It is to be regretted that no limits were set in this decision to the right of destroying neutral property embarked in an enemy's ship. That such property should be exposed to the consequences of necessary acts of war is only in accordance with principle, but to push the rights of a belligerent further is not easily justifiable, and might under some circumstances amount to an indircet repudiation of the Declaration of Paris. In the case for example of a state the ships of which were largely engaged in carrying trade, a general order given by its enemy to destroy instead of bringing in for condemnation would amount to a prohibition addressed to neutrals to employ as carriers vessels, the right to use which was expressly conceded to them by the Declaration in question. It was undoubtedly intended by that Declaration that neutrals should be able to place their goods on board belligerent vessels without as a rule incurring further risk than that of loss of market and time, and it ought to be incumbent upon a captor who destroys such goods together with his enemy's vessel to prove to the satisfaction of the prize court, and not merely to allege, that he has acted under the pressure of a real military necessity.

Hall, pp. 744, 745; Calvo, sec. 2817.

* *

** * the contents of the duty of belligerents to treat neutrals in accordance with their impartiality are so manifest that elaborate treatment is unnecessary. Such duty excludes * secondly, the appropriation of neutral goods, contraband excepted, on enemy vessels.

Oppenheim, vol. 2, p. 384.

The vessel [of an enemy] will be condemned, as also will Enemy cargo. Neutral cargo will be free (except Contraband).

Holland, p. 12.

In exact accordance with the Declaration of Paris of the 4th (16th) April, 1856, the following rules are to be observed in applying these Regulations:

*

*

*

(3) Neutral goods, with the exception of contraband of war, are not subject to confiscation under an enemy's flag;

Russian Regulations, 1895, Article 2.

* * *

Ships of war and merchant-vessels of the enemy are subject to confiscation as prizes, as well as all articles on board, except

(2) Such as belong to the Government of a neutral Power or to its subjects, and do not constitute contraband of war.

* * *

Observation. All property found in an enemy's ship is to be considered as enemy's property unless the contrary is proved.

Russian Regulations, 1895, Article 10.

Neutral goods, with the exception of contraband of war, may not be seized under the enemy's flag.

Russian Rules, 1904, sec. 5.

Exception as to armed ships.

If, however, the ship [belonging to the enemy] is equipped for fighting, the whole of the cargo shall be condemned.

Japanese Regulations, 1904, Article 40.

War and merchant vessels belonging to the enemy, including their cargo, shall be seized and confiscated. Only cargo belonging to neutral nations and to the subjects of the latter shall not be seized as far as it is not contraband of war.

Turkish Regulations, 1912, ch. 1, Art. 1.

Article 3, Declaration of Paris, is substantially identical with section 44, Austro-Hungarian Manual, 1913.

The "Nereide," 9 Cranch, 388.-The Court said: "The rule * * that the goods of a friend found in the vessel of an enemy are to be restored, is believed to be a part of the original law of nations, as generally, perhaps universally, acknowledged. Certainly it has been fully and unequivocally recognized by the United States In the practical application of this principle, so as to form the rule, the propositions that the belligerent flag communicates no hostile character to neutral property, are necessarily admitted."

* * *

Goods on board armed vessel.

* * *

The "Atalanta," 3 Wheat., 409.-This was a case of cargo belonging to a Frenchman, found on board an armed British vessel, captured by an American man-of-war.

Held that the mere fact that a neutral cargo is found on board an armed vessel of the enemy is not a ground for condemnation.

Cargo ex Mukden, Russian and Japanese Prize Cases, vol. 2, p. 12.—It was held by the Japanese Prize Court that goods captured on a Russian steamer and which had been shipped by neutral and Japanese subjects to neutral subjects in Corea should be released.

NOTIFICATION OF WAR TO NEUTRALS.

The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.-Hague Convention III, 1907, Article 2.

The right to take prizes does not accrue to the belligerents until after the commencement of hostilities. It ceases during an armistice and with the preliminary negotiations for peace. So far as neutrals are concerned the right to take prize cannot be exercised until the belligerents have notified the neutrals that war exists.

Institute, 1882, p. 46.

There is nothing in international jurisdiction, as now practiced, to render such declaration [of war] obligatory, and the present usage entirely dispenses with it. All, however, agree that there should be some manifesto, declaration, or publication made within the territory of the state which declares the war, announcing the existence of hostilities; and such manifesto, or publication, usually sets forth the motives for commencing the war. Some such formal act, proceeding from the competent authority, seems necessary in order to announce to the people at home, and to apprise neutral nations of, the war, for their instruction and direction in respect to their intercourse with the enemy. * * * Moreover neutral states have a right to know, by some formal and authoritive act, that hostilities exist in form as well as in fact, on account of the interests of their own subjects, whose duties and relations to the belligerents are essentially changed by the new conditions of things. It is not material under what form such notice is given, whether by proclamation, or by a mere act of the legislative branch of the government. Halleck, pp. 352, 353.

Where there has been no official declaration of war, and no notification by manifesto of its actual existence, the conduct of neutrals is entitled to the most favorable construction, and neutral property cannot be condemned, for violation of neutral duty, without proof that the war de facto was so public and notorious that the neutral could not have been in ignorance of its existence. But where such knowledge is actually brought home to him, it seems to us to place him in the same position, with respect to the character of his acts, as if an official declaration or manifesto had been issued.

Halleck, p. 370.

Neutrals have a right to know that a state of war exists, and that early enough to adjust their commercial transactions to the altered state of things; otherwise a great wrong may be done them. [Their duties as neutrals date from this official announcement of a state of war or other positive knowledge of it]. Such notice is given in manifestoes.

Woolsey, p. 192.

It was shown in an earlier chapter that as between belligerents no necessity exists for a notification that war has begun or is about to begin. As between belligerents and neutrals, however, the case stands differently. As a matter of courtesy it is due to the latter as friends that a belligerent shall not if possible, allow them to find out incidentally and perhaps with uncertainty that war has commenced, but that they shall be individually informed of its existence. As a matter of law they can only be saddled with duties and exposed to liabilities from the time at which they have been affected with knowledge of the existence of war; when there is no privity between two persons, one can not impose duties or liabilities upon the other by doing an act without the knowledge of the person intended to be affected.

Hence it is in part that it has long been a common practice to address a manifesto to neutral states, the date of which serves to fix the moment at which war begins; and it is evident that when practicable the issue of such a manifesto is the most convenient way of bringing the fact of war to their knowledge. Where war breaks out at a moment which is not determined by the respective governments engaged, or by that which has just done acts of war; as for example when it results from conditional orders given to an armed force, or from an act of self-preservation or pacific intervention being regarded as hostile, a manifesto can not of course be issued before its commencement. But in such cases a belligerent can not expect states to take up the attitude of neutrality contemporaneously with the outbreak of hostilities; even when he has reason to think that the existence of war is known it is his clear duty to give every indulgence to neutrals; and where war breaks out through the performance of an act which one of the two parties elects to consider hostile, the date of its commencement, though carried back as between the belligerents to the occurrence of the hostile act, must be taken as against neutrals to be that of the election through which third powers become acquainted with the fact of war. Hence war can never so exist as to throw upon neutrals their ordinary duties and liabilities without opportunity for the issue of a manifesto having arisen; and though to give express notice, whether in that or in any other form, is merely an act of courtesy, because it is the fact of knowledge however acquired which constitutes the ground of neutral duty, it is evident that the omission of notice may be productive of so much inconvenience and even of loss to neutrals, through the doubt in which they may for some time be left, that the issue of a manifesto is as obligatory as an act of courtesy can well be.1

Hall, pp. 596, 597.

1 Cf. however sec. 168 *. What is said above as to the moment from which states, and therefore their subjects, become affected by the consequences of non-neutral actions does not apply to cases in which neutral persons are engaged knowingly or even ignorantly in carrying out a naval or military operation for an intending belligerent.

If there has been a declaration of war, whether expressly to the enemy or by a manifesto, it is in practice communicated to third powers, although the publicity of a manifesto might make it as suitable for the purpose of notice against neutrals as against the enemy. If the declaration of war has been conditional, the fact that the time fixed by it has expired without the ultimatum being complied with will not be of so public a nature as to amount to notice to third powers, and it must be communicated to them. And in any case the communication to a third power will bind its subjects, it being the duty of every government to give the publicity necessary for the protection of its subjects to all international events of which it is apprised. If as between the belligerents the state of war is dated from the first act of force which either side chooses to regard as war, that antedating can have no effect as against third powers or their subjects. But it will not follow that if there has been no declaration of war, or if there has been a failure in the duty of communicating such a declaration, third powers and their subjects can escape the duties of neutrality during the whole of the contest. If they know the existence of the war, or if it is so notorious that they must be held to have known it, they will be bound by those duties. This is taught by all writers, and was applied by the Italian prize court, 8 December 1896, to justify the capture of the Dutch ship Doelwyk, carrying contraband during a de facto war between Italy and Abyssinia which had not been declared.

Westlake, vol. 2, p. 30; article by Brusa in 4 Revue Générale, 157–175.

The reference to neutral powers in the second article of the Convention [Hague, III] is a recognition of the fact that their interests, as well as those of belligerents, are involved in the substitution of a state of war for a state of peace. When the change comes, it involves both neutral governments and neutral individuals in a complex of new obligations, and confers on them a number of new rights. Obviously it is most important that they should know the exact time when the alteration in their legal position takes effect. The parties to the struggle are, therefore, bound to send them without deÎay notification of the outbreak of war, a message by telegraph being deemed sufficient. Without such notification belligerents cannot enforce their rights against neutrals, unless they are able to show that the requisite knowledge has been acquired in some other way. With modern means of communication a war is not a thing that can be kept concealed. Its existence would be known all over the world in a very short time. But nevertheless the rule that neutrals are not liable for breach of neutrality till knowledge of the outbreak of war has been brought home to them, might affect the validity of captures made at sea in the first outburst of a maritime conflict. In addition to the mere notification required by the Convention, belligerents will probably continue to issue the manifestoes it has long been customary for them to publish in their own territories, as a warning to their subjects and a justification of themselves before the world. And doubtless copies of these manifestoes will be sent, as heretofore, to neutral governments.

Lawrence, pp. 350-351.