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4. Das Beuterecht im Land- und Seekriege. By Dr Hans Wehberg. Tübingen: Mohr, 1909. English translation, with introduction, by John M. Robertson, M.P. Westminster King, 1911.

5. Letters to the Times' upon War and Neutrality (18811909), with some commentary. By Thomas Erskine Holland. London: Longmans, 1909.

6. Some Plain Reasons for Immunity from Capture of Private Property at Sea. By Sir John Macdonell. London: Murray, 1910.

7. Sea Law and Sea Power, as they would be affected by recent proposals; with reasons against those proposals. By T. Gibson Bowles, M.P. London: Murray, 1910. In a previous article we narrated briefly the history of a movement for imposing further restrictions on the capture of enemy property at sea by extending the

Part I (Historical) of this article was published in No. 426 of the Quarterly Review' (January 1911).

provision of the Declaration of Paris, that the neutral flag covers enemy's goods, with the exception of contraband of war,' to ships under the enemy flag and to enemy cargo thereon; and we now propose to notice some of the principal arguments urged in favour of the adoption of this new principle.

The proposition as it was stated by the United States Delegation at the Hague Conference of 1907 is as follows: "The private property of all citizens or subjects of the signatory Powers, with the exception of contraband of war, shall be exempt from capture or seizure on the sea or elsewhere by the armed vessels or the military forces of any of the said signatory Powers. But nothing herein contained shall extend exemption from seizure to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of any of the said Powers.'

Such a formula is too long for everyday use, and accordingly we find it usually replaced by the phrase, 'inviolability of private property in naval warfare.' Though concise, this has the serious defect of omitting all allusion to the two qualifying exceptions, namely, the seizure and confiscation of what is termed contraband when carried by a neutral vessel, and seizure of merchant vessels for attempting to violate a blockade. As was pointed out by more than one speaker at the last Hague Conference, unless the meaning of the terms 'contraband' and 'blockade' were exactly determined, the result might be that the abolition of capture would in practice be nullified by the continuation of the existing system without any real change. It was therefore of the highest importance that contraband of war, among other things, should be strictly defined.

In the eighteenth century it was the more general opinion that only arms and munitions of war should be classed in this category; but naval stores were sometimes included. Provisions, on the other hand, were only held to be contraband when on their way to a port of naval equipment or to a naval armament; or, according to the stricter American view, when destined to a place actually invested or blockaded. At the same time most Powers considered themselves entitled, at the outbreak of war, to declare what articles they would regard as

contraband. In 1780 the Powers forming the first Armed Neutrality League declared that only articles enumerated in the Russian treaty of 1766 with Great Britain, namely, arms and munitions of war, could be treated as contraband. The tendency in modern times has been to extend rather than to restrict the list. Thus in 1885 France (then engaged in hostilities against China) declared shipments of rice to any port north of Canton to be contraband of war. Russia, when at war with Japan in 1904, went still farther, and proclaimed coal, cotton, rice and provisions to be absolutely prohibited; but this extension was protested against by Great Britain and by the United States, and, in the case of food-stuffs, with success.

A change seems now to be in prospect. If the Declaration of London (February 1909) receives the adhesion of all the Powers, and is ratified by them, the existing liberty possessed by a belligerent of announcing what articles he will treat as contraband will be subject to certain limitations, though it permits any Power to add to the lists of absolute and conditional contraband respectively, either before or after the outbreak of war, by a simple notification. The Declaration contains three lists (1) absolute contraband; (2) conditional contraband; (3) articles which can never be declared contraband. In the third category the most important articles are the raw materials of textile manufactures. Food-stuffs are

included in the second.

We cannot but think that the advocates of the 'immunity of private property,' who lightly pass over the question of contraband, will be inclined to regard it as offering Great Britain no safeguard for the most important of her interests, namely the supply of food-stuffs from abroad, whether in her own or in neutral vessels. For it must be remembered that, in spite of the Hague Convention of 1907 setting up an International Court of Appeal in prize-cases, resort to it can only afford a prospect of security against ultimate confiscation, but none against capture and detention in the meanwhile. The period allowed to national courts for their decision, before the International Court can intervene, is two years. In the meantime the food-stuffs would be prevented from reaching a perhaps starving population.

Underlying the proposal that enemy ships should be

immune from capture, so long as they carry no contraband of war, and are not attempting to violate a blockade, is the assumption that the same rules should govern naval and terrestrial warfare. It is alleged that in war on land private property may not be seized and appropriated by a belligerent, and that the same rule ought to be extended to maritime war.

The most notable enunciation of this theory of the identity of the two forms under which war must necessarily be conducted occurs in the Berlin Decree of November 21, 1806, in which Napoleon asserts 'que le droit de la guerre est un et le même sur terre que sur mer'; from which he deduces, among other things, the consequence 'qu'il ne peut s'étendre ni aux propriétés privées, quelles qu'elles soient, ni à la personne des individus étrangers à la profession des armes,' etc. But the conditions of terrestrial and maritime warfare are by no means identical. In land-warfare the arena is usually the territory of one of the combatants; and the victor remains in at least temporary possession. In naval war the arena is the open sea, of which no one can take possession.

The conception of 'contraband,' absolute and conditional, is peculiar to maritime war; for the merchant who sells and transports arms and ammunition, or furnishes one belligerent State with clothing or food for its soldiers, so long as he effects the transport by land, cannot be interfered with by the other belligerent unless he tries to transport it through the territory belonging to or occupied by that other belligerent. The 'Convention respecting the Rights and Duties of Neutral Powers and Persons in case of War on Land,' signed at the Second Hague Conference, expressly says:

'A neutral Power is not called upon to prevent the export or transit, on behalf of one or other of the belligerents, of arms, munitions of war, or in general of anything which can be of use to an army or a fleet' (Art. 7).

This forms a vital distinction between the two kinds or departments of warfare. If a continental Power is at war with an adjacent State, the probabilities are that there will be at least one friendly neighbour from whom articles for use in war may be procured without limit or hindrance; as happened, for instance, during the Crimean

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