In 1803 a treaty was concluded between Great Britain and Sweden. The following is the Second Article of that Treaty:

Les croiseurs de la Puissance bélligerante exerceront le droit de detenir les batimens de la Puissance neutre allant aux ports de l'ennemi avec des chargemens de provisions ou de poix, résine, goudron, chanvre, et généralement tous les articles non manufacturés, servant à l'équipement des bâtimens de toutes dimensions, et également tous les articles manufacturés servant à l'équipement des bâtimens marchands (le hareng, fer en barres, acier, cuivre rouge, laiton, fil de laiton, planches, et madriers, hors ceux de chêne et esparres, pourtant exceptés); et si les chargemens, ainsi exportés par les bâtimens de la Puissance, neutre, sont du produit du territoire de cette Puissance, et allant pour compte de ses sujets, la Puissance belligérante exercera dans ce cas le droit d'achat sous la condition de payer un benefice de dix pour cent sur le prix de la facture de chargement fidélement déclaré, ou du vrai taux du marché soit en Suede soit en Angleterre, au choix du propriétaire, et en outre une indemnité pour la détention et les dépenses nécessaires.

Here then we find the system of preemption defined, and legalized. Manning (Law of Nations), after referring to the older treaties of the seventeenth century, says:

In this country, although some of the treaties [i.e. seventeenth century treaties] above quoted show that our government formerly recognized the right of Pre-emption in its most comprehensive scope, yet such exercise of the right has, with us, long fallen into disuse. Pre-emption is confined in our practice to those instances where goods are of that description that their transport to our enemy would be manifestly to our disadvantage, while, on the other hand the law of Contraband does justify their confiscation. "Pre-emption," said Sir William Scott, "is no unfair compromise, as it should seem, between the belligerents' rights, and the claims of the neutral to export his native commodities, though immediately subservient to the purposes of hostility."

In the case of the Haabet,1 Lord Stowell (Sir William Scott) said:

The right of taking possession of cargoes of this description, Commeatus or Provisions, going to the enemy's ports, is no peculiar claim of this country; it belongs generally to belligerent nations. The ancient practice of Europe, or at least of several maritime States of Europe, was to confiscate them entirely; a century has not elapsed since this claim has been asserted by some of them. A more mitigated

1 The Haabet (No. 1), 2 C. Rob. 174; 1 Roscoe's Prize Cases, 212. See p. 214.

practice has prevailed in later times of holding such cargoes subject only to a right of pre-emption, that is, to a right of purchase upon a reasonable compensation, to the individual whose property is thus diverted.

The reasoning of Manning and of Lord Stowell seems unanswerable and is a confirmation of the wisdom and justice of the Jay Treaty and the Swedish Treaty.

But since the great Revolutionary and Napoleonic wars many things have happened. Conscription has become universal in Europe. Even in times of peace. For years Europe has been in presence of the "Nation in Arms": nor has the organization for war stopped at the military forces. The railways-the means of production and distribution of all commodities have been so arranged as to pass under what is virtually government control immediately on the outbreak of war.

Contemporaneously with the changes in organization there have been changes in the material of war. Science has not been idle, and the best brains in Europe and America have been applied to utilizing all the resources of chemistry-or metallurgy-as well as all the forces of nature for the purposes of war. The list of articles that have a double use now includes almost every product either in a raw or manufactured state. It is almost impossible to say what is not or may not become conditional contraband. Raw cotton, india-rubber, motorcars, steam yachts-all mineral or vegetable products may have a military use. In fact everything may be, and probably is, conditional contraband. Sive instrumenta bellica sint, sive materia per se bello apta (Bynkershoek). It was in the presence of this difficulty that the Foreign Office addressed the following instruction to Sir Edward Fry, the British representative at the Second Hague Conference. The paragraph is given in full.

With regard to contraband, many most difficult questions arose during the late war. These cases were sufficient to show that the rules with regard to contraband that were developed at the end of the eighteenth and the beginning of the nineteenth centuries are no longer satisfactory for the changed conditions under which commerce and war are now carried on. His Majesty's government recognize to the full the desirability of freeing neutral commerce to

the utmost extent possible from interference by belligerent Powers, and they are ready and willing for their part, in lieu of endeavoring to frame new and more satisfactory rules for the prevention of contraband trade in the future, to abandon the principle of contraband of war altogether, thus allowing the oversea trade in neutral vessels between belligerents on the one hand and neutrals on the other to continue during war without any restriction, subject only to its exclusion by blockade from an enemy's port. They are convinced that not only the interest of Great Britain, but the common interest of all nations will be found, on an unbiassed examination of the subject, to be served by the adoption of the course suggested.

Even Homer nods, and the British Foreign Office which on the whole deserves the gratitude of mankind for its constant efforts to limit the hardships and the horrors and injustice of war, showed less than its usual clear vision in this paragraph.

It was proposed to abolish contraband because practically everything had become contraband. A strange and insufficient reason.

It was proposed to substitute blockade with all the penalties incidental thereto, for the more merciful system approved in the Jay Treaty and by Lord Stowell, that is to say, it proposed to substitute the confiscation of commerce for the control of commerce.

And it was proposed to rely on blockade when blockade in the legal sense had become impossible or would shortly be rendered impossible by the submarine.

But there is some excuse for this defect of vision. The present writer happened about that date, i.e., 1907, to discuss the naval position with a captain in the German Navy who has achieved distinction as an authority on naval subjects. To the remark that the submarine was a new weapon which would change naval war, the German captain replied:

I don't believe it. The submarine is dangerous to its crew, look at the accidents that have taken place-if anything goes wrong, and things must always go wrong sometimes, everyone is drowned or suffocated. No, I have no faith in submarines, what we want is more battleships and bigger battleships. For our present ships are too small. We want bigger guns and bigger ships if we are to face your Fleet.

It is right to add that at the outbreak of the present war the Germans actually possessed a smaller fleet of submarines than the British.

If then the German Admiralty which foresees everything and prepares everything did not foresee the potentialities of the submarine, or the barbarous use they intended to make of the new weapon, the British Foreign Office may be excused for not having been gifted with a greater foresight as to the influence of submarines on blockade.

Fortunately the British proposal was not accepted by the Con

ference.

THE FREEDOM OF THE SEAS

It will be convenient at this stage to consider another proposal which has been made; namely, the immunity of private property at sea, except contraband of war. For purely controversial purposes it might be sufficient to say that as everything is now contraband of war the proposal is inapplicable; but such a reply would be wanting both in courtesy and honesty. For the advocates of the proposal have certainly intended a great restriction of the list of contraband. The proposal has been made by four American Presidents and by writers such as Bluntschli, Pierantoni, De Martens, Bernard, Massé, de Lavelaye, Nys, Calvo, Maine, Hall, Woolsey, Field, Amos, etc. By English statesmen such as Brougham, Palmerston, Cobden, and Loreburn, as well as by Mill. It must therefore be examined as a proposal that comes before the world supported by the very highest authority.

The first criticism is that sea power always has been, is now, and always will be the power of the mercantile nation, as distinct from the military nation. It is possible that the trident may pass from the hands of England to the hands of America, many persons believe it will. Shipping and sea power go together, both require wealth to support them. But even so, it will only pass from the hands of one mercantile nation to the hands of another mercantile nation. To take the points from the trident is therefore to weaken the power of the mercantile nation in favor of the military nation. Is this desirable? The writer thinks not. The mercantile nation lives by peace and seeks peace. The military nation prepares for war, and regards war as a phase of policy-that is as a more active development of foreign policy than that pursued by the peaceful methods of diplomatists en

gaged in the game of chicane or of intrigue or coercion of neighboring or rival states.

The matter was carefully considered by the British Government in 1907, and their view is expressed in the instructions addressed to Sir Edward Fry by Sir Edward Grey. The following is an extract from those instructions:

It is probable that a proposal will be brought before The Hague Conference to sanction the principle of the immunity of enemies' merchant ships and private property from capture at sea in time of war. His Majesty's Government have given careful consideration to this question, and the arguments on both sides have been fully set out in the various papers which have been at your disposal. They cannot disregard the weighty arguments which have been put forward in favor of immunity. Anything which restrains acts of war is in itself a step towards the abolition of all war, and by diminishing the apprehension of the evils which war would cause, removes one incentive to expenditure upon armaments. It is also possible to imagine cases in which the interests of Great Britain might benefit by the adoption of this principle of immunity from capture.

The British Navy is the only offensive weapon which Great Britain has against Continental Powers.

For her ability to bring pressure to bear upon her enemies in war Great Britain has therefore to rely on her Navy alone. His Majesty's Government cannot therefore authorize you to agree to any Resolution which would diminish the effective means which the Navy has of bringing pressure to bear upon an enemy.

In the recent war England and America, the two mercantile, and nonmilitary nations, had large armies fighting on the Continent of Europe: but those armies had been transported and existed in virtue of sea power. The German armies opposed to them felt the pressure of sea power. The difficulties of the German soldier in regard to ammunition, transport and food, were the creation of sea power. If there was a shortage of copper for cartridges, of glycerine and cotton for explosives, of materials for poisonous gas, the shortage was caused by sea power.

Facts are stubborn things, and the facts of the recent war justify those men who clung to the belief in sea power as a weapon of war and believed that the same conditions that created that power would