the Russian cases, affirms that the assertion of the right of destruction by four or five or even a larger number of governments and the resort to it in practice by one or more nations does not make the practice legal. "We trust," he concludes, "that it has been demonstrated that if there is such a thing as the law of nations at all, it forbids the sinking of neutral vessels." 25 Hall likewise maintains that neutral ships or goods cannot be destroyed until they have been condemned by a prize court. Ownership of such goods, he holds, does not vest upon capture, but remains in the neutral until judgment of confiscation has been pronounced by a competent court. 26 This in substance is also the view of Phillimore, 27 Atlay, 28 Atherly-Jones, 29 Bentwich, and most of the other English authorities.

Bentwich remarks that the considerations which impel modern cruisers to destroy their enemy prizes, such as the lack of a sufficient supply of coal and the difficulty of sparing a prize crew, impel them also to sink neutral prizes, but they have not the same right in the one case as in the other. At best the neutral cargo can be destroyed by the captor only when it is absolute contraband, but the ship is not his property to deal with.30 English judicial authority, like that of English text founded, both upon grounds of justice and public policy, but unfortunately most prize codes do not expressly recognize it. Cf. also, Wilson on International Law, p. 413.

25 Britain and Sea Law, pp. 20, 24. Elsewhere Baty has proposed the rule that "in no case is it permissible to sink or otherwise destroy a neutral prize; but absolute contraband may be removed to another vessel or jettisoned in case of necessity" (Law Magazine, 1906)—a rule which might well be adopted as a part of the law of the sea. In an article entitled La Destruction des Prises Neutres in the Rev. de Droit Int., 2d ser., Vol. 8, p. 434 (1906), Baty maintains that the recent practice of destroying neutral prizes has been introduced without authority. The fact, he says, that "no neutral prize has ever been sunk in modern wars because of the impossibility of taking it in is proof convincing." To admit such a right is to make naval commanders the judges in such matters. Valin (Traité des Prises Maritimes), who is sometimes cited as authority for the practice, he says, never professed such an opinion; indeed none of the authors, such as Cussy, Reddie or Wheaton, who have treated the subject of capture, ever said a word in favor of it.

26 International Law, 5th ed., p. 735. International Law, Vol. III, p. 432.

28 See his edition of Wheaton, Sec. 359e. 29 Commerce in War, p. 531.

30 Law of Private Property in War on Land and Sea, p. 112. See also his Declaration of London, p. 21.

writers, has likewise denied the legality of destruction. Lord Stowell, in the case of the Felicity, in 1819, said:

Where it is neutral the act of destruction cannot be justified to the neutral owner by the gravest importance of such an act to the public service of the captor's own state; to the neutral it can only be justified under any circumstances by a full restitution in value. These rules are so clear in principle and established in practice that they require neither reasoning nor precedent to illustrate or support them.31

In the cases of the Acteon and the Rufus, American merchant vessels destroyed by British cruisers during the Napoleonic Wars, he decreed full restitution, and in the case of the William, whose American nationality was quite dubious, he awarded restitution without costs and damages. 32 So, during the Crimean War, Dr. Lushington, while affirming the right and duty of a captor in certain cases to destroy enemy merchant vessels, declared that

For wholly different reasons, which I need not enter upon, where a vessel under neutral colors is detained, she has the right to be brought to adjudication, according to the regular course of proceedings in the prize court; and it is the very first duty of the captor to bring it in, if it be practicable.33

Baty, commenting on these decisions, remarks that they have sometimes been represented as showing that Stowell and Lushington regarded it as permissible for a cruiser to sink any ship it liked upon condition of making restitution and paying damages and costs, but, in fact, he affirms, they admitted no such principle; all they were concerned with was the remedy their own court could give the owner. They were not concerned with the question of the right to destroy a neutral vessel; "in fact, they scarcely contemplated the occurrence of such an outrage; it was and had been for centuries an unheard-of thing." 34 Among Continental publicists, Kleen is a vigorous opponent of the right of destruction. The destruction of neutral property is never a "necessity

21 Dodson's Admiralty Reports, Vol. II, p. 381.

32 Baty, Britain and Sea Law, p. 3. For a full discussion of these cases, see Smith and Sibley, Int. Law as Interpreted and Applied During the Russo-Japanese War, pp. 164-169.

33 The Leucade (1855), Spink's Prize Cases, p. 221.

34 Britain and Sea Law, p. 5.

of war" he says, and the captain of a cruiser who in open sea commits such an act arrogates to himself the powers of a judge,—a quality which does not belong to him.35 Destruction is everywhere, he adds, recognized as criminal, and in view of the almost unanimous disapprobation of the practice, it is surprising that the prize codes of some modern states, like France, Russia and the United States, should admit the right of destruction, without even expressly limiting the right to enemy prizes. Among other Continental writers who do not admit the right to destroy neutral prizes may be mentioned, Bluntschli,36 Nippold 37 and, apparently, de Boeck,38 Gessner,39 and Bonfils, 40 Taylor,41 Woolsey, 42 and Wheaton, 43 among American writers, likewise deny the right to destroy neutral prizes.

There is, however, much authority in favor of the right to destroy in exceptional cases. Oppenheim 44 remarks that the practice of states 35 Lois et Usages de la Neutralité, t. II, p. 532.

36 Droit International Codifié, Sec. 672. Bluntschli does not even recognize the right to destroy enemy prizes. The difficulty of finding a port into which a prize may be taken offers no justification, he says, for destruction.

37 Cited by Huberich in an article on The Destruction of Neutral Prizes, in the Illinois Law Review, for May, 1915.

38 De la Propriete Privée Enemie Sous Pavillon Enemie, p. 302.

39 Le Droit des Neutres Sur Mer (1876), p. 348.

40 Droit Int. Public, Sec. 1415. There is some uncertainty as to the opinions of Boeck, Gessner and Bonfils, as they do not distinguish clearly between the destruction of enemy prizes and neutral prizes. It may at least be said, however, that they do not expressly recognize the right to destroy neutral ships.

41 International Public Law, p. 573. "It is generally agreed," says Taylor, "that a neutral prize should never be burned." He is, of course, in error as to such general agreement.

42 International Law, Sec. 184. "The right to destroy," he says, "is barbarous, and ought to disappear from the law of nations," and he makes no distinction between enemy and neutral prizes.

43 Cited by Baty (Britain and Sea Law, pp. 5-6), who calls attention to a treatise on captures written in 1815 by Wheaton, and based on the researches of Story, yet Wheaton "did not so much as advert to the possibility of destroying neutral prizes. The practice was utterly unknown and incredible to him." In his Elements of International Law, Wheaton discusses at length the disposition of prizes, but says nothing of the right to destroy either enemy or neutral prizes.

44 International Law, Vol. II, p. 471, n. 2. Calvo, Sec. 3019, states that, as a general rule, a neutral prize may not be destroyed, but that it is permissible in exceptional circumstances, as, for example, in case of "imperious military necessity" or force majeure resulting from pursuit of the enemy or inability to spare a prize

does not recognize the English rule of absolute prohibition, and he cites Geffcken, Calvo, Fiore, Martens, Dupuis, and Perels, and he might have added Rivier 45 and others, in favor of the right to destroy in certain cases. Westlake is one of the few English writers who admits the right of destruction. A neutral, he says, cannot justly complain if his property is destroyed when, if it is brought in, it would be condemned under the law of blockade or contraband.46 Holland, as we have seen, took the same view in 1905; and Moore, commenting upon Hall's opinion, remarks that the authorities hardly sustain it as a rule of unqualified or universal obligation.47 The American publicist Dana 48 maintained that necessity would justify destruction, as, for example, where the vessel is unseaworthy, or where there is danger of immediate recapture, or in the case of infectious diseases on the ship. At the time of the controversy between the British and Russian Governments over the sinking of the Knight Commander, Mr. Loomis, Acting Secretary of State of the United States, sent a telegram to Mr. Choate, American Ambassador to Great Britain (July 9, 1904), saying that the American Government considered that the sinking of the vessel was not justified by the bare fact that there was contraband on board,49 and on July 30th the Russian Government was informed that the Government of the United States would "view with the gravest concern the application of similar treatment to American vessels and cargoes." 50 But in a subsequent telegram of August 6th to Mr. Choate, Secretary Hay stated that he was not prepared to say that in case of imperative necessity a prize may not be lawfully destroyed by a belligerent captor." 51

In the presence of this conflicting opinion regarding the right to de

crew. See Martens, Traité de Droit Int., Vol. III, p. 298, and Perels, Manuel de Droit Maritime (French trans. by Arendt), p. 334; and Dupuis, Le Droit de la Guerre Maritime d'aprés les Confs. de la Haye, etc., p. 368, to the same effect.

45 Principes du droit des Gens, Vol. II, p. 350.

46 International Law, Vol. II, p. 309.

"Digest of Int. Law, Vol. 7, p. 523.

48 Edition of Wheaton, p. 485. Cf. also, Wilson, International Law, p. 413, who admits that a neutral vessel may be sunk in exceptional cases, though great caution, he adds, should be taken before destroying it.

49 United States Foreign Relations, 1904, p. 333.

53

stroy neutral prizes, the Second Hague Conference entered upon a discussion of the subject in the hope of removing the uncertainty and of securing a general agreement in respect to the conditions under which destruction should be admitted, if at all.52 In the proposal submitted by the British delegation, the view was expressed that the destruction of neutral prizes should be prohibited absolutely and that every neutral prize which could not be taken in for adjudication should be released." Sir Ernest Satow defended with much ability the British proposal.54 The destruction of neutral prizes, he said, was contrary to international law and the proposal to admit it was a dangerous innovation. The American delegation submitted a proposal identical in substance with that of the British, and it was ably sustained by General Davis upon grounds of both humanity and justice. The present construction of ships of war, he said, offers few accommodations for persons taken from captured ships, and, besides, they would be exposed to the danger of battle in a much greater degree than when fleets were constructed of wood and propelled by sail.55

In the proposal submitted by the Russian delegation, however, it was maintained that the absolute prohibition of the destruction of neutral prizes would have the effect of establishing a grave inequality between those Powers which have colonial ports in many seas, to which they might take their prizes for adjudication, and those, like Russia, which have no such facilities. The Russian delegation, therefore, proposed that the right of destruction be admitted in exceptional cases, as where the safety of the captor would otherwise be compromised or the success

52 The matter had been already considered by the Institute of International Law at its meeting at Turin in 1882, and the prize règlement which it adopted recognized the right to destroy prizes in certain exceptional cases. No distinction was made between neutral and enemy prizes and apparently none was intended to be made. There was some opposition, especially by the English members, to the règlement because of the failure to recognize this distinction, and at the session of 1883 the règlement was amended and the right to destroy was expressly limited to enemy prizes. The manual of maritime war adopted by the Institute at its Oxford meeting in 1913 (Art. 139) recognizes the right to destroy enemy vessels, but nothing is said in regard to the right to destroy neutral prizes (see the Annuaire of the Institute, Vol. 26, p. 348).

53 Deuxième Conférence International de la Paix, actes et documents, p. 1134. 54 Ibid., pp. 903–907.

55 Ibid., p. 1050.