(No. 3.)—Mr. Chilton to Sir Edward Grey. (Telegraphic. Extract.) The Hague, August 10, 1914. NAVAL attaché had a conversation to-day with Dutch Minister of Marine on the subject of armed merchantmen.

Latter said that Netherlands Government had already issued precise instructions not to admit to Dutch territorial waters any merchantmen that were capable of performing any warlike act, and that they were therefore placed in a very difficult position by the request of the British Government asking neutrals to differentiate between auxiliary cruisers and merchant vessels defensively armed. He himself fully realised the difference, but feared the people might not, and that if any modification was now made in these instructions the Government might be accused by the Dutch navy and therefore by the nation, which up to now had been somewhat afraid of a violation of their territory by England, of departing from its attitude of strict neutrality. This would have the effect of throwing Dutch nation into arms of Germany.

SIR,

(No. 4.)-Sir Edward Grey to Sir A. Johnstone.

Foreign Office, March 7, 1915. IN view of the menace from German submarines, it is possible that an increase may take place in the number of defensively-armed British merchant ships, and that among them may be some which normally trade with Netherlands ports.

I should be glad to learn as soon as possible whether the Netherlands Government still hold the strong objections to the entry of such vessels into their ports which they held at the beginning of the war.

I am, &c.

E. GREY.

(No. 5.)-Sir A. Johnstone to Sir Edward Grey.—(Received

SIR,

April 12.)

The Hague, April 8, 1915. ON the receipt of your despatch of the 7th utmo respecting the possible increase of defensively-armed British merchant vessels, some of which normally trade with the Netherlands, I addressed a note to M. Loudon expressing the hope that such vessels would be permitted to enter Dutch ports.

I have now the honour to enclose copy of his Excellency's reply, from which you will perceive that the Netherlands Government will not allow such vessels access to its ports.

I have had a conversation with M. Loudon on this subject, and although his Excellency appeared to regret the necessity, he was quite firm in maintaining that, according to his Government's interpretation of international law, the admission of armed merchantment, even if armed for defence only, was impossible.

I pointed out to his Excellency that the submarine warfare as waged by the Germans was contrary to all dictates of law and humanity, but I could not move him from his position.

I have, &c.

ALAN JOHNSTONE.

(Enclosure.) Netherlands Minister for Foreign Affairs to Sir A. Johnstone.

M. LE MINISTRE,

La Haye, le 7 avril, 1915. PAR sa note du 13 mars dernier, votre Excellence a bien voulu m'informer qu'il pourrait devenir nécessaire de pourvoir certains navires de commerce britanniques qui naviguent régulièrement entre les Pays-Bas et la Grande-Bretagne d'un armement dont ils ne se serviraient que pour se défendre. En même temps elle exprimait l'espoir que le Gouvernement de la Reine ne verrait pas d'objection à admettre des navires ainsi armés dans les ports néerlandais.

En réponse, j'ai l'honneur de faire savoir à votre Excellence que la proclamation de neutralité néerlandaise* interdit comme règle générale l'accès des ports, rades et eaux territoriales néerlandais aux navires de guerre belligérants ainsi qu'aux navires y assimilés. Pour le territoire du Royaume en Europe cette règle ne souffre d'exception que dans le cas d'avaries ou à raison de l'état de la mer.

Le Gouvernement de la Reine estime que l'observation d'une stricte neutralité lui impose le devoir de faire rentrer dans la catégorie des navires assimilés aux navires de guerre des belligérants les navires de commerce des parties belligérantes qui seraient pourvus d'un armement, et qui, par conséquent, seraient aptes à commettre des actes de guerre.

J'ai donc l'honneur de porter à la connaissance de votre Excellence que le Gouvernement de la Reine ne se croit pas en droit d'admettre dans ses ports les navires de commerce armés que vise l'office précité de votre Excellence. * See Appendix, page 369. Z

[1917-18. cxI.]

En vous exprimant mes regrets de ne pouvoir accéder au désir dont votre Excellence a bien voulu se faire l'interprète, je vous prie, &c.

J. LOUDON.

SIR,

(No. 6.)-Sir Edward Grey to Sir A. Johnstone. Foreign Office, June 9, 1915. WITH reference to your despatch of the 8th April last, I transmit to you herewith duplicate copies of a Memorandum and a pamphlet* by Dr. A. Pearce Higgins on the practice of arming merchant ships in self-defence.

You should communicate to the Netherlands Government a copy of this pamphlet and a type-written copy of the Memorandum, and should inform them that the Government of every neutral State except the Netherlands, with which the question has been raised, including Spain, the United States, and the principal South American Republics, have recognised the legality of arming merchant ships in self-defence, and are admitting ships so armed into their ports on the same footing as ordinary merchant vessels. You should point to the support widely given to this traditional practice by international jurists before the war and urge that in view of the German claim to sink all British ships regardless of the lives of the crew and passengers it is more than ever necessary to insist on all rights of selfdefence, including the elementary right of a human being to disable his intending murderer.

You should, in conclusion, impress upon the Netherlands Government that if they persist in the view which they have hitherto adopted, there is likely to be an appreciable diminution in the regular traffic of British ships with Netherlands ports.

I am, &c.

E. GREY.

(Enclosure.)-Memorandum on Defensively Armed Merchant Ships by Dr. Pearce Higgins, Professor of International Law at Cambridge and Lecturer at the Royal Naval War College.

As there appears to be some doubt as to the legal status of merchant ships which are armed in self-defence, the following statement may be of interest and assistance to shipowners and shipmasters :

* Pamphlet not printed.

The practice of arming ships in self-defence is a very old one. There are Royal Proclamations from the time of Charles I ordering merchant ships to be armed, and to do their utmost to defend themselves against enemy attacks. During the Napoleonic wars the Prize Courts of Great Britain and the United States recognised that a belligerent merchant ship had a perfect right to arm in her own defence (The Catherine Elizabeth (British) and The Nereide (United States)). The right of a belligerent merchant ship to carry arms and to resist capture is definitely and clearly laid down in both of the cases just cited.

Chief Justice Marshall, of the United States, in the case of The Nereide, said: It is true that on her passage she had a right to defend herself, and defended herself, and might have captured an assailing vessel."

In modern times the right of resistance of merchant vessels is also recognised by the United States Naval War Code, which was published in 1900, by the Italian Code for the Mercantile Marine, 1877, and by the Russian Prize Regulations, 1895.

Writers of weight and authority in Great Britain, the United States, Italy, France, Belgium and Holland also recognise this right. The late Dr. F. Perels, who was at one time legal adviser to the German Admiralty, quotes with approval Article 10 of the United States Naval War Code, which states: "The personnel of merchant vessels of an enemy, who in self-defence and in protection of the vessel placed in their charge resist an attack, are entitled to the status of prisoners of war.

The most recent authoritative pronouncement on this subject comes from the Institute of International Law, a body composed of international lawyers of all nationalities. This learned society, which meets generally once a year in different countries to discuss and make proposals on points of International Law, at its meeting in 1913 at Oxford prepared a Manual of the Laws of Naval Warfare which was adopted with unanimity. Article 12 of this Manual, which is in French, may be translated as follows:

"Privateering is forbidden. Except under the conditions. specified in Article 5 and the following articles, public and private ships and their crews may not take part in hostilities against the enemy.

Both are, however, allowed to employ force to defend themselves against the attack of an enemy ship."

The crews of enemy merchant ships have for centuries been liable to be treated as prisoners of war whether they resisted capture or not.

Crews who forcibly resist visit and capture, cannot, if [1917--18. CXI.] Z 2

they are unsuccessful, claim to be released; they remain prisoners of war.

Defensively armed merchant ships must not assume the offensive against enemy merchant ships. They are armed for defence, not for attack, but if they are attacked and they are able successfully to repel the attack and even to capture their assailant, such capture is valid; the captured ship is good prize as between the belligerents.

There is some authority, as in the Italian Code and Russian Prize Regulations, for saying that an armed merchant ship has a right to go to the assistance of other national or allied vessels attacked, and assist them in making a capture. But this is by no means such a well-established rule as the rule of self-defence. It will in nearly all cases be much more important for a defensively armed ship to get safely away with her cargo than to go to the assistance of another merchant ship, for in this case the safety of both may be placed in jeopardy.

The position of the passengers on a defensively armed ship, if no resistance is made, is the same as if they were on an unarmed merchant ship. If, however, the armed ship resists, they will, naturally, have to take their chance of injury or death. Unless they take part in the resistance, they are not liable, if the ship is captured, to be taken prisoners, merely because of the fact of resistance having been offered by the ship.

(No. 7.)-Sir A. Johnstone to Sir Edward Grey.--(Received August 2.)

SIR,

The Hague, July 31, 1915. WITH reference to your despatch of the 9th ultimo, I have the honour to transmit herewith copy of a note from M. Loudon giving the views of the Netherlands Government on the question of the admission of armed merchant vessels into Netherlands ports.

You will observe that M. Loudon maintains the attitude which has hitherto been adopted by the Netherlands Government to this question, and states that it would be contrary to the policy of strict neutrality observed by the Netherlands Government to modify their attitude in this respect.

I have, &c.

ALAN JOHNSTONE.