No act of Congress was passed, subsequently to the making of the contract, which made it unlawful, and it was lawful when made. It is true that the sailing of the vessel without a clearance would have been unlawful, and the deputy collector refused to grant that necessary document while the lead was on board the steamship. But that did not render unlawful the contract to transport. He had the power to refuse to grant the clearance, and he did refuse unless the lead were taken off. In so doing he undoubtedly violated his duty. He was not justified in exacting any such condition for granting the clearance. 55 The neutral, therefore, is not the agent of the belligerent in the matter of contraband; the belligerent acts for itself and in its own interest. The penalty for contraband is condemnation (Article 39), but only if taken in transitu upon the high seas or within the territorial waters of the belligerent, and the vessel is subject to capture throughout the whole of her voyage, even if she is to touch at a point of call before reaching the hostile destination (Article 37); but the successful completion of the voyage prevents condemnation (Article 38). It may be, however, that but a small part of the cargo is contraband, and the question arises, should the vessel be condemned in such circumstances? The Conference answered this question in the negative, and wisely, in Article 40: A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume, or freight, forms more than half the cargo. In commenting upon this provision, the learned reporter says: The consequence is that in order to justify condemnation, it is enough that the contraband should form more than half the cargo by any one of the above standards. This may seem harsh; but, on the other hand, any other system would make fraudulent calculations easy, and, on the other hand, the condemnation of the vessel may be said to be justified when the carriage of contraband formed an important part of her ven ture. In the instructions to the British delegates attention is called to the difference of opinion heretofore existing on this subject: The views of the various Powers as to the liability of the ship carrying the contraband cargo are not altogether in accord. The British principle, speaking generally, is that, apart from any interest of the ship-owners in the contraband cargo, liability to condemnation de 55 195 U. S. 439, pp. 465-466. pends on the existence of forcible resistance or false papers. The Continental Powers, however, generally import a condition that if the contraband forms either in value or in bulk more than a given proportion of the entire cargo the ship will be liable for condemnation. It seems to His Majesty's Government that there is much to be said for this view. It is certainly, on the whole, favourable to neutrals, assuming the proportion to be fixed to be sufficiently large. 56 It is scarcely necessary to add that this article is a compromise, or, as the reporter says, "the solution is the mean between those proposed, which varied from one quarter to three quarters." But the provision seems eminently reasonable, if belligerents are to prevent trade in contraband, and there appears to be no doubt that it will commend itself in practice. Omitting from consideration Articles 41 and 42, which provide for the payment of costs and expenses incurred by the captor when the vessel is released (Article 41) and for the condemnation of that part of the cargo belonging to the owner of the vessel (Article 42), 57 we come to Article 43, which frees from confiscation both vessel and cargo, although permitting the condemnation of the cargo on payment of compensation, in the absence of knowledge of the outbreak of hostilities or of the declaration of contraband, that is to say; of the additions to absolute and conditional contraband in accordance with Articles 23 and 25. This article is not only commendable in itself, but is rendered necessary by the fact that the Second Hague Conference provided that war must be declared and notified, in order to tax neutrals with knowledge and the duties imposed by its existence, and by the further fact that both declaration and notification are essential in blockade and contraband. The text shows that these provisions are conceived in the interest of neutral commerce. 56 Parliamentary Papers, Miscellaneous No. 4 (1909), p. 24. French practice is thus stated in the memorandum submitted by the French Government: "Vessels and the innocent cargo are released unless the contraband composes three-fourths of the cargo in value, in which case the entire cargo and the vessels are confiscated." Ibid., p. 29. 57 "The statement of the King's Advocate is in my opinion the law of nations upon this point. To escape from the contagion of contraband: the innocent articles must be the property of a different owner." Per Lord Stowell in the Staadt Emden, 1 C. Robinson, 26, pp. 30-31 (1798). ARTICLE 43 If a vessel is encountered at sea while unaware of the outbreak of hostilities or of the declaration of contraband which applies to her cargo, the contraband can not be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities, or of the declaration of contraband, has had no opportunity of discharging the contraband. A vessel is deemed to be aware of the existence of a state of war, or of a declaration of contraband, if she left a neutral port subsequently to the notification to the Power to which such port belongs of the outbreak of hostilities, or of the declaration of contraband, respectively, provided such notification was made in sufficient time. A vessel is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities. Article 44 is in a sense the continuation and the necessary complement of the previous article and requires neither comment nor justification for present purposes, other than to say that the legitimacy of the seizure which the captor has the right to make in certain circumstances cannot be determined by him, but must be passed upon in a judicial proceeding. ARTICLE 44 A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship. The delivery of the contraband must be entered by the captor on the log-book of the vessel stopped, and the master must give the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband that has been handed over to him under these conditions. It is believed that the chapter dealing with contraband is satisfactory, if it be taken and its provisions applied in the sense in which they are understood and interpreted in the official report, for doubts and difficulties which might arise from the examination of the text are met and overcome by the clear and precise language of the report and the illustrations which it contains. The explanation contained in the report concerning the radius within which vessels attempting to break blockade are subject to capture harmonizes in fact, if not in theory, Continental and Anglo-American practice, because a careful examination of adjudged cases shows that vessels attempting to enter or to escape from blockaded ports have invariably been captured within the sphere of hostilities, as defined by the Conference and stated in the report. 58 The concession made by Great Britain and the United States, therefore, appears to be rather one of theory than of fact. In the same way, an examination of adjudged cases of capture and confiscation, both of vessels and cargo, shows that the doctrine of continuous voyages, renounced in the case of conditional contraband, is likewise rather a concession of theory than of fact, and that the permission to remove contraband, while permitting the vessel to continue its course, meets what are considered the legitimate rights of the belligerent without too great a disturbance of neutral trade and activity. As in the case of blockade, so in contraband, the Declaration seems to be rather a reconciliation of divergent theories than a compromise of divergent practices, if substance be considered rather than form. JAMES BROWN SCOTT. 58 Professor Holland, perhaps the stoutest opponent of the Declaration, seems to concede this in the following passage: "In defence of the change, it is alleged that of the cases on blockade to be found in the Reports, not one relates to a capture made otherwise than in the neighbourhood of the blockading squadron. Even if this can be shown, it would not prove that no such captures had taken place, or that the mere existence of the rule had not checked blockade-running." (Proposed Changes in Naval Prize Law, 1911, p. 11, footnote.) [To be concluded in the next number.] BOARD OF EDITORS OF THE AMERICAN JOURNAL OF INTERNATIONAL LAW CHANDLER P. ANDERSON, New York, N. Y. CHARLES NOBLE GREGORY, George Washington University. CHARLES CHENEY HYDE, Northwestern University. GEORGE W. KIRCHWEY, Columbia University. ROBERT LANSING, Washington, D. C. JOHN BASSETT MOORE, Columbia University. Editor in Chief JAMES BROWN SCOTT, Carnegie Endowment for International Peace, Washington, D. C. Secretary of the Board and Business Manager EDITORIAL COMMENT MR. BRYAN AND THE THIRD HAGUE PEACE CONFERENCE The motives which led the Czar of Russia to invite the Powers represented at St. Petersburg to an international conference to consider the steps which could be taken to stop the increase of land and naval armaments, to reduce the expenditure which such armaments and their constant increase necessitate and to maintain peace between nations, lie hidden in the archives of the Russian Government, or are known only to the initiated who hitherto have not felt justified in disclosing them. The results of that Conference, which appropriately met at The Hague on May 18, 1899, the birthday of its illustrious and august initiator, are, however, well known and justified the Czar, however exalted, highminded or Utopian his motives may have been. It did not, and in the |