4. Even admitting for a moment that the interpretation of those French journals is correct as far as the strict letter of the rule is concerned, it does not give them the right to say that their doings are internationally correct. It must be known that in the laws of nations the spirit of international morality, namely, justice and equity, has greater weight than municipal laws, lex loci. If this were not so, how was it that England had to apologise to Russia a long time ago for an act—personal seizure of an ambassador—which had been done in a civil matter perfectly in accordance with her law? Therefore the mere fact that France has her own law of neutrality (in fact no law in a strict sense) is no defence for her doings unless its justice and equity can be maintained in the eyes of the law of nations. I may further add that the above is the raison d'être why prize courts of different countries make it their theory, unlike ordinary civil or criminal courts, that they administer prima facie the law of nations and not lex loci. It is another raison d'être why matters relating to neutrality, prizes, and cognate matters are generally dealt with in the shape of instructions (in other words, interpretations of the law of nations), and not in the shape of a law of the land in the strict sense. Japan, therefore, cannot submit to the ruling of those French instructions as interpreted by those journals, inasmuch as she does not think it internationally just and equitable.
5. And, moreover, that part of the French instruction which those journals so habitually quote is not the only part which has an important bearing on the question. In the instruction it is also mentioned that no belligerent may use a French port for purposes of war (dans un but de guerre); and also that belligerents sojourning in such ports may not make use of them as the base of operations of any kind against the enemy. Japan's insistence is that France should adhere to that spirit. My wonder is why those French papers which try to uphold one part of the instruction should totally ignore other parts of the same instruction.
6. The theory of asylum in the case of the ships is not so rigid as the case of an army. I admit it. Japan does not demand that it should be made on the seas as rigid as it is on land. But it must never be allowed to go beyond the limit which justice and equity allow. I take the theory of asylum on the seas to be this: No neutral is justified in helping either of the combatants, but the nature of the seas is such that the neutral may give a certain grace of time to combatant vessels which seek shelter in its neutral waters, before it proceeds to dismantle,—(no immediate internment as in the case of the land force),—and it may also give them certain victuals—even a certain amount of coals—as it would also be contrary to humanity if they were to hang about, or to cause starvation of the men on board in mid-voyage on account of the mere lack of coal or food. Beyond this, the spirit of the law of nations is that a neutral ought to allow nothing. Can any one boldly assert that the theory of asylum can be applied with fairness to a case like that of the Baltic Fleet, which is far from seeking asylum, but is deliberately endeavouring to administer coups to its adversary and proceeding to the very seat of war. If he can do so, where is the justice and equity of the so-called law of nations, which the Occidentals boast of, not without just title, and claim that it forms one of the essential parts of Christian morality?
7. As to the talk about the three-mile limit of the territorial waters, there is already much divergency of opinion even amongst the jurists. To put it forth as a defence in a case like that of the Baltic Fleet affairs seems to me too puerile. The matter, however, becomes all the more grave when even that limit is not observed, and it has been constantly ignored by the Baltic Fleet.
Such are the views which we Japanese have taken in the matter. Some French journals (erroneously basing their assertions on the views I have personally expressed) say that Japan has taken up English views of international law in opposition to the Continental views, so that France ought not to yield to Japan's protest. This contention is not correct. We do not hold these views because they are English ones: we do so because they are in our opinion the only views which are internationally just and equitable. We are now fighting against a foe so formidable, as the whole world knows, that to us it is a matter of life and death. We have sufficient patience and fortitude, but we cannot run the risk of sacrificing our very existence without some protest when we think that we are not being treated with justice and equity.
I am glad to add that the views we hold seem to have come at last to be shared by the more responsible part of the French amongst the governmental circle, as well as by the general public. The newspapers which are still sticking to their old contention are very few in number, and they seem to have some particular reasons of their own. I can never think a nation like France could consciously and wilfully offend against justice and equity, and the only thing we anxiously hope for is that the declaration of the French Government may be honestly and effectually followed up. Whatever may be one's intention, the drift of events often creates unlooked-for incidents, and that too often against one's will, when it is too late to avoid the consequences. Let all parties concerned be careful in this matter of vital importance.
[1] The Deutsche Revue, June 1905.