3 DECEMBER 1904, Page 22

restatement and exposition of some point or other of international

law in which they usually result. They may begin with ambitions towards a new heaven and a new earth, but they end, as a rule, with some modest contri- bution to the question of contraband. No Conference can ensure peace in our time, since the forces which make war are independent of the legal conventions of society, and would crash through any prohibitive code like Alnaschar's basket. Hence, while there is no harm in large pacific ideals, it is well in any proposal to keep the practical possibilities clearly in view. These possibilities are wide and important, if properly understood, and Presi- dent Roosevelt has a great opportunity of making his proposed second Peace Conference of real service to the world. If it refuses to dissipate its energies in professions of a vague brotherly love, and grapples with that very practical question—how war, which is inevitable, can be restricted in its area and ameliorated in its conditions—it will deserve well of humanity. President Roosevelt stands in a most favourable position from which to promote the experiment. He has been recently elected by an over- whelming majority as chief of the American State, and that State is respected by all European nations as the critical spectator whose intervention in a European quarrel would always be serious, and might be final. The recom- mendafiong of America are those of a Great Power, and in a special sense of a disinterested Power. If President Roose- velt insists that his Conference shall confine itself to prac- tical questions, it will command the confidence of plain men everywhere, and, not being encumbered with impossible idealisms, should get through a great deal of business. The Hague Conference, having too wide a survey, left many questions unsettled ; and the war in the Far East has brought into relief many of the uncertainties to which both neutrals and belligerents are subject. We propose to discuss a few of the points on which it is essential to have an international ruling, and, if possible, an inter- national Executive.

The first is the present constitution of Prize Courts. If a ship is captured by a belligerent, it is taken to the nearest port of the captor where a Prize Court has been set up, and condemned or released after trial before a tribunal of the captor's nationality. It is true that captor and captive are equally represented before it, but the decision rests with one of the litigants. The belligerent nation is judge in its own cause. Such a Prize Court pofesses to administer the law of nations, and not its own municipal law, but it constitutes itself judge of what the law of nations means. There is no appeal from it as a Court, though, if its judgment is accepted and enforced by the Sovereign of the State which created it, that Sovereign is liable to be called to account by the Government of the captive, and the question reopened as between the two nations, as happened under the Treaty of 1794 between Great Britain and the -United States, and in 1830 between the United States and Denmark. But such a remedy is diplomatic, and not legal. The Prize Court as at present constituted gives satisfaction to nobody. It nominally administers international law, but in practice it takes for its guide the instructions of its belligerent Sovereign, without inquiring into their relation to accepted international practice. The anomaly has been well stated by one of President Roosevelt's countrymen. "By natural law," wrote Wheaton, "the tribunals of the captor's country are no more the rightful exclusive judges of captures in war, made on the high seas from under the neutral flag, than are the tribunals of the neutral country. The equality of nations would, on principle, seem to forbid the exercise of a jurisdiction thus acquired by force and violence, and administered by tribunals which cannot be impartial between the litigating parties, because created by the Sovereign of the one to judge the other. Such, however, is the actual constitu- tion of the tribunals in which is vested the jurisdiction of prizes taken in war." If captures are to be decided by legal means, it seems to us highly desirable to make these means a reality, and not a farce. If President Roosevelt's Conference can make Prize Courts international tribunals, it will rid the world of a meaningless anomaly. These Courts might sit either at a neutral port or at a belligerent port, according to convenience, provided their personnel were really international. Such a reform would make the work of judging a capture much simpler, for a Russian captor would not be compelled to take his prize from the Indian Ocean to Libau, and the prize decisions would be respected as the findings of a real tribunal, and not ex pane, adjudications which it may be the duty and privilege of diplomacy to upset.

A second point which a Peace Conference might settle is the vexed question of neutral duties. These vary, indeed, with each generation, but it is essential that they should be defined from time to time and given an international sanction. Let us take an instance which has been much before the world of late. In Nelson's wars it was no breach of neutrality to supply a belligerent fleet, not only with food and supplies, but with actual munitions of war. The old doctrine of "the hospitality of the seas" received in those days a generous interpretation. About the middle of last century a stricter practice arose, by which munitions of war were excluded, but coal and provisions allowed to an indefinite extent. Of late years the practice has become yet stricter, coal has been limited by Britain and the United States to an amount sufficient to allow navigation to the next port, and there is every reason to believe that the same practice will soon be followed in the case of provisions, since to feed a crew is as much an assistance to a belligerent ship as to supply her furnaces or provide her with ammunition. But the whole subject is vague, there are scarcely two nations which agree in principle or practice, and it is highly desirable that so controversial a question should be settled by an impartial authority. So, too, with the duties of a neutral towards a, belligerent ship which takes refuge in one of her ports. There are rules which Britain has followed, but their validity is not always admitted by her neighbours, and. at any moment the uncertainty may lead to a crisis. If the Port Arthur fleet, or a, part of it, had chosen to seek the hospitality of Wei-hai-wei, we might at once have become involved in a serious dispute, in which one of the disputants would have had small inclination to admit unsanctioned principles which made against her interest. As a last instance, we may take the question of what is conditional, and what unconditional, contraband. It is highly undesirable that this problem should be settled only by an ex post facto agreement between neutral and. belligerent during hostilities. To leave so vital a question open makes it always possible that the area of war may be indefinitely enlarged, for war-time is not the best season to discuss matters amicably with an outsider.

We have no desire to see international practice turned into a rigid code. Its merit is that it is elastic and ex- pansive according to the changing conditions of the times. But it is also desirable that at any particular period its provisions should be as clear and as binding as possible. This dual result can only be secured by the creation of a permanent International Committee, a kind. of Amphic- tyonic Council, to issue rulings on matters of detail. Such a Committee need not be always in session—it might be re-created during each great war—but its power and recog- nition should be permanent. It would be its business to mark out the ring and lay down the rules of the fight, and also to keep the public out of it, as well as restrain the combatants from doing damage to the spectators. On the outbreak of war belligerent and neutral representa- tives would appear before it, and settle by consent the questions which were most urgent. The nature of un- conditional contraband, the use of neutral ports, the rights of coaling and provisioning,—on all such subjects it is difficult to lay down universal laws ; they depend upon the circumstances of each case, and would be best settled by conference between the Powers interested. Britain, for example, with her Colonies, has an interest in the neutral ports question which France has not, and with her coal trade, is more vitally concerned in the defi- nition of contraband than, say, Italy. Once the rules of war were settled, the Council would provide for their observation. They would arrange for, and con- trol, a system of international Prize Courts, and they could also deal with breaches of neutrality by indi- viduals. They would, of course, have no power to enforce a ruling as against a nation which disregarded it ; that would be a matter for the other Powers. A State does not promise that its subjects will remain neutral ; it only guarantees that if they break neutrality it will not support them, and that it will prevent any action on their part, such as is contemplated by our Foreign Enlistment Act, which would commit the State. It is for the Prize Courts to determine these individual acts of belligerency, and for some such Council as we have sketched to agree on the rules. We trust that President Roosevelt will see that the Peace Conference which he proposes shall make these very practical reforms the chief object of its labours.