. INTERNATIONAL LAW APPLIED TO THE RUSSO-JAPANESE WAR- WITH THE DECISIONS OF THE JAPANESE PRIZE COURTS BY SAKUYE TAKAHASHI V MEMBER OF THE I. J. ACADEMY; LL.D. (HOGAKUHAKUSHl) PROFESSOR OF INTEENATIONAL LAW IX THE IMPERIAL UXIVEESITY OF TOKYO ; FOEMER PEOFESSOE OF THE I. J. XAVAL STAFF COLLEGE; VICE-PEESI- DEXT OF THE IXTEEXATIOXAL LAW ASSOCIATIOX, LOXDOX ; LEGAL ADVISEE TO THE JAPAXESE FLEET DUEIXG THE CHIXO- JAPAXESE WAR; MEMBER OF THE LEGAL COMMITTEE IX THE I. J. DEPARTMEXT FOR FOREIGX AFFAIRS DURIXG THE RUSSO-JAPAXESE WAR; AXD THE AUTHOR OF THE " CASES OX IXTER- XATIOXAL LAW DURIXG THE CHIXO- JAPAXESE WAR" (ENGLISH EDITION) LONDON STEVENS AND SONS, LIMITED 119-120 CHANCERY LANE LAW PUBLISHERS 1908 Copyright, 1908, by SAKUYE TAKAHASHI PRINTED AT THE TROW PRESS, NEW YORK, U. S. A. PREFACE. The Eusso-Japanese War is significant as one of the most important events the world ever witnessed. Especially is it an epoch-making event in the evolution of International Law. This war, in fact, has afforded innumerable cases that illus- trate almost every article of The Geneva and The Hague Con- ventions relating to Laws and Customs of Land and Naval Warfare, and, furthermore, has presented cases without prece- dents, suggesting the desirability of a thorough revision of the present laws. International Law may be studied in two different ways; namely, the inductive method, which discovers principles from accumulated facts ; or the deductive method, which, after estab- lishing certain principles, collects facts necessary to maintain them. In my present treatise I have made use of both methods. Headers are cautioned against regarding this work as being too descriptive. It has been my aim to avoid theoretical con- troversies on all principles generally agreed to be correct. In such cases I have merely quoted the facts relating to these principles, and intentionally refrained from making many foot- notes reciting authorities. Every specialist on International Law has been called upon to express his views, so as to aid as much as possible in the solution of such problems as the establishment of hospital liners in the blockaded ports, the disarmament of belligerent warships and internment of belligerents in neutral ports, the destruction of captured merchantmen, the relation of the support of pris- oners to their employments, etc., all of which questions have heretofore been either inadequately treated or not referred to. I have never hesitated to publish my personal opinions on these problems, expecting that they might be freely criticised. 256006 VI PREFACE. On the commencement of the war, Dr. Terao, Dr. Xama- mura, and myself — three of the seven advocates for war — were commissioned by the Department for Foreign Affairs to make certain investigations, ' and to answer various important ques- tions during the course of hostilities. One year's experience in such a position, together with three years of study on the subject, has enabled me to become fully acquainted with every detail of the international contest, and it is not from a desire for personal glory, but from a sense of duty that I have com- piled the present treatise. Some years ago I published a volume entitled " Cases on International Law during the Chino-Japanese War." This was after I had served as legal adviser to the Commander- in-Chief of the Japanese Fleet during that conflict. In the former treatise I refrained from discussing matters pertaining to the war on land, because I was not in a position to do the work thoroughly. In the present volume I have included all matters, both naval and military, which occurred during the late war, for my official position enabled me to study both branches. Now I am permitted to publish what I believe will be a material aid to the study of Diplomacy and International Law. I hereby acknowledge the fact that I am under obligation to Messrs. W. M. Vories, M. S. Vail, P. B. Waterhouse, H. B. Schwarz, Ch. E. McPeek, and F. A. Mosher for kind assistance in correcting my English and in reading the proof-sheets. Many of the official documents which appeared in the Official Gazette, Tokyo, at the time, and which have been incorporated in this treatise, were kindly translated by Messrs. H. Kotani, Y. Nakagawa, T. Chiba, S. Henmi, and so on. Sakuye Takahashi. On the 10th of April, 1908, the 325th Anniversary of Hugo Grotius' birthday. CONTENTS. PART I. THE OUTBREAK OF WAR, AND ITS EFFECTS. CHAPTER I. The Outbreak of War. PAGE Sect. I. General statements . .1 Sect. II. The Russian protests and the Japanese answer . . 9 Sect. III. A personal observation on the Russian declaration . 14 (1) Data concerning the outbreak of the war. (2) Hos- tilities need no precursive notice. (3) On the Rus- sian manifesto concerning Korea. CHAPTER II. The Protection of Subjects of One Belligerent and Their Property within the Territory of the Other, on the Outbreak of War. Sect. I. The days of grace allowed the enemy's subjects . . 26 (1) Japanese attitude. (2) The Russian attitude. Sect. II. The protection of Catholics and Catholic Missionary Institutions in the Far East by the Japanese Govern- ment 38 Sect. III. The American protection of Japanese in Russian terri- tories 42 (1) The withdrawal of the Japanese from Vladivostock. (2) From Port Arthur. (3) From Odessa. (4) Through Europe. CHAPTER III. Days of Grace Allowed the Enemy's Vessels at the Outbreak of War 59 vii Vlll CONTENTS. CHAPTER IV. PAGE Effect of the Outbreak of War on Foreigners in the Belligerent States; War Taxes on Foreigners . . 70 CHAPTER V. Trading with the Enemy, and Prohibition of the Exporta- tion of Goods Suitable for Warlike Purposes . . 82 PART II. LAWS AND CUSTOMS OF LAND WARFARE. CHAPTER I. Combatants. Qualifications of a combatant ; The Japanese principle during the Chino- Japanese War, and the Russo-Japanese War; Russian principles 89 CHAPTER II. Prisoners of War. Sect. I. Treatment of Prisoners. . . . . . .94 (1) Personal investigation by Mr. Smith, U. S. Vice-Consul at Moskow. (2) Treatment of the Russian prisoners in Japan. Parole necessary for free outdoor exercise . . .107 Prison barracks 113 Bureau of information for prisoners . . . .114 Restoration of personal property left by Russian soldiers 118 Postal regulations 122 Support and pay of prisoners of war . . . . 1 23 Labour of prisoners of war 124 Wearing of swords by prisoners 127 Prisoner's offences 129 The sick, wounded and deceased . . . .132 Crews of merchantmen 138 Russians in medical service, non-combatants and deceased 140 Delivering of prisoners of war 142 Prisoners and religion 146 Sect. H. Sect. HI. Sect. IV. Sect. V. Sect. VI. Sect. VII. Sect. VIII. Sect. IX. Sect. X. Sect. XI. Sect. XII. Sect. XIII. Sect. XIV. Sect. XV. CONTENTS. IX CHAPTER III. The Treatment of the Killed. PAGE Baron Suyematsu's article on the subject. Regulations for clearing the field after an engagement, and for burying those who have been killed, or have died of disease . . . .148 CHAPTER IV. Means op Injuring the Enemy. Sect. I. False accusations of the Russian Government against the Japanese Army refuted 155 (1) Concerning the Japanese soldiers firing upon a Russian train flying the Red Cross flag near Pulan- tien. (2) The false accusation of the Japanese troops' firing upon the Russian Red Cross flag. (3) The false accusation of the Japanese troops' firing at the Russian Red Cross Hospital in Port Arthur. (4) The report that Japanese soldiers abused the Red Cross flag in a conflict near Chong-ju. (5) The false accusation of a Russian surgeon treated unjustly at Tashichiao. (6) Slander on Japan's treatment of Russians killed and wounded. Sect. II. Russian breaches of the rules of war . . . .163 (1) Cases of Russians' firing at the Japanese field hos- pitals. (2) Russian outrages. (3) The use of dum- dum bullets. (4) The wearing of Chinese costumes by the Russian Army; an example of Russian stratagem. (5) Violation of International Law by the Russian Army in Sakhalin. CHAPTER V. Spies. Sect. I. Spy 185 (1) The case of Casimil Miaczyonski. (2) Chinese spies. (a) The case of Chen, the magistrate of Liao-yang and Wang the ex-magistrate of Haicheng. (b) The case of the president of the bureau of communication at Mukden and fifteen other officers, (c) The case of the magistrate of Kang-ping prefectory. (d) A Chinese spy using doves, (e) Case of Chang. Sect. II. Violation of regulations concerning the protection of military secrets 190 CONTENTS. CHAPTER VI. Siege and Bombardments. PAGE Sect. I. Alleged bombardment of hospitals in Port Arthur . 195 Sect. II. Non-combatants in Port Arthur 203 Sect. III. The German officers from Port Arthur .... 206 CHAPTER VII. The Capitulation. Sect. I. General StoessePs proposal to surrender . . . 209 . 210 . 211 . 215 . 218 Sect. II. Stoessel communicates with the Czar Sect. III. Terms of the capitulation Sect. IV. The transfer of the forts .... Sect. V. Russian prisoners at Port Arthur CHAPTER VIII. Armistices. Sect. I. The protocol of the armistice . . . . . .219 Sect. II. The armistice in Manchuria 220 Sect. III. The armistice at Port Arthur 221 Sect. IV. The naval protocol of the armistice .... 222 Sect. V. The armistice in North Korea 224 CHAPTER IX. The Occupation of Sakhalin. Sect. I. Premeditated plan for the occupation of Sakhalin Island 225 Sect. II. Surrender of the Sakhalin Army 227 Sect. III. The military administration system . . .229 Instructions to military administration officers. Sect. IV. Treatment of the population of the occupied territory 231 (1) Russian civil officers, their families and the families of military officers at Sakhalin. (2) Russian sub- jects. (3) Exiles, (a) Political exiles, (b) Crimi- nals. (4) Priests. Sect. V. Public and private properties at Sakhalin . . . 239 (1) Forests. (2) Coal mines. (3) Petroleum fields. Sect. VI. Application of The Hague Convention, Article LVI . 244 (1) Protection of orphanages. (2) Protection of charity hospitals. (3) Nowmihailovskoe lunatic asylum. (4) Churches. (5) Schools. (6) Museums. (7) Pro- tection of the rights of the inhabitants of Sakhalin Island. CONTENTS. XI CHAPTER X. The Occupation of Manchuria. PAGE Sect. I. Principles and regulations concerning the administra- tion of the occupied territory in Manchuria. The pre-arrangement of the administration of the occu- pied territory in Manchuria 250 Sect. II. The results of administration in the occupied territory of Manchuria . 257 Sect. III. Requisitions and booty 260 Sect. IV. Private properties of Russian inhabitants . . . 262 Sect. V. Protection of historical and religious buildings, hospitals and others 263 Sect. VI. The protection of subjects of the other Powers in Manchuria 266 (A) An example relating to American citizens. (B) An example relating to British subjects. (C) An ex- ample relating to Austrian subjects. (D) An ex- ample relating to Italian subjects. (E) An example relating to Hollanders. (F) Protection of the Chinese. PART III. LAWS OF NAVAL WARFARE. CHAPTER I. The Sinking of Merchantmen. Sect. I. The sinking of Japanese vessels 284 (1) The sinking of the Nakonoura Maru. (2) The sinking of the Goyo Maru and the Haginoura Maru. (3) The sinking of the Kinshiu Maru. (4) The Okinoshima disaster. (5) The sinking of the Seisho Maru and the Koun Maru. (6) The sinking of the Jizai Maru, Fukuju Maru, Takashima Maru, Kaho Maru and Hokusei Maru No. 2. (7) The sinking of the Japanese sailing ship Hachiman Maru No. 3 and Hokusei Maru No. 1. (8) The sinking of the Keisho Maru. (9) The sinking of the Han-yei Maru. Sect. II. The sinking of neutral ships 310 (1) The sinking of the Knight Commander. (2) The sinking of the German S. S. Thea. (3) The Hipsang incident. (4) Disaster to merchantmen inflicted by Xll CONTENTS. PAGE the descent of the Baltic fleet, (a) The sinking of the St. Kilda. (b) The sinking of the Ikona. (c) The destruction of the Old Hamia. (d) The sinking of the Tetatos. Sect. III. An observation on the destruction of merchantmen . .310 CHAPTER II. Incidents with Bearing on Prize Law. Sect. I. The Daijin Maru incident 337 Sect. II. The Prometheus case 340 Sect. III. The ships for scientific exploration towards the North Pole 353 Sect. IV. The Independent affair 354 Sect. V. Claims for damages caused by capture .... 355 (1) The Crusader. (2) The Eastry. CHAPTER III. The Blockade op the Liaotung Peninsula. Sect. I. Details of the blockade 359 Sect. II. Medicines and medical stuffs destined for Port Arthur 361 Sect. III. On the establishment of a hospital liner . . .370 Sect. IV. Blockade runners 371 Sect. V. A legal problem involved in the blockade of Lyao-Tung 373 CHAPTER IV. Concerning Floating Hospitals. Sect. I. Negotiations about Japanese floating hospitals . .375 Sect. II. Opinions of the master and chief physicians of hospital vessels, in question relating to The Hague Conven- tion for the application of The Geneva Con- vention to maritime warfare 376 (1) Reprehensibility of the omission of Article X. (2) How to make a hospital ship recognisable by night. (3) Is there any need of colouring a neutral hospital-ship otherwise than green or red? (4) Is it justifiable for a hospital-ship or a ship not a hospital to rescue the sick and wounded by venturing, during the battle, into the place of combat? Or is such conduct to be allowed only after the battle? (5) The disposal of the wounded and sick received on a neutral ship. CONTENTS. Xlll CHAPTER V. PAGE War Correspondents of Foreign Newspapers and Corre- spondents' Ships 386 CHAPTER VI. The Coast Bombardment. Bombardments of Kaiping and Kinchow; Bombardments of Kai- ping and neighbourhood; The San-shan Island affair . .407 PART IV. NEUTRALITY. CHAPTER I. Russian Warships in Neutral Ports. Sect. I. Russian warships at Shanghai 418 (1) The Mandjur affair. (2) The Askold and the Grozovoi at Shanghai. (3) The Bodri and the Russian transports. Sect. II. The Russian warships at Chefoo 437 (1) The Ryeshitelni affair. (2) The Ratstoropny affair. (3) Russian warships which escaped into Chefoo after the fall of Port Arthur. Sect. III. Russian warships at Kiaochow 447 Sect. IV. Russian warships at Manila 452 Sect. V. The Diana at Saigon 453 Sect. VI. The sojourn of the Russian auxiliary cruiser Lena in the harbour of San Francisco 455 Sect. VII. The Terek at Batavia 457 CHAPTER II. The Treatment of Belligerents in Neutral Ports. Sect. I. General observations 459 Sect. II. Chemulpo incidents 462 Sect. III. Breaches of parole by Russian officers . . .467 Sect. IV. The Russian torpedo-destroyer Bluni stranded at Wei- hai-wei 473 Sect. V. The Shanghai murder case 476 Sect. VI. The crew of the Lena at San Francisco .... 482 XIV CONTENTS. CHAPTER III. The Sale of Vessels by Neutrals to Belligerents. PAGE Sect. I. Sale of warships by a neutral Government to a belligerent 485 Sect. II. Sale of war vessels from neutral firms to a belligerent 487 Sect. III. Sale of vessels other than war vessels from neutral firms to a belligerent State 488 Sect. IV. Sale of merchantmen by neutral subjects to belligerent subjects . . 488 CHAPTER IV. . Contraband of War. The Japanese attitude 490 The Russian attitude . . . .' . . . 495 The bean-cake question 515 About rice 520 About tea . . .520 About kerosene oil 523 Sect. VII. About cotton 524 PART V. NEW CASES ON PRIZE LAW ADDED BY THE DECIS- IONS OF THE JAPANESE PRIZE COURTS. Sect. I. Sect. II. Sect. III. Sect. IV. Sect. V. Sect. VI. CHAPTER I. General Statements. Sect. I. Japanese Prize Court Regulations and organisation of the Japanese Prize Courts 527 Sect. n. Vessels captured by the Japanese Navy . .537 Sect. III. Japanese principles concerning prize cases . . . 539 I. Petition by a party not interested 539 Case I. The Manchuria 539 Case II. The Mukden 541 II. Petition by an advocate other than a counsellor-at-law of Japan 543 Case. The Mukden 543 m. Petition by telegraph 544 Case I. The Manchuria 544 Case II. The Resnik 549 Case III. The Manchuria 551 CONTENTS. XV PAGE IV. Petition to establish prior right against the vessel . 551 Case. The Nigretia 551 V. Petition for the release of the vessel; establishment of prior right or payment of claim 557 Case. The Russia . , 557 VI. Petition for temporary attachment of the prize . . 559 Case. The Mukden 559 VII. Petition in any language other than Japanese . . 562 Case I. The M. S. Dollar 562 Case II. The Mukden 563 VIII. Several other principles 563 Sect. IV. Procedure of cases in the Japanese Prize Courts . . 565 (1) Reception of case. (2) Examination of crews and passengers. (3) Inspection of goods. (4) Inspec- tion of letters, landing of crews and passengers and the reception of visitors by the crews and passengers. (5) Release of crews and passengers. (6) Advertise- ment of vessels and cargoes. (7) Trial and decision. (8) Fees and stamps. (9) Execution of decisions. (10) Returning ship's papers. CHAPTER II. Enemy Vessels. Sect. I. Russian vessels 574 Case la. The Argun 574 Case lb. The cargo of the Argun . . . .576 Case II. The Bobrick 580 Case III. The Ekaterinoslav 582 Case IV. The Juriady , .591 Case V. The Kotic 593 Case VI. The Lesnik 595 Case VII. The Manchuria 596 Case VIII. The Mukden 598 Case IX. The Nadajda . . . . . 604 Case X. The Thalia 605 Sect. II. Vessels that assisted hostile operations of the enemy 620 Case. The Aryol 620 Sect. III. Vessels employed by the hostile Government and those navigating with the enemy's licence .... 625 Case I. The Australia . 625 Case II. The Montara 633 CHAPTER III. Vessels Carrying Contraband Persons. Case. The Nigretia 639 XVI CONTENTS. Case I. Case II. Case III. Case IV. Case V. Case VI. Case VII. Case VIII. Case IX. CHAPTER IV. Vessels Carrying Contraband Goods. PAGE The Aphrodite (British) 651 The Bawtry (British) 659 The M. S. Dollar (British) . . . . . .664 The Henry Bolkow (British) 671 The Lydia (German) .. 671 The Scotsman (British) 682 The Severus (German) 692 The Tacoma (American) 694 The Vegga (Swedish) 703 CHAPTER V. Blockade Runners. Case I. The George (French) . 711 Case II. The Fuping (German) 712 Case III. The Veteran (German) 714 Case IV. The King Arthur (British) 721 CHAPTER VI. Un-neutral Services. Case I. The Industrie 732 Case II. The Quang-nam 735 CHAPTER VII. . Released Vessels. Sect. I. Vessels released by the decisions 739 Case I. The Eastry (British) 739 Case II. The Rincluden (British) .... 741 Case III. The Shishan (British) 742 Case IV. The Hsiping (British) 745 Case V. The Saxon Prince (British) . . . .747 Case VI. The Peiping (Chinese) 749 Case VII. The Aggi (Norwegian) 750 Case VIII. The Helmes (Norwegian) .... 752 Sect. II. Vessels released by the special ordinance . . . 753 The Hans Wagner (German) 753 The Kow-loon (German) 754 The M. Struve (German) 754 The Arufried (Norwegian) 754 The Barracouta (American) 754 The Centennial (American) 754 CONTENTS. XV11 APPENDICES. PAGE I. Speech of Baron Komura on the Manchurian Question . 755 II. The memorandum of the seven professors . . . 759 III. Diary of the war between Japan and Russia '. . . 761 IV. The Treaty of Peace 774 V. Japanese Regulations Governing Captures at Sea . . 778 VI. Complete list of the vessels captured by the Japanese Navy 794 TABLES. I. Table showing the number of Japanese subjects in Rus- sian territories and Manchuria at the outbreak of the war 44-45 II. Table showing the number of Russian prisoners living in private houses 108 III. Table showing the locality of prison barracks, and the separation of prisoners according to religious sect . 114 IV. Table showing the number and nature of articles left by Russian deceased 121 V. Table showing the sums of money given to Russian prisoners 124 VI. Table showing the offences of the Russian prisoners and punishments administered by Japan .... 131 VII. Table showing the number of released prisoners . . . 136 VIII. Table showing the number of Russian prisoners given ar- tificial limbs and eyes . 136 IX. Table showing the diseases among prisoners . . .137 X. Table showing the number of released crews . . . 139 XI. Table showing the number of merchantmen visited, cap- tured, or sunk by the Russian warships . . . 275-283 XII. Table showing cases of claims for damages caused by capture 355 XIII. Table of the Japanese floating hospitals . . . .375 XIV. Table showing Russian warships in neutral ports . 417-418 XV. Table showing the numbers of vessels chartered by Japanese subjects 490 XVI. Table showing captured vessels, arranged according to nationality 537 XVII. Table showing condemned vessels, and reason for con- demnation 538 XV111 CONTENTS. PAGE XVIII. Table of vessels adjudicated at various Prize Courts and the Higher Prize Court 538 XIX. Table showing the number of cases tried before the Prize Courts • 538 XX. Table showing the number of cases tried before the Lower Prize Courts 538 XXI. Table showing the number of appeals taken to the Higher Prize Court 539 XXII. Table showing all the captured vessels, arranged accord- ing to the date of captures 794 PART I. THE OUTBREAK OF WAR, AND ITS EFFECTS. CHAPTER I. THE OUTBREAK OF WAR. Sect. I. General Statements. Many continental writers insist upon the necessity of a declaration of war ; * but the practice of states during the last three centuries has rarely agreed with this opinion, and there are many publicists, especially in England and the United States, who approve of this practice. 2 By referring to the history of International Law, we will find several stages in the progress of opinion. 3 The ancient world recognised the necessity of formal decla- rations of war, the Greeks and the Romans alike being wont to so declare in solemn form after demand and refusal of satis- faction by the opponent; the declaration was publicly conveyed by a herald, whose person was held inviolable, from the offended to the offending state. The determination of the for- malities proper to such declarations was a main function of the Roman Fetial College, and the principles followed were enshrined in the Jus Fetiale. The Roman war practice in this matter lingered after the fall of the Roman Empire; the Roman Church, whose faith subdued the barbarian conquerors, lent its sanction to the cus- tom of making a formal challenge to the foe, which well har- monised with the proud temper of the warriors of the North. I Grotius, III., C. 3, § 6; Vattel, III., § 51; Calvo, IV., § 1907; Bluntschli, § 521; Fiore, III., No. 1274; Heffter, § 120. 2 Bynkershoek, Quaest. Jur. Publ., I., C. 2; Kluber, §238; G. F. Martens, §267; Gareis, § 80; Liszt, § 39; Ullmann, § 145; and many English writers. 3 Walker, A Manual of Public International Law, pp. 104-105. 1 2 THE OUTBREAK OF WAR. [PART I. Accordingly, so long as the ideas of chivalry held sway among men, public declarations of war in some form were always issued to the enemy by the opponent sovereign. As late as 1657 a Swedish herald brought a declaration of war to the Court of Copenhagen. During the seventeenth century, however, a wide divergence began more and more to show itself between the statements of legal authority and the facts of practice, Grotius and his fellows asserting under the Law of Nations, if not under the Law of Nature, the necessity of a formal notice being given to the enemy before making an attack, while belligerents habit- ually neglected to issue such notice, although commonly excus- ing the omission on some special grounds. Gustavus Adolphus declared a formal notice to the enemy to be necessary in the case of a defensive war, and this conven- ient distinction commended itself alike to belligerents and writers in certain quarters. The practice of issuing such no- tices had in the early days of the eighteenth century become almost entirely obsolete. In December, 1881, and January, 1882, the Board of Trade in England sat on the subject of Channel Tunnel, under the chairmanship of Sir T. Farrer. 1 In the course of the proceed- ings of that committee, Sir T. Farrer asked a series of ques- tions, all connected with the point raised by him, in the fol- lowing words: " Looking upon what we ourselves remember, is it probable that war would be declared against us, as it were, out of a clear sky, without some previous strain or without notice that a quarrel was impending? Has this happened in any single case within the last 50 or 100 years ? " To ascertain the facts on this subject, Brevet-Lieutenant-Colonel J. F. Maurice prepared an historical abstract of cases in which hos- tilities have occurred between civilised Powers prior to declaration or warning. He says: "The question has been raised whether a country living in peace with all its neighbours has any reason to fear that war may sud- denly burst upon it. 1 J. F. Maurice, Hostilities without Declaration of War; Preface, pp. 3-4. CHAP. I., SECT. I.] GENERAL STATEMENTS. 3 " Many of the improvements of modern science, where they break down the natural barriers between nations, offer facilities to an in- vading army, which would be confessedly dangerous to national inde- pendence if the two countries whose barriers are removed or pierced were at war. " If, however, war and peace are really separated by a distinct line, so that a nation at peace may take for granted that which would happen if it were at war, and that which constitutes war cannot pos- sibly involve peace, then, before war can take the place of peace, a sufficient time must be given during which the necessary changes can be made to suit the attendant altered conditions of life; there will be no reason to fear lest the facilities offered to kindly neighbours should become the means of aggression for bitter foes. " It appears, therefore, to be of some importance to ascertain his- torically whether within the last 200 years any cases have occurred in which the warning of coming war has not been very clear, or has not been given long beforehand. For it is not safe that the question should be left to be determined by casual impressions and chance sur- mises ; it is necessary that whatever may have been the facts in the past the experience of modern times should be carefully recorded. The most excellent general impressions as to what ought to be the mode of procedure by which statesmen give warning before they make war, will not be an adequate security for the freedom of a kingdom. It is in fact true that under the excitement of popular passion or private ambition, rulers of armies or of armed nations have some- times disregarded all obligations of the kind, and have, in the midst of profound peace, taken advantage of the confidence of their neigh- bours. " If such a thing has, under the conditions of modern times, ever happened, it is always possible that it may happen again. Unless na- tional life and security are to be seriously imperilled, provision must be made, not only against that which will certainly happen, but against any danger which the experience of the past shows to be among the chances to be reckoned with. When the unexpected blow has once fallen, it will be in vain to plead that many previous years have passed during which nothing of the kind has happened. " It is to clear this doubt as to what the experience of the past in this matter has been, that the following paper has been prepared. A chronological table has been arranged, showing all the circumstances Under which hostilities have been commenced by different countries against others, prior to a declaration of war, from the year 1700 to 1871. " The result of the investigation, as the work has gone on, has 4 THE OUTBREAK OF WAR. [PART I. been to completely change its character. It was commenced under the impression that here and there a casual case might be discov- ered in which the ambition of a Napoleon or of a Frederick had led to some breach of established usage. The result is to show conclu- sively that there has not been, unless in mere theory, and in the tone adopted by historians as to what ought to have been, any established usage whatever on the subject. Circumstances have occurred in which 'declarations of war' have been issued prior to hostilities; but dur- ing the 171 years here taken (from 1700 to 1870 inclusive), less than ten instances of the kind have occurred. " One or two doubtful instances of previous declaration have not been referred to. "The other cases of previous declaration are mentioned an4 are chiefly interesting as showing how few of them were due to a punctilious desire to warn an unsuspecting friend that he was about to be treated as an enemy. In one case France issued a declaration of war prior to joining us in a war against Spain; this may be con- sidered as a fair case of giving warning, but in all instances in which the Power warned is already at war, the warning is comparatively valueless. For the country being at war, preparations against sur- prises have already been made; the conditions of war have already taken the place of the conditions of peace. It is only those cases in which a country actually at peace with all its neighbours, has re- ceived warning of coming war, that provide peaceful citizens with adequate precedents on which to build their hopes of security. " In the second case here recorded, political motives led the French convention to declare war against Europe; in the third case, popular excitement led to a similar declaration. " After the Peace of Amiens, England and France declared war, there being no motive to tempt either to effect a surprise, since both Powers had been preparing for war during nearly all the time of peace, and England, as Napoleon well knew, regarded Napoleon's acts^ of aggression against Switzerland as virtually hostilities against herself. " On the other hand, 107 cases are recorded in which hostilities have been commenced by the subjects of European Powers or of the United States of America against other Powers without declaration of war. This number only includes for the European Powers instances of European action in Europe, on the borders of the Mediterranean, or against colonies in possession of European Powers abroad. If the whole history of Indian, Chinese, and extra-colonial wars with savage tribes had been added, the number might have been greatly increased, but the only effect would have been to lengthen the paper without supplying illustrations precisely relevant to the matter in hand. CHAP. I., SECT. I.] GENERAL STATEMENTS. 5 "It is also noteworthy that in the course of 171 years, England engaged in hostilities 30 times, France 37 times, Prussia 7 times, Aus- tria 12 times, America 5 times and Russia about 7 times, saying noth- ing of hostilities against Asiatic nations, all these without any prior declaration of war." Thus, by strength of international usage, a declaration of war need not necessarily precourse belligerent relations, and so if Japan opened the war without any declaration of war, nothing can be said against it. It would be entirely another question if the future was the subject under discussion. It is an indisputable fact that an occurrence in conformity with past precedent cannot be criticised by what was to be hoped of the future. In the second Hague Conference the following Convention was passed: Convention Relative to the Opening of Hostilities. His Majesty the Emperor of Germany, King of Prussia, etc.: Considering that, for the security of peaceful relations, it is im- portant that hostilities shall not begin without a previous notice; and That it is likewise important that a state of war shall be made known without delay to the neutral powers; and Being desirous of concluding a convention for this purpose, have appointed as their plenipotentiaries, to wit: [Names of plenipotentiaries.] Who, after depositing their full powers, found in good and due form, have agreed on the following provisions: Article I. The contracting Powers agree that hostilities between them should not begin without a previous unequivocal notice, which shall either be in the form of a declaration of war with reasons therefor, or of an ultimatum with a conditional declaration of war. Article II. A state of war shall be made known without delay to the neutral Powers, and shall not be effective with regard to them until they re- ceive a notice, which may even be given by telegraph. However, the neutral Powers cannot use the lack of a notice as a pretext if it should be proven beyond doubt that they really knew of the state of war. 6 THE OUTBREAK OF WAR. [PART I. Article III. Article I. of the present convention shall be applicable in case of war between two or more of the contracting Powers. Article II. shall be binding in the relations between a contracting belligerent and neutral Powers which are also contracting parties. Prof. J. Westlake remarks : * " This regulation coincides with the doctrine which we have laid down above. Only two remarks are needed in order to put the matter in a clear light. One is that the declaration of war is now expressly- required to be motivee which the declarants have always made it for their own justification. The other is that the commencement of hos- tilities without a preceding declaration, in such peculiar cases as are contemplated above, is left possible by the fact that the parties are not made to contract that they will not commence hostilities against one another otherwise than as described, but recognise that hostilities ought not (ne doivent pas) to be otherwise commenced. " Nothing can more clearly show the impossibility of insisting on an interval of notice between a declaration of war and a commence- ment of hostilities under it, than the fact that the very moderate proposal of a 24-hours' interval, made by the delegation of the Neth- erlands, was not accepted. The Conference has therefore rather con- firmed than weakened the necessity that, in order not to be taken un- prepared, every nation must rely on its own vigilance and on no formal rule.'*' As mentioned in the diary in Appendix III., just after the Japanese torpedo boats made an attack on the Russian fleet at Port Arthur, the following declarations were issued by both the governments : JAPANESE DECLARATION OF WAR. (Official Translation.) 10th Feb., 1904. We, by the Grace of Heaven, Emperor of Japan, seated on the Throne occupied by the same Dynasty from time immemorial, do hereby make Proclamation to all Our loyal and brave subjects as follows: We hereby declare war against Russia and We command Our Army and Navy to carry on hostilities against that Empire with all their strength, and We also command all Our competent authorities to make every effort, in pursuance of their duties and in accordance with their I Westlake's International Law, Part II., War, 1807, p. 267. CHAP. I., SECT. I.] GENERAL STATEMENTS. 7 powers, to attain the national aim with all the means within the limits of the law of nations. We have always deemed it essential to international relations and made it Our constant aim to promote the pacific progress of Our Empire in civilisation, to strengthen Our friendly ties with other States, and to establish a state of things which would maintain enduring peace in the Extreme East and assure the future security of Our Dominion without injury to the rights and interests of other Powers. Our Competent Authorities have also performed their duties in obedience to Our will, so that Our relations with the Powers have been steadily growing in cordiality. It was thus entirely against Our expectation that We have unhappily come to open hostilities against Russia. The integrity of Korea is a matter of constant concern to this Empire, not only because of Our traditional relations with that country, but because the separate existence of Korea is essential to the safety of Our Realm. Nevertheless Russia, in disregard of her solemn treaty pledges to China and her repeated assurances to other Powers, is still in occupation of Manchuria and has consolidated and strengthened her hold upon those provinces and is bent upon their final annexation. And since the absorption of Manchuria by Russia would render it impossible to maintain the integrity of Korea and would in addition compel the abandonment of all hope for peace in the Extreme East, We determined in those circumstances to settle the question by negotiation and to secure thereby permanent peace. With that object in view, Our Competent Authorities, by Our order, made proposals to Russia, and frequent con- ferences were held during the course of six months. Russia, however, never met such proposals in a spirit of conciliation, but by her wanton delays put off the settlement of the question, and by ostensibly advo- cating peace on the one hand while she was on the other extending her naval and military preparations, sought to accomplish her own selfish designs. We cannot in the least admit that Russia had from the first any serious or genuine desire for peace. She has rejected the proposals of Our Government; the safety of Korea is in danger; the vital interests of Our Empire are menaced. The guarantees for the future which We have failed to secure by peaceful negotiations, We can now only seek by an appeal to arms. It is Our earnest wish that by the loyalty and valour of Our faith- ful subjects, peace may soon be permanently restored and the glory of Our Empire preserved. RUSSIAN DECLARATION OF WAR. 10th Feb., 1904. By the grace of God We, Nicholas II., Emperor and Autocrat of all the Russias, etc., make known to all our loyal subjects: In Our solicitude for the maintenance of peace, which is dear to Our heart, we made every exertion to consolidate tranquillity in the 8 Till-: ol'TMRNAK. OF WAR. [l\\KT I. | .,, | , | | n ll,, , | .« :i . . I 1 1 1 nun. we M-liilicd a -