hereafter. It is submitted that whatever may be the status of the principle of immunity in land warfare, in war at sea the rule of capture remains, subject to important limitations in the interest of neutrals and to relatively minor exceptions of certain forms of private enemy property. Neither of these classifications of restriction may be viewed as altering the question of principle. The latter is based upon special considerations of humanity for the advancement of science and art and does not raise the principal question. The former has reached legal standing not through the influence of a theory of protection for private rights per se, but through the continuous pressure of forces differently combined at different periods, among which theoretical dialectic is not to be overlooked, for the recognition of the rights of neutrals. At no period has there been a general acceptance among nations of the desirability of exempting enemy ships and enemy goods from the operation of the law of prize.

Immunity and neutral rights are entirely different questions when viewed from the standpoint of theory. The defence of inviolability for all private property at sea so far exceeds in difficulty that of exemption of neutral property as to preclude the drawing of any conclusions regarding the former from the establishment of the latter. But greater than the influence of theory has been the power of neutral governments to enforce observance of rights which they have at different periods considered to be lawfully theirs. The latest step taken by belligerents in acknowledgment of such rights is one which permits the transportation in neutral vessels, without fear of confiscation, of non-contraband cargoes owned by belligerents. The Dutch origin of this, the free ships, free goods principle; the record of its maintenance by the Armed Neutralities; and finally the voluntary incorporation of the principle by Great Britain in her rules for the conduct of maritime operations in the Crimean War; render it impossible to regard this final advance as anything but a concession to neutrals.

The establishment of complete inviolability as a principle of maritime warfare remains, therefore, an ideal. The two avenues of approach to an adequate understanding of the present tendencies

toward or away from a realization of the ideal in practice are: (1) the appreciation of practice under the legal limitations upon capture that now exist and (2) the estimation of the present status of the movement for immunity.

Dealing first with the observance of the existing law of capture, attention is necessarily centered upon the second and the third rules of the Declaration of Paris. The latter of the two rules, which provides for freedom from confiscation for neutral goods on enemy vessels, may be the more briefly considered.

In placing his goods on board an enemy ship a neutral must anticipate the possibility of the capture of the ship and consequent loss of time and profit. Lengthened contraband lists, a feature of modern practice which will be considered immediately, affect such ventures as well as those upon neutral ships. The most serious though not peculiar liability which neutral cargoes undergo upon enemy vessels is one which follows upon the continuance of the ancient practice of destruction. While Great Britain maintains the rule of compensation for neutral property destroyed with enemy merchant vessels, the usual determination of prize courts has been in the contrary sense. Such decisions are based upon the law of military necessity and pay no heed to the logical alternative of compensation when neutral property, granted immunity from capture by the Declaration of Paris, has been destroyed. Although the right to destroy must be admitted, it appears reasonable to demand that the fact of the presence of neutral property on board be taken into account in the judicial determination of the degree of military necessity. Bentwich, however, goes further than is justified by the facts regarding the destruction of enemy ships conveying neutral goods, when he foresees the general destruction of enemy vessels should they be rendered legally free from capture.2 It is more probable that, if the ships themselves were not regarded as contraband, the practice would follow that now put in operation against neutral ships, which may be destroyed only upon justifiable suspicion of certain illegalities.

The increased importance of submarine warfare has emphasized 2 N. Bentwich, War and Private Property, London, 1907, p. 95.

the tendency to act upon a priori determinations of military necessity. Simultaneously, the legal execution of a policy of destruction of captures has been proved to be a doubtful possibility, even if the existence of military necessity be granted. The requirement of visit before destruction of an enemy vessel is one that holds especial difficulties for the submarine, even when the merchant ship is not armed. These difficulties have been increased by the varying practice of submarine commanders in the matter of visit, which has rendered the captains of merchant ships uncertain as to their probable fate and consequently willing to attack a submarine as a measure of defense.

The element of time required for visit and search is more important when the ship visited is neutral and the need arises to ascertain whether or not there is proof on board to justify her destruction. If it is necessary today to conduct a vessel into port for search, the circumstances that render capture impossible the control of the seas by the enemy will operate with the same effect to render impossible the legal destruction of neutral vessels. If it is possible to search a ship at sea the time required will increase the danger to the submarine from hostile cruisers.

What the development of the submarine may be cannot be foreseen. Whether it becomes more or becomes less vulnerable, more or less rapid in submerging, larger or smaller, the requirement of visit and search cannot be ignored so long as it remains a rule of international law. To ignore definite legal requirements because such requirements were incorporated into the law without anticipation of a particular means or instrument of warfare, or because they would prevent the most effective use of new equipment for war, would be to divert international law from its present trend toward increased definiteness and increased limitation upon belligerent action harmful to neutrals. The purpose of international law in taking account of new circumstances and new devices to evade old rules, if it is, in part, to maintain the advantages and disadvantages of respec

Practice in the present war, as in the Russo-Japanese War, goes far to prove that, for a belligerent whose home and colonial ports are blockaded, and who is faced with the present tendency unfavorable to reception of prizes in neutral ports, the practice of destroying prizes has taken the place of capture.

tive belligerents, is mainly to prevent retrogression from standards attained.

The attitude of belligerents toward the second rule of 1856, by which enemy property in neutral ships is made immune from capture, has been partially dealt with in the preceding paragraph. Since the Russo-Japanese War destruction at sea has become a menace to neutral as well as to enemy ships and their cargoes. But while, as regards neutral ships and cargoes destruction is likely to be practiced only infrequently, other means of evasion of the rule that the neutral flag covers enemy goods not contraband the actual observance or non-observance of which forms the crux of the question as to the value of the existing regulation of the right of capture are plentiful. Realizing this, while granting that the letter of the law has been observed strictly, the conclusion that is forced upon the student of recent practice is that, through the unwarranted extension of belligerent rights based upon related portions of the law of maritime warfare, the rule that private enemy property is free when transported in neutral ships very nearly approaches nullity, and is only preserved in some semblance of vigor by the influence of neutral opposition to the devices of belligerents for rendering it a "dead letter." Whether or not the ultimate realization of immunity waits upon the success in practice of the second rule of the Declaration of Paris may be an open question. Arguments have been advanced to the effect that the rule must be abrogated and either complete immunity substituted or the Consolato rule revived. It would seem, however, that unless the rule of safety for enemy goods in neutral ships be respected, there is small hope for respect of a similar rule of safety for enemy ships and cargoes.

Belligerent practice since 1856 proves that the device most readily available for evasion of the legal inviolability of enemy cargoes on board neutral merchantmen is the extension of the list of contraband. This device is particularly dangerous, because the arguments upon which it rests are plausible and, to a considerable extent, well founded. It cannot be denied that scientific advance has resulted and is continuously resulting in the application of new articles to the manufacture of equipment and supplies for war. The temptation to emphasize

the possible warlike use of a commodity of commerce has been irresistible. But of more far-reaching effect has become the practical revival of the medieval doctrine of the relations between the individual citizens and the governments of opposing belligerent countries. This has been brought about by the same development of scientific methods in the field of organization for, and administration of, the totality of the state's resources in time of war, a development which has enabled belligerent governments to destroy the effectiveness of the double classification of contraband. That these phenomena are not mushroom growths of the latest war is readily seen upon reference to the practice of the last thirty years. The present war demonstrates the growing importance of this phase of the problem, since the progress of the struggle has been marked by new additions to the contraband list and new regulations to render the proof of the innocence of a particular cargo more difficult.

Of chief importance in the category of articles transferred from the list of conditional to that of absolute contraband are foodstuffs. The futility of exempting enemy property from capture and, immediately or at convenience, making the chief necessities of life absolute contraband is obvious. The present war has shown in a striking way the inter-relationship of the questions of contraband and of immunity of private property at sea. In view of the attitudes of the Powers toward the former question at the Second Hague Conference, an agreement to abolish contraband by a third Conference may be regarded as among the possibilities.

The transfer, in the Russo-Japanese War, of numerous articles previously rated as conditional contraband to the list of absolute contraband should have been a warning to the delegates at the London Naval Conference that the compromise there formulated, which admitted the application of the doctrine of continuous voyage to absolute but forbade it with regard to conditional contraband, would be ineffective. In the present war, however, the continuous voyage principle has been applied to both categories of contraband, since from its beginning the attitude adopted by the Allies toward national organization for war has been such as virtually to destroy the distinction between them.