articles cannot in fact be used for the purposes of the war in progress." As to proof of destination, the provisions of the Declaration are two-fold. The doctrine of continuous voyage, though declared to be applicable to absolute contraband, is not applied to conditional, so that cargoes of the latter are not put in jeopardy when sent to a neutral port. This certainly creates an important safeguard. A hostile destination is, on the other hand, presumed (Article 34) "if the consignment is addressed to enemy authorities, or to a merchant, established in the enemy country, and when it is well known that this merchant supplies articles and material of this kind to the enemy," or "is destined to a fortified place of the enemy, or to another place serving as a base for the armed forces of the enemy." These grounds of inference are so vague and general that they would seem to justify in almost any case the presumption that the cargo, if bound to an enemy port, was "destined for the use of the armed forces or of a government department of the enemy state." Any merchant established in the enemy country, who deals in the things described, will sell them to the government; and if it becomes public that he does so, it will be "well known" that he supplies them. Again, practically every important port is a "fortified place"; and yet the existence of fortifications would usually bear no relation whatever to the eventual use of provisions and various other articles mentioned. Nor can it be denied that, with well-kept highways, almost any place may serve as a "base" for supplying the armed forces of the enemy. And of what interest or advantage is it to a belligerent to prevent the enemy from obtaining supplies from a "base," from a "fortified place," or from a merchant "well known" to deal with him, in his own country, if he is permitted freely to obtain them from other places and persons, and especially, as countries having land boundaries can for the most part easily do, through a neutral port? No doubt the advantage of such prevention may readily become greater, if the enemy be, like Great Britain or Japan, an insular country. The attempt to establish an international prize court constitutes one of the most remarkable advances ever proposed towards the founding of an international jurisdiction, and the effort made in the Declaration of London to furnish a universal law is a step in the right direction. The able framers of the Declaration may be assumed to have made the best compromise that was at the time obtainable. But the question of contraband remains unsolved; and it will so remain either until, by an inconconceivable relapse into primitive sixteenth-century conditions, all commerce with belligerents is forbidden, or until innocent articles of universal use, such as provisions, which, even when consumed by military men, are consumed by them as human beings rather than as soldiers, are, in conformity with the traditional contention of the United States, put beyond reach of capture on loose and interested surmises.32 While seizures of articles commonly classed as conditional contraband have inflicted upon neutrals enormous losses, the effect of such seizures upon the fortunes of the belligerents has by no means been so appreciable as it is often hastily assumed to have been. Lawless, unrestrained and successful as were the depredations on neutral commerce during the wars following the French Revolution, not only did the struggle persist through more than twenty years, but its end was scarcely hastened by the spoliations, which indeed seem rather to have supplied the means of its prolongation. The reduction of the South, during the American Civil War, was sen The comment and forecast thus made in 1912 were remarkably verified in and after August, 1914, when, although the Declaration of London had not become legally operative, attempts were made to apply it, in whole or in part, provisionally as a modus vivendi. sibly accelerated by the cutting off of its commerce, but this result was achieved chiefly by means of blockade. At the Second Peace Conference at The Hague, in 1907, the British government, with a view to diminish the difficulties which neutral commerce encounters in case of war, proposed that the powers should enter into an agreement to abandon the principle of contraband altogether, and to confine the right of visit to the ascertainment of the merchant vessel's neutral character. Such a measure was justified on the ground that, while it had in spite of all efforts been found to be impossible to prevent belligerents from obtaining the munitions which they needed, the attempt to do so had, by reason of the increase in the tonnage of ships, the carrying of mixed cargoes, the lack of any single destination of ship or cargo, the multiplication of the number of articles used in war, and the development of railways and other means of transportation by land, become more and more futile on the part of belligerents and more and more injurious to neutrals. The circumstance that the radical proposal of Great Britain, although it was not eventually adopted by the Conference, received the support of twenty-six of the powers represented therein, while only five voted against it,33 alone suffices to demonstrate the existence of a general conviction that the present state of things is altogether unsatisfactory. Recalling the treaties between Prussia and the United States of 1785 and 1799 for the virtual abolition of contraband, it is curious to find the United States and Ger 33 For: Argentine Republic, Austria-Hungary, Belgium, Brazil, Bulgaria, Chile, China, Cuba, Denmark, Dominican Republic, Great Britain, Greece, Italy, Mexico, Netherlands, Norway, Paraguay, Peru, Persia, Portugal, Salvador, Servia, Siam, Spain, Sweden, Switzerland-26. Against: France, Germany, Montenegro, Russia, United States-5. Abstaining: Japan, Panama, Rumania, Turkey-4. See Deuxième Conférence de la Paix, Actes et Documents, I, 259; III, 881, 890. 34 many acting together as two of the five powers that voted against its abolition in 1907; but, although the United States voted against the British proposal, it is gratifying to note that Admiral Sperry, on behalf of the United States delegation, after the British proposal had failed to secure the unanimous approval of the conference, maintained the historic American position that the right of capture should be confined to articles agreed to be absolutely contraband. In this relation it may be observed that the Institute of International Law, in 1896, after much deliberation, voted that the category of conditional contraband should be abolished, by exempting from capture the articles it includes; the belligerent, however, to have the right, at his pleasure and subject to an equitable indemnity, to sequester or to preempt, when on their way to an enemy port, articles serving equally for war and for peace. Rather than allow existing conditions to continue, it might be advisable to add to the present duties of neutrals the obligation to prohibit the exportation of arms and munitions of war to belligerents, it being agreed that commerce in all other articles should be free. Under the more efficient administrative methods now in vogue, the enforcement of a measure of this kind probably would not prove to be so difficult as it was once supposed to be. Several examples of such a prohibition have already been given.35 By a joint resolution of the Congress of the United States of April 22, 1898, passed at the opening of the war with Spain, the President was "authorized, in his discretion and with such limitations and exceptions as shall seem to him expedient, to prohibit the export of coal or other material used in war from any seaport of the United States until otherwise ordered" by himself or by Congress. Not only 24 Annuaire de l'Institut de Droit International, Vol. 15 (1896), 231. See Westlake's comments, International Law (1st ed.), II, 249. * Supra, pp. 46, 47 36 was this law enforced during the war with Spain, but the President, by a proclamation of October 14, 1905, prohibited, without limitation or exception, till it should be otherwise ordered, the export of arms and munitions of war to the Dominican Republic. This prohibition, as the proclamation recites, was established for what appeared to the President to be "good and sufficient reasons." It was not founded upon any legal obligation. The fact that the American supervision of the Dominican customs administration had then in effect begun furnished a special justification for preventing acts that tended to disturb the public peace of the island. Nevertheless, the interest of the United States in the collection of the Dominican customs can hardly be considered as more important than its interest in the adjustment and preservation of the rights of neutral commerce in time of war. It is not, however, my purpose to intimate that the adoption of further measures to assure the right to trade in articles classed as "conditional contraband," should await the adoption of further restrictions upon trade in absolute contraband."7 APPENDIX Treaty of Commerce between the United States and Italy, Feb. 26, 1871, Articles XII and XV Art. XII. The high contracting parties agree that, in the unfortunate event of a war between them, the private property Moore, Digest of International Law, VII, 194. 36 The late Earl Loreburn, in his volume Capture at Sea, published in London in 1913, said: "I believe it might be wise on our (Great Britain's) part, to agree that every neutral state should be bound to use the means at its disposal for preventing the export of war material in the same way as it is now obliged to prevent the departure of a vessel intending to take part in hostilities. . . . If, however, it were impossible to procure a general consent to the abolition at all events of conditional contraband, it might be possible in the last resort, as part of a comprehensive reform of maritime law, to secure the exemption |