ment of the day decided that it was not a direct violation of the clause referred to of the declaration of Paris. Hall, however, says upon this point that: "Nevertheless, it hardly seems to be clear that the differences, even though substantial, between privateers and a volunteer navy organized in the above manner would necessarily be always of a kind to prevent the two from being identical in all important respects.' The Russian volunteer fleet formed in 1877 is engaged in merchant trade in peace time under the merchant flag, with the commander and at least one other officer of the imperial navy on board. During the Russo-Japanese War two of these vessels, the Smolensk and Petersburg, in July, 1904, passed through the Bosphorus and Dardanelles from the Black Sea flying the merchant flag. They subsequently passed through the Suez Canal under the same flag. When in the Red Sea they hoisted the ensign of the imperial navy and the Petersburg captured the P. & O. steamer Malacca for carrying contraband of war, sending her into Algiers with a prize crew. Ultimately, after strong protests from the British Government, these vessels were ordered to haul down the flag of the imperial navy and to cease to act as cruisers, and Russia agreed that all vessels captured by them should be restored.2 A conference and discussion held at the United States Naval War College in 1913 resulted in the following conclusions as to the conversion of merchant ships into ships of war in war time, which is the best assemblage of rules upon the subject at the present time: 1. A private ship converted into a ship of war cannot have the rights and duties accruing to such vessels unless it is placed under the direct authority, immediate control, and responsibility of the power whose flag it flies. 1 Hall, 6th ed., pp. 520, etc. Hershey, "Int. Law and Diplomacy of the Russo-Japanese War," p. 2. Private ships converted into ships of war must bear the external marks which distinguish the war-ships of their nationality. 3. The commander must be in the service of the state and duly commissioned by the competent authorities. His name must figure on the list of the officials of the fighting fleet. 4. The crew must be subject to military discipline. 5. Every private ship converted into a ship of war must observe in its operations the laws and customs of war. 6. A belligerent who converts a private ship into a ship of war must, as soon as possible, announce such conversion in the list of its ships of war.1 7. Conversion of a private ship into a ship of war is not to take place except in the waters of its own state or of an ally or in the waters occupied by one of these. 8. A vessel converted into a ship of war retains its character to the end of the war. 9. These provisions do not apply except between contracting powers and then only if all the belligerents are parties.2 155. Capture of Enemy's Merchantmen.-Among the objects of maritime war that have been previously given is that of the capture or destruction of the maritime commerce of the enemy. This objective is still in force throughout the maritime world, with the exception where treaty between countries provides otherwise. So far as the United States is concerned, such capture is sanctioned by the law of the land and has been practised in all warfare in its history. The treaty between the United States and Italy of February 26, 1871, however, exempts in case of war between the two nations the private property of their respective citizens and subjects from capture or seizure on the high seas except in case of carriage of contraband or violation of blockade. In 1866 the war between Austria and Germany and Austria and Italy was carried on to the end 1 Art. 6, “Hague Convention Relative to the Conversion of Private Vessels into Public Vessels," Higgins, p. 309. 2 Naval War College, "Int. Law Topics," 1913, pp. 153, 154. without any capture of private property at sea. So far as the United States is concerned, by an enactment in 1899 no prize money or bounty is allowed for captures of any kind afloat during war. The United States as a government has been the leading champion in favor of the adoption of the principle of the immunity from capture of private property at sea, excepting for the carriage of contraband and violation of blockade. In 1904 Congress of the United States adopted a resolution in its favor and propositions for the immunity were brought before the first and second Hague conferences by the American delegations. In the second Hague conference the proposition was put to vote, in which twenty-one states voted for, eleven against, one abstained, and eleven were absent. It received the qualified support of Germany, but the opposition of France, Great Britain, Russia, Japan, Spain, and Portugal, with others of lesser rank as maritime powers. Hence the proposition having such strong opposition was considered as lost as an accepted principle and does not figure among the conventions of The Hague. Although officially the United States, with a great number of its statesmen and publicists, has favored this exemption, such publicists and authorities as Wheaton, Kent, Dana, Halleck, Mahan, Hyde, Wilson, and others oppose it. In Europe there seems to be an equal division of advocates and opponents among the same class of men. The arguments of the advocacy of immunity rest mainly upon considerations of humanity, progress, and commercial interests. Its advocates also urge that war is essentially or exclusively a relation between states and their armed forces, and, pointing out the analogy between land and maritime warfare, claim that immunity would tend to the limitation of war, while denying that one of the essential objects of modern warfare is the destruction of the enemy's commerce.1 1 Hershey, "Essentials of Int. Law," pp. 441, 442. In regard to these arguments it may be briefly stated that there are few operations of war in which the private individual is concerned, either afloat or ashore, with less inhumanity connected with them than the capture of private property at sea. In the first place, the growing number of exemptions which concern fishing and other small craft relieve the poorer owners in a way which has no parallel in land warfare; the duration of the time of the days of grace after the outbreak of war gives reasonable notification, while the inviolability of enemy goods under neutral flag and the exemption of officers and crew of the captured merchantmen from being made prisoners of war still further lessen the hardships and inconvenience of such capture. To which may be also added the exemption from capture of the only really private property on board, that belonging to the passengers, officers, and crew. The cargo and vessel has, on the other hand, a semipublic status from its contribution of customs dues and otherwise to the resources of the belligerent whose flag it carries. It is further urged by those in favor of the continuance of this practice that it becomes a matter of patriotic duty and, it may be, even of self-preservation in the interests of a country as a belligerent to consider the war value of every seagoing steamship from the possibility of its use as a naval auxiliary, an army transport, or by conversion into a belligerent and hostile cruiser. In addition there must be borne in mind the pressure for peace resulting from the capture of an enemy's seaborne supplies and provisions, which may become a vital factor to insular countries or states which have become isolated by war and which require external supplies for their redundant population. The narrowing of the effect of war upon the private individual, which runs throughout the whole subject, is further exemplified by the most recent practice of land war with the suffering and desolation that accompany the march of an army with its widely spread detachments. The elimination of the private individual from the fortunes of war seems difficult when their countries are engaged in hostilities. This is especially and very closely the case in land warfare.1 156. Exemptions and Restrictions in Capture in Maritime Warfare. Convention No. VII of the second Hague conference in regard to the treatment of enemy merchant vessels at the outbreak of hostilities, so far as days of grace are concerned, was not signed by the United States on the ground that it was an unsatisfactory compromise. Our own practice in the matters treated in this convention is much more liberal and, as a rule, we may be considered to be in accord with the principles stated that, at the outbreak of war, vessels should be allowed to depart at once or after a sufficient term of grace and to proceed without molestation to their destination. "During the Spanish-American War we allowed by proclamation, issued April 26, 1898, Spanish merchantmen until May 21 for loading their cargoes and departing, and such cargoes were not to be captured on their voyage if it appeared from their papers that the cargoes were taken on board within the time allowed. Exception was made of vessels having on board military or naval officers of the enemy, contraband of war, or despatches to or from the Spanish Government. Generally the period of days of grace allowed for a stay or departure from port by other countries is very short."2 In some cases it is refused unless granted reciprocally. "Vessels employed exclusively in coast fisheries or small boats employed in local trade are exempt from capture, together with their appliances, rigging, tackle, and cargo. This exemption ceases as soon as they take any part whatever in hostilities." This article (3 of Convention XII of the second Hague conference) is binding upon the United States and was in accordance with the decision of the United States Supreme Court in the Spanish-American War. In the last clause of 1 Higgins, "War and the Private Citizen," pp. 66–70. * Stockton, "Manual of Int. Law for Naval Officers," p. 167. |