions have
impaired the value of what I have received from
naval friends. If it be so, let me exonerate
them from all blame. The accuracies are theirs ;
the mistakes are my own. Yet I trust the book,
with all its faults, will help a little towards the
formation of sound opinion on important matters
of public policy. Judging by what one hears
and reads, there is often need of guidance.
I
X
WAR AND NEUTRALITY
have striven to write from the point of view of
a student of international affairs, without bias
and without partiality. If I have a predilection,
it is an excusable one for my own country and
its interests.
In a work based largely on the facts reported
in the newspapers from day to day, it seemed out
of place to print references, which must have
been inconveniently numerous if they were given
at all. The principles of International Law laid
down are the common property of jurists, though
some of the applications of them are my own.
I have referred in the text to
the text to a few great
authorities; and I cannot conclude without
acknowledging the help I derived in writing the
historical parts of the book from a series of
articles on the Manchurian Question which.
appeared in the Times during the first weeks of
the present year.
UPTON LOVEL RECTORY, WILTS,
T. J. LAWRENCE.
June 16, 1904.
THE QUARREL
CONTENTS
CHAPTER I
CHAPTER II
THE OUTBREAK OF WAR AND THE LAWS OF WAR.
WAS JAPAN TREACHEROUS ?
CHAPTER III
DAYS OF GRACE. BLOCKADING UNDER MODERN
CONDITIONS.
CHAPTER IV
THE RESCUE BY NEUTRALS IN CHEMULPO HAR-
BOUR. THE
CAPTAINS
PROTEST OF THE THREE
PAGE
1
26
45
63
xi
xii
WAR AND NEUTRALITY
CHAPTER V
PAGE
NEWSPAPER
CORRESPONDENTS
AND WIRELESS
TELEGRAPHY,
MARINE MINES
83
CHAPTER VI
THE RUSSIANS IN THE RED SEA. THE USE OF
NEUTRAL WATERS BY BELLIGERENTS
CHAPTER VII
CONTRABAND OF WAR.
THE RIGHTS OF BELLI-
GERENTS AND NEUTRALS WITH REGARD TO IT
CHAPTER VIII
ARE COALS, PROVISIONS, AND COTTON COntra-
BAND OF WAR? THE DUTIES OF NEUTRAL
GOVERNMENTS WITH REGARD TO THE TRADE
IN SHIPS
CHAPTER IX
ARE MAIL-STEAMERS PRIVILEGED? WATERWAYS
UNDER SPECIAL REGULATIONS. THE PETER-
BURG AND THE MALACCA. NEUTRALITY AND
WIRELESS TELEGRAPHY
112
•
140
157
185
CONTENTS
xiii
CHAPTER X
THE ALLANTON AND THE KNIGHT COMMANDER.
OUR CASE AGAINST RUSSIA .
PACE
221
CHAPTER XI
DID JAPAN VIOLATE KOREAN NEUTRALITY?
THE
POSITION IN INTERNATIONAL LAW OF KOREA
AND MANCHURIA. THE RESHITELNI AT
CHIFU
INDEX.
•
268
297
CHAPTER I
THE QUARREL
In order to discover the causes of the present
conflict between Russia and Japan, we must go
back for ten years, and dwell for a moment on
the late war between Japan and China.
Then,
as now, the main grounds of quarrel centred in
Korea. Then, as now, the statesmen of Tokio
objected strongly to any foreign influence within
the borders of the Hermit Kingdom. Then, as
now, they established their own authority at the
Court of Seoul, and used it to direct policy as
well as reform administration. And the reason
on both occasions was the same. It is a matter
of life and death for Japan to keep Korea out of
the hands of any strong and aggressive State.
B
2
CH.
WAR AND NEUTRALITY
She can no more afford to let it fall under the
domination of Russia, or even of China, than
Great Britain can afford to let Ireland belong to
France or Germany. Dublin is eighty-four
miles from Holyhead.
Less than double that
distance separates Fusan from Shimonoseki, or
Masampo from Sasebo. A glance at the map is
sufficient to show that a powerful empire en-
trenched in South-eastern Korea would be a
perpetual menace to the independence of Japan.
Moreover, the Japanese people have grown to
such numbers that they need an outlet beyond
the sea, and cannot resign into strong hands
their nearest field for colonisation and expansion.
It is true that only fifteen per cent of the three
large islands is cultivated; but the best authori-
ties declare that, owing to the nature of the soil
and the abundance of mountains and lakes, no
more can be utilised, except, perhaps, a few
thousand acres in the northern island of Hok-
kaido. What can be worked is tilled like a
garden. Yet the utmost skill and industry will
not provide food for more than fifty millions of
people, whereas the population is rapidly increasing,
I
THE QUARREL
3
and will soon pass that limit. The inevitable
overspill into neighbouring lands has already
begun; and it is of the utmost importance that
the rulers of the country most favourably situated
for Japanese immigration shall be prepared to
welcome it.
These considerations will help to explain the
extreme anxiety felt in Japan with regard to
the political future of Korea. It is the fate
of peninsula-states to exercise a vast influence
upon their neighbours. If they are strong, they
dominate the regions on either side of them;
if they are weak, they are themselves dominated.
The latter has been the lot of the Korean Empire.
For centuries it has been a battle-ground whereon
China and Japan contended for mastery.
1860 a third power appeared on the distant
horizon. Russia acquired the maritime province
of Siberia by cession from China, and thus
brought her Asiatic frontier down to the river
Tumen, where for eleven miles it bordered on
Korean territory. For a time she rested to
consolidate her gains; and meanwhile the rela-
tions between China and Japan grew steadily
In
4
CH.
WAR AND NEUTRALITY
worse. The former power looked upon the latter
as a renegade from the cause of Oriental seclu-
sion, and a pervert to the grasping, mechanical
Western civilisation, which she accounted the
most noxious form of barbarism. And this feel-
ing was all the stronger because it was from
China that Japan had obtained her art, her
writing, her ancient education, two of her re-
ligions, and her philosophy. Japan retorted
with scorn for the antiquated methods and in-
bending conservatism of her huge rival. The
two chief Empires of the Far East grew more
and more divided in sympathy every day and
while they bickered, the smaller and weaker
Empire of Korea sank deeper and deeper in the
mire of intrigue and corruption, till its Govern-
ment became a byword even among Oriental
peoples.
A curious result of the helplessness of Korea
had been that from time immemorial, she had
placed herself in a position of dependence towards
both of her great neighbours. Whether as three
kingdoms or as one, she was the victim of
internal dissensions and the prey of foreign
I
THE QUARREL
ст
conquerors. In the latter half of the fourteenth
century, the first of the present ruling family, a
successful soldier named Litan, voluntarily placed
his country under the suzerainty of Hong Wou,
the great founder of the Ming Dynasty in China.
Two hundred years afterwards Hideyoshi, the
Napoleon of Japan, sent a large army to invade
Korea. China came to the rescue; and for six
years a most cruel and destructive warfare was
carried on with doubtful results. The balance
of victory inclined towards the Japanese side on
land and the Chinese at sea. The unfortunate
Koreans found themselves between the hammer
and the anvil, and suffered terribly from both.
Much of the present hopeless condition of the
people can be traced to the horrors of the great
invasion. This fact explains both their indiffer-
ence to political and social reform, and their special
objection to Japan as the instrument of either.
It also acts as an incentive to some of the best
of the Japanese people, in their efforts to make
up
for past wrongs by bringing about a present
regeneration, according to the methods which
have proved so successful among themselves.
6
WAR AND NEUTRALITY
CH.
Hideyoshi died in 1598, and on his death-
bed ordered the recall of the Japanese troops
from Korea. They returned, having obtained.
for their countrymen somewhat greater privileges
than before in the port of Fusan, and for their
country a heavy tribute from the Korean
kingdom. But the gains were altogether dis-
proportionate to the effort; and Korea sank back
into an indeterminate position of political sub-
servience, first to one and then to the other of
the neighbouring Empires. The Chinese claim
of an ill-defined superiority was always kept up.
But it became the policy of Japan, after her own
great awakening in 1868, to insist upon Korean
independence. Independence, however, was to
be understood in a decidedly Pickwickian fashion.
The constant interventions of China were to
come to an end, and her influence was no longer
to be exerted in favour of the old corrupt system
of government. At the same time the country
was to be reformed under Japanese tutelage by
the introduction of Westernised methods. In
1876, as a punishment for an attack upon a
coast-surveying party, Japan sent over a fleet
I
THE QUARREL
77
and forced upon the Hermit Kingdom a treaty
of amity and
and commerce. Its first Article
declared Korea to be "an independent state
enjoying the same rights as Japan," and it went
on to open three Korean ports to foreign trade.
Within the next few years the leading Powers
of Europe and the United States of America
negotiated commercial treaties with the Court of
Seoul, as with an independent government, with-
out any protest from Peking. Yet, as regards
Japan and her attempts at reform, the claim of
suzerainty was kept up, often with the most
irritating results, as when in 1882, and again
in 1884, after Chinese intervention against the
reformers, the Japanese legation in Seoul was
attacked and burned. After the first of these
outbreaks Japan obtained by treaty a right to
maintain troops in Seoul for the protection
of her diplomatic minister, and after the second
she entered into an agreement with China
whereby each power promised not to send
armed forces into Korea without informing the
other of the despatch of the expedition.
There would be little profit in a minute
8
WAR AND NEUTRALITY
C'H.
account of the events which immediately pre-
ceded the outbreak of war between China and
Japan in July 1894. It was the old story over
again of Korean exclusiveness and corruption,
bolstered up by Chinese aid, and Japanese
determination to rule out other influences and
assert her own, by insisting upon reform. There
was the usual insurrection against the effete
native Government, the usual intervention of
China to put it down, followed on this occasion
by the unusual despatch of a Japanese force to
watch and check that of the intervening Empire.
In the negotiations which followed, China per-
sisted in describing Korea as her 'tributary
State," while Japan declared that she was an in-
dependent power. The proposal of the latter for
joint action in reforming the peninsula -empire
was scouted. The statesmen of Tokio declared
in reply that they would undertake the work
themselves, and warned China that any attempt
to reinforce her troops in Korea would be re-
garded as an act of hostility. In spite of this
notification, fresh forces were sent, with the
result that hostilities commenced on July 25.
((
1
THE QUARREL
9
On the same day, the royal palace at Seoul
having been previously occupied by Japanese
troops, the diplomatic representative of Japan
obtained from the overawed Emperor a commis-
sion to expel the intruding Chinese soldiers
from his territory. This was followed in August
by a treaty of alliance, the main object of which,
as stated in its first Article, was "to maintain
the independence of Korea on a firm footing."
Everybody knows the result of the war.
Japan astonished the world by the completeness
of her preparations and the skill with which
her forces were handled. After an uninter-
rupted series of victories by land and sea, she
dictated the terms of peace. The first Article of
the Treaty of Shimonoseki, signed in April and
ratified on May 8, 1895, ran thus :-
"China recognises definitely the full and
complete independence and autonomy of Korea,
and in consequence the payment of tribute and
the performance of ceremonies and formalities by
Korea to China, in derogation of such independ-
ence and autonomy, shall wholly cease for the
future."
10
WAR AND NEUTRALITY
('H.
By the next Article various territorial
cessions were provided for. In addition to
Formosa and a number of other islands, China
was to make over to Japan in full sovereignty
the fortress of Port Arthur, which had been
captured by a Japanese army during the war,
and the Liau-tung peninsula, at the end of
which Port Arthur stands.
Scarcely was the ink of the treaty dry when
startling action was taken by the great world-
power which had in 1860 obtained a frontier
just touching the north-east corner of Korean
territory. Since that time Russia had greatly
developed her Asiatic provinces. She had also
created a strongly-fortified harbour in the south
of her newly-won territory, and this she called
by the proud name of Vladivostock, "The
Empire of the East." It was to be the terminus
of the marvellous line of railway, commenced in
1891, which traverses two continents for a
distance of 6000 miles, and links the Baltic Sea
with the Pacific Ocean. But its waters are
frozen for some months in the year, and the
need of an ice-free port at the end to so great an
I
THE QUARREL
11
artery of communication as the Siberian Railway
forced Russian statesmen to seek farther south
for an outlet to the sea.
Japan at Port Arthur
backed by France and
stood in their way, and,
Germany, they determined to oust her. On
April 25, 1895, the following note was pre-
sented to the Government of Tokio :-
"The Imperial Russian Government, having
examined the terms of peace demanded of China
by Japan, consider the contemplated possession
of the Liau-tung peninsula by Japan will not
only constitute a constant menace to the capital
of China, but will also render the independence.
of Korea illusory, and thus jeopardise the per-
manent peace of the Far East. Accordingly, the
Imperial Government, in a spirit of cordial
friendship for Japan, hereby counsel the Govern-
ment of the Emperor of Japan to renounce the
definitive possession of the Liau-tung peninsula.”
It was well known that the courteous phrase-
ology of this note concealed a determination on
the part of the three powers to enforce its
recommendations. Japan was in no condition
to defy them; and accordingly the Emperor
12
WAR AND NEUTRALITY
('H.
published along with the ratified treaty an Imperial
Rescript, in which he "yielded to the dictates
of magnanimity, and accepted the advice of the
three powers." But the pill was none the less
bitter because it was swallowed with a smile;
and from that time onwards a feeling of keen
resentment against Russia filled the minds of the
Japanese people, who were still further em-
bittered by the failure of an attempt to obtain
from China an undertaking that she would never
cede to a third power the restored territory.
The prescience of their statesmen in asking
for this pledge was justified in 1898. In that
year Germany obtained from China a ninety-nine
years' lease of Kiao-Chau Bay and the adjacent
territory, and Russia immediately exacted a
similar concession. Port Arthur and Ta-lien-wan,
now Dalny, with the adjacent territories and
territorial waters, were Iceded in usufruct" to
her for twenty-five years, with a power of exten-
sion by common accord. She further received
permission to carry her Manchurian railway
down to Port Arthur through Chinese territory.
Japan had, therefore, the mortification of seeing
(C
THE QUARREL
13
the prize of which she had been deprived appro-
priated by the power which had taken the lead
in the act of deprivation. One of the pretexts
put forward to justify her expulsion had been
that the possession of the Liau-tung peninsula
by a strong power would menace Korean in-
dependence. The conduct of Russia soon showed
the cogency of her own arguments; for early in
1900 she attempted to get a grip on Masampo,
the Gibraltar of Korea; and if she had succeeded
in fortifying a position there, she would have had
a strong naval base within a few hours' steam of
important Japanese ports.
But though Japan had retired at the moment,
it was only in order to prepare for a future
advance. The navy, which has recently given
such a splendid account of itself at Port Arthur,
is a creation of the last nine years. The
squadron which won the battle of the Yalu in
1895 was made up of cruisers; and among its
eleven vessels there was none much larger than
5000 tons. The fleet which now dominates the
Korean Bay and the Gulf of Liau-tung contains.
five magnificent battleships, the biggest of which
14
CH.
WAR AND NEUTRALITY
has nearly three times the tonnage, and much
more than three times the fighting power, of the
most formidable of the victors in the earlier
struggle. The army, too, has been more than
doubled. About 120,000 men brought China.
to her knees a decade ago. At the present
moment more than 500,000 can be summoned
to fight beneath the Sun Flag.
But though Japan assiduously prepared for
war, and endeavoured by careful diplomacy to
recover the position in Korea she had lost in
consequence of her rebuff in 1895 and the
influence gained at Seoul by the able Russian
minister, M. Pavloff, it is quite possible there
would have been no war between her and
Russia, but for events which occurred in Man-
churia. The most experienced Japanese states-
men saw clearly the terrible hazards of a conflict,
and the disastrous consequences of failure. They
would have preferred to gain something by
agreement, rather than risk the loss of all by
war. But every effort in this direction failed;
and the Boxer outbreak in China in the summer
of 1900 added fresh causes of quarrel to those
I
THE QUARREL
15
already in existence. While the fate of the
foreign legations at Peking was trembling in the
balance, the Chinese authorities in Manchuria.
attacked the Russian officials and settlers. Russia
promptly moved large forces into the province,
and exacted a terrible retribution. At Blago-
vestchensk the Amur River was blocked with
5000 Chinese corpses, and similar scenes on a
lesser scale were enacted in other places. In
a few weeks the whole province was in Russian
military occupation. These operations were
described in a diplomatic circular issued on
August 25, 1900, as "exclusively prompted
by the necessity of warding off the aggressive
acts of the Chinese rebels," and the assurance
was given that-
CC
As soon as lasting order shall have been
established in Manchuria, and indispensable
measures shall have been taken for the protec-
tion of the railway . . . Russia will not fail to
recall her troops from these territories of the
neighbouring Empire, provided that the action
of the other powers does not place any obstacle
in the way of such a measure.”
16
WAR AND NEUTRALITY
CH.
This was but the first of a long series of
similar statements, which, however, harmonised ill
with the continued presence of Russian troops,
the enormous concessions demanded from China
as the price of the restoration to her of the
civil administration of the province, and the
incessant attempt to deprive other powers of
the commercial privileges they enjoyed as a
matter of treaty-right. It is to be noted, too,
that this assurance, and the others that followed
it, contained saving clauses of ingenious wording
and elastic purport. Who was to judge when
"lasting order" was established, and what
measures were "indispensable" for the protec-
tion of the railway? How was it to be settled
whether the action of the "other powers" did
or did not place any "obstacle" in the way of
evacuation?
There would be little profit in running
through the list of carefully-guarded pledges,
even if the
if the task
task were as pleasant as it is
repulsive. But it is necessary to allude to
one of them, because it took the form of a
solemn international agreement, which would
I
THE QUARREL
17
probably have prevented the present war, had
it been properly fulfilled. I refer to the
Manchurian Convention between Russia and
China, of April 8, 1902. By its second Article
China undertook to observe strictly the terms
of her contract of 1896 with the Russo-Chinese
Bank concerning the Manchurian Railway; and
in consideration of this Russia covenanted-
"In the event of there being no trouble whatso-
ever, and if the conduct of other powers should
not interpose any obstacle thereto, to withdraw
gradually all Russian troops from Manchuria."
The Article went on to state that the south-
western portion of the province, up to the Liao
River, was to be evacuated within six months of
the signature of the Convention. Six months
after that another district was to be restored
to China, and during the next six months the
remaining part. By October 8, 1902, Russia
withdrew from the first of these three zones,
though even here the evacuation amounted to
little more than moving the Russian troops
from their camps and garrisons to points on the
Manchurian Railway, where they acted as guards,
18
WAR AND NEUTRALITY
CH.
When the turn of the second zone came on
April 8, 1903, the evacuation was "temporarily
delayed." The delay has continued up to the
present moment; and no attempt has been
made to carry out the promise, which fell due
on the 8th of last October, to give up the third
zone by that date. Instead, assurances were
freely tendered that the treaty - rights enjoyed
by other powers in the districts in question
would be recognised; and the blame of the
non-fulfilment of the Convention of April 1902
was thrown upon China. It is by con luct such
as this, joined with persistent endeavours to
establish a Russian trade monopoly in every
district under Russian influence, that the great
Northern Empire has alienated sympathy, especi-
ally in England and America, and turned men's
minds towards her Eastern rival, who is the
champion of equal commercial opportunities
for all.
Meanwhile a keen diplomatic conflict was
going on between Russia and Japan at the Court
of Seoul, where the former power played the part
taken by China in the period before the war of
I
THE QUARREL
19
1894. The weapons employed were intrigue,
bribery, and even assassination. In 1895 the
Queen was murdered in the palace by the
Japanese faction, and the King made prisoner.
After some months he escaped, and took refuge in
the Russian legation, where he remained for more
than a year. During this period the reforms.
due to the action of Japan were dropped,
and the old abuses revived a retrograde
step for which the assumption by the King of
the title of Emperor in 1897 can hardly be
regarded as sufficient compensation. Russia
continually showed by her acts that she did not
mean her power and influence to stop short at
the south-western border of Manchuria. We
have already (see p. 13) alluded to her attempt
to obtain a lease of Masampo in 1900. On its
failure, she tried to gain possession of a naval
station in the neighbouring bay of Ching-kai-wan.
Unsuccessful here, she turned her attention to
Northern Korea. A concession to cut timber on
the Yalu and Tumen rivers had been obtained
in 1896, and was renewed in 1903. In the
latter year a right to construct telegraphs and
20
WAR AND NEUTRALITY
('H.
railways, and even fortifications, was read into
it. There could be little doubt that the Korean
side of the lower Yalu was marked down for
Russian settlement; and experience shows that
Russian settlement means much the same thing
as Russian rule. Japan could not but regard
such an
extension of her great neighbour's
territory as a danger to herself. She made
vigorous protests; and at last, in the summer
of 1903, opened direct negotiations with the
Government of St. Petersburg in the hope of
reaching a satisfactory agreement.
Until we have access to all the papers con-
nected with these negotiations, it is impossible
to speak with absolute certainty of the course
they took.
But from the justificatory com-
munications published by Russia and Japan at
the outbreak of the war, and the despatches
since made public, it seems clear that
(a) Both Powers were willing to recognise
in words the independence and territorial in-
tegrity of Korea, but they interpreted the phrase
differently. Japan claimed the right to send
troops into the country in order to protect her
།
1
I
21
THE QUARREL
interests in the event of disturbances, and also
desired to be free to occupy Korean territory for
strategic purposes. To this last proposal Russia
refused to agree, and on her part suggested that
the northern portion of Korea should be made
into a neutral zone. Japan would not hear of
this unless a district on the Manchurian side of
the border were neutralised also, and declined
to pledge herself to refrain from the use of
Korean territory for strategic purposes.
(b) Japan proposed a mutual engagement to
respect the independence and territorial integrity
of China, and maintain the principle of equal
opportunity for the commerce and industry of
all nations in Chinese territory. Russia offered
instead a declaration to foreign cabinets that
as long as her occupation of Manchuria lasted
she would recognise Chinese sovereignty therein,
and also the privileges acquired by the powers
through their treaties with China. Not only
did she refuse to include Manchurian affairs in
the proposed treaty with Japan, but she required
the latter power to recognise that Manchuria
was outside the sphere of her interests.
22
WAR AND NEUTRALITY
CH.
The negotiations dragged on for more than
six months, during which both parties made
extensive preparations for war. At last, on
February 6, 1904, Japan, tired of Russian
delays, and moved to anger by the departure
of the squadron of Admiral Wirenius from Suez
for the Far East, broke off diplomatic intercourse
with her great rival. Before we turn to the
consideration of some of the points of Inter-
national Law that have arisen with reference
to the contest, let us consider for a moment
the position, diplomatic and actual, of the two
powers, and glance at the issues at stake.
There is an air of unreality about all the
asseverations with regard to the integrity and
independence of Korea. For ten years Russia
and Japan have been rivals for influence over
that country. Korea, too weak and too corrupt
to protect herself, has been swayed alternately
by one and the other of the neighbouring
Empires. She cannot stand alone. The real
question is, which shall prop her up, and prop
her up in its own interest rather than in hers.
Japan controlled her in the war with China.
I
THE QUARREL
23
Japan controls her now, and by the recent treaty
of February 27 has assumed what amounts to
a protectorate over her. If Japan is successful
in the present war, she will remain a protecting
power, under whatever diplomatic forms the
fact may be disguised. If she fails, Russia will
take her place. I have no doubt that in the
long run Korea will be annexed by one or the
other of her powerful neighbours. It is the fate of
small, weak, and corrupt states to fade out of the
political map; and no one need shed sentimental
tears over the disappearance of an independence
so shamefully misused as has been that of the
Hermit Kingdom. But we may be allowed to
hope that, if the Japanese receive her as the
prize of victory, they will develop an aptitude
for governing subordinate peoples which history
shows to have been wanting to them in the
past.
With regard to Manchuria, Russia's protesta-
tions of respect for Chinese sovereignty deceive
no one, least of all the astute statesmen who
utter them in the Czar's name. The victory of
Russia in the present struggle means the addition
24
WAR AND NEUTRALITY
CH.
The
of that province to her Empire, and probably the
destruction in consequence of all the commercial
and industrial privileges enjoyed in it by foreign
nations under their treaties with China.
precedent of Madagascar would no doubt be
followed. There Russia's ally, France, on adding
the country to her colonial dominions in 1896,
applied her own tariff to foreign trade, and set
aside the commercial privileges secured to British
and American citizens by previous treaties with
the native Hova Government. This gave rise to
a diplomatic correspondence of no very friendly
kind; and one of the conditions of the recent
happy accord between the two powers was that
our Government should renounce the protest it
made at the time. On the other hand, if the
war ends in favour of Japan, she will restore.
Manchuria to China in full sovereignty, but will
doubtless claim some reward from the gratitude
of the Government of Peking. The policy of the
"open door" will be followed in commercial
matters; but in all probability, to use a fashionable
diplomatic phrase, the "political permeation" of
China by Japan will be undertaken on a large scale.
I
THE QUARREL
25
The story we have told is not particularly
edifying. The causes of the war can be traced :
its consequences no one can pretend to foresee.
Here and there glimpses of a probable future
may be obtained, and they present a curious
mixture of good and evil. Those who fear "the
yellow peril," and regard
bulwark against it, will
Russia as the great
ardently desire the
triumph of the Czar's arms. But those who
believe that the Japanese are destined to become
the connecting-link between East and West, by
interpreting what is best in the mind of each to
the other, and thus bringing them together
peacefully instead of arraying them in mortal
conflict, will wish the island-Empire well in its
efforts to roll back a danger which threatens its
position as an important power, if not its national
existence.
CHAPTER II
THE OUTBREAK OF WAR AND THE LAWS OF WAR.
WAS JAPAN TREACHEROUS ?
JAPAN broke off diplomatic relations with Russia
on February 6, 1904.
Towards midnight on
February 8, her torpedo-boats dashed into the
harbour of Port Arthur, and wrought terrible
havoc among the vessels of the Russian Pacific
squadron. Earlier in the day a shot or two
had been fired, possibly by accident, outside the
harbour of Chemulpo, and a Japanese squadron
had landed troops in the place.
But nothing
of sufficient consequence to be called an engage-
ment took place, before the attack on the Russian
fleet as it lay in the outer roadstead of the great
naval port at the point of the Liau-tung peninsula.
Japan followed up her blow by a declaration.
26
CH. II THE OUTBREAK OF WAR
27
of war, which, however, was not issued till
February 10. On the same day the Czar,
when granting commissions to naval ensigns,
took the opportunity to denounce Japan as a
treacherous foe. The charge was repeated in
his manifesto published in the Official Messenger
of that date, and in the Circular sent on
February 22 by Count Lamsdorff, his Minister for
Foreign Affairs, to the Russian diplomatic repre-
sentatives abroad. Thus fathered, it received
attention throughout the civilised world. Many
French and German papers took it up eagerly;
and though in English-speaking countries it did
not meet with much acceptance, it gave con-
siderable uneasiness to sympathisers with Japan.
It will be desirable, therefore, to examine it with
some care.
The accusation of treachery rests entirely
upon the assumption that International Law
imposes upon belligerents the duty of making
to one another a formal declaration of war
before commencing hostilities. Never was
assumption more groundless. Nearly every war
of the last two centuries has been commenced
28
C'H.
WAR AND NEUTRALITY
The con-
without a declaration. Sometimes one has been
issued, as in the present case, a greater or less
time after the forces of the combatants have
begun their work of conflict. Sometimes there
has been none from the beginning to the end of
a war. Occasionally a manifesto by a State to
its own subjects, or a diplomatic circular sent to
foreign Governments, has taken the place of
formal notice delivered to the enemy.
stant practice has been for the better-prepared
state to strike a sudden blow at her unready
adversary, whatever form or absence of form
seemed advisable at the moment. Nor is there
in this anything that necessarily involves bad
faith. A period of negotiation precedes a period
of hostility. As relations grow more and more
strained, a prudent state prepares for eventualities.
Very often an ultimatum is presented, that is to
say, a demand the refusal of which will be
followed by war. The rupture of diplomatic
relations is the constant precursor of armed con-
flict. Unless the first blow falls, like a bolt from
the blue, in a period of profound peace, without
previous complaint and demand for redress, there
II
29
THE OUTBREAK OF WAR
is nothing in it which savours of treachery.
Yet so rooted is the notion, derived from the
ages of chivalry, of the unfairness of an attack on
an enemy without giving him notice beforehand,
that the commencement of an undeclared war is
constantly mourned over as a sad example of
lawlessness and perfidy. Yet even in the days
of chivalry the formal notice often initiated a
struggle for which there were no reasons beyond
ambition or greed, and sometimes it was purposely
contrived to convey an insult, as when Charles V.
of France sent his challenge to Edward III. of
England in 1369 by the hand of a kitchen-
servant.
As an example of the practice of modern
times we will quote two instances, one from the
recent history of each of the parties to the
present war. In May 1853, a Russian army
entered what were then the Turkish provinces of
Moldavia and Wallachia, and occupied them as a
"material guarantee" for the maintenance of the
rights of the Greek Christians in the Ottoman
Empire. This was clearly an act of hostility,
though Russia loudly declared it to be nothing of
30
('H.
WAR AND NEUTRALITY
the kind. But no declaration of war followed
till Turkey made one in the following October.
The first engagement of the war of a decade ago
between Japan and China was fought in Korean
waters on July 25, 1894. The formal declara-
tion of war by the Emperor of Japan was dated
August 1. Yet we find Count Ito, Minister
President of State, writing officially on September
10, 1894, "Let it be known that the com-
mencement of the present war was the 25th of
July." What was done on these two occasions,
first by one and then by the other of the present
belligerents, has been done habitually by civilised
powers. General Maurice proves this to demon-
stration in his monograph on Hostilities without
Declaration of War, published in 1883; and in
an article in the Nineteenth Century and After
for the month of April, 1904, he sums up his
results in the following words, which refer to
attacks without declaration :-
<<
Numerically, within the time I more particu-
larly examined, Britain struck thirty of these
blows, France thirty-six, Russia seven (not
reckoning her habitual practice towards Turkey
IT
31
THE OUTBREAK OF WAR
and other bordering Asiatic States, including
China), Prussia seven, Austria twelve, the United
States five at least."
Unless, therefore, we are prepared to maintain
the ridiculous proposition that the law of nations,
instead of being deduced from the practice of
nations, has no connection whatever with it, we
must acquit Japan of the charge made against
her. Instead of being guilty of a violation of
International Law, she went beyond it by giving
her adversary ample notice of what he might
expect. Relations between the two Powers had
been strained for a long time. There would have
been no treachery in a sudden attack. But the
Note delivered on February 6 by the Japanese
Representative at St. Petersburg not only broke
off diplomatic intercourse an act which is con-
stantly followed by immediate war-but also
expressly stated that Japan must take such
measures as she thought fit for her own safety.
Its exact words were, "The Imperial Government
reserve to themselves the right to take such
independent action as they may deem best to
consolidate and defend their menaced position,
?
32
CH.
WAR AND NEUTRALITY
as well as to protect their established rights
and legitimate interests." The merest tyro in
diplomacy knows what this meant. It was a
distinct warning that hostilities might be
expected at any moment, and the first blow was
not struck till about sixty hours after it had
been given. As a matter of fact, Russia was not
taken unawares. She had expected war for some
time, and had prepared for it, though her prepara-
tions were ill conceived and badly carried out.
In this connection a significant interview with
Captain Stepanoff of the Variag appeared early
in April in the Neues Wiener Tagblatt.
I quote
it, as translated in the Standard of April 7,
merely reminding those who read it that the
Variag was the famous Russian cruiser which
fought a Japanese squadron for an hour outside.
Chemulpo on February 9, 1904, and was scuttled
afterwards by her own crew (see pp. 67-69).
The captain's words are,
(C
For months, so to say, we had expected
every moment the breaking off of diplomatic
relations, and we knew that war with Japan was
inevitable. Our squadron was preparing in all
II
33
THE OUTBREAK OF WAR
earnestness, and day and night work went on, as
we were awaiting a declaration of war by Japan
every hour."
These sentences show that some at least of
the Czar's officers were able to read the signs of
the times, and energetic enough to act on them.
But foresight was not a monopoly of the naval
service. The Russian Government steadily
strengthened its forces in the Far East during
the six months that preceded the outbreak of
hostilities. Indeed, the despatch of its squadron
from the Mediterranean early in February was
in all probability the determining event which
caused the rulers of Japan to decide in favour
of immediate war. There is some reason to
suppose that the northern border of Korea was
crossed by reconnoitring Cossacks while the two
Empires were still at peace. Even in Port
Arthur, the home of overweening confidence,
there were preparations. On February 3 the
Russian squadron therein, reinforced by ships of
the "Armed Reserve," put out to sea, possibly to
practise evolutions in view of hostilities, possibly
to look out for a Japanese force. The fact that
D
34
CH.
WAR AND NEUTRALITY
five days afterwards, when the attack was at last
delivered, the officers were engaged in festivity,
proves them negligent, but does not prove their
foes treacherous. Russia's charge against Japan
deserves no serious consideration. It is merely
an attempt to conceal her own deficiencies by
imputing bad faith to an honourable enemy.
It may be advisable to explain here what is
meant when we speak of the parties to a war as
being bound to observe certain rules in their
dealings with each other and with neutrals.
Civilised belligerents come under the somewhat
elastic code which goes by the name of the
Laws of War. It is founded on the practices
and agreements of enlightened states, and with
regard to many of its provisions is as clear and
certain as the law of the land.
This is specially
the case when the rules in
question apply
universally accepted principles of enlightened
morality. There is no doubt, for instance, that
it is unlawful to slaughter prisoners, or sink
neutral vessels engaged in innocent commerce,
or fire on a flag of truce, or let loose troops to
plunder and outrage helpless non-combatants.
II
35
THE OUTBREAK OF WAR
Moreover, every self-respecting state will take
care to observe any agreements to which it has
set its signature, even when they impose obliga-
tions of a technical character unconnected with
justice or humanity, such, for example, as an
arrangement for the exchange of prisoners.
outside these matters of certainty there are
others as to which we find differences of opinion
and divergences in action.
supplies an illustration.
But
The law of blockade
France holds that the
master of every blockade-runner is entitled to
individual and direct notice of the existence of
the blockade he seeks to violate, while we main-
tain that a diplomatic notification to neutral
Governments is sufficient in all but exceptional
cases. Where practice is uniform, or the matter
is provided for by express agreement, the rule is
clear. Failing one or the other of these two
conditions, there is room for doubt and difficulty.
In the present conflict both belligerents are, of
course, bound by the ordinary rules of warfare.
One of them has gone out of her way to enumer-
ate the recent international agreements to which
she considers herself under obligation to conform,
36
CH.
WAR AND NEUTRALITY
in addition to those whose provisions she has
expressly embodied in her published regulations.
The document which does this is the Order of
the Czar of February 28, 1904. It is entitled
Rules which the Imperial Government will enforce
during the War with Japan
Many of its statements are very important,
and we shall often have to refer to it. The
tenth Article declares that the military authori-
ties are bound to observe—
The Geneva Convention of 1864, which neutral-
ises, that is to say, exempts from the operations of
warlike force, persons and things connected with the
care of the sick and wounded in warfare on land.
The Declaration of St. Petersburg of 1868, which
prohibits the use of explosive bullets.
The Convention with respect to the laws and
customs of warfare on land, negotiated at the Hague
Conference of 1899.
The Convention, also negotiated at the Hague
Conference, for adapting to maritime warfare the
principles of the Geneva Convention.
The three Declarations agreed to by most of the
JI
37
THE OUTBREAK OF WAR
States represented at the Hague Conference—the
first prohibiting for five years the use of projectiles
dropped from balloons, the second prohibiting the
use of projectiles which are only intended to spread
asphyxiating or noxious fumes, and the third pro-
hibiting the use of bullets which expand and flatten
easily in the human body.
Japan is no less bound than Russia by these
international agreements. She has signed them
all, and has hitherto given the world no reason to
suppose that her signature will not be honoured.
Still, the special enumeration of them in the
Russian "Rules is significant, and affords
another proof of the desire of the sorely - tried
Czar to lessen the horrors of warfare.
""
It is difficult in time of war to obtain
information, at the same time full and un-
prejudiced, about the events of the struggle as
they unfold themselves. But the facts before
us up to the present time (beginning of June,
1904) justify on the whole a favourable judgment
of the behaviour of the combatants to each other.
The customary complaints have not been alto-
gether absent, particularly on the part of Russia.
38
CH.
WAR AND NEUTRALITY
We must remember, in considering what weight
to attach to them, that sometimes the pen is
employed against an opponent as actively as
the sword, especially when it is important to
divert sympathy from one side to the other.
The first and most important of these accusa-
tions we have already found to be baseless.
Others will be dealt with in due time. But
another and probably more important group of
questions arises with regard to the relations
between belligerents and neutrals. The war has
already yielded a heavy crop of these problems,
the chief of which will be presented in the
following pages. Before passing on to their
consideration it will be advisable to dismiss in
a few words two or three matters closely con-
nected with the humanities of warfare.
At the commencement of the conflict there
was a rush of Japanese fugitives seeking to
return to their country from Manchuria and the
Russian dominions in Eastern Asia. On Feb-
ruary 18 the Japanese Legation in London issued,
in the form of a diary, a moving narrative of
the sufferings of a number of their compatriots.
THE OUTBREAK OF WAR
39
who attempted to leave Port Arthur. According
to this account they were robbed, detained for
days on board the steamers on which they had
embarked, left without food and drink, and
reduced to a pitiable condition before they were
allowed to depart. These stories of brutality
received a certain amount of corroboration from
other sources, and were certainly not refuted by
the counter-allegation that the Japanese thus
maltreated were of bad character. On the other
hand, much of the cruelty complained of seems
to have been due to the action of the mob and
lawless subordinate officials. Admiral Alexeieff,
the Czar's Viceroy in the Far East, exerted him-
self to secure better treatment of the refugees ;
and after a time the barbarities ceased. Some
of the later bands of returning fugitives spoke
with thankfulness of the kindness they received.
It is clear that an unwieldy and ill-organised
administration, suddenly exposed to the strain
of a great war, broke down in this matter as
in most others, and was unable at first to restrain
the worst instincts of its own people. After-
wards, as order was slowly evolved from chaos,
40
CH.
WAR AND NEUTRALITY
subjects of the enemy shared the benefits of the
general improvement.
The sinking of a number of Japanese vessels
by the Russian Vladivostock squadron is another
matter which provoked much unfavourable com-
ment. The first case occurred on February 11,
when the Nakonoura Maru was surrounded and
destroyed. The first accounts implied that all
on board had been sent to the bottom along
with her. Had they been true, a gross outrage
would have been committed. A belligerent
cruiser has a right to stop, search, and seize
any merchantman of the enemy it may meet
outside neutral waters. But it has no right to
destroy, unless its summons to surrender is dis-
regarded, or its search resisted, or an attempt
made to recapture the vessel or to escape after
surrender. It may then use force to attain its
proper end of capture, and if incidentally the
ship is sunk, her crew have only themselves to
thank. But to send helpless mariners to their
death without giving them an opportunity of
surrender would be an act of cruel and lawless
violence.
Fortunately for the credit of Russian
II
41
THE OUTBREAK OF WAR
humanity, no such iniquity was committed.
Further information showed that the crew of
the Nakonoura Maru were taken on board a
Russian man-of-war and conveyed to Vladi-
vostock, from whence they were sent back to
Japan by a German steamer. Clearly, they re-
ceived from their captors all proper treatment.
A legal purist might perhaps blame the Russian
commander for sinking his prize at sea, instead
of taking her before a Prize Court for adjudica-
tion. But when we remember that the weather
at the time was terrific, and the ship unseaworthy
owing to the damage it had received, we shall
not attach much weight to such a judgment.
No neutral rights were involved.
It was all
enemy vessel; and between enemies superior
force prevails to destroy proprietary rights. A
trial before a Prize Court would have been
advisable, if it had been reasonably possible;
but there are good grounds for believing that it
was not.
The same considerations apply to the case of
the trading steamer Goyo Maru, except that the
reason for not sending her in for adjudication by
42
CH.
WAR AND NEUTRALITY
a Prize Court was the close proximity of a
superior Japanese squadron. She was sunk on
April 25 in the Bay of Gensan, after her crew
of twenty men had been put in a boat and told
to make for land. The case of the Kinshiu
Maru, which occurred a few hours afterwards,
was a still stronger one from the Russian point
of view. She was a Japanese transport, carrying
troops and coals. Mistaking in the fog which
prevailed the Russian cruisers for her own, she
went towards them signalling, "I am bringing
you coal."
A summons to surrender revealed
her mistake. Some of the troops on board made
a most heroic but hopeless resistance. The
rest appear to have surrendered, and were taken
on board the Russian vessels as prisoners of war.
In the end the transport was sunk by means of
a torpedo, and her brave defenders went to the
bottom along with her, continuing to fire as the
waves closed over them. Their resistance evokes
our warm admiration, but it amply justified
their enemies in destroying them and their
ship.
There will be no need to consider at any
II
43
THE OUTBREAK OF WAR
length the charge against the Japanese of firing
upon a Red Cross train running out of Port
Arthur on May 6, when they were effecting their
first landing upon the Liau - tung peninsula.
The answer to it is very simple. The train was
not devoted entirely to the service of the sick
and wounded. Several compartments were
filled with them; but either the Red Cross
badge was not displayed or the Japanese did not
see it. The rest of the train contained women and
children, and combatant officers. Indeed, accord-
ing to some accounts, Admiral Alexeieff was in
it.
The Japanese assert that some of the
Russian soldiers in the train fired at them and
they responded. Whereupon the engine halted,
and a Red Cross flag was hoisted. They then
ceased to fire, and endeavoured to ascertain
whether the vehicles in front of them were under
the protection of the Geneva Convention or not.
Taking advantage of the lull, the train steamed
on and escaped. The Russian account is not
inconsistent with this. If it be correct, not only
was the Japanese force fully justified in firing,
but Japan might prefer a counter-charge against
44
CH. I
WAR AND NEUTRALITY
the Russians of an unlawful use of the Red Cross
to cover the escape of soldiers and high officials.
In all probability there was no planned attempt
to deceive. In the hurry of the moment all
who could leave left by the only means avail-
able-a composite train. But the Geneva Con-
vention is quite clear upon the point that the
immunities accorded to the Red Cross badge
are conditional upon its exclusive use to cover
persons and things connected with the care of
the sick and wounded. The Japanese troops.
would have been well within their rights if they
had captured the train and all that it con-
tained.
CHAPTER III
DAYS OF GRACE. BLOCKADING UNDER MODERN
CONDITIONS
THERE are certain rights still held to belong to
belligerents, which are, nevertheless, so harsh,
and so out of accord with the more humane spirit
of modern times, that they are invariably toned
down in practice by concessions granted as a
matter of grace and favour by the Governments
concerned. What would happen if they were
not granted passes the wit of man to discover.
The rights they modify exist, like the royal
prerogative of refusing assent to bills passed by
both Houses of Parliament, only on condition of
not being used. Perhaps some of them might
be revived without much outcry. Others,
45
46
CH.
WAR AND NEUTRALITY
especially those which restrain commerce, could
not be put in force without grave danger to the
power which attempted to restore them.
Among the most prominent of these rights is
that of dealing harshly with subjects of the enemy
found within the territory of the state at the
outbreak of hostilities. Grotius, the father of
modern International Law, who wrote early in
the seventeenth century, says that they may be
made prisoners and detained till the end of the
war. In modern days the right of wholesale
arrest is held to have vanished, and its place is
taken by a right of expulsion. But this latter
right is seldom exercised, though now and then
it appears in all its former rigour, as when, at
the commencement of the Boer War in 1899,
the Transvaal Government expelled various cate-
gories of British subjects from the territory of
the Republic. But, as a rule, enemy citizens are
allowed to remain, if they live peacefully and
give no aid and comfort to their own side.
Sometimes they are given a certain time to wind
up their affairs and leave the country. The
days of grace thus accorded may be long or
III
47
DAYS OF GRACE
short, but they are always granted, unless pro-
vided for by treaty-stipulations, as a matter of
favour and not of right.
The first Article of the Russian "Rules" issued
on February 28, soon after the commencement
of the present war, laid down that " Japanese
subjects are authorised to continue, under the
protection of Russian law, to reside and to follow
peaceful callings in the Russian Empire, except
in the territories forming part of the Imperial
Lieutenancy in the Far East." The treatment
thus meted out to the subjects of Russia's enemy
was a compound of the new liberality and the
old severity. They were free to remain in all
parts of the Empire save the provinces ruled
over by Admiral Alexeieff. From these they
were to be expelled at once.
No time to wind
up their affairs, no days of grace, were given
them. They were obliged to leave their homes
and avocations immediately, and make for their
country as best they could, in the midst of the
turmoil and bitterness caused by Japan's sudden
attack. What this meant in the way of robbery
and cruelty we have already described (see pp.
48
CH.
WAR AND NEUTRALITY
38-40). Though things righted themselves
after a time, the prompt expulsion, and the hard-
ships inflicted on the first refugees, do not redound
to the credit of the Czar's Government, or its
troops and subordinate officials. No such scenes
were enacted in Japan. The enemy's officials,
when they left the country, were surrounded
with every circumstance of courtesy and honour;
while, with regard to those Russians who re-
mained, the policy of protection on condition of
registration, which was enunciated by Imperial
Ordinance during the war with China, was again.
followed on the present occasion.
The most important commercially of the cases
in which days of grace are granted occurs when,
at the commencement of hostilities, belligerents
gave permission for private vessels of the enemy
to leave their ports unmolested within a certain
time. Sometimes a right to enter as well as
leave is granted. Sometimes the set period is
long, sometimes short. Everything depends
upon the liberality or otherwise of the com-
batant powers. Strictly speaking, the outbreak
of war gives a state a right to capture all vessels
III
49
DAYS OF GRACE
of the enemy it finds afloat, as long as the
seizure does not take place in neutral waters.
Indeed, until about a century ago the custom
obtained of levying, in anticipation of hostilities,
what was called an embargo on vessels of a pro-
spective enemy. That is to say, his merchantmen
lying in the ports of the state which contem-
plated a rupture were detained, in order that
there might be a rich harvest of prizes as soon
as the expected war broke out. But since then
the interests of commerce have prevailed over
the desire for spoil. Important maritime powers,
on becoming belligerents, have issued proclama-
tions giving merchant vessels of the enemy found
in their ports at the commencement of hostilities
a certain fixed time during which they are free
to depart unmolested. At the beginning of the
Crimean War no less than six weeks were
granted; and Russia allowed her days of grace
to date, in her White Sea ports, from the break-
ing up of the ice, instead of from the issue of
her Proclamation. The most liberal indulgences
ever granted in this respect to an enemy's trade
are to be found in the Proclamation of President
E
50
CH.
WAR AND NEUTRALITY
M'Kinley, issued on April 26, 1898, at the
commencement of the late war between the
United States and Spain. Spanish merchant
vessels in American ports were allowed till
May 21 for loading cargoes and departing, and
were not to be captured on their return voyage
unless their cargoes included contraband of war,
or Spanish military or naval officers, or despatches
to or from the Spanish Government. Further,
enemy merchantmen who had sailed before
April 21, the day on which the war broke out,
from any foreign port to any port of the United
States, were allowed to enter such port, discharge
cargo and depart without molestation, and if met
at sea on the return voyage to any port not
under blockade were to be exempt from capture
by American cruisers. Moreover, these liberal
rules received extension from the judiciary. In
the case of the Buena Ventura it was held by
the Supreme Court of the United States that
Spanish vessels came within the "intention" of
the President's Proclamation if they had sailed
from any American port on or before May 21,
even though the departure took place before the
III
51
DAYS OF GRACE
war began.
Acting on this interpretation, the
Court released an enemy vessel which had sailed
from Ship Island, Mississippi, on April 19, two
days before the commencement of hostilities, and
was captured at sea on April 22, a day after
the outbreak of the war.
In
We look in vain for such liberality in the
present conflict. The Japanese Imperial Decree of
February 9, 1904, exempts from capture Russian
merchantmen who leave Japanese ports up to
February 16, and also those who sail direct for
Japan up to that date from non-Japanese ports,
and, after discharging cargo, keep on the return
voyage to a route marked out for them.
every case the indulgence is made conditional
upon the absence from the cargo of contraband
of war.
The second Article of the Czar's Rules,
issued on February 28, granted permission to
Japanese ships of commerce found in Russian
ports "at the time of the Declaration of War,"
which was made on February 10, to remain
without molestation, "for such period as may be
necessary in proportion to their loading require-
ments, but which shall in no case exceed forty-
52
CH.
WAR AND NEUTRALITY
eight hours, counting from the moment that the
present declaration is published by the local
authorities." The Russian indulgence, like the
Japanese, was made to depend upon the absence
of contraband of war from the cargoes.
We see that the days of grace granted by
Japan amounted to seven only. Russia gave a
variable time, it being certain that the local
authorities in all parts of her vast empire would
not publish the Czar's declaration on the same
day. But the period of forty-eight hours, which
was the utmost that could elapse between its
publication and the departure of the enemy
vessel, is very short, and contrasts strongly with
the thirty days which might have been enjoyed
under the Proclamation of President M'Kinley.
It may be assumed that Japanese vessels depart-
ing in accordance with the Czar's Order are to be
free from capture on the return voyage, though
this is not expressly stated. But even so, their
privileges are small compared with those accorded
to Spanish vessels by the United States in 1898;
and the case of those who were on their way to
Russian ports when the war broke out is not
LII
53
DAYS OF GRACE
mentioned at all. It is too early yet to pass
judgment upon the whole matter. The full
facts are not before us; and we have had no
opportunity of weighing the decisions of Prize
Courts. But we can hardly escape the conclu-
sion that commercial interests will not prove so
potent to mitigate the strict rights of belligerents
in this war as in other recent struggles. The
sea-borne trade of Russia in the Northern Pacific
is not large in extent or enormous in value. She
can afford to see it suffer with equanimity.
Japan, on the other hand, has much to lose. Of
late the increase of her mercantile marine has
been as remarkable as the growth of her fighting
navy. She has taken over a large number of its
best vessels to act as transports. It is impossible
to exaggerate the value of such service to a
state which must attack its foe with armies sent
across the seas. Perhaps it was the conscious-
ness of this which caused Russia to cut down her
days of grace to a minimum. The incident should
be a warning to us of what we may expect
if we should be engaged in war with a mari-
time power.
In this matter, when belligerents
54
CH.
WAR AND NEUTRALITY
are bound by no definite rules of universal
acceptance, they will naturally consult their own
interests, though we may hope that cases will
sometimes occur in which other considerations
will be present to their minds. A power which
sees a chance of striking a severe blow at its
enemy's trade by cutting the days of grace down
to a minimum, is almost certain to do so,
especially if its own sea-borne commerce is so
small that little is to be feared from retaliatory
ineasures. But, quite apart from purely mer-
cantile considerations, we must reckon here, as
in many other questions, with the changed con-
ditions of modern warfare. If a sea-going fleet
is to be effective for long together, it must be
followed by a train of colliers, supply-ships,
repairing-vessels, and hosts of others, carrying all
the numerous requirements of a navy which is
a mass of complicated machinery, and is afflicted
with an insatiable hunger for coal. If, on
sudden outbreak of war, a belligerent finds his
ports full of merchantmen belonging to enemy
owners, and well adapted for the purposes I have
described, he may capture them all, dispensing
a
III
55
DAYS OF GRACE
with days of grace entirely, and taking full
advantage of the opportunity which fortune has
placed in his hands. In such a case it would
be curious to see whether the desire to injure
the enemy would prevail over the fear of offend-
ing neutrals, by causing a great dislocation of
trade in which some of them are sure to be
interested. Certainly it will be wise for British
shipowners to read the signs of the times, and
not calculate upon a continuance in future of
the indulgences which have been accorded in
recent years on the outbreak of hostilities to the
merchantmen of the belligerent states. There is
one class of vessel against which the full rights
of war will almost certainly be exercised.
refer to swift liners, built on designs which make
them easily adaptable for warlike purposes, and
liable to be taken over by their governments in
the event of hostilities. It would be criminal
folly for a state to permit the departure of any
such ships of enemy nationality which happened
to be in its ports at the outbreak of a great war.
I
Another instance of the grant of days of grace
is to be found in connection with the establish-
56
CH.
WAR AND NEUTRALITY
This
ment of a blockade. When this is done effectively
the result is that all neutral ships attempting to
run in or out of the blockaded port are legally
subject to capture and condemnation as prizes by
the blockading belligerent. But it has become a
general practice to allow a fixed time from the
commencement of the blockade for neutral ships
already in the harbour to leave it unmolested,
and sometimes for those outside to enter.
has always been done in recent wars, when
a blockade has been instituted soon after the
commencement of hostilities, or in such circum-
stances that neutral shipmasters can have little
or no warning. Whether it would be expected
in an unusual case, like the blockade of Port
Arthur and the Liau-tung peninsula proclaimed.
by Admiral Togo on May 26, may be considered
doubtful. Ever since the beginning of February
the Japanese fleet has ridden triumphant in these
waters, and made attack after attack on the great
Russian naval base. There can hardly be a
neutral seaman in the world who did not know
for weeks before the proclamation of blockade
that a voyage to Port Arthur would be a most
III
57
DAYS OF GRACE
risky experiment.
But putting aside anomalous
cases, days of grace are expected by neutrals.
Generally the indulgence is confined to ships
coming out in ballast, or with cargo laden before
the commencement of the blockade. But, at the
outbreak of the Spanish-American War in 1898,
the United States not only allowed thirty days
for neutral vessels to issue from the blockaded
ports, but permitted them to bring out cargo with
no restrictions as to the time when it was placed
on board.
When Great Britain, in alliance with
Germany, instituted a blockade of Venezuelan
ports in December 1902, she allowed fifteen days
for the departure of neutral vessels lying in the
ports declared to be blockaded, and further granted
to vessels which had sailed for any of these ports
before the date of her notification, a period of
grace varying from ten to forty days according
to the character of the vessels, as sailing ships or
steamers, and the distance of the starting-place
from the blockaded port.
Till the end of May 1904 Port Arthur had
not been blockaded in the present war. A legal
blockade involves the continual presence off the
58
CH.
WAR AND NEUTRALITY
blockaded port of a force sufficient to make ingress
and egress very dangerous. Unless it is effective,
neutral governments are not bound to submit to
the seizure of their merchantmen attempting to
run in or out. But under modern conditions of
navigation and warfare the endeavour to make it
effective is far more dangerous to the blockaders
than to the blockaded, whenever there is in the
port a force of torpedo-boats and destroyers able
to get out, and handled with even moderate skill
and dash. They ought to keep the enemy's
battleships at least 50 miles away during the
night, and it is at night that the attempts to run
in or out will be made. The blockading cruisers
may perhaps venture to patrol at 30 miles'
distance, and the destroyers and torpedo-boats
will be nearer still. The mosquito fleet of the
blockaded side will constantly skirmish with
them, and use every effort to draw them away
from the channels through which it has reason
to believe blockade-runners are advancing. The
chances are strongly in favour of any swift vessel
in an attempt to run in or out. Whereas if the
commander of the blockading fleet draws his
III
59
DAYS OF GRACE
cordon of ships sufficiently near the port to make
ingress or egress really dangerous, he risks their
destruction by mines and torpedoes, to say nothing
of the danger of their coming during a chase
under the guns of any land defences. For these
and other reasons the Japanese did not seek to
close Port Arthur to trade by a strict blockade.
The treatment accorded by the Russian authorities
to ordinary merchantmen seems to have saved
their foes the trouble of keeping such ships away.
Vessels carrying coal and provisions were encour-
aged to visit the place for obvious reasons; but
since it is a port of naval equipment, and shelters
a fleet, the wares in question are contraband of
war, and, as such, liable to capture by the
Japanese without reference to any question of
blockade. But I doubt whether Admiral Togo
ever troubled himself much about neutral
merchantmen till his proclamation of blockade
was issued. He had two alternative objects. He
wished either to close the channel of entrance to
the inner harbour when the Russian squadron
was inside, or to entice his enemy's fleet out and
fight a general engagement with it away from
60
CH.
WAR AND NEUTRALITY
the shelter of the shore batteries. For neither of
these purposes was a blockade necessary, and
accordingly the port was not blockaded. What
may happen now it is impossible to say. In all
probability the Japanese look upon the blockade
as a temporary measure, destined to last till
Port Arthur falls, and meanwhile to assist in
cutting off all supplies from the garrison. If
the great naval fortress is not speedily taken,
blockading operations may be prolonged, in
which case startling developments may take
place, unless the Russian Pacific fleet is so
crippled that it can be safely treated as the
Americans treated the Spanish squadron in
Santiago in 1898. They then stationed a com-
paratively small force only six miles from the
entrance in the daytime, and at night brought
up one of their battleships within two miles,
the others being about a mile farther back in
support. This was a real blockade, and a very
effective one. But Santiago was not a naval
port, and Admiral Cervera had no torpedo-boats
and very little coal. It was possible, therefore,
to take liberties with him which would not have
III
61
DAYS OF GRACE
been safe under other circumstances. Rear-
Admiral H. J. May, whose untimely death in
April 1904 was a loss to the Navy which only
those who were privileged to work with him can
fully realise, held that even when there was a
great preponderance of force on the part of the
blockaders, a blockaded squadron, well found
and well handled, would escape five times out
of six. On the sixth occasion it would be
brought to battle, but with the chances of
victory largely in its favour, because it would be
concentrated while its opponents were scattered.
These views seem borne out by both English and
French experience in recent naval manoeuvres.
In 1901 part of the French fleet was blockaded
by the rest in Ajaccio. One morning at dawn
it fell upon the blockaders while they were.
cruising in extended formation, and was adjudged
by the umpires to have defeated them. In
1902 we tried a blockade of the Greek port of
Argostoli, which we were allowed to use for the
purpose. The operations began on September
29, and in the night of October 4 the battle-
ships of the blockaded squadron escaped towards
62
CH. III
WAR AND NEUTRALITY
the west, the cruisers having drawn some of the
blockading vessels in a south-easterly direction
on the false idea that they were the battleships
seeking to break out.
Bearing these and other
instances in mind, I doubt whether we shall
hear much of blockades in the present war,
unless indeed the most sanguine of the Russian
expectations are fulfilled, and their Baltic fleet
destroys the Japanese navy. In that case it
may vary the labour of protecting the transports
of the victorious army which is to dictate peace
in Tokio, with the diversion of carrying on a
commercial blockade of the Japanese ports so as
to cut off from them all external supplies.
fresh set of conditions would then come into
play; and we should have a crucial experiment
to clear up the problem whether, given a trade.
sufficiently important to make it worth while to
fit out swift blockade-runners, such vessels could
be intercepted by a blockading squadron of the
size and power likely to be spared for the
purpose by any ordinary belligerent.
A
CHAPTER IV
THE RESCUE BY NEUTRALS IN CHEMULPO HARBOUR.
THE PROTEST OF THE THREE CAPTAINS
Ir is strange that the second day of the Russo-
Japanese War should have witnessed the raising
of a question which baffled the Hague Conference
of 1899. Towards the close of the discussions
on the application to maritime warfare of the
principles of the Geneva Convention, Captain
Mahan, who was one of the Plenipotentiaries
of the United States, noticed that no due
provision was made for the final disposal of
those who were rescued by neutral vessels. A
general right of relief and assistance was given
by Articles III. and IV. to duly authorised
hospital ships belonging to neutral individuals
or societies. Article VI. went further and
63
64
CH.
WAR AND NEUTRALITY
(C
declared that Neutral merchantmen, yachts,
or vessels, having, or taking on board, sick,
wounded, or shipwrecked of the belligerents,
cannot be captured for so doing." Obviously
the sick and wounded require attention. The
first thing to do is to give them medical atten-
tion and good nursing. But the shipwrecked
(naufragés), who are well defined by Captain
Mahan as men overboard for any cause during
or after naval battles," may be strong and
vigorous. And unfortunately they are likely
to be numerous; as owing to the constant use
of torpedoes, submarines, and mines in modern.
naval warfare, ships will often be sent to the
bottom by a sudden shock. The immense range
and deadly effect of the weapons now in use.
will tend to keep all who are not combatants
away from the scene of action. But, on the
other hand, ships fight under steam; and it
may well happen that the closing shots of a
battle are fired far away from the spot where
the conflict began. In that case neutral rescuers
may be able to attempt their humane task with-
out obstructing the operations of the belligerents,
IV
THE RESCUE BY NEUTRALS 65
or running into serious danger themselves. What
is to be done by them with the able-bodied men
they may take out of the water. The proposed
Convention did not say; neither did it give any
directions for the treatment of the sick and
wounded after they had recovered under neutral
care. It declared that those who fell into the
hands of their enemies were prisoners of war;
and it contemplated as a possibility the landing
of the shipwrecked, wounded, or sick at neutral
ports with the consent of the local authorities.
In such a case Article X. provided that they
must be guarded by the neutral state "so that
they cannot again take part in the military
operations," unless a contrary arrangement was
made with the state to which they belonged.
The expense of their internment, as the honour-
able detention described above is called, was
to be borne by their own country. These
directions applied to only one set of circum-
stances out of several which may arise; for
neutral states are in no way bound to receive
rescued combatants, whether sick or well, and
it is obvious that some might flatly refuse to
F
66
CH.
WAR AND NEUTRALITY
undertake the burden and responsibility of
harbouring them. But, vague and incomplete as
the suggested regulations were, they gave rise to
so much disagreement and so many reservations.
on the part of important powers, that the
Article which contained them was left out by
general consent when the Convention was
ratified. Therefore, as that instrument stands.
now, it binds the signatory powers to less than
it did when Captain Mahan noticed its de-
ficiencies. These he endeavoured to remedy by
proposing three additional Articles, which, how-
ever, dealt only with the case of men saved from
drowning by private neutral vessels. They pro-
vided that such a rescue should be deemed no
violation of neutrality, but the rescuers should
be bound to give up the rescued to the first
belligerent ship of war which demanded them,
whether the surrender delivered them into
captivity or placed them again in the fighting
line. If no demand were made by either side,
the men were to be "considered hors de combat,
not to serve for the rest of the war, unless duly
exchanged."
IV
67
THE RESCUE BY NEUTRALS
These propositions failed to find favour with
the Committee to which they were referred, and
were finally withdrawn, lest their further discus-
sion should endanger results already achieved.
But the Plenipotentiaries expressed a unanimous
wish that Switzerland would soon call a Con-
ference with a view to a revision of the Geneva
Convention. The present war in the Far East
has prevented the realisation of this wish; but
it is to be hoped that the return of peace will
find the Powers well disposed towards the pro-
ject. When such a Conference meets, the
events which occurred in the harbour of
Chemulpo on February 9, 1904, will form an
important precedent for its guidance. Just
before mid-day, the Russian cruiser Fariag,
followed by the gunboat Koreet, steamed out
and fought with a Japanese squadron for about
an hour. They then returned in a crippled
condition, and crowded with wounded men.
What happened immediately afterwards it is
impossible to say with absolute certainty. There
were present in the harbour the British cruiser
Talbot, the American Vicksburg, the French
68
C'H.
WAR AND NEUTRALITY
Pascal, and the Italian Elba. All these appear
to have given help, though to what extent is
still doubtful, at least to those who have only
the published documents to rely on. The
American captain reports that he sent three
boats, and assisted in taking off the Russian
sailors, putting them on board British and
Italian vessels." The commanders of the other
vessels received large numbers of Russian officers
and men on board their ships; but the different
accounts do not agree as to the exact circum-
stances in which this was done. M. Pavloff, the
Russian Minister at Seoul, says: "The captain of
the Variag sent his crew and his wounded on
board the British, French, and Italian cruisers."
This implies a deliberate act, planned beforehand,
and carefully carried out; whereas the report of
Captain Nicol to the French Minister of Marine
declares that the Russians "jumped into the
water, and were rescued by the European ships."
On the other hand, there is no mention of such
a panic-stricken rush from the injured vessels in
a graphic description of the scene by "an eye-
witness," which appeared in the Daily Telegraph
IV
69
THE RESCUE BY NEUTRALS
of February 26, 1904. The writer evidently
had exceptional opportunities of seeing all that
went on. He tells us that directly the Russian
ships regained the harbour, the wounded " were
lowered into boats and taken to the Pascal,
Talbot, and Elba," and then, after a time, the
unhurt members of the crew were similarly
ferried into safety. Even this, according to him,
did not exhaust the good offices of the neutral
commanders, for when at 4 P.M. the Koreetz ex-
ploded, "the Variag remained apparently un-
moved, but the Russians boarded her again in
the Pascal's boats, and set her on fire."
There can, I think, be little doubt that more
was done in the way of aid than the mere rescue
of drowning men; but how much more we
cannot venture at present to define. It may be
that the Russians would have been able without
assistance not only to put their crews ashore,
but to land them where they would not have
fallen into the hands of the Japanese troops who
had occupied the port during the afternoon of
the day before. It may be that they would
have been able to scuttle their vessels had they
70
CH.
WAR AND NEUTRALITY
been left entirely to their own resources.
The
Japanese made no diplomatic protest, and there-
fore we may assume either that they thought it
best not to raise any question as to the conduct
of the naval representatives of important neutral
states, or that they did not consider themselves
to have been wrongfully deprived of prizes and
prisoners through the action of the British,
French, and Italian captains. They did, however,
demand the surrender of the escaped Russians
as prisoners of war. The neutral commanders
demurred, and, after some time spent in negotia-
tions, the matter was settled by an arrangement
which contented all parties. The rescued
seamen were taken away by neutral ships, and
handed over to Russian vessels outside the area
of hostilities, the Japanese Government being
content for them to return to Russia on an
honourable understanding that they should not
be employed again during the war. Inci-
dentally the occurrence had the good effect of
removing some of the bitter feeling against Great
Britain that had sprung up in Russia at the
commencement of the war. The kind treatment
IV THE RESCUE BY NEUTRALS
71
received by the Russian sailors on board the
Talbot evoked touching expressions of gratitude.
from the men themselves, their friends and
relations, and their national authorities. The
exchange of personal and international courtesies.
at such a time was a valuable contribution
towards the maintenance of peace between the
two countries.
The Chemulpo incident shows, among other
things, that provision will have to be made in
future for assistance by neutral ships of war, as
well as by neutral hospital ships and ordinary
neutral vessels. The nature of such provision is
still open to controversy. We may hope to see
the rejection of Captain Mahan's idea that
neutral rescuers should be bound to give up
their unhurt refugees to the first belligerent
warship which demands them. Another project
is that the neutral vessel which has gathered
them up should report itself immediately to
the belligerent commander controlling the scene
of operations and take its orders from him,
which would mean in most cases the sur-
render of the refugees as prisoners of war. This
72
CH.
WAR AND NEUTRALITY
latter plan might sometimes be found difficult
in practice. There have been cases when neither
party controlled the scene after the action was
over. The indecisive conflict between Sir Robert
Calder and Villeneuve on July 22, 1805, is a
case in point. Another instance may be taken
from the battle of the Yalu, fought on Septem-
ber 17, 1894, at the close of which both the
Japanese and the Chinese fleets left the waters
in which they had contended. But quite apart
from the fact that sometimes there may be no
commander in control on the spot where the
battle was fought, the principle underlying the
proposals we have described seems inadmissible.
It involves the deneutralisation of humanity.
If the rescued men are surrendered to their own
side, they will again become combatants; if they
are surrendered to the other side, they will be
made prisoners of war. To assist in bringing
about either of these consummations is surely
inconsistent with neutrality. There remain the
alternatives of "internment "that is to say,
keeping them in honourable detention under
neutral guardianship for the rest of the war—
IV
73
THE RESCUE BY NEUTRALS
or handing them over to their own friends in
exchange for a solemn promise that they shall
not serve again while hostilities continue. Either
course seems right in principle, but if we follow
the analogy of land warfare, we shall regard the
former as preferable.
as preferable. Article LVII. of the
Hague Convention Code declares that "A neutral
State which receives in its territory troops be-
longing to the belligerent armies shall intern.
them." This was done on a large scale by
Switzerland early in February 1871, when a
beaten and starving French army, numbering no
less than 85,000 men, was driven across the
frontier in the vicinity of Geneva by the troops.
of Manteuffel and Werder. It is true that the
Geneva Convention of 1864 does not contem-
plate the withdrawal to neutral territory of the
sick and wounded combatants who are cared for
in neutral hospitals and ambulances. On the
contrary, it assumes that they will remain in
the power of the victors. But it provides by
Article VI. that those who are incapacitated
shall, when their wounds are healed, be sent
back to their own country, and it permits the
74
CH.
WAR AND NEUTRALITY
sending back of the others also on condition
that they do not again bear arms during the
continuance of the war. By the "Additional
Articles" negotiated in 1868 this permission
was turned into an obligation; but as these.
articles have not been ratified, they do not bind
the signatory powers. They remain, however,
on record; and fortunately we have travelled in
sentiment as well as in time far beyond the case
of the Deerhound, an English yacht which rescued
the captain and some of the crew of the Ala-
bama from drowning, when the famous Con-
federate cruiser sank beneath the fire of the
Kearsarge, off Cherbourg, on June 19, 1864.
On this occasion the rescued men were landed at
Southampton and there set free, so that they
might, if they had chosen, have taken further
part in the war; while the United States com-
plained diplomatically that it was "direct hos-
tility for a stranger to intervene and rescue men
who had been cast into the ocean in battle."
Thus both sides, with perverted ingenuity, con-
trived to put themselves in the wrong. We
interpret the obligations of neutrality and
IV THE RESCUE BY NEUTRALS
75
humanity more strictly than our fathers, but
we need an international agreement to give
symmetry and stability to our views. When
it comes to be negotiated the precedent of
Chemulpo will undoubtedly make for a very
wide right of rescue on the part of neutral
vessels, both public and private. But we may
hope it will not be pressed in favour of any-
thing approaching a right of interference in the
struggle. It is one thing to save the life of a
man struggling in the water, quite another to
help him in keeping himself and his ship out
of the hands of the victor.
We now come to another incident connected
with the series of events we have just discussed.
We have already seen that on February 8 a
Japanese squadron steamed into the harbour
of Chemulpo and commenced to disembark
Japanese troops. Early the next morning
Admiral Uriu, its commander, requested the
captain of the Russian cruiser Variag to leave
the harbour, and informed him that if he did
not he would be attacked. On this becoming
known, the captains of the Talbot, the Pascal,
76
CH.
WAR AND NEUTRALITY
and the Elba met in consultation. Why the
captain of the United States warship Vicks-
burg did not attend the conference we do not
know. He acted independently throughout.
Possibly he thought, and not altogether without
reason, that his colleagues were taking upon
themselves responsibilities they would have done
well to avoid. As a result of their deliberations,
the following communication was signed by all
and sent to Admiral Uriu:
"We consider that, in accordance with the
recognised rules of International Law, the port
of Chemulpo being a neutral port, no country
has the right to attack the vessels of another
power lying in that port, and that the power
which contravenes those laws is solely respon-
sible for any loss of life or damage to property
in such a port. We accordingly protest ener-
getically against such a violation of neutrality,
and we shall be happy to learn your decision on
the subject."
In spite of these efforts to prevent a conflict,
the Variag and her consort the Korcets were
attacked as they endeavoured to escape. What
IV
77
THE RESCUE BY NEUTRALS
followed we have already narrated, when dealing
with the rescue of the bulk of their crews by
neutral boats. It remains for us now to discuss
the protest and the grounds on which it was
based.
Two questions arise with regard to it-Was
it good in law? Was there any need to make
it ? The first of these involves an examination
of the position of Korea as a member of the
family of nations, and this we must defer to our
last chapter. The second can be answered at
once without reference to the conclusion we
reach after discussing the first.
Assuming for the moment that what the
Japanese Admiral had in contemplation was an
unlawful act, we may nevertheless doubt whether
it was any part of the business of the neutral
naval commanders on the spot to protest against
it. The question whether one neutral, or one
group of neutrals, should interfere on behalf of
the neutrality of another, is a matter of high
policy which should be left to the Governments
concerned to settle. Speaking generally, there is
little reason why they should concern themselves
78
CH.
WAR AND NEUTRALITY
actively in any difficulties of the kind we are
considering, unless their own interests or the
wider interests of humanity at large are involved.
Each state ought to use its best efforts to
maintain its own sovereign authority. No
grosser violation thereof can be conceived than
the use of its ports and waters as a battle-ground
by belligerents. If it does not exhaust all means,
both diplomatic and military, in prevention and
punishment, it can hardly expect other powers to
trouble themselves with its grievances. Just as
a man careless of his own honour can look for
little zeal in maintaining it from his neighbours,
a state which makes no effort to enforce
respect for its neutrality, must submit to have
it disregarded without a crusade on its behalf
being undertaken by other neutrals. The Korean
authorities were passive spectators of Admiral
Uriu's proceedings. Apparently they did not
raise a finger to prevent anything that was done.
In these circumstances the proper course for
neutral governments was to hold themselves
severely aloof. And this, as far as we know, is
exactly what they have done; for the protest of
so
IV
79
THE RESCUE BY NEUTRALS
the three captains does not appear to have been
followed by any diplomatic remonstrances. It
is, of course, easy to imagine a case in which it
would be their duty to strengthen the hands of
the aggrieved neutral by every means in their
power, and even to insist strongly upon the
preservation by it of an impartial and correct
attitude. The position of China in the present
war supplies an apposite instance. Any
departure by her from strict neutrality would
undoubtedly bring about a vast extension of the
area of hostilities, and might involve several
other states in the conflict. Moreover, there
are in addition awful possibilities of a general
massacre of Europeans, followed by the
slaughterings, ravishings, and plunderings of
another punitive expedition. To ward off such
calamities, powerful neutral governments are
justified in resorting to the strongest measures
as regards China and both the belligerents. But
we can all see that the case is exceptional.
The rule must be one of non-interference.
As a matter of sound policy, questions which
arise between neutrals and belligerents are
80
CH.
WAR AND NEUTRALITY
generally left untouched by governments un-
concerned in the controversy; and a latitude
which they do not take can hardly be claimed
by their naval officers. Among the most im-
portant of the duties these gallant servants of the
state perform abroad is the protection of citizens
of their own country from violence and plunder
in barbarous or semi- barbarous parts of the
world, and even in civilised countries during
periods of revolution and mob-violence, when
ordinary law and authority are in abeyance.
Few people are aware of the magnificent services
rendered by the British navy, as the police force
of humanity, in out-of-the-way corners of the
globe. The naval officer is often combatant and
peacemaker, diplomatist, judge, and avenger all
in one; and he performs these heterogeneous
duties with a splendid efficiency and tactful
courage which are as far beyond praise as they
are too often remote from recognition and
reward. If he finds himself suddenly confronted
with an outbreak of what seem to him unlawful
hostilities, in the course of which the lives and
property of British subjects are in imminent
IV
81
THE RESCUE BY NEUTRALS
danger, it is his duty to afford them protection
by every means in his power.
And if among
those means he includes a timely protest against
the carrying on of warlike operations in a
neutral harbour, he would be well within his
rights in making it. But in the case before us
there was no danger threatening British, French,
and Italian subjects or their possessions. The
Japanese preserved perfect order, and strictly re-
spected all the rights of non-combatants. There
was, therefore, no ground for the protest, but that
of high state policy; and this should have been
left to the central governments to occupy or
refrain from occupying at their discretion. The
matter is not likely to make a precedent; and it
can safely be left to sink into oblivion.
When we come to discuss (see pp. 213-219)
the further question, whether there was any viola-
tion of neutrality, we shall see reason for believing
that the hard facts of the case and the diplomatic.
verbiage whereby it was sought to smooth them
over, were hopelessly at variance. Korea enjoyed
a state paper neutrality. But she was in
reality the prize of war; and it was absurd to
-
G
82
CH. IV
WAR AND NEUTRALITY
suppose that military operations would not be
carried on within her borders. If this be so,
there is no sound legal foundation for the protest
of the three Captains.
CHAPTER V
NEWSPAPER CORRESPONDENTS AND WIRELESS
TELEGRAPHY. MARINE MINES
DURING the present war the resources of science
have been applied to the collection and trans-
mission of information in a manner hitherto
unprecedented, and the honour of the innovation
belongs to the Times. It has fitted up the
steamer Haimun with De Forest's wireless
telegraphy apparatus, and placed on board a
representative of its own, whose messages are sent
in cipher to Wei-hai-Wei, and telegraphed from
thence to London over a neutral cable. There
seems no Machiavellian subtlety here, especially
as the steamer is liable to search by the armed
vessels of either belligerent, and has in fact been
visited several times by Japanese warships, and
83
84
CH.
WAR AND NEUTRALITY
once by the Russian cruiser Bayan.
A searching
party from the latter made a very thorough ex-
amination of the vessel on April 7. They directed
special attention to the wireless apparatus, which
they carefully examined. A message just sent off
was shown to them; and they seem to have
satisfied themselves that nothing was being done
to assist the Japanese or injure the Russian cause ;
for they left the Haimun with the customary
courtesies, and took no steps to detain her.
something connected with the proceedings must
have got on the nerves of Admiral Alexeieff; for
on April 15, 1904, the British Government
received a Russian Circular to the powers, and
what purports to be its exact wording was soon
after cabled from Washington to the Times. It
runs thus:
But
"I am instructed by my Government, in order
that there may be no misunderstanding, to inform
your Excellency that the Lieutenant of His
Imperial Majesty in the Far East has just made
the following declaration:-In case neutral vessels,
having on board correspondents who may com-
municate news to the enemy by means of improved
V
NEWSPAPER CORRESPONDENTS 85
apparatus not yet provided for by existing con-
ventions, should be arrested off Kwangtung, or
within the zone of operations of the Russian fleet,
such correspondents shall be regarded as spies, and
the vessels provided with such apparatus shall be
seized as lawful prizes."
ぶ
​On April 20, Earl Percy, the Under-Secretary
of State for Foreign Affairs, in answer to a
question in the House of Commons, gave an
account of Admiral Alexeieff's order, which
differed by a very important word, from the
American version. He spoke of "correspondents
who are communicating information to the enemy";
whereas the phrase in the Washington telegram
ran "correspondents who may communicate news
to the enemy."
There is all the difference in the
world between being in a position to do an act,
and actually doing it. If I am left alone in my
neighbour's dining-room, I may steal his spoons ;
but it would be rather hard if that fact alone
secured my condemnation on a charge of larceny.
But let us suppose for a moment that information
is actually communicated to the enemy. Then,
without reference to espionage, Russia has ample
86
CH.
WAR AND NEUTRALITY
The law
He is in
means of punishing any neutral, whether news-
paper correspondent or not, who sends to the
Japanese from the theatre of hostilities news of
the dispositions of the Russian fleet.
of unneutral service applies to him.
the same position as if he had carried a despatch
for the enemy, or signalled between two of his
squadrons. His ship and apparatus are justly con-
fiscate, together with all cargo that belongs to him or
to the owner of the vessel. These severities might
surely be deemed sufficient, even if there had been
an actual transmission of intelligence direct to the
Japanese commanders. But Admiral Alexeieff
threatens to inflict a much greater punishment.
He claims to treat correspondents using wireless.
telegraphy as spies, and it seems to be generally
understood that he refers to those who send
information by this means to their principals, and
through them to the public, and not merely to
any one among them who may be guilty of wafting
information through the air to the enemies of
Russia.
When we remember that the punishment of
a spy is death, and probably death by hanging,
V
NEWSPAPER CORRESPONDENTS 87
we realise how serious is the threat of the Czar's
Viceroy in the Far East. The fortune of war
has left him little chance of carrying his purpose
into effect; but nevertheless it is due to his
exalted position, and the greatness of his country,
to examine his statement carefully in the light
of law and reason. Fortunately we can appeal
to an authority which Russia is bound to respect.
Article XXIX. of the Hague Convention on the
Laws and Customs of War on Land declares that
"An individual can only be considered as a spy
if, acting clandestinely, or on false pretences, he
obtains, or seeks to obtain, information in the
zone of operations of a belligerent with the
intention of communicating it to the hostile
party." Now a newspaper correspondent goes
about his business openly, does not pretend to be
other than he is, and, though he seeks informa-
tion, his object is to communicate it to all the
world, and not to the hostile party only. The
particular correspondent against whom the
Russian threat is aimed is the representative
of the Times on board the Haimun, and in his
case there is even less secrecy than usual, for it
88
CH.
WAR AND NEUTRALITY
These
is much more difficult to disguise or hide a
steamer than a man. He declares that his
messages are sent in cipher to Wei-hai-Wei by
a system which the instruments of neither belli-
gerent can record, and are conveyed from thence
to the office of his newspaper over a telegraphic
system which neither can control. One fails to
see how Japan can obtain valuable information
from a cipher she cannot read, sent by means
she cannot detect. Both belligerents in the
present war have signed the Hague Convention,
and therefore both are bound by its rules.
make a man a spy if he obtains information by
secret means, and obtains it for the enemy. The
methods used in forwarding it when obtained are
not once mentioned, and cannot be material to
the issue. And yet it is on these, and these
only, that Admiral Alexeieff's denunciation turns.
It may, perhaps, be argued that the Hague rules
refer to warfare on land, whereas the Russian
order refers to warfare at sea. But there cannot
be one definition of a spy for military purposes,
and quite another for naval purposes. In the
matter of espionage, the accepted principles are
V NEWSPAPER CORRESPONDENTS 89
·
of universal application, and it is impossible to
bring the correspondent of the Times within
them. The imagination quails before the spectacle
of such a prince of journalism dangling from a
yard-arm. As well might we attempt to picture
the Ambassador of Russia beheaded on Tower
Hill. Of course, if the unthinkable were to take
place, and a representative of the Times, or any
other paper, so far forgot himself as to penetrate
secretly within the lines of one belligerent and
give the information so obtained to the other, his
position as correspondent would not protect him
from punishment as a spy, any more than the
position of an officer protects the individual who,
in his devotion to his own side, penetrates the
enemy's camp in disguise and sketches its
defences. Article XIII. of the Hague Conven-
tion, before referred to, does, indeed, place in
the category of prisoners of war, correspondents
belonging to one army who are captured and
detained by the other. But it refers to corre-
spondents who are simply doing their duty as
such, not to those who may be guilty of espionage;
and in the case before us there was nothing of
90
CH.
WAR AND NEUTRALITY
the kind. The threat of Russia bears a striking
resemblance to the contention of Prince Bismarck
in 1870 that Frenchmen who attempted to carry
despatches in balloons from beleaguered cities
were spies. Four years afterwards the Brussels
Conference on the Laws of War decided that
they were not, and the representatives of Germany
acquiesced in the decision. The 29th Article of
the Hague Code repeats it, and it is not likely
to be challenged in any quarter. A similar
ending to the Russian attempt to penalise wire-
less telegraphy may be confidently expected.
But, though the mere use of an apparatus
which dispenses with wires and messengers does
not constitute espionage, a case may be made out
for some restraint upon the new departure in
journalism which the Times has initiated. Yet
it cannot be based upon the ground alleged by
Admiral Alexeieff. The use of improved means
of communication does but accelerate the trans-
mission of news. If there be harm in this, why
not penalise the electric telegraph, or even the
mail train and the mail boat? In fact, the
Russian reason is as weak as the Russian threat
V
NEWSPAPER CORRESPONDENTS 91
is outrageous.
But the roving pressman navi-
gating the ocean at will in a private vessel under
his own direction, is free from the control exer-
cised over correspondents attached to a belligerent
army or a belligerent fleet. Before they are
allowed to join they have to accept conditions
laid down by the state whose forces they accom-
pany; and they must always submit their
despatches before sending them off to an officer
detailed for the purpose, who exercises the widest
editorial powers, including that of entire suppres-
sion. Presumably, therefore, sufficient precau-
tions are taken to prevent any harm arising to
the national cause through premature or indis-
creet revelations. But there can be no such
security where the collectors and senders of
information are subject to no control beyond that
of an occasional search of their vessels on the
high seas. It is not every newspaper that is
conducted with the discretion that characterises
the Times. Every Admiral who has been in
command in time of war knows how troublesome,
and even dangerous, it would be for a fleet to be
followed by a cloud of private ships, ever hovering
92
CH.
WAR AND NEUTRALITY
round it to see what it was doing, and able to
waft whatever they saw or imagined all over
the world with little or no supervision. The
recent action of the Japanese authorities in
requesting the Times correspondent not to go
north of a line drawn from Chifu to Chemulpo
shows that they are alive to these perils. When
a new Hague Conference draws up a code of
rules for maritime warfare, it will have to devise
regulations for such cases. We have already
seen that the law, as it stands at present, pro-
vides for a right of search, and enables each
belligerent to punish severely any attempt to
convey information to his enemy. But more
than this is needed. Power should be given by
international convention to exclude the vessels of
correspondents for a time from any zone of sea
in which important warlike operations were in
process of development. Each belligerent should
have a right to place an officer on board a news-
paper steamer to act as censor of its messages.;
and the penalty for persistent obstruction and
refusal to obey signals should be capture and
confiscation.
V
93
MARINE MINES
A discussion on a moot point of neutral pro-
cedure when navigating the high seas, leads
naturally to a further discussion of certain
matters connected with belligerent procedure in
the open waters which are part of the common
highway of all nations. The question, or rather
the group of questions, to which we refer, grew
out of the sinking of the Japanese battleship
Hatsuse, by a marine mine on May 15, when she
was cruising ten miles south-east of Port Arthur,
and therefore out on the high seas a considerable
distance beyond Russian territorial waters. A
month before, on April 13, a Russian battle-
ship, the Petropavlovsk, had been destroyed by a
Japanese mine or mines. But as the catastrophe
took place in the outer roadstead of Port Arthur,
and at no very great distance from the shore, it
was felt to be a legal, though terrible, incident
of warfare. No one disputes the right of belli-
gerents to lay mines in their own territorial
waters, or those of their foes, as a means of
strengthening the defences of harbours, or assist-
ing attacks upon them. But when the area of
destruction is extended to the high seas, questions
94
CH.
WAR AND NEUTRALITY
of legality immediately arise. The sinking of
the Hatsuse was discussed at once by the press
of the civilised world. The general impression
seems to have been that the Russians created
a mine-field in the open sea, or deliberately
turned mechanical mines adrift in all the waters
to which they had access. Under the impression
that these views were correct, Russian methods
were vehemently denounced, and Russian officers
charged with a gross violation of International
Law. In the United States the chorus of con-
demnation was especially loud; but the American
Government wisely refrained from making repre-
sentations before it was sure of the facts, and
instructed its naval attachés abroad to inquire
into the matter.
Pending the results of inquiries and diplomatic
representations of a formal or informal character,
it may be useful to discuss the probabilities of
the case. The ordinary observation mine which
is fired from the shore by an electric current,
when the enemy is seen to have come within
the area of its operation, could not be anchored
without great difficulty, if at all, in water as
V
95
MARINE MINES
deep as that in which the Hatsuse sank.
More-
over, the adjustment of such mines, and their
connection with the observation-station on land,
would require more time for uninterrupted work
than is likely to be given to Russian marine
engineers by the Japanese vessels engaged in
watching Port Arthur. Electro-contact mines.
explode of their own accord when struck; but
they have to be connected with a battery on
shore, and the explosion takes place because the
impact of the vessel which strikes them com-
pletes the electric circuit. They, too, could not
be laid in deep water at any time without much
trouble and great expense; and in the middle
of last May, off the Kwangtung peninsula, the
element of danger from the enemy would obtrude
itself in a marked manner. We are, therefore,
almost forced to the conclusion that the agent
of destruction employed against the Hatsuse was
a mechanical mine, which would explode, when
struck, through some internal action, and would
not be connected with the shore. It is just
possible that the fatal blow may have been
struck by a torpedo travelling at low speed and
96
CH.
WAR AND NEUTRALITY
discharged at a great
may have been used.
distance, or a submarine
There are vague reports
of the existence of one or two vessels of this
kind at Port Arthur; but no trace of them has
ever been discovered by the Japanese, and it is
exceedingly improbable that any such craft are
among the defences of the Russian stronghold.
Moreover, the crew of any submarine which had
won for its country the greatest success that had
been obtained since the commencement of the
war would long ago have been honoured and
decorated; and the same may be said of those
who discharged the torpedo, if it was by that
means that the Japanese battleship was sent to
the bottom. The more the matter is considered,
the more we seem thrown back upon mechanical
mines as the agents of destruction. The question,
then, arises, How did they come to be on the
spot?
Were they moored to the bottom, or
were they adrift ?
The former alternative is possible, but not
probable. The difficulties in the way of
anchoring mechanical mines in deep water are
almost insuperable, and the charts show that the
V
97
MARINE MINES
sea is of considerable depth ten miles from
Port Arthur in the region where the Hatsuse
sank. We cannot pretend to any certainty in
the matter till further information is at our
disposal; and even when official reports reach
us, they may not agree. To this day there is
no general consensus of opinion as to the cause
of the explosion which sent the United States
battleship, the Maine, to the bottom of the
harbour of Havana early in 1898; and there
exist two contradictory reports from two com-
missions of experts. But such evidence as we
possess tends to discredit the theory of a
prepared mine-field, with its lines of buoyant
mines, all carefully placed at the proper in-
tervals, and secured so as to float at the proper
depth below the surface.
All other views being unlikely, we seem driven
by a process of elimination to the idea that a
mechanical mine left adrift was the agent of
destruction in the case before us. There is
ample evidence that many such mines were
floating in the Korean Bay and the Gulf of
Liau-tung about the time when the catastrophe
H
98
CH.
WAR AND NEUTRALITY
occurred.
On May 21 the correspondent of
the Times on board the Haimun saw
two within six miles of the British port of
Wei-hai-Wei. Reports are current that the
garrison of Port Arthur determined in their
desperation to use their stock of these
terrible machines in a last reckless endeavour
to damage the enemy, regardless of the risks and
hazards caused thereby to neutral shipping.
They therefore, so the story runs, employed.
Chinese junks to drop them at night in waters
likely to be crossed by the squadrons of Japan.
This may be a true tale, but it sounds like
one of those marvellous pieces of information.
which are supplied to us from time to time by
the gossip of Shanghai or Tientsin. Mechanical
mines are very expensive, and it is not likely
that the Russian naval commander in Port
Arthur had enough of them in hand to enable
him to sow them broadcast over the high seas.
We must remember that many had been used
in the earlier stages of the struggle, and
many more lost. On February 11 the
steamer Yenesei was blown up in Dalny Bay.
V
99
MARINE MINES
She was a Russian store-ship employed in
laying mines. She had placed 389, and was
herself destroyed by the 390th. According to
a correspondent of the New York Herald at
Chifu, the 389 were soon after blown out to
sea by a great storm. If this be correct, or
even partially correct, a good many of the
floating mines which infest the neighbouring
waters are accounted for. Then we must re-
member that ever since the war began both
belligerents have been mining all round the
coast of the peninsula on which Port Arthur
stands. As the Japanese pressed their attacks
more closely home, they constantly endeavoured
to remove the Russian mines, and lost two or
three ships in the process. We know from a
telegram sent by Admiral Alexeieff to the Czar
that "up to May 28 numerous Japanese mines
were discovered and exploded in the roadstead."
Both parties, therefore, have been hard at work
removing each other's infernal machines, and it
would be strange indeed if some of them did
not get adrift in the course of the dredging
operations. We can therefore account for
Dor M
100
CH.
WAR AND NEUTRALITY
stories brought back to port by frightened
merchantmen, without resorting to the supposi-
tion that Russia has deliberately strewn the
high seas with hidden dangers. She may have.
done so; but let us hope, for the honour of
human nature, that she did not; and let us
remember that she has often taken the lead in
modern attempts to mitigate the horrors of
war, such as the St. Petersburg Declaration of
1868, forbidding explosive bullets, and the
Hague Declaration of 1899, against dropping
projectiles from balloons.
We pass now from conjecture about fact to
discussion about law. Immediately we find our-
selves face to face with a difficulty which is
serious in all legal systems, and specially serious
in that which is called International Law.
There are no precedents. Mines are not new.
They have been used on land since the introduc-
tion of gunpowder. But the first to employ
them successfully at sea were the Confederates,
who mined their harbours, and blew up several
of the attacking or blockading ships. This was
in the American Civil War of 1861-1865;
V
101
MARINE MINES
The
and since that time vast improvements have
been introduced in the apparatus of submarine
defence. But though mining as an art has been
revolutionised, the practice of it has been con-
fined to the ports and territorial waters of belli-
gerent powers. The recent case is the first in
which a mine acted far out at sea. How is
an unprecedented situation to be met in Inter-
national Law? The first thing to be done is to
see whether any universally admitted principles
apply to it, and, if they do, to apply them.
next is to endeavour to bring about some
measure of international agreement as to future
treatment of similar situations. The best
method for securing this is a Conference. One
is due to codify the laws of warfare at sea, as
the laws of warfare on land were codified at the
Hague in 1899. But we must wait for it at
least till the close of the present war, and prob-
ably a good deal longer. Meanwhile discus-
sion tends to clarify opinion; and it is certain
that no new chapter will be added to the law of
nations till the general opinion of the civilised
world has pronounced strongly in favour of it.
Uor M
102
CH.
WAR AND NEUTRALITY
International Law regards as fundamental
the distinction between the high seas and terri-
torial waters. The former are the common
highway of all nations. The only purpose for
which they may not be used is piracy. Even
the slave-trade cannot be put down upon them
without an agreement between the states con-
cerned. Belligerents are free to carry on their
warlike operations in all parts of them; but
neutrals are equally free to carry on their lawful
trade. Neither can set apart a zone of ocean
into which the other may not intrude; yet
neither can so use the right of passage as to
interfere with the legitimate purposes of the
other, among which purposes the operations of
war must be reckoned. Wanton obstruction of
one by the other is forbidden. There must be
give and take on both sides.
On the other hand, territorial waters belong to
the state which owns the adjacent land, and are
under its jurisdiction. It throws them open to
the visits of ships of all powers with which it is
at peace.
But it is not bound to do so, the
only absolute rights they can claim in the
Maou
V
103
MARINE MINES
matter being a right of asylum when in danger
of destruction from the violence of wind and
wave, and a right of innocent passage when the
water-way between two portions of the high seas
passes through the territorial zone. Neutral
waters are as free from warlike operations as
neutral land. The belligerents may attack each
other's ports, harbours, and bays, but with this
their right to perform acts of war in territorial
waters begins and ends. Their power of
destruction is, however, more absolute there than
on the high seas; because it is not conditioned
by equal rights of navigation on the part of
neutrals, and moreover it has a proprietary
aspect which is permanent as
to their own
waters, and temporary as to those which they
hold in warlike occupation. They may perform
in such marginal seas acts of hostility which
would not be tolerated in the open ocean. No
objection has ever been taken against the use of
weapons which command them from the land,
however destructive they may be; and when
marine mines were invented they were placed as
a matter of course in the ports and harbours of
104
CH.
WAR AND NEUTRALITY
No
states which expected attack from the sea.
explicit rule of International Law gave permis-
sion; but neither, on the other hand, could any
prohibition be quoted. The accepted principles
were extended by analogy to the new situation.
Similarly, the attacking party used without
question all the means which science placed at
its disposal. Nothing came of the British pro-
test in 1861 against the action of the Federal
forces in blocking up some of the approaches to
Charleston and Savannah by means of vessels
sunk in the channels. Mr. Seward, the American
Secretary of State, replied that the obstructions.
would be removed when the war was over and
the Confederacy vanquished, and there the
matter ended. In the present war no one, even
in Russia, has hinted that the Japanese went
beyond their rights in attempting to block the
channel leading to the inner harbour of Port
Arthur by sunken merchantmen, or in mining
the sea-pathway which they had observed the
Russian ironclads to take when going in and
coming out.
If it be right to extend admitted principles
V
105
MARINE MINES
to new cases when they are concerned with
territorial waters, it cannot be wrong to use
them in like fashion when we are dealing with
the open ocean. Here the rule is one of con-
current rights on the part of belligerents and
neutrals; and there are no ideas of proprietorship
to be reckoned with, for it is held that the high
seas are incapable of appropriation. Surely this
rule contains an implicit prohibition of the use
of such means of destruction as shall prove a
lasting danger to neutral vessels, when no measures
of active hostility are going on in the neighbour-
hood to act as a warning against approach. It
has been construed from time immemorial to mean
that neutral onlookers at a naval engagement are
present at their own risk. It would be deemed
to justify the capture, and even the destruction,
of a neutral vessel which persistently hampered
warlike operations. The Hague agreement for
extending the principles of the Geneva Conven-
tion to maritime warfare expressly stated that
belligerents might control and order off hospital
ships. They might "even detain them, if im-
portant circumstances require it." If, then,
106 WAR AND NEUTRALITY
CH.
warring fleets may order off, and in extreme
circumstances destroy, neutral vessels which
theoretically have as much right to be on the
open ocean as they themselves have, conversely
neutrals must be protected against the use of
means of destruction which would do away with
security of navigation, when issue of battle was
not openly joined to be a sign to all and sundry
that they approached the spot at their peril.
The right to fight at sea, if it is to be conditioned,
as heretofore, by the right to trade at sea, must
be limited to fighting by open and avoidable
means.
We will now endeavour to apply these con-
siderations to the questions which have arisen
out of the destruction of the Hatsuse. If she
was blown up by a torpedo, discharged at close
quarters from a submarine, or at long range from
the shore or a torpedo boat, there was no more
violation of International Law than if her
magazine had been exploded by a shell from
one of the forts. The torpedo was aimed
directly at her, and no neutral merchantman
would have been in any danger, unless she had
V
107
MARINE MINES
come much closer than such vessels ought to
approach to fighting ships. If the agent of
destruction was a floating mechanical mine,
which had got adrift owing to one or other
of the operations we have already described, it
is difficult to say that any existing rule of law
was broken, though one may ardently desire
some strong restraint upon the carelessness which
strews the sea with floating death. But if a
mine-field was deliberately created out in the
open ocean by the Russians, in such a position
that it was as likely to destroy a peaceful neutral
as an enemy's warship, words fail to express the
reprobation with which the act must be re-
garded. It is not only illegal, but cruel in the
highest degree. Neutral states would be justified
in calling Russia to account very sharply, and
stating their intention of claiming exemplary
reparation should any vessels of theirs be lost
in the mined areas. The argument that, if the
Japanese fleet may bombard Port Arthur from
a distance of eight miles, which is far outside
territorial waters, the garrison of the fortress
may reply by any form of counter-attack, misses
108
CH.
WAR AND NEUTRALITY
the point completely. The forts have full liberty
to return shot for shot. Torpedo-attacks may
be made by any means which involve attempts
upon the enemy's ships and no others. But the
setting of a concealed death-trap in a place
where it is as likely to injure neutrals as foes.
is a mode of warfare contrary to all former
practice and to all sound principle. The evidence
available at present tends to discredit the common
idea that this was done, and without the clearest
proof we should hesitate to believe that such an
outrage was perpetrated. The still more horrible
story of the employment of Chinese junks to
dump cargoes of infernal machines down upon
the open sea, careless of where they floated and
whom they destroyed, supposes a defiant reck-
lessness and a wicked disregard of human life
which would be a disgrace to the most hardened
criminal. It is incredible without attestation
infinitely stronger than vague reports.
Professor Holland has pointed out, in his
admirable letters to the Times on this subject,
that it is not always easy to know where the
line should be drawn between territorial waters
V
109
MARINE MINES
and the high seas.
with regard to the marine league; but this
applies to the ordinary coast-line, and not to
bays, estuaries, and indentations, to say nothing
of narrow straits. Some of these are dealt
with by special compact. In the absence of a
definite agreement, what is called the ten - mile
rule is often adopted. Under it, all within an
imaginary line drawn from point to point across
an inlet is territorial water, as long as the line
in question is not more than ten miles in length;
and all outside is part of the high seas, except
that the marine league is measured from the
imaginary line. We cannot, however, attribute.
universality to this rule. The whole subject
needs reconsideration. There has sprung up of
late years a strong body of opinion in favour of
a large extension of territorial waters. The
marine league was adopted when the utmost
range of cannon was three miles. It is now
about twelve; and in addition artillery fire is
much more accurate and destructive than it was
a century and a half ago. In 1894 the Institut
de Droit International adopted at Paris resolutions
There is general agreement
110
CH.
WAR AND NEUTRALITY
in favour of the extension of the territorial zone
to six miles, with power to a neutral state to
claim further extensions for the purposes of pro-
tecting its neutrality, as long as they did not
exceed the utmost range of cannon mounted on
its shores. In the case of bays and inlets the
ten-mile line was to be replaced by one of twelve
miles. The events we have been describing
will give an impetus to the movement for change.
Nothing can be done without an International
Congress, and at present the prospect of one seems
remote. Even if it were assembled, the innate
conservatism of some states would be overcome
with difficulty. As late as June 2, 1904, Earl
Percy, the Under-Secretary of State for Foreign
Affairs, stated in the House of Commons that
His Majesty's Government were not prepared to
recognise any extension of the three-mile limit.
The arguments in favour of enlarging territorial
waters are very strong; but it will be necessary
to proceed with caution, lest unexpected and
unwelcome results follow upon changes which
were meant to promote the general good. A
better example could hardly be found than was
V
111
MARINE MINES
recently given by Vice-Admiral Sir R. H. Harris,
when he pointed out that if belligerents were
allowed to lay mines up to a ten-mile limit from
their shores, and England and France were un-
fortunately at war, life would not be worth
living for the crews of neutral merchantmen who
might attempt to navigate the Straits of Dover
CHAPTER VI
THE RUSSIANS IN THE RED SEA. THE USE OF
NEUTRAL WATERS BY BELLIGERENTS
THOUGH the Russo-Japanese war has lasted
but a short time, it has shown that many diffi-
culties may arise in connection with the visits of
belligerent squadrons and single ships to neutral
waters. Some of these troubles are old friends
with faces not indeed quite new, but much
changed owing to the influence of steam and
improved weapons. But behind them there
stand others in thick battalions-not troubles
that have happened, but troubles that may
happen, nay, that are sure to happen in future.
Naval warfare has been revolutionised in the
last forty years. The use of neutral ports as
rendezvous for torpedo-craft with a view to a
112
CH. VI RUSSIANS IN THE RED SEA 113
sudden dash at an enemy many miles away will
raise grave questions, as will also submarine
warfare, and the conveyance of information by
wireless telegraphy from vessels lying in neutral
harbours to vessels far out at sea.
These are
but examples of what may happen, and do not
pretend to be an exhaustive list. They are
mentioned in order to show that our adminis-
trative authorities, aided by enlightened public
opinion, ought to consider these matters while
we are at peace, and elaborate a policy for the
country to carry out in a great war, whether we
are belligerents or neutrals. But the object we
have before us now is the less ambitious, one of
studying cases that have arisen lately. From
this point of view we shall find very useful a
short account of the doings of the fleet under the
command of Admiral Wirenius during the first
few weeks of the present war.
When hostilities began, the Czar's squadron
from the Mediterranean was on its way to re-
inforce the naval strength of Russia in the Far
East. Most of the vessels were at anchor by the
island of Jebel-Zukkur, in the south of the Red
I
114
CH.
WAR AND NEUTRALITY
meanwhile from
By this time he
Sea, and the remainder lay at Jibuti, the capital
of French Somaliland. In three or four days all
assembled at Jibuti, where they remained for
about a week. At the end of that time official
news of the commencement of hostilities reached
the local authorities, and the Russian Admiral
was told that he must leave. This he did in
thirty-six hours, having coaled
his colliers in French waters.
had received orders from his Government to
return, along with all ships of the Russian
Volunteer Fleet which were on their way to the
scene of action. Accordingly, he proceeded up
the Red Sea, stopping and searching merchant
vessels on his way. Three neutral ships laden
with coal were detained as prizes, two of them
being British, the Frankly and the Ettrickdale,
and one Norwegian, the Mathilda. All carried
steam coal of the kind used by men-of-war. Two
were undoubtedly destined for Japan, one directly,
the other after touching at a neutral port. With
regard to the final destination of the third there
might be some doubt, though the circumstances
were suspicious. These prizes were brought into
VI
115
RUSSIANS IN THE RED SEA
waters.
the Gulf of Suez, within Egyptian territorial
There they were kept about four days,
and meanwhile their captors used the anchorage
as a base from which to overhaul neutral ships
navigating the Gulf. It is satisfactory to be able
to add that the Egyptian Government protested
against this use of its waters. Meanwhile, the
Czar telegraphed an order for the release of the
colliers, on the ground that they had been
captured before coal was formally declared
contraband by the Russian Government. This
conciliatory action on his part, and the departure
of Admiral Wirenius and his squadron for the
Mediterranean and the Baltic, simplified matters
considerably; but no sooner had the ships passed
through the Canal than a fresh complication
arose. One of the cruisers, the Dmitri Donskoi,
asked for coal at Port Said, on the plea that she
required it in order to steam to Cadiz on her
journey back to Russia. Her request having
been granted, she used the coal for cruising pur-
poses. For two or three days she hung about
the approaches to the Canal, where she overhauled
several vessels.
116
CH.
WAR AND NEUTRALITY
The use to which Admiral Wirenius put
neutral waters in the Red Sea need not detain us
long. It is quite clear that he exceeded his
rights, and violated the neutrality of Egypt in a
gross and open manner. It is an accepted rule
that no proximate acts of war must take place in
neutral waters, and they may not be used as a
base of operations by either party. The common
law of nations forbids these things, and, further,
declares that neutrals may make all reasonable
rules to protect their sovereignty over their own
territorial waters from being flouted by over-
zealous or unscrupulous belligerents. Moreover,
they are at liberty to refuse the prizes of the
contending parties admission to their ports. This
Egypt did in her Neutrality Order of February
12, and she also followed the example of Great
Britain in forbidding the use of her waters "as a
station or place of resort for any warlike purpose.'
It was the duty of the Russian Admiral to respect
the rules of International Law, and also the regu-
lations laid down by the neutral government,
seeing that these latter were reasonable in them-
selves and applied impartially to both sides.
11
VI
RUSSIANS IN THE RED SEA 117
Instead of this he anchored his prizes in Egyptian
waters about twenty miles below the port of Suez,
and, keeping his fleet in the same situation, sent
out vessels to waylay passing merchantmen. It
is to be hoped that the timely protest that was
lodged against these proceedings will prevent a
recurrence of them during the war. Incidentally
they raise another question, which is partly a
matter of law and partly a matter of policy. It
may be argued that the narrow opening of the
Gulf of Suez, and the smallness of the navigable
channel throughout its whole extent, makes it
territorial water. But seeing that it is twelve
miles wide at the entrance, and has generally been
accounted a part of the high seas, too much stress
should not be laid upon the contention that it is
already an Egyptian bay. But, if it is not,
should it not be made one by International agree-
ment, in order to protect the neutrality of the
Suez Canal, or, better still, be made to share the
permanent neutrality of the latter? By the
Convention of 1888 the entrances to the Canal
are not to be blockaded, and no acts of hostility
are to be committed in the channel or in the sea
118
CH.
WAR AND NEUTRALITY
to a distance of three marine miles from either
end of it. These rules might be observed to the
letter, while a squadron stationed in the Gulf of
Suez, where the navigable channel does not exceed
eight miles in width, practically kept the entire
passage from sea to sea under belligerent control.
This is a much more important matter than it
appears at first sight. Nothing less than the
neutralisation of the Canal is involved. The
Russian squadron which used the Gulf of Suez as
a cruising-ground in February, 1904, was able
in its narrow waters to intercept merchantmen
reported to them by their Consul at Suez as fit
to be stopped. They were not interfered with in
the Canal or within three miles of its southern
terminus, but nevertheless the passage was almost
as completely blocked as it would have been by
a belligerent force in possession of the town and
harbour of Suez. The Gulf of Suez is but a
natural prolongation of an artificial waterway.
It is useless to neutralise the latter without
neutralising the former also. Once out in the
wider expanse of the Red Sea, a trading vessel
could take her chance of search and seizure under
VI
RUSSIANS IN THE RED SEA 119
the ordinary rules of maritime warfare. But to
lure her into a narrow cut on the guarantee of
a solemn international pact that it is perfectly
free even in time of war, and then leave her to
be captured in another passage which opens out
from the first and is itself too narrow to give a
prospect of escape, is a sure way to deprive sea-
borne commerce of the benefit ostensibly con-
ferred upon it by the Convention of 1888. It
is true that no extreme inconvenience was caused
in February. But we must remember that the
Russian squadron was in difficulties about coal,
and hardly knew what to do with its prizes.
Moreover, it was on its way home, and therefore
its stay was short. In a future war some other
belligerent might place in the Gulf an efficient
force, well and continuously supplied with all
it required, and capable of sending its prizes
without difficulty into a port of its own country
for adjudication before a prize court. In that
case every rule of International Law would be
strictly obeyed. The Convention of 1888 would
be observed with absolute exactness.
And yet
the neutralisation of the Suez Canal would have
120
CH.
WAR AND NEUTRALITY
vanished like a dream. The situation deserves.
the careful consideration of the maritime powers.
It is ripe for a fresh agreement.
Severe criticisms have been published in
England on the conduct of the French authori-
ties in permitting the Russian fleet to remain
for so long a period in Jibuti, and allowing the
ships to fill their bunkers with coal before they
departed. Most of them are based upon the
assumption that International Law forbids belli-
gerent vessels to enjoy the shelter of neutral
ports for more than twenty-four hours at a time,
and, further, that it limits supplies of coal to
the quantity which will enable the recipients to
reach the nearest port of their own country.
This is an error, but one so general that those
who give expression to it have much excuse.
All the more reason, therefore, is there for an
attempt to set forth the correct view. Inter-
national Law draws a clear distinction between
what neutral states must do in these matters
and what they may do. Among the things they
must do is to forbid fighting in their ports and
waters, or the use of such ports and waters as
VI
121
RUSSIANS IN THE RED SEA
On the other hand,
a base of operations. They must not allow
belligerents to ship supplies of arms and ammu-
nition therein, or recruit men, or increase their
warlike force. Speaking generally, we may say
that a belligerent ship must not leave a neutral
port a more efficient fighting machine than she
entered it, except in so far as increased efficiency
may come from increased seaworthiness or a
better supply of provisions.
neutrals may permit the supply of things neces-
sary for subsistence, and they may repair in
these ports and waters damage due to the action
of the sea.
A distinction is drawn between
what is necessary for life and what is necessary
for war.
It is not very logical, because a man
must live before he can fight, and those things
which keep him in health fit him to perform his
duties as a combatant. But, such as it is, it has
to be observed. Moreover, it follows from the
fact that belligerents have no absolute right to
the hospitality of neutral ports, that neutral
governments may make conditions of entry, and
impose a time-limit upon the stay of combatant
vessels in their waters, and a limit of quantity
122
CH.
WAR AND NEUTRALITY
upon the supplies of things necessary for subsist-
ence and navigation, such as coals and provisions,
which they are still permitted to furnish or not
at their own will. Whatever regulations they
may make as to these matters are binding upon
belligerents as long as they are not unreasonable,
and are enforced impartially on both sides.
If we apply these principles to the case before
us, we shall see that France was not bound by
International Law to turn out Admiral Wirenius
and his ships after they had enjoyed the hos-
pitality of the port of Jibuti for twenty-hour
hours. Quite apart from the alleged absence of
official information of the outbreak of war, there
was no obligation upon her to do anything of
the kind. But what she did for Russia she is
bound to do for Japan. If in future a Japanese
squadron desires to stay for some time in a
French port, to compel their departure at the
end of a day would be a breach of neutrality,
unless, indeed, they were using it as a lurking-
place from whence to sally forth to the attack
of Russian vessels. Similar considerations apply
to coal. The French Circular of Neutrality,
VI
RUSSIANS IN THE RED SEA 123
issued on February 18, 1904, limited permis-
sible supplies and repairs to those necessary for
"the subsistence of the crews and the safety of
the navigation," and forbade the use of French
waters for warlike purposes, or for the acquisition
of information, or as bases of operation against
the enemy. It may be doubted whether any-
thing done at Jibuti was outside a reasonable
construction of these words. A full supply of
coal was allowed, but there was no returning
again and again for shelter and further supplies.
In other words, the port was not used as a naval
base. Unless and until a Japanese fleet is
refused the facilities granted to the Russian
squadron, there is little ground to reproach
France with a violation of neutrality.
But it will be said Great Britain is stricter.
We do not allow, by our Rules issued from the
Foreign Office on February 10, 1904, a longer
stay than twenty-four hours to belligerent vessels
visiting our ports and waters, unless they have
obtained permission to take innocent supplies or
effect repairs, in which case we turn them out
as soon as they are ready to depart. Nor do we
124
CH.
WAR AND NEUTRALITY
CC
permit them to take more coal than is necessary
to carry them to the nearest port of their own
country, Or to some nearer named neutral
destination," and no two supplies of coal for the
same vessel are to be allowed in British ports at
lesser intervals than three months. All this is
perfectly true. Great Britain, and the important
group of states who have followed her example
in this respect, have chosen the more excellent
way. Their definite rules are very much to be
preferred to the vague phrases of the French
Circular. But while the law of nations allows
the stay of belligerent vessels in neutral ports,
and sets no limit upon the amount of coal that
may be supplied therein, we have no right to
accuse a friend and neighbour of unneutral
conduct because she does not copy our wholesome
restrictions. States are bound by International
Law, not by British regulations, however excellent
they may be.
The case of coal is peculiar and unsatisfactory.
There is great need of a further advance in the
rules which deal with it. Before the application
of steam to navigation no
one gave it a thought
VI
USE OF NEUTRAL WATERS 125
in connection with warlike purposes.
Belligerent
ships were as little likely to ask for it as they
are to-day to demand granite or sand. But
when, in the middle of the last century, the
navies of the world changed from sailing vessels
to steamships, it suddenly became immensely
important. Yet the law of nations, based upon
the practice of nations, still regarded it as an
innocent article which might be supplied without
restraint to any belligerent ship whose com-
mander was so curiously constituted as to want
it. But in 1862 Great Britain led the way in
an attempt to put it on a more satisfactory
footing. Taking advantage of the power
possessed by neutrals to make reasonable regula-
tions for their own protection, she issued in the
midst of the great American Civil War a number
of rules which dealt, among other matters, with
supplies of coal. They were limited almost
exactly as they are in the present war. We
have kept to our rules ever since, when neutral in
a maritime struggle; and several powers, notably
the United States, have adopted them. Mean-
while, coal has become much more important
126
('H.
WAR AND NEUTRALITY
for warlike purposes than it was in 1862.
With-
A
out it a ship-of-war is a useless log. It is as
essential for fighting as ammunition, and much
more essential for chasing or escaping. More-
over, the great increase in the size or speed, or
both, of modern vessels causes them to consume
it in much greater quantities than before.
belligerent which can obtain full supplies of it
in neutral harbours gains thereby an enormous
advantage. The neutral may be perfectly willing
to grant similar supplies to the other side, but its
wants may never be so great, and consequently
the assistance given to it may never be so effective.
Besides, it is of the essence of neutrality that no
aid should be given to the belligerents, and this
is by no means the same thing as giving aid to
both equally.
The present war will very possibly supply us
with an object-lesson to illustrate this great
truth in a most vivid and convincing manner.
Russia is now fitting out her Baltic fleet in hot
haste with the intention of despatching it to the
scene of conflict. But the long voyage from
Kronstadt to any port in her Asiatic dominions
VI
127
USE OF NEUTRAL WATERS
which may remain in her possession at the close
of the summer cannot be accomplished without.
frequent supplies of coal. How are they to be
obtained? The ready answer is, in neutral
ports. The Czar has no possessions of his own
along the line of route. But his ships may
coal first at some English port, then in a Spanish
harbour, then in turn at Port Said, which is
Egyptian; Jibuti, which is French; Achin, which
is Dutch; and Canton, which is Chinese. Colliers
would no doubt be sent to meet the fleet at
various points, and some states would certainly
allow coaling from them in their waters. Others
might not; but in fair weather a certain amount
of coal can be taken on board at sea, and there
is always the possibility of shelter among un-
inhabited islets. Moreover, the vessels might
be towed for long distances by ships sent to
assist them. Taking all things into considera-
tion, and bearing in mind that the facilities for
coaling in some of the ports indicated may be
small, it nevertheless seems likely that the
Baltic fleet could perform the voyage to the
Far East, though it would probably arrive with
128 WAR AND NEUTRALITY
CH.
foul bottoms and empty bunkers. The colliers
which met it would be liable to capture as enemy
vessels if Russian, and as carriers of contraband
if neutral; but the danger is more nominal than
real, for Japan could not detach cruisers to
intercept them in distant seas. It comes then
to this, that by making full use of neutral
facilities, Russia can circumnavigate the greater
part of two continents, and throw against her
enemy a great naval force, whereas, if she had
to trust entirely to her own resources, the fleet in
question could not come within several thousand
miles of its foe. No neutral, in the plan before
us, grants the Russian vessels permission to take
in supplies more than once. Not only is no rule
of International Law infringed, but even the
stricter British regulations are not broken. And
yet Japan is exposed to a great danger, which
otherwise she would not have had to meet.
Doubtless all the neutral states concerned would
grant her the same facilities we have supposed
them to grant to Russia. But the last thing she
is likely to want is to send a squadron into the
Baltic. Clearly it is a case of summum jus,
VI USE OF NEUTRAL WATERS
129
summa injuria.
Under the forms of law the
spirit of neutrality is violated.
Can anything be done in this matter to bring
legal rules up to the standard of enlightened
international morality? In England a strong
body of naval opinion would support the pro-
hibition of all supplies of coal to belligerent
vessels in our ports. But, though this is the
ideal to be aimed at, not only for ourselves but
for the whole civilised world, it may be doubted
whether many states are yet ripe for so great a
change. We can, of course, set the example;
but if it is not followed, no appreciable progress
is made, while we assume a fresh burden when
neutral, and reap no benefit when belligerent.
We have to remember that France has not yet
come up to our standard of forty years ago. Her
policy with regard to coal in warfare is to place
no restrictions upon the trade in it. The word
is not to be found in her recent Neutrality
Circular. Evidently the thing is reckoned among
the supplies which a belligerent vessel may
receive in neutral waters, though the quantity
taken at any one time would probably be limited
K
130
CH.
WAR AND NEUTRALITY
by the rule which confines such supplies to what
are necessary for the security of navigation,
while the too frequent repetition of occasions
of coaling would be checked by the provision
against the use of any French port as a base of
operations. But, taken at their best, French
rules require strengthening; and the question for
us to consider is whether a further advance on
our part would be more likely to bring our
neighbour into line with us, or confirm her in
her present position. No doubt our interests
would be served by complete prohibition, if it
could be made general; and for this reason other
states may decline to follow any lead we may
give. As we are better off for coaling-stations
than any other power, and have greater facilities.
for keeping our fleets supplied by colliers, we
could not fail to benefit by a change which
would make men-of-war dependent upon coal
obtained in their own ports or from their own
supply - ships. On the other hand, we have
more to lose than most states by the present
system. Our sea-borne trade is so enormous,
and so essential to our welfare, that an enemy
VI USE OF NEUTRAL WATERS 131
could do vast damage by means of two or three
swift and well - handled commerce - destroyers,
which might for a time obtain coal in neutral
ports, though we had succeeded in closing all
their own against them. Our neighbours are
well aware of this; and they know in addition
that the change, if made, would either greatly
restrict their operations at sea, or lay upon them
the necessity of acquiring distant coaling-stations.
All things being considered, we could hardly
expect many of them to follow us in adopting a
rule of total prohibition, in spite of its manifest
necessity from the point of view of perfect and
impartial neutrality, and its desirability as
tending to curtail the area of war. To make it
and apply it in complete isolation would, as we
have seen, operate against us in two ways. It
would restrict our trade in coal when neutral-
a result which would doubtless appear undesir-
able to the great majority of us, though the more
thoughtful might welcome a rule which prevented
to some extent the transfer to other powers of
a resource which cannot be replaced, and ought
to be carefully husbanded for our own defence.
Uor M
132 WAR AND NEUTRALITY
CH.
Further, it would not, when we were at war,
restrain our enemies from obtaining supplies in
neutral ports, because, by the supposition on
which we are arguing, no country but our own
would prohibit them. The conclusion seems
forced upon us that we had better not try to act
alone, and that at present there is little chance
of persuading other powers to join us. But the
matter should be kept in view by our rulers, and
whenever opportunity offers to induce a group
of maritime states to make the change, it
should be taken without hesitation.
It may
come if at some future time a powerful belligerent,
who has suffered severely by the grant of large
coaling facilities to its enemy, pursues France,
or any other of the laxer powers, with per-
sistent claims for reparation, following the
precedent of the United States against Great
Britain in the matter of the Alabama and her
sister cruisers.
But if the absolute refusal of coals to com-
batant vessels in neutral ports is for the moment
outside the scope of practical international politics,
it behoves us to inquire whether there are any
VI
133
USE OF NEUTRAL WATERS
alternative means of improving upon the present
unsatisfactory state of affairs. The Scandinavian
kingdoms of Sweden and Norway, and Denmark,
have applied a drastic remedy. By a Declara-
tion of Neutrality published early in May, but
dated February 13 of the present year, they
have closed their ports to the public vessels of
both belligerents, with the exception of hospital
ships. Further, they have notified all whom it
may concern that submarine mines have been
laid down along their coasts, in view of a
possible extension of hostilities to the adjacent
seas. No doubt a state does possess a right to
exclude belligerent vessels from its harbours and
roadsteads, if it can show good cause for such
a denial of the usual hospitalities. In the
case before us the weakness of the states con-
cerned is sufficient reason for their action. It
would be far easier to admit a Russian squadron
into a Danish or Norwegian port than to
control them when there, or to get them out
if they were determined to stay.
In all
probability the concurrence of stronger neutrals,
and possibly even of the belligerents them-
134
CH.
WAR AND NEUTRALITY
selves, was obtained before the notification was
issued.
But what is possible for the small Scandi-
navian realms is not possible for great and
powerful neutral states, which cannot abdicate
their position in the world by issuing a declara-
tion which would amount to a confession of
inability to keep order in their own waters.
Are they therefore left without resources for
the improvement of existing rules on the subject
of supplies of coal to belligerents? By no
means. The Egyptian Neutrality Order of
February 12, 1904, points out a way; and
we shall not be going far astray if we ascribe
its adoption to British influence. The Order
provides that before the commander of a
belligerent ship-of-war is allowed to obtain coal
in any port of Egypt, he must obtain a formal
authorisation from the authorities of the port,
specifying the amount he may take. Such
authorisation is to be granted only after the
receipt from the commander of a written state-
ment, setting forth the name of the port to
which he is to go next, and the amount of coal
VI
135
USE OF NEUTRAL WATERS
he has at the moment in his bunkers. He will
then be permitted to take what is sufficient for
the purpose declared to be in view, and no more.
Here, then, we have the germ of a new and
better rule; but it requires extension before it
can be pronounced entirely satisfactory. Short
as experience under it has been, the possibility
of evasion has been abundantly demonstrated.
The action of the Dmitri Donskoi (see p. 115)
in using the coal obtained to carry her to Cadiz
for the quite different purpose of cruising off
the Mediterranean entrance to the Suez Canal,
and overhauling neutral merchantmen who were
voyaging to and from it, shows that some
further security is required. Moreover, what
the Russian cruiser did in February does not
stand alone. It can be paralleled from the
practice of the Alabama. Throughout her career
she never entered a Confederate harbour, but
continued to cruise against the commerce of the
United States all over the world by the aid of
supplies of coal obtained in British and other
neutral ports.
In her case, however, no written
declarations were required, and consequently
136
CH.
WAR AND NEUTRALITY
there were none to be ignored. The danger of
misuse of coal obtained from neutrals is clear.
It is granted for purposes of navigation, and it
can easily be used for purposes of fighting or
chasing. Such declarations as the Egyptian
authorities require can be violated by unscrupulous
officers, even when they contain a solemn promise
to steam for the port indicated. There should
be added to the rule demanding them a clause to
the effect that any use of the coal obtained by
means of them for cruising purposes, or for
steaming to a different destination, unless in the
event of chase by an enemy, shall disqualify
both the vessel and her commander from receiv-
ing further supplies in any port of the same
neutral during the same war. This would put
an end to evasions; and though it might not
entirely prevent such a scandal as the voyage of
a Russian fleet from the Baltic to the Northern
Pacific by using neutral harbours one after
another as coaling-stations, it would render
the process more cumbersome, and make the
problem of the final arrival of the squadron
in fighting trim so much more difficult of solu-
VI
137
USE OF NEUTRAL WATERS
tion that in all probability it would never be
attempted.
It must not be supposed that the present war
has seen no questions connected with the use
of neutral waters except those raised by the
cruise of Admiral Wirenius and his squadron.
Unfortunately for herself, the Mandjur, a Russian
gunboat, was lying in the neutral harbour of
Shanghai at the outbreak of hostilities. The
Japanese naval authorities promptly sent the
cruiser Akitsushima to watch the mouth of the
Yang-tse off Woosung. Stationed there, she
blocked the only way whereby the Mandjur
could reach the open sea and the Port Arthur
fleet. The position was certainly a trying one
for the Russian commander. China, the terri-
torial power, exercised its undoubted right as a
neutral and ordered him to leave within twenty-
four hours. Full in his path lay an enemy of
greatly superior force. If he departed, he went
to certain capture or destruction. If he re-
mained, he broke international law by defying
a neutral government. He chose the latter
alternative. The Chinese executive was too
138
CH.
WAR AND NEUTRALITY
weak to risk the consequences of determined
action. They might have detained the gunboat
for the rest of the war, or fired upon her if she
persistently declined to move, or escorted her
out to sea, leaving her to take the chances of
battle or escape when well outside territorial
waters. But they did none of these things.
Instead, they parleyed. Japan, on the other
hand, might have given notice to China that she
would no longer respect the territorial waters of
a state which seemed powerless to defend its
neutrality, or she might have claimed reparation
for the indulgence shown to her opponent.
she was extremely anxious not to drive matters
to extremities, and to stand well with China and
the rest of the world. So she too parleyed;
and as the result of a sort of three-sided negotia-
tion between herself and China on the one hand,
and Russia and China on the other, the gunboat
was dismantled so thoroughly as to make her
permanently useless, and the Akitsushima was
then withdrawn from her long watch at the
mouth of the Yang-tse. This happened at the
end of March. Mild measures proved in the
But
VI
USE OF NEUTRAL WATERS 139
end effective. A difficult situation was terminated
without bloodshed and without international
complications. The Japanese Government reaped
at last the reward of its mingled forbearance and
firmness, in the loss of a ship to the enemy and
the freeing of its own cruiser for more exciting
and important enterprises.
CHAPTER VII
CONTRABAND OF WAR. THE RIGHTS OF
BELLIGERENTS AND NEUTRALS WITH REGARD TO IT
THE latter part of the previous chapter seems to
lead up naturally to a consideration of the great
subject of contraband of war. We saw in it
that munitions of war were goods of so special
a character that neutral states were bound by
International Law not to allow them to be taken
on board belligerent ships lying in their ports.
We also saw that coals were regarded in many
quarters as possessed of the same character to
a lesser extent. They need not be prohibited
altogether, but severe restrictions are laid upon
the supply of them. The question naturally
follows, Are there not other articles of commerce
like those that have been mentioned in their
140
CH. VII
141
CONTRABAND OF WAR
fitness for warlike purposes? And when this
has been answered in the affirmative, the further
inquiry suggests itself, Is the trade in all these
articles as free and open as the trade in things
whose primary and ordinary use is of a peaceful
nature? It is not; and the attempt to explain
in what way, and to how great an extent, it is
restricted, lands us in the midst of the law of
contraband. We can discuss the main principles
thereof without much use of legal phraseology.
Stripped of technicalities, they can be understood
easily by all who are capable of forming an
intelligent opinion on international affairs; while
without some knowledge of them no one ought
to presume to give an opinion at all on questions
which public men are now discussing everywhere,
such as those connected with our supplies of food
from abroad.
We have first to bear in mind that the
contraband character attaches to goods on
account of their usefulness for warlike purposes.
No one doubts that a case of rifles or a battery
of artillery found on their way to the custody
of a belligerent power are destined for its army
142
CH.
WAR AND NEUTRALITY
or navy. They may be intended to shoot big
game or decorate public parks, but the possibility
is too remote to be worth entertaining. They
are always contraband of war. On the other
hand, no one doubts that a cargo of pianos or
children's toys are destined for peaceful purposes.
They may possibly be found useful for building
a barricade or kindling a bivouac fire, but here
again the possibility is too remote to be worth
entertaining. They are never contraband.
Other goods, however, do not bear their character
on their face. One may look at a stoutly-built
horse till it drops, without discovering whether
it is intended to draw a dray or an artillery
waggon. One may examine a telegraph wire
till sight fails, without being able to tell whether
it is assigned to military or civil use. It is with
regard to goods of this kind, articles useful for
warlike and peaceful purposes indifferently, that
difficulties arise. The general trend of Con-
tinental opinion is against making these contra-
band in any case. But Great Britain and the
United States hold that the use to which they
will be put determines their character, and that
VII
143
CONTRABAND OF WAR
this use is to be inferred from the predominant
characteristic of their port of destination, as
commercial or naval, and other surrounding
circumstances. Articles of this kind we call
conditional or occasional contraband. Articles
useful primarily for warlike purposes we speak
of as absolutely contraband.
But something more than the character of
the goods has to be considered before it is
possible to decide whether or no they are contra-
band of war. We have to inquire into their
destination. There is a considerable trade in
arms and ammunition at all times. A cargo of
them found at sea is not necessarily on its way
to the enemy.
The same thing is true of
the materials and machinery for making them,
which are as noxious as the completed articles.
Before goods can be treated as contraband it
must be shown that they are travelling to an
enemy destination. It need not be a port of
the enemy's country, though ninety-nine times
out of a hundred it is. An enemy's ship-of-war
or fleet on the high seas will do as well. Indeed
it has been decided that a hostile squadron lying
144
CH.
WAR AND NEUTRALITY
in a neutral port is an enemy destination, and
the decision is generally regarded as good in law.
A camp, garrison, or army of the enemy also
fulfils the necessary conditions. We omit, as
being too technical and complicated for our
present purpose, questions connected with the
Doctrine of Continuous Voyages, and sum up
what has gone before in the statement that, in
order to make goods into contraband of war, a
hostile character and a hostile destination must
coexist.
We are now in a position to define the nature
of the offence we are discussing. It is not what
it is so often and so wrongly called, selling
contraband. Anybody may do that with
absolute impunity so far as International Law
is concerned. It is carrying contraband. This
is forbidden to neutral merchants, ship-owners,
and ship-masters, on penalty of the confiscation
of the contraband goods and all other portions.
of the cargo which belong to the owners of the
contraband. The ship also may be confiscated
by a Prize Court, if it and the noxious goods are
subject to the same ownership, or if there has
VII
145
CONTRABAND OF WAR
been any attempt to evade search or deceive the
captors. A neutral government which shipped
munitions of war in its public vessels to one
of the belligerents would be guilty of a most
gross breach of neutrality. But it could not be
dealt with as a private individual. The goods, if
captured, would undoubtedly be confiscated; and
then a diplomatic question, which might possibly
end in war, would arise between it and the
belligerent who suffered by its misconduct. The
ordinary law of contraband deals with neutral
individuals, not with neutral governments.
But when a neutral individual engages in
the trade of carrying contraband, the proper
authority to act against him is the belligerent
who is injured by his venture, not his own
government. States at war are very apt to com-
plain of a contraband trade which reaches any
considerable dimensions, and frequently call
upon neutral authorities to restrain their subjects
from carrying munitions of war to the enemy.
But such requests are not granted. Neutral
governments point out that the law of nations
does not hold them responsible for the ordinary
L
146 WAR AND NEUTRALITY
CH.
trading transactions of their people, though they
are bound to prevent the enlistment of men and
the departure of warlike expeditions which have
been fitted out within their territory or terri-
torial waters. Belligerents must be their own
policemen. Each has the right to capture neutral
vessels engaged in carrying contraband of war
to its enemy. It may seize them on the high
seas, in its own waters, or in those of its enemy;
and when the seizure has taken place, the con-
traband goods are always confiscated, and the
ships which carry them often share their fate.
The proper agency for effecting the confiscation
is a Prize Court, which is a court of the captor's
country, sitting in its territory, and deciding
according to International Law. We need not
discuss the exceptional cases when prizes are
not brought before a court for adjudication. It
is sufficient to say here that a neutral has a right
to a legal judgment when his property is seized
at sea by a belligerent, and when such judgment
has been given it is conclusive as to the vessels
and goods concerned.
A neutral subject engages
in contraband trade at his own risk.
His
VII
147
CONTRABAND OF WAR
government will not protect him, unless it deems
the seizure unlawful on account of the place
where it took place, or the circumstances in
which it was made, or the innocence of the goods.
seized. This last reason is more common than
any other.
The natural tendency of belligerents
is to regard doubtful things as contraband and
treat them accordingly; while neutral states are
drawn in the opposite direction, and resolve the
doubt in favour of the innocence of the disputed
articles. In the case of serious disagreement,
the neutral government protests first against the
inclusion of the goods in question in the belli-
gerent's list of contraband. Then, if they are not
withdrawn from the list, it declares that it will
not recognise the legality of the condemnation
of such goods when owned or carried by its
subjects. Finally, if, in spite of its representa-
tions, condemnation takes place, it claims damages
from the belligerent government for unlawful
seizure and confiscation. Probably a settle-
ment of some sort is arrived at sooner or
later. Failing anything of the kind, retali-
atory measures can be adopted. Only in the
148
CH.
WAR AND NEUTRALITY
very gravest and rarest cases would war be
justifiable.
We are now in a position to examine the
differences between the two belligerents in their
treatment of the present subject. According to
the Prize Law of Japan, as set forth in Appendix
VII. of Professor Takahashi's book, International
Law during the Chino-Japanese War, contraband
goods are divided into two classes. The principle
of division is maintained in the notification
published by the Japanese Government on
February 10, 1904, though the goods placed in
each class differ somewhat from the list pub-
lished ten years ago, and the words which
express the distinction between the two classes.
are also varied. The first class are contraband
<<
when passing through or destined for the
enemy's army, navy, or territory," the second
only when "destined for the enemy's army or
navy, or in such cases where, being goods
arriving at the enemy's territory, there is reason
to believe they are intended for the use of the
enemy's army or navy." That is to say, a dis-
tinction is drawn between goods in their own
VII
149
CONTRABAND OF WAR
nature so fitted for warlike purposes that it is
morally certain they are meant for warlike use,
and goods the use of which is uncertain, and may
vary according to circumstances. The first are
to be prevented from reaching the enemy at
all, the second only where it is clear they are
destined for the use of his armed forces. In
other words, the Japanese have adopted the
British doctrine of contraband, though they have
not given it the wide scope to be found in our
Admiralty Manual and the Prize Court decisions.
on which that document is based. There can
be little doubt that, though our main principles
are correct, we have sometimes applied them
with undue severity. The Admiralty list of
goods absolutely contraband is much too long,
and includes articles, such as spars and anchors,
which certainly ought to appear among goods
conditionally contraband. Our brave and thought-
ful allies have improved on their model in this
matter, as in so many others. Their list of contra-
band goods of the first class-what we should
call goods absolutely contraband-is short. It
contains only "military weapons, ammunition
150 WAR AND NEUTRALITY
CH.
explosives, and materials (including, lead, salt-
petre, sulphur, etc.) and machinery for making
them, uniforms naval and military, military
accoutrements, armour-plated machinery, and
materials for the construction or equipment of
ships of war." A clause at the end adds: “ All
other goods which, though not coming under this
list, are intended solely for use in war." It is
true that these words are general, but no
exception can be taken to their purport. Goods
of the second class-our conditional contraband
are set forth with similar brevity. They are
enumerated as " provisions, drinks, horses, harness,
fodder, vehicles, coal, timber, coins, gold and
silver bullion, and materials for the construction.
of telegraphs, telephones, and railways." There
is nothing here that can be deemed excessive.
From the point of view of neutrals, the lists are
satisfactory; and our experience of the war of ten
years ago gives no ground for supposing that Japan
will administer her rules in an oppressive manner.
It is impossible to speak so confidently with
regard to Russia. She makes no distinction
between goods absolutely contraband and goods
VII
151
CONTRABAND OF WAR
conditionally contraband. With her all goods
that are contraband at all belong to the former
category. Her Government stated this un-
reservedly on the 28th of February of the
present year. Such a declaration might be in
no way offensive to neutrals, if the list of
contraband goods were short, and contained only
articles of use primarily and ordinarily for war-
like purposes.
But Russia's list is not short,
and it contains goods which are technically
classed as articles ancipitis usus, that is to say,
useful indifferently for warlike and peaceful
purposes. In order to find out exactly what the
Government of St. Petersburg considers to be
contraband of war we have to study Appendix II.
to Section 14 of the Instructions approved by the
Admiralty Council, September 20, 1900, and
Article VI. of the Rules which the Imperial Govern-
ment will enforce during the war with Japan,
which are dated February 28, 1904. Roughly
speaking, the list of 1900, which we are told
was drawn up as long ago as 1877, is reproduced,
with some alterations and many important addi-
tions, in the list of 1904, which runs as follows:-
152
CH.
WAR AND NEUTRALITY
1. Small arms of every kind, and guns, mounted
or in sections, as well as armour plates.
2. Ammunition for fire-arms, such as projectiles,
shell-fuses, bullets, priming, cartridges, cartridge-cases,
powder, saltpetre, sulphur.
3. Explosives and materials for causing explosions,
such as torpedoes, dynamite, pyroxyline, various
explosive substances, wire conductors, and everything
used to explode mines and torpedoes.
4. Artillery, engineering, and camp equipment,
such as gun carriages, ammunition waggons, boxes
or packages of cartridges, field kitchens and forges,
instrument waggons, pontoons, bridge trestles, barbed
wire, harness, etc.
5. Articles of military equipment and clothing,
such as bandoliers, cartridge-boxes, knapsacks, straps,
cuirasses, entrenching tools, drums, pots and pans,
saddles, harness, completed parts of military uniforms,
tents, etc.
6. Vessels bound for an enemy's port, even if
under a neutral commercial flag, if it is apparent
from their construction, interior fittings, and other
indications that they have been built for warlike
purposes, and are proceeding to an enemy's port in
order to be sold or handed over to the enemy.
7. Boilers and every kind of naval machinery,
mounted or unmounted.
VII
153
CONTRABAND OF WAR
8. Every kind of fuel, such as coal, naphtha,
alcohol, and other similar materials.
9. Articles and material for the installation of tele-
graphs, telephones, or for the construction of railroads.
10. Generally, everything intended for warfare by
sea or land, as well as rice, provisions, and horses,
beasts of burden and others which may be used for
a warlike purpose, if they are transported on the
account of, or are destined for, the enemy.
We must add to the above raw cotton, which
was declared to be contraband by Imperial Order
on April 21; and we have to remember that to
every article in the list, whatever its character,
is applied the rules which we apply to our "goods
absolutely contraband.” It will be condemned
if found in a neutral ship voyaging to an enemy
destination, no matter whether such destination
be a commercial or a naval port; no matter
whether it is destined for civilian or military
use. We English discriminate. According to
our practice, when many classes of goods capable
in their own nature of a double use are found
under a neutral flag on their way to an enemy
destination, they are confiscated if the port to
which they are bound is one where war - fleets
154
CH.
WAR AND NEUTRALITY
are fitted out, or equipments for armies received,
and released if it is devoted to peaceful commerce
and the supply of the civilian population. And,
further, even when we seize and confiscate, we
pay the owners a fair price for the conditional
contraband so taken, and also for goods absolutely
contraband which are raw material and the pro-
duce of the country in whose merchant ship they
are found. It is only when the goods are not
raw material and not the produce of the country
exporting them, and yet are absolutely contra-
band, that is, useful chiefly and almost exclu-
sively for warlike purposes, that we appropriate
without compensation. Yet our practice has
been deemed harsh and indefensible. Continental
jurists and statesmen have condemned it in no
measured terms. The Institut de Droit Inter-
national discussed the question at its meeting
at Venice in 1896, and declared against our
doctrine of conditional contraband, but added:
"Nevertheless, the belligerent has at his option,
and on condition of paying an equitable in-
demnity, a right of sequestration or pre-emption,
as to articles which, on their way to a port of
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155
CONTRABAND OF WAR
the enemy, may serve equally for use in war or
in peace.
This, in effect, not only concedes our
view, but even goes dangerously far beyond it.
We do not seize at all unless we deem the goods
destined for warlike use. The wording of the
resolution of the Institut would allow seizure and
pre-emption whenever the articles ancipitis usus
were on their way to a port of the enemy, without
regard to the purposes they were likely to fulfil.
Russia has, however, contrived in her recent
regulations to unite all severities and throw off
all restraints. Our Doctrine of Conditional Con-
traband vanishes, but only in order that the class
of goods it covered may be placed in the list
of those absolutely contraband. The Institut's
recommendation of sequestration or pre-emption
is ignored, and all goods in the list, harmful and
harmless alike, are to be subject to seizure without
compensation.
It may be argued that the Czar's ministers
will in all probability have little opportunity of
putting their rules into action. No doubt ap-
pearances favour this view; but, as the late Lord
Beaconsfield once said, "War changes like the
156
CH. VII
WAR AND NEUTRALITY
moon"; and it is well to be prepared for any
eventuality. Belligerents have a right to make
their own lists of contraband; but neutrals have
a right to object to them or any part of them.
As humble citizens of a great nation interested
more than any other in the freedom of sea-borne
commerce, we may venture to suggest that if our
Government has not already taken diplomatic.
action, it should at once proceed to do so.
Remonstrances need not be unfriendly, even
though they be earnest; and that there is need
for plain speaking this chapter and the following
will show. The treatment of all goods deemed
contraband as equally noxious is a blow at
neutral trade which we did not venture to strike,
even in the height of our conflict with Napoleon,
when we certainly did many unjustifiable things,
and are regarded by most Continental authorities
as having played the part of tyrant of the seas.
It is reasonable to suppose that the enormous
trading interests of modern times are powerful
enough to secure for sea-borne commerce better
treatment than it received in the days of Lord
Nelson and Sir William Scott.
CHAPTER VIII
ARE COALS, PROVISIONS, AND COTTON CONTRABAND
OF WAR? THE DUTIES OF NEUTRAL GOVERN-
MENTS WITH REGARD TO THE TRADE IN SHIPS
WE are now in a position to consider certain
specific questions, which could not be treated in
a satisfactory manner without some preliminary
knowledge of the law of contraband and the
attitude of both the present belligerents with
regard to it. We will take first the treatment
to be accorded to neutral cargoes of coal, found
by cruisers of one belligerent on their way to
the ports or ships of the other. Russia's record
with regard to this important matter is remark-
able for inconsistency. The West African
Conference of 1884-1885 decreed freedom of
commerce and navigation for the Congo River,
157
158
CH.
WAR AND NEUTRALITY
even when the riparian powers were at war,
excepting, however, contraband articles from the
operation of this salutary rule. In December
1884 the Russian representative at the Con-
ference astonished his colleagues by declaring
that his Imperial Master would not regard coal
as one of the articles so excepted. Russia thus
ranged herself with France in maintaining the
extreme view that coal could under no circum-
stances be regarded as contraband of war. Great
Britain and the United States hold that it is
contraband when destined for naval or military
use, but innocent when destined for commerce,
manufacture, or domestic consumption. Japan
has adopted this doctrine by placing coal in the
second class of her contraband goods, which
means that she will subject it to capture only
when it is caught on the way to the war-vessels
of the enemy, or a hostile port of naval or
military equipment. Germany takes either this
position, or the still more marked one that coal
on the way to the enemy is contraband, irre-
spective of the nature of the port where it is to
be delivered.
Till recently, then, we had France
VIII
159
ARE COALS CONTRABAND?
and Russia in agreement in holding coal to be in
no case contraband, and Great Britain, at the
head of a group of important maritime powers,
maintaining that it belonged to the class of
conditional contraband. But on February 28,
1904, twenty days after the outbreak of the
present war, Russia quietly boxed the compass,
and proceeded to substitute one extreme view
for the other. The Eighth Article of her Rules
which the Imperial Government will enforce during
the war with Japan included in her list of
contraband "every kind of fuel, such as coal,
naphtha, alchohol, and other similar materials."
We have to remember that all the articles
enumerated in Russia's rules are "unconditionally
contraband." Bearing this in mind, we see that
a cargo of soft coal proceeding from Newcastle to
Yokohama for the use of the civilian population
of Tokio is subject to capture and confiscation
at her hands, as much as a cargo of smokeless
coal proceeding from Cardiff to Nagasaki for the
use of Admiral Togo's fleet. Have we any reason
to object? The answer to this question requires
to be thought out very carefully. What follows
160
CH.
WAR AND NEUTRALITY
is offered as a contribution towards the thorough
discussion which is necessary before a final
decision is reached.
We saw in the last chapter that the total
prohibition of supplies of coal to belligerent war-
ships in neutral ports was a thing to be aimed
at, both on account of its intrinsic justice and
also because such a rule would redound to the
interests of our own country, if it were engaged
in a great naval struggle. But if our Govern-
ment took this view, and endeavoured to induce
other neutrals to join with us in forbidding such
supplies, it might be met by the objection that
we do not look upon coal as contraband of war
always and in all places, but rank it among
those articles which we deem contraband or not
according to circumstances. Lord Lansdowne
voiced the usual British doctrine with admirable
clearness, when he wrote in February last to a
Cardiff firm, "Coal is an article ancipitis usus,
not per se contraband of war; but, if destined for
warlike as opposed to industrial use, it may
become contraband." Can we hold this position,
and yet press for the placing of coal on the same
VIII
161
ARE COALS CONTRABAND?
footing as ammunition, so far as belligerent
men-of-war visiting our territorial waters are
concerned? No doubt we should be told that if
such ships are no longer to be allowed to buy
coal in our ports, we can hardly claim for our
merchantmen the right to carry it to their ports
unmolested, as long as they are not ports of
naval equipment. And yet this argument does
not seem conclusive. An article of commerce
may be so essential for hostile purposes that no
warship ought to be supplied with it in neutral
waters, and yet so essential for the ordinary pur-
poses of civil life that it ought not to be prevented
from reaching the peaceful inhabitants of
belligerent countries. The two propositions are
not inconsistent. If both are upheld in reference
to coal, we can work for the abolition of the present
liberty to supply it to combatant vessels when
visiting neutral ports and harbours, and at the
same time maintain that when it is sent abroad
in the way of ordinary trade, belligerents must
treat it as conditionally and not absolutely con-
traband. But at present, as we have seen (see
pp. 129-132), there can be no question of complete
M
162
CH.
WAR AND NEUTRALITY
prohibition. All we can hope to gain is a rule
which will deny coal in future to war-vessels
when they have broken the conditions on which
neutrals allowed them to take a supply. Such
an advance in strictness would in no way conflict
with our existing doctrine that coal is properly
placed among goods conditionally contraband.
The foundations of this doctrine are remark-
ably strong. Undoubtedly coal is an article of
the first necessity in warfare. Therefore it is
absurd to contend, as Russia did till lately, that
it can never be contraband. But it is equally
necessary for peaceful purposes. Civilised man-
kind cannot do without clothing, prefers its food
cooked, and needs warmth in its houses. For
all these purposes fuel is essential, and over very
large areas coal is the only fuel available.
Therefore it is absurd to contend, as Russia does.
now, that coal is always contraband. We are
forced to the conclusion that sometimes it is
contraband and sometimes it is not, the difference
turning upon the difference in the purposes for
which it is destined. It is quite true that
belligerent captors cannot determine these with
VIII
163
IS FOOD CONTRABAND?
absolute accuracy. The cargo bound for a
commercial port may go on by rail to a port of
naval equipment. The hard coal, so suitable for
the furnaces of warships, may be really intended
to supply manufacturing and domestic needs.
But, after all, the rough-and-ready tests, which
are the only ones possible in war, will yield
correct results nine times out of ten, and the
tenth must be accepted with resignation as one
of the untoward incidents of a desperate game.
All things being considered, we cannot do better
than take our stand upon our previous position,
so well defined by our Secretary for Foreign
Affairs in February. We should let Russia
know, courteously but firmly, that we do not
intend to submit to the condemnation of any of
our coal cargoes, unless they are clearly destined
for the warlike purposes of Japan. If others are
confiscated, we should at once claim compensation.
for our injured merchants.
We now come to the question of provisions,
on which a good deal of light will be thrown by
a short historical review. At the outbreak of
the war between Great Britain and France in
164
CH.
WAR AND NEUTRALITY
This
1793, both parties first adopted, and then under
neutral pressure abandoned, the practice of
capturing as contraband neutral cargoes of
provisions on their way to open commercial ports
of the enemy.
Out of this attempt, and its
failure, grew the doctrine that food was not
contraband unless it was destined for a besieged
place or an armed force of the enemy.
view met with general acceptance until 1885,
when France, hitherto one of its most conspicuous
adherents, gave notice to neutrals that in the
course of her then existing hostile operations
against China she would confiscate, as contraband,
rice conveyed in neutral vessels to any Chinese
port north of Canton. Our Government im-
mediately demurred, and restated the old view.
Hostilities terminated before a case of seizure
arose, and therefore the controversy never came
to a decision. But two points should be noticed
with regard to it. Prince Bismarck stated, in
reply to a memorial of complaint from a number
of Hamburg merchants, that it belonged to
belligerent powers to say what they intended to
regard as contraband. And, again, the action of
VILLI
165
IS FOOD CONTRABAND?
France was defended at the time, and has been
defended since, on the ground that the rice in
question was tribute paid to the Chinese Govern-
ment, and used by them in lieu of money for the
pay of their soldiers. This argument has the
merit of ingenuity; but it is capable of such
enormous extension that few commodities would
be safe from confiscation under it if they could
be looked upon as national property. The sale
of tobacco, for instance, is in many countries a
state monopoly. Would it not be easy to say
that tobacco-cargoes bound for the ports of these
states must be regarded as contraband, because
their value would by and by find its way into
the government treasury? All articles of
commerce can be expressed in terms of money,
and since state treasure is contraband, the goods
which represent it could be regarded as contra-
band also. A list of contraband goods compiled
on this principle might easily grow so great as to
cripple neutral trade in articles of the most
innocent character; but whether the argument
be good or bad, the fact that it has been put
forward, and the further fact that Prince Bismarck
166
C'II.
WAR AND NEUTRALITY
pointedly refrained from scouting the French
claim, should warn us that we must look care-
fully to our own position, since it is a matter of
the utmost importance for us to keep our imports
of food free from molestation at all times.
The action of Russia in the present war
emphasises the warning. Hitherto she has been
on the side of the received rule. Food-stuffs
were absent from her list of contraband of 1900.
But the additions of February 28, 1904, contain
rice and provisions. We can only hope that our
Government have followed the example of their
predecessors in 1885, and entered a strong protest.
In the action of Japan there is nothing of which
we can complain. With her food is contraband
only when destined for the use of the enemy's
armed force, and, I presume her courts would
add, for a besieged place. When American
steamers laden with canned meats and other
provisions put into Japanese ports on their way
to Port Arthur and Vladivostock at the beginning
of the war, their cargoes were, of course, seized.
There was no breach of International Law in
such acts. The only comment it is possible to
VIII
167
IS FOOD CONTRABAND?
make upon them is that on these occasions some
of our American cousins showed a strange lack
of their usual sagacity in matters of commerce.
Our own policy is perfectly clear. Unless we
alter our habits fundamentally, or diminish our
numbers by more than half, we cannot live upon
the produce of our own soil. We might, indeed,
adopt the suggestion of Professor W. J. Malden,
and plant four million acres with potatoes; but,
like other counsels of perfection, this stands a
better chance of admiration than adoption.
Practically, we are dependent upon imports from
abroad for about four-fifths of the wheat and
flour we consume. Of this enormous quantity
no very large proportion comes from our colonies.
and dependencies. In the eight years ending
with 1903 it varied from 8 to 24 per cent. In
these facts we find at once our call to action and
our hope of success in action. The value of our
food trade to other nations secures that we shall
receive powerful assistance in our efforts to keep
it open.
It is a matter of life and death for us to
prevent any change in International Law which
shall make the food of the civilian population
168 WAR AND NEUTRALITY
CH.
undoubtedly contraband, and, if arguments and
protests will not do it, force must. Should
the use of force be necessary, we are not likely
to stand alone. Our trade in food is so lucrative
to the great wheat-producing and meat-producing
countries that they will strain every nerve rather
than lose it. The satisfaction of our appetite
for food is also the satisfaction of their desire for
gain. Our kinsmen of the United States are with
us heart and soul in the doctrine that food-stuffs
are not contraband unless destined for warlike
use, and they are prepared to enforce it at all
risks. It is highly probable that if, in time of
war with France or Germany, American corn-
cargoes bound for Liverpool were captured on the
high seas, the Stars and Stripes would soon wave
side by side with the Union Jack over the fleets
which swept the commerce-destroyers from the
Other countries know this as well as we,
and in that knowledge, and the efficiency of our
navy, lie our chief securities.
ocean.
There is no need to dwell for long upon
the recent addition by Russia of cotton to her
list of contraband goods. We are told that her
VIII IS COTTON CONTRABAND?
169
declaration to that effect refers "only to raw
cotton suitable for the manufacture of explosives,
and not to cotton yarns or tissues." It is difficult
to see how the raw cotton destined for the
manufacture of explosives is to be distinguished
from the raw cotton destined for the manu-
facture of shirtings or pocket-handkerchiefs. We
in England certainly have no good ground for
protesting against the capture of what is intended
to be made into a most terrible instrument of
warfare. In the Admiralty Manual of Naval
Prize Law the materials for ammunition are
ranked along with ammunition in the list of
goods absolutely contraband. If Russia means.
to seize and confiscate no cotton except that which
she can prove to be on its way to a Japanese
military or naval workshop, there to be manu-
factured into a powerful explosive, neutrals have
no cause of complaint against her. But in that
case her recent declaration seems superfluous;
for the "Rules" issued by the Imperial Govern-
ment on February 28 enumerated " explosives
and materials for causing explosions" among
the articles then declared to be contraband.
170
CH.
WAR AND NEUTRALITY
The term
Moreover, gun-cotton itself was mentioned in
them under its scientific name of pyroxylin. Thus
the completed article and the substances from
which it is made were already penalised, when
the recent declaration against raw cotton was
published on the 6th of May. It may be that
nothing more was intended than to remove every
possibility of doubt by making a perfectly explicit
statement. But, if that were so, the object in
view was not attained, for the explanation itself
required to be explained immediately.
"raw cotton" is quite general. As it stands it
includes all the lint which comes from the bolls
of the cotton plant. A diplomatic gloss declares
that only such of it as is suitable for the manu-
facture of explosives is intended. If we add
that it must be destined to be so manufactured,
as well as suitable for the purpose, we have
reduced the declaration to proper limits. The
action of Russian cruisers and Russian courts
should be carefully watched, to make sure they
do not step beyond its terms thus interpreted.
As long as these are observed, no illegal hardship
will be inflicted on neutral trade. But the
VIII
171
IS COTTON CONTRABAND?
moment they are overstepped a branch of innocent
commerce which is specially important in the
Far East is subjected to a most unwarrantable
interference. The conciliatory action of the Czar
in releasing the colliers captured in the Red Sea
(see p. 115) gives reason to hope that neutral
susceptibilities will be considered in other
matters.
The attempt to quote the action of the United
States Government in the great American Civil
War, in order to justify Russian action, supposing
it to have been directed against cotton in general,
is singularly unfortunate. In the summer of
1861 the Confederacy took full advantage of the
fact that practically the whole of the world's
supply of cotton was grown in the Southern
States. The sale of it was put under severe
restrictions so as to secure the greater part of the
crop for the government. It was then used to
supply the means for the purchase abroad of ships,
arms, and ammunition. Agents of the authorities
at Richmond shipped thousands of bales to Liver-
pool, where it was sold at a high price, and the
proceeds drawn against to pay for warlike stores.
172
CH.
WAR AND NEUTRALITY
In these circumstances the Northern generals did
not treat cotton as private property, exempt by
the laws of war from seizure and destruction.
Instead, they burned all they could find in their
invasions of Southern territory, and there can be
no doubt they were justified in regarding it as a
war-supply of the enemy, and therefore subject
to whatever severities they thought fit to employ.
Their government went further, and declared
cotton to be contraband of war.
There are grave
doubts of the legality of this extreme step; but
we may point out that, even assuming it to have
been perfectly correct, it affords no justification
for proclaiming all raw cotton to be contraband
now, in the present state of the war in the Far
East. If the soil of Japan grew a large part of
the raw materials for the cotton looms of Europe,
if the Government of Japan had possessed itself
of most of the crop, and if the armaments and
warlike stores of Japan were purchased by the
proceeds of the sale of the bales so held, then
indeed the two cases would be sufficiently
similar for the first to be a valuable precedent.
But, as things are, there is not the slightest
VIII
173
IS COTTON CONTRABAND?
resemblance between them. Japan grows no
cotton. She imports from the United States
what she requires for her manufactures. Even
if the conditions were reversed, and Russia
followed the example of the United States by
declaring all cotton to be contraband, strong
arguments would be forthcoming to show that
the declaration could not be justified by Inter-
national Law. Cotton belonging to the Japanese
Government, and found voyaging in Japanese ships,
would, of course, be subject to capture as enemy
property. But if it were found in neutral ships,
could it be captured as contraband ? In the first
place, there would be no belligerent destination,
for by the suppositions on which we are arguing,
the cargoes would be on their way to some neutral
manufacturing country. In the second place,
cotton is harmless in itself and could only be
seized as representing specie. Can it be main-
tained that the law of nations recognises these
substitutions of one thing for another in order to
turn innocent into noxious goods? We have
already seen to what lengths the process may be
carried (see p. 165). At one time the argument
174
CH.
WAR AND NEUTRALITY
runs-Rice equals money; money, when the
property of the state, is contraband; therefore
rice, when the property of the state, is contraband.
At another time it is:-Cotton equals money;
money, when the property of the state, is
contraband; therefore cotton, when the property
of the state, is contraband. And so we may go
on and on, jauntily resolving into contraband one
article after another that has in itself little or no
connection with warlike uses, and at each step
inflicting some fresh disability on neutral trade.
Equations are very useful in mathematics. In
International Law they look like unmitigated
nuisances. It is submitted that the claim of
the United States to regard cotton as contraband
in 1861 was wanting in legal justification; and
that any similar claim which Russia may make
in the present war would be still more unlawful.
In all probability no such claim has been made,
or will be made. The very different statement
that raw cotton "suitable for the manufacture of
explosives" will be deemed contraband of war
may be allowed to pass with the reservations
already set forth.
VIII
175
THE DUTIES OF NEUTRALS
For weeks past it has been almost impossible
to open a newspaper without coming upon a para-
graph to the effect that some government or some
private individual had sold or was about to sell
some vessel or vessels to the Russian Government,
or to some one who was more than suspected of
being its agent. Vagueness was the distinguishing
mark of most of these paragraphs. The few that
were definite were generally contradicted within
a week of their first appearance. But of late the
reports have been more precise and better authenti-
cated. There can be little doubt that large
purchases have been effected and important
contracts entered into. The immediate object
in view seems to have been the strengthening of
the Baltic fleet for its great venture of a voyage
to the Far East, with a battle in prospect as it
nears its destination. Whether it starts or not,
the problems raised by the methods employed to
add to its numbers, and the demands it must make
for coal in neutral ports, are intensely interesting.
The latter we have already dealt with (see pp.
126-128). The former we will now consider.
The matter is complex, and cannot be discussed
176
CH.
WAR AND NEUTRALITY
in a satisfactory way unless we break up the
main problem into parts and consider each separ-
ately. We must begin by making a distinction
between what the individual may do and what
the state may do in the way of selling to foreign
governments, and then we must draw a further
distinction between what the state is bound as
an honest neutral to prevent and what it may
allow its subjects to do at their own risk. When
we have settled these two points we shall be in
a position to answer some of the questions raised
by the attempt of one, if not both, of the present
belligerents to obtain warships by purchase during
the continuance of hostilities.
Among the ordinary functions of the state
trading is not included, whereas it is reckoned
among the ordinary functions of the private
person. A neutral government which enters.
into a bargain with a state at war for the
transfer to it of military or naval stores, or ships
suitable for military or naval purposes, is de-
liberately going out of its way to provide its
neighbour with instruments of warfare, and by
so doing violates its neutrality in an open and
VIII THE DUTIES OF NEUTRALS
177
scandalous manner. So strongly has this been
felt for a long time past, that when in 1825 the
Swedish Government discovered that six frigates
it had sold to an English firm were about to be
transferred to an agent of Mexico, which was
then in revolt against Spain, it immediately
cancelled the transaction and refused to deliver
the vessels. And again, when in 1863 an old
gunboat, the Victor, sold by the British Govern-
ment to a private firm, reached the hands of Con-
federate agents, who made an unsuccessful attempt
to fit her out under the name of the Rappa-
hannock, orders were given that no more ships
of the Royal Navy should be sold during the
continuance of the American Civil War. A
still more remarkable case occurred in the same
year. By an arrangement between Great Britain
and China a flotilla of gunboats was built in
England and taken out to China, manned by
British sailors, and commanded by a British officer
who was to enter the Chinese service. On his
arrival differences arose between him and the
Chinese authorities, and he declined the ap-
pointment. Rather than leave the vessels in the
N
180
CH.
WAR AND NEUTRALITY
Neutral individuals are not subject to all the
restraints which rightly fall on neutral govern-
ments. If they happen to be traders they are
in no way bound to suspend or limit their com-
mercial transactions because a war is going on.
As Jefferson pointed out when complaints were
made in 1793 of the activity of American
merchants in supplying France with munitions
of war, "Our citizens have always been free to
make, vend, and export arms. It is the con-
stant occupation and livelihood of some of them."
But he went on to say that every belligerent
had a right to confiscate such portions of these
arms as it could capture on the way to ports of
its enemy, and added significantly, "To this
penalty our citizens are warned they will be
abandoned." This brings us to the second point
we have to investigate the distinction between
what a neutral state may permit its subjects to
do at their own risk, and what it must prevent
them, and indeed all residents within its territory,
from doing, in order to vindicate its Own
neutrality. In what follows we will confine
ourselves almost entirely to the case of ships,
VIII
181
THE DUTIES OF NEUTRALS
since it is with them that present difficulties
have arisen.
It is no business of a neutral government to
interfere with the trade in contraband of war
carried on by its subjects; but, on the other
hand, it may not interfere to protect them from
the confiscation of their contraband goods when
on the way to a belligerent destination. Speak-
ing generally, we may say that its duty is
to sit still and attend to its Own affairs.
But it cannot always confine itself to passive
non-interference. When the acts of those
under its control amount to more than mere
trading, and become something akin to active
participation in the war, then it must step
in and prevent its territory from being made
the starting-point of expeditions or the base
of operations.
Now a ship is something more than a
mere article of contraband trade when she is
built and fitted for purposes of warfare.
She has become a warlike expedition, and
immediately a duty with regard to her is placed
upon the neutral government, It is bound by
182
CH.
WAR AND NEUTRALITY
International Law to prevent her departure from
its ports on her mission of hostility against a
neighbour with which the neutral is at peace.
And the obligation is not limited to ships whose
mission it is to fight. Transports or colliers
come under it equally with men-of-war. In
order more effectually to fulfil this duty states
sometimes arm their governments with authority
to prevent even the building in their ports of
such vessels as we are discussing.
Our own
Foreign Enlistment Act does this; but herein it
goes beyond the law of nations. As Sir William
Harcourt said in his note appended to the Report
of the Neutrality Commission of 1867, "To build
is nothing, unless the vessel be armed and
despatched; it is in these acts that the real
breach of neutrality consists." The last and
more accurate clause of the first of the Three
Rules of the Treaty of Washington of 1871
expressed the same view when it said that a
neutral state was bound to use due diligence “to
prevent the departure from its jurisdiction of any
vessel intended to cruise or carry on war as
above (ie. against a power with which it is at
VIII THE DUTIES OF NEUTRALS 183
peace), such vessel having been specially adapted,
in whole or in part, within such jurisdiction for
warlike use."
If this view be correct, our Government is
bound, as long as the war lasts, to prevent the
departure from this country of the two Japanese
battleships for the construction of which contracts
were signed with two British firms at the end
of January in the present year. The Foreign
Enlistment Act arms them with ample power for
this purpose, and there can be no doubt that it
will be exercised. Other states are under the
same obligations, which, as we have seen, are
imposed by International Law, and therefore bind
all the members of the family of nations. When
therefore we read of orders placed by Russia in
a shipbuilding yard at Trieste for armoured
cruisers, and large purchases by the same power
of swift German liners, we wait somewhat im-
patiently for the announcement that the vessels
in question will not be permitted to depart from
Austrian or German jurisdiction. No doubt
efforts will be made to evade the law. Ships
will be sold to individuals who are really secret
184 WAR AND NEUTRALITY CH. VIII
But
agents of the Czar's Government, and when they
are at sea they will be ordered to proceed to
Russian ports. Human ingenuity is more than
equal to this and many other devices, and officials
cannot be held responsible for every evasion that
may be practised upon them successfully.
they and the states which employ them are
bound to use all reasonable care, and are liable
to claims for reparation from Japan for any
neglect. The old device, which we already hear
mentioned as a grand new plan, of letting the
ship go to sea unarmed, and sending her arma-
ment and fighting crew after her in another
vessel, is a transparent fraud. It was tried in
the case of the Alabama and some of her sister
cruisers in the early sixties of the last century.
But the Geneva arbitrators were not impressed by
it, and we had to pay some £3,000,000 in conse-
quence. What was sauce for the British goose
then must be sauce for the German or Austrian
gander now.
CHAPTER IX
ARE MAIL - STEAMERS PRIVILEGED ? WATERWAYS
UNDER SPECIAL REGULATIONS.
AND WIRELESS TELEGRAPHY
NEUTRALITY
EARLY in May of the present year the Russian
armoured gunboat Krabri stopped and searched the
British mail-steamer Osiris when on her voyage
between Brindisi and Port Said. The object of the
search was to discover the Japanese mails; but
none were found, either because there were none, or
because the search-party did not light upon them.
After two hours the Osiris was allowed to proceed,
and on her arrival at Port Said on May 4 she at
once reported the incident. A section of the
English press commented very strongly upon it,
and the general opinion seemed to be that the
Russian warship had greatly exceeded her rights.
185
186
CH.
WAR AND NEUTRALITY
Various grounds were put forward in support of
this view. In some quarters it was argued that
belligerents had no right to search neutral vessels
so far from the scene of hostilities. The mental
habit of manufacturing International Law as
required, out of the feelings of the moment and
an intuitive sense of the equities of the case, is
responsible for this assertion. There is no such
limitation upon the Right of Search. By the
common law of nations it applies everywhere,
except in neutral territorial waters, and to all
neutral merchantmen except such as may be
exempt by special favour. Whether the Osiris
came within this class we will discuss by and by.
Meanwhile, in order to disabuse men's minds
of the notion that a space-limit is set upon
the belligerents' right to stop and search private
vessels flying a neutral flag, we will quote a
notice issued to mariners by the Board of Trade
in the middle of last March. It refers, as will be
seen, to the high seas generally, and is perfectly
explicit as to the duty of submitting to search.
Its words are: Masters of British merchant
vessels must immediately stop or heave to, when
IX
187
MAIL-STEAMERS
summoned on the high seas to do so by a warship
of either belligerent, and must not resist being
visited or searched for contraband of war by such
warship, as any attempt on their part to evade or
resist visit or search may be attended with serious
consequences to themselves and to their vessels
and cargoes."
Another and much more arguable point has
been taken, not against search in the Mediter-
ranean generally, but against the particular search
we are now discussing. It refers to the undoubted
rule that a belligerent has no business to use the
waters of a neutral as a base of operations for
warlike acts; and it points out that as Russia
has no ports of her own in the Mediterranean,
the Krabri in all probability came out from some
neutral port when she started to intercept the
Osiris, and returned to that port when she had
performed her task. It is also probable that the
supplies of coal which enabled her to place herself
in the path of the mail-boat were obtained in the
same port. The case is certainly one for inquiry.
It would be intolerable if a belligerent vessel was
allowed to use a neutral port as a lurking-den
188
CH.
WAR AND NEUTRALITY
from whence to harry the commerce of other
neutrals. On the other hand, it would be foolish.
to affirm that, because such a vessel had obtained
coal in neutral waters in order to enable her to
reach her next port of destination, therefore she
must not make use of any portion of that coal
to chase and stop a merchantman she happened
to meet while in the bond fide prosecution of her
voyage. It will be wise to wait for fuller
information before we make up our minds on
this point.
But, even though there be no good reason for
objecting to the search by belligerents of neutral
merchantmen in general, the question arises.
whether the fact that the Osiris was
steamer does not give her
a mail-
special immunities.
In attempting an answer we may put aside the
few anomalous cases where the mail-boats are
public vessels, but carry passengers and mer-
chandise as well as letters. The Ostend boats
are examples. They are the property of the King
of the Belgians as reigning sovereign. In the
case of the Parlement Belge it was decided that
the subordinate and partial use of them for
IX
189
MAIL-STEAMERS
trading purposes did not take away their public
character and deprive them of the immunities
which belonged to them by virtue of it. Whether
this doctrine would be extended to cover exemp-
tion from belligerent search in time of war, it
is impossible to say with certainty. But we may
be sure that, if such vessels should in future be
held free from molestation on the same footing
as ordinary public vessels employed exclusively
on state business, the neutral power whose ships
they are will be made responsible for any abuse
of their immunity by carrying contraband of war
or performing unneutral services. They are,
however, so exceptional that we may leave them
out of account. Ordinary mail - steamers are
simply merchantmen of a particular kind, owned
by private persons, and carrying mail-bags by
contract with the state, as one department of
their trade.
In recent times a practice has grown up of
granting special favours to such mail-boats in
time of war, if they are neutral and willing to
accept the conditions imposed. The United
States has been the pioneer in this matter.
190
CH.
WAR AND NEUTRALITY
During her war with Mexico she allowed British
mail-steamers to pass unmolested in and out of
the port of Vera Cruz, which came into her
possession for a time in 1847. In 1862, when
the American Civil War was at its height, the
Government of Washington exempted from search
the public mails of any neutral power, if they
were duly sealed and authenticated, but it was
added that the exemption would not protect
"simulated mails verified by forged certificates
and counterfeit seals." If a vessel carrying
mails rendered herself subject to capture for
other reasons, she might be seized, but the mail-
bags were to be forwarded unopened to their
destination. The example thus set was followed
by France in 1870. At the commencement of
her great war with Germany she announced that
she would take the word of the official in charge.
of the letters on board a regular mail-steamer,
of neutral nationality as to the absence of any
noxious communications. The Proclamation of
President M'Kinley at the beginning of the war
with Spain in 1898 went further still. It
declared that "the voyages of mail-steamers are
IX
191
MAIL-STEAMERS
not to be interfered with, except on the clearest
grounds of suspicion of a violation of law in
respect of contraband or blockade.” A similar
indulgence was granted by Great Britain in the
course of the Boer War to steamers flying the
German mail-flag. They were not to be stopped
on mere suspicion that there might be unlawful
despatches in their bags. On the other hand,
many modern cases may be mentioned where no
indulgence, or a very limited one, was given. For
instance, in 1898 Spain did not duplicate the
American concession, and in 1902 Great Britain
and Germany would not allow neutral mail-
steamers to pass through their blockade of
Venezuelan ports, but stopped them instead,
and after overhauling their correspondence and
detaining what seemed noxious, sent the rest
ashore in boats belonging to the blockading
squadron.
We see then that practice is by no means
uniform. It is impossible, therefore, to argue
that the usage of the last half-century has con-
ferred upon the vehicles of the world's com-
mercial and social communications an immunity
192
CH.
WAR AND NEUTRALITY
from belligerent search which they did not before
possess. The utmost we can venture to assert
is that such a usage is in process of formation,
and is in itself so convenient that it ought
to become permanent and obligatory, due security
being taken against its abuse.
This last con-
dition will be difficult of attainment.
No
government agent on board a mail-steamer can
be aware of the contents of the letters for which
he is responsible. There would be a terrible
outcry if he took means to make himself
acquainted with them. His assurance, there-
fore, as to the innocence of the communications
in his bags can be worth but little, even though
it is given in all good faith. States must face
the fact that to grant immunity will mean that
their adversaries in war will use neutral mail-
boats for the conveyance of noxious despatches.
made up to look like private correspondence.
Probably it will be worth while
worth while to take
the risk of this rather than dislocate the affairs
of half a continent by capturing and delaying
its
correspondence. While general freedom
was given, it might be wise to reserve a right
IX
193
MAIL-STEAMERS
of search and seizure in circumstances of acute
suspicion.
At present nothing of the kind has been
done. Our Government has no right to demand
from Russia that our mail-boats be left un-
searched by its cruisers. But it may represent
that great inconvenience will arise if the right of
search is enforced in its naked severity, and ask
both of the powers at war to make concessions
similar to those which we made at Germany's
request in 1901. There is no need to go so far
as the United States have recently gone in the
Barrundia case and subsequent incidents of the
like kind, when they claimed for their mail-
steamers a privileged position with regard to
political refugees who had taken shelter on board
them. We do not want to assimilate the mail-
packet to the warship, but we do desire to
establish the principle that the innocent corre-
spondence of neutrals all over the world shall not
suffer because two powers have seen fit to break
the peace.
And we are more likely to succeed
by means of quiet diplomatic pressure and
courteous reasoning than by heroics about an
194
CH.
WAR AND NEUTRALITY
outrage which was no outrage at all, but at worst
a discourtesy. It may be well to add here that
neither private correspondence nor diplomatic
and consular correspondence is regarded as
noxious matter. Only despatches relating to
naval and military affairs come within that
category, and subject the carriers to pains and
penalties.
In stopping and searching the Osiris by
means of one of the ships of her regular navy,
Russia did no more than exercise in a harsh
and reactionary manner a right which belonged
to her as a belligerent power. She would have
been better advised had she granted some of the
concessions to neutral mail-steamers which have
been so frequent of late years. The United
States made no sacrifice of dignity when in
1862 she accepted the suggestion of Great
Britain that "all mail-bags clearly certified as
such shall be exempt from seizure and visitation,"
merely adding thereto the proviso against fraud
quoted on a previous page. But if Russian
pride shrank from even the semblance of yield-
ing to foreign pressure, the Russian Government
IX
195
MAIL-STEAMERS
might have adopted from the proposed Maritime
Code of the Institut de Droit International the
rule that a mail-boat should not be visited when
an official of the Government whose flag flew
over her declared in writing that she carried
neither despatches nor troops for the enemy, nor
contraband of war. Russia would have gained
far more indirectly from the goodwill of those
who benefited by such a concession than she
can hope to obtain directly in the whole course
of her war by standing upon the strict letter of
an oppressive rule. But she went beyond her
obsolete rights, and contrived most ingeniously
to violate International Law in a variety of
ways, when on July 15, 1904, the Smolensk,
a cruiser of her Volunteer Fleet, stopped the
German mail-packet Prinz Heinrich in the Red
Sea, and took out of her a number of mail-bags,
which she examined at leisure, and then trans-
ferred, with the exception of two, to the P. & O.
steamer Persia, which she stopped for that
purpose. To begin with, the Smolensk had no
right to perform any acts of war at all. But,
postponing this point, which we will deal with
•
196
CH.
WAR AND NEUTRALITY
later when considering the case of the Malacca,
we may assert with confidence that a belligerent
cruiser which takes goods by force out of a
neutral vessel, not because she believes them to
be contraband, but in order that she may examine
them to find out whether they are contraband,
commits a grave offence. There is a right to
capture contraband, and when it is exercised the
ship which carries the unlawful goods should be
brought in for adjudication with its suspicious
cargo. This is the normal procedure. Some
powers, however, allow the contraband goods to
be taken out of the vessel, when her captain is
willing to surrender them, and they are so small
in quantity as to be easily carried by the captur-
ing cruiser. But no power has ever dreamed of
allowing goods to be taken from under its flag
in order that a belligerent commander might do
at leisure on his own ship what he ought to do
on the neutral ship before he presumes to effect
a seizure. No right to touch them exists till
grave suspicion, if not absolute proof, arises
against them. If the Russian procedure were
lawful, neutral trade in time of war could be
IX
197
MAIL-STEAMERS
harried by a belligerent to the verge of extinc-
tion, supposing him to be at all strong at sea.
He has only to stop every vessel of a power he
wishes to injure, and take out as much property
as he can carry for examination elsewhere, and
very soon there will be nothing sent for carriage
under that neutral's flag.
Further, the Smolensk had no business to
force the Persia to do for it its own work of
sending on the mail-bags to their proper destina-
tion. It is not a part of the duty of neutrals.
to fetch and carry for belligerents who have got
themselves into a quandary. It is to be wished
that the captain of the Persia had refused the
task committed to him, and taken the conse-
quences whatever they might have been.
less we, or any other neutral, concede to un-
authorised Russian demands, the sooner will the
present Russian attempt to force her own crude
notions upon her neighbours cease, and the
sooner it ceases the better for the peace of the
civilised world.
The
Lastly, we may note that the commanders of
the Russian cruisers seem to think they are at
198
CH.
WAR AND NEUTRALITY
liberty to seize and confiscate any correspondence
going to Japan. A more monstrous delusion
never entered the head of a naval captain puffed
up with national pride. The law on this matter
was established during the great naval struggle
which marked the end of the eighteenth and the
beginning of the nineteenth centuries. It comes
to this. Private correspondence goes free, but
neutrals are not allowed to carry an enemy's
despatches. By this phrase is meant "official
communications
between officers, whether
military or civil, in the service of the enemy on
the public affairs of their Government." But
even to this rule of interpretation there are
exceptions. "Communications between the
enemy and neutral foreign Governments," and
"official communications between the enemy's
home Government and the enemy's ambassador
or consul resident in a neutral state," are not
to be interfered with. The quotations I have
given are from our own Admiralty Manual, and
they form an excellent summary of the generally-
accepted rules on the subject. Japan has
embodied them, with a few verbal alterations,
IX SEIZURE OF CORRESPONDENCE 199
in her Prize Law. Russia, in the seventh of
the "Rules" issued by the Emperor on February
28, enumerates among the acts forbidden to
neutrals, "the transport of the enemy's
despatches and correspondence." Apparently
these words are construed to cover private
communications. Whether they were drawn up
with that intention or not may be doubtful; but
it is worthy of notice that Section 34 of the
Maritime Code of the Institut de Droit Inter-
national speaks of "correspondence officielle de
l'ennemi," whereas the Russian rule, which is
evidently founded on it, leaves out the qualifying
adjective. If the obnoxious practice is con-
tinued, neutrals should, in self-defence, join in
one emphatic protest. We thought we had
advanced far on the road of tenderness to
neutral interests since the violent times of the
great Revolutionary and Napoleonic contests. It
seems as if we had gone back instead; and it
is necessary to reverse the engines before we
make further progress in the wrong direction.
In the special case before us, the German
Government appears to have been satisfied with
200
CH.
WAR AND NEUTRALITY
the reply to its remonstrance; but Mr. Balfour
announced no general concession in his speech
on August 26 to the deputation of ship-owners
connected with the trade to the Far East.
Two of the great waterways likely to be used
in connection with the present war are regulated
by special treaty stipulations, and not by the
common law of nations.
They are the artificial
passage called the Suez Canal, which connects
the Mediterranean and the Red Sea, and the
natural passage, called the Dardanelles and the
Bosphorus, which connects the Black Sea and
the Mediterranean. As complications have arisen
with regard to them, we will give here a short
account of the rules which apply to the transit
through them of belligerent and neutral ships.
If the Baltic fleet of Russia attempts the much-
talked-of expedition to the Far East, a portion,
if not the whole, of it will use the Suez Canal.
In doing so it must observe the provisions of
the Convention of 1888 for the neutralisation of
the waterway. There might possibly have been
some little doubt about this a few months back;
for when the Convention was signed the late
IX
201
WATERWAYS
Lord Salisbury, who was at that time Secretary
of State for Foreign Affairs, made certain re-
servations as to its binding force in the then
existing circumstances of the British occupation
of Egypt. But any lurking suspicion that might
remain has been swept away by the agreement
of April 8, 1904, between France and this
country. The sixth Article of the Convention
referring to Egypt and Morocco contained a
declaration by Great Britain of her adherence to
the stipulations of 1888, "and to their enforce-
ment. We are now, therefore, in line with the
other signatory powers, and there is no excuse
for a refusal on the part of any of them to
consider the agreement binding. What then are
its provisions as to the important matter of
the passage of belligerent warships? They
may pass and repass freely; but they may
commit no acts of hostility in the Canal itself, or
in its ports of access, or in the sea to a distance
of three miles from those ports. They must not
linger in the Canal, or obstruct its navigation, nor
may they take in food and stores beyond what
they require for present necessities. Neither
202
CH.
WAR AND NEUTRALITY
troops nor material of war may be embarked or
disembarked within the Canal and its ports of
access. The stay of the vessels at Port Said or
Suez is not to exceed twenty-four hours, except
in case of distress, when permission to remain
longer may be obtained. Prizes are to be sub-
ject to the same rules as the warships of belli-
gerents. It is clear that as long as these rules
are obeyed the Canal remains a neutral passage
open to the vessels of all states on a footing of
safety and equality. The agents in Egypt of
the signatory powers are charged with the duty
of watching over the execution of the Convention.
In case of need they can call upon the Egyptian
Government to take action for the protection of
the Canal, and as Egypt would be backed up by
Great Britain, the force behind the Convention
is amply sufficient to secure its observance.
We will now turn to the case of the Dar-
danelles and the Bosphorus. It is governed by
a Convention of March 30, 1856, and a Treaty
signed at London on March 13, 1871. The
joint effect of these two documents is to make it
at once the right and the duty of Turkey, as the
IX
203
WATERWAYS
territorial power, to close the passage of the
straits, when she is at peace, to the ships of war
of all foreign states, while their merchantmen
are free to pass and repass. The passage of
light cruisers employed in the service of the
foreign embassies at Constantinople is allowed,
as also is that of the gunboats sent to guard the
international works at the mouth of the Danube.
And further, the Sultan has power to open the
straits in time of peace to the vessels of war of
friendly and allied powers, if he shall deem it
necessary in order to secure the observance of
the Treaty of Paris of 1856. These rules keep
Russia's Black Sea fleet out of the Mediterranean,
and prevent her from concentrating her naval
strength. Naturally enough she submits to them
with an ill grace. The Sultan she can make
into a submissive instrument; but the great
powers of Europe cannot be bent so easily
to her will. They have signed the diplomatic
documents to which we have referred, and they
have no desire to see the Eastern Question
raised in an acute form by an attempt to revise
them or set them aside. The Black Sea fleet,
204
CH.
WAR AND NEUTRALITY
therefore, has to remain in the Black Sea; but
Russia habitually sends the vessels of her
Volunteer Fleet through the straits under her
merchant flag. These vessels belong nominally
to an Association, but practically they are at the
disposal of the Minister of Marine. The first
three of them were bought by public subscrip-
tion, raised in 1878; but since 1895 the funds
of the Association have been derived chiefly from
a Government subsidy of about £62,000 per
annum. When the present war broke out the
Volunteer Fleet consisted of fourteen cruisers and
four transports. Their captains and second officers
belong to the Imperial Navy. Their crews are
under naval discipline, and one-third of them
must consist of men who have served for five
years in the Active Fleet, and have re-enlisted
for two years. At all times they are in the
service of the state, and act under orders.
received from state authorities. They are used
in times of peace to take troops and criminals
from Odessa and other Black Sea ports to the
Far East. The tea trade and the passenger
trade between these distant points are in their
IX
205
THE VOLUNTEER FLEET
hands. Stores are kept for them at Vladivostock,
Libau, and Odessa, the last port being their head-
quarters. They habitually pass through the
Dardanelles and the Bosphorus as merchantmen;
but since the war began they have carried their
guns and ammunition in their holds, and were thus
ready to assume a warlike character at any moment.
We are now in a position to consider the case
of the Malacca, and deal with the legal points
which have arisen in connection with it. On
July 4 the Russian Volunteer Fleet steamer
Peterburg passed the Bosphorus and the Dar-
danelles, after having been detained by the
Turkish authorities for some hours, in the course
of which explanations were exchanged with the
Russian ambassador at Constantinople. On
July 6 she was followed by the Smolensk.
Both flew the commercial flag. Each declared
she was a merchant ship. Neither could have
passed the straits in any other capacity. They
maintained the same character when going
through the Suez Canal. The Peterburg certainly,
and possibly the Smolensk also, engaged pilots for
the Red Sea as a vessel of commerce. But soon
206
CH.
WAR AND NEUTRALITY
after leaving Suez she ran up the Russian naval
ensign. Guns were brought out of her hold
and mounted. Her armament was soon com-
plete. She assumed the character of a warship,
and proceeded to cruise against neutral commerce.
On July 11, off Jeddah, she stopped and searched
two British vessels, the Menelaus and the Crewe
Hall; but after being detained for some time
they were allowed to proceed. On July 13
she captured the Peninsula and Oriental Com-
pany's steamer Malacca to the north of the
island of Jebel-Zukkur, and brought her to Suez
on July 19. The Malacca was passed through
the Canal in the custody of a Russian prize-crew,
and flying the Russian naval flag, though, in the
absence of any sentence of a Prize Court con-
demning her, she was still in law a British
vessel. She left Port Said on July 21, her
destination being unknown, but it was under-
stood that she would be taken to Libau for trial
and adjudication on a charge of carrying contra-
band of war.
Meanwhile there was great excitement over
the case in England. The conduct of Russia
IX
THE PETERBURG
207
was denounced with singular unanimity by the
organs of public opinion. It was pointed out
that the 23 tons of munitions of war carried by
the Malacca belonged to the British Government
and were destined for the dockyards of Hong-
Kong and Singapore. They could not, therefore,
be regarded as contraband, and there was no
question of the innocence of the rest of the
cargo, even when tried by the exacting Russian
standard. But this, though important, was
recognised as a subsidiary matter. The right of
the Russian cruiser to make any captures at all
was peremptorily denied and sometimes on the
wrong grounds. Many newspapers declared that
she was no better than a pirate; and some went
so far as to demand that her prize should be
rescued by force. This position was untenable
in law, and had it been adopted in practice,
immediate war would undoubtedly have been the
result. A pirate is one who has thrown off all
state authority. A pirate ship is denationalised.
No Government stands behind her to be respon-
sible for her misdeeds, and, therefore, the only way
to deal with her is by direct attack. But in the
208
WAR AND NEUTRALITY
CH.
case before us, however unwarrantable the acts
of the Peterburg may have been, they were done.
under national authorisation. She was a Russian
cruiser. Therefore Russia was responsible for
her; and it was the duty of our Government to
apply to the Russian Government for redress.
This it did with commendable promptitude. A
week after the seizure, Sir Charles Hardinge, our
ambassador at St. Petersburg, handed in a strong
protest against it, coupled with a demand for the
immediate release of the Malacca. The ground
taken up by our diplomacy was stated by the
Prime Minister in the House of Commons on
July 28 to have been "that no ship-of-war
could issue from the Black Sea, and that in our
judgment the members of the Volunteer Fleet,
if they issued from the Black Sea and then took
belligerent action, either had no right to issue
or no right to take the action."
The position thus occupied by the British
Government was impregnable.
It raised no
questions as to the exact definition of a ship-
of-war and the exact formalities required to
turn a merchantman into a belligerent cruiser.
IX
209
THE PETERBURG
Instead, attention was concentrated on the really
important fact that the particular vessel whose
conduct was impugned had obtained access to
the waters which were the scene of her opera-
tions as a merchantman, and could have obtained
it in no other way. If she were a man-of-war,
her proper place was the Black Sea. If she
were a vessel of commerce, she could not law-
fully make captures. Assuming her to have
been in reality a cruiser when she passed the
straits, she could not be allowed to take
advantage of her own wrong in deceiving the
Turkish authorities. She must retain her
simulated character, at least till the termina-
tion of the cruise which she had commenced,
by writing herself down a merchantman before
all the world. If she could lawfully repudiate
her immediate past, and change into a ship-of-
war directly she was clear of all inconvenient
obstacles, what was there to prevent her from
resuming her commercial character as soon as any
difficulties could be surmounted by means of it?
A ship cannot be allowed to masquerade about
the seas as a quick-change artist. It must be
Р
210
CH.
WAR AND NEUTRALITY
either one thing or the other for some reasonable
time.
No doubt a large number of states, with Great
Britain among the foremost, have made arrange-
ments with the owners of powerful steamers to
take over some of the best and swiftest of their
vessels in time of war, and fit them out as
auxiliary cruisers. No doubt practice has been
very loose as regards the methods followed in
setting forth merchantmen as men-of-war, and
some international agreement on the subject is
highly desirable. But all this does not touch
our main point in the present controversy.
Russia could meet it only by asserting that she
had passed ships through the straits in similar
circumstances before, and had an arrangement
with the Porte for doing it when she pleased.
The answer to this argument is obvious.
private arrangement between two states cannot
set aside the provisions of international treaties.
to which they are parties along with a number
of other states who have neither been consulted
about the agreement nor given their assent to it.
The Czar's Ministers would find it hard to affirm
A
IX
211
THE PETERBURG
that the arrangements with regard to the naviga-
tion of the Bosphorus and the Dardanelles concern
their country and Turkey only. They would im-
mediately be confronted with Count Schouvaloff's
declaration at the Congress of Berlin in 1878, to
the effect that "the principle of the closing of
the straits is an European principle, and that the
stipulations concluded in this respect in 1841,
1856, and 1871, confirmed at present by the
Treaty of Berlin, are binding on the part of all
the powers, in accordance with the spirit and
letter of the existing treaties, not only as regards
the Sultan, but also as regards all the powers.
signatory to these transactions." This pronounce-
ment was made in answer to Lord Salisbury's
statement that we did not consider our obligations
went "further than an engagement with the
Sultan to respect in this matter His Majesty's
independent determinations in conformity with
the spirit of existing treaties." The British
Plenipotentiary meant, no doubt, to guard against
any necessity of acquiescence in a decision of the
Sultan which we had good reason to believe had
been secured by threats and unscrupulous diplo-
212 WAR AND NEUTRALITY
CH.
matic pressure.
His words certainly do not
preclude us from remonstrating if the treaties
are openly broken. This we did in 1903, after
the passage through the straits of four Russian
torpedo-boats under the commercial flag. Doubt-
less other cases have passed without notice. But
we have never parted with the right to object,
though we have not considered ourselves bound
to make use of it on occasions of small import-
ance. But the present case affects our national
honour as well as our trading interests; and we
can surely invoke the violated treaties, both as
parties to them who have a right to see that they
are observed, and as neutrals who suffer from
their violation.
It is satisfactory to know that the British
remonstrance was not without effect. What
Mr. Balfour described as "a compromise" was
reached. It was agreed that the Malacca should
be taken to Algiers and there released after "a
purely formal examination," and an assurance
from the British Consul that the military stores.
were the property of the British Government,
and the rest of the cargo was innocent.
These
IX
213
THE PETERBURG
formalities were gone through on July 27. At
sunset the Russian flag, which ought never to
have been hoisted, was hauled down, and at sun-
rise the next morning the British flag took its
proper place at the mast-head. With regard to
the Peterburg and the Smolensk, they "were not
longer to act as cruisers," and any vessels captured
by them were to be immediately released. This
latter part of the agreement was carried out to
the full by the liberation on July 27 of two
British vessels, the Ardova and the Formosa,
which had been seized in the Red Sea.
admission was made of the general principle that
vessels of the Volunteer Fleet which had passed
through the straits as merchantmen were legally
incapable of acting as ships-of-war. Instead, it
was asserted that the two steamers whose conduct
was questioned had "received a special commis-
sion, the term of which has already expired";
and thus the cessation of their attacks on neutral
commerce was accounted for without acceptance
of the British contention.
No
We may admit that a compromise was
necessary, while at the same time we regret
214
CH.
WAR AND NEUTRALITY
some of the conditions which were agreed upon.
The examination of the Malacca at Algiers was
contrary to the fundamental principle for which
we contended.
The Russian Government pub-
lished an official statement, on August 2,
representing it as "a fresh visit." It would
be hard to argue that it was nothing of the
kind, though, as it took place in a neutral
port, it was absolutely irregular from beginning
to end. The assurance of the British Consul
as to the innocence of the cargo implied that
the arresting vessel had a right to inquire into
the matter; whereas the head and front of our
argument had been that the arrest, visit, and
detention were wrongful acts, because the ship
which performed them had no legal capacity
to do so. In the case of the Trent, we demanded
the release of Messrs. Slidell and Mason on the
ground that it was no offence on the part of a
British ship to carry them. They were set at
liberty by the United States on the ground that
their captor ought to have brought the ship in
for adjudication instead of taking them out of
her. Here was an intelligible compromise.
We
IX
215
THE COMPROMISE
obtained what we wanted. The United States
gave no acceptance to our legal theory. But, on
the other hand, no word or act of ours gave colour
to the notion that we had abandoned it.
As a result of our agreement with Russia, her
two cruisers were withdrawn from the Red Sea;
and on August 13 Lord Lansdowne said in the
House of Lords, "We now know that instructions.
which have been sent to them to desist from
seizures similar to those which they have pre-
viously made have reached their destination.
We must therefore assume that no further
seizures will take place." Unfortunately the
Foreign Secretary had been misinformed, whether
by accident or design it would perhaps be rude
to inquire. On August 21 the Smolensk
appeared in South African waters, and stopped
the British steamer Comedian off the mouth
of the Bashee river, which falls into the sea
on the north-east coast of Cape Colony. After
an examination of her papers she was allowed
to proceed, and reported the occurrence next
day at Durban. It was then explained from
St. Petersburg that the instructions to abstain
216
CH.
WAR AND NEUTRALITY
from further captures did not reach the Smolensk
before her departure from the Red Sea, though
it still remains a mystery how they contrived to
miss her both at Jibuti, and at Dar-es-Salaam,
the port of German East Africa where she is
believed to have coaled from the Holsatia, a
German collier chartered by the Russian Govern-
ment. Count Lamsdorff, the Czar's Minister for
Foreign Affairs, turned in despair to the British
Government, and requested them to send the
information which his own marine colleague
seemed incapable of conveying. Our Admiralty
issued on August 29 an announcement that
they had ordered no less than seven British
vessels to search for the Smolensk. At the time
of writing (September 7) she has just been dis-
covered off Zanzibar. It is to be hoped that
now she is found she will obey the orders she
receives, though they are conveyed to her by a
foreign warship. Otherwise it may be necessary
to terminate for a time the career of so elusive
and dangerous a rover of the seas.
While England and Russia were endeavour-
ing to come to a working agreement about
IX
217
THE VOLUNTEER FLEET
the latter's auxiliary cruisers, the Turkish
Government was seeking for assurances with
regard to those vessels of the Russian Volunteer
Fleet which still remained in the Black Sea.
After some negotiation Russia consented to
declare officially that they would not attempt
to pass the straits loaded with arms or munitions
of war, that they would retain the commercial
flag during their whole voyage, and that they
would not be changed into cruisers. Mean-
while we are told that a commission is sitting
at St. Petersburg to inquire into the legal
status of the vessels of the Volunteer Fleet.
There can be little doubt that "they are
properly to be considered as already belong-
ing to the Imperial Navy" (Hall, International
Law, 5th ed. p. 529). Their connection with
the State is too close for them to be anything
else but public ships. That being the case,
they have no right to pass and repass the
Bosphorus and the Dardanelles while the treaties
of 1856 and 1871 remain in force.
may be a case for altering these instruments,
but while they exist they must be observed.
There
218
CH.
WAR AND NEUTRALITY
It is irksome, no doubt, for the Russian Black
Sea fleet to be kept out of the Mediterranean ;
but Russia should remember that the fleets
of other powers are at the same time kept out
of the Black Sea.
The application of science to warfare has
been wonderfully exemplified in the present
struggle, chiefly on the Japanese side. The
beleaguered garrison of Port Arthur, however,
appear to have utilised a marvellous invention in
a clever fashion. They have installed a wire-
less telegraphy apparatus on one of the seaward-
looking hills near the town, and from thence
have got into touch with a receiving station
at Chifu, seventy-seven miles away on the
Chinese side of the Gulf of Pechili. They
are thus enabled to communicate, in spite of
the blockade, with their Government at home
and their comrades in the field. The question at
once arises whether the neutral power ought not
to prevent the receipt of such messages on its
territory. The question is a new one, but if we
follow the analogy of messages sent by submarine
cables there cannot be much doubt as to the
IX
219
WIRELESS TELEGRAPHY
answer. During the war between America and
Spain in 1898 the British authorities refused a
request from the United States for permission to
land at Hong-Kong a cable which the American
authorities proposed to lay from Manila, then in
their military occupation, and to use for the
purposes of their operations against Spanish
territory. The refusal was based upon the
ground that to grant such facilities would be a
breach of neutrality. The Government of Wash-
ington acquiesced in the decision, which was
given on the advice of the law officers of the
Crown, and was followed by their own Attorney-
General in 1899. In the course of their naval
operations round Cuba they cut several cables
which connected places held by the Spanish
forces with neutral territory, and though after
the war compensation to the extent of the actual
damage suffered was voted by Congress to neutral
owners, it was granted as a matter of grace and
equity and not as of right. The principles
underlying these incidents are twofold. The first
is that belligerents have a right to prevent
messages relating to the war from being sent by
220
CH. 1X
WAR AND NEUTRALITY
their enemies over means of communication
which are partly in belligerent and partly in
neutral territory, and to this end they may
destroy neutral property at the bottom of the
ocean, if there is no other means of stopping the
intercourse. The second is that it is a violation
of neutrality to allow facilities to one belligerent
for communicating by means of neutral territory
between his forces in the field and his Government
at home, or his military and naval commanders
in other parts of the theatre of operations. The
application of this last to the case of the wireless
receiving station erected by the Russians at the
Chinese port of Chifu is obvious. The nature of
wireless telegraphy prevents the application of
the first. It was not till the end of August that
the Chinese authorities awoke to the obligations.
of neutrality and demolished the station.
CHAPTER X
THE ALLANTON AND THE KNIGHT COMMANDER
OUR CASE AGAINST RUSSIA
THE case of the Allanton has not attracted so
much attention as that of the Malacca, which it
preceded in time and rivalled in importance.
Public opinion was stirred to its depths in
England when the news came that a vessel of
the Russian Volunteer Fleet, which had just
passed through the Dardanelles as a merchant-
man, had changed its character in the Red Sea
and seized a British steamer. But the intelli-
gence of the capture in June of one of our
colliers off the coast of Japan, and her condem-
nation by a Prize Court sitting at Vladivostock,
attracted little attention and roused no indigna-
tion. Yet a review of the circumstances will
show that the security of neutral commerce is
221
222
CH.
WAR AND NEUTRALITY
gravely compromised if the decision given in the
case should be maintained. The judgment of
the Russian Court is before me as I write, and I
affirm deliberately that any recognition on our
part of its validity would be a more serious blow
to our sea-borne trade than acquiescence in the
capture of a few merchantmen by unauthorised
cruisers. Fortunately there is no danger of the
latter calamity, and we may confidently hope
that the former is equally remote.
On January 5 of the present year the
Allanton, a British vessel registered at Glasgow,
and owned by Mr. W. R. Rea of Belfast, was
chartered to take a cargo of Cardiff coal to
Hong-Kong or Sasebo. On February 21 she
left Cardiff. At Gibraltar the captain received
orders by telegraph, on February 24, to go round
the Cape instead of through the Suez Canal.
On May 10 he reached Hong-Kong, and there
found instructions to proceed to Sasebo. Having
discharged his cargo in the latter port, he went
to Muroran in the island of Hokkaido, where the
ship was chartered by a Japanese company to
carry a fresh cargo of coal to Singapore. It
X
223
THE ALLANTON
was consigned to the British firm of Paterson,
Simons & Co., and was part of a large quantity
of 50,000 tons which they had agreed to take
during the present year. The Allanton left
Muroran on June 13, and three days later
Russian squadron near the
was captured by a
Okishima Islands.
A pr
prize crew was put on
board her, and she was taken to Vladivostock,
where she arrived on June 19. After two days,
and before the case was decided by the local
Prize Court, the authorities commenced to dis-
charge her cargo, a proceeding suggestive of a
determination to find or make grounds for con-
demning her. Whether this suspicion be just
or not, as a matter of fact she was condemned.
The judgment of the Court was given on
June 24; and four days after an appeal was
lodged against it. The case is expected to come
before the Admiralty Council at St. Petersburg
some time in September. Meanwhile it will be
advisable to examine it from the point of view
of a student of International Law.
The decision of the Vladivostock Court may
be divided into two main heads-that which
224
CH.
WAR AND NEUTRALITY
dealt with the outward voyage from Cardiff to
Sasebo, and that which dealt with the voyage
from Muroran to Singapore, in the course of
which the vessel was captured. Judgment was
given against her in respect of both voyages.
We will take them separately, and while dealing
with the first we will inquire further whether
considerations based upon it ought to have
formed any part of the grounds of condemnation.
The Court went at length into the history of
the voyage from Cardiff to Sasebo, and discovered
"indisputable proof that the ship delivered re-
cently at a Japanese port a full cargo exclusively
consisting of contraband of war, with the know-
ledge of the owner, and with his sanction." There
can be no doubt that this statement is correct.
Indeed it is not disputed by the owner of the
Allanton, and stands plainly revealed on the face
of the facts as stated in a previous paragraph.
But it should be noted, on the other hand, that
the ship was chartered more than a month before
the war broke out, and actually started on her
voyage a week before coal was declared to be
contraband by the Czar. If the owner had
X
225
THE ALLANTON
referred to " Appendix II. to § 14 of the Instruc-
tions approved by the Admiralty Council, Sep-
tember 20, 1900," he would have found the
Russian official list of contraband goods; but
he would have looked in vain for coal. The
news of its inclusion arrived when his vessel
was off the West Coast of Africa, and it was
soon followed by the further intelligence that
two British colliers, the Frankby and the Ettrick-
dale, which were captured in the Red Sea, had
been released by order of the Czar, on the ground
that they were seized before the issue of his
"Rules" making coal into contraband of war
(see pp. 114, 115). There was therefore every
reason to believe, when the voyage began, that
the Russian cruisers would regard it as perfectly
innocent, and very little reason to apprehend
confiscation had the vessel been captured after
February 28. It is safe to say that any ordinary
Prize Court would have granted indulgence in
such a case, and even if it had gone the length
of condemning the goods, would certainly have
released the vessel. Indeed, the Institut de Droit
International went so far as to resolve at its
226 WAR AND NEUTRALITY
CH.
Venice session in 1896 that a carriage of con-
traband commenced before the declaration of
war, and without necessary knowledge of its.
imminence, is not punishable.' As a matter of
fact the Allanton escaped capture, and delivered
her cargo safely at Sasebo, a Japanese naval
port.
The question now arises whether the Vladi-
vostock Court had any right to base its con-
demnation of the vessel upon events which
happened previous to the voyage in the course
of which the seizure was made. The ordinary
rule of International Law is, that the offence of
carrying contraband is "deposited" as soon as the
contraband goods have been delivered at their final
belligerent destination. The British Admiralty
Manual acts on this view, and tells our naval
officers that "a vessel which carries contraband
goods becomes liable to detention from the
moment of quitting port with the goods on
board, and continues to be so liable until she has
deposited them. After depositing them, the
vessel in ordinary cases ceases to be liable" (p.
23). Hall, our great English authority, says
X
227
THE ALLANTON
tersely and decisively, "So soon as the forbidden
merchandise is deposited, the liability which is
its outgrowth is deposited also" (International
Law, 5th ed. p. 672). Professor Despagnet of
Bordeaux, in his Cours de Droit International
Public, published in 1899, writes: "Enfin, la
saisie de la contrebande de guerre étant une
mesure de protection de la part des Etats belli-
gérants et non la punition d'un délit, il s'ensuit
que, comme pour la violation de blocus, elle ne
peut être faite que lorsque le navire va intro-
duire la marchandise prohibée dans l'Etat ennemi;
la saisie du navire est illégale quand cette intro-
duction a eu lieu et que le navire opère son
voyage de retour" (2nd ed. p. 713). A further
citation of authorities may be saved by a refer-
ence to Articles 31 and 113 of the "Règlement
international des prises maritimes," finally adopted
by the Institut de Droit International at Heidel-
berg in 1887. They settle the matter under
consideration in a few words by laying down
that the contraband goods must be actually on
board the vessel at the moment of search and
seizure.
228
CH.
WAR AND NEUTRALITY
There can be no doubt, then, that the pre-
vious history of a vessel should not, as a general
rule, influence the decision of a Prize Court upon
her case.
But there is in the Vladivostock
judgment an obscure passage, which may indeed
refer to the condemnation of the Allanton in
respect of the voyage from Muroran to Singa-
pore, yet seems more properly to be concerned
with the decision against her on account of the
voyage from Cardiff to Sasebo. Taking it as
applicable to the latter, it proceeds upon the
assumption that the vessel had "forfeited the
rights of neutrality" on account of the conduct
of its owner and its master, and was therefore
subject to capture according to British practice.
It then puts forward, as its own authorisation for
applying so-called British rules to a British
vessel, a clause in the Russian Naval Regula-
tions, which empowers the Imperial Government
to increase its severity when neutrals or enemies
do not give it the benefit of rules similar to its
own. If we are to judge by Russian practice in
the present war, there is little chance of the
contemplated case arising; and should it ever
X
229
THE ALLANTON
arise, the central government, and not a local
court, must decide upon the measures to be
adopted. But, putting this point aside, let us
endeavour to extract from the judgment what, in
the opinion of the Court, are the British rules
which justify it in condemning a British vessel
for her conduct in a voyage which had come to
an end before her seizure by a Russian cruiser.
Un-
Nothing very explicit is stated; but refer-
ence is made to a passage in Sir R. Phillimore's
Commentaries upon International Law to the effect
that the vessel, as well as the cargo, can be
confiscated in cases of contraband when fraud
and dishonesty have been clearly proved.
doubtedly this is a British doctrine; but it is
by no means peculiar to Great Britain. The
United States has adopted it; and continental
jurists are divided as to its applicability. Yet,
whether it is good or bad, it cannot cover the
case before us. From the beginning to the end
of the voyage of the Allanton all was open and
above-board. There was no fraud and no dis-
honesty in any part of the whole series of
transactions. All that the Russian tribunal can
230
CH.
WAR AND NEUTRALITY
allege is, that the alternative destination,
Hong-Kong or Sasebo, "shows that the prob-
ability of a rupture between Russia and Japan
had been foreseen by the owner," and that the
order to take the route round the Cape of Good
Hope proves a desire to avoid the squadron of
Admiral Wirenius, then cruising in the Mediter-
ranean. Admitting both these allegations, we
may ask in amazement, "Where does the fraud
come in ?
Where is the dishonesty which is to
be visited with the loss of the ship? Here is
an owner who sends his property first to a
neutral and then to a belligerent destination,
and takes ordinary precautions to keep it out of
reach of a belligerent squadron which had just
violated the neutrality of Egypt, and thus shown
that it was not to be trusted. But he falsifies
no papers, he keeps back no documents, he
issues no instructions for the telling of a dis-
honest story to any cruiser who might overhaul
his ship. Everything is in order on board her,
and nothing is hidden. The very statements
that are made against him are based upon the
letters found by the searching party. The
X
231
THE ALLANTON
allegation of fraud is ridiculous, and the con-
demnation based upon it absurd.
The second attempt of the Vladivostock
tribunal to find a justification for its decision in
British practice is no more successful than the
first. It quotes from our Admiralty Manual
(p. 11) the following paragraph:-
"A person engaged in enemy navigation is
also an enemy for the purposes of this chapter
(i.e. for purposes of maritime capture), not only
in respect of the particular vessel in which he is
employed, but also in respect of other vessels
belonging to him that have no distinct national
character impressed upon them."
The Court seems to have imagined that Mr.
Rea, the owner of the Allanton, was "engaged
in enemy navigation." Apparently it never
struck these astute judges that this was a
strange description of a man who stayed at
home during the entire voyage of the ship they
were condemning, and confined his exertions as
navigator to sending orders from his office for an
alteration in her route and destination.
If they
had only glanced at the footnote at the bottom of
232
CH.
WAR AND NEUTRALITY
(C
the page before them, they would have found a
reference to a case in support of the contention of
the text; and on looking it up (The Vriendschap,
4 C. Rob. 166) they would have seen that the
phrase on which they fastened described a series
of actions wholly different from any which can
be attributed to Mr. Rea. The owner of the
Vriendschap, though a Dane by nationality, was
employed constantly in navigating to and from
the ports of Holland," then at war with this
country, and had resided in Holland for long
periods, paying only "fugitive visits to the place
of his birth." He was therefore deemed to
have acquired an enemy character. It need
hardly be said that Mr. Rea had not resided in
Japan during the war, or been engaged in
taking ships, whether his own or other people's,
to and from Japanese ports while hostilities
were going on. Yet he could not come within
the meaning of the rule quoted against him
unless he had done something of the kind; and
even if he had done it, his present residence in
the United Kingdom would protect him from
the confiscation of his ship; for on the owner of
Χ
233
THE ALLANTON
the Vriendschap furnishing proof that he had
discontinued his stay in Holland his vessel
was restored to him. The excursion of the Vladi-
vostock Court into the realm of British Admiralty
procedure resulted chiefly in showing the limited
nature of its equipment for the task it under-
took. It might, indeed, had it been familiar
with the system it refers to, have found on pages
23 and 24 of the Admiralty Manual something
which at first sight seems far more suitable for
its purpose.
Our naval officers are there told
that "If a commander meets with a vessel on her
return voyage, and ascertains that on her out-
ward voyage she carried contraband goods with
simulated papers, he should detain her." Here
is a sentence which definitely orders the capture
of a vessel because of something which happened
on a previous voyage.
It would have been easy
to ignore the condition as to simulated papers,
and argue that, since the Allanton carried coals.
to a Japanese port a little time before she was
seized in the act of carrying other coals to a
neutral port, her condemnation was in accord-
ance with British practice. Such an argument
234
CH.
WAR AND NEUTRALITY
might have been plausible, though it certainly
would not have been sound. An examination
of the cases referred to in support of the in-
struction quoted above shows that the judgments
turned wholly upon the facts that in the outward
voyage there had been gross fraud, accompanied
by perjury and the procurement of false papers,
and that the return voyage was not a thing
apart from the outward venture, but made along
with it "one entire transaction, formed upon
one original plan." It is not necessary now to
discuss how far these rulings were correct at
the time, or how far they would be followed by
a British court to-day. Right or wrong, they
form no precedents for the case of the Allanton,
where the two voyages were entirely distinct
and fraud of any kind was conspicuously absent.
It may, however, be advisable to add that modern
English publicists are disposed to fall into line
with Continental and American authorities, and
hold that there ought to be no exception to the
rule that the offence of carrying contraband
comes to an end with the delivery of the
contraband cargo.
X
235
THE ALLANTON
Having seen that there is no justification
either in International Law or in British practice
for the condemnation of the Allanton on grounds
connected with her outward voyage, we are now
in a position to inquire into the validity of the
sentence pronounced against her in respect of
the voyage in the course of which she was
captured by the Vladivostock squadron. The
Court acted on what it deemed
what it deemed cumulative
evidence. It held that the course taken by
the steamer on her way from Muroran was in-
correct if her real destination was Singapore,
that no satisfactory account was given of the
presence on board of a Japanese lad, that the
official Log-Book was not properly kept, and
that the cargo of coal was still the property of
the Japanese company which had chartered the
ship. After commenting on all these matters,
the judgment set forth that "A combination of
all details and circumstances mentioned above,
and the character of the cargo, convinces the
Court that the real destination of this hostile
cargo was by no means Singapore, but a
Japanese or Korean port, or even the enemy's
236 WAR AND NEUTRALITY
CH.
fleet manoeuvring in the sea." The requisite
hostile destination having thus been discovered
by means of a number of inferences which im-
plied fraud, it was but an easy step to the con-
demnation of the ship and cargo, which was
pronounced accordingly.
Undoubtedly the cargo would have been
lawful prize if it had really been destined for
a port where the Japanese fleet coaled, or for
Japanese men-of-war in the open sea; and in
that case very possibly the ship might have
been condemned as well. There would have
been no difficulty about it under the Russian
rule which renders neutral vessels liable to con-
fiscation when they are found conveying to an
enemy arms or ammunition in however small
quantities, or other articles of contraband
amounting to more than half the entire cargo
(Regulations in regard to Naval Prizes, § 11).
This severity is unauthorised by International
Law unless ship and goods belong to the same
owner, and neutral powers would probably have
something serious to say if it were habitually
enforced against them. But when the carriage
X
237
THE ALLANTON
of contraband is accompanied by deceit and
fraud, our English practice is to confiscate ship
as well as cargo; and we could not therefore
have objected to the condemnation of the
Allanton, had she been using a pretended
destination and false papers to conceal the
intention to convey coals to the fleet of
Russia's enemy.
But the inferences of the
Vladivostock Court to this effect rest upon the
slenderest grounds, as will be apparent when
we examine the facts of the case.
As we have already seen, a hostile destina-
tion is essential in order to constitute the
offence of carrying contraband. It was therefore
necessary to show that the captured vessel was
voyaging to a belligerent terminus. In order to
do this, much was made of the fact that the
Allanton when seized was shaping a course
to the west of Japan, instead of going out
into the Pacific along the east coast. From
this it was inferred that she was on her way
to a hostile port or a hostile fleet. But it
appears that she was following the usual route
taken by merchant vessels on a voyage from
238
CH.
WAR AND NEUTRALITY
Muroran to Singapore. By so doing she saved
about 200 miles in distance, and from two to
three days in time, the currents being much
more favourable than on the alternative course.
Moreover, the advantage in the matter of safe
navigation lay with the route she took. The
contention of her judges, that it brought her
into the theatre of war, tends rather to establish
her innocence than her guilt; for it stands to
reason that a shipmaster who knew he was
engaged in an unlawful traffic would not take
his vessel into that region of sea where she was
most likely to encounter cruisers who had every
right to capture her. There are ample reasons
why the Allanton should have been where she
was found by the Russian squadron. So strong
are they that her captain might have been
accused of a grave breach of duty had he
taken her elsewhere. The direction of the
voyage is not only consistent with a destination
to Singapore, but strongly indicates that the
vessel was proceeding to that port.
It is difficult to repress a smile when reading
the elaborate sentences in which the Vladivostock
X
239
THE ALLANTON
He had no
tribunal sets forth the arguments which led it to
conclude that a Japanese lad of sixteen was in
charge of a cargo of 6,500 tons of coal as agent
for the Japanese company which had shipped it.
Even in Japan people are not placed in respon-
sible positions at that early age. The Court
commented with perfect solemnity upon the
absence of documents in his case.
certificate to prove his identity, no passport to
give him permission to travel, and no voucher
to show that he had served his time in the army
or been released from military obligations. Ap-
parently he told some story about embarking on
the Allanton in order to go to America and com-
plete his education. This tale is said to have
been confirmed by the captain; but, as this
officer neither spoke nor understood the Russian
language, and complains bitterly of the disadvan-
tage he was under during the trial owing to the
absence of an interpreter, it is exceedingly likely
that his statements were misunderstood. Whether
that was so or not, the Court disbelieved the
American story, which certainly was not very
probable, if told, and very likely was not told at
240
CH.
WAR AND NEUTRALITY
all. But having rejected one improbability, they
immediately invented another, and magnified the
Japanese lad into an important personage, rather
than accept the simple explanation that he was
an obscure member of the ship's company. The
master and the owner both testify that he was
no other, and no greater, than a cabin-boy!
Another matter which exercised the ingenuity
of the Prize Court was the absence of entries in
the Official Log-Book from the moment the steamer
left Hong-Kong. From this it drew the inference
that the ostensible destination was not the real
one. The logical connection between the evi-
dence and the conclusion is hard to find. A
better explanation of the admitted fact is that,
according to British law, entries are to be made
in the Official Log-Book only on occasions re-
quired by the regulations of the Board of Trade.
The captain asserts that no such occasion arose
after the departure of the vessel from Hong-
Kong. He adds, however, that in the Ship's
Log, which is kept by the master for the informa-
tion of the owner, entries were duly made up to
the moment of capture, and full information was
X
241
THE ALLANTON
given as to all important matters connected with
the vessel. This book showed that she was des-
tined for Singapore, and its evidence was corro-
borated by the oral testimony of members of
the crew, and by papers found on board, such as
copies of the Charter-Party and the Bill of Lading,
the Certificate of Clearance from Muroran, and
a letter from the owner. No particle of written
evidence was discovered which pointed to any
other destination; and yet in the face of all this
the judges decided "that on the second trip
Singapore was no more the destination of the
Allanton than Hong-Kong was on the first trip."
The Court concluded further that the cap-
tured cargo was enemy property. The evidence
pointed the other way; for the coal was con-
signed to Messrs. Paterson, Simons & Co., of
Singapore, who are a British firm, and goods
once started on a voyage are held to be the
property of the neutral consignee, if proof exists
that the enemy consignor has parted with his
interest in them. In this case the proof was
abundant. But even if the cargo in question
had been enemy property, by the second Article
R
242
CH.
WAR AND NEUTRALITY
of the Declaration of Paris it would have been
safe under the neutral flag, unless it could be
regarded as contraband of war. Contraband,
however, it certainly was not, provided that it
was really on its way to a neutral firm in a
neutral port.
We are thus thrown back upon
the point of destination; and those who have
followed the arguments already brought forward
will be at no loss as to the proper conclusion.
On the one hand, there is clear and definite
evidence; on the other, mere surmises. In the
whole history of Prize Court procedure it would
be hard to find a case where an enemy destina-
tion has been inferred on more slender grounds.
Had the inference been much stronger, the facts
and documents which point to the neutral port
of Singapore as the real terminus of the voyage,
would have sufficed to upset it. But when we
find nothing better adduced in support of it than
the mistake as to the vessel's course, the exalta-
tion of a cabin-boy into an important commercial
agent, and the perversion of the facts connected
with the ship's papers, our surprise deepens into
indignation.
X
243
THE ALLANTON
There remain questions connected with the
allegation of fraud and acquisition of enemy
character on the part of the owner of the vessel.
As before stated, it is almost impossible to tell
from the text of the judgment whether its asser-
tions on these heads, and the quotations it con-
tained from British sources, were meant to refer
to the first trip of the Allanton or the second.
We have already dealt with them as connected
with the former (see pp. 229-234); and it is only
necessary to say here that the latter was equally
free from fraud, and that Mr. Rea was no more
'engaged in enemy navigation" on the second
occasion than he was on the first. In neither
case does the tribunal profit by its unfortunate
attempt to invoke British authority in favour of
a decision which no British Court would have
dreamed of giving. There was no ground for
the condemnation of the cargo. The condemna-
tion of the ship was outrageous. We may hope
that the Admiralty Council at St. Petersburg will
reverse a judgment which reflects little credit upon
Russian jurisprudence. In the list of members
of the Council appears the honoured name of
<<
244
CH.
WAR AND NEUTRALITY
F. de Martens, and the presence of the world-
famed jurist should afford a sufficient guarantee
for the observance of the law of nations. But if
the highest Court of Appeal confirms the de-
cision of the inferior tribunal, the duty of press-
ing for compensation and indemnity will fall
upon the British Government.
We may hope and believe that our rulers
will see justice done to our fellow-subjects who
may suffer from the unlawful action of either
belligerent. But the pretensions of the Russian
tribunal in the case of the Allanton go beyond
the infliction of grave injustice upon a British
ship-owner. There is a matter at stake far more
important than the wrongs of an individual.
The carrying trade of the civilised world is
in danger. Since the present system of mari-
time capture took shape, a Prize Court here
and there has sometimes proved itself weak
in learning and strong in bias. But the harm
suffered in consequence by a few merchants
and shippers has been a small thing compared
with the destruction occasionally wrought on
neutral trade owing to the overgrown preten-
X
245
THE ALLANTON
sions of belligerents in matters connected with
commercial policy. We shall be face to face
with such an emergency if the action of the
Vladivostock Court in condemning the Allanton
for carrying coals to Sasebo is not overruled by
the Court of Appeal and disavowed by the
Russian Government. It will then come to a
claim on the part of Russia to confiscate on the
return voyage neutral vessels which carried con-
traband on the outward voyage. We have seen
(see pp. 226, 227) that International Law gives
no countenance to such a claim, and indeed em-
phatically repudiates it. More than a hundred
years ago the greatest of British Prize Court
judges endeavoured to establish one exception
to the rule that the delivery of the contraband
goods brings to an end all liability in respect of
them. But though the decisions of Sir William
Scott in the cases of the Rosalie and Betty and
the Nancy were based upon clear proof of the
grossest fraud in connection with the outward
voyage, his ruling was never followed outside
Great Britain. The courts and jurists of
America repudiated it.
It found no favour on
246
CH.
WAR AND NEUTRALITY
the continent of Europe; and few British
authorities would uphold it at the present day.
Even the learned and cautious Hall says of it
that "while undoubtedly severe, it does not
appear to be a necessary deduction from the
general principles governing the forfeiture of
contraband cargoes (International Law, 5th
ed. p. 672). We may therefore regard the
statement that the deposit of the contraband
terminates the offence of carrying it as a rule
without exception. If the Russian claim to
disregard it is sustained, the consequences will
be most serious, not only to British trade, but to
the shipping of the whole world. On a rough
computation, based upon the figures for 1902,
out of a total Japanese import trade of about
£29,000,000, cargoes to the value of fully
£21,000,000 would have been liable to con-
fiscation if the present Russian list of contra-
band goods is allowed to hold the field, and the
present Russian determination to treat all for-
bidden goods as absolutely contraband is not
overcome. This amounts to a practical prohibi-
tion of neutral import trade with Japan, which
X
247
THE ALLANTON
would be serious enough in all conscience if it
stood alone. But neutral liability is doubled,
when the right is assumed to confiscate on the
return voyage if forbidden transport took place
in connection with the outward voyage. The
various claims put forth by Russia in the matter
of contraband amount, when taken together, to
little less than a prohibition of all sea-borne
trade, export as well as import, between her
enemy and neutral powers. It is impossible for
an empire whose own commerce with Japan
amounts to nearly a third of the whole external
trade of the island realm, and which carries in
addition a large portion of the goods sent and
received by other countries, to sit down quietly
under such an infliction. And in this connec-
tion it is comforting to notice that the interests
of the United States come next in importance
to our own.
Among the customs of maritime warfare, those
which refer to the methods to be used by belli-
gerent cruisers in effecting captures are not the
least important. Certain rules of procedure are
laid down for their guidance. They must hoist
248
CH.
WAR AND NEUTRALITY
their true colours before they stop the vessel
they desire to search, though they may chase
under false colours. They must signal to the
other ship to stop, and if ordinary signals are dis-
regarded they may fire, first blank-guns, and finally
a shot across her bows. Should these measures
fail, then, and only then, has the commander
of the cruiser a right to use force. If resistance
is made to search, he may overcome it by arms;
and the fact that it is made justifies the capture
and condemnation of the vessel, even though in
all other respects its voyage was perfectly innocent.
Should the vessel be sunk in the process of beating
down its resistance to lawful search, no offence has
been committed. It has brought its fate upon
itself by its unreasonable and unlawful conduct.
This should be remembered in all discussions
upon the various aspects of our present controversy
with Russia. Neutral merchantmen have duties
as well as rights, and one of them is to submit
quietly to belligerent search, inconvenient and
annoying though it be. On the other hand,
it is the duty of belligerent cruisers, in the
words of our Admiralty Manual, "to conduct
X
249
METHODS OF SEARCH
the visit in a manner as little vexatious as
possible." Should the examination of the
papers which all merchantmen have to carry
reveal any grounds of suspicion, the cargo of
the visited vessel may be overhauled and an
examination made of the goods on board. If
this examination confirms the suspicions already
excited, or raises new ones, the vessel may
be detained. She is now a prize. A A prize
crew should be put on board, and she should
be sent before a Prize Court for trial. Every
maritime belligerent establishes such courts at
various places in his dominions. The judges
are supposed to decide upon the validity of the
captures according to International Law; but
they are, of course, bound to enforce any legisla-
tive acts of the state to which they belong;
and if such decrees are contrary to the law
of nations, the responsibility towards other
states whose subjects may suffer from them
rests upon the state which made them, and not
on the judges which administer them. But
though the law of nations provides for a judicial
decision upon captures made at sea in time of
250
CH.
WAR AND NEUTRALITY
war, it recognises that occasions may occur
when cruisers will find it impossible to send
their prizes in for adjudication. Sometimes the
vessel is unseaworthy. Sometimes it is im-
possible to spare a prize crew. It may happen
that the cruisers of the enemy swarm in the
neighbourhood, or that all the accessible ports
are blockaded by his fleets.
In such cases
destruction of prizes at sea, after providing for
the safety of those on board, is recognised as
a lawful though irregular proceeding, always
provided that they are vessels of the enemy.
This point is well illustrated by the case of
the Knight Commander, which is so important
that it will be necessary to give it in some
detail.
On July 24 the Vladivostock squadron
stopped the British merchant steamer Knight
Commander about seventy miles from Yoko-
hama. She had sailed from New York on May
6, and was carrying a mixed cargo for Yoko-
hama and Kobe. The Russian official account
(C
says she was chartered from America to
Japan," and implies that the goods she carried
X
251
THE KNIGHT COMMANDER
But
were the property of American citizens.
a Reuter's telegram from Washington, dated
August 9, declares that "no proof of the
American ownership of a single pound of the
Knight Commander's cargo has been produced
at the State Department." The matter is im-
portant from the point of view of compensation,
but not otherwise, seeing that the goods, as well
as the ship which held them, were undoubtedly
neutral. A hurried examination of the vessel's
papers and her master convinced the Russian
commander that she carried contraband of war,
the bulk of her cargo being railway material
and machinery. He therefore ordered her
officers and crew to come on board his cruiser.
When he had thus provided for the safety of
human life, he sent the captured vessel and all
that she contained to the bottom, the reasons
assigned for this drastic treatment being "the
proximity of an enemy's port, the lack of coal
on board the vessel to enable her to be taken
into a Russian port, and the impossibility of
supplying her with coal from one of the Russian
cruisers owing to the high sea running." It
252
CH.
WAR AND NEUTRALITY
The
is doubtful whether these were sufficient in
themselves to absolve the captor from the obliga-
tion to send his prize in for adjudication, even
if she had been one which could lawfully be
destroyed at sea in a great emergency. Yoko-
hama was nearly a hundred miles distant.
Knight Commander might have been towed part
of the way to Vladivostock, if her own coal
was insufficient for the entire distance. There
was a reasonable prospect that
that the weather
would moderate before long, and allow the re-
plenishing of her bunkers from those of her
escort. But waiving this point, we will dwell
for a moment on the question of contraband,
and then go on to deal with the main issue,
which is the legality or illegality of the destruc-
tion at sea of neutral vessels by belligerent
cruisers.
According to the Russian Admiral Jessen,
the railway material carried by the Knight
Commander brought down upon her well-merited
destruction, since it formed the bulk of her
cargo, and was undoubtedly contraband of war.
We may admit the fact and dispute the con-
X
253
THE KNIGHT COMMANDER
clusion.
Railway plant is pre-eminently one of
those things which cannot be condemned or pro-
nounced innocent on mere inspection. Accord-
ingly it would be regarded as non-contraband by
the predominant school of continental jurists,
while British and American authorities would
look to its probable use, as determined by its
destination and other circumstances.
We are
not told whether the incriminated goods were
destined for one of the Japanese military rail-
ways, or for the ordinary traffic of the country.
Yet in the first place we should admit that they
were contraband, while in the second we should
deny it.
Russia draws no such distinctions.
As we have seen in Chapter VII., she not only
sets forth a portentously long list of contraband
articles, but also claims to condemn them all,
if seized on their way to an enemy destination.
Herein lies the sting of her present procedure.
Neutrals could put up with indiscriminate con-
fiscation, if the list of contraband was short and
confined to articles of direct and immediate use
in warfare. They could also put up with a long
list of contraband, if a distinction was made in
254
CH.
WAR AND NEUTRALITY
it between arms and munitions of war, and what
is used to make them, on the one hand, and on
the other articles useful indifferently for warlike
and peaceful purposes, the latter being confis-
cated only when the surrounding circumstances.
showed that they were meant for the armies and
navies of the enemy. Still less would neutral
states have ground of complaint if the British
practice were followed, and the full market price,
plus 10 per cent as a fair mercantile profit,
were paid to the owners of the doubtful goods.
No difficulties arose in the Spanish-American.
war of 1898. The United States drew the
British distinction between absolute and con-
ditional contraband. Spain regarded all goods
on her list as absolutely contraband; but then
her list was short. It said nothing about rail-
way plant and material, which did indeed appear
in the American list, but among the goods con-
ditionally contraband, which, we may add, is the
place it occupies in the list to be found in our
own Admiralty Manual. In this respect, as in
so many others, Russia is following a purely
retrogressive policy. She is endeavouring to
X
255
THE KNIGHT COMMANDER
reintroduce severities which have been banished
from the International Code for many decades.
But, even if we assume for the sake of argu-
ment that the bulk of the cargo of the Knight
Commander was of a highly contraband character,
the case for Russia is by no means established
thereby. The most important question of all
remains behind. Was it a lawful act to sink
the ship, instead of bringing her in for trial
before a Prize Court? To this question but one
answer is possible, and it is an unhesitating "No."
We have already discussed the excuses put for-
ward for the deed, and found them scarcely
sufficient had the vessel sunk belonged to an
enemy. But she was neutral; and International
Law draws a very deep and broad distinction
between the two cases. Between enemies the
appeal is to force, subject of course to such
limitations as the laws of war place upon its
exercise. For many reasons it is desirable that
the legality of all captures made at sea should
be determined judicially. But if this is impos-
sible, an enemy has no grievance when his pro-
perty is destroyed, seeing that force has already
256
CH.
WAR AND NEUTRALITY
decided against him and divested him of all
rights in it by the fact of capture. But between
a belligerent and a neutral force is not conclusive.
There is always the further question whether it
was lawful force, lawfully exercised. The private
neutral owner is entitled to a trial, and his state
is bound to see that he receives one. If it is
impossible, his property should be released. His
right to it remains till trial and condemnation,
and when they cannot be had, the continued
custody of it by the belligerent is unlawful, and
its destruction an outrage. His proper course is
to release it. The Maritime Code of the Institut
de Droit International gives permission for the
destruction of an enemy ship only, and before
allowing such a severity insists upon the exis-
tence of emergencies greater than those which in
the opinion of Admiral Jessen justified the sink-
ing of a neutral prize (Tableau General, pp. 205,
206). Great Britain in her Admiralty Manual
(p. 86) definitely orders the release of a neutral
ship if she is unseaworthy, or if a prize crew
cannot be spared to navigate her. The Prize
Law of Japan, as given in Appendix VII. of
X
257
THE KNIGHT COMMANDER
Professor Takahashi's excellent book, Inter-
national Law during the Chino-Japanese War,
contains a similar provision.
In following the opposite course Russia runs
counter to the opinion of the civilised world.
Section 21 of her Regulations in regard to Naval
Prizes, adopted in 1895, and Section 40 of her
Instructions to her naval officers, issued in 1900,
describe the circumstances in which captured
vessels may be burnt or sunk, without any hint
at a distinction between the vessel of a neutral
and the vessel of an enemy. Her officers were
but obeying their own orders when they de-
stroyed the Knight Commander; but nevertheless.
they were committing a gross breach of Inter-
national Law, for which we must hold their
Government responsible. A great commercial
nation like England cannot for one moment
admit that her merchantmen may be sent to the
bottom, innocent or guilty, whenever the com-
mander of a belligerent cruiser, acting on strange
notions as to contraband, finds it inconvenient
to spare a prize crew. In far rougher times.
than the present her courts have given damages
S
258
CH.
WAR AND NEUTRALITY
(C
to neutrals whose ships were destroyed by her
cruisers. The greatest of her Prize Court judges
declared that such destruction could only be
justified to the neutral, even when it was of the
gravest importance to the captor's own State,
'by a full restitution in value "; and one of the
greatest of her publicists wrote a few years ago
that “to destroy a neutral ship is a punishable
wrong; if it cannot be brought in for adjudica-
tion it can and ought to be released" (Hall,
International Law, 5th ed. p. 735). The
precedents adduced in Russia's favour are no
precedents at all. Those who have brought
them forward betray a curious incapacity to see
the point of the case against her. It is not that
she destroyed prizes at sea, but that she destroyed
a neutral prize. The confederate cruiser, Alabama,
did undoubtedly burn and sink during the
American Civil War a number of merchantmen
she had captured; but they were all Federal
merchantmen, and her justification lay in the
fact that she could not take them into a
Southern port owing to the strictness of the
Northern blockade. The supposed parallel
X
259
THE KNIGHT COMMANDER
breaks down utterly. It is satisfactory to learn
on the authority of the Secretary of State for
Foreign Affairs that "the language of the
Russian Government justifies us in hoping that
these acts of destruction of neutral prizes are
not likely to be repeated" (Speech in House of
Lords, August 11). It will be still more satis-
factory to know that this assurance is general
in terms, and that full compensation has been
paid both for the ship unlawfully destroyed
and the cargo sent to the bottom without suffi-
cient proof that it was really contraband of war.
The fate of the Knight Commander is not the
only instance of the destruction of neutral mer-
chantmen. There are two others. On July 16
the British steamer Hipsang was fired upon in
Pigeon Bay not far from Port Arthur. Eventu-
ally she was struck by a torpedo fired from a
Russian destroyer. The greater part of her
crew were rescued, but some were wounded and
others drowned. There is a direct conflict of
evidence with regard to the conduct and treat-
ment of the vessel. The Russian captain
declares that she obstinately refused to stop, and
260
CH.
WAR AND NEUTRALITY
fired back at the destroyer. The English captain
affirms that he hoisted his flag and stopped his
engines directly he heard a shot. It is impos-
sible to decide between assertion and assertion;
but it may be noted that a Naval Court held
at Shanghai on August 22 decided without
reserve that the steamer behaved correctly. If
this be true, the attack on her, with the con-
sequent loss of human life, was a wanton outrage,
far worse than the sinking of the Knight Com-
mander. On the other hand, if the Russian
account proves to be correct, the obstinate refusal
of the Hipsang to submit to lawful search, and
her futile attempt at resistance, amply justify the
force used against her, and absolve those who
used it from blame for the result. A similar
conflict of testimony has occurred in the case of
the German vessel Thea, which was captured by
the Vladivostock squadron on July 26. She
was navigated by a Japanese crew, carried a
cargo of fish, and is said to have been engaged
in the Japanese coasting trade, and to have
enjoyed all the privileges accorded to Japanese
merchantmen. This last allegation is denied in
X
261
THE HIPSANG
Berlin; while it is admitted that she had availed
herself of the provisions of a Japanese decree,
dated February 2, 1904, opening the coast-
ing trade to ships of all nations. No opinion
of any value can be formed without further
evidence. It may be that she was justly
regarded by the Vladivostock Prize Court as
having been incorporated in enemy commerce
and subject to enemy control, in which case her
neutral character would undoubtedly have been
forfeited, and she would have acquired the dis-
abilities of an enemy vessel, including the
liability to be sunk if she could not be taken
in for adjudication. But when we remember
the previous exploits of the tribunal in question,
we shall hardly be likely to fall into the error of
attributing too much importance to its decision.
It may be doubted whether the nation under-
stands the vast importance of the questions
discussed in the preceding pages. On each
separate matter as it arose public opinion was
strongly excited, sometimes to an undue extent.
But the cumulative effect of all the Russian pre-
tensions taken together has not as yet been
262
CH.
WAR AND NEUTRALITY
realised. Unless they are withdrawn or curbed
other maritime nations will put forth similar
claims; and we, as the greatest of the trading
peoples, shall be the chief sufferers. When we
are neutral, the extended list of contraband, and
the arbitrary increase in the penalties for carry-
ing it, will cripple our external commerce.
When we are belligerent, the enemy, if he can
place a few cruisers on the ocean, will intercept
our supplies of food and raw material, even
when carried in neutral vessels to purely com-
mercial ports.
A war of starvation will be
waged against the power whose navy is too
strong to be overcome in open battle. Not
only is our own security menaced, but the
welfare of the civilised world also. Instead of
advance we see everywhere retrogression-days
of grace shortened, the right of search used to
the fullest extent without regard for the interests
and susceptibilities of neutrals, no immunities
granted to mail-steamers, the law of contraband
so extended that nearly all trade with the enemy
is brought within it, and that at a time when
the blockade of one of the least of his ports is
X
263
RUSSIAN PRETENSIONS
utterly out of the question, the penalties on
neutral vessels engaged in forbidden acts arbi-
trarily increased, till few can feel secure against
destruction at sea without trial and without
redress, neutral sovereignty flouted wherever it
can be done with impunity, protests disregarded,
concessions evaded, and pledges broken. And
now, as if all this were not enough, comes the
alleged attempt to differentiate against Great
Britain in the treatment accorded to neutrals.
The facts are disputed; and the shipping statistics.
of the whole Eastern trade will not enlighten us.
It is the external commerce of Japan which is
in question; and in 1902, of the non-Japanese
ships engaged in it 1639 were British, and 1298
belonged to other nations, 382 being German.
We should, therefore, expect British and German
ships to be stopped in the ratio of rather more
than 4 to 1, whereas the actual proportion is
nearly 8 to 1. But the mere numbers count for
little or nothing. What is much more signifi-
cant is the difference of treatment and the
difference of insurance rates. According to the
information received up to the end of August,
264
CH.
WAR AND NEUTRALITY
the German steamer Arabia and part of her
cargo were released by the Vladivostock Prize
Court, the flour and railway material she carried
being condemned, while the British steamer
Calchas, with her entire cargo of flour and
lumber, has been confiscated without trial. It
was said on August 13 that war risks on cargo
shipped for Japan in German vessels were insured
at 5s. per cent, while similar cargoes in British
vessels were charged from 20s. to 40s. per cent.
Possibly further knowledge may necessitate a
modification of some of these statements; but
there seems to be no doubt about it that all
through August British shipping companies were
refusing to carry goods to Japan, while their
German rivals were eagerly taking all that was
offered, and increasing their services to meet the
demand. Our ship-owners are a singularly clear-
headed and enterprising race of men; and though
they may have been the victims of panic, they
are the last persons we should suspect of any-
thing of the kind.
Let us look at the matter in the light of our
knowledge of ordinary human nature. On the
X
265
RUSSIAN PRETENSIONS
one hand, we have the effusive sympathy with
Russia expressed by the German Emperor, and
the palpable neglect of the German Government
to enforce its neutral obligations, and stop the
original departure from its ports of the swift
cruisers bought in Germany by Russia, and now
fitted out as vessels of war to interfere with
neutral commerce. Add to this that in the
remonstrances about the seizures of the Prinz
Heinrich the inconvenient question of the status
of the Volunteer Fleet was not raised. On the
other hand, it is notorious that British sym-
pathies are almost entirely on the side of Japan,
and that public opinion in Russia has been, and
to some extent still is, stirred up against us as
allies of Russia's enemy, and responsible (so it is
said) for the outbreak of the war. What more
natural than that everything German should be
treated with indulgence, and everything British
with severity! We need not suppose there is
any express agreement to that effect. Such
matters are not reduced to writing. A hint and
a shrug of the shoulders are all that is required,
and the thing is done.
266
CH.
WAR AND NEUTRALITY
Our Government should watch carefully, and
with no preconceived idea that the charge of
preference for Germany must be mistaken. If
they find that discrimination is used against us,
then it will be one of their chief duties, as Mr.
Balfour said to the ship-owners' deputation on
August 25, "to see that absolute equality of
treatment was meted out to British shipping as
compared with foreign shipping." The know-
ledge that we are determined and alert will
probably be enough to check any tendency in
the opposite direction. Belligerents are bound
to treat neutrals alike, just as neutrals are bound
to treat belligerents alike. Sympathies may be
what they will; but actions must be impartial.
To the right of search we must submit, even
though we may be convinced that the conditions
of modern commerce and modern warfare will
before long necessitate its modification. But we
may demand that it shall be exercised without
favour, and with as little annoyance as possible
to neutral trade. Russia seems at last to be
awaking to the fact that behind the courteous
wording of our remonstrances lies a determination
X
267
RUSSIAN CONCESSIONS
to see that they are effective. She has agreed
that no neutral trading ships shall in future
be sunk by her men-of-war, and that vessels of
her Volunteer Fleet which have passed the Bos-
phorus and Dardanelles as merchantmen shall
not be used as cruisers. She has also appointed
a commission to study the question of contra-
band; and we are encouraged to believe that it
will decide in favour of the views set forth by
our Government and the Government of the
United States in the protests which we rejoice
to find they have made on common grounds.
There are other questions, such as the restriction
of the area of search and the concession of im-
munities to mail-steamers, on which Russia might
gracefully yield to the public opinion of the
civilised world. But where we have put forward
demands as of undoubted right, she must under-
stand that there is but one alternative to grant-
ing them. The nation stands solid behind its
rulers in the determination to have its food
supplies freed from the menace of destruction,
its trade secured from new and barbarous
penalties, and the honour of its flag upheld.
CHAPTER XI
DID JAPAN VIOLATE KOREAN NEUTRALITY ? THE
POSITION IN INTERNATIONAL LAW OF KOREA
AND
MANCHURIA.
RESHITELNI
THE CASE OF THE
IN the present war, as far as it has gone, fighting
has taken place on the high seas, in the terri-
torial waters of the belligerents, in the Liau-
tung peninsula, in the empire of Korea, and
in the province of Manchuria. Little need
be said about the first two. In the dis-
cussion as to marine mines we dealt with their
use for warlike purposes, and saw that the pro-
ject of an extension of territorial waters beyond
their present somewhat narrow limits derived
additional force from a consideration of the
mining and countermining operations of belli-
gerent squadrons. We may point out here that
268
CH. XI KOREAN NEUTRALITY
269
supermarine as well as submarine methods of
warfare enforce the same lesson. With the
marine league as the ordinary distance and the
ten-mile rule for bays and estuaries, it is quite
possible, owing to the enormous range of modern
artillery, that a great naval battle may be fought
on the high seas, and yet shipping in some
neutral port, or life and property on neutral land,
may be seriously injured by stray projectiles. It
is true that the question of the advisability of
extension does not turn on these considerations
alone. We do not profess to discuss it here,
but merely to point out that the increase in the
effectiveness of armament is an important factor
in the problem. With the remark that, though
differences of opinion exist as to the proper
extent of territorial waters, no one doubts that
those of the belligerent powers, as well as the
high seas, are lawful battle-ground, we pass on to
the consideration of the Liau-tung peninsula as
a portion of the field of hostilities.
For our
What is the Liau-tung peninsula ?
present purpose we shall define it as that
territory which was made over to Russia by
272
CH.
WAR AND NEUTRALITY
Port Arthur, Germany of Kiao-chau, and Great
Britain of Wei-hai-Wei, foreign consuls in those
places could no longer exercise the special
powers granted to them by treaty with China.
The territories in question were held to be
under the full and exclusive jurisdiction of the
states to which they were leased, whose authority
was deemed supreme while the leases remained
in operation. Further, we must remember that
the administration passed entirely to the lessee
states, who not only carried on the government,
but erected fortifications, established garrisons,
and even dealt with the Chinese inhabitants
as resident aliens. Bearing these things in
mind, we are forced to the conclusion that a
lease in international transactions is not the
commonplace and innocent affair we know so
well in dealings with private property. It
amounts, in fact, to a cession of the leased
territory for a limited time, and with a strong
probability that the period mentioned in the
lease will be prolonged indefinitely if the
lessee - state finds it convenient to stay on.
With regard to it, law and fact harmonise but
XI
273
KOREAN NEUTRALITY
badly, and the difficulty arises from the useful
diplomatic habit of veiling harsh acts with
pleasant terms. The words which reserve the
sovereignty of the lessor are fine phrases used
for the purpose of disguising the reality of
territorial transfer. They may be likened to
the jam which renders palatable the child's
powder, or the courteous formula which conceals
a social rebuff. We regret our inability to
accept the invitation we regard as an im-
pertinence. We are the obedient servants of
the letter-writer we wish to keep at arm's-length.
In the society of nations there are similar forms,
and the lease is one of them. As a rule words
describe things. In diplomacy they are some-
times used to describe—well, other things!
If we apply these considerations to the posi-
tion of Russia at Port Arthur and Ta-lien-wan,
otherwise Dalny, we see at once that the powers
she exercised there, from the moment they came
into her possession six years ago to the outbreak
of the present war, were powers of sovereignty
and nothing else. She held dominion over the
whole district; and accordingly when hostilities
T
270
CH.
WAR AND NEUTRALITY
China in 1898, and in the following year
erected into the province of Kwang-tung by a
Russian Imperial Ukase. The first Article of
the agreement of transfer runs thus:
<<
The Emperor of China agrees to lease to
Russia Port Arthur and Ta-lien-wan, together with
the adjacent seas, but on the understanding that
such lease shall not prejudice China's sovereignty
over this territory."
وو
The lease was to subsist for twenty-five years,
with power of extension by common accord. It
included not only the two places named, but a
considerable district to the north-east of them.
The powers conveyed by it are spoken of
as those of " usufruct in the official com-
munication to the Russian press. Now, in
Roman law usufruct was the right of using and
reaping the fruits of things belonging to others,
without destroying their substance. As to a
lease, we are familiar in our own law with the
powers of lessor and lessee. The matter is
simple enough when such things as a house or
a flock of sheep are concerned.
But how does
it work out when we have to deal with state
XI
271
KOREAN NEUTRALITY
authority? Who has jurisdiction in a leased
territory, the state which grants the lease or
the state to which the lease is granted? Or
have they concurrent authority therein? If
jurisdiction belongs to the grantor state, what
are the rights which have been transferred to
the grantee by the lease? If the grantee can
exercise jurisdiction, what rights remain to the
grantor whose sovereignty is supposed to be
unimpaired? If both states share jurisdiction,
where is the boundary line to be drawn between
their respective spheres? There is no limit to
the legal conundrums that might be invented
by a little ingenuity. But in order to solve
them satisfactorily we must qualify the theories
of jurists by considerations drawn from the
hard facts of international intercourse. And,
after all, old theories which fail to explain
new facts are themselves in need of modifica-
tion. Law was made for men and states, not
men and states for law.
Turning then to facts, we note an agreement
of opinion among all the powers except Japan,
that when once Russia had obtained a lease of
274
CH.
WAR AND NEUTRALITY
began she used it without limit or restraint for
warlike purposes, and was subject in it to the
onset of her foe. It is worthy of remark that,
though she denounced Japan's first attempt on
Port Arthur as treacherous, she never maintained
that the place, and the leased territory generally,
were free from attack, as being under the
sovereignty of China and therefore neutral
ground. There can be no doubt that the whole
world looks upon Port Arthur and Dalny as
Russian territory; and unless the whole world
is wrong, Russia was right in filling the district
and its waters with troops and warships, and
Japan was right in doing her utmost to destroy
or capture them.
We
The next matter for discussion is the legal
position of Korea in relation to the war. It is
curious and anomalous in no small degree.
cannot even begin to understand it without
glancing back at the previous history of the
country. It has already (see p. 9) been pointed
out that by the Treaty of Shimonoseki, which in
1895 ended the war between China and Japan,
the former power was made to recognise "the
ΧΙ
275
POSITION OF KOREA
full and complete independence and autonomy
of Korea." Taking this as our starting-point, we
go on to another important diplomatic document,
the famous Treaty of Alliance for five years
between Great Britain and Japan which was
signed in 1902. Not only does it set forth
the limited nature and purpose of the alliance,
but it also gives the reasons which led the
high contracting parties to become allies. They
felt themselves to be specially interested in
maintaining the independence and territorial
integrity of China and Korea, and in securing
equal opportunities therein for the commerce
and industry of all nations. Having these ends.
in view, they "mutually recognise the inde-
pendence of the two states, and "declare
themselves to be entirely uninfluenced by any
aggressive tendency in either country." So far
all is noble. We seem to be reading a generous
guarantee of free and unfettered national
existence to two self-respecting and patriotic
states. But the vision of the allies as fairy
godmother to a pair of beauteous but persecuted
international Cinderellas vanishes at the next
276
CH.
WAR AND NEUTRALITY
sentences of the first Article of the treaty. We
are back again in the world of the selfish and
the commonplace when we read:-
"Having in view, however, their special
interests, of which those of Great Britain relate
principally to China, while Japan, in addition
to the interests she possesses in China, is
interested in a peculiar degree politically, as well
as commercially and industrially, in Korea, the
High Contracting Parties recognise that it will
be admissible for either of them to take such
measures as may be indispensable in order to
safeguard those interests if threatened either by
the aggressive action of any other Power, or by
disturbances arising in China or Korea, and
necessitating the intervention of either of the
High Contracting Parties for the protection of
the lives and property of its subjects."
So, after all, the allies have a care for their
own interests, and the independence of China
and Korea is conditioned thereby! If the
proceedings of other powers endanger these
interests, the cry of "Hands off" may be raised
against them. If local disturbances arise, either
XI
277
POSITION OF KOREA
of the High Contracting Powers may intervene
to protect its subjects. Then follow stipulations
for mutual aid in case either of the allied states
should be involved in war with more than one
power, in defence of the interests just described.
Clearly the independence recognised in the
treaty is of a peculiar kind. The intervention
of the allies is not held to be inconsistent with
it. They may take what measures they please,
without regard to the wishes of the Chinese
or Korean Governments, to foil the aggressions
of other powers or put down local disturbances.
Have we not here another example of the
diplomatic use of words in non-natural senses?
It is impossible to blame either Great Britain
or Japan. Our stake in the commerce of China
and the Far East is so enormous that we have
ample justification for strong measures against the
policy of grab and exclusion which finds favour
with some of our neighbours. They are constantly
putting pressure to bear on China against us,
and we must of course reserve the right to put
on counter-pressure, while equally of course we
must disclaim any interference with so sacred a
278
CH.
WAR AND NEUTRALITY
thing as national independence. Japan's interest
in preventing the preponderance of Chinese or
Russian influence in Korea is vital. If we bear
in mind all these things we shall look upon the
stipulations of the treaty as reasonable, while at
the same time we recognise that its wording on
the subject of the independence of Korea gives
colour to the charge made against Japan of violat-
ing, when it suited her own purpose, the rights
she was so anxious to safeguard against other
powers. Technically there is some ground for
the accusation. Practically Korea never has
been, and was never meant to be, fully independ-
ent in the sense given to the term by inter-
national jurists. Russia, while using against the
proceedings of the Japanese Government argu-
ments based upon the constant verbal recognition
of Korean independence, did not scruple to put
every pressure short of actual war upon the
Court of Seoul. There was a diplomatic duel
between her and Japan on Korean soil from
1895 to 1904, when the conflict of arms suc-
ceeded the conflict of arts. It was a fight for
permanent and preponderating influence, and
X1
279
POSITION OF KOREA
whichever side got the better of it for the
moment, Korea was never really independent.
As war became imminent the Emperor and his
Court fell into a condition of ludicrous distress.
They loved neither side, and dared not offend
either. In their perplexity they proclaimed the
neutrality of Korea in January, though they
had no means of making it effective should the
anticipated war break out. A small force of
Japanese infantry was in the capital, and Cossack
patrols paid scant respect to the integrity of the
northern frontier. It was clear that, if war
came, the country would be the scene of
belligerent operations, and power over it the
prize of the victor.
Things were in this condition when on
February 8 the squadron of Admiral Uriu
steamed into the harbour of Chemulpo and com-
menced to disembark Japanese troops. Early the
next morning the Admiral requested the captain
of the Russian cruiser Variag to leave the har-
bour, and informed him that, if he did not, he
would be attacked. Thereupon the commanding
officers of the British cruiser Talbot, the French
280
CH.
WAR AND NEUTRALITY
Pascal, and the Italian Elba made the joint
protest we have already discussed (see pp.
76-78).
As we have seen, the protest was hardly
called for, even if a violation of neutrality had
been in progress.
We have now to consider
whether what was done amounted to anything
of the kind. Was the action of Japan a breach
of International Law? Russia has exhausted
the language of denunciation with regard to it.
In Count Lamsdorff's circular note of February
22 he speaks of it as "a dastardly attack," and
accuses the Japanese Government of acting "in
spite of all treaties, in spite of its obligations,
and in violation of the fundamental rules of
International Law." Japan has replied in a
much calmer document published early in March.
She maintains that her troops were sent to
Korea with the consent of the Korean Govern-
ment, and for the purpose of maintaining the
independence and territorial integrity of the
country against the machinations of Russia. A
state of war, so she contends, existed when the
two Russian vessels were attacked by her
XI
281
POSITION OF KOREA
squadron; and "Korea having consented to the
landing of Japanese troops at Chemulpo, that
harbour had already ceased to be a neutral port,
at least as between the belligerents."
There is an air of unreality about the whole
controversy. Both sides find it convenient to
keep up the diplomatic fiction that Korea was,
or could be, an independent state.
If she were,
clearly her neutrality ought to have been re-
spected, but no less clearly ought she to have
been free from Russia's attempt to prevent her
from throwing Yongampo open to foreign trade,
and even to occupy it under cover of her own
timber concession on the Yalu. It is a curious
doctrine that the consent of a state to the land-
ing of the troops of one belligerent in a port
deprives that port of its neutral character as
between the belligerents, but not otherwise,
while apparently it has no effect upon the
status of the rest of its territory. The truth is
that here we have another instance of that
divorce between hard facts and diplomatic.
phrases which we have discovered so frequently,
as we traced the course of the present troubles
282
CH.
WAR AND NEUTRALITY
in the Far East. The neutrality of Korea is as
much a mere phrase as its independence. A
territory cannot be neutral when war is being
waged in it, and for it. In an armed struggle
facts count, and phrases divorced from facts go
to the wall. Having for years intrigued and
negotiated for Korea without agreement and
without decisive effect, Japan and Russia began
to fight for her. There was war for Korea and
in Korea, if not with Korea. The power which
struck the first blow within Korean borders
violated no neutrality existing in actual fact,
though a state-paper neutrality was rudely
interfered with.
Japan took the earliest opportunity of
regularising her position in Korea by a Protocol
negotiated with the native Government, and com-
municated from Tokio to her legations abroad on
February 27. In this, the last of the long series
of diplomatic agreements relating to the subject,
the fiction of Korean independence is still kept
up, while the fact of Japanese control is further
accentuated. By the third Article Japan
guarantees the independence and territorial
XI
283
POSITION OF KOREA
integrity of the Korean Empire"; and by the
(C
second she covenants to ensure the safety and
repose of the Imperial Household of Korea."
The Korean Government, on its part, covenants
to adopt the advice of Japan "in regard to
improvement in administration," and to give full
facilities for the promotion of any measures the
Japanese Government may undertake to protect
Korea against foreign aggressions or internal
disturbances. It also agrees that for the pro-
motion of these objects Japan may occupy
strategic points on Korean territory.
The effect of this agreement has been to
place the resources of Korea at the disposal of
Japan in the present war. The victorious army
which forced the passage of the Yalu so bril-
liantly on May 1 was landed at Korean ports,
concentrated on Korean soil, and supplied from
Korean harbours. In the political sphere Korea
has denounced, as having been made under
compulsion, all her treaties with Russia and all
concessions granted to Russian subjects. On
the other hand, Russia has declared that she
will regard as null and void all the acts of the
284
CH.
WAR AND NEUTRALITY
Korean Government while under Japanese tute-
lage, and her newspapers loudly proclaim that,
if our neutrality were genuine, we should raise
objections against the Protocol, as being incon-
sistent with the Treaty of 1902, whereby we,
in conjunction with Japan, mutually recognise
the independence of Korea. In reality there is
no inconsistency, because, as we have just seen,
it is clear from the first Article of the Treaty
that the independence in question was not an
ordinary independence, but a diplomatic variety
which was perfectly consistent with recurring
interventions to ward off foreign aggression and
put down domestic revolt. In other words, it
was a dependent independence, or no independ-
ence at all, and
all, and such it remains under the
agreement of February 1904. That instrument
undoubtedly establishes a Japanese Protectorate
over Korea, and the beauty of Protectorates is
their indefiniteness. As Professor Nys, the
great Belgian jurist, says in his recently pub-
lished work on Le Droit International, "Le
terme 'protectorat' désigne la situation créée
par le traité de protection. . . . Le protectorat
XI
285
POSITION OF MANCHURIA
a plus ou moins de développement; rien n'est
fixé dans la théorie; il est cependant un trait
caractéristique commun aux États protégés c'est
qu'ils ne sont pas entièrement indépendants dans
leurs relations avec les autres États” (vol. i. p.
364). These words exactly fit the condition of
Korea under its recent agreement with Japan.
Indeed, the description might be extended to its
internal affairs also. Susceptibilities are soothed,
and possibly diplomatic difficulties turned, by
calling it independent; but in reality it is as
much under Japanese protection as Egypt is
under ours, all state-paper descriptions to the
contrary notwithstanding. The new treaty of
August 22, 1904, shows that this is fully re-
cognised at Tokio. A financial adviser and a
diplomatic adviser are to be appointed by the
Korean Government on the recommendation of
Japan, and nothing important is to be done in
their departments without their advice.
treaties with foreign powers are to be concluded,
and no concessions to foreigners granted, without
previous consultation with the Japanese Govern-
ment.
No
286
CH.
WAR AND NEUTRALITY
We must now endeavour to establish the
legal status of the great province of Manchuria
in view of the present war. Fortunately the
question, though by no means free from com-
plications, is simple by comparison with that of
Korea. Two facts are undeniable, and those
two facts rule the situation. The first is that
Manchuria is still in law a portion of the
Chinese Empire. The second is that the troops
of Russia hold the greater part of it, and within
that part her officers exercise full authority.
Now there is no part of the international law of
war more clear, and none more generally accepted,
than the principle that when the armed forces of
a state hold a territory not her own in firm
possession, so that they can exercise their
authority at will in any part of it, they possess
over that territory and its inhabitants certain
wide rights, called the rights of occupancy, and
these rights remain as long as the fact of
presence and control on which they are based
remains. They apply to any foreign territory
firmly held for warlike purposes, no matter how
the tenure originated. It may be territory of
XI
287
POSITION OF MANCHURIA
the other belligerent won in fair fight. It may
be territory of a neutral obtained by means
which will not bear investigation. The question
of how it was acquired is not relevant. The
only thing that really matters is the fact of firm
possession.
No one denies that the outbreak of the war
found Russia in full control of all but the south-
western portion of Manchuria, but few recognise
the importance of the legal consequences that
follow. The occupant can demand certain
services from the inhabitants of the occupied
territory. He can levy therein forced supplies,
called requisitions, of food and other things
necessary for the daily needs of his army, and
these requisitions fall on the property of neutral
subjects within the zone of occupation, as well as
on the property of subjects of the enemy. He
can punish with death any attempt on the part
of the inhabitants to join his foes, or to destroy
his lines of communication, or to cut off his
stragglers, or even to give information of his
movements. He is indeed bound to protect
those who follow their peaceful avocations, and
288
CH.
WAR AND NEUTRALITY
to keep his troops from indiscriminate outrage
and plunder. But he may strip a district of
corn and cattle by means of his requisitions, and
he may tear men away from their farms or their
factories to drive his teams, guide his marching
columns, carry his wounded, or act as artificers
for his engineers and artillery. The Proclama-
tion of Admiral Alexeieff to the people of
Manchuria, on February 24, was couched in
terms of unnecessary severity; but in substance
most of it did not go far, if at all, beyond
Russia's rights as military occupant, though the
threat to hold responsible all the officials and
people of districts where the railway line and
telegraph wires were cut came strangely from a
nation which regarded our much milder pro-
ceedings in the Boer War with indignation and
horror. No justification can, however, be found
for the statement at the end that "if officials or
people treat with enmity the Russian army, the
Russian Government will assuredly exterminate
these persons, showing no mercy." This is either
wolfish cruelty or mere bombast, and reflects
nothing but discredit on the high official who is
XI
289
POSITION OF MANCHURIA
responsible for it. But he gave prominence to
the best side of the international code when
he bade all the inhabitants of Manchuria con-
tinue their usual avocations, and added, “When
Russian troops enter your neighbourhood you
should treat them with confidence, and in return
the Russian troops will not ill-treat you, but
will accord you extra protection." Nor did he
contravene accepted rules when he ordered the
people to give information of the whereabouts of
"the Chunchuses, the red-bearded brigands who
are the curse of Manchuria," and declared that
"any one secretly harbouring them would be
punished as if he were one himself." Every army
must protect itself from the attacks of irregular
bands, half-criminals, half-patriots. War is
horrible, even when it is conducted with
humanity. It cannot be made with kid gloves
and rose-water.
There can be no doubt that whenever a power
at war exercises full military control outside her
own territories, then she can enforce the rights
of belligerent occupation. Russia acted on this
principle when she proclaimed martial law at
U
290
CH.
WAR AND NEUTRALITY
Niu-chwang at the end of last March, and inter-
fered in a most drastic manner with neutral
trade at that port, in order to carry out measures
of precaution in view of an expected Japanese
attack. Commerce suffered severely, but no
ground was given for international complaint,
apart from some acts of unnecessary harshness
in details. The rights of western traders at
Treaty Ports in the Chinese Empire cannot over-
ride the exigencies of warfare. But as soon as
the military necessity for interfering with them
has passed away, they will revive, unless further
stipulations are made meanwhile with regard to
them. Japan proclaims her intention of handing
back to China those portions of Manchurian
territory which she delivers by force of arms
from the grip of Russia. If and when China
receives them back, she will take them with
their legal obligations. These last have been
suspended by the military occupant for his own
purposes, but the normal state of affairs is
restored as soon as his occupation ceases. While
it remains, however, the usual results follow.
It is beside the mark to say that Russia ought
XI
291
THE RESHITELNI
not to be in possession. She is there, and from
that fact flow legal consequences which cannot
be ignored.
We may apply the same reasoning to those
districts in South-western Manchuria which
Russia evacuated under the Convention of 1902,
and has reoccupied during the present war.
Doubtless this reoccupation was a wrongful act.
Had China been a strong neutral she would have
prevented it, as she had every right to do. But
she attempted nothing of the kind. Russia is
there again; and from that it follows that she
can deal with the places in question as occupied
territory, and Japan can attack them, if she
pleases, without laying herself open to the charge
of infringing Chinese neutrality.
This question of Chinese neutrality will in
all probability lead to curious developments.
Japan is growing restive under the provocation
of seeing Russia first reoccupy and obtain supplies
from towns and districts which were not in her
military possession when the war broke out, and
then, when forced to evacuate them, endeavour
to get China to hold them and keep out Japanese
292
CH.
WAR AND NEUTRALITY
troops. Her patience seemed to come quite to
an end when a number of Russian ships took
refuge in various neutral ports after the great
sea-fight off Port Arthur on August 10. Among
these was the destroyer Reshitelni, which entered
the harbour of Chifu about midnight, and lay
there for twenty-seven hours, till she was seized
and towed away by two Japanese destroyers
about 3 A.M. on August 12. During the time
she spent in port, negotiations were carried on
between her commander and the Chinese authori-
ties, and there is a direct conflict of testimony as
to their result. The Russian captain says, "I
disarmed the ship and lowered my flag"; and
Admiral Alexeieff declares that the breech blocks
of the guns and rifles were handed over to the
Chinese Admiral. On the other hand, the Japan-
ese captain Fujimoto reported that his officer
“found the Reshitelni still not disarmed"; and
the justificatory statement issued by the Japan-
ese Government states without qualification that
the vessel was fully armed and manned when
visited by Lieutenant Terashima in the early
morning of the 13th instant." But even if we
XI
293
THE RESHITELNI
accept the Japanese account as accurate in every
particular, we are nevertheless forced to the con-
clusion that a gross breach of neutrality was
committed. The occurrence reflects no credit
upon a power which up to that time had been
careful to keep its conduct correct according to
the standards of International Law. The asser-
tion that the entry into a Chinese port of a
fugitive Russian destroyer constituted an occupa-
tion of that port for warlike purposes, and
justified a disregard of its neutrality by Japan,
will not bear a moment's examination. A
hunted refugee is not a military occupant. The
further argument that the Reshitelni was the
aggressor, because her captain struck with his
fist the Japanese officer who came on board with
an armed party and ordered him to surrender
his ship, reminds one irresistibly of the fable of
the wolf and the lamb. Special pleading of this
kind injures rather than helps the case of those
who resort to it. And there is a case for Japan,
not indeed as regards the sudden and violent
seizure of the Reshitelni, but on the general
question of the failure of China to enforce her
294
CH.
WAR AND NEUTRALITY
commands upon the shattered Russian war-ships
which entered her waters. The record of the
orders and counter-orders, the vacillations and
defiances, connected with the Askold and the
Grosovoi at Shanghai, is at once pitiful and ludi-
crous. Japan does well to remember how the
Mandjur stayed, still armed, in the same port for
weeks after receiving notice to quit, how the
Russian wireless telegraphy station was installed
at Chifu, and how Russian troops took supplies
from parts of Manchuria supposed to be outside
the zone of warlike operations. She cannot be
expected to split up her naval strength into small
squadrons after a successful engagement, and use
them to watch her crippled opponents waiting in
Chinese harbours for the possible advent of the
Baltic fleet. She did well to give notice that,
unless a real and complete disarmament were
effected, she would do her own police-work in-
side Chinese waters as well as on the high seas.
But she did ill to take matters into her own.
hands at Chifu, suddenly and without warning,
before there was time to see whether the obliga-
tions of neutrality were properly performed.
XI
295
POSITION OF MANCHURIA
Russia has endeavoured to secure the retire-
ment within the Great Wall of China's one
small army of drilled and disciplined troops,
and has protested against the presence with
them of Japanese instructors. On these points
her legal case is bad, though the military and
political reasons for her anxiety are very obvious.
Surely a neutral state can distribute its troops
as it pleases within its own territory, and hire
what persons it pleases to teach them their
craft. But the most serious symptom of all
is the expressed determination of Russia to
hold China responsible for the action of the
Chunchuses and other irregulars, whose activity
seems to increase with every Japanese success,
and who are becoming a serious danger to
General Kuropatkin's communications. She is
but reaping as she sowed. The cruelties which
accompanied the restoration of order in Manchuria
in 1900, and the plunderings and severities that
have been common since the present war began,
have naturally raised against her the anger of a
population which remembers well the admirable
conduct of the Japanese armies when they
296
CH. XI
WAR AND NEUTRALITY
occupied parts of the same province in 1894
and 1895. She is bound to deal with her own
difficulties, and has no sort of right to throw
them upon another power on the plea that the
state in question is not only neutral but also
sovereign in Manchuria. China is both; but
Russia has the territory under her military
occupation, and is therefore bound to police it.
She must not deprive her eastern neighbour of
all power over vast districts, and then call upon
her to exercise authority within them. Where
she claims the rights of a military occupant she
must perform his duties also, or be content to
suffer from the lack of performance.
She can-
not eat her cake and have it too.
Achin, 127
Ajaccio, 61
INDEX
Akitsushima, the, 137, 138
Alabama, the, 74, 132, 135,
184, 258
Alexeieff, Admiral, 39, 43, 47,
84-86, 88, 90, 99, 288
Algiers, 212
Allanton, the, 221-245
Bosphorus, 200, 202, 205, 211,
217, 267
Boxer outbreak, 14
Brindisi, 185
British Navy, 80
Brussels Conference, 90
Buena Ventura, the, 50, 51
Cadiz, 115, 135
American Civil War, 100, 125 Calchas, the, 264
Amur River, 15
Arabia, the, 264
Ardova, the, 213
Argostoli, 61
Askold, the, 293
Austria, 31
Balfour, Mr., 200, 208, 212,
266
Baltic Fleet, 62, 126, 127, 175,
200, 294
Baltic Sea, 10, 115, 136
Barrundia Case, 193
Bashee River, 215
Bayan, the, 84
Beaconsfield, Lord, 155
Berlin, treaty of, 211
Bismarck, Prince, 90, 164, 165
Black Sea, 203, 204, 208, 218
Blagovestchensk, 15
Blockade, 55-62
Boer War, 46, 191, 288
Calder, Sir R., 72
Canton, 127
Cardiff, 159, 222, 224, 228
Cervera, Admiral, 60
Charles V., King of France,
29
Charleston, 104
Chemulpo, 26, 32, 67, 71, 75,
92, 279-281
Cherbourg, 74
Chifu, 92, 99, 218, 220, 291-294
China, 1-18, 21, 24, 30, 31, 48,
79, 137, 138, 164, 177, 178,
272, 275-277, 286, 290-296
Chinchuses, 289, 295
Ching-kai-wan Bay, 19
Coals as Contraband, 114, 115,
120, 122-136, 140, 150,
153, 156-163
Comedian, the, 215
Congo River, 157, 158
Constantinople, 203, 205
297
298
WAR AND NEUTRALITY
Contraband of War, two kinds | Fusan, 2, 6
of, 142, 143, 148-151, 153-
156
Correspondents as spies, 84-90
Cotton as Contraband, 153, 168-
174
Crewe Hall, the, 206
Crimean War, 49
Cuba, 219
Czar, the, 23, 27, 36, 37, 99,
115, 127, 171, 224, 225
Dalny, 12, 98, 273, 274
Danube, 203
Geneva, 73, 184
Geneva Convention, 36, 43, 44,
63, 67, 73
Genoa, 179
Gensan, Bay of, 42
Germany, 2, 11, 12, 57, 90,
158, 168, 191, 193, 265
Gibraltar, 222
Great Britain, 30, 57, 70, 116,
123, 125, 132, 142, 158,
159, 163, 177, 179, 191,
201, 210, 256, 263, 275-278
Dardanelles, 200, 202, 205, 211, Grosovoi, the, 293
217, 267
Dar-es-Salaam, 216
Declaration of St. Petersburg,
36, 100
Declaration of War, 26-34, 51
Deerhound, the, 74
De Martens, Professor F., 244
Denmark, 133
Despagnet, Professor, 227
Dmitri Donskoi, the, 115, 135
Dover, Straits of, 111
Dublin, 2
Durban, 215
Edward III., King of England,
29
Egypt, 116, 134, 201, 202, 230,
285
Elba, the, 68, 69, 75, 280
Emperor of Japau, the, 30
England, 120, 129, 169, 177
Ettrickdale, the, 114, 225
Europe, 203, 246
Formosa, 10
Formosa, the, 213
France, 2, 11, 24, 30, 35, 122,
123, 129, 132, 158, 163-
165, 168, 180, 190, 201
Frankby, the, 114, 225
French Somaliland, 114
|
Hague Conference, 36, 37, 63,
73, 87-90, 92, 100, 105
Haimun, the, 83, 84, 87, 98
Hall, Mr., 217, 226, 246, 258
Hamburg, 164
Harcourt, Sir William, 182
Hardinge, Sir Charles, 208
Harris, Admiral Sir R. H., 111
Hatsuse, the, 93-95, 97, 106.
Havana, 97
Hideyoshi, 5, 6
Hipsang, the, 259, 260
Holsatia, the, 216
Hokkaido, 2, 222
Holland, Professor, 108
Hong-Kong, 207, 219, 222, 230,
240
Hong Wou, 5
Hova Government, 24
Institut de Droit International,
109, 154, 155, 195, 225,
227, 256
International Law, 94, 100-
104, 106, 116, 119-128,
140, 144, 146, 166, 167,
173, 182, 183, 195, 199,
226, 236, 245, 249, 257,
280, 292
Internment, 65, 72
INDEX
299
Ireland, 2
Italy, 179
Ito, Count, 30
Japan, 1-14, 18-25, 26, 27, 30-
34, 43, 48, 52, 53, 122,
128, 138, 150, 158, 163,
166, 172, 173, 179, 184,
198, 237, 246, 256, 274-
285, 290-294
Japanese Army, 14
Japanese Fleet, 13, 14, 56, 98,
107
Japanese fugitives, 38-40, 47,
48
Jebel-Zukkur, Island of, 113,
206
Jeddah, 206
Jefferson, Mr., 180
Jessen, Admiral, 252, 256
Jibuti, 114, 120, 122, 123, 127,
216
Kasuga, the, 179
Kearsarge, the, 74
Kiao-Chau Bay, 12, 272
Kinshiu Maru, the, 42
Knight Commander, the, 250-
259
Kobe, 250
Litan, 5
Liverpool, 168, 171
London, 202
M'Kinley, President, 49, 50,
52, 190
Madagascar, 24
Mahan, Captain, 63, 64, 66, 71
Maine, the, 97
Malacca, the, 196, 205-208,
212-214
Malden, Professor W. J., 167
Manchuria, 14-18, 21, 23, 24,
38, 268, 285-290
Manchurian Convention, 17, 18
Manchurian Railway, 12, 17
Mandjur, the, 137, 293
Manila, 219
Manteuffel, General, 73
Marine Mines, kinds of, 94, 95,
100, 101
Masampo, 2, 13, 19
Mathilda, the, 114
Maurice, General, 30
May, Admiral H. J., 60
Mediterranean Sea, 115, 135,
179, 187, 200, 203, 218
Menelaus, the, 206
Mexico, 177, 178, 190
Moldavia, 29
Korea, 1-11, 14, 19-23, 33, 77, Morocco, 201
81, 268, 274-285
Korean Bay, 13, 97
Korectz, the, 67, 69, 76
Krabri, the, 185, 187
Kronstadt, 126
Kuropatkin, General, 295
Kwangtung, 85, 270
Lamsdorff, Count, 27, 216, 280
Lansdowne, Lord, 160, 215, 259
Laws of War, 34-38, 90
Liau-tung, Gulf of, 97
Liau-tung Peninsula, 10, 11,
13, 26, 43, 56, 268-270
Libau, 205, 206
Muroran, 222-224, 228, 235,
238, 241
Nagasaki, 159
Nakonoura Maru, the, 40, 41
Nancy, the, 245
Napoleon, 5, 156
Nelson, 156
Newcastle, 159
New York, 250
Nicol, Captain, 68
Nisshin, the, 179
Niu-chwang, 289
Norway, 133
Nys, Professor, 284
300
WAR AND NEUTRALITY
Odessa, 204, 205
Okishima Island, 223
Osiris, the, 185-188, 194
Ostend, 188
Ottoman Empire, 29
Pacific Ocean, 10, 136, 237
Paris, 109, 203, 242
Parlement Belge, the, 188
Pascal, the, 68, 69, 75, 280
Paterson, Simons & Co., 223,
241
Pavloff, M., 14, 68
Pechili, Gulf of, 218
Peking, 7
Percy, Earl, 85, 110
Persia, the, 195, 197
Peterburg, the, 205-209,
215
162-168, 174, 178, 187,
193, 194, 195, 206, 208,
210, 215-218, 245-247,
253-257, 271-274, 286-
296.
Russian Pacific Squadron, 26,
60
Russo-Chinese Bank, 17
St. Petersburg, 20, 31, 151,
208, 215, 217, 223, 243
Salisbury, Lord, 201, 211
Santiago, 60
Sasebo, 2, 222, 224, 226, 228,
230, 245
Savannah, 104
Schouvaloff, Count, 211
213- Scott, Sir William, 156, 245
Selborne, Lord, 179
Seoul, 1, 7, 9, 18, 68
Seward, Mr., 104
Shanghai, 98, 137, 260
Shimonoseki, Port of, 2
Shimonoseki, Treaty of, 9, 274
Siberia, Maritime Province
of, 3
Petropavlovsk, the, 93
Phillimore, Sir R., 229
Port Arthur, 10-13, 26, 33, 43,
56-60, 93, 95-99, 104, 137,
166, 218, 259, 270, 272-
274, 291
Port Said, 115, 127, 185, 202,
206
Prinz Heinrich, the, 195, 265
Protest of the Three Captains,
76
Prussia, 31
Rappahannock, the, 177
Rea, Mr., 222, 231, 232, 243
Red Cross Train, 43, 44
Red Sea, 114, 116, 118, 200,
205, 215
Representative of the Times,
83, 87, 89
Reshitelni, the, 291-294
Richmond, 171
Rosalie and Belly, the, 245
Russia, 1-3, 10-26, 29-32, 37,
49, 52, 53, 70, 87, 89, 100,
107, 115, 122, 126, 128,
138, 150, 155, 157-159,
Siberian Railway, 10, 11
Singapore, 207, 222, 224, 228,
235, 238, 241, 242
Smolensk, the, 195, 197, 205,
213-216
Southampton, 74
Spain, 50, 177, 190, 191, 219
Spanish-American War, 50, 57,
254
Spies, 85-90
Stepanoff, Captain, 32
Suez, 22, 117, 118, 202, 206
Suez Canal, 115, 117-119, 135,
200-202, 222
Suez, Gulf of, 115, 117-119
Sweden, 133
Switzerland, 67, 73
Takahashi, Professor, 148, 257
Talbot, the, 67, 69, 71, 75, 279
WAR AND NEUTRALITY
301
Ta-lien-wan, 12, 270
Territorial Waters, 102-104,
107, 108-111
Thea, the, 260, 261
Tientsin, 98
Togo, Admiral, 56, 59, 159
Tokio, 1, 8, 11, 62, 159, 282,
285
Tower Hill, 89
Trent, the, 214
Trieste, 183
Tumen River, 3, 19
Turkey, 30, 197, 202, 211
United States, 7, 31, 50, 52,
63, 74, 94, 125, 132, 135,
142, 158, 168, 173, 174,
193, 194, 214, 219, 267
Uriu, Admiral, 75-78, 279
Variag, the, 32, 67-69, 75, 76,
279
Venezuelan Blockade, 57, 191
Venice, 154, 226
Vera Cruz, 190
Vicksburg, the, 67, 76
Victor, the, 177
Villeneuve, Admiral, 72
Vladivostock, 10, 40, 41, 166,
205, 221, 223, 226, 231-
245, 252, 260, 261, 264
Volunteer Fleet, 114, 195, 204,
208, 217, 220, 267
Vriendschap, the, 232
Wallachia, 29
Washington, 84, 85, 182, 219,
251
Wei-hai-Wei, 83, 88, 272
Werder, General, 73
West African Conference, 157
White Sea, 49
Wireless Telegraphy, 82-92,
218-220
Wirenius, Admiral, 22, 113,
115, 116, 122, 137, 230
Woosung, 137
Yalu, Battle of the, 72
Yalu River, 13, 19, 20, 281,283
Yang-tse River, 137, 138
Yenesci, the, 98
Yokohama, 159, 250, 252
Yongampo, 281
Zanzibar, 216
THE END
Printed by R. & R. CLARK, LIMITED, Edinburgh
WAR AND NEUTRALITY
IN THE FAR EAST
By T. J. LAWRENCE, M.A., LL.D.
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