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HOW TO DESIGN PROGRAMS
AN INTRODUCTION TO PROGRAMMING AND COMPUTING
SECOND EDITION

Matthias Felleisen
Robert Bruce Findler
Matthew Flatt
Shriram Krishnamurthi

The MIT Press

Cambridge, Massachusetts
London, England
©2018 Massachusetts Institute of Technology

Illustrations ©2000 Torrey Butzer

This work is licensed to the public under a Creative Commons

Attribution-NonCommercial-NoDerivatives 4.0 license (international):
http://creativecommons.org/licenses/by-nc-nd/4.0/

All rights reserved except as licensed pursuant to the Creative

Commons license identified above. Any reproduction or other use
not licensed as above, by any electronic or mechanical means
(including but not limited to photocopying, public distribution, online
display, and digital information storage and retrieval) requires
permission in writing from the publisher.

This book was set in Scribble and LaTeX by the authors.

Library of Congress Cataloging-in-Publication Data

Names: Felleisen, Matthias.

Title: How to design programs: an introduction to programming and
computing / Matthias Felleisen, Robert Bruce Findler, Matthew
Flatt, and Shriram Krishnamurthi.
Description: Second edition. | Cambridge, MA: The MIT Press,
[2017] | Revised edition of: How to design programs / Matthias
Felleisen … [et al.]. 2001. | Includes bibliographical references and
index.
Identifiers: LCCN 2017018384 | ISBN 9780262534802 (pbk.: alk.
paper)
Subjects: LCSH: Computer programming. | Electronic data
processing.
Classification: LCC QA76.6.H697 2017 | DDC 005.1/2–dc23
LC record available at https://lccn.loc.gov/2017018384
Contents

Preface
Systematic Program Design
DrRacket and the Teaching Languages
Skills that Transfer
This Book and Its Parts
The Differences

Prologue: How to Program

Arithmetic and Arithmetic
Inputs and Output
Many Ways to Compute
One Program, Many Definitions
One More Definition
You Are a Programmer Now
Not!

I Fixed-Size Data
1 Arithmetic
1.1 The Arithmetic of Numbers
1.2 The Arithmetic of Strings
1.3 Mixing It Up
1.4 The Arithmetic of Images
1.5 The Arithmetic of Booleans
1.6 Mixing It Up with Booleans
 1.7 Predicates: Know Thy Data
2 Functions and Programs
2.1 Functions
2.2 Computing
2.3 Composing Functions
2.4 Global Constants
2.5 Programs
3 How to Design Programs
3.1 Designing Functions
3.2 Finger Exercises: Functions
3.3 Domain Knowledge
3.4 From Functions to Programs
3.5 On Testing
3.6 Designing World Programs
3.7 Virtual Pet Worlds
4 Intervals, Enumerations, and Itemizations
4.1 Programming with Conditionals
4.2 Computing Conditionally
4.3 Enumerations
4.4 Intervals
4.5 Itemizations
4.6 Designing with Itemizations
4.7 Finite State Worlds
5 Adding Structure
5.1 From Positions to posn Structures
5.2 Computing with posns
5.3 Programming with posn
5.4 Defining Structure Types
5.5 Computing with Structures
5.6 Programming with Structures
5.7 The Universe of Data
5.8 Designing with Structures
5.9 Structure in the World
 5.10 A Graphical Editor
5.11 More Virtual Pets
6 Itemizations and Structures
6.1 Designing with Itemizations, Again
6.2 Mixing Up Worlds
6.3 Input Errors
6.4 Checking the World
6.5 Equality Predicates
7 Summary

Intermezzo 1: Beginning Student Language

II Arbitrarily Large Data

8 Lists
8.1 Creating Lists
8.2 What Is '(), What Is cons
8.3 Programming with Lists
8.4 Computing with Lists
9 Designing with Self-Referential Data Definitions
9.1 Finger Exercises: Lists
9.2 Non-empty Lists
9.3 Natural Numbers
9.4 Russian Dolls
9.5 Lists and World
9.6 A Note on Lists and Sets
10 More on Lists
10.1 Functions that Produce Lists
10.2 Structures in Lists
10.3 Lists in Lists, Files
10.4 A Graphical Editor, Revisited
11 Design by Composition
 11.1 The list Function
11.2 Composing Functions
11.3 Auxiliary Functions that Recur
11.4 Auxiliary Functions that Generalize
12 Projects: Lists
12.1 Real-World Data: Dictionaries
12.2 Real-World Data: iTunes
12.3 Word Games, Composition Illustrated
12.4 Word Games, the Heart of the Problem
12.5 Feeding Worms
12.6 Simple Tetris
12.7 Full Space War
12.8 Finite State Machines
13 Summary

Intermezzo 2: Quote, Unquote

III Abstraction
14 Similarities Everywhere
14.1 Similarities in Functions
14.2 Different Similarities
14.3 Similarities in Data Definitions
14.4 Functions Are Values
14.5 Computing with Functions
15 Designing Abstractions
15.1 Abstractions from Examples
15.2 Similarities in Signatures
15.3 Single Point of Control
15.4 Abstractions from Templates
16 Using Abstractions
16.1 Existing Abstractions
 16.2 Local Definitions
16.3 Local Definitions Add Expressive Power
16.4 Computing with local
16.5 Using Abstractions, by Example
16.6 Designing with Abstractions
16.7 Finger Exercises: Abstraction
16.8 Projects: Abstraction
17 Nameless Functions
17.1 Functions from lambda
17.2 Computing with lambda
17.3 Abstracting with lambda
17.4 Specifying with lambda
17.5 Representing with lambda

18 Summary

Intermezzo 3: Scope and Abstraction

IV Intertwined Data
19 The Poetry of S-expressions
19.1 Trees
19.2 Forests
19.3 S-expressions
19.4 Designing with Intertwined Data
19.5 Project: BSTs
19.6 Simplifying Functions
20 Iterative Refinement
20.1 Data Analysis
20.2 Refining Data Definitions
20.3 Refining Functions
21 Refining Interpreters
21.1 Interpreting Expressions
 21.2 Interpreting Variables
21.3 Interpreting Functions
21.4 Interpreting Everything
22 Project: The Commerce of XML
22.1 XML as S-expressions
22.2 Rendering XML Enumerations
22.3 Domain-Specific Languages
22.4 Reading XML
23 Simultaneous Processing
23.1 Processing Two Lists Simultaneously: Case 1
23.2 Processing Two Lists Simultaneously: Case 2
23.3 Processing Two Lists Simultaneously: Case 3
23.4 Function Simplification
23.5 Designing Functions that Consume Two Complex Inputs
23.6 Finger Exercises: Two Inputs
23.7 Project: Database
24 Summary

Intermezzo 4: The Nature of Numbers

V Generative Recursion
25 Non-standard Recursion
25.1 Recursion without Structure
25.2 Recursion that Ignores Structure
26 Designing Algorithms
26.1 Adapting the Design Recipe
26.2 Termination
26.3 Structural versus Generative Recursion
26.4 Making Choices
27 Variations on the Theme
27.1 Fractals, a First Taste
 27.2 Binary Search
27.3 A Glimpse at Parsing
28 Mathematical Examples
28.1 Newton’s Method
28.2 Numeric Integration
28.3 Project: Gaussian Elimination
29 Algorithms that Backtrack
29.1 Traversing Graphs
29.2 Project: Backtracking
30 Summary

Intermezzo 5: The Cost of Computation

VI Accumulators
31 The Loss of Knowledge
31.1 A Problem with Structural Processing
31.2 A Problem with Generative Recursion
32 Designing Accumulator-Style Functions
32.1 Recognizing the Need for an Accumulator
32.2 Adding Accumulators
32.3 Transforming Functions into Accumulator Style
32.4 A Graphical Editor, with Mouse
33 More Uses of Accumulation
33.1 Accumulators and Trees
33.2 Data Representations with Accumulators
33.3 Accumulators as Results
34 Summary

Epilogue: Moving On
 Computing
Program Design
Onward, Developers and Computer Scientists
Onward, Accountants, Journalists, Surgeons, and Everyone Else
Index

List of Figures
Figure 1: The basic steps of a function design recipe
Figure 2: The dependencies among parts and intermezzos
Figure 3: Meet DrRacket
Figure 4: Landing a rocket (version 1)
Figure 5: Landing a rocket (version 2)
Figure 6: Landing a rocket (version 3)
Figure 7: Landing a rocket (version 4)
Figure 8: Landing a rocket (version 5)
Figure 9: Landing a rocket (version 6)
Figure 10: Laws of image creation
Figure 11: The DrRacket stepper
Figure 12: A batch program
Figure 13: How big-bang works
Figure 14: A first interactive program
Figure 15: From information to data, and back
Figure 16: The completion of design step 5
Figure 17: Testing in BSL
Figure 18: The wish list for designing world programs
Figure 19: Examples for a moving car program
Figure 20: Recall from “One Program, Many Definitions”
Figure 21: Conditional functions and special enumerations
Figure 22: UFO, descending
Figure 23: Rendering with a status line
Figure 24: Rendering with a status line, revised
Figure 25: Launching a countdown and a liftoff
Figure 26: How a traffic light functions
Figure 27: A symbolic traffic light
Figure 28: A transition diagram for a door with an automatic closer
Figure 29: A Cartesian point
Figure 30: The universe of data
Figure 31: Adding structure to a universe
Figure 32: Rendering space invader game states, by example
Figure 33: The complete rendering function
Figure 34: Rendering game states again
Figure 35: Rendering the space invader games, with tanks
Figure 36: Two ways of writing a data definition for FSMs
Figure 37: A finite state machine as a diagram
Figure 38: The universe of BSL data
Figure 39: BSL core vocabulary
Figure 40: BSL core grammar
Figure 41: Syntactic naming conventions
Figure 42: Replacing equals by equals
Figure 43: BSL, full grammar
Figure 44: Building a list
Figure 45: Drawing a list
Figure 46: List primitives
Figure 47: Searching a list
Figure 48: Computing with lists, step 1
Figure 49: Computing with lists, step 2
Figure 50: Computing with lists, step 3
Figure 51: Arrows for self-references in data definitions and
templates
Figure 52: How to translate a data definition into a template
Figure 53: How to turn a template into a function definition
Figure 54: Turning a template into a function, the table method
Figure 55: Tabulating arguments, intermediate values, and results
Figure 56: Designing a function for self-referential data
Figure 57: A table for cat
Figure 58: A table for sorted>?
Figure 59: Creating a list of copies
Figure 60: Random attacks
Figure 61: A list-based world program
Figure 62: Two data representations for sets
Figure 63: Functions for the two data representations of sets
Figure 64: Computing the wages of all employees
Figure 65: Computing the wages from work records
Figure 66: Things take time
Figure 67: Reading files
Figure 68: Counting the words on a line
Figure 69: Encoding strings
Figure 70: Transpose a matrix
Figure 71: Tabulating for rev
Figure 72: Sorting lists of numbers
Figure 73: Drawing a polygon
Figure 74: Reading a dictionary
Figure 75: Representing iTunes tracks as structures (the structures)
Figure 76: Representing iTunes tracks as structures (the functions)
Figure 77: Representing iTunes tracks as lists
Figure 78: Finding alternative words
Figure 79: Playing Worm
Figure 80: Random placement of food
Figure 81: Simple Tetris
Figure 82: Representing and interpreting finite state machines in
general
Figure 83: A simplistic HTML generator
Figure 84: A data representation based on nested lists
Figure 85: A web page generated with BSL+
Figure 86: Two similar functions
Figure 87: Two similar functions, revisited
Figure 88: Two more similar functions
Figure 89: Finding the inf and sup in a list of numbers
Figure 90: A pair of similar functions
Figure 91: The same two similar functions, abstracted
Figure 92: The similar functions for exercise 250
Figure 93: The similar functions for exercise 251
Figure 94: The similar functions for exercise 252
Figure 95: ISL’s abstract functions for list processing (1)
Figure 96: ISL’s abstract functions for list processing (2)
Figure 97: Creating a program with abstractions
Figure 98: Organizing a function with local
Figure 99: Organizing interconnected function definitions with local

Figure 100: Using local may improve performance

Figure 101: A function on inventories, see exercise 261
Figure 102: Power from local function definitions
Figure 103: A general sorting function
Figure 104: A curried predicate for checking the ordering of a list
Figure 105: Drawing lexical scope contours for exercise 301
Figure 106: Drawing lexical scope contours for exercise 301 (version
2)
Figure 107: ISL+ extended with for loops
Figure 108: A compact definition of arrangements with for*/list
Figure 109: Constructing sequences of natural numbers
Figure 110: ISL+ match expressions
Figure 111: A family tree
Figure 112: A data representation of the sample family tree
Figure 113: Finding a blue-eyed child in an ancestor tree
Figure 114: Calculating with trees
Figure 115: Finding a blue-eyed child in a family forest
Figure 116: A template for S-expressions
Figure 117: A program for S-expressions
Figure 118: Arrows for nests of data definitions and templates
Figure 119: A binary search tree and a binary tree
Figure 120: A program to be simplified
Figure 121: Program simplification, step 1
Figure 122: Program simplification, steps 2 and 3
Figure 123: A sample directory tree
Figure 124: Representing BSL expressions in BSL
Figure 125: From S-expr to BSL-expr
Figure 126: The complete definition of xexpr-attr
Figure 127: A realistic data representation of XML enumerations
Figure 128: Refining functions to match refinements of data
definitions
Figure 129: Finite state machines, revisited
Figure 130: Interpreting a DSL program
Figure 131: A file with a machine configuration
Figure 132: Reading X-expressions
Figure 133: Web data as an event
Figure 134: Indexing into a list
Figure 135: Indexing into a list, simplified
Figure 136: A simple hangman game
Figure 137: Databases as tables
Figure 138: Databases as ISL+ data
Figure 139: The result of systematic expression hoisting
Figure 140: A template for project
Figure 141: Database projection
Figure 142: Database projection
Figure 143: Functions for inexact representations
Figure 144: A Janus-faced series of inexact numbers
Figure 145: The graph of oscillate
Figure 146: Useless templates for breaking up strings into chunks
Figure 147: Generative recursion
Figure 148: A graphical illustration of the quick-sort algorithm
Figure 149: The quick-sort algorithm
Figure 150: The table-based guessing approach for combining
solutions
Figure 151: Designing algorithms (part 1)
Figure 152: Designing algorithms (part 2)
Figure 153: From generative to structural recursion
Figure 154: Finding the greatest common divisor via structural
recursion
Figure 155: Finding the greatest common divisor via generative
recursion
Figure 156: The Sierpinski triangle
Figure 157: The Sierpinski algorithm
Figure 158: A numeric function f with root in interval [a,b] (stage)
Figure 159: The find-root algorithm
Figure 160: Translating a file into a list of lines
Figure 161: The Newton process
Figure 162: The graph of poly on the interval [-1,5]
Figure 163: Distance traveled with constant vs accelerating speed
Figure 164: Integrating a function f between a and b
Figure 165: A generic integration function
Figure 166: A candidate for adaptive integration
Figure 167: A data representation for systems of equations
Figure 168: A directed graph
Figure 169: Finding a path in a graph
Figure 170: A directed graph with cycle
Figure 171: A definition of arrangements using generative recursion
Figure 172: A chess board with a single queen and the positions it
threatens
Figure 173: Three queen configurations for a 3 by 3 chess board
Figure 174: Solutions for the n queens puzzle for 4 by 4 and 5 by 5
boards
Figure 175: Solutions for the 4 queens puzzle
Figure 176: A comparison of two running time expressions
Figure 177: Converting relative distances to absolute distances
Figure 178: Converting relative distances with an accumulator
Figure 179: A simple graph
Figure 180: Finding a path in a simple graph
Figure 181: Finding a path in a simple graph with an accumulator
Figure 182: Design with accumulators, a structural example
Figure 183: Calculating with accumulator-style templates
Figure 184: Some stripped-down binary trees
Figure 185: The accumulator-style version of height
Figure 186: Lam terms as trees
Figure 187: Finding undeclared variables
Figure 188: Static distances
Figure 189: An implementation of lists in BSL
Figure 190: Creating a game tree
Figure 191: Accumulators as results of generative recursions, a
skeleton
Figure 192: Accumulators as results of generative recursion, the
function
 PREFACE

Many professions require some form of programming. Accountants

program spreadsheets; musicians program synthesizers; authors
program word processors; and web designers program style sheets.
When we wrote these words for the first edition of the book (1995–
2000), readers may have considered them futuristic; by now,
programming has become a required skill and numerous outlets—
books, on-line courses, K-12 curricula—cater to this need, always
with the goal of enhancing people’s job prospects.
The typical course on programming teaches a “tinker until it
works” approach. When it works, students exclaim “It works!” and
move on. Sadly, this phrase is also the shortest lie in computing, and
it has cost many people many hours of their lives. In contrast, this
book focuses on habits of good programming, addressing both
professional and vocational programmers.
By “good programming,” we mean an approach to the creation of
software that relies on systematic thought, planning, and
understanding from the very beginning, at every stage, and for every
step. To emphasize the point, we speak of systematic program design
and systematically designed programs. Critically, the latter articulates
the rationale of the desired functionality. Good programming also
satisfies an aesthetic sense of accomplishment; the elegance of a
good program is comparable to time-tested poems or the black-and-
white photographs of a bygone era. In short, programming differs
from good programming like crayon sketches in a diner from oil
paintings in a museum.
 No, this book won’t turn anyone into a master painter. But, we
would not have spent fifteen years writing this edition if we didn’t
believe that

everyone can design programs

and

everyone can experience the satisfaction that comes with creative

design.

Indeed, we go even further and argue that

program design—but not programming—deserves the same role in

a liberal-arts education as mathematics and language skills.

A student of design who never touches a program again will still pick
up universally useful problem-solving skills, experience a deeply
creative activity, and learn to appreciate a new form of aesthetic. The
rest of this preface explains in detail what we mean with “systematic
design,” who benefits in what manner, and how we go about teaching
it all.

Systematic Program Design

A program interacts with people, dubbed users, and other programs,
in which case we speak of server and client components. Hence any
reasonably complete program consists of many building blocks: some
deal with input, some create output, while some bridge the gap
between those two. We choose to use functions as fundamental
building blocks because everyone encounters functions in pre-algebra
and because the simplest programs are just such functions. The key
is to discover which functions are needed, how to connect them, and
how to build them from basic ingredients.
In this context, “systematic program design” refers to a mix of
two concepts: design recipes and iterative refinement. The design
recipes are a creation of the authors, and here they enable the use of
the latter.

We drew inspiration from Michael Jackson’s method for creating COBOL programs plus
conversations with Daniel Friedman on recursion, Robert Harper on type theory, and
Daniel Jackson on software design.

Design Recipes apply to both complete programs and individual

functions. This book deals with just two recipes for complete
programs: one for programs with a graphical user interface (GUI) and
one for batch programs. In contrast, design recipes for functions
come in a wide variety of flavors: for atomic forms of data such as
numbers; for enumerations of different kinds of data; for data that
compounds other data in a fixed manner; for finite but arbitrarily
large data; and so on.
The function-level design recipes share a common design
process. Figure 1 displays its six essential steps. The title of each
step specifies the expected outcome(s); the “commands” suggest the
key activities. Examples play a central role at almost every stage. For
the chosen data representation in step 1, writing down examples
proves how real-world information is encoded as data and how data
is interpreted as information. Step 3 says that a problem-solver must
work through concrete scenarios to gain an understanding of what
the desired function is expected to compute for specific examples.
This understanding is exploited in step 5, when it is time to define
the function. Finally, step 6 demands that examples are turned into
automated test code, which ensures that the function works properly
for some cases. Running the function on real-world data may reveal
other discrepancies between expectations and results.
 Figure 1: The basic steps of a function design recipe

Instructors Have students copy figure 1 on one side of an index card. When students
are stuck, ask them to produce their card and point them to the step where they are
stuck.

Each step of the design process comes with pointed questions.

For certain steps—say, the creation of the functional examples or the
template—the questions may appeal to the data definition. The
answers almost automatically create an intermediate product. This
scaffolding pays off when it comes time to take the one creative step
in the process: the completion of the function definition. And even
then, help is available in almost all cases.

Instructors The most important questions are those for steps 4 and 5. Ask students
to write down these questions in their own words on the back of their index card.
 The novelty of this approach is the creation of intermediate
products for beginner-level programs. When a novice is stuck, an
expert or an instructor can inspect the existing intermediate products.
The inspection is likely to use the generic questions from the design
process and thus drive the novice to correct himself or herself. And
this self-empowering process is the key difference between
programming and program design.
Iterative Refinement addresses the issue that problems are
complex and multifaceted. Getting everything right at once is nearly
impossible. Instead, computer scientists borrow iterative refinement
from the physical sciences to tackle this design problem. In essence,
iterative refinement recommends stripping away all inessential details
at first and finding a solution for the remaining core problem. A
refinement step adds in one of these omitted details and re-solves
the expanded problem, using the existing solution as much as
possible. A repetition, also called an iteration, of these refinement
steps eventually leads to a complete solution.
In this sense, a programmer is a miniscientist. Scientists create
approximate models for some idealized version of the world to make
predictions about it. As long as the model’s predictions come true,
everything is fine; when the predicted events differ from the actual
ones, scientists revise their models to reduce the discrepancy. In a
similar vein, when programmers are given a task, they create a first
design, turn it into code, evaluate it with actual users, and iteratively
refine the design until the program’s behavior closely matches the
desired product.
This book introduces iterative refinement in two different ways.
Since designing via refinement becomes useful even when the design
of programs becomes complex, the book introduces the technique
explicitly in the fourth part, once the problems acquire a certain
degree of difficulty. Furthermore, we use iterative refinement to state
increasingly complex variants of the same problem over the course of
the first three parts of the book. That is, we pick a core problem, deal
with it in one chapter, and then pose a similar problem in a
subsequent chapter—with details matching the newly introduced
concepts.
DrRacket and the Teaching Languages
Learning to design programs calls for repeated hands-on practice.
Just as nobody becomes a piano player without playing the piano,
nobody becomes a program designer without creating actual
programs and getting them to work properly. Hence, our book comes
with a modicum of software support: a language in which to write
down programs and a program development environment with which
programs are edited like word documents and with which readers can
run programs.
Many people we encounter tell us they wish they knew how to
code and then ask which programming language they should learn.
Given the press that some programming languages get, this question
is not surprising. But it is also wholly inappropriate. Learning to
program in a currently fashionable programming language often sets
up students for eventual failure. Fashion in this world is extremely
short lived. A typical “quick programming in X” book or course fails to
teach principles that transfer to the next fashion language. Worse,
the language itself often distracts from the acquisition of transferable
skills, at the level of both expressing solutions and dealing with
programming mistakes.

Instructors For courses not aimed at beginners, it may be possible to use an off-the-
shelf language with the design recipes.

In contrast, learning to design programs is primarily about the

study of principles and the acquisition of transferable skills. The ideal
programming language must support these two goals, but no off-the-
shelf industrial language does so. The crucial problem is that
beginners make mistakes before they know much of the language,
yet programming languages always diagnose these errors as if the
programmer already knew the whole language. As a result, diagnosis
reports often stump beginners.
Our solution is to start with our own tailor-made teaching
language, dubbed “Beginning Student Language” or BSL. The
language is essentially the “foreign” language that students acquire in
pre-algebra courses. It includes notation for function definitions,
function applications, and conditional expressions. Also, expressions
can be nested. This language is thus so small that an error diagnosis
in terms of the whole language is still accessible to readers with
nothing but pre-algebra under their belt.

Instructors You may wish to explain that BSL is pre-algebra with additional forms of
data and a host of pre-defined functions on those.

A student who has mastered the structural design principles can

then move on to “Intermediate Student Language” and other
advanced dialects, collectively dubbed *SL. The book uses these
dialects to teach design principles of abstraction and general
recursion. We firmly believe that using such a series of teaching
languages provides readers with a superior preparation for creating
programs for the wide spectrum of professional programming
languages (JavaScript, Python, Ruby, Java, and others).
Note The teaching languages are implemented in Racket, a
programming language we built for building programming languages.
Racket has escaped from the lab into the real world, and it is a
programming vehicle of choice in a variety of settings, from gaming
to the control of telescope arrays. Although the teaching languages
borrow elements from the Racket language, this book does not teach
Racket. Then again, a student who has completed this book can
easily move on to Racket. End
When it comes to programming environments, we face an equally
bad choice as the one for languages. A programming environment for
professionals is analogous to the cockpit of a jumbo jet. It has
numerous controls and displays, overwhelming anyone who first
launches such a software application. Novice programmers need the
equivalent of a two-seat, single-engine propeller aircraft with which
they can practice basic skills. We have therefore created DrRacket, a
programming environment for novices.
DrRacket supports highly playful, feedback-oriented learning with
just two simple interactive panes: a definitions area, which contains
function definitions, and an interactions area, which allows a
programmer to ask for the evaluation of expressions that may refer
to the definitions. In this context, it is as easy to explore “what if”
scenarios as in a spreadsheet application. Experimentation can start
on first contact, using conventional calculator-style examples and
quickly proceeding to calculations with images, words, and other
forms of data.
An interactive program development environment such as
DrRacket simplifies the learning process in two ways. First, it enables
novice programmers to manipulate data directly. Because no facilities
for reading input information from files or devices are needed,
novices don’t need to spend valuable time on figuring out how these
work. Second, the arrangement strictly separates data and data
manipulation from input and output of information from the “real
world.” Nowadays this separation is considered so fundamental to the
systematic design of software that it has its own name: model-view-
controller architecture. By working in DrRacket, new programmers
are exposed to this fundamental software engineering idea in a
natural way from the get-go.

Skills that Transfer

The skills acquired from learning to design programs systematically
transfer in two directions. Naturally, they apply to programming in
general as well as to programming spreadsheets, synthesizers, style
sheets, and even word processors. Our observations suggest that the
design process from figure 1 carries over to almost any programming
language, and it works for 10-line programs as well as for 10,000-line
programs. It takes some reflection to adopt the design process across
the spectrum of languages and scale of programming problems; but
once the process becomes second nature, its use pays off in many
ways.
Learning to design programs also means acquiring two kinds of
universally useful skills. Program design certainly teaches the same
analytical skills as mathematics, especially (pre)algebra and
geometry. But, unlike mathematics, working with programs is an
active approach to learning. Creating software provides immediate
feedback and thus leads to exploration, experimentation, and self-
evaluation. The results tend to be interactive products, an approach
that vastly increases the sense of accomplishment when compared to
drill exercises in textbooks.
In addition to enhancing a student’s mathematical skills, program
design teaches analytical reading and writing skills. Even the smallest
design tasks are formulated as word problems. Without solid reading
and comprehension skills, it is impossible to design programs that
solve a reasonably complex problem. Conversely, program design
methods force a creator to articulate his or her thoughts in proper
and precise language. Indeed, if students truly absorb the design
recipe, they enhance their articulation skills more than anything else.
To illustrate this point, take a second look at the process
description in figure 1. It says that a designer must

1. analyze a problem statement, typically stated as a word

problem;

2. extract and express its essence, abstractly;

3. illustrate the essence with examples;

4. make outlines and plans based on this analysis;

5. evaluate results with respect to expected outcomes; and

6. revise the product in light of failed checks and tests.

Each step requires analysis, precision, description, focus, and

attention to details. Any experienced entrepreneur, engineer,
journalist, lawyer, scientist, or any other professional can explain how
many of these skills are necessary for his or her daily work. Practicing
program design—on paper and in DrRacket—is a joyful way to
acquire these skills.
Similarly, refining designs is not restricted to computer science
and program creation. Architects, composers, writers, and other
professionals do it, too. They start with ideas in their head and
somehow articulate their essence. They refine these ideas on paper
until their product reflects their mental image as much as possible. As
they bring their ideas to paper, they employ skills analogous to fully
absorbed design recipes: drawing, writing, or piano playing to
express certain style elements of a building, describe a person’s
character, or formulate portions of a melody. What makes them
productive with an iterative development process is that they have
absorbed their basic design recipes and learned how to choose which
one to use for the current situation.

This Book and Its Parts

The purpose of this book is to introduce readers without prior
experience to the systematic design of programs. In tandem, it
presents a symbolic view of computation, a method that explains how
the application of a program to data works. Roughly speaking, this
method generalizes what students learn in elementary school
arithmetic and middle school algebra. But have no fear. DrRacket
comes with a mechanism—the algebraic stepper—that can illustrate
these step-by-step calculations.
The book consists of six parts separated by five intermezzos and
is bookended by a Prologue and an Epilogue. While the major parts
focus on program design, the intermezzos introduce supplementary
concepts concerning programming mechanics and computing.
The Prologue is a quick introduction to plain programming. It
explains how to write a simple animation in *SL. Once finished, any
beginner is bound to feel simultaneously empowered and
overwhelmed. The final note therefore explains why plain
programming is wrong and how a systematic, gradual approach to
program design eliminates the sense of dread that every beginning
programmer usually experiences. Now the stage is set for the core of
the book:

• Part I explains the most fundamental concepts of systematic

design using simple examples. The central idea is that designers
Other documents randomly have
different content
the destination of the vessel to an enemy port which made a vessel
appear as carrying contraband and which justified her seizure. In
Sweden the same was valid.[844] Thus, further, an Italian Prize Court
during the war with Abyssinia in 1896 justified the seizure in the Red
Sea of the Dutch vessel Doelwijk,[845] which sailed for the neutral
French port of Djibouti, carrying a cargo of arms and ammunition
destined for the Abyssinian army and to be transported to Abyssinia
after having been landed at Djibouti.
[844] See Kleen, I. p. 389, note 2.
[845] See Martens, N.R.G. 2nd Ser. XXVIII. p. 66. See also below, § 436.

Partial Recognition by the Declaration of London of the Doctrine of Continuous Voyages.

§ 403a. The Declaration of London offers a compromise in order
to settle the controversy respecting the application of the doctrine of
continuous voyages to the carriage of contraband, whether
circuitous or indirect carriage be concerned.
(1) On the one hand, article 30 recognises with regard to absolute
contraband the application of the doctrine of continuous voyages—
both to circuitous and indirect carriage of contraband—by enacting
that: "absolute contraband is liable to capture if it is shown to be
destined to territory belonging to or occupied by the enemy or to the
armed forces of the enemy. It is immaterial whether the carriage of
the goods is direct or entails transhipment or a subsequent transport
by land."
(2) On the other hand, article 35 categorically rejects the doctrine
of continuous voyages with regard to conditional contraband by
enacting that "conditional contraband is not liable to capture except
when found on board a vessel bound for territory belonging to or
occupied by the enemy, or for the armed forces of the enemy,[846]
and when it is not to be discharged in an intervening neutral port."
(3) However, in cases where the enemy country has no seaboard,
article 36—in contradistinction to the provisions of article 35—
expressly recognises the doctrine of continuous voyages for
conditional contraband also by enacting that "notwithstanding the
provisions of article 35, conditional contraband, if shown to have the
destination referred to in article 33, is liable to capture in cases
where the enemy country has no seaboard."
[846] The rule of article 35 came into question for the first time during the Turco-Italian
war. In January 1912, the Carthage, a French mail-steamer plying between Marseilles
and Tunis, was captured for carriage of contraband by an Italian torpedo-boat and taken
to Cagliari, because she had an aeroplane destined for Tunis on board. As the destination
of the vessel was neutral, and as, according to article 24, No. 8, of the Declaration of
London aeroplanes are conditional contraband, France protested against the capture of
the vessel, Italy agreed to release her, and the parties arranged to have the question as
to whether the capture of the vessel was justified settled by the Permanent Court of
Arbitration at the Hague.

III
CONSEQUENCES OF CARRIAGE OF CONTRABAND

See the literature quoted above at the commencement of § 391.

Capture for Carriage of Contraband.

§ 404. It has always been universally recognised by theory and
practice that a vessel carrying contraband may be seized by the
cruisers of the belligerent concerned. But seizure is allowed only so
long as a vessel is in delicto, which commences when she leaves the
port of starting and ends when she has deposited the contraband
goods, whether with the enemy or otherwise. The rule is generally
recognised, therefore, that a vessel which has deposited her
contraband may not be seized on her return voyage. British and
American practice, however, has hitherto admitted one exception to
this rule—namely, in the case in which a vessel has carried
contraband on her outward voyage with simulated and false papers.
[847]
But no exception has been admitted by the practice of other
countries. Thus, when in 1879, during war between Peru and Chili,
the German vessel Luxor, after having carried a cargo of arms and
ammunition from Monte Video to Valparaiso, was seized in the
harbour of Callao, in Peru, and condemned by the Peruvian Prize
Courts for carrying contraband, Germany interfered and succeeded
in getting the vessel released.
[847] The Nancy (1800), 3 C. Rob. 122; the Margaret (1810), 1 Acton, 333. See Holland,
Prize Law, § 80. Wheaton, I. § 506, note 2, condemns this practice; Hall, § 247, p. 696,
 calls it "undoubtedly severe"; Halleck, II. p. 220, defends it. See also Calvo, V. §§ 2756-
2758.
It must be specially observed that seizure for carriage of
contraband is only admissible on the Open Sea and in the maritime
territorial belts of the belligerents. Seizure within the maritime belt
of neutrals would be a violation of neutrality.
The Declaration of London entirely confirms these old customary
rules, but does not recognise the above-mentioned British exception.
Article 37 enacts that a vessel carrying goods liable to capture as
absolute or conditional contraband may be captured on the high
seas or in the territorial waters of the belligerents throughout the
whole of her voyage even if she is to touch at a port of call before
reaching the hostile destination. Article 38 enacts that a vessel may
not be captured on the ground that she has carried contraband on a
previous occasion if such carriage is in point of fact at an end.

Penalty for Carriage of Contraband according to the Practice hitherto prevailing.

§ 405. In former times neither in theory nor in practice have
similar rules been recognised with regard to the penalty of carriage
of contraband. The penalty was frequently confiscation not only of
the contraband cargo itself, but also of all other parts of the cargo,
together with the vessel. Only France made an exception, since
according to an ordonnance of 1584 she did not even confiscate the
contraband goods themselves, but only seized them against
payment of their value, and it was not until 1681 that an ordonnance
proclaimed confiscation of contraband, but with exclusion of the
vessel and the innocent part of the cargo.[848] During the
seventeenth century this distinction between contraband on the one
hand, and, on the other, the innocent goods and the vessel was
clearly recognised by Zouche and Bynkershoek, and confiscation of
the contraband only became more and more the rule, certain cases
excepted. During the eighteenth century the right to confiscate
contraband was frequently contested, and it is remarkable as
regards the change of attitude of some States that by article 13 of
the Treaty of Friendship and Commerce[849] concluded in 1785
between Prussia and the United States of America all confiscation
was abolished. This article provided that the belligerent should have
the right to stop vessels carrying contraband and to detain them for
such length of time as might be necessary to prevent possible
damage by them, but such detained vessels should be paid
compensation for the arrest imposed upon them. It further provided
that the belligerent could seize all contraband against payment of its
full value, and that, if the captain of a vessel stopped for carrying
contraband should deliver up all contraband, the vessel should at
once be set free. I doubt whether any other treaty of the same kind
was entered into by either Prussia or the United States.[850] And it is
certain that, if any rule regarding penalty for carriage of contraband
was generally recognised at all, it was the rule that contraband
goods could be confiscated. But there always remained the difficulty
that it was controversial what articles were contraband, and that the
practice of States varied much regarding the question as to whether
the vessel herself and innocent cargo carried by her could be
confiscated. For beyond the rule that absolute contraband could be
confiscated, there was no unanimity regarding the fate of the vessel
and the innocent part of the cargo. Great Britain and the United
States of America hitherto confiscated the vessel when the owner of
the contraband was also the owner of the vessel; they also
confiscated such part of the innocent cargo as belonged to the
owner of the contraband goods; they, lastly, confiscated the vessel,
although her owner was not the owner of the contraband, provided
he knew of the fact that his vessel was carrying contraband, or
provided the vessel sailed with false or simulated papers for the
purpose of carrying contraband.[851] Some States allowed such vessel
carrying contraband as was not herself liable to confiscation to
proceed with her voyage on delivery of her contraband goods to the
seizing cruiser,[852] but Great Britain[853] and other States insisted
upon the vessel being brought before a Prize Court in every case.
[848]See Wheaton, Histoire des Progrès du Droit des gens en Europe (1841), p. 82.
[849]Martens, R. IV. p. 42. The stipulation was renewed by article 12 of the Treaty of
Commerce and Navigation concluded between the two States in 1828; Martens, N.R. VII.
p. 619.
 [850] Article 12 of the Treaty of Commerce, between the United States of America and
Italy, signed at Florence on February 26, 1871—see Martens, N.R.G. 2nd Ser. I. p. 57—
stipulates immunity from seizure of such private property only as does not consist of
contraband: "The high contracting parties agree that in the unfortunate event of war
between them, the private property of their respective citizens and subjects, with the
exception of contraband of war, shall be exempt from capture, or seizure, on the high
seas or elsewhere, by the armed vessels or by the military forces of either party; it being
understood that this exemption shall not extend to vessels and their cargoes which may
attempt to enter a port blockaded by the naval forces of either party." See above, § 178.
[851] See Holland, Prize Law, §§ 82-87.
[852] See Calvo, V. § 2779.
[853] See Holland, Prize Law, § 81.
As regards conditional contraband, those States which made any
distinction at all between absolute and conditional contraband, as a
rule confiscated neither the conditional contraband nor the carrying
vessel, but seized the former and paid for it. According to British
practice[854] hitherto prevailing, freight was paid to the vessel, and
the usual compensation for the conditional contraband was the cost
price plus 10 per cent. profit. States acting in this way asserted a
right to confiscate conditional contraband, but exercised pre-emption
in mitigation of such a right. Those Continental writers who refused
to recognise the existence of conditional contraband, denied,
consequently, that there was a right to confiscate articles not
absolutely contraband, but they maintained that every belligerent
had, according to the so-called right of angary,[855] a right to stop all
such neutral vessels as carried provisions and other goods with a
hostile destination of which he might have made use and to seize
such goods against payment of their full value.
[854]See Holland, Prize Law, § 84. Great Britain likewise exercised pre-emption instead
of confiscation with regard to such absolute contraband as was in an unmanufactured
condition and was at the same time the produce of the country exporting it.
[855] See above, § 365.
The Institute of International Law, whose rules regarding
contraband, adopted at its meeting at Venice in 1896, restrict
contraband to arms, ammunition, articles of military equipment,
vessels fitted for naval operations, and instruments for the
immediate fabrication of ammunition, proposed a compromise
regarding articles of ancipitous use. Although the rules state that
those articles may not be considered contraband, they nevertheless
give the choice to a belligerent of either exercising pre-emption or
seizing and temporarily retaining such articles against payment of
indemnities.[856]
[856] It is of value to print here the Règlementation internationale de la contrebande de
guerre adopted by the Institute of International Law (Annuaire, XV. [1896] p. 230):—
§ 1. Sont articles de contrebande de guerre: (1) les armes de toute nature; (2) les
munitions de guerre et les explosifs; (3) le matériel militaire (objets d'équipement, affûts,
uniformes, etc.); (4) les vaisseaux équipés pour la guerre; (5) les instruments
spécialement faits pour la fabrication immédiate des munitions de guerre; lorsque ces
divers objets sont transportés par mer pour le compte ou à la destination d'un
belligérant.
La destination pour l'ennemi est présumée lorsque le transport va à l'un de ses ports,
ou bien à un port neutre qui, d'après des preuves évidentes et de fait incontestable, n'est
qu'une étape pour l'ennemi, comme but final de la même opération commerciale.
§ 2. Sous la dénomination de munitions de guerre doivent être compris les objets qui,
pour servir immédiatement à la guerre, n'exigent qu'une simple réunion ou juxtaposition.
§ 3. Un objet ne saurait être qualifié de contrebande à raison de la seule intention de
l'employer à aider ou favoriser un ennemi, ni par cela seul qu'il pourrait être, dans un but
militaire, utile à un ennemi ou utilisé par lui, ou qu'il est destiné à son usage.
§ 4. Sont et demeurent abolies les prétendues contrebandes désignées sous les noms
soit de contrebande relative, concernant des articles (usus ancipitis) susceptibles d'être
utilisés par un belligérant dans un but militaire, mais dont l'usage est essentiellement
pacifique, soit de contrebande accidentelle, quand lesdits articles ne servent
spécialement aux buts militaires que dans une circonstance particulière.
§ 5. Néanmoins le belligérant a, à son choix et à charge d'une équitable indemnité, le
droit de séquestre ou de préemption quant aux objets qui, en chemin vers un port de
son adversaire, peuvent également servir à l'usage de la guerre et à des usages
pacifiques.

§ 9. En cas de saisies ou répressions non justifiées pour cause de contrebande ou de

transport, l'État du capteur sera tenu aux dommages-intérêts et à la restitution des
objets.
§ 10. Un transport parti avant la déclaration de la guerre et sans connaissance obligée
de son imminence n'est pas punissable.

Penalty according to the Declaration of London for Carriage of Contraband.

§ 406. The Declaration of London offers by articles 39 to 44 a
settlement of the controversy respecting the penalty for carriage of
contraband which represents a fair compromise.
The chief rule is (article 39) that contraband goods, whether
absolute or conditional contraband, may be confiscated. The
carrying vessel may (article 40) likewise be confiscated if the
contraband reckoned either by value, weight, volume, or freight,
forms more than half the cargo. If the latter be not the case, and if
the carrying vessel be therefore released, she may (article 41) be
condemned to pay the costs and expenses incurred by the captor in
respect of the proceedings in the national Prize Court and the
custody of the ship and cargo during the proceedings. But whatever
be the proportion between contraband and innocent goods on a
vessel, innocent goods (article 42) which belong to the owner of the
contraband and are on board the same carrying vessel, may be
confiscated.
If a vessel carrying contraband sails before the outbreak of war
(article 43), or is unaware of a declaration of contraband which
applies to her cargo, or has no opportunity of discharging her cargo
after receiving such knowledge, the contraband may only be
confiscated on payment of compensation, and the vessel herself and
her innocent cargo may not be confiscated nor may the vessel be
condemned to pay any costs and expenses incurred by the captor.
[857]
But there is a presumption which is not rebuttable with regard to
the mens rea of the vessel. For according to the second paragraph
of article 43 a vessel is considered to have knowledge of the
outbreak of war or of a declaration of contraband if she leaves an
enemy port after the outbreak of hostilities, or if she leaves a neutral
port subsequent to the notification of the outbreak of hostilities or of
the declaration of contraband to the Power to which such port
belongs, provided such notification was made in sufficient time.
[857] It is obvious that the vessel must be brought into a port and before a Prize Court if
the captor desires to seize the contraband against compensation. The question as to
whether article 44 applies to such a case, and whether, therefore, the neutral vessel may
be allowed to continue her voyage if the master is willing to hand over the contraband to
the captor, must be answered in the affirmative, provided that the contraband, reckoned
either by value, weight, volume, or freight, forms less than half the cargo. For article 44
precisely treats of a case in which the vessel herself is not liable to condemnation on
account of the proportion of the contraband on board (see article 40).
The question of pre-emption of conditional contraband is not
mentioned by the Declaration of London. There is, however, nothing
to prevent the several maritime Powers from exercising pre-emption
in mitigation of their right of confiscation; the future must show
whether or no they will be inclined to do this.

Seizure of Contraband without Seizure of the Vessel.

§ 406a. Hitherto the practice of the several States has differed—
see above, § 405—with regard to the question as to whether a
vessel which was not herself liable to condemnation might be
allowed to proceed on her voyage on condition that she handed over
the contraband carried by her to the captor. Great Britain and some
other States answered it in the negative, but several States in the
affirmative. The Declaration of London, although it upholds the
general rule that, whatever may be the ultimate fate of the vessel,
she must be taken into a port of a Prize Court, admits two
exceptions to the rule:—
(1) According to article 44, a vessel which has been stopped for
carrying contraband and which is not herself liable to be confiscated
on account of the proportion of contraband on board, may—not
must—when the circumstances permit it, be allowed to continue her
voyage in case she hands over the contraband cargo to the captor.
In such a case the captor is at liberty to destroy the contraband
handed over to him. But the matter must in any case be brought
before a Prize Court. The captor must therefore enter the delivery of
the contraband on the log-book of the vessel so stopped, and the
master of the latter must give duly certified copies of all relevant
papers to the captor.
(2) According to article 54, the captor may—see below, § 431—
exceptionally, in case of necessity, demand the handing over, or may
proceed himself to the destruction, of any absolute or conditional
contraband goods found on a vessel which is not herself liable to
condemnation, if the taking of the vessel into the port of a Prize
Court would involve danger to the safety of the capturing cruiser or
to the success of the operations in which she is engaged at the time.
But the captor must, nevertheless, bring the case before a Prize
Court. He must, therefore, enter the captured goods on the log-book
of the stopped vessel, and must obtain duly certified copies of all
relevant papers. If the captor cannot establish the fact before the
Prize Court that he was really compelled to abandon the intention of
bringing in the carrying vessel, he must be condemned (see article
51) to pay the value of the goods to their owners if the goods were
contraband or if they were not. And the same is valid in case (article
52) the seizure or destruction of the goods is held by the Prize Court
to have been justifiable, but not the capture itself of the carrying
vessel.

CHAPTER V
UNNEUTRAL SERVICE

I
THE DIFFERENT KINDS OF UNNEUTRAL SERVICE

Hall, §§ 248-253—Lawrence, §§ 260-262—Westlake, II. pp. 261-265—Phillimore, III.

§§ 271-274—Halleck, II. pp. 289-301—Taylor, §§ 667-673—Walker, § 72—Wharton,
III. § 374—Wheaton, §§ 502-504 and Dana's note No. 228—Moore, VII. §§ 1264-
1265—Bluntschli, §§ 815-818—Heffter, § 161A—Geffcken in Holtzendorff, IV. pp.
731-738—Ullmann, § 192—Bonfils, Nos. 1584-1588—Despagnet, Nos. 716-716 bis
—Rivier, II. pp. 388-391—Nys, III. pp. 675-681—Calvo, V. §§ 2796-2820—Fiore,
III. Nos. 1602-1605, and Code, Nos. 1836-1840—Martens, II. § 136—Kleen, I. §§
103-106—Boeck, Nos. 660-669—Pillet, p. 330—Gessner, pp. 99-111—Perels, § 47—
Testa, p. 212—Dupuis, Nos. 231-238, and Guerre, Nos. 172-188—Bernsten, § 9—
Nippold, II. § 35—Holland, Prize Law, §§ 88-105—U.S. Naval War Code, articles 16
and 20—Hautefeuille, II. pp. 173-188—Ortolan, II. pp. 209-213—Mountague
Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 187-
205—Marquardsen, Der Trent-Fall (1862), pp. 58-71—Hirsch, Kriegskonterbande
und verbotene Transporte in Kriegszeiten (1897), pp. 42-55—Takahashi,
International Law during the Chino-Japanese War (1899), pp. 52-72—Vetzel, De la
contrebande par analogie en droit maritime internationale (1901)—Atherley-Jones,
Commerce in War (1906), pp. 304-315—Hirschmann, Das internationale
Prisenrecht (1912), §§ 31-32—See also the monographs quoted above at the
commencement of § 391, and the General Report presented to the Naval
Conference of London on behalf of the Drafting Committee, articles 45-47.

Unneutral service in general.

 § 407. Before the Declaration of London the term unneutral
service was used by several writers with reference to the carriage of
certain persons and despatches for the enemy on the part of neutral
vessels. The term has been introduced in order to distinguish the
carriage of persons and despatches for the enemy from the carriage
of contraband, as these were often confounded with each other.
Since contraband consists of certain goods only and never of
persons or despatches, a vessel carrying persons and despatches for
the enemy is not thereby actually carrying contraband.[858] And there
is another important difference between the two. Carriage of
contraband need not necessarily, and in most cases actually does
not, take place in the direct service of the enemy. On the other
hand, carriage of persons and despatches for the enemy always
takes place in the direct service of the enemy, and, consequently,
represents a much more intensive assistance of, and a much more
intimate connection with, the enemy than carriage of contraband.
For these reasons a distinct treatment of carriage of contraband, on
the one hand, and carriage of persons and despatches, on the other,
was certainly considered desirable by many publicists. Those writers
who did not adopt the term unneutral service, on account of its
somewhat misleading character, preferred[859] the expression
analogous of contraband, because in practice maritime transport for
the enemy was always treated in analogy with, although not as,
carriage of contraband.
[858] This was recognised in the case of the Yangtsze Insurance Association v. Indemnity
Mutual Marine Assurance Company, L.R. (1908), 1 K.B. 910 and 2 K.B. 504.
[859] It was also preferred in the first edition of this work. But it was necessary to
abandon further resistance on account of the fact that after the official adoption, in the
translation of the Declaration of London, of the term unneutral service it was useless to
oppose it.
The Declaration of London puts the whole matter upon a new and
very much enlarged basis, for Chapter III. treats in articles 45 to 47,
under the heading De l'assistance hostile—the official English
translation of which is unneutral service—not only of the carriage of
persons for the enemy on the part of a neutral vessel, but also of
the transmission of intelligence in the interest of the enemy, the
taking of a direct part in the hostilities, and a number of other acts
on the part of a neutral vessel. Accordingly the Declaration of
London makes a distinction between two kinds of unneutral service,
meting out for the one a treatment analogous in a general way to
contraband, and for the other a treatment analogous to that of
enemy merchant vessels. Carriage of individual members of the
armed forces of the enemy and a certain case of transmission of
intelligence in the interest of the enemy constitute the first kind, and
four groups of acts creating enemy character for the vessel
concerned constitute the second kind.[860]
[860]Although—see above, §§ 173 and 174—prevention of unneutral service to the
enemy is a means of sea warfare, it chiefly concerns neutral commerce, and is,
therefore, more conveniently treated with neutrality.

Carriage of Persons for the Enemy.

§ 408. Either belligerent may punish neutral vessels for carrying,
in the service of the enemy, certain persons.
Such persons included, according to the customary rules of
International Law hitherto prevailing, not only members of the
armed forces of the enemy, but also individuals who were not yet
members of the armed forces but who would have become so as
soon as they reached their place of destination, and, thirdly, non-
military individuals in the service of the enemy either in such a
prominent position that they could be made prisoners of war, or who
were going abroad as agents for the purpose of fostering the cause
of the enemy. Thus, for instance, if the head of the enemy State or
one of his cabinet ministers fled the country to avoid captivity, the
neutral vessel that carried him could have been punished, as could
also the vessel carrying an agent of the enemy sent abroad to
negotiate a loan and the like. However, the mere fact that enemy
persons were on board a neutral vessel did not in itself prove that
these persons were carried by the vessel for the enemy and in his
service. This was the case only when either the vessel knew of the
character of the persons and nevertheless carried them, thereby
acting in the service of the enemy, or when the vessel was directly
hired by the enemy for the purpose of transport of the individuals
concerned. Thus, for instance, if able-bodied men booked their
passages on a neutral vessel to an enemy port with the secret
intention of enlisting in the forces of the enemy, the vessel could not
be considered as carrying persons for the enemy; but she could be
so considered if an agent of the enemy openly booked their
passages. Thus, further, if the fugitive head of the enemy State
booked his passage under a false name, and concealed his identity
from the vessel, she could not be considered as carrying a person
for the enemy; but she could be so considered if she knew whom
she was carrying, because she was then aware that she was acting
in the service of the enemy. As regards a vessel directly hired by the
enemy, there could be no doubt that she was acting in the service of
the enemy. Thus the American vessel Orozembo[861] was in 1807,
during war between England and the Netherlands, captured and
condemned, because, although chartered by a merchant in Lisbon
ostensibly to sail in ballast to Macao and to take from there a cargo
to America, she received by order of the charterer three Dutch
officers and two Dutch civil servants, and sailed, not to Macao, but
to Batavia. And the American vessel Friendship[862] was likewise in
1807, during war between England and France, captured and
condemned, because she was hired by the French Government to
carry ninety shipwrecked officers and sailors home to a French port.
[861] 6 C. Rob. 430.
[862] 6 C. Rob. 420.

According to British practice hitherto prevailing, a neutral vessel

was considered as carrying persons in the service of the enemy even
if she were, through the application of force, constrained by the
enemy to carry the persons, or if she were in bona-fide ignorance of
the status of her passengers. Thus, in 1802, during war between
Great Britain and France, the Swedish vessel Carolina[863] was
condemned by Sir William Scott for having carried French troops
from Egypt to Italy, although the master endeavoured to prove that
the vessel was obliged by force to render the transport service. And
the above-mentioned vessel Orozembo was condemned[864] by Sir
William Scott, although her master was ignorant of the service for
the enemy on which he was engaged: "... In cases of bona-fide
ignorance there may be no actual delinquency; but if the service is
injurious, that will be sufficient to give the belligerent a right to
prevent the thing from being done or at least repeated," said Sir
William Scott.[865]
[863] 4 C. Rob. 256.
[864] See Phillimore, III. § 274, and Holland, Prize Law, §§ 90-91. Hall, § 249, p. 700,
note 2, reprobates the British practice. During the Russo-Japanese War only one case of
condemnation of a neutral vessel for carrying persons for the enemy is recorded, that of
the Nigretia, a vessel which endeavoured to carry into Vladivostock the escaped captain
and lieutenant of the Russian destroyer Ratzoporni; see Takahashi, pp. 639-641.
[865] It should be mentioned that, according to the customary law hitherto prevailing, the
case of diplomatic agents sent by the enemy to neutral States was an exception to the
rule that neutral vessels may be punished for carrying agents sent by the enemy. The
importance of this exception became apparent in the case of the Trent which occurred
during the American War. On November 8, 1861, the Federal cruiser San Jacinto stopped
the British mail steamer Trent on her voyage from Havana to the British port of Nassau,
in the Bahamas, forcibly took off Messrs. Mason and Slidell, together with their
secretaries, political agents sent by the Confederate States to Great Britain and France,
and then let the vessel continue her voyage. Great Britain demanded their immediate
release, and the United States at once granted this, although the ground on which
release was granted was not identical with the ground on which release was demanded.
The Government of the United States maintained that the removal of these men from the
vessel without bringing her before a Prize Court for trial was irregular, and, therefore, not
justified, whereas release was demanded on the ground that a neutral vessel could not
be prevented from carrying diplomatic agents sent by the enemy to neutrals. Now
diplomatic agents in the proper sense of the term these gentlemen were not, because
although they were sent by the Confederate States, the latter were not recognised as
such, but only as a belligerent Power. Yet these gentlemen were political agents of a
quasi-diplomatic character, and the standpoint of Great Britain was for this reason
perhaps correct. The fact that the Governments of France, Austria, and Prussia protested
through their diplomatic envoys in Washington shows at least that neutral vessels may
carry unhindered diplomatic agents sent by the enemy to neutrals, however doubtful it
may be whether the same is valid regarding agents with a quasi-diplomatic character.
See Parliamentary Papers, 1862, North America, N. 5; Marquardsen, Der Trent Fall
(1862); Wharton, § 374; Moore, VII. § 1265; Phillimore, II. §§ 130-130A; Mountague
Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 187-205;
Harris, The Trent Affair (1896).
According to the Declaration of London neutral merchantmen may,
apart from the case of the carriage of persons who in the course of
the voyage directly assist the operations of the enemy, only be
considered to render unneutral service by carrying such enemy
persons as are actually already members of the armed forces of the
enemy. Article 45 makes it quite apparent, through using the words
"embodied in the armed forces," that reservists and the like who are
on their way to the enemy country for the purpose of there joining
the armed forces, do not belong to such enemy persons as a neutral
vessel may not carry without exposing herself to punishment for
rendering unneutral service to the enemy. And four different cases of
carrying enemy persons must be distinguished according to the
Declaration of London, namely: that of a neutral vessel exclusively
engaged in the transport of enemy troops; that of a vessel
transporting a military detachment of the enemy; that of a vessel
transporting one or more persons who in the course of the voyage
directly assist the operations of the enemy; that of a vessel
transporting, on a voyage specially undertaken, individual members
of the armed forces of the enemy.
(1) According to article 46, No. 4, a neutral vessel exclusively
intended at the time for the transport of enemy troops acquires
thereby enemy character. This case will be considered with others of
the same kind below in § 410.
(2) In case a vessel, although she is not exclusively therefor
destined, and although she is not on a voyage specially undertaken
for that purpose, transports, to the knowledge of either the owner or
the charterer or the master, a military detachment of the enemy, she
is, according to article 45, No. 2, considered to render unneutral
service for which she may be punished. Accordingly, if to the
knowledge of either the owner or the charterer or the master, a
neutral vessel in the ordinary course of her voyage carries a military
detachment of the enemy, she is liable to be seized for unneutral
service.
(3) In case a neutral vessel, to the knowledge of either the owner
or the charterer or the master, carries one or more persons—
subjects of one of the belligerents or of a neutral Power—who in the
course of the voyage directly assist the operations of the enemy in
any way, for instance by signalling or sending message by wireless
telegraphy, she is, according to article 45, No. 2, likewise liable to
seizure for rendering unneutral service.
 (4) In case a neutral vessel carries individual members of the
armed forces of the enemy, she is, according to article 45, No. 1,
then only liable to seizure if she is on a voyage specially undertaken
for such transport, that means, if she has been turned from her
ordinary course and has touched at a port outside her ordinary
course for the purpose of embarking, or is going to touch at a port
outside her ordinary course for the purpose of disembarking, the
enemy persons concerned. A liner, therefore, carrying individual
members of the armed forces of the enemy in the ordinary course of
her voyage may not be considered to be rendering unneutral service
and may not be seized. However, according to article 47, a neutral
vessel carrying members of the armed forces of the enemy while
pursuing her ordinary course, may be stopped for the purpose of
taking off such enemy persons and making them prisoners of war
(see below, § 413).
Transmission of Intelligence to the Enemy.
§ 409. Either belligerent may punish neutral merchantmen for
transmission of intelligence to the enemy.
According to customary rules hitherto in force, either belligerent
might punish neutral vessels for the carriage of political despatches
from or to the enemy, and especially for such despatches as were in
relation to the war. But to this rule there were two exceptions.
Firstly, on the ground that neutrals have a right to demand that their
intercourse with either belligerent be not suppressed: a neutral
vessel might not, therefore, be punished for carrying despatches
from the enemy to neutral Governments, and vice versa,[866] and,
further, despatches from the enemy Government to its diplomatic
agents and consuls abroad in neutral States, and vice versa.[867]
Secondly, on account of article 1 of Convention XI., by which postal
correspondence is inviolable, except in the case of violation of
blockade, the correspondence destined for, or proceeding from, the
blockaded port. However, the mere fact that a neutral vessel had
political despatches to or from the enemy on board did not by itself
prove that she was carrying them for and in the service of the
enemy. Just as in the case of certain enemy persons on board, so in
the case of despatches, the vessel was only considered to be
carrying them in the service of the enemy if either she knew of their
character and had nevertheless taken them on board, or if she was
directly hired for the purpose of carrying them. Thus, the American
vessel Rapid,[868] which was captured in 1810 during the war
between Great Britain and the Netherlands, on her voyage from New
York to Tonningen, for having on board a despatch for a Cabinet
Minister of the Netherlands hidden under a cover addressed to a
merchant at Tonningen, was released by the Prize Court. On the
other hand, the Atalanta,[869] which carried despatches in a tea chest
hidden in the trunk of a supercargo, was condemned.[870]
[866] The Caroline (1808), 6 C. Rob. 461.
[867] The Madison (1810), Edwards, 224.
[868] Edwards, 228.
[869]6 C. Rob. 440.
[870]British practice seems unsettled on the question as to whether the vessel must
know of the character of the despatch which she is carrying. In spite of the case of the
Rapid, quoted above, Holland, Prize Law, § 100, maintains that ignorance of the master
of the vessel is no excuse, and Phillimore, III. § 272, seems to be of the same opinion.
According to the Declaration of London the carriage of despatches
for the enemy may only be punished in case it falls under the
category of transmitting intelligence to the enemy on the part of a
neutral vessel. Two kinds of such transmission of intelligence must
be distinguished:—
Firstly, according to article 46, No. 4, a neutral vessel exclusively
intended for the transmission of intelligence to the enemy acquires
thereby enemy character; this will be considered with other cases of
the same kind below in § 410.
Secondly, according to article 45, No. 1, a neutral vessel may be
seized for transmitting intelligence to the enemy if she is on a
voyage specially undertaken for such transmission, that is to say, if
she has been turned from her ordinary course and has touched or is
going to touch at a port outside her ordinary course for the purpose
of transmitting intelligence to the enemy. A liner, therefore,
transmitting intelligence to the enemy in the ordinary course of her
voyage may not be considered to be rendering unneutral service and
may not be punished. However, self-preservation would in a case of
necessity justify a belligerent in temporarily detaining such a liner for
the purpose of preventing the intelligence from reaching the enemy.
[871]

[871] See below, § 413.

The conception "transmission of intelligence" is not defined by the
Declaration of London. It certainly means not only oral transmission
of intelligence, but also the transmission of despatches containing
intelligence. The transmission of any political intelligence of value to
the enemy, whether or no the intelligence is in relation to the war,
must be considered unneutral service, the case excepted in which
intelligence is transmitted from the enemy to neutral Governments,
and vice versa, and, further, from the enemy Government to its
diplomatic agents and consuls abroad in neutral States. And it must
be emphasised that, although a vessel may be seized and punished
for unneutral service, according to article 1 of Convention XI. of the
Second Hague Peace Conference the postal correspondence of
neutrals or belligerents, whatever its character, found on board is
inviolable.

Unneutral Service creating Enemy Character.

§ 410. In contradistinction to cases of unneutral service which are
similar to carriage of contraband, the Declaration of London
enumerates in article 46 four cases of such kinds of unneutral
service as vest neutral vessels with enemy character.[872]
(1) There is, firstly, the case of a neutral merchantman taking a
direct part in the hostilities. This may occur in several ways, but such
vessel in every case loses her neutral and acquires enemy character,
just as a subject of a neutral Power who enlists in the ranks of the
enemy armed forces. But a distinction must be made between taking
a direct part in the hostilities, for instance rendering assistance to
the enemy fleet during battle, on the one hand, and, on the other,
acts of a piratical character. If a neutral merchantman—see above,
§§ 85, 181, and 254—without Letters of Marque during war and
from hatred of one of the belligerents, were to attack and sink
merchantmen of such belligerent, she would have to be considered,
and could therefore be treated as, a pirate.
(2) There is, secondly, the case of a neutral vessel which sails
under the orders or the control of an agent placed on board by the
enemy Government. The presence of such agent, and the fact that
the vessel sails under his orders or control shows clearly that she is
really for all practical purposes part and parcel of the enemy forces.
(3) There is, thirdly, the case of a neutral vessel in the exclusive
employment of the enemy. This may occur in two different ways:
either the vessel may be rendering a specific service in the exclusive
employment of the enemy, as, for instance, did those German
merchantmen during the Russo-Japanese War which acted as colliers
for the Russian fleet en route for the Far East; or the vessel may be
chartered by the enemy so that she is entirely at his disposal for any
purpose he may choose, whether such purpose is or is not
connected with the war.[873]
(4) There is, fourthly and lastly, the case of a neutral
merchantman exclusively intended at the time either for the
transport of enemy troops or for the transmission of intelligence for
the enemy. This case is different from the case—provided for by
article 45, No. 1—of a vessel on a voyage specially undertaken with
a view to the carriage of individual members of the armed forces of
the enemy. Whereas the latter is a case of unneutral service
rendered by a vessel which turns from her course for the purpose of
rendering specific service, the former is a case in which the vessel is
exclusively and for the time being permanently intended and
devoted to the rendering of unneutral service. For the time being
she is, therefore, actually part and parcel of the enemy marine. For
this reason she is considered to be rendering unneutral service, and
to have lost her neutral character, even if, at the moment an enemy
cruiser searches her, she is engaged neither in the transport of
troops nor in the transmission of intelligence. The fact is decisive
that she is for the time being exclusively intended for such unneutral
service, whether or no she is at every moment really engaged in
rendering such service. And it makes no difference, whether the
vessel is engaged by the enemy and paid for the transport of troops
or the transmission of intelligence, or whether she renders the
service[874] gratuitously.
[872] See above, § 89 (1), p. 113.
[873] Two cases of interest occurred in 1905, during the Russo-Japanese War. The
Industrie, a German vessel, and the Quang-nam, a French vessel, were captured and
condemned by the Japanese for being in the employ of Russia as reconnoitring vessels,
although the former pretended to collect news in the service of the Chefoo Daily News,
and the latter pretended to be a cargo vessel plying between neutral ports. See
Takahashi, pp. 732 and 735.
[874] As regards the meaning of the term transmission of intelligence, see above, § 409.

II
CONSEQUENCES OF UNNEUTRAL SERVICE

See the literature quoted above at the commencement of § 407.

Capture for Unneutral Service.

§ 411. According to customary rules hitherto prevailing, as well as
according to the Declaration of London, a neutral vessel may be
captured if visit or search establish the fact, or grave suspicion of the
fact, that she is rendering unneutral service to the enemy. And such
capture may take place anywhere throughout the range of the Open
Sea and the territorial maritime belt of either belligerent.
Stress must be laid on the fact that mail steamers are on principle
not exempt from capture for unneutral service. Although, according
to article 1 of Convention XI., the postal correspondence of
belligerents as well as of neutrals, whatever its official or private
character, found on board a vessel on the sea is inviolable,[875] and a
vessel may never, therefore, be considered to be rendering unneutral
service by carrying amongst her postal correspondence despatches
containing intelligence for the enemy, a mail steamer is nevertheless
—see article 2 of Convention XI.—not exempt from the laws and
customs of naval war respecting neutral merchantmen. A mail boat
is, therefore, quite as much as any other merchantman, exposed to
capture for rendering unneutral service.
 [875] See above, §§ 191 and 319.
However this may be, capture is allowed only so long as the vessel
is in delicto, that is during the time in which she is rendering the
unneutral service concerned or immediately afterwards while she is
being chased for having rendered unneutral service. A neutral vessel
may not, therefore, be captured after the completion of a voyage
specially undertaken for the purpose of transporting members of the
armed forces of the enemy, or of transmitting intelligence for the
enemy, or after having disembarked the military detachment of the
enemy and the persons directly assisting the operations of the
enemy in the course of the voyage whom she was transporting. And
it must be specially emphasised that even such neutral vessel as had
acquired—see article 46 of the Declaration of London—enemy
character by rendering unneutral service, ceases to be in delicto
after her unneutral service has come to an end. Thus, for instance, a
neutral vessel which took a direct part in hostilities[876] may not
afterwards be captured, nor may a vessel which has disembarked
the agent of the enemy Government under whose orders or control
she was navigating.
[876] Provided she did not—see above, § 410 (1)—commit acts of a piratical character;
for such acts she may always be punished.

Penalty for Unneutral Service.

§ 412. According to the practice hitherto prevailing, a neutral
vessel captured for carriage of persons or despatches in the service
of the enemy could be confiscated. Moreover, according to British[877]
practice, such part of the cargo as belonged to the owner of the
vessel was likewise confiscated.[878] And if the vessel was not found
guilty of carrying persons or despatches in the service of the enemy,
and was not therefore condemned, the Government of the captor
could nevertheless detain the persons as prisoners of war and
confiscate the despatches, provided the persons and despatches
concerned were in any way of such a character as to make a vessel,
which was cognisant of this character, liable to punishment for
transporting them for the enemy.
 [877] The Friendship (1807), 6 C. Rob. 420; the Atalanta (1808), 6 C. Rob. 440. See
Holland, Prize Law, §§ 95 and 105.
[878] See, however, the Hope (1808), 6 C. Rob. 463, note.

The Declaration of London recognises these three rules. Articles

45 and 46 declare any vessel rendering any kind of unneutral service
to the enemy liable to confiscation, and likewise declare such part of
the cargo as belongs to the owner of the confiscated vessel liable to
confiscation. And article 47 enacts that, although a neutral vessel
may not be condemned because there are no grounds for her
capture, the capturing State may nevertheless detain as prisoners of
war any members of the armed forces of the enemy who were found
on board the vessel. The case of despatches found on board is not
mentioned by article 47, but there ought to be no doubt—see below,
§ 413—that the old customary rule that, although the vessel may
not be condemned because there is no ground for capture, any
despatches for the enemy found on board may, in analogy with
article 47, be confiscated, provided such despatches are not part of
the postal correspondence carried on board.
It must be emphasised that the mere fact that a neutral vessel is
rendering unneutral service, is not sufficient for her condemnation;
for in addition mens rea is required. Now as regards the four kinds
of unneutral service which create enemy character, mens rea is
obviously always in existence, and therefore always presumed to be
present. For this reason article 46, in contradistinction to article 45,
does not mention anything concerning the knowledge by the vessel
of the outbreak of hostilities. But as regards the other cases of
unneutral service, article 45 provides that the vessel may not be
confiscated if the vessel is encountered at sea while unaware of the
outbreak of hostilities, or if the master, after becoming aware of the
outbreak of hostilities, has had no opportunity of disembarking the
passengers concerned. On the other hand, a vessel is deemed,
according to article 45, to be aware of the existence of a state of
war if she left an enemy port subsequent to the outbreak of
hostilities, or a neutral port subsequent to the notification of the
outbreak of hostilities to the Power to which such port belongs,
provided that such notification was made in sufficient time.
 Although the Declaration of London metes out the same
punishment for the several kinds of unneutral service which it
enumerates, it nevertheless makes a distinction, apart from the
penalty, with regard to the treatment of the vessels captured for
rendering unneutral service.
Article 45 provides for a neutral vessel captured for having
rendered either of the two kinds of unneutral service mentioned in
this article a treatment which is, in a general way, the same as that
for a neutral vessel captured for the carriage of contraband. This
means that the vessel does not lose her neutral character, and must
under all circumstances and conditions be taken before a Prize
Court, unless—see article 49 of the Declaration of London—the
taking of her into a port of the capturing State would involve danger
to the safety of the capturing vessel or to the success of the military
operations in which she is engaged at the time. And an appeal from
the national Prize Courts may be brought to the International Prize
Court.
Article 46, on the other hand, provides, apart from the penalty, a
treatment for a vessel captured for having rendered any of the four
kinds of unneutral service enumerated in this article which, in a
general way, is the same as that for a captured enemy
merchantman. This means that such vessel acquires enemy
character. Accordingly (see above, § 89) all enemy goods on the
vessel may be seized, all goods on board will be presumed to be
enemy goods, and the owners of neutral goods on board will have to
prove the neutral character of their goods. Further, the rules of
articles 48 and 49 of the Declaration of London concerning the
destruction of neutral vessels do not apply. Again, no appeal may be
brought from the national Prize Courts to the International Prize
Court by the owner of the ship except concerning the one question
only, namely, whether the act of which she is accused has the
character of unneutral service.[879]
[879]The question as to whether, if the vessel has been destroyed by the captor, the
innocent owners of the neutral goods on board may claim compensation, has to be
decided in the same way as the question as to whether the owners of neutral goods on a
destroyed enemy merchantman have a claim to compensation; see above, § 194.
 Seizure of Enemy Persons and Despatches without Seizure of Vessel.
§ 413. According to the British[880] and American practice, as well
as that of some other States, which has hitherto prevailed, whenever
a neutral vessel was stopped for carrying persons or despatches for
the enemy, these could not be seized unless the vessel were seized
at the same time. The release, in 1861, during the American Civil
War, of Messrs. Mason[881] and Slidell, who had been forcibly taken
off the Trent, while the ship herself was allowed to continue her
voyage, was based, by the United States, on the fact that the seizure
of these men without the seizure of the vessel was illegal. Since,
according to the Declaration of London, a neutral vessel rendering
unneutral service of any kind is liable to be confiscated, it is evident
that in such a case the enemy persons and despatches concerned
may not be taken off the vessel unless the vessel herself is seized
and brought into a port of a Prize Court. However, article 47 provides
that any member of the armed forces of the enemy found on board
a neutral merchant vessel may be taken off and made a prisoner of
war, although there may be no ground for the capture of the vessel.
Therefore, if a vessel carries individual members of the armed forces
of the enemy in the ordinary course of her voyage,[882] or if she
transports a military detachment of the enemy and the like without
being aware of the outbreak of hostilities, the members of the
armed forces of the enemy on board may be seized, although the
vessel herself may not be seized, as she is not rendering unneutral
service.
[880] See Holland, Prize Law, § 104.
[881] See above, § 408, p. 519, note 3.
[882] Accordingly, in January 1912, during the Turco-Italian War, the Italian gunboat
Volturno, after having overhauled, in the Red Sea, the British steamer Africa going from
Hodeida to Aden, took off and made prisoners of war Colonel Riza Bey and eleven other
Turkish officers. Although the Declaration of London is not yet ratified by Great Britain,
she did not protest. The case of the Manouba ought likewise to be mentioned here. This
French steamer, which plies between Marseilles and Tunis, was stopped on January 16,
1912, by an Italian cruiser in the Mediterranean, and twenty-nine Turkish passengers,
who were supposed to be Turkish officers on their way to the theatre of war, were
forcibly taken off and made prisoners. On the protest of France, the captives were
handed over to her in order to ascertain whether they were members of the Turkish
forces, and it was agreed between the parties that the case should be settled by an
 arbitral award of the Permanent Court of Arbitration at the Hague, Italy asserting that
she had only acted in accordance with article 47 of the Declaration of London.
The Declaration of London does not mention the case of enemy
despatches embodying intelligence found on board such a neutral
vessel as may not herself be captured for such carriage. For
instance, in the case of a mail steamer pursuing her ordinary course
and carrying a despatch of the enemy not in her mail bags but
separately, the vessel may not, according to article 45, be seized. In
this, and similar cases, may despatches be seized without the
seizure of the vessel? It has been pointed out above, § 409, that, in
a case of necessity, self-preservation would justify a belligerent in
temporarily detaining such a liner for the purpose of preventing the
intelligence from reaching the enemy. This certainly fits the case of a
vessel transmitting oral intelligence. But if a vessel carried
despatches, the necessity of detaining her ceases through seizure of
the despatches themselves. The question—see above, § 412—as to
whether in such cases the despatches may be seized without seizure
of the vessel ought, therefore, in analogy with article 47 of the
Declaration of London, to be answered in the affirmative.
Quite different from the case of seizure of such enemy persons
and despatches as a vessel cannot carry without exposing herself to
punishment, is the case[883] where a vessel has such enemy persons
and despatches on board as she is allowed to carry, but whom a
belligerent believes it to be necessary in the interest of self-
preservation to seize. Since necessity in the interest of self-
preservation is, according to International Law, an excuse[884] for an
illegal act, a belligerent may seize such persons and despatches,
provided that such seizure is not merely desirable, but absolutely
necessary[885] in the interest of self-preservation, as, for instance, in
the case where an Ambassador of the enemy on board a neutral
vessel is on the way to submit to a neutral a draft treaty of alliance
injurious to the other belligerent.
[883] See Hall, § 253; Rivier, II. p. 390.
[884] See above, vol. I. § 129.
[885] See above, vol. I. § 130.
 CHAPTER VI
VISITATION, CAPTURE, AND TRIAL OF
NEUTRAL VESSELS

I
VISITATION

Bynkershoek, Quaest. jur. pub. I. c. 14—Vattel, III. § 114—Hall, §§ 270-276—

Manning, pp. 433-460—Phillimore, III. §§ 322-344—Twiss, II. §§ 91-97—Halleck,
II. pp. 255-271—Taylor, §§ 685-689—Wharton, III. §§ 325 and 346—Wheaton, §§
524-537—Moore, VII. §§ 1199-1205—Bluntschli, §§ 819-826—Heffter, §§ 167-171
—Geffcken in Holtzendorff, IV. pp. 773-781—Klüber, §§ 293-294—G. F. Martens, II.
§§ 317 and 321—Ullmann, § 196—Bonfils, Nos. 1674-1691—Despagnet, Nos. 717-
721—Rivier, II. pp. 423-426—Nys, III. pp. 682-692—Calvo, V. §§ 2939-2991—
Fiore, III. Nos. 1630-1641, and Code, Nos. 1853-1877—Martens, II. § 137—Kleen,
II. §§ 185-199, 209—Gessner, pp. 278-332—Boeck, Nos. 767-769—Dupuis, Nos.
239-252, and Guerre, Nos. 189-204—Bernsten, § 11—Nippold, II. § 35—Perels, §§
52-55—Testa, pp. 230-242—Ortolan, II. pp. 214-245—Hautefeuille, III. pp. 1-299—
Holland, Prize Law, §§ 1-17, 155-230—U.S. Naval War Code, articles 30-33—
Schlegel, Sur la visite des vaisseaux neutres sous convoi (1800)—Mirbach, Die
völkerrechtlichen Grundsätze des Durchsuchungsrechts zur See (1903)—
Loewenthal, Das Untersuchungsrecht des internationalen Seerechts im Krieg und
Frieden (1905)—Atherley-Jones, Commerce in War (1906), pp. 299-360—
Hirschmann, Das internationale Prisenrecht (1912), §§ 33-34—Duboc in R.G. IV.
(1897), pp 382-403—See also the monographs quoted above at the
commencement of § 391, Bulmerincq's articles on Le droit des prises maritimes in
R.I. X-XIII. (1878-1881), and the General Report presented to the Naval
Conference of London on behalf of the Drafting Committee, article 63.

Conception of Right of Visitation.

§ 414. Right of visitation[886] is the right of belligerents to visit and
eventually search neutral merchantmen for the purpose of
ascertaining whether these vessels really belong to the merchant
marine of neutrals, and, if this is found to be the case, whether they
are attempting to break a blockade, or carry contraband, or render
unneutral service to the enemy. The right of visit and search was
already mentioned in the Consolato del Mare, and although it has
often[887] been contested, its raison d'être is so obvious that it has
long been universally recognised in practice. It is indeed the only
means by which belligerents are able to ascertain whether neutral
merchantmen intend to bring assistance to the enemy and to render
him unneutral services.[888]
[886] It must be borne in mind that this right of visitation is not an independent right but
is involved in the right of either belligerent—see above, § 314—to punish neutral vessels
breaking blockade, carrying contraband, and rendering unneutral service.
[887] See, for instance, Hübner, De la saisie des bâtiments neutres (1759), I. p. 227.
[888] Attention should be drawn to the Règlement international des prises maritimes,
adopted at Heidelberg in 1887 by the Institute of International Law; §§ 1-29 regulate
visit and search. See Annuaire, IX. (1888), p. 202.

Right of Visitation, by whom, when, and where exercised.

§ 415. The right of visit and search may be exercised by all
warships[889] of belligerents. But since it is a belligerent right, it may,
of course, only be exercised after the outbreak and before the end
of war. The right of visitation on the part of men-of-war of all nations
in time of peace in a case of suspicion of piracy—see above, vol. I. §
266 (2)—has nothing to do with the right of visit and search on the
part of belligerents. And since an armistice does not bring war to an
end, and since, on the other hand, the exercise of the right of
visitation is not an act of warfare, this right may be exercised during
the time of a partial as well as of a general armistice.[890] The region
where the right may be exercised is the maritime territorial belt of
either belligerent, and, further, the Open Sea, but not the maritime
territorial belt of neutrals. Whether the part of the Open Sea in
which a belligerent man-of-war meets with a neutral merchantman is
near or far away from that part of the world where hostilities are
actually taking place makes no difference so long as there is
suspicion against the vessel. The question as to whether the men-of-
war of a belligerent may exercise the right of visitation in the
maritime territorial belt of an ally is one between the latter and the
belligerent exclusively, provided such an ally is already a belligerent.
[889] It should be mentioned that privateers could also exercise the right of visit and
search. But since even such States as have not acceded to the Declaration of Paris in
practice no longer issue Letters of Marque, such a case will no longer occur.
[890] But this is not universally recognised. Thus, Hautefeuille, III. p. 91, maintains that
during a general armistice the right of visitation may not be exercised, and § 5 of the
Règlement international des prises maritimes of the Institute of International Law takes
 up the same attitude. It ought, likewise, to be mentioned that in strict law the right of
visit and search may be exercised even after the conclusion of peace before the treaty of
peace is ratified. But the above-mentioned § 5 of the Règlement international des prises
maritimes declares this right to cease "avec les préliminaires de la paix." See below, §
436.

Only Private Vessels may be Visited.

§ 416. During the nineteenth century it became universally
recognised that neutral men-of-war are not objects of the right of
visit and search of belligerents.[891] And the same is valid regarding
public neutral vessels which sail in the service of armed forces, such
as transport vessels, for instance. Doubt exists as to the position of
public neutral vessels which do not sail in the service of armed
forces, but sail for other purposes, as, for instance, mail-boats
belonging to a neutral State. It is asserted[892] that, if commanded by
an officer of the Navy, they must be treated in the same way as
men-of-war, but that it is desirable to ask the commanders to give
their word of honour assuring the absence of contraband and
unneutral service.
[891] In former times Great Britain tried to extend visitation to neutral men-of-war. See
Manning, p. 455.
[892] See, for instance, Gessner, p. 297, and Perels, § 52, IV.

Vessels under Convoy.

§ 417. Sweden in 1653, during war between Great Britain and the
Netherlands, claimed that the belligerents ought to waive their right
of visitation over Swedish merchantmen if the latter sailed under the
convoy of a Swedish man-of-war whose commander asserted the
absence of contraband on board the convoyed vessels. The Peace of
Westminster in 1654 brought this war to an end, and in 1756 the
Netherlands, then neutral, claimed the right of convoy. But it was not
until the last quarter of the eighteenth century that the right of
convoy was more and more insisted upon by Continental neutrals.
During the American War of Independence in 1780, the Netherlands
again claimed that right, and when they themselves in 1781 waged
war against Great Britain, they ordered their men-of-war and
privateers to respect the right of convoy. Between 1780 and 1800
treaties were concluded, in which Russia, Austria, Prussia, Denmark,
Sweden, France, the United States of America, and other States
recognised that right. But Great Britain always refused to recognise
it, and in July 1800 the action of a British squadron in capturing a
Danish man-of-war and her convoy of six merchantmen for
resistance to visitation called the Second Armed Neutrality into
existence. Yet Great Britain still resisted, and by article 4 of the
"Maritime Convention" of St. Petersburg of June 17, 1801, she
conceded to Russia only that vessels under convoy should not be
visited by privateers. During the nineteenth century more and more
treaties stipulating the right of convoy were concluded, but this right
was not mentioned in the Declaration of Paris of 1856, and Great
Britain refused to recognise it throughout the century. However,
Great Britain abandoned her opposition at the Naval Conference of
London of 1908-9, and the Declaration of London proposes to settle
the matter by articles 61 and 62 in the following way:—
Neutral vessels under the convoy of a man-of-war flying the same
flag are exempt from search and may not be visited if the
commander of the convoy, at the request of the commander of the
belligerent cruiser which desires to visit, gives, in writing, all
information as to the character of the convoyed vessels and their
cargoes which could be obtained by search. Should the commander
of the belligerent man-of-war have reason to suspect that the
confidence of the commander of the convoy has been abused, he
may not himself resort to visit and search, but must communicate
with the commander of the convoy. The latter must investigate the
matter, and must record the result of his investigation in a report, a
copy of which must be given to the commander of the belligerent
cruiser. Should, in the opinion of the commander of the convoy, the
facts stated in the report justify the capture of one or more of the
convoyed vessels, he must withdraw protection from the offending
vessels, and the belligerent cruiser may then capture them.
In case a difference of opinion arises between the commander of
the convoy and the commander of the belligerent cruiser—for
instance, with regard to the question as to whether certain goods
are absolute or conditional contraband or as to whether the port of
destination of a convoyed vessel is an ordinary commercial port or a
port which serves as a base of supply for the armed forces of the
enemy and the like—the commander of the belligerent cruiser has
no power of overruling the decision of the commander of the
convoy. He can only protest and report the case to his Government,
which will settle the matter by means of diplomacy.
No Universal Rules regarding Mode of Visitation.
§ 418. There are no rules of International Law which lay down all
the details of the formalities of the mode of visitation. A great many
treaties regulate them as between the parties, and all maritime
nations have given instructions to their men-of-war regarding these
formalities. Thereby uniform formalities are practised with regard to
many points, but regarding others the practice of the several States
differs. Article 17 of the Peace Treaty of the Pyrenees of 1659 has
served as a model of many of the above-mentioned treaties
regulating the formalities of visitation: "Les navires d'Espagne, pour
éviter tout désordre, n'approcheront pas de plus près les Français
que la portée du canon, et pourront envoyer leur petite barque ou
chaloupe à bord des navires français et faire entrer dedans deux ou
trois hommes seulement, à qui seront montrés les passeports par le
maître du navire français, par lesquels il puisse apparoir, non
seulement de la charge, mais aussi du lieu de sa demeure et
résidence, et du nom tant du maître ou patron que du navire même,
afin que, par ces deux moyens, on puisse connaître, s'il porte des
marchandises de contrebande; et qu'il apparaisse suffisamment tant
de la qualité du dit navire que de son maître ou patron; auxquelles
passeports on devra donner entière foi et créance."
Stopping of Vessels for the Purpose of Visitation.
§ 419. A man-of-war which wishes to visit a neutral vessel must
stop her or make her bring to. Although the chasing of vessels may
take place under false colours, the right colours must be shown
when vessels are stopped.[893] The order for stopping can be
given[894] by hailing or by firing one or two blank cartridges from the
so-called affirming gun, and, if necessary, by firing a shot across the
bows of the vessel. If nevertheless the vessel does not bring to, the
man-of-war is justified in using force to compel her to bring to. Once
the vessel has been brought to, the man-of-war also brings to,
keeping a reasonable distance. With regard to this distance, treaties
very often stipulate either the range of a cannon shot or half such
width or even a range beyond a cannon shot; but all this is totally
impracticable.[895] The distance must vary according to the
requirements of the case, and according to wind and weather.
[893] See above, § 211.
[894] See above, vol. I. § 268.
[895] See Ortolan, II. p. 220, and Perels, § 53, pp. 284, 285.

Visit.
§ 420. The vessel, having been stopped or brought to, is
visited[896] by one or two officers sent in a boat from the man-of-war.
These officers examine the papers of the vessel to ascertain her
nationality, the character of her cargo and passengers, and, lastly,
the ports from and to which she is sailing. Instead of visiting the
merchantman and inspecting her papers on board, the practice is
followed, by the men-of-war of some States, of summoning the
master of the merchantman with his papers on board the former and
examining the papers there.
[896] See above, vol. I. § 268, and Holland, Prize Law, §§ 195-216.
If everything is found in order and there is no suspicion of fraud,
the vessel is allowed to continue her course, a memorandum of the
visit having been entered in her log-book. On the other hand, if the
inspection of the papers shows that the vessel is carrying
contraband or rendering unneutral service, or that she is for another
reason liable to capture, she is at once seized. But it may be that,
although ostensibly everything is in order, there is nevertheless
grave suspicion of fraud against the vessel. In such case she may be
searched.

Search.
 § 421. Search is effected[897] by one or two officers, and eventually
a few men, in presence of the master of the vessel. Care must be
taken not to damage the vessel or the cargo, and no force whatever
must be applied. No lock must be forcibly broken open by the search
party, but the master is to be required to unlock it. If he fails to
comply with the demand he is not to be forced thereto, since the
master's refusal to assist the search in general, or that of a locked
part of the vessel or of a locked box in particular, is at once sufficient
cause for seizing the vessel. Search being completed, everything
removed has to be replaced with care. If the search has satisfied the
searching officers and dispelled all suspicion, a memorandum is
entered in the log-book of the vessel, and she is allowed to continue
her voyage. On the other hand, if search brought contraband or
another cause for capture to light, the vessel is seized. But since
search can never take place so thoroughly on the sea as in a
harbour, it may be that, although search has disclosed no proof to
bear out the suspicion, grave suspicion still remains. In such case
she may be seized and brought into a port for the purpose of being
searched there as thoroughly as possible. But the commander of a
man-of-war seizing a vessel in such case must bear in mind that full
indemnities must be paid to the vessel for loss of time and other
losses sustained if finally she is found innocent. Therefore, after a
search at sea has brought nothing to light against the vessel, seizure
should take place only in case of grave suspicion.
[897] See above, vol. I. § 269, and Holland, Prize Law, §§ 217-230.

Consequences of Resistance to Visitation.

§ 422. If a neutral merchantman resists visit or search, she is at
once captured, and may be confiscated. The question as to whether
the vessel only, or also her cargo, could be confiscated for resistance
has hitherto been controversial. According to British[898] and
American theory and practice, the cargo as well as the vessel was
liable to confiscation. But Continental[899] writers emphatically argued
against this and maintained that the vessel only was liable to
confiscation.
[898] The Maria (1799), 1 C. Rob. 340.
 [899] See Gessner, pp. 318-321.
According to article 63 of the Declaration of London, resistance to
the legitimate exercise of the right of visit, search, and capture
involves in all cases the confiscation of the vessel, which by her
forcible resistance has acquired enemy character (see above, § 89).
For this reason such goods on board as belong to the master or
owner of the vessel are treated as enemy goods and may be
confiscated. Enemy goods on board may now likewise be
confiscated, although when they were first shipped the vessel bore
neutral character. Further, all goods on board are now presumed to
be enemy goods, and the owners of neutral goods on board will
have to prove the neutral character of their goods. Lastly, no appeal
may be brought from the National Prize Courts to the International
Prize Court by the owner of the ship except concerning the one
question only, namely, as to whether there was justification for
capturing her on the grounds of forcible resistance.
It must be emphasised that visit and search do not take place
after a vessel has been captured for resistance, for the mere fact of
resisting has imposed enemy character upon her, and the question is
now irrelevant whether visit and search would show her to be guilty
or innocent.

What constitutes Resistance.

§ 423. According to the practice hitherto prevailing,[900] and also
according to the Declaration of London, a mere attempt on the part
of a neutral merchantman to escape visitation does not in itself
constitute resistance. Such vessel may be chased and compelled by
force to bring to, and she cannot complain if, in the endeavour
forcibly to compel her to bring to, she is damaged or accidentally
sunk. If, after the vessel has been compelled to bring to, visit and
search show her to be innocent, she must be allowed to proceed on
her course.
[900] The Maria (1799), 1 C. Rob. 340.
Resistance to be penal must be forcible resistance. It constitutes
resistance, therefore, if a vessel applies force in resisting any
legitimate action by the belligerent cruiser which requires her to stop
and to be visited and searched. The term forcible resistance is not
defined in detail by article 63 of the Declaration of London. It is,
consequently, not certain whether the actual application of force
only, or also the refusal, on the part of the master, to show the ship
papers or to open locked parts of the vessel or locked boxes, and
similar acts, constitutes forcible resistance. The International Prize
Court, if established, would have to develop a practice which would
decide these points.
Sailing under Enemy Convoy equivalent to Resistance.
§ 424. Wheaton excepted, all writers would seem to agree that
the fact of neutral merchantmen sailing under a convoy of enemy
men-of-war is equivalent to forcible resistance on their part, whether
they themselves intend to resist by force or not. But the Government
of the United States of America in 1810 contested this principle. In
that year, during war between Great Britain and Denmark, many
American vessels sailing from Russia used to seek protection under
the convoy of British men-of-war, whereupon Denmark declared all
such American vessels to be good and lawful prizes. Several were
captured without making any resistance whatever, and were
condemned by Danish Prize Courts. The United States protested,
and claimed indemnities from Denmark, and in 1830 a treaty
between the parties was signed at Copenhagen,[901] according to
which Denmark had to pay 650,000 dollars as indemnity. But in
article 5 of this treaty the parties "expressly declare that the present
convention is only applicable to the cases therein mentioned, and,
having no other object, may never hereafter be invoked by one party
or the other as a precedent or a rule for the future."[902]
[901] Martens, N.R. VIII. p. 350.
[902] See Wheaton, §§ 530-537, and Taylor, § 693, p. 790. Wheaton was the negotiator
of this treaty on the part of the United States.—With the case of neutral merchantmen
sailing under enemy convoy, the other case—see above, § 185—in which neutral goods
are placed on board an armed enemy vessel is frequently confused. In the case of the
Fanny (1814), 1 Dodson, 443, Sir William Scott condemned neutral Portuguese property
on the ground that placing neutral property on board an armed vessel was equal to
resistance against visitation. But the Supreme Court of the United States of America, in
the of the Nereide (1815), 9 Cranch, 388, held the contrary view. The Court was
 composed of four judges, of whom Story was one, and the latter dissented from the
majority and considered the British practice correct. See Phillimore, III. § 341, and
Wheaton, § 529.
Article 63 of the Declaration of London does not—as was pointed
out above in § 423—define the term forcible resistance, but it is to
be expected that the practice of the International Prize Court would
consider the sailing under enemy convoy equivalent to forcible
resistance.
Resistance by Neutral Convoy.
§ 425. Since Great Britain did not, before agreeing to the
Declaration of London, recognise the right of convoy and had always
insisted upon the right of visitation to be exercised over neutral
merchantmen sailing under the convoy of neutral men-of-war, the
question has arisen as to whether such merchantmen are considered
resisting visitation in case the convoying men-of-war only, and not
the convoyed vessels themselves, offer resistance. British practice
has answered the question in the affirmative. The rule was laid down
in 1799[903] and in 1804[904] by Sir William Scott in the cases of
Swedish vessels captured while sailing under the convoy of a
Swedish man-of-war.
[903] The Maria, 1 C. Rob. 340.
[904] The Elsebe, 5 C Rob. 173.
Since Great Britain—see above, § 417—has abandoned her
opposition to the right of convoy and has agreed to articles 61 and
62 of the Declaration of London which lay down rules concerning the
matter, the resistance by a neutral convoy to visitation may not,
under ordinary circumstances, be considered to be resistance on the
part of the convoyed neutral merchantman. If, however, the
commander of a convoy, after having refused to give the written
information mentioned in article 61 or to allow the investigation
mentioned in article 62, forcibly resists visitation of the convoyed
merchantmen by a belligerent cruiser, the question as to whether
resistance by a convoy is equivalent to resistance by a convoyed
vessel, may even under the Declaration of London arise.

Deficiency of Papers.
 § 426. Since the purpose of visit is to ascertain the nationality of a
vessel, the character of her cargo and passengers, and the ports
from and to which she is sailing, it is obvious that this purpose
cannot be realised in case the visited vessel is deficient in her
papers. As stated above in Vol. I. § 262, every merchantman ought
to carry the following papers: (1) A certificate of registry or a sea-
letter (passport); (2) the muster-roll; (3) the log-book; (4) the
manifest of cargo; (5) bills of lading, and (6) if chartered, the
charter-party. Now, if a vessel is visited and cannot produce one or
more of the papers mentioned, she is suspect. Search is, of course,
admissible for the purpose of verifying the suspicion, but it may be
that, although search has not produced any proof of guilt, the
suspicion is not dispelled. In such case she may be seized and
brought to a port for thorough examination. But, with the exception
of the case that she cannot produce either certificate of registry or a
sea-letter (passport), she ought not to be confiscated for deficiency
in papers only. Yet, if the cargo is also suspect, or if there are other
circumstances which increase the suspicion, confiscation would be, I
believe, in the discretion of the Prize Court.
The Declaration of London does not mention the point, and the
International Prize Court would, therefore, have to evolve a system
of rules to be applied in cases concerned.
Spoliation, Defacement, and Concealment of Papers.
§ 427. Mere deficiency of papers does not arouse the same
suspicion which a vessel incurs if she destroys[905] or throws
overboard any of her papers, defaces them or conceals them, and in
especial in case the spoliation of papers takes place at the time
when the visiting vessel comes in sight. Whatever her cargo may be,
a vessel may at once be seized without further search so soon as it
becomes apparent that spoliation, defacement, or concealment of
papers has taken place. The practice of the several States has
hitherto differed with regard to other consequences of spoliation,
and the like, of papers, but confiscation is certainly admissible in
case other circumstances increase the suspicion.[906]
[905] The Hunter (1815), 1 Dodson, 480.
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