(Sitnimll Hmrmitg Jilrat^g THE GIFT OF l^S . S wi<^^^^uA\1t^^ A?. the struggle between the insurgents and the Government of Colombia and to the so-called blockade and siege of Cartagena. With respect to any recognition of the insurgents by foreign powers, the evidence did not show that up to the time of the seizure of the ves- Sel on April 1, 1885, a state of war had been recognized as existing, or that the insurgents had ever been recognized as a de facto govern- ment, or as having belligerent rights, either by the Colombian Gov- ernment, by our own Government, or by any other nation. The claimants, however, introduced in evidence a diplomatic note from our Secretary of State to the Colombian minister, dated April 24, 1885, which it was contended amounted to a recognition, by implication, of 44 INTERNATIONAL LAW. a state of war. The Government of the United States claimed the forfeiture of the ship as piratical, under the laws of nations, because she was not sailing under the authority of any acknowledged power. The claimants contended that being actually belligerent she was in no event piratical by the law of nations ; but if so, that the subsequent recognition of belligerency by our Government by implication entitled her to a release. Judge Brown, of the United States district court for the southern district of New York, gave an opinion which included the following statement : This great weight of authority, drawn from every source that authoritatively makes up the law of nations, seems to me fully to warrant the conclusion that the public vessels of war of all nations, for the preservation of the peace and order of the seas and the security of their own commerce, have the right to seize as piratical all vessels carrying on, or threatening to carry on, unlawful private war- fare to their injury; and that privateers, or vessels of war, sent out to blockade ports, under the commission of insurgents, unrecognized by the government of any sovereign power, are of that character, and derive no protection from such void commissions. In the absence of any recognition of these insurgents as belligerents, I therefore hold the Ambrose Light to have been lawfully seized, as bound upon an expedition technically piratical. On the ground, however, that the Secretary of State, by his note to the Colombian minister April 24, 1885, had recognized by implication a state of war, the vessel was released. This judgment in the case of the Ambrose lAght has called forth much adverse criticism, and, on the whole, the weight of opinion would seem to be against the position taken by Judge Brown, that insurgent vessels not molesting the ships of other nations may be treated as pirates. Mr. Francis Wharton, in the digest of international law, makes a long criticism upon this case. His conclusion as to insurgents is: We ought not in any case to interfere to suppress insurrections in foreign States hy attacking either the land or maritime forces of the insurgents. * *f ^ No matter how vehement may be the decrees of foreign governments declaring insur- gents to be traitors and pirates, those decrees it should not be for us to execute. In 1869 Secretary Fish, in a communication to Mr. Bassett, then the minister of the United States to Haiti, in relation to some insurgent vessels, wrote: We may or may not at our option, as justice or policy may require, treat them as pirates in the absolute and unqualified ^ense, or we may, as the circumstances of any actual case shall suggest, waive the extreme right and recognize, where facts warrant it, an actual intent on the part of the individual o^enders, not to depredate in a criminal sense and for private gain, but to capture and destroy jure helli. In 1883 Secretary' Frelinghuysen wrote: While it (an insurgent vessel) may be outlawed so far as the outlawing State is concerned, no foreign State is bound to respect or execute such outlawry to the extent of treating the vessel as a public enemy of mankind. Treason is not piracy, and the attitude of foreign governments toward the ofEender may be negative merely so far as demanded by a proper observance of the principle of neutrality. Secretary Bayard, in 1885, wrote : The Government of the United States can not regard as piratical vessels manned by parties in arms against the United States of Colombia when such vessels are passing to and from ports held by such insurgents, or even when attacking ports in the possession of the National Q-overnment. * * * There can be no question INTERNATIONAL LAW. 45 that STicn vessels, when engaged as above stated, are not, by the law of nations, pirates, nor can they be regarded as pirates by the United States. In 1873 the insurgents at Cartagena, Spain, seized the ironclads of the National Government in that harbor, and cruised with them along the coast of Spain with hostile pui-pose. The Spanish Government pro- claimed them pirateSj inviting their capture by aiiy naval power. A German naval commander captured one of the vessels and claimed her as a German prize. His act, however, was disavowed by the German Government, and the Governments of Germany, France, and Great Britain issued practically similar instructions to their naval officers not to interfere in any way with these vessels unless they should molest the merchant vessels of these countries, respectively, and then to seize them and turn them over to the Spanish Government. The case of the insurgents in the late Brazilian insurrection was much similar to the case just mentioned. The case of the Huascar was different. The crew of the Peruvian ironclad Huascar, anchored at Callao, revolted on May 6, 1877, and declared for the insurgeht gov- ernment of Pierola, proceeding to sea without opposition from the other Peruvian vessels in the harbor. The titular Government of Peru issued a decree calling the crew of the Huascar rebels and authorizing her capture, and stating that the Peruvian Government would not be responsible for her acts. The Huascar stopped several British ves- sels, taking out of one of them two officers who were going to Peru, and also seized certain lighters of coal belonging to British subjects. The British admiral, being advised of these proceedings, sent two ves- sels of his force to sea to seize the Huascar. An engagement took place which was only partially successful, the Huascar escaping and subsequently surrendering to the Peruvian Government. The Peru- vian Government claimed indemnity from Great Britain, but the law officers of the Crown, upon the question being referred to them, held that as the Huascar was sailing under no national flag, and was an irresponsible depredating cruiser, the conduct of the admiral should be sustained. This was a case where hostile acts of insurgents were extended to the ships and citizens of third States. As the established usage and the rules of international law are made by the accumulation of acts, instructions, and decisions, it will be of value and interest here to quote the instructions given to the offtcers of the British navy. The British Admiralty instructions, in article 450, read as follows: Should any armed vessel not having a commission of war or letter of marque from a foreign de facto government commit piratical acts and outrages against the vessels and goods of Her Majesty's subjects, or of the subjects of any other foreign power in amity with Her Majesty, and should credible information be received thereof, such armed vessel is to be seized and detained by any of Her Majesty's ships falling in with her, and sent to the nearest British port wfiere there is a court of competent jurisdiction for the trial of ofEenses committed on the high seas, together with the necessary witnesses to prove the act or acts, and with her master and crew in safe custody, in order that they may be d. alt with according to law. In the case, however, of an attack by a ship in the possession of insurgents against their own domestic government, upon ships of war of that government, upon mer- chant ships belonging to its subjects, or upon its cities, forts, or people within the territoral limits of their own nation. Her Majesty's ships have no right to interfere except in the case mentioned in article 447, and in any such case the operations must be restricted to such acts as may be necessary to attain the precise object in view. Article 447 refers to the offering of asylum and protection to British subjects afloat and ashore, and is given hereafter. 46 INTERNATIONAL LAW. The general aspects of this question and the grounds of its solution are so well stated by Hall that we may fitly quote his words as a con- clusion of the discussion. He says: Most acts which become piratical through being done without due authority are acts of war when done under the authority of a State; and as societies to which belligerent rights have been granted have equal rights with permanently estab- lished States for the purposes of war, it need scarcely be said that all such acts authorized by them are done under due authority. Whether the same can be said of acts done under the authority of politically organized societies which are not yet recognized as belligerent may appear more open to argument, though the con- clusion can hardly be different. Such societies being unknown to international law, they have no power to give a legal character to acts of any kind. At first sight, consequently, acts of war done under their authority must seem to be at least technically piratical; but it is by the performance of such acts that indepen- dence is established and its existence proved. When done with a certain amount of success they justify the concession of belligerent privileges; when so done as to show that independence will be permanent they compel recognition as a State. It is impossible to pretend that acts which are done for the purpose of setting up a legal state of things, and which may in fact have already succeeded in setting it up, are piratical for want of an external recognition of their validity, when the grant of that recognition is properly dependent in the main upon the existence of such a condition of affairs as can only be produced by the very acts in question. Slave trade is not piracy by the law of nations. — The slave trade, though forbidden by the municipal law of all civilized nations and also declared by the municipal laws of Great Britain and the United States, as well as some other nations, to be piracy, is not such by the law of nations. The right of visitation and search of foreign vessels and their capture as slavers in time of peace exists only by special convention or treaty. A French vessel, Le Louis, captured on the high seas in 1816, was car- ried to Sierra Leone and there condenined. The case was brought by appeal before Sir William Scott, who decided that the slave trade was not piracy according to international law. This learned judge held: In truth it wants some of the distinguishing features of that offense. It is not the act of freebooters, enemies of the human race, renouncing every country and ravaging every country in its coasts and vessels indiscriminately and thereby creat- ing an universal terror and alarm, but of persons confining their transactions (reprehensible as they may be) to particular countries, without exciting the slightest apprehension in others. Woolsey says : However much the slave trade may deserve to be ranked with piracy or ranked as a worse crime, still it is not yet such by the law of nations, and would not be if all the nations in Christendom constituted it piracy by their municipal codes, for the agreement of different States in the definitions and penalties of crimes by no means gives to any one of them the right to execute the laws of another. The statesmen and jurists of the United States have always con- tended that the slave trade is not piracy jure gentium, and have agreed that as no nation can exercise police jurisdiction over private vessels of other nations on the high seas, except in war or for piracy, the right to detain and search vessels on the high seas does not exist as a means for the suppression of the slave trade. The reciprocal right of search within certain limits exists between tlie United States and Great Britain by the treaty of 1862. By this treaty this right shall be exer- cised reciprocally only within the distance of 200 miles from the coast of Africa and to the southward of the thirty-second parallel of north latitude and within 30 leagues from the coast of the Island of Cuba. Mixed courts of justice were to adjudicate eases, and were to reside, INTERNATIONAL LAW. 47 one at Sierra Leone, one at the Cape of Good Hope, and one at New York. By an additional article the right of search was extended to within 30 leagues of the islands of Madagascar, Porto Rico, and Santo Domingo, and by an additional convention in 1870 the mixed courts were discontinued and the jurisdiction transferred to the respective courts of the two countries. In the general act for the repression of the African slave trade, con- cluded and signed July 2, 1890, by plenipotentiaries of the United States, Germany, Austria-Hungary, Belgium, Denmark, Spain, the Kongo Free State, France, Great Britain, Italy, the Netherlands, Per- sia, Portugal, Russia, Sweden and Norway, the Ottoman Empire, and Zanzibar, the signatory powers agreed to restrict the clauses of spe- cial conventions for the suppression of the slave trade concerning the reciprocal right of visit, of search, and of seizure of vessels at sea to a maritime zone in which the slave trade still existed. This zone extends, on the one hand, between the coasts of the Indian Ocean (those of the Persian Gulf and of the Red Sea included), from Baluchistan to Cape Tangalane (Quilimane) ; and on the other hand, a conventional line which first follows the meridian from Tangalane till it intersects the twenty-sixth degree of south latitude ; it is then merged in this parallel, then passes round the island of Madagascar by the east, keeping 20 miles off the east and north shore till it inter- sects the meridian at Cape Ambre. From this point the limit of the zone is determined by an oblique line, which extends to the coast of Baluchistan, passing 20 miles of Cape Ras-el-Had. The signatory powers also agreed in the same act to limit the above- mentioned rights (of search, seizure, etc. ) to vessels whose tonnage is less than 500 tons. Chapter IV. Intervention; Nationality; International Agents of a State; International Functions op Naval Officers. Section 38.— Intervention. The question of intervention by one State in the internal affairs of another State is given considerable space in the older works on inter- national law, the grounds upon which this may be done being elabo- rately discussed. At one time the matter of intervention was taken up so seriously as to result in the formation of "the Holy Alliance," a combination of several European States which agreed upon p, policy to suppress all insuurectionary movements of peoples against their sovereigns. It was against this principle that the Monroe doctrine was promulgated in 1823. A State must be allowed, HaU says, to work out its internal changes in its own fashion, so long as its struggles do not actually degenerate into internecine war. In such case, the whole body of civilized States might concur in authorizing intervention. But when it is not author- ized by the civilized States, accustomed to act together for a common purpose, such intervention, whether armed or diplomatic, undertaken for the purpose of cruelty or oppression, or on account of the horrors of internal war, would have to be justified by the unquestionably extraordinary character of the facts causing the intervention, by the evident purity of the motives and conduct of the intervening State, and would have to rely for its ultimate justiflcation'upon the general j udgment as to the sufftciency of the facts. In cases of this kind, inter- vention being for other purposes than self-preservation can not be considered as a right under the law of nations. After all, the question of intervention or nonintervention, except for self-preservation as mentioned above, is a matter of national policy rather than that of international law, and carries with it a direct responsibility upon the nation concerned. In Chapter III of the Digest of the Historical Procedure of the United States with respect to matters of International Law, edited by Dr. Francis Wharton, our attitude in past years upon the question of intervention is given in full. As a late statement upon this subject by a writer of excellent repute of the English school, it may be well to quote the following paragraph from a chapter upon the subject by Mr. Thomas J. Lawrence. He says: So prone are powerful States to interfere in the affairs of others, and so great are the evils of interference, that a doctrine of absolute nonintervention has been put forth as a protest against incessant meddling. If this doctrine means that a State should do nothing but mind its own concerns and never take an interest in the affairs of other States, it is fatal to the idea of a family of nations. If. on tiie other hand, it means that a State should take an interest in international 48 INTERNATIONAL LAW. 49 affairs, and express approval or disai)proval of the conduct of its neighbors, but never go beyond moral suasion in its interference, it is foolish. To scatter abroad protests and reproaches, and yet to let it be understood that they will never be backed by force of arms, is the surest way to get them treated with angry contempt. Neither selfish isolation nor undignified remonstrance is the proper attitude for honorable and self-respecting States. They should intervene very sparingly, and only on the clearest grounds of justice and necessity; but when they do intervene, they should make it clear to all concerned that their voice must be attended to and their wishes carried out. Section 39. — Nationality. The questions: Who are citizens, on what conditions are persons admitted to citizenship, and on what conditions may citizens expatri- ate themselves, are questions of constitutional law which every State determines for itself. The conflict, however, of the laws of the several States upon these subjects has brought about some of the most difEl- cult problems of international law. The persons who are subject to the jurisdiction of a State within its territory may be divided into four classes, with somewhat varying rights and obligations. They are — (1) Native-born citizens or subjects; (2^ Naturalized citizens or subjects; (3) Domiciled aliens; and (4) Aliens who are travelers, or who are otherwise temporarily in the country. Sir Alexander Cockburn says : Nationality, or in other words the status of an individual as a subject or citizen in relation to a particular State, is either natural or acquired; natural when it results from birth; acquired when an individual is accepted as a subject or citizen bji a State to which he did not originally belong. Nationality by birth or origin depends according to the law of some nations on the place of birth; according to that of others on the nationality of the parents without reference to the place of birth. In many countries both elements exist, one or the other predominating. Primarily it is the function of municipal or State law, as before said, to define what constitutes a citizen or subject of a country, but the question of protecting citizens abroad, and of the continuance of cer- tain obligations toward the State on the part of such citizens abroad, bring questions of nationality and citizenship within the scope of international law. The treatment of the subject here is with respect to its connection with the protection of citizens abroad. Naval officers i of the United States have placed upon them a separate responsibility or action independent both of the consular and diplomatic officials accredited abroad. Hence sufficient acquaintance with this subject is a matter of importance to them in order that their actions may be based upon sound reason and knowledge. Ooncerning native-born citizens of the United States, there can be, generally speaking, no question as to their status, so long as there has been no act upon their part, or upon the part of the State, to otherwise designate their allegiance. To this class may be also added found- lings; their parentage being unknown, there is no other State to which they can be attributed except the one upon whose soil they have been found. There are, however, certain persons, some also born to the soil, as to whose nationality there may arise doubts. Following Hall, we can classify them as follows : 1. Children of the subjects ot one State born within the territory of another. 6433 4 50 INTERNATIONAL LAW. 2. Illegitimate children. 3. Married women. 4. Persons adopted into a State by naturalization. 6. Persons losing their nationality by emigration. 6. Children of parents in the last two categories. As to children born abroad, the more important countries of the world agree that the children of a foreigner ought to be considered as foreigners unless they wish to assume or retain the nationality of the State in which they were born. The law of the United States is to the effect that children of foreigners born in the United States are Amer- ican citizens if they so elect upon attaining majority, while the chil- dren of American citizens born abroad are also citizens of the United States, but the rights of citizenship do not descend to children whose fathers never resided in the United States.* As to illegitimate children, it is the general rule, and for manifest reasons, that they belong to the State of which the mother is a subject or citizen. The nationality of a wife upon marriage becomes that of her hus- band. In the United States the rule is held that an alien woman marrying an American citizen becomes an American citizen. The converse ha;s not always, however, been sustained, i. e., that an American woman marrying an alien loses her nationality. Following the English rule, which existed until 1870, the practice for a long time prevailed that the wife retained her American nationality, but the best opinion now holds that an American woman who marries a for- eigner becomes a foreigner, though not to the extent of losing her ability to transfer her real property. It is not reasonable to suppose that the United States would claim the right to interfere on behalf of the American wife of a foreigner against the action of her husband's government. As to widows, American born or naturalized, of foreign husbands, the ruling is conflicting, but the best opinion is that they remain of the nationality of their late husband, unless they marry again and to a person of a different nationality. Section 30. — Naturalization and Expatriation. Naturalization and expatriation are not inherent rights as recog- nized by international law. These questions in modern times are set- tled by individual States in accordance with their own interests or by conventions and treaties with other States. The general tendency of late years is to permit expatrig,tion and naturalization. In 1870 Eng- land gave up, by statute, the principle of indelible allegiance; that is, once an Englishman,' always an Englishman. The act of Congress, in 1868, provides that all naturalized citizens of the United States, while in foreign States, shall be entitled to and shall receive from the Government the same protection of persons and property that is accorded to native-born citizens in like situations and circumstances. A State has for its own self-preservation or well-being the right to exclude foreigners and to refuse them naturalization. By the act of Congress of May 6, 1882, it is provided that thereafter no State court or court of the United States shall admit Chinese to citizenship. A declaration of an intention to become a citizen of the United States, strengthened by the acquisition of a domicile, places a person *Eev. Stat., U. S., sec. 1993-1993. INTERNATIOKAL LAW. 51 almost within the grasp of citizenship and affords him a claim to pro- tection abroad, but not to a passport from the Government. By French law a citizep can lose the quality of a Fi-enchman by naturalization in a foreign country, but any person so naturalized can be punished by death if he bears arms against France. This latter condition and penalty with respect to bearing arms against one's former country also exists in the laws of Italy. TVe have had disputes with nearly all of the continental European States with respect to naturalized American citizens, and this has been more especially the case since military service has become so universal and burdensome in those countries. Young men of the required age often procure American naturalization and then return to their native land and claim the protection to which they are entitled by their American nationality. The United States at first took the ground that no distinction should be made between naturalized and native- born Americans with respect to such protection abroad, but we have found it difficult to sustain this position under all circumstances. By the terms of the treaty made in 1868 between the United States and the North German Confederation reciprocal naturalization condi- tions were adopted providing for an uninterrupted residence of five years in the United States for Germans claiming to be naturalized American citizens and five years uninterrupted residence in Germany for Americans claiming to be German subjects. The declaration of an intention to become a citizen is not to have for either State the effect of naturalization. If, however, a German naturalized in America renews his residence in Germany, without the intent to return to America, he shall be held to have renounced his naturalization in the United States. The. intent not to return may be held to exist when the person naturalizedl in the one country resides more than two years in the other country. In practice the German authorities, upon the expiration of the two years' residence, give naturalized Americans an opportunity to return to the United States before forcing them to fulfill service in the Ger- man army. With Turkey there have been various disputes arising from the naturalization of Armenian-Turkish subjects. The Turkish law of 1869 refuses a recognition of the foreign naturalization of an Ottoman subject without the sanction and previous authorization of the Turk- ish Government. Every individual inhabiting Ottoman territory is reputed to be an Ottoman subject by the same law until his character as a foreigner is verified in a regular manner. The Russian Government also declines to admit the right of another State to exempt its subjects by naturalization from their unfinished duties to their native land. In case of arrest under such circum- stances the Russian Government generally at the request of the United States grants a release, but under conditions, and this is regarded as a concession from courtesy and not from right. We can not force our views concerning this or other matters upon foreign governments when their policy or their laws so strongly conflict with our own. There is still another matter which has been a source of almost con- stant dispute with other countries, and that is as to the status of a foreigner who has declared his intention to become ^ citizen of the United States and who, though having a domicile in this country, is temporarily out of the jurisdiction of the United States. The case of Martin Koszta came under this head. Koszta was a Hungarian insur- gent and refugee of 1848-49. Escaping to Turkey, he was there 52 INTERNATIONAL LAW. arrested and imprisoned, but released on condition of leaving the country. He came to the United States and made the usual declara- tion of intention to become a citizen. In 1853 he returned to Turkey, and when in Smyrna he was seized by some persons in the employ of the Austrian consul and finally taken aboard the Austrian man-of-war Hussar for conveyance to Trieste. Th e United States charge d'affaires at Constantinople requested the commanding ofiieer of the United States man-of-war St. Louis to demand Koszta's release and if neces- sary to have recourse to force. The St. Louis went to Smyrna and Captain Ingraham informed the commander of the Hussar that unless Koszta was at once delivered to him he should take him by force of arms. As a conflict between the two ships of war would have been attended with great danger to the shipping and town, the French consul offered his mediation and Koszta was delivered to his care to be kept until the decision of the respective governments was ascertained. In the end the affair was settled by Austria assenting to Koszta's return to the United States, the right to proceed against him in case he returned to Turkey being reserved. Upon a request for reparation being made on the part of Austria, Secretary Marcy claimed : First, that Koszta had a right to renounce his Austrian allegiance and seek domicile else- where; second, that Koszta was not an Austrian subject according to Austrian decree, as he had left Austria without permission, with intention never to return^ and hence had lost all real and political rights at home; third, that Koszta, although not naturalized and not a citizen had acquired domicile in the United States, declaring his intention to become a citizen, and hence he was entitled to the protec- tion due, and to be treated as, an American citizen. Mr. Marcy also claimed that it was a maxim of international law that domicile confers a national character. This position of Mr. Marcy, though questioned by Hall, is sustained by Calvo. By the instructions of the Department of State issued by Secretary Bayard in 1885, it is provided : Nothing herein contained is to be construed as in any way abridging the right of persons domiciled in the United States, but not naturalized therein, to maintain internationally their status of domicile and to claim protection from, this Govern- ment in the maintenance of such status. In regard to the case of Simon Tousig, a native of Austria, who had acquired domicile in the United States, but not citizenship, the case was decided differently, upon the ground that Tousig had voluntarily returned to his native State and placed himself within the reach of her municipal laws, one of which he was charged with having offended. Mr. Marcy decided that, as to his passport he was not entitled to it, not being either a native or naturalized citizen, and, furthermore, hav- ing gone by his free act under the jurisdiction of Austria, he had subjected himself to her municipal laws. In this way the case differed from that of Koszta, who was in the jurisdiction of a third State when arrested. Mr. Marcy goes on to say : Every nation, whenever its laws are violated by anyone ovjing obedience to them, whether he be a citizen or a stranger, has a right to inflict the penalties Incurred upon the transgressor, if found within its jurisdiction. When a person has lost one nationality, as it is possible for an Austrian to do, without having gained another elsewhere through want of time or intention, it may be not unwisely ruled that the character of his nationality can be ascertained by his place of domicile. INTERNATIONAL LAW. 53 Aliens are entitled to protection, both as to life and property, in the same manner as citizens. The right to hold title to real estate is dependent upon the laws of the State in which the land is situated. Aliens are not liable, as a rule, to military service, but they can, if allowed, voluntarily enlist. * They can be called upon for service in the militia or local police to maintain social order, provided the duty is a police one and not political, and they can be called upon to take arms against an external enemy, if such enemy threatens the exist- ence of social order, as in the case of an attack by savages or unciv- ilized peoples. Aliens are subject to local allegiance whether the Government is duly recognized or is only de facto. They are not exempt from taxation unless they are foreign diplomatic agents. Aliens may be expelled or excluded from a country if the State should so direct. This right is one of the attributes of a sovereign State. It has been exercised at times by the United States, as in the passage of the alien act of 1798, in the exclusion of foreign paupers and criminals, of foreign contract laborers, and of Chinese immigrants. Section 31. — Protection of Citizens in Foreign Countries. Hall says : States possess a right of protecting their subjects abroad, which is correlative to their responsibility in respect of injuries inflicted upon foreigners within their dominions; they have the right, that is to say, to exact reparation for maltreat- ment of their subjects (or citizens) by the administrative agents of a foreign government if no means of obtaining legal redress through the tribunals of the country esist, or if such means as exist have been exhausted in vain; and they have the right to require that, as between their subjects and other private indi- viduals, the protection of the State and the justice of the courts shall be afforded equally, and that compensation shall be made if the courts, from corruption or prejiidice or other like causes, are guilty of serious acts of injustice. As we have seen, "all persons entering upon a foreign territory" submit themselves to the jurisdiction of that country; but, on the other hand, they are entitled, under the rules of international law, to the same protection that citizens receive, and they must pursue their remedies in the same way through the courts of law. No nation has affirmed this principle more strongly than the United States. The reason for this rule is that to give aliens special privileges would estab- lish an unjustifiable inequality between citizens and aliens, and would conflict with the exclusive territorial jurisdiction of the State, a fun- damental right of its existence. The responsibility of a State results not from the mere fact of injury done to foreigners within its territory, but from its neglect or inabil- ity to redress the wrong, to control the conduct of its citizens, or to punish them for offenses which they commit against aliens. In this last-named case it is the duty of the State whose citizens are injured in a foreign land to interfere in their behalf, and the method of interference will vary in accordance with the character of the State within whose territory the injury complained of takes place. States, with respect to their, character or institutions, may be divided into three general classes: (1) Stable; (2) weak; (3) semicivilized or barbarous. In the case of States possessing stable institutions and whose courts *By an act of Congress of 1863, aliens who had made a declaration of intention to become citizens were made subject to the military draft, but were given time to leave the country if they chose. 54 INTERNATIONAL LAW. are always ready to redress the injuries of individuals, all that is ordi- narily done is to call the attention of the Government, through diplo-r matic channels, to any seeming failure of justice in respect to aliens, and if a dispute follows it is settled diplomatically or by war. Stable governments exist in nearly all the States of Europe, the United States, and perhaps some of the Latin-American States. There is a peculiarity in the Constitution of the United States which calls for a passing notice, and that is the inability of the Federal Government to control the action of the governments and courts of the several States of the Union in respect to what is called the com- mon-law rights of citizens. The Federal courts have no common-law jurisdiction in criminal cases, whether the question be with regard to citizens or aliens, so that when an alien is killed or criminally assaulted within a State the Federal courts have no jurisdiction to punish the offender; it must be left to the State courts. But the individual States of the Union have no existence as subjects of international law, and can not be reached except through the Federal Government, which is alone responsible toward other countries for the acts of the States in such matters. Thus we have an anomalous condition of things — ^the Government of the United States responsible to foreign governments for acts over which it has no control. A good illustra- tion of this difficulty was shown at the trouble which arose concern- ing the assassination of Italians by a mob at New Orleans, which has already been referred to. The indemnitj'^ offered by the United States was for the reason .that the Italian subjects murdered were in the custody of the State authorities, and, from an international point of view, in the custody of the United States, and hence entitled to special protection, whereas the State and municipal authorities failed to pro- tect them. The case of the assault upon the seamen of the U. S. S. Baltimore made in Valparaiso in 1892 was peculiar. The attack was upon men wearing the uniform of the United States, and in the opinion of our Government the animus of it was directed against the United States rather than against the seamen as individuals; yet it may be ques- tioned whether under international law these circumstances were suffi- cient to render the Government of Chile responsible for the outbreak. Vattel says : It would be unjust to impute to the nation all the faults of its citizens. In gen- eral it can not be said that one has received an injury from a nation because some of its members have injured him. • The vital question of international law involved in the case of the seamen of the Baltimore was, however, whether the Chilean Govern- ment took proper or sufficient measures to prevent the attack and to bring the offenders to punishment. That was a question of fact which our Gbvemment had to decide for itself according to all the evidence in its possession, and it decided that the Government of Chile had not done all that it should have done to prevent the attack and to punish the offenders. As to the second class of States — that is, weak States, or States whose internal sovereignty is unstable — ^foreigners must often be pro- tected, not by diplomatic representation — there is often no time for that— but by the immediate employment of the naval forces of their own country. There can hardly be said to be a fixed rule of international law upon this subject, it being exceptional in its nature, as international law INTERNATIONAL LAW. 55 presumes that all sovereign States are capable of enforcing their laws within their jurisdiction. In this class of States, whenever civil commotions occur, it is usual for foreign nations to send ships of war to the scene of the disturb- ance for the protection of the lives and property of their citizens who may be residing there. In places where diplomatic agents are stationed they as a rule have instructions to confer with the senior naval officer as to the advisability of using the naval forces of their nation in crit- ical cases. With respect to the United States, the diplomatic agents have no authority by law or otherwise over the offtcers of the Ifavy unless it is especially directed by the President of the United States as Commander in Chief. Lemoine says: In certain urgent cases, under the personal responsibility of the commander of a vessel of war, an intervention may take place in favor of his countrymen who are in imminent danger, and, indeed, such cases are not infrequent in certain places where public authority is not organized as in Europe. He adds that great care should be taken before intervening on the demand of the peisons supposed to be endangered, who are, he thinks, usually inclined to exaggerate the facts. Under the rules of some States it is customary for the diplomatic representative, when present, to assume the responsibility of decid- ing when the occasion for intervention arises. But even in this case the senior naval officer is to judge whether the military or naval measures are capable of execution, and he is to be responsible for the carrying out of such measures. But in the practice of other States, even where they have perma- nent and trained consular and diplomatic representatives at the scene of the disturbance, there is a tendency to place both the responsibility and the decision as to the use of naval or military measures upon the naval commander alone. In the French code (art. 138, du decret sur le service a bord) it is directed that the commanding officer shall, as much as possible, act in concert with the diplomatic agents or consular authorities of France ; but the commanding officer alone remains the judge of the occasion or necessity for the use of his forces, and he is also the sole judge of the limits in which this action can be exercised. In the admiralty instructions to British naval officers (art. 438) it is stated : It being a general obligation on all Her Majesty's civil and military offtcers to afford matual assistance to each other in cases affecting the Queen's service, the commander in chief of a station or the senior officer present at a port is to pay due regard to such requisitions as he may receive from any of Her Majesty's ministers, governors, or consular officers having for their object the protection of her pos- sessions, the benefit of the trade of Her Majesty's subjects, or the general good of her service. In case such requisitions, conflict with his orders he is to decide as in his judgment seems best; but — He is always to bear in mind the grave responsibility that would rest on him if the circumstances were not such as to fully warrant the postponement of the instructions from his naval superior to the more pressing requisition from Her Majesty's civil servant. Article 447 of the same instructions states: As a general rule protection to British subjects is to be limited to affording them asylum on board ship and to securing them by boats an escape from the shore when 56 INTEENA.TIONAL LAW. their departure may be a necessary precaution. Interposition by the landing of an armed force is only to be had recourse to when the lives or property of British subjects are actually in danger from violence which can not be otherwise controlled. In the Navy Kegulations of the United States (arts. 285 and 286) it is provided that on occasions where injury to the United States or their citizens is committed or threatened the commander in chief or senior officer present shall consult with the diplomatic or consular repre- sentatives of the United States and take such steps as the gravity of the case demands. The responsibility for any action taken by a naval force, however, rests wholly upon the commanding ofiBicer thereof. In no case is force to be used, except as an act of self-preservation, which is defined to include "the protection of the State, its honor, and its possessions, and the lives and property of its citizens against arbi- trary violence, actual or impending, whereby the State or its citizens may suffer irreparable injury." Force is never to be exercised with a view to inflicting punishment f Or acts already committed. In all cases where measures involving the use of force are once undertaken it can be readily seen that a failure to carry them out leaves matters in a worse condition for all concerned than if they had not been begun. Very often the mere appearance of a naval force and a firm attitude on the part of the senior officer present will prevent the necessity of resorting to active measures. A display of force is sometimes ordered by Congress, as well as by the Executive. It happens at times that the commander of a vessel of war is requested to protect the citizens of other States than his own, and in uncivilized or weak communities or upon sudden emergencies this protection may be granted. Instances of this kind have occurred of late years as in the case of protection afforded by a British man-of-war to the inhabitants of Alaska at the time of a reported Indian uprising, by a British man- of-war again at the time of the shooting of American citizens and British subjects from the Virginius at Santiago de Cuba, and also by our own vessels on the Isthmus of Panama, at Samoa, and at Bluefields, in Nicaragua. A somewhat interesting case of this kind happened in 1877 at Apia, Samoa. In that year American residents and others for some reason revolted against the authority of the American consul at Apia and took possession of the consulate. There being no American man-of- war in the harbor at the time, the French man-of-war Seiguelay, commanded by Captain (afterwards Admiral) Aube, was called upon by the American consul for assistance and protection. Captain Aube complied with the request, landed a force, and restored the authority of the consul, and secured to him the possession of the consulate, only requiring from the consul that he, as representative of the United States, should take the absolute responsibility of his acts, and that he would act only against persons submitted to his jurisdiction. The French admiral in command of the station on which the Seigue- lay was serving disapproved of the action of its commander, but the French ministry at home sustained Captain Aube and approved his action. During the negro insurrection on the Danish island of Santa Cruz, in the West Indies, in the same year (1877), the U. S. S. Plymouth, under the command of Captain (now Admiral) Harmony, was ordered to thai place to protect American interests, and in the interests of humanity to look out for the defenseless white inhabitants of that INTERNATIONAL LAW. 57 island. This protection Avas afforded in turn by American, English, and French vessels of war, while the governor of the neighboring Spanish colony of Porto Rico held a land force in readiness for embarkation for the same purpose. In this case an armed force was occasionally landed for moral effect from the Plymouth by the request of the Danish authorities. The British admiralty regulations provide for cases of this kind in the following terms : Application for the protection of subjects of foreign powers in amity with Her Majesty may be entertained in case none of their ships of war are present; the application should, however, be made through Her Majesty's minister or consul, and it should only be acceded to when the protection does not interfere with the public service nor with the orders under which the naval officer is acting. Though no regulation of this kind exists for the United States Navy, it can be considered as an established usage to extend similar protec- tion under similar circumstances. Citizens or subjedts of one State merely entering into the military or naval service of a foreign country do not thereby lose their citizen- ship; but if they engage in warlike measures, or in an attack upon the Government in whose jurisdiction they reside, they forfeit claim to the protection of their own Government. Pomeroy says : A practical difference may exist between the case of a foreigner domiciled in a country of which he is not a citizen and the case of a foreigner temporarily and transiently there. The former person may well be subjected to many claims from the State of his adoption which would be unwarrantable if demanded from the latter; thus, he might well be called upon to pay taxes, to do military service and the like. The landing of troops for the protection of the transit route across the Isthmus of Panama, which is a duty assumed by the United States under a treaty, would include the protection of all American and other citizens and their property when such persons are concerned directly or indirectly with this transit. Cases may arise of anarchy, social disorder, or mob rule which would justify a favorable reply to the request of the local authority for the restoration of order. Such a response would be in the interests of good order, civilization, and humanity. With respect to semicivilized or barbarous countries, even where there is a recognized government, foreigners are by treaty largely exempted from local jurisdiction. In such countries the consuls of foreign States are clothed with extensive powers, and it is customary for ships of war to aid them in the protection of their own citizens, and at times those of other civilized States. Intervention in such countries is not so grave a question in relation to international law, for these countries have not the full rights of sovereign States. Countries under this head would include China, Korea, Siam, Muscat, Persia, Turkey, Morocco, some of the Pacific islands, and until recently Japan. In these questions of protection to citizens the naval forces have come to be the principal means used of upholding the authority of their respective States, and their aid is constantly called upon. But the diplomatic and consular agents of a State are primarily required to look to the safety and protection of citizens in foreign countries. It will therefore be not inappropriate to examinaat this point the character and functions of these officers. 58 INTERNATIONAL LAW. Section 38. — International Agents op a State. Wnen a State has an individnal head, he is to be considered as a representative, or rather embodiment, of the sovereignty of the State, and he is entitled as a consequence to respectful personal con- sideration from the other States of the family of nations and from their representatives. As the object of this consideration is to express the respect due to a sovereign State, any intentional omission to com- ply with the customary and proper observances miist be regarded as an insult to the State which it has a right to resent. The chief agent of a State in its international relations, within its own borders, is the person to whom the management of foreign affairs is committed. This person in the United States is the Secretary who is at the head of the Department of State, and who is known as the Secretary of State. Subordinate to this agent are other officers or agents, resident in foreign countries, who represent the State in, a public capacity and are known as diplomatic and consular officials. Diplomatic agents. — The political relations of States are carried on abroad usually by diplomatic agents. These agents have been in existence since the beginning of nations, but it is only in modern times that the system of permanent embassies has been established; Indeed the system was hardly recognized generally at an earlier date than the peace of Westphalia in 1648. Even after that date resident ambassadors were often looked upon with great disfavor and some sovereigns refused to receive them, regarding them as spies, which they were in many cases. In the older system of diplomacy ceremony was of much more impor- tance than it is at present. The question of precedence in a congress of nations, or at courts, was of immense international consequence; months were spent in deciding questions of etiquette alone. In the case of the peace of Westphalia the preliminary questions, many of them of a merely ceremonial character, occupied several years. The congress of Berlin, on the other hand, concluded the treaty of 1878 in less than a month from the date of its first meeting. This question of precedence was so troublesome in the past that the congress of Vienna in 1815 attempted to regiilate it by dividing diplo- matic agents into three classes, and at the congress of Aix la Chapelle, three years later, an additional class was created. This classifica- tion, which has been generally accepted, is as follows : 1. Ambassadors, legates and nuncios of the Pope. 2. Envoys and ministers plenipotentiary. 3. Ministers resident, accredited to the sovereign. 4. Charges d'affaires. The first three classes are accredited to the sovereign or head of the State, the last class to the secretary or minister for foreign affairs. The theory formerly held that an ambassador represented his sov- ereign personally, and had the right of treating with the foreign sovereign personally, has lost its practical value under modern meth- ods of government, and the classification of diplomatic agents is now of little more than ceremonial value. There is no absolute obligation to receive diplomatic agents, but the custom is now so deeply rooted in the practice of nations that a refusal would require very grave reasons for its justification, and would be looked upon as so unfriendly an act as to be little removed from hostility. INTERNATIONAL LAW. 59 A State may refuse to ^-eceive an ambassador on special grounds; for instance, some Protestant States refuse to receive legates or nun- cios of the Pope; a State is not generally willing to receive one of its own citizens as an ambassador of a foreign State; and a person appointed as diplomatic agent may be for various reasons or causes refused as a persona non grata. In some States it is usual to send the name of the proposed appointee to the Government of the State to which he is to be appointed in order that objections, if any exist, may be made before the appointment. A diplomatic agent may also be dismissed if for any reason he becomes a persona non grata. It has been held by our Government in the case of Minister Egan, whose recall was demanded by Chile in 1892, that the grounds of objection must be communicated and must be such as to justify the demand. It has been said that the United States have the misfortune to supply almost all of the modern instances in which a government has felt itself unable to continue relations with a minister accredited to it, and it must be admitted that the list of cases is long, beginning with GSnet in 1793 and ending with the present year. Diplomatic agents are furnished with letters of credence. ■ This instrument is addressed by the sovereign or chief of State to the sov- ereign or State to which he is sent. In the case of a charge d'affaires it is addressed by one minister of foreign affairs to another. This letter of credence contains the general purport of the mission, the name and class of the agent, and a request that due faith be given to his representations, etc. He is also furnished with instructions, from which he may not depart; and in the case of new questions aris- ing additional instructions are sent. At rare times he is furnished with ' ' f uU powers, " in which case his State is bound by his acts. The subordinates of an ambassador or minister are generally known as secretaries of embassy, secretaries of legation, naval, military, and other attaches. Although diplomatic agents do not enter upon the exercise of their functions until their reception takes place, if their passports show their diplomatic character they have all of their, rights of immunity with respect to the State to which they are accredited, while on their voyage to it and in case of dismissal or recall until their departure from its limits and jurisdiction. As a general rule it may be stated that a diplomatic agent does not have special rights or privileges in States to which he is not accredited. As a matter of courtesy these privileges are, however, sometimes extended to ministers en route to or from their posts. Diplomatic agents, secretly accredited to foreign States, ai-e natu- rally debarred from the full enjoyment of the privileges and rights of a public agent. So far as the government to which he is accredited is concerned, he is entitled to inviolability so far as their direct action is concerned. Conlmissioners for special objects are not considered to be entitled to the immunities of diplomatic officials, but are entitled to special protection and courtesy. Bearers of official dispatches to and from diplomatic agents are considered to have the same rights of inviolability that belong to the diplomatic oflficials themselves. They should have special passports, stating their mission. Consular officials. — The establishment of consulates is of a much earlier date than that of resident embassies. The institution had its 60 INTERNATIONAL LAW. origin during tlie Crusades, whicli gradually brought about trade rela- tions between the East and the ports of the western Mediterranean — such as Venice, Genoa, Marseilles, and Barcelona. At this time the States offered little guaranty for the security of life and property, and it behooved the merchants to protect themselves. They not only formed guilds, but it is probable that consuls were first appointed by associations of merchants. But the various States as they emerjjed from the chaos of feudalism assumed control of the consulaj^ystem. Consuls at this time enjoyed the full privileges 6f exterritoriality and the immunities accorded at the present time to ambassadors. These, as stated before, are still retained to a large extent with Oriental nations. Before the middle of the seventeenth century a great change had been effected in international intercourse and commerce. Sovereign States had taken the place of feudal barons, and the exterritorial jurisdiction of consuls was no longer needed or permitted. Moreover, permanent legations had been established and ambassadors assumed many of the functions formerly belonging to the consuls. As a result, consuls settled into the position of general guardians of the shipping and navigation interests of their respective nations and of their citi- zens, which is in the main the position they now hold. It has been said that diplomatic agents represent their States and that consuls represent the individuals of the State. Consuls are not furnished with credentials nor instructions, but with a commission to watch over the commercial rights and privileges of their nations, and before entering upon their duties they must receive a commission' called an exequatur from the sovereign of the country to which they are sent, which may be revoked at any time. As a general rule, they are amenable to the civil and criminal jurisdiction of the country in which they reside. Strictly speaking, consuls have no political or diplomatic matters to deal with, but, as a matter of fact, they have become, by usage, the local representative of the minister accredited to the country. There may be circumstances, for instance, in the absence of the diplo- matic agent, which makes it proper for him to address the local gov- ernment upon subjects which relate to the duties and rights of his office, and which are usually dealt with through a legation. Consular officers of the United States rank from consular clerk to consuls-general, and in some countries, like Korea and Siam, the minister resident combines the official functions and title of consul- general with that of minister resident. Consuls, unlike diplomatic agents, may be, and often are, citizens of the country in which they reside, and may be engaged in business there, but the tendency is latterly to restrict them in this respect, so that now consuls-general and consuls of the first grade are not permitted by many States to engage in business. Sometimes consuls-general are also clothed with diplomatic char- acter, being both consul-general and charge d'affaires. The United States has fourteen such consuls-general, who are for the most part residents in semicivilized countries. Some European Governments refuse to receive persons clothed with these two characters. Again, consuls or consuls-general in colonies distant from the mother country are often permitted to make diplomatic representations to the local Government or authorities and to do other things which are usually performed by diplomatic agents. There are a number of cases of this kind, as in Australia, India, and elsewhere. INTERNATIONAL LAW. 61 Consular officials may be accredited, in accordance with tlie Revised Statutes of the United States, with temporary diplomatic functions by the President. The ordinary duties of a consul can be embraced under four general heads : First, acts pertaining to vessels, to masters and seamen, or to passengers and emigrants; also acts relating to shipwreck, the appre- hension of deserters, and the relief and return ot seamen; second, acts relating to goods for export to the country he represents, such as authentication of invoices, granting of debenture certificates, etc. ; third, acts in behalf of the government which employs him, includ- ing commercial and hydrographic information collected, and reports as to matters of general or special importance occurring within or near his consular district; fourth, acts in behalf of the citizens of the country he represents who are abroad and within his district; these acts include matters relating to deaths, notarial acts, administration of estates, and the charge of the effects of deceased citizens. The consular service of the United States consists of agents and consuls-general, vice-consiils-general, vice-consuls, deputy consuls, commercial agents, deputy commercial agents, consular agents, con- sular clerks, interpreters, marshals, and clerks at consulates. The only agent and consul-general is at Cairo, Egypt. He enjoys a quasi-diplomatic position, so far as the Porte may consent thereto. The title of commercial agent is peculiar to the United States, but commercial agents are full, principal, and permanent consular officers, as distinguished from subordinates and substitutes, and are entitled to all the powers, immunities, and privileges that under public law or otherwise are accorded to the consular officers. Vice-consuls-general, vice-consuls, and vice commercial agents are substitutes who may tem- porarily fill the places of consuls-general, consuls, and commercial agents. They have no function or powers when the principal officer is present, but their powers are coextensive with those of their prin- cipal when they are acting in his place during his absence. Deputy consuls-general, deputy consuls, and deputy commercial agents are consular officers subordinate to their principals and exer- cising and performing the duties within the limits of the respective offices at the same ports or places where their principals are located. They perform their functions whether their principal is absent or not; but they do not assume responsible charge of the office, that being the duty of the vice-consular officer. Consular agents are consular officers, also subordinate to their principals, exercising their powers and performing their duties within the limits of the several consulates, but at ports or places different from those at which the principals are located. They act only as representatives of the principal and are subject and subordinate to him. Conventions and treaties concerning consular privileges and func- tions exist between most of the civilized and semicivilized countries of the world and the United States. The parts applying to consuls are to be found in Appendix No. 1 of the Consular Regulations. Great Britain has no consular conventions defining privileges, etc. , to any extent on account of the obstacles which her municipal laws place in the way of accomplishing this object. The Navy Regulations of the United States provide for the visits, honors, and salutes to be accorded the diplomatic and consular officers of the United States and foreign countries. A relative rank is pre- scribed by the direction of the President of the United States in the 62 INTERNATIONAL LAW. Consular Regulations of 1888, by which agents and consuls-general rank with a commodore in the Navy or brigadier-general in the Array. Consuls and commercial agents rank with captains of the Navy or colonels of the Army. Vice-consular officers rank with lieutenants of the Navy or captains of the Army. The precedence in the same grade will go by date of commission. In the British service, consular of&cers have the following rank and precedence as compared with naval officers: Agents and consuls- general rank with but after rear-admirals; consuls-general with but after commodores ; consuls with but after captains of the navy of three years' standing; vice-consuls with but after lieutenants of the navy of eight years' standing; consular agents with but after other lieuten- ants of the navy. Consular officers of the United States, with those of other Christian countries, enjoy exceptional and exclusive judicial powers in China, Korea, Japan (until the treaty of 1895 shall be in full operation), Siam, Borneo, Madagascar, Muscat, and Morocco. Consular agents are not deemed to be iudicial officers within the intent of the statutes of the United States. In addition to the above countries, consuls and commercial agents of the United States at islands or countries not inhabited by any civi- lized people or recognized by any treaty with the United States are also invested by law with certain civil and criminal jurisdiction. In some of these countries there are mixed courts provided for certain cases between subjects of the semicivilized powers and American citizens. The jurisdiction of consular courts is to be exercised in conformity, first, with the laws of the United States; second, with the common law, including equity and admiralty; third, with decrees and regu- lations having the force of law, made by the ministers of the United States in each country respectively, to supply defects and deficiencies in the laws of the United States or the common law as above defined. The ministers of the United States accredited to the countries in which exist consular courts have certain supervision and jurisdiction over consular courts. They themselves at tim es act as j udges, and are also judges to whom appeals from consular courts can be taken in certain eases. In cases of sufficient magnitude appeal can be taken from the decisions of the United States consular courts and ministers in China and Japan to the circuit court of the United States for the dis- trict of California. Naval officer & as international agents. — Officers of the Navy, both in time of peace a,nd in time of war, are frequently called upon to act as agents of their country, both ashore and afloat. As their functions in this behalf are independent of or concurrent only with those of the diplomatic agents of the United States, they are frequently called upon to act with responsibility in cases of grave importance; and furthermore, as they are the only permanent body of officials of the Government of the United States who act as international agents, it is of importance that they should be well versed in the usage and law of nations. The Regulations for the United States Navy require explicitly that they should, in their relations with foreign States and with the gov- ernments or agents thereof, observe and obey the law of nations. Upon the arrival of men-of-war in foreign ports the salutes, visits, INTERNATIONAL LAW. 63 and other ceremonials toward the port and its authorities are pre- scribed in full detail by the Naval Regulations, and the honors that are required to be given to the President of the United States and to the civil, military, and naval officials of our country are to be extended in the same degree to foreign rulers and officials. It is expressly enjoined upon the senior naval officer present to impress upon the officers and men under his command in a foreign port that it is their duty to avoid all causes of offense to the authorities or inhabitants; that due deference must be shown to local laws, customs, ceremonies, and regulations; that in all dealings with foreigners mod- eration and courtesy should be displayed, and in general a feeling of good will and mutual respect cultivated. No salute, however, is to be fired in honor of any nation or of any official of any nation not formally recognized by the United States. All possible assistance in cases of distress is to be afforded by naval officers to vessels of our own and foreign States at peace with the United States. If similar assistance, in time of need, be refused to any vessel of the United States by foreign naval ships or officials, the matter must be reported to the Navy Department. During war between civilized nations with whom the United States are at peace all naval officers are required to observe the laws of neutrality and to respect lawful blockades; but they are enjoined at the same time to make every possible effort that is consistent with the rules of international law to preserve the lives and property of citizens of the United States wherever situated. On the high seas, and wherever there is no diplomatic or consular officer of the United States at a foreign port, the senior naval officer is to exercise the powers of a consul in relation to mariners of the United States. He is also to communicate or remonstrate with for- eign civil authorities as may be necessary, and to urge upon our citi- zens the necessity of abstaining from participation in political con- troversies or violations of the laws of neutrality. This authority to discharge certain consular functions does not give him power, how- ever, to perform the general administrative and notarial acts of a consul toward citizens. Great care is required to be observed by naval officers to respect the territorial authority of foreign civilized nations in amity with the United States. No armed force or large bodies of men are to be landed for any purpose on foreign soil without permission of the local authorities, except where necessary to prevent injury to the United States or for the protection of the lives or property of Americans. Even in these cases, if it be possible, the assent of the local authorities should be obtained. No jurisdiction or police control exists even over their own men unless territorial jurisdiction is waived by word or implication by the local authorities. Naval officers are directed to protect all merchant vessels carrying the American flag when engaged in lawful occupations, and they are expected to advance the commercial interests of their country, always acting in accordance with the rules of international law as well as with existing treaty obligations. It is forbidden to allow any vessel of war of the United States to be searched by any person representing a foreign State, or to allow any of the officers or crew to be taken out of her so long as there is power to resist. If force is used, it must be repelled by force. 64 INTERNATIONAL LAW. As the boats of a sMp of war are regarded in all matters concern- ing the rights, privileges, and comity of nations as parts of the vessel herself, it is required that, in ports where hostilities exist or are threatened, boats avay from the ship should be in charge of some proper person, and that their national character should be plainly evident. The assemblage of a court-martial in any place subject to foreign jurisdiction is also forbidden. Tne proceedings of a court-martial or any similar body instituted in contravention of this rule would be wholly invalid. Chapter V. Amicable Settlement of Disputes; Measures Short op War. Section 33. — Treaties. By the regulations of the United States Navy, the senior naval officer in foreign countries is directed to guard against any actual or threatened violation of treaty rights to the injury of the United States or its citizens on the part of foreign authorities. Treaties are not international law, for they bind only the contracting States; but they generally show the coming change in that law. As soon as the change is accomplished there is no longer need of treaty stipulations. As contracts between nations, treaties are subject to a certain extent to the rules of international law. Perhaps the most important ques- tion in relation to treaties is that of the binding effect of their obliga- tions when the treaty is once made. Unlike private contracts, treaties are not, of course, subject to enforcement by an authoritative tribunal, but, therefore, there is the more reason that the moral duty of, the fulfillment of treaties should be strictly observed. So far as the United States are concerned, some of our gravest inter- national controversies have been caused with reference to treaties, both with respect to their interpretation and in regard to the obliga- tions that exist and arise under them. The treaties of 1783 and 1818 and the Clayton-Bulwer treaty are instances where much controversy has arisen. International agreements sometimes are rather arbitrarily divided into two classes — ^treaties and conventions. Treaties, as a rule, are agreements of a general nature bearing upon political or commercial subjects, while the word "convention" is used for those of minor importance or relating to specific subjects. Such are consular con- ventions, postal conventions, etc. At times agreements take the form of declarations and protocols. The declarations of Paris and St. Petersburg are among the former, the first being the well-known declaration as to maritime war and privateering, the latter as to explosive bullets, etg. The" protocol con- cluded in 1874 giving foreigners the right to hold real estate in the Ottoman Empire is an example of the latter form. Generally speak- ing, a protocol is the offtcial minute of the sessions held during the process of negotiating a treaty, duly drawn up, with the conclusions agreed upon, and signed at the end of each session by the negotiators. The right to negotiate treaties is one of the fundamental attributes of national sovereignty. In a monarchy the treaty-making power is in the hands of the sovereign, with more or less restriction; in a republic, in the hands of the chief executive, assisted by hife ministers or some assembly of the State. In the United States, for example, the President can only conclude treaties by the advice and consent of the Senate expressed by a two-thirds vote. As Commander in 6433- 5 65 66 INTERNATIONAL LAW. Chief of the Army and Navy, however, the President can alone, in the exercise of his military powers, conclude an armistice or arrange a convention with an enemy. A sovereign must, of course, be actually in power to be able to negotiate treaties, as then only he represents the State with its inher- ent capacity for treaty making and treaty fulfillment. It is rare, how- ever, that sovereigns treat directly or even sign treaties; such acts are delegated to their ministers or to special diplomatic agents. After the negotiation of the treaty comes the act of ratification, which transfers the matter from the hands of the agent of the govern- ment to the supreme authority of the State and gives to that authority the duty of assuming the execution of the treaty. The right of ratification appertains in a monarchy to the sovereign, either alone or assisted by national representatives, and in a republic to the chief of the executive power, with the consent, direct or indi- rect, of one of the grand powers of the State. This ratification should be full and without reservation or conditions. A treaty is not binding until it is ratified by the proper authorities of each contracting State, the right to refuse ratification being as incontestable as the right to negotiate treaties. Unless otherwise specified, however, the treaty becomes operative from and at the date of its signature, and not from the date of its ratification. A ratification of a treaty which adds to the treaty a condition or modification, or even an interpretation, not contained in the original document, is not, properly speaking, a ratification, but a new treaty, which requires acceptance and a new agreement. A treaty duly signed and ratified becomes at once obligatory upon the signatory States, but, notwithstanding this, often requires still other procedure before being put fully in operation. It may require some legislation, an appropriation of money, or changes in the revenue or other laws upon the statute books. With us this requires the action of the House of Representatives in addition to that of the Senate. In regard to a possible refusal of this legislative action, Calvo says that without doubt the political power to which the constitution of each State assigns this duty is in principle free and independent in the exercise of its right; but international comity and proper regard for the supreme autliority of the nation imposes upon the legislature the obligation to deliberately and gravely consider the matter, and, if possible, not to refuse its approbation and agreement, but to neglect the questions of mere form and detail, and to occupy itself only with the large and general interests of the nation. The Constitution of the United States, in Article VI, provides that all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land, and that the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. Unless a treaty is a secret one, it is the usage to make it public for the information of the citizens or subjects of a State by means of a public proclamation. Then| if no legislation is necessary to make it operative, it will be executed by the judicial tribunals of the countries concerned, though in its public relations, as mentioned before, the treaty is binding from the date of its signature. Treaties cease to be obligatory and are abrogated from various causes, such as the completion of the obligations therein provided for; by the expiration of the period for which the treaty has been con- cluded unless a renewal has been made; by mutual consent; by the INTERNATIONAL LAW. 67 ■withdrawal of either party when the treaty itself provides for its ter- mination in this manner; by the entire attainment of the particular object for \yhich the treaty was made; when the fulfillment of the treaty becomes morally or physically impossible; by loss of independ- ence on the part of one of the contracting States; by a change of regime or government when the treaty expressly states that it depends upon such regime or government; by the necessities of self-preserva- tion; and finally, by a declaration of war, which suspends, when it does not destroy, treaty obligations between the two States. In regard to the above causes there can be little dispute, except that of self- preservation when it includes self -development. Hall says : A treaty therefore becomes voidable so soon as it is dangerous to the life or incompatible with the independence of a State, provided that its injurious effects were not intended by the two contracting parties at the time of its conclusion. Bluntschli goes much further, and holds the opinion that when a treaty becomes a permanent obstacle to the development of the con- stitution or the rights of a people it can be abrogated by that State; and also when the condition of things which have been the expressed or tacit base of the treaty is so modified by time that the sense of the treaty is lost or that its execution has become contrary to the nature of things, the obligation to respect the treaty ceases. Pomeroy quotes Pinheiro-Ferreira as saying in a note to Martens with respect to permanent treaties as follows : I speak of those treaties which governments sometimes make with the clause that they shall remain binding forever, or at least until both contracting parties agree to rescind or modify them. Such conventions never have been, nor should they be, taken literallj[, for it would be absurd to suppose that the present genera- tion could have the right to bind future generations by conventions, good or bad at the time of the inception, that the posterity of one contracting party ought to be sacrificed to the posterity of the other. Treaties bind nations only so long as the principle upon which their validity rests continues to exist — that is, until from the exact and conscientious accomplishment of the obligations which the com- pact imposes upon each party there can arise no damage which one party can not prevent or against which the other can not be indemnified. * * * Whenever, therefore, two States are placed in the situation which would have justified the recision of a contract between private persons, the obligations resulting from their treaty have ceased to exist. As to the abrogation by war, it is evident that in case of war between two States such agreements previously existing between them as treaties of alliance, of amity and succor, of commerce and navigation, in a word, all treaty stipulations referring only to pacific relations, cease during hostile relations. It is not necessary to wait the positive declaration of war for this abrogation; the moment the relations become hostile these treaties cease to have effect. In the quasi war between the United States and Prance in 1798 and 1799 all treaties were considered as abrogated. There are treaties of another nature, such as those which concern frontier boundaries, the occupation of property, public debts, etc., • which are permanent in their character, and during hostilities are suspended only, reviving at the termination of the war. Those treaties, or parts of treaties, which, however, relate to mari- time and land warfare, are not altered or abrogated by hostilities between the contracting parties. These treaties can only be annulled by new treaties or in the manner prescribed by the treaties themselves. In regard to the order of the execution of a treaty, it seems to be generally conceded that the special provisions take precedence over the general provisions, and other things being equal, that the more 68 INTEENATIONAL LAW. important matters take precedence over the less important. When two treaties, made between the same States at different times, con- flict, the later treaty should govern, as it is made, or supposed to be made, in place of the earlier treaty. When two treaties conflict, however, which have been made with different States, at different dates, the earlier treaty should govern, for it is unfair to violate an engagement made with one party by a later agreement made with another party, without the consent of the first. SECTiojf 34. — Arbitration and Mediation. When disputes of States lead to war, an entirely new set of interna- tional relations is brought into play. But before arriving at that stage, there may be amicable settlement of disputes by means of mediation and arbitration. As a means of settling international disputes arbitration is being resorted to more and more, and it is. looked upon by those who would bring the world into a state of perpetual peace as the means of pre- venting wars. .It seems to be assured that in certain kinds of disputes it will ,come into general use, and perhaps, indeed, often prevent war. Arbitration has been resorted to by the United States upon several occasions, and has been of great use in settling grave and complicated differences with other countries, notably the Alabama claims and the questions arising in connection with the Bering Sea. Certainly, as Halleck says: The precepts of morality, as well as the principles of public law, by which human society is governed, render it obligatory upon a State before resorting to arms to try every pacific mode of settling its disputes with others, whether such disputes arise from" rights denied or injuries received. This moderation is the more neces- sary as it not infrequently happens that what is first looked upon as an injury or an insult is found upon a more deliberate examination to be a mistake, rather than an act of malice, or one designed to give offense. Moreover, the injury may result from the acts of inferior persons which may not receive the approbation of their ovm Government. Arbitration must be made under all circumstances voluntary and not obligatory. As Prof. Montague Bernard says : Arbitration is an expedient of the highest value for terminating international controversies; but it is not applicable to all cases or under all circumstances, and the cases and circumstances to which it is not applicable do not admit of precise definition. Arbitration, therefore, must of necessity be voluntary; and though it may sometimes be a moral duty to resort to it, can not be commanded in any form by what is called the positive law of nations. Phillimore says: It can not be laid down as a general and unqualified proposition that it is the duty of States to adopt this mode of trial. There may, under the circumstances, be no third State willing or qualified in all respects for so arduous and invidious a task. Moreover, a State may feel that the contested right is one of vital impor tance, and one which she is not justified in submitting to the decision of any arbiter or arbiters. In the International American Congress which met in Washington in 1889 certain recommendations with respect to arbitration were adopted with the consent of all the States except Chile and Mexico. These recommendations provide for arbitration under all circumstances except when the questions are such as, in the judgment of any one of the States involved in the controversy, to imperil its independence. In the question of the northeastern boundary of the United States, which was referred under the treaty of Ghent to the arbitration of the INTERNATIONAL LAW. , 69 King of the Netherlands, the United States felt called upon to reject the award made by this arbiter. Sheldon Amos, in speaking of the universal adoption of arbitration, The difficulty may be ei^reased by saying that arbitration seems to be the only means of perfecting relations of order, equity, and mutual confidence between States; the preexistenoe, however, of which very relations must be treated as a condition precedent to the universal application of arbitration. Notwithstanding the fearful evils of war and the debts and burdens of aU kinds that follow in its train, the great epoch-making wars like that which gave us our independence, the wars of the French Revolu- tion, the war for the Union, the Franco-German war, and the Russo- Turkish war created results that could hardly have been brought about in any other way. Mediation in the shape of an offer of good offices may, of course, be offered before or during a war by a third State. It may come at the request of the disputing States, or as a result of existing engagement. Mediation is essentially different from arbitration, as its office is that of reconciliation and moderation rather than of judgment and legal settlement. As Halleck says : The task is a very delicate one, and the office of mediator requires great integrity and strict impartiality, for unless he possess these qualities in a preeminent degree his efforts will not be likely to bring about the desired reconciliation of the disputants. Section 35.— Reprisals. Formerly, when an individual suffered injuries from a foreign State, he was at times given a letter of reprisal against the State. Repris- als by individuals of this nature are no longer practiced, although permitted by laws still borne upon the statute books. Reprisals can only be made by the central authority of a nation which has the power of making war. This does not, of course, refer to action which may be required toward peoples who are savage or uncivilized . Circumstances may render it urgently necessary upon the part of a naval commander to act upon his own responsibility in cases of this kind toward peoples from whom redress can not be obtained in any other way. International law, however, does not apply to communities of this kind, although justice and humanity are none the less obligatory in dealings with them. Hall says: Reprisals are resorted to when a specific wrong has been committed, and they consist in the seizure and confiscation of property belonging to the offending State or its subjects by way of compensation in value for the wrong, or in seizure of property, or acts of violence directed against individuals with the object of com- pelling the State to grant redress, or finally, in the suspension of the operation of treaties. When reprisals are not directed against property they usually, though not necessarily, are of identical nature with or analogous to the act by which they have been provoked. * * * Such measures as those mentioned are primg. facie acts of war; and that they can be done consistently with the maintenance of peace must be accounted for, as in the case of like acts done in pursuance of the right of self-preservation, by exceptional reasons « * * ; but as a rule, the acts for which reprisals are made, except when reprisals are used as a mere introduc- tion to war, are of comparative unimportance. It is this which justifies their employment. They are supposed to be used when an injury has been done, in the commission of which a State can not be expected to acquiesce, for which it can not get redress by purely amicable means and which is scarcely of sufficient mag- nitude to be a motive of immediate war. A means of putting stress, by something short of war, upon a wrongdoing State is required, and reprisals are not only 70 INTERNATIONAL LAW. milder than wai-j since they are not complete war, but are capable of being lim- ited to such acts only as are the best for enforcing redress under the circumstances of the particular case. It of course remains true that reprisals are acts of war in fact, though not in intention, and that, as in the parallel instances of interven- tion and of acts prompted by self-preservation, the State aflfected determines for itself whether the relation of war is set up by them or not. These reprisals are sometimes known as general reprisals to distin- guish them from special acts done in the course of regular warfare and in accordance with the laws of war. Among the reasons given for reprisals are : A refusal to pay debts formally acknowledged; a suspension, without reason, of a treaty obligation; a refusal of reparation for injury or a denial of evident justice; a refusal to pay a just indemnity for losses caused by the fault of the offending State, when its responsibility is plain; a seizure of persons or property of the wronged State, and cruel and unjust treatment of citizens domiciled in a foreign State. Halleck says: It is only in cases where justice has been plainly denied, or most unreasonably delayed, that a sovereign State can be justified in authorizing reprisals upon the property of another nation. Moreover, the delay must be of such a character as to render it tantamount to a denial of justice. Thus, if the claim be a national one, 'it must be properly demanded and the demand refused. If it be of an indi- vidual, the claimant must first exhaust the legal remedies in the tribunals of the State from which the claim is due, and after an absolute denial of justice by such tribunals,- his own Government must make the demand of the sovereign authori- ties of the offending nation. Although the presumption of law is clearlyin favor of the decisions of the lawfully constituted tribunals of a State, yet, if it is plain that justice has been administered partially, and in a different manner to the for- eigner than to the subject, the Government of the injured party may, notwith- standing such decision, demand justice, and if it be refused, resort to reprisals. It is seen from the above that reprisals may be demanded for injuries to private citizens as well as for injuries done to the State, while repris- als may be exercised upon the persons as well as the property of the offending State, or its citizens. The following acts of reprisal without any declaration or existence of war may be regarded as having the sanction of usage and sufficient authority: (1) 'The sequestration or seizure of property belonging to the offend- ing State; (2) the sequestration or seizure of property of citizens or subjects of the offending State; (3) the partial or complete suspen- sion of commercial and other intercourse between the two nations; (4) suspension or annulment of treaties in part or in whole; (5) a pacific blockade. (1) The sequestration or seizure of property of the offending State has been more than once threatened and enforced. This method of reprisal was enforced in the incident known as the Don Paeifico case, when the naval force of Great Britain,' in the Mediterranean, in 1849, established an embargo upon Greek shipping and seized several Greek ships of war in the Piraeus. A later case occurred in 1896, when Great Britain, having been unable to secure the required redress and indemnity from Nicaragua for the expulsion of the persons and property of the British vice-consul and other subjects from Bluefields and the Mosquito reservation, sent a naval force to Corinto, a port of Nicaragua, on the Pacific coast, and announced as an ultimatum that unless the indemnity was paid in three days Corinto would be occupied by the British forces. Proper response not having been made, a force was landed and INTERNATIONAL LAW. 71 Corinto occupied. Ultimately, Nicaragua agreed to pay the indem- nity within fifteen days after the evacuation of Corinto by the English forces, the payment being guaranteed by Salvador. The payment was finally made, the public property of Nicaragua being in posses- sion of the British fleet during the occupation. The seizure and occupation of the island of San Juan in 1859 by the United States, although mentioned as a case of this kind, stands some- what apart, as the United States claimed the island as a part of- its own territory. In 1855 Secretary Marcy wrote to the minister of the United States in China: The Chinese Government having persistently refused to pay a claim for personal injuries to a citizen of the United States, which it admitted to be due, the United States minister at China was instructed, at his discretion, to resort to the measure of withholding duties to the amount thereof. (2) The seizure of private property belonging to citizens of the offending State by letters of marque and reprisal is no longer practiced, but in later times the seizure of such property has been made by national vessels of war. Among recent examples are the seizure of Neapolitan vessels by British men-of-war in 1840, the capture of Brazilian mer- chant vessels by England off Rio in 1-861, and the seizure of vessels by Germany in Port au Prince in 1872. A hostile embargo is practi- cally under this head, being a seizure of vessels of a foreign State in the ports of the wronged State awaiting further events. (3) The suspension of intercourse had a very practical exemplifica- tion in oiir own history in the years preceding the second war with Great Britain. In 1807, after the attack upon the Chesapeake, the President of the United States issued a proclamation excluding British vessels of war from the harbors of the United States. ' In 1808 the Committee of the House of Representatives on Foreign Affairs reported in favor of the prohibition of admission of vessels of Great Britain and France. This report was followed by the passage of the nonintercourse act, in 1809, which prohibited all commercial relations with Great Britain and France. In 1870 the President of the United States asked for power to suspend the laws authorizing the transit of merchandise across the territory of the United States to Canada, and further, if necessary, to forbid vessels of the Dominion of Canada from entering the waters of the United States. This was on account of the action of the Canadians toward our fishermen. An embargo may be considered to coipe under this head if it is what is known as a civil embargo. By this is meant the act of a State detaining the ships of its own citizens in port, which amounts to an interdiction of commerce, accompanied, as it generally is, by a closing of its ports to Jforeign vessels. A hostile embargo is a seizure, as before mentioned, of foreign vessels and property which may be in the ports of the wronged State. It was formerly not uncommon to place ships of a foreign power under embargo as a prelude to war. This harsh and unfair practice has ceased, and instead a custom has arisen not only allowing ships of an enemy to depart, but also giving them sufficient time to discharge and receive cargo and reach a home port. At the outbreak of the war between Spain and the United States both countries permitted a period of thirty days for such purpose. (4) In 1798 Congress passed an act annulling all of the treaties with France, which was followed almost immediately afterwards by an act which, without* formal declaration of war, authorized the President of 72 INTERNATIONAL LAW. the United States to seize by our armed vessels, public or private, any armed vessel of France, and to have these vessels brought into the ports of the United States, duly proceeded against, and condemned as lawful prize. The subject of pacific blockade will be treated separately. Section 36.— Retorsion. Retorsion is retaliation in kind. If a nation has failed in courtesy, friendship, or good of&ces; if it has placed discriminating duties or restrictions upon commercial or other intercourse; or if it has in any way given just reasons for offense and no redress is offered or given, then the injured State has the right to take a similar course on its own part in order to bring back the other State to a sense of propriety and justice. Woolsey says : ' ' The sphere of retorsion ought to be confined within the imperfect rights or moral claims of an opposite party. Rights ought not to be violated because another nation has violated them." This is a little vague. Retorsion in peace and retaliation in war have had a wholesome effect in times past, and have been the effective means of preventing unjust discrimination and violent excess. Col. Gr. B. Davis, U. S. A., says of retorsion that "the field within which the principle of retorsion may be applied, already very exten- sive, is certainly increasing." This state of affairs is due to the fact that the commercial relations of States are increasing in intricacy in direct proportion as they increase in extent and amount, giving rise to frequent conflicts between the business or internal policy of par- ticular States and their external or international policy. Section 37.— Pacific Blockade. A measure of constraint, short of war, known as a pacific blockade, has been a not infrequent means of coercion. It has been instituted, sometimes by joint action of several powers, sometimes by a single power; in some cases against all vessels, in others against vessels of the nation concerned alone, and in still other cases against property and cargo only of the offending nation. The penalties have generally been seizure and confiscation or seizure and detention. Notwithstanding the opposition of some writers upon international law, the practice is a growing one and seems to be fairly well estab- lished. The legal position of a pacific blockade, however, is unsettled, as the attitude of the blockaders toward vessels of the States not con- cerned has varied with almost every blockade, and the blockade itself has always been applied by a strong naval power against a weaker ' one as a means short of and better than war. The alternative of War in these cases has not been accepted by the weaker power, for the evident reason of the disparity of forces and consequent hope- lessness of successful contest. Pacific blockade is certainly an anomaly in international law, as, though a warlike measure, there are neither belligerents nor neutrals. Writers on international law are divided as to this question and may be classified in their opinions as follows: First. Those who think the pacific blockade absolutely unjusti- fiable, as Hautef euille, Westlake, Geffcken, Woolsey, and Phillimore. Second. Those who approve the practice as a necessary evil, if INTERNATIONAL LAW. 73 conducted SO as not to affect third States, as De Martens, Calyo, Bluntschli, Hall, T. J. Lawrence, and Fiore. Third. Those who admit the practice as a reprisal and as one at all events less of an evil than war, and who also believe that the blockade should affect third States — such as Perels, Des Jardins, Holland, von Bulmerincq, and others. Walker speaks of if at length, as follows : Prior to 1837, blockade was held a pure war right, and it may be questioned whether In its wider extension pacific blockade must not justify itself rather as a mode of warfare limited in operation than as a means of redress falling short of war. For the operation of such- a measure may extend either to the subjects of the block- ading and blockaded powers only or to the vessels of all nations. If it be confined to the subjects of the jjarties directly engaged, its legitimacy can hardly be a matter for serious consideration. The less is justified in the greater, and the blockaded sovereign has it in his power either to free himself from the inconvenience by the ^ant of redress or to resent it by the declaration of war. If, however, the trade of neutrals be aflEected by the blockade, those neutrals may well protest against interference with their trafftc not fully and completely justifiable. For them such protest must be a matter of policy. Pacific blockade may be, and doubtless is, the less of two evils; to refuse to recognize it may be to force the offended State to legalize its acts by instituting a regular blockade as a measure of war. * * * The first instance of paciffc blockade occurred in 1827, when the coasts of Greece were blockaded by the English, French, and Russian squadrons, Greece being then nominally subject to Turkey and the powers were professedly at peace with Turkey. The Tagus was block- aded by France in 1831, Kew Granada by England in 1866, Mexico by France in 1838, the La Plata by France .from 1838 to 1840, and from 1845 to 1848 by France and England; the Greek ports by England in 1850, the coast of Formosa by Prance in 1884, the coast of Greece by Great Britain, Germany, Austria, Italy, and Russsiain 1886; the Island of Zanzibar, in 1888, by Great Britain, Germany, Italj", and Portugal, and finally the Island of Crete, in 1897, by Great Britain, Gfermany, Austria, France, Italy, and Russia — the six great powers of Europe. The blockade of Formosa in 1884 by the French was intended to include neutral vessels as liable to capture and condemnation, not- withstanding that the French Government did not assume the position of a belligerent. The peculiar position it took was due, it is generally considered, to the fact that it was desired to have entire freedom in coaling at Hongkong, which it would lose if it assumed the name as well as the powers of a belligerent. The British Government refused to admit that under these circumstances the French Government had the right in international law to capture and condemn the vessels of neutral nations. The Greek blockade of 1886 was for the purpose of coercing Greece into abstaining from hostilities which might precipitate a general European war. She had declined to be influenced by advice or threats, and it was not until the blockade gave tangible evidence that the majority of the great European powers were in earnest that Greece submitted. Hall says: The instructions given to the British admiral were to detain every ship under the Greek flag coming otit from or entering any of the blockaded ports or harbors or communicating with any ports within the limit blockaded. " Should any parts of the cargo on board of such ships belong to any subject or citizen of any foreign power other than Greece and other than Austria, Germany, Italy, and Russia, and should the same have been shipped before notification of the blockade or after such notification, but under a charter made before the notification, such ship or vessel shall not be detained. The officer who boards will enter in the log of any ship allowed to proceed the fact of her having been visited and allowed to proceed; 74 INTERNATIONAL LAW. also date and at what place such visit occurred. * * * In case of detention, steps must be adopted as far as practicable to insure safety of ship and cargo." (Pari. Papers, Greece, No. 4, 1886.) Incidentally some occurrences took place which must have been beyond the intended action of the powers. For example, at Skiathos part of the Austrian squadron made requisitions of provisions on the island, carrying off so much flour as to exhaust the stock; it also cut telegraphic communication and seized fishing boats. The blockade of Zanzibar in 1888 was specifically directed against, the slave trade, which the authorities of Zanzibar were unable or unwilling to stop. As this blockade was against a specific evil, recog- nized as such by the civilized world, no international complications were involved. The blockade of Crete commenced March 21, 1897. Upon that date the naval forces of all of the great powers of Europe combined for the first time in a pacific blockade. The blockade was declared general for all ships under the Greek flag. Th« ships of the six powers and of those nations who may, for the localized operations, be called neutral, were allowed to enter into the ports occupied by the blockading powers and to land their cargoes, provided they were not intended for the Greek troops in the interior. Merchantmen of the neutral and block- ading nations were liable to visit by the blockading ships of war within the limits of the blockading operations, which were comprised between longitude 25° 24' and 26° 30' east of Greenwich and between 35" 48' and 34° 45' north latitude. The various civilized Governments of the world were duly notified of this blockade, that of the United States among the number, but so far as it ^s known no Government officially protested against the institution of this blockade. With the exception of the United States, all of the great powers of the world may be considered to have been active participants in this blockade which was enforced against all nations. Among measures that were discussed as a means of constraint, by the United States toward Spain, with respect to affairs in Cuba, was that of a pacific blockade. As a matter of fact, a blockade of certain Cuban ports was proclaimed under date of April 22, 1898, while war itself was not formally declared until the 25th of April, though the declaration dated back the existence of war to the 2l8t day of April. In 1887 the Institut de Droit International adopted a declaration as to pacific blockades, which stated that the establishment of a blockade without a state of war ought to be considered permissible by the laws of nations only under the conditions that vessels Of foreign flags can enter freely, notwithstanding the blockade; that the specific blockade be formally declared and notified and maintained by sufficient force, and that the vessels of the blockaded nation which do not respect the blockade can be sequestered; but that when the blockade ceases these vessels and their cargoes should be restored to their owners, but with- out compensation. It can thus be seen that without admitting the pacific blockadfe to be an established legal means of restraint or reprisal short of war, still the general tendency of writers, and more particularly of the great maritime states, is to favor its exercise, and while it may be desirable that other powers than those concerned should not be involved, still a blockade not applying to all maritime powers would not as a rule be effective or secure the results for which it is instituted. INTERNATIONAL LAW. 75 Section 38. — International Movements fob the Mitigation of the Evils OF War. BluntscUi says that of the various modern acts and movements that have tended to ameliorate the evils of war, the promulgation by the War Department of the instructions for the government of the armies of the United States in the field, drawn up by Francis Lieber, LL. D., and issued after modification as a general order, April 24, 1863, was among the first and most remarkable. Colonel Davis, U. S. A. , in his work upon international law, says of these instructions: They are still in substantial accordance with the existing rules of international law upon the subject of which they treat, and form the basis of Bluntschli's and other elaborate works upon the usages of war. They are accepted by text writers of authority as having standard and permanent value and as expressing with great accuracy the usage and practice of nations in war. These instructions treat of martial law, military jui'isdiction, mili- tary necessity, retaliation, public and private property of the enemy, protection to persons, religion, and to the arts and sciences. They direct as to the punishment of crimes against the inhabitants of hostile countries, as to deserters, prisoners of war, booty on the battle- field, partisans, armed enemies not of the hostile armies, scouts, prowl- ers, war traitors and rebels, spies, safe conducts, flags of truce, messen- gers, parole, armistice, capitulation, assassination, etc. Although revision would doubtless be made in the case of a great foreign war, still they contain very much that would be useful in time of war to the naval service and that should become familiar to officers of the Navy and Marine Corps. In 1880 the Institut de Droit International adopted a code of " Laws of war on land," based upon these instructions for the government of armies of the United States, upon the articles of the Geneva conven- tions of 1864 and 1868, upon the declarations of St. Petersburg and Brussels, and upon the oflftcial manuals adopted by France, Russia, and Holland . This code has certain (Jiff erence^, some of them improve- ments, from the instructions adopted by the United States, but as it has not been adopted generally by the powers it may be considered as a movement rather than as an authoritative act. The Geneva convention for the amelioration of the condition of the sick and wounded of armies in the field has been generally agreed to by the civilized powers, and was acceded to by the United States, March 1, 1882. The President of the United States, in his proclamation announc- ing the accession of this country to the Geneva convention, reserves the promulgation of the additional articles until the exchange of the ratification thereof between the several contracting States shall have been effected and the said additional articles shall have acquired full force and effect as an international treaty. These additional articles cover the cases of naval warfare and are practically accepted in principle and are given in the appendix. The only States which have not adopted the Geneva convention are Por- tugal, Brazil, Mexico, Colombia, Costa Rica, Uruguay, and Venezuela. PART II. INTERNATIONAL LAW AS MODIFIED BY WAR. Chapteb VI. (tENEral Character of War ; Maritime War. Section 39.— Nature of Wak. War changes the relations of all States. The relations of the contend- ing parties, who become known as the belligerents, are at once directly affected by this change from a normal to an abnormal state of affairs, and indirectly the relations of the States which take no part in the war become changed toward the belligerents as they now assume the posi- tion of neutrals. , As Phillimore says : War, of necessity, brings with it new rights to the belligerents and new obliga- tions to the neutral. In the early history of nations and of tribes it has been said that war was the normal state of society, or as the philosopher Hobbes put the matter, it was " bellum omnium contra omnes," war of all against all. To-day peace is the normal state and war the abnormal. At present, far from being a struggle for the mastery alone, war is looked upon as a contest in support of the rights of a nation and as a means when all others have failed to bring about a settlement of disputes. War, then, is the last resort of nations, the ultima ratio regum, and the ethical question of right or wrong with regard to the opposing parties has nothing to do. with the legal rules applicable to the combat. In the eyes of international law all wars are just, in so far as the bel- ligerent rights of the parties are concerned ; that is to say, third States or neutrals are not permitted to hold that one of the parties is wrong and hence not entitled to the rights of war. Wheaton says with regard to war that — The independent societies of men called States aokaowledge no common arbiter or judge except such as are constituted by special. compact. The laws by which they are governed are deficient in those positive sanctions which are annexed to the municipal code of each distinct society. Every State has, therefore, a right to resort to force as the only means of redress for injuries inflicted upon it bv others in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society. Each State is also entitled to judge for itself what are the nature and extent of the injuries which justify such a means of redress. Since the time of the Thirty Years' war there has been a- steady improvement in the usages of war, caused partly by the influence of 76 INTERNATIONAL LAW. 77 the writings of Grotius and his successors, and partly by the general progress of civilization, in which the'sentiments of humanity and jus- tice have come to prevail over those of barbarity and greed. The rules of the law of nations have been gradually extended and accepted during the last two hundred years, until to-day they control to a very large extent the usages of war in all civilized countries. What are called the laws of war form a very important part of the law of nations or international law. "War has been defined to be a hostile contest with arms between two or more States or communities claiming rights of sovereignty. Creasy says: That there have almost always been wars, and that wars will again occur, are melancholy certainties, against which it is vain to shut our eyes. It is equally certain that a nation which professed an intention never to engage in war would, if its professions were believed, be very soon insulted, maltreated, and oppressed by other nations, and that such a pacific course on its part would most likely end in its dismemberment and national destruction. It is not safe to indulge in the pleasant illusion, either, that wars can be stripped of all theii horrors or of all their burdens. The long peace from 1815 to the Crimean war was a period of peace societies which cherished visions of perpetual peace and good will, and of philan- thropic writers who would remodel the laws of war so that war was to become' a mere duel between the armed forces of nations. The old theory as to war was that all citizens or subjects of one belligerent State were enemies of all citizens or subjects of the other. The new theory advanced is that war is a contest between State and State, and that private citizens of the belligerent parties should not be molested either as to their persons or their property. The practice and usage of the present day do not conform to either theory. The true view is more likely found in a mean of the two theoretic extremes. The old theory is, of course, wholly contrary to the humane spirit of our time, yet the new would tend to cripple weaker and unmilitary nations in repelling the attacks of powerful and essentially military States. Certainly upon the invasion of a foreign country a general uprising of its inhabitants can not be prohibited by reasonable rules of war- fare. Furthermore, such an invasion is generally accompanied by heavy demands upon the inhabitants by way of requisitions and con- tributions for whatever is necessary for the subsistence of the invading army, so that invasion is not a mere affair confined to the government. This levying of contributions is done in a regular manner, to be sure, but it is virtually the confiscation of private property, and often on a very large scale. It differs mainly from the old pillage only in being so regulated. At sea private property is still subject to capture by the rules of international law, and it is made a reproach in maritime wars that thi§ rule is less liberal than in land wars. Sir Henry Maine, quoting from a manual drawn up for the English army, says : The object of wars, politically speaking, is the redress by force of a national injury. The object of war in a military point of view is to procure the complete submission of tiie enemy at the earliest possible period with the least possible expenditure of men and money. The accomplishment of this object may often be promoted to an indefinite extent by depriving the enemy of resources which happen for the moment to be private property, but which ultimately are at his service. 78 INTERNATIONAL LAW. Section 40.— Declaration of War. Wheaton says: The right of making war, as well as of authorizing reprisals, or other acts of vindictive retaliation, belongs in every civilized nation to the supreme power of theState. The exercise of this right is regulated by the fundamental laws of the municipal constitution in each country, and may be delegated to its inferior authorities in remote possessions, or even to a commercial corporation. But with respect to the United States no such rights can be dele- gated. The exercise of the war-making power is vested in Congress, and the President of the United States has no constitutional right or authority to make war or to order aggressive hostilities to bfe made.. He is directed and authorized, however, by the statutes of the United States* in times of Insurrection, invasion, or rebellion, or of Imminent danger thereof, to call forth troops to suppress such Insurrection or rebellion and to repel siich invasion. In 1857 Secretary Cass wrote as follows to Lord Napier in regard to a proposed combined expedition In China : Our naval officers have the right — it is their duty, indeed, to employ the ' forces under their command, not only in self-defense, but for the protection of our citi- zens when exposed to acts of lawless outrage, and this they have done both in China and elsewhere, and wiU. do again when necessary; but military expeditions into Chinese territory can not be undertaken without the authority of the National Legislature. Declaration of war between two independent nations. — As between two Independent States, war may begin by a formal declaration or by actual hostilities without any declaration. Halleck says : It was customary in former times to precede hostilities by a formal declaration communicated to the enemy. This was always done by the ancient Greeks and Romans, but in modem times such formal declaration has fallen into disuse. In a compilation of cases of hostilities without previous declaration extending from 1700 to the present time, Colonel Maurice of the Brit- ish army found but 11 out of 118 Instances In which a declaration of war preceded hostilities. In some cases there was not even a mani- festo, and the intention was to gain an advantage by surprise. It is now generally agreed that a manifesto or declaration within the territory of the State declaring the war Is necessary in order to warn' at least the citizens of the State and neutrals. Thus in 1812 Congress passed an act containing a declaration of war to be issued by the President, but the act was not communicated to England. Hos- tilities began, however, immediately. In 1846 the war with Mexico was not only begun, but the battles of Palo Alto and Resaca de la Palma were fought before the formal dec- laration of war of May 13, 1846, which in its terms recognized the state of hostilities as existing by the act of Mexico. This arose partly on account of the annexation of Texas by the United States, and hence «,n invasion of Texan soil by Mexico — which latter country still regarded Texas as part of Mexican territory — became an invasion of the territory of the United States, and warlike measures were within the powers of the President. In 1870 war was determined upon in the French Chambers the 16th of July, and on the 19th a formal declaration was handed to the Prus- sian Government at Berlin. In the case of the Teutonia the judicial committee of the English privy council held that the date of the begin- ning of the war was the 19th and not the 16th, the ground being that *U. S. Rev. Stat., sees. 1643, 5397, 5398, 5299. INTERNATIONAL LAW. 79 no act of war had been committed before the declaration. The war of 1877 between Russia and Turkey was also formally declared. In the China-Japanese war of 1894 hostilities were begun before the declaration of war. In our war with Spain formal declaration of war was made by the United States by act of Congress, April 25, 1898, dating back the existence of hostilities to April 21, and by proclama- tion by Spain on the 24th of April. The proclamation of the blockade of certain ports in Cuba, as men- tioned previously, was upon the 22d of April. When there is no declaration, war dates from the first act of hostili- ties, and even if there should be a subsequent declaration, the begin- ning of hostilities still remains the date of the beginning of the war. In civil ivars. — In a civil war there is never a formal declaration, and the war dates from the recognition of belligerency of the insur- gents either by a third power or by some act of war on the part of the legal government, such as a declaration of a blockade, the exchange of prisoners, or the like. Thus in the case of our civil war in 1861, although Fort Sumter was fired upon on April 12, yet there was no legal war until the proclama- tion of blockade by President , Lincoln on the 17th of April, a block- ade being an act of war which affected neutrals. Section 41. — Maeitimb "Wab. Maritime wars have been less barbarous than those on land, and for several reasons. In the first place, there is an absence of that large class of noncombatants with whom armies come in contact on land; again, in maritime wars neutrals are interested to an important degree, and they have been able to make their influence felt in restraining the excesses of belligerents ; and finally, the seizure of property is regulated by prize courts composed of men of judicial training, and not subject to the excitement surrounding warfare. As to the distinction between enemy's property at sea and land, Richard Henry Dana says : Where private property is taken it is because it is of such a character or so situ- ated as to make its capture a justifiable means of coercing the power with which we are at war. If the hostile power has an Interest in the property which is available to him for the purposes of war, that fact makes it prima facie a subject of capture. The enemy has such an interest in all convertible and mercantile property within his control, or belonging to persons who are living under his con- trol, whether it be on land or at sea, for it is a subject of taxation, contribution, and confiscation. The humanity and policy of modern times have abstained from the taking ot private property not liable to direct use in war when on land. Some of the reasons for this are the infinite varieties of the character of such property — ■ from things almost sacred to those purely merchantable; the difiQculty of discrim- inating among these varieties; the need of much of it to support the life of non- combatant persons and animals; the unlimited range of places and objects which . would be opened to the military, and the moral dangers attending searches and captures in households and among noncombatants. But on the high seas these reasons do not apply. Strictly personal effects are not taken. Cargoes are usually purely merchandise. Merchandise sent to sea is sent voluntarily, embarked by merchants on an enterprise of profit, taking the risks of war; its value is usually capable of compensation in money, and may be protected by insurance; it is in the custody of men trained and paid for the purpose; and the sea upon which it is sent is res omnium, the common field of war as well as of commerce. The pur- pose of maritime commerce is the enriching of the owner by the transit over this common field, and it is the usual object of revenue to the power under whose government the owner resides. The matter may then be summed up thus: Merchandise, whether embarked upon the sea or found on land, in which the hostile power has some interest for purposes of war, is prima facie a subject of capture. Vessels and their cargoes are usually of that character. Of the infinite varieties of property on shore, some 80 INTERNATIONAL LAW. are of this character and some not. There are very serious objections of a moral and economical nature to subjecting all property on land to military seizure. These objections have been thought sufficient to reverse the prima facie right of capture. To merchandise at sea these objections apply with so little force that the prima facie right of capture remains. England, as the great sea power, has constantly refused to discuss any proposition having for its end the abolition of the right of capture of private property at sea. Without favorable action upon her part, it is doubtful whether this war right, which may become so powerful a means of coercion toward an enemy, will be given up generally. Common consent and mutual agreement can only end its exercise. Lord Palmerston said in 1859 : The existence of England depends upon her maritime preponderance, and she could not maintain herself if she were deprived of the right to capture the privat? property of the enemy and to make prisoners of the crews of its merchant ships. A maritime power like England can not renounce any proper means of weakening her enemies, and if she did not take as prisoners the sailors of their merchant ships they would soon be employed in fighting upon the ships of war. Besides, private property is no more respected on land than in maritime wars; for an army, when it invades an enemy's country, takes whatever it has need of. In the case of the Franco-Prussian war of 1870, the French having a superior navy blockaded the German ports and captured 90 mer- chant vessels with their cargoes, the value of which, says Barbon, did not much exceed 6,000,000 francs. During the same period the Ger- man armies in France took, by way of requisition and contributions, property valued at more than 600,000,000 francs, not counting the unavoidable damage caused by the march of the armies. In 1866 Austria and Prussia, on the outbreak of war between them, declared that enemy ships and cargoes should not be captured so long as this indulgence was mutual, and hostilities were carried on between these States and between Austria and Italy without capture of private property at sea. In 1870 Prussia issued a decree exempting French merchant ves- sels from capture without the requirement of reciprocity; but when France followed the established usage of capture of private property Prussia withdrew her decree and announced her intention of also making such captures. The principle of the United States has varied at times from its prac- tice, the principle advocated being in favor of the abolition of the capture of private property, but in the war of the -Revolution and during the war of 1812 as well as in the late Spanish war many cap- tures were made. In the war with Mexico and in the civil war little private property of the enemy was captured, in both of these wars the enemy being practically without a mercantile marine. In 1871 a treaty was drawn up between Italy and the United States providing for the exemption of private property from capture at sea between, those powers. As to the policy of taking private property. Von Moltke wrote: The greatest benefit in the case of war is that it shall be terminated promptly. In view of the end it should be permitted to use all means save those which are positively condemnable. I am by no means in accord with the declaration of St. Petersburg when it declares that the weakening of the military forces of the enemy constitutes the sole legitimate procedure in a war. No, it is necessary to attack the resources of the government of the enemy, his finances, his railways, his pro- visions (stores), and even his prestige. Von Moltke did not believe in the efficiency of military codes or reg- ulations to prevent lawlessness of armies; he claimed to find the best INTERNATIONAL LAW. 81 remedy for this in thorough discipline and an efficient commissary. It is still a question whether the policy of removing the burdens of war from the noncombatant class would tend to make wars less fre- qiient or to lessen their duration ; and upon the whole there is a cer- tain vigorous common sense in the views of Von Moltke. His views were strongly applied in the Franco-Prussian war, and it must be said that the conduct of that war on the part of the Germans, the seizure of the Provinces of Alsace and Lorraine, and the exaction of the enor- mous indemnity of 5,000,000,000 francs caused a shock to those who believed that the character of wars had changed. There was no law- less plundering by an undisciplined soldiery, but never in modern times has the hand of war weighed more heavily upon a beaten nation during the entire period of hostilities. From the present outlook on the continent of Europe it seems prob- able that no sentiments of humanity will stand in the way of striking hard at every resource of the enemy, and instead of exemption of pri- vate property at sea from capture, great preparations are being made for the destruction of the enemy's commerce and food supply. Not only is commerce destroying probable, but also the levying of contri- butions and exactions from rich seaport towns. Section 42. — Privateers; Voluntker Navy. By the declaration of Paris the signatory powers agree that priva- teering is and remains abolished. This declaration has been acceded to by almost all of 'the maritime powers. The declaration is not bind- ing except between those powers who have acceded to it. The United States have taken somewhat varying position toward privateering. After the revolutionary war treaties were made pro- viding for its abolition, especially with Prussia in 1785.. , During the war of 18] 2 privateering was extensively practiced. During the Mex- ican war it was not practiced upon either side. In 1856, when it was proposed to the United States to accede to the Declaration of Paris, the Government declined unless private property at sea was exempted from capture. In the early days of the civil war the United States expressed a willingness to accede to the declaration of Paris under certain condi- tions, which were not accepted by the European powers. In 1863, diiring the same war, a law was passed by Congress providing for the issuing of letters marque and reprisal by the President, but the law was never put into execution. As to the policy of privateering, Woolsey says : The right to employ this kind of extraordinary naval force is unquestioned, nor is it at all against the usage of nations in times past to grant commissions even to privateers owned by aliens. The advantages of empowering privateers are (1) that seamen thrown out of work by war can thus gain a livelihood and be of use to their country; (2) a nation which maintains no great navy is thus enabled to call into activity a temporary force on brief notice and at small cost. On the other hand, the system of priva- teering is attended with very great evils. ( 1 ) The motive is plunder. It is nearly impossible that the leelings of honor and regard for professional reputation should act upon the privateersman's mind. * * * (2) The control over such crews is slight, while they need great control. « * * The officers will not be apt to be men of the same training with the commanders of public ships and can not govern their crews as easily as the masters of commercial vessels can govern theirs. (3) The evils are heightened when privateers are employed in the execution of bellig- erent rights against neutrals, where a high degree of character and forbearance in the commanding officer is of especial importance. 6433 6 82 INTEUNATIONAL LAW. The conditions of modern naval warfare have lessened the desira- bility of privateering from the standpoint both of the privateer and the national government. The prizes worth capturing now would be steamers, and for this reason privateers would necessarily be steamers also. The cost of steamers, of their maintenance, and the difficulty of obtaining coal abroad would render privateering, very expensive and uncertain, especially as the remunerative prizes would be the large, fast, and probably partially armed merchant steamers without convoy. The difficulty of capturing these and of getting them into port after capture would render privateering a very doubtful finan- cial venture, especially as without proper adjudication and sale, which could only be done in a home port, the privateer would have no recompense. Moreover, from a national point of view, seafaring men thrown out of employment in war time would be needed in the naval service and would be readily absorbed by the regular men-of-war. As privateers would at first offer hopes of plunder with short terms of service the absorj)tion of seafaring men by this class of vessels would certainly cause a scarcity of men for ships of war, especially as the crews of the privateers would, when captured, be retained as prisoners of war, and this scarcity of seafaring men would become instead of a tempo- rary evil a permanent one. It would be much wiser as a national policy to take vessels fit for this kind of work into the navy from the merchant service and give their officers, if needed, acting appoint- ments from the national authority. The proclamation of the President of the United States of April 26, 1898, announcing the war with Spain, stated the policy of the United States to be to adhere to the rules of the Declaration of Paris, and not to resort to privateering. Spain, in her decree of April 24 of the same year, while reserving her right to grant letters of marque, announced her intention for the present to confine herself to the organization of a force of auxiliary cruisers under naval control. It is extremely doubtful whether the United States will ever again resort to privateering. In August, 1870, during the Franco-German war, notwithstanding that Prance and Prussia were both - signatories to the Declaration of Paris, Prussia ordered by decree the creation of a volunteer navy. The ships of this navy were to be private property, the officers and crews were to be merchant seamen, furnished by the owners, but under naval discipline and wearing uniforms, the officers provided with temporary commissions, but not forming part of the regular navy in any way, though the vessels were to sail under the flag of the North German navy. The French Government protested against this proposed employment of private vessels as a violation of the Declaration of Paris, and addressed a dispatch to the English Gov- ernment, who referred the matter to the law officers of the Crown, who in turn decided that the difference between the proposed volun- teer navy and privateers was so great that it could not be considered an evasion of the Declaration of Paris. Hall, an English authority, however, says: Unless a volunteer navy were brought into closer connection with the State than seems to have been the case in the Prussian project it would be difficult .d show as a mere question of theory that its establishment did not constitute an evasion of the Declaration of Paris. The incorporation of a part of the nierchant marine of a country in its regular navy is, of course, to be distinguished from such a measure as that above dis- cussed. INTERNATIONAL LAW. 83 As to captures by a private vessel not commissioned in any way by the national government, Halleck says : All agree that defensive hostilities on the high seas, as well as on land, without a commission or public authority, are not criminal acts, but acts fully authorized by the laws of war. Walker, a late English authority, says upon this point : An ordinary uncommissioned merchantman belonging to a belligerent State may, of course, resist capture, and therefore seize in self-defense, but ought not in general to attack. If, nevertheless, an uncommissioned master elect to lay aside his noncombatant character and attempt to make prize, he is, as between himself and the enemy government, a lawful combatant, and there is no excuse for his treatment otherwise than as such. Hall says upon this point : Noncommissioned vessels have a right to resist when summoned to surrender to public ships or privateers of the enemy. The crews, therefore, which make such resistance have belligerent privileges; and it is a natural consequence of the legiti- mateness of their acts that if they succeed in capturing their assailant the capture is a good one for the purpose of changing the ownership of the property taken and of making the enemy prisoners of war. It may be reasonably expected in coming naval wars that steamers of the great mail lines will be armed so as to defend themselves from attack, rather than seek convoy, and the defense could be legitimately carried to the point of a seizure of the attacking vessel, or a recapture if once taken. Without proper commission a private vessel, however, should act only directly or indirectly on the defensive, and not go out of the way to capture enemy vessels. It can not, of course, take any belligerent action toward vefeels of a neutral power. Some great steamer lines are^ liable to incorporation into the navy or transport service in time of war, and have an official connection with the government through subsidies, subventions, or their official and enlisted personnel. Such vessels become public naval or trans- port vessels when so incorporated, and have a legitimate standing. The Russian volunteer fleet and the steamers of the larger British, French, and American lines are examples of this nature. Chapter VII. Effect of War as Between Enemies. Section 43. — Effect of War as to Persons. Combatants and noncombatants. — According to the rules of warfare the citizens of the belligerent States are broadly divided into two general classes, namely, combatants and noncombatants. Of non- combatants but a few words need to be said. As the name implies, they are that portion of the inhabitants not bearing arms, but engaged in peaceful pursuits. In their persons they are by modern usage exempt from hostile attack. They may not be killed or illtreated unless they commit acts which are deemed dangerous or injurious to the cause of the opposing belligerent. They are, however, exposed to all the personal injuries which may result indirectly from military or naval operations, as the firing upon a ship carrying passengers or the bombardment of a town or other acts of war. The noncombatant population of districts that are invaded or are in the occupation of an enemy may also be compelled to perform certain services to an enemy. Combatants are those who take an active part in hostilities, and as a rule are regularly authorized by the government to bear arms against the enemy and enrolled in the organized army or navy of the State. To such persons are accorded, without question, all the rights of war; they are the legal belligerents, and if taken prisoners they may not be sentenced to death, but are entitled to honorable and proper treatment. A class that comes rather between combatants and noncombatants are officers and seamen navigating the merchant vessels of a bellig- erent State. The members of this class are different from ordinary combatants in that they can not properly make aggressive war, and they also differ from ordinary noncombatants in that they can .fight to defend their vessel if attacked, and fight to recover it if captured. Under these circumstances they are combatants and treated as such. If, however, while part of a merchant vessel they attack other mer- chant vessels they can be subjected to all the severities which the rules of war permit against noncombatants on shore who perform hostile acts against an enemy. The question has been raised, and notably since the Franco-German war of 1870, whether certain classes of men who bear arms against the enemy are entitled to be considered as combatants. The German authorities contended in the war referred to that the French corps of franc-tireurs and the national guard (militia) should not be consid- ered as regular soldiers unless they wore a uniform recognizable at gunshot, and some of the German generals published proclamations to the effect that if taken they would be executed. It was also declared that in order to be entitled to be treated as prisoners they 84 INTERNATIONAL LAW. 85 must show that they had been called under the flag by legal author- ity and that their names were on the list of some organized military corps. The foi'm of such a proclamation as actually issued in the depart- ment of the Ardennes December 10, 1870, was as follows: Every individual who does not form a part of the regular army or of the garde mobile, and who maybe found in arms, whether he goes under the name of frano- tireur or any other, whenever he shall be seized in flagrante 'delicto engaged in hostilities against the German troops, will be considered as a traitor and will be hanged or shot without form of trial. The uniform of a f rane-tireur was a blue blouse with red trimmings and a kepi, and their corps was organized according to law. The franc-tireurs were attached to the army corps or divisions, and were under the orders of the corps commanders. The French Government replied that if the franc-tireurs were not treated as regular combatants the corps commanders of the French armies would resort to reprisals toward the German landwehr and landsturm. ^ The Prussian landsturm as instituted to take part in the war of liberation in 1813 was not supplied with uniforms, being, in fact, the ordinary peasantry of the country. The same is true, in the main, of the Spanish and the Portuguese guerrillas who took part in the Peninsular war against the French. The Prussian proclamation against the franc-tireurs was therefore hardly in accordance with the ordinary usages of war, or with Prussia's own practice in her earlier wars with the French. There is no doubt as to the illegality of an attempted performance of the part of an innocent farmer and an active combatant. Tillers of the soil who, with arms in hiding, pick off stragglers and individual soldiers are properly liable to the severest penalty of the laws of war. International law naturally forbids the enrollment by civilized nations in their armies of savages, to whom the laws of war are unknown, or the employment as auxiliaries of such persons as troops who neither know nor respect the rights and usages of civilized peoples. At the congress of Brussels in 1874 the question of combatants was the most important one under discussion. The great military powers of Europe were, for the most part, in favor of limiting the rights of combatants to the members of the regularly organized armies, thus making it illegal even for a people to rise en masse to repel an invader. England and the smaller States generally opposed this view. Prisoners of war. — Certain noncombatants may be taken as prison- ers of war, such as the monarch and members of the hostile reigning family, male or female, the chief of the hostile government, its min- istry and its diplomatic agents, and all persons who are of special use and benefit to the hostile army or its government. Citizens who accompany an army, such as sutlers, newspaper corre- spondents, contractors, etc. , are liable to be captured and held as pris- oners of war. The United States Instructions and the code recommended by the Institut de Droit International include newspa- per correspondents among persons liable to capture and detention as prisoners of war. The latter code says that they may be detained for such a length of time only as is warranted by strict military necessity. Hall says very truly that — Newspaper correspondents in general seem hardly to render sufficiently direct service to justify their detention as a matter of course, and they are quite as often embarrassing to an army which they accompany as to its enemy. 86 INTERNATIONAL LAW. Chaplains, officers of the medical staff, apothecaries, hospital nurses, etc., are not liable to detention as prisoners of war unless the com- mander has specific reason for detaining them. Oflcers and seamen of merchant vessels of the enemy may, according to usage, be detained as prisoners of war upon the ground that they can be immediately employed on ships of war. In 1870 Bismarck denied the right to make masters and seamen of merchant vessels prisoners of war, and he resorted to reprisals and sent Frenchmen of local promi- nence as prisoners to Bremen in numbers equal to that of the masters of merchant vessels who were detained in France. There is no war- rant for such action, and it has been held unjustifiable that such an attempt should be made to prevent an enemy from acting within his undoubted rights by means which are reserved only to punish viola- tions of the laws of war. A new question arose in 1870 as to the character of persons trans- ported across the enemy's lines in balloons. Bismarck intimated that they would be treated as spies notwithstanding their vulnerability and the publicity of their movements, secrecy and disguise being impossible under the circumstances. This has also been held unjus- tifiable. In the proposed manual of the laws of war of the Institut de Droit International, 1880, it is provided that aeronauts charged with observ- ing the operations of an enemy, or with the maintenance of communi- cations between the various parts of an army or theater of military operations, are to be treated as prisoners of war. In the case of citizens of one belligerent State who are within the territory of the other belligerent at the breaking out of war there have been three rules in operation since the sixteenth century. (1) A right to detain such persons as prisoners. This has now become obso- lete, though used by Napoleon against English tourists as late as 1 803. (2) To permit these persons to withdraw within a reasonable period. This is still in force by treaty and otherwise, but has been largely superseded by (.3), which is to permit them to remain xinmolested so long as they conduct themselves peaceably or during good behavior. This last rule is growing in usage and is embodied in manj"- treaties, and will probably become the governing rule. Of course a belligerent will always retain the right to expel such alien enemies as, in his opinion, are dangerous to the State. Ordinarily it would be a great hardship for merchants and others resident in a foreign country (and the number is large at the present day) if at the outbreak of war they were obliged to remove with their goods. In 1870 the French Government gave permission on July 20, the day after the declaration of war, for Germans to remain in France; but at a later date the Government so far rescinded this permission as to expel them from the department of the Seine and to require them either to leave France or to retire to the south of the Loire. This act has been harshly criticised, but it was a legitimate war measure if the French Government thought it a military necessity. By an act of Congress of July 6, 1798, alien enemies are liable "to be apprehended, restrained, secured, and removed. " The President of the United States is authorized to execute the law and to make such regulationsasare necessary for itsenforcement. In cases of complaints against an alien enemy the courts of the United States have jurisdic- tion and are empowered to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, INTERNATIONAL LAW. 87 or to be otherwise restrained until the order which may be made con- cerning his case by the courts be performed. This act, which is still upon the statute books, assumes that aliens may remain if therp is no cause of complaint against them. Hall says: When persons are allowed to remain, either for a specified time after the com- mencement of war or during good behavior, they are exonerated from, the dis- abilities of enemies for such time as they, in fact, stay, and they are placed in the same position as other foreigners, except that they can not carry on a direct trade in their own or other enemy vessels with the enemy country. Section 44. — Conduct of Hostilities. Certain usages and rules of warfare on land and at sea are treated . at more or less length in other chapters and sections. In this section it is proposed to complete the description of the established usage as to the conduct of hostilities, whether in land, naval, or combined operations. Men who take up arms against one another in public war do not, as one of the articles of our instructions for the government of armies states, cease on that account to be human beings, responsible to one another and to God. The laws of war do not recognize in belligerents an unlimited liberty as to the means of injuring the enemy. Belliger- ents are expected to avoid all needless severitj' and all perfidious, unjust, or tyrannical acts. Agreements made bj^ them during the continuance of war are to be scrupulously observed and respected. Religion and morality, the persons of the inhabitants, especially those of women, and the sacredness of domestic relations must be acknowl- edged and protected during hostilities and in hostile countries. AH municipal law of the land upon which the armies stand or of- the countries to which they belong is silent and of no effect between armies in the field; but crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed in a hostile country, are not only punishable as at home, but in all cases in which death is not inflicted the severest punishment should be preferred. Offenders against the laws of war are liable to the punishments prescribed in the criminal law. In all cases of serious importance reprisals, if necessary, shall not exceed the violation of the laws com- mitted by the enemy. They must be expressly authorized by the commander in chief and conform to the rules of humanity and moral- ity. Reprisals are prohibited when the injury complained of has been repaired. Before examining in detail what the laws or rules of war prescribe during hostilities and time of warfare, it may be well to quote from Winthrop the definition and scope of the law of war in its international aspect : By the term "law of war " is intended that branch of international law which prescribes the rights and obligations of belligerents; or, more broadly, those prin- ciples and usages which in time of war define the status and relations not only of enemies, whether or not in arms, but also of persons under military government or martial law, and persons simply resident or being upon the theater of war, and which authorize their trial and punishment when offenders. Unlike military law proper, the law of war in this country is not a formal written code, but consists mainly of general rules derived from international law, supplemented by acts and orders of the military power and a few legislative provisions. In general, it is qtiite independent of the ordinary law. The law of war applies to the Navy as well as to the Army of the 88 INTERNATIONAL LAW. United States, the military establishment of the United States in a legal sense being composed of the Army and Navy. Instruments of war. — With certain exceptions, such as the use of poison, poisoned weapons, of explosive bullets, or of weapons that will cause unnecessary suffering, any instrument of destruction, open or concealed, may legitimately be used against an enemy. Halleck says: The implements of war which may lawfully be used against an enemy are not confined to those which are openly employed to take human life, as swords, lances, firearms, and cannon, but also include secret and concealed means of destruction, as pits, mines, etc. So, also, of new inventions and military machinery of various kinds; we are not only justified in employing them against the enemy, but also, if possible, of concealing from him their use. In the code recommended by the Institut de Droit International, in 1880, it is forbidden to make use of poison in any form whatever, to make treacherous attempts upon the life of an enemy, to attack an enemy by concealing the distinctive signs of an armed force, or to employ arms, projectiles, or materials of any kind calculated to cause needless suffering. Although these prohibitions are not authoritative, they accord with the best sentiment of the present time. Case of the sick and wounded and dead. — Sick and wounded officers and men taken in the field or hospitals are prisoners of war and are entitled to receive the same treatment as members of the captured army. Ambulances and hospitals are neutralized by the Geneva con- vention and should be protected and respected by both belligerents so long as any sick or wounded may be therein. If these ambulances or hospitals are protected by armed troops of the enemy detailed for the purpose, then the neutralization ceases. The rules of the Geneva convention further provide that persons employed in hospitals or ambulances comprising the medical staff, as well as chaplains, shall participate in the benefit of neutrality while so employed and may continue to fulfill their duties or may withdraw and join their forces, being delivered to the outposts of the enemy. In so doing they take with them only their own personal property. Inhabitants of the country who may bring help to the wounded shall be respected and remain free. The care of the wounded in private houses protects those houses and exempts them from contri- butions and from the quartering of troops. The additional articles of the Geneva convention that apply to maritime warfare, though not universally adopted, will most likely be applied and accepted in time of war, and will be found in the appen- dix. It must be borne in mind that the badge of the Red Cross is adopted by the governments agreeing to the Geneva convention, and although these governments sanction the use of the badge by the various Red Cross societies, they do not convey to these societies the sole use of this badge or a right to use it improperly. By these rules it is provided that boats picking up the shipwrecked or wounded during and after an engagement enjoy the character of neutrality as far as possible, but the wrecked and wounded picked up and saved must not serve again during the continuance of the war. The religious, medical, and hospital staff of any captured vessel are declared neutral, and on leaving the ship may remove the articles and surgical instruments that are their private property. Merchant vessels, no matter of what nationality, charged exclusively with the removal of sick and wounded, are protected by neutrality, but the fact noted upon the ship's log book that the vessel has been INTERNATIONAL LAW. 89 * t visited by an enemy's cruiser renders the sick and .wounded incapable of serving again during the war. The cruiser has the right of putting an officer on board to accompany the vessel and verify the good faith of the operation. The cargo of the merchant vessel is also protected, unless it is of a nature liable to confiscation by belligerents. The belligerents retain the right to forbid the neutralized vessels from all communication or from any course which may be prejudicial to secrecy. Special conventions may be entered into by the com- mander in chief in order to neutralize temporarily and specially ves- sels removing the sick and wottnded. "Wounded or sick sailors and soldiers when embarked, to whatever nation they may belong, shall be protected and taken care of by their captors. The distinctive flag to be used with the national flag in order that the neutrality may be observed is a white flag with a red cross. Military hospital ships are to be distinguished by being painted white outside with a green strake. Hospital ships equipped by the Red Cross societies shall, when prop- erly commissioned, be considered neutral by the belligerents. These hospital ships are marked by carrying their national colors and the Red Cross flag, and are further marked by being painted white with a red strake. These ships bear aid and assistance to the wounded and wrecked belligerents without distinction of nationality. During and after the battle they must take care not to interfere with the move- ments of the combatants, and must do their duty at their own risk and peril. The belligerents have the right of controlling and visiting these ships, can refuse their assistance and require them to depart, or can detain them if necessary. Means should be taken, if necessary, to prevent the robbery or muti- lation of the bodies of the dead lying on the fleld; and, when possible, the dead should not be buried until all articles thdt may serve to estab- lish their identity have been secured. Attack and siege of fortified places. — Cutting off the food and water supply of a besieged place in order to hasten its surrender is a legiti- mate means of warfare. Fortified places can be taken by an open assaiTlt or by regular siege. If the assault is made no notice is given, as surprise is essential to its success. In case of war the very fact of a place being fortified is evidence that at any time it is liable to attack, and the noncombatants residing within its limits must be prepared for a contingency of this kind. Halleck says : A siege is a military investment of a place so as to intercept or render dangerous all communications between the occupants and persons outside of the besieging army. * * * The object of a military siege is * * * to reduce the place by capitulation or otherwise into the possession of the besiegers. It is by the direct application of force that this object is sought to be attained, and it is only by for- cible resistance that it can be defeated. Hence, every besieged place is for a time a military garrison; its inhabitants are converted into soldiers by the necessities of self-defense. During the Franco-Prussian war in 22 sieges made by the Germans not a single assault was attempted. It was found to be easier, more eifective, and it was claimed more humane to invest the places, seal all approaches, to prevent the supply of provisions or reenforcements, and then by loug-range siege guns keep up a constant fire beyond the range of the guns of the besieged. This fire was not concentrated upon the fortifications, but was directed upon the town, and caused such ruin and death that the place was forced to surrender through 90 INTEKNATIONAL LAW. famine and excessive suffering. There were cases like that of Peronne, where the town was partially destroyed while the ramparts were nearly intact. There seems to be reason for belief that more lives were saved by this means of attack than by an ordinary siege and assault. Concerning this method of attack, Hall says : The bombardment of a town in the conrse of a siege, to take an example on the other side, when in strict necessity operations need only be directed against the works, and when therefore bombardment really amounts to an attempt to obtain an earlier surrender than would be militarily necessary, through the pressure of misery inflicted on the inhabitants, is an act which, though permissible by custom, is a glaring violation of the principles by which custom professes to be governed. The bombardment of Paris by the Germans was commenced with- out previous notification, and upon a protest being made in January, 1871, by the diplomatic representatives in Paris, Bismarck responded to the effect that — No doubt the siege of a fortress containing nearly 3,000,000 inhabitants creates much hardship, but the responsibility rests with those who made the capital a fortress and a battle ground. People who take up their residence in such a place must be prepared for such hardships. Paris is the most important fortress of Prance and her main forces are concentrated there. Hence there is no reason why the German generals should not fail to attack the city. * * * Even if it were not unwise from a military point of view to allow 50,000 persons to leave the city, we could not grant your demand. We have neither the provisions to feed them nor the means of transportation to remove them with their property. Bluntschli, German writer though he is, acknowledges that it is the usage to notify an intention to bombard a fortified place in order that the noncombatants, especially the women and children, can remove to a place of safety. He qualifies this, however, by saying that when it is necessary to surprise the enemy in order to carry rapidly a posi- tion the neglect to announce a bombardment does not constitute a violation of the laws of war. Defense of fortified places. — Colonel Davis, in his outlines of inter- national law, says, concerning this : The questions of defen.se in the case of a garrisoned fort and a fortified town are by no means the same. Duty may require a commander in the former case to resist to the last; in the latter, considerations of humanity enter into the problem of defense, and great weight must be attached to them when the question of surrender is presented to him for decision. To show how much matters have changed in respect to the duration of defense, it may be of interest to state that during the Franco- German war the French military law prescribed the penalty of death to every commander who gave up his place without having forced the besiegers to pass through the successive stages of a siege and having repulsed at least one assault on the body of the place through a prac- tical breach. General Ulrich, in his defense of Strasburg, perhaps the best defense of the war, could not obey this law. He could not repel or even await an assault, it being physically impossible for his men to remain on the ramparts during the fire kept up by the Ger- mans. As a matter of fact no French ofiicer in command of a fortified place was able to observe this article during the entire war. As there is considerable difference of opinion as to the right of the besieged in case of a temporary suspension of hostilities to revictual the place, or to repair breaches and throw up new works, these mat- ters should always be a subject of special stipulation for the guidance of both the besieger and besieged. The of&cer in command of a besieged place is alone the judge of the INTERNATIONAL LAW. 91 duration of his defense, and it may be continued as long as he may consider that it is to the military or other advantage of his govern- ment. The judgment of the besieger as to the protracted nature of the defense is not to be considered and will not excuse any undue violence upon his part after a surrender. Unfortified toivns and seaports. — Open or undefended towns, if they offer no resistance, are occupied by land forces to prevent diso^cl er and pillage. They are subject, however, to requisition and contributions. The propriety of levying contributions upon defenseless seacoast cities has been questioned. They are, it is feared, too tempting a mark to escape, especially when, as it has been pointed out, the same thing is done inland. In 1882 Admiral Aube, of the French navy, in an article upon the naval war of the future, in the Revue des Deux Mondes, expressed the opinion that armored fleets in possession of the sea will turn their powers of attack and destruction against the coast towns of the enemy, without regard to whether these are fortified or not, or whether they are commercial and military, and will burn them and lay them in ruins or at the very least will hold them mercilessly for ransom. He pointed out that such would be the true policy of France in the event of a war with England. This, at the time, was a startling suggestion; and when Admiral Aube was appointed minister of marine and was allowed to change the shipbuilding policy of France to conform to his views, the British Government asked whether this was the offlcial view of the French cabinet. The French Government disavowed any of&cial adoption of this policy of warfare. The tendency in modern times is growing to exact in money what was formerly destroyed or taken by way of pillage. There is now a greater accumulation of treasure in places and especially in great sea- port cities. Notwithstanding all the arguments against it on the ground of humanity, especially from writers of the nation most likely . to be affected, it is probable that such exactions of contributions will be enforced in maritime war as they have been in recent times in land warfare. Furthermore, it is difficult to see any great moral distinction in the two cases. The conference at Brussels declared against the bombardment of open places, but, as Walker says, "the practice of belligerents has hardly attained to this merciful standard, and it may well be doubted how far such moderate counsels would in a future embittered struggle protect from injury the houses and dockyards of a defenseless seapor c. " Certainly the destruction of such property is less inhuman than that of life. The bombardment of the unfortified city of Valparaiso by the Span- ish fleet in March, 1865, was in consequence of an insult to the Spanish flag and a persistent refusal on the part of the Chilean Government to give any satisfaction. The admiral commanding, who was also intrusted with diplomatic functions, was instructed to make demand for a sakite to the Spanish flag by a fixed date, and to enforce the demand, if necessary, by a bombardment of Valparaiso. The demand was made, accompanied by a notice that one month from its date the Spanish fleet would move into the harbor and, flring a blank charge, would wait an hour before commencing the bombardment, when, should it be refused, the vessels would open fire, directing their guns at the public buildings only. Notice was given that all private prop- erty would be respected as far as possible, and a request made that 92 INTERNATIONAL LAW. all churches and hospitals should be distinguished by flags in order that the fleet might carefully avoid firing at them.* Defense of unfortified places. — At one time it was held to be an offense to defend an open and unfortified -town or resist in a weak place the attack of a vastly superior force. These views may be con- sidered to be obsolete. Earthworks which can be thrown up in a few hours are very efficient defenses, and they can be gradually so strength- ened as to be able to resist heavy artillery. Plevna, for instance, was an open town when Osman Pasha determined to defend it in 1877, but by labor and skill it was rendered so strong that it repulsed three dis- tinct assaults made upon it by the Russians. Deceit; spies. — Halleck says: War makes men public eiiemies, but it leaves in force all duties which are not necessarily suspended by the new position in which men are placed toward each other. Good faith is therefore as essential in war as in peace, foi; without it hostil- ities could not be terminated with any degree of saf etjr, short of the total destruc- tion of one of the contending parties. This being admitted as a general principle, the question arises, How far may we deceive an enemy and what stratagems are allowed in war? Whenever we have expressly or tacitly engaged to speak the truth to an enemy, it would be perfidy in us to deceive his confidence in our sin- cerity. But if the occasion imposes upon us no moral obligation to disclose to him the truth, we are perfectly justifiable in leading him into error either by words or actions. * * * Feints or pretended attacks are frequently resorted to, and men and ships are sometimes so disguised as to deceive the enemy as to their real char- acter, and by this means enter a place or maintain a position advantageous to their plan of attack. But the use of stratagems is limited by the rights of humanity and the established usages of war. . The employment of spies, which is another form of deceit in war, is allowable by the rules of war; but the punishment for being a spy is death upon capture by the enemy. Winthrop defines a spy as — A person who, without authority and secretly, or under a false pretext, con- trives to enter within the lines of an army for the purpose of obtaining material information and communicating it to the enemy, or one who, being by authority within the lines, attempts secretly to accomplish such purpose. The information is commonly such as relates to the numbers or resources of the enemy, the state of his defenses, the position of his forces, military or naval, and the like. An individual found as a spy can not demand a regular trial as a right; he is tried and treated according to the laws in force in the army which captures him. If a spy regains his own lines he can not be treated as a spy if subsequently captured as a belligerent. The use of foreign or encTny's flag or uniform. — The Regulations of the United States Navy state that the use of a foreign flag to deceive an enemy is permissible, but that it must be hauled down before a gun is fired, and under no circumstances is an action to be commenced or a battle fought without the display of the national ensign. On land it is not permitted to use the enemy's flag or uniform for purposes of deceit. If for reasons of necessity the enemy's uniform, acquired by capture, is worn it should have some distinguishing mark sufficiently prominent to attract attention at a distance. Flags of truce. — Communication between belligerents can be estab- lished by fiag of truce, which is a plain white flag. The bearer of a flag of truce on land who with proper authority presents himself to the other belligerent for the purpose of communication is entitled to complete inviolability of person. He may be accompanied by a bugler or drummer, by a color bearer, and if need be by a guide and an inter- preter, all of whom shall be entitled to a similar inviolability of person. * Glass, International Law. INTERNATIONAL LAW. i 93 The commanding officer of the belligerent to whom the flag of truce is sent is not obliged to receive the flag under all circumstances; if he should receive the flag he has the right to take such measures of pre- caution as will prevent any injury being done to his cause by the presence of an enemy within his lines. This may be done by blind- folding the bearer, detaining him at an outpost, or in any other man- ner which may be deemed necessary. If the bearer of a flag of truce abuse his trust he may be detained, and if he should take advantage of his mission to abet a treasonable action he forfeits his character of inviolability. In operations afloat the senior officer alone is authorized to dispatch or to admit communication by flag of truce; a vessel in position to observe such a flag should communicate the fact promptly. The firing of a gun by the senior officer's vessel is generally understood as a warning not to approach nearer. The flag of truce should be met at a suitable distance by a boat or vessel in charge of a commissioned officer, having a white flag plainly displayed from the time of leaving until her return. In dispatching a flag of truce the same precautions should be observed. Firing is not necessarily to cease on the appearance of a flag of truce during an engagement. Should any person be killed under these circumstances no complaint can be made. If, however, it is made clear that the white flag is exhibited as a token of submission, which is not infrequent, flring is to cease. Quarter; retaliation. — It is against the usage of modern war to resolve, in hatred and revenge, to give no quarter. No one in com- mand of a body of troops has the right to declare that it will not give, and therefore will not expect, quarter. Quarter should only be refused in case of some conduct on the part of the enemy in gross violation of the laws of war. A possible exception has been mentioned when, from special cir- cumstances, it is not possible for an armed force to be encumbered with prisoners without danger to itself. This is mentioned in the instructions for the government of the armies of the United States. The opinion of the present day upon this subject is that it is better to liberate the prisoners unless there is reason to believe that they would massacre their captors. In the case of a violation of the laws of war, the offending persons, if within reach, should be punished. The proposed code of the Insti- tute for the laws of war provides that offenders against the laws of war are liable to the punishment specified in the penal or criminal law of the belligerent in whose power they are. Where the offending person or persons can not be reached, and if the enemy refuses or neglects to bring him to trial or punishment, the belligerent has the right of retaliation. It should not be resorted to until an opportunity is afforded the enemy for explanation or redress. If possible, the retaliation should be in. kind, unless the action of the enemy is in gross violation of the dictates of humanity and of civi- lized warfare. Reprisals. — A reprisal consists of the seizing of the property or persons of an enemy as indemnity or security for injury inflicted in violation of the laws of war. The proposed code of the Institute says : Article 85. Reprisals are formally prohibited in all cases in which the injury complained of has been repaired. Article 86. In all cases of serious importance in which reprisals appear to be absolutely necessary they shall not exceed in kind or degree, nor in their mode of 94 INTERNATIONAL LAW. application, the exact violation of the law of war committed by the enemy. They are only to be resorted to with the express authority of the general in chief. They must conform in all cases to the laws of humanity and morality. Exemption of coast fisheries. — The question as to the exemption of the boats and men employed in the coast fisheries of a belligerent State from capture and interference by an enemy is often discussed. It has not been the rule to capture such boats and iishermen, though no exemption has been claimed for deep-sea fisheries except by the inhabitants of Ifantucket during our war of 1812. During the wars of the French Revolution and Empire the danger of the invasion of England was considered so imminent that no means were spared to cripple the French at sea, both with respect to fighting and transporting power. As a consequence the boats and men belong- ing to the French coast fisheries were captured. France protested and continental writers generally claim exemption for coast fisheries in time of war, but such exemption can not be claimed as a rule of inter- national law, and when similar circumstances arise similar action may be anticipated in a maritime war. Submarine telegraph cables. — There is little doubt as to the right of one belligerent to cut, destroy, or interfere with a telegraph cable or terminal station, no matter by whom OM'ned, in the territory, land, or water of the enemy whenever military necessity requires it. The bel- ligerent concerned is naturally the judge of this necessity. The right of indemnity, even to a neutral owner, is questionable under such circumstances. As to the cutting or interruption or censorship of a cable outside the territorial waters of an enemy, there is more question. An interna- tional convention was made at Paris, in 1884, for the protection of telegraphic communication by submarine cables. Article 15 of the convention, however, expressly states that the convention is not to interfere with the rights of belligerents. It is manifestly an injury to the rights of a belligerent to have a cable in active operation which carries military instructions, dispatches, or possibly money to an enemy. Such a cable is readily convertible into an instrument for the carriage of contraband or to the use of an unneutral service, and neu- tral instrumentalities engaged in such work are properly subject to interference or confiscation by belligerents. It would also be an evasion of a blockade to have the cable com- munication continue with a blockaded or besieged port; and as capture of neutral property upon the high seas is legal in blockade, it would seem to follow that capture, temporary possession, or interference upon the high seas with a neutral cable, leading to belligerent territory, would also be legitimate and proper when military necessity so required. When the communication between neutral countries and when commercial or other innocent intercourse is involved, the best method of dealing with the matter seems to be an official and responsi- ble censorship. The Institut de Droit International in a meeting held in 1878, adopted the conclusion or declaration that any submarine telegraphic cable that unites two neutral territories should be held inviolable. This is reasonable and proper. If, however, there is a neutral point or landing place interposed between the termini of a cable belonging to a belligerent, it seems but fair that the neutral should exercise a cen- sorship as to messages. A belligerent in such case should provide for this by laying a military cable, if th^ circumstances should warrant it, independent of neutral territory and of the obligations of a neutral. INTERNATIONAL LAW. 95 Capitulations and cartels. — A capitulation is an agreement entered into by a commanding officer for the surrender of a military or naval force, or for the surrender of a town, fortress, or particular district under his command. SaysHalleck: The power of the general or admiral to enter into an ordinary capitulation, the same as in the case of the flag of truce, is necessarily implied in his office. So of thechief officer of a town, fortrefis, or district of country. * * * But if unusual and extraordinary stipulations are inserted in the capitulation which are not within the ordinary and implied powers of the officer making it, they are not binding either upon the State or upon the troops. Thus, the Sherman-Johnston capitulation of 1865 was disapproved by the General Government because it dealt with political issues. A cartel is generally understood to be an agreement between bellig- erents for the exchange or ransom of prisoners of war. Hall extends the definition to include agreements as to direct intercourse, for treat- ment of prisoners, or generally as to the degree an.d manner in which derogations from the extreme rights of hostility shall be carried out. A cartel can be made between the commanders in chief or by the governments. A cartel ship is a vessel employed in the exchange of prisoners or to carry proposals from one belligerent to another under a flag of truce. She is considered as a neutral vessel, and, so far as her serv- ice is concerned, is under the protection of both belligerents. She can carry neither cargo nor passengers for hire, nor any ammunition or implements of war, except a gun for firing signals. The authority to employ a cartel ship emanates from the State, but it may be issued by a subordinate officer in the execution of a public duty. Prisoners of war — Treatment and exchange. — Prisoners of war are prisoners of the government of the captors and are subject to the laws and regulations in force in its army or navy. They must be treated with humanity, and are entitled to their private property with the exception of arms, ammunition, horses, or large amounts of money. They must give their true names and grades, and they may be con- fined, but only as a measure of security. The government having the prisoners of war is obliged to support them, and it is considered that, unless otherwise agreed, they should be treated, so far as food and clothing are concerned, upon the same basis as their own troops upon a peace footing. They should be treated also with the regard due to their rank. Camp followers, or such persons as members of soldiers' families, sutlers, contractors, newspaper correspondents, and others allowed with the army, but not in the public employment of the belligerent, should, when taken, be treated as prisoners of war, but should be held only so long as may be deemed necessary. If the captor is without the means of subsisting or quartering his prisoners, he should release them on parole. A belligerent should be permitted, says Winthrop, to maintain or assist in the maintenance of his men held as prisoners by the enemy when the latter can not adequately subsist them. In 1865, for example, during the civil war, large quantities of provisions and clothing were sent to Richmond to be distributed to the Federal soldiers held there as prisoners of war. Prisoners should be confined in healthful camps and proper care and attention paid to their health. Any improper, unnecessarily harsh, or cruel treatment of prisoners may be sufficient grounds for retalia- tion on the part of the other belligerent, or the officials or persons committing such offenses maybe held personally and criminally liable. 96 INTERNATIONAL LAW. Capt. Henry Wirz, of the Confederate army, was executeu lor this ofEense after due trial by a military commission, the most authorita- tive condemnation of the treatment being by Confederate surgeons. A prisoner of war attempting to escape may after a summons be fired upon. If recaptured before being able to rejoin his own army, he is subject only to disciplinary penalties or a more rigorous confinement. If he succeeds in escaping and is subsequently made a prisoner, he incurs no penalty for his previous escape. If he has given his parole,' however, he may be deprived of his rights as a prisoner of war. Prisoners can not be compelled to take any part whatsoever in opera- , tions of war. Neither can they be compelled to give information con- cerning their own army or country. They may be employed upon public works other than those of a military nature, provided such labor is not detrimental to health, nor humiliating to their military or naval rank, or, if civilians, to their social or official positions. If allowed to engage in private industry, their pay for such services may be collected by the authorities in charge of them. The sums so received may be used for bettering their condition or may be paid to them on their release, subject to deduction, if deemed expedient, of the expense of their maintenance. Besides food and clothing prisoners of war are entitled to quarters, to medical attendance, and a reasonable allowance of fuel, bedding, and camp equipage. In recent times no labor has been required from prisoners of war except what may be necessary for their sanitary pro- tection, etc. Prisoners of war can be exchanged during hostilities. They may also be released during the continuance of hostilities by ransoms or on parole. An exchange is generally arranged by cartels and is in accordance with strict equality — man for man, rank for rank, disability for disability. By arrangement values expressed in terms of private soldiers can be given to different grades of commissioned and noncommissioned officers. Thus, in the cartel arranged between the United States and the Confederate States in 1862, it was stipulated that a general command- ing or an admiral could be exchanged for 60 privates or seamen, and so on through to the lesser grades, a captain of the army being equiv- alent to 6 privates, a lieutenant to 4, and a noncommissioned officer to 2 privates. It is not obligatory on the part of a belligerent to agree to an exchange of prisoners, nor can a prisoner of war be compelled to give a parole. Ransom of prisoners was common in the seventeenth century and lasted until the second half of the eighteenth. Originally the captor had the right to sell his prisoners as slaves. This right seems to have been modified into a right of demaiiding ransom from the sovereign who had employed them. Terms of ransom were usually settled by treaty at the beginning of the war. Exchange of prisoners is, in fact, a development from this practice of ransom — payment in kind taking the place of money. Some features of the usage in exchanging pris- oners could haMly have come into existence except through the former practice of sale and ransom; notably, the rule that sick and wounded prisoners are of less value in exchange than healthy prisoners. Parole. — Colonel Davis says: A parole is a promise, either verbal or written, made by an individual of the enemy by which, in consideration of certain privileges or advantages, he pledges his honor to pursue, or refrain from pursuing, a particular course of conduct. INTERNATIONAL LAW. 97 Paroles are ordinarily only received from officers, and when necessary are given by officers for the enlisted men of their command. They are accepted from enlisted men only in exceptional cases. Winthrop states that the parole in its simplest form — Is a pledge to the effect that the prisoner will not bear arms against the govern- ment or armies of his captor during the pending war unless sooner duly exchanged. He may in general, in the absepce of specific stipulation to the contrary, legally perform internal service, such as recruiting or drilling recruits, garrisoning posts not on the theater of war, and guarding stores and provisions of war in the interior and paying troops and making purchases on account of the United States. It is preferable that the cartel should indicate specifically what service may or may not be performed by the prisoner UAder parole. In case the government to which the individual belongs refuses to allow or recognize parole, it is the duty of the paroled person to return to captivity. Paroles lose their binding force only upon exchange or at the termination of the war. A breach of parole is a breach of faith and an offense against the laws of war which may be punished with death. Safe conducts and safeguards. — Safe conduct is a pass given to an enemy subject or an enemy vessel by the military or naval commander in chief to pass from one point or place to another. Says Halleck : Safeguards are protections granted by a general or other officer commanding belligerent forces for persons or property within the limits of their commands, and against the operations of their own troops. Sometimes they are delivered to the parties whose person or property are to be protected; at others they are posted upon the property itself, as upon a church, museum, library, public office, or pri- vate dwelling. * * * a guard of men is sometimes detached to enforce the safety of the persons and property thus protected. Such guards are justified in resorting to the severest measures to punish any violations of the safety of their trust. When a safeguard is given in the form of a guard of men, or a detachment, they are considered to be exempt from attack or capture by the enemy. PiUagej foraging. — The code of the Institut de Droit International for wars on land forbids the destruction of public or private property unless such destruction be commanded by urgent military necessity, and also forbids pillage even when places are taken by assault. Requisitions and contributions may be said to have taken the place of piUage in all well-ordered and distjiplined forces. Foraging consists in the collection by military or naval forces, indi- vidually or collectively, of fuel, grain, vegetables, and animals for sub- sistence or other use. This is resorted to when time does not permit regular requisitions. Section 45.— Effect of War as to Property Ri»hts. ' We have seen that the general practice is to permit alien enemies to remain in the country during the war; it is also the practice to exempt their propertjj'from seizure, and if they return to their own State to allow them to take their property with them. Formerly, it was quite different; the individual was seized as a prisoner and his property was confiscated. As late as 1814, in the case of Brown v. The United States, the Supreme Court of the United States held that by the strict law of war the property of an enemy, if found on land within the country at the outbreak of war, might be confiscated, but it was not the practice, and debts due to citizens of the enemy were subject to the same rule. 6433- 7 98 INTERNATIONAL LAW. The Confederate Congress in 1861, by an act, confiscated property of whatever nature, except public stocks and securities, owned by citizens of States loyal to the Union. By a decision of the Confeder- ate attorney-general this sequestration was extended to debts due to all persons who were domiciled in the Northern States, whether they were citizens of the United States or not. This is the only recent instance in which private debts have been so confiscated. After a full examination of the authorities and decisions on this question, Chancellor Kent says: We may, therefore, lay it down as a principle of public law, so far as the same is understood and declared by the highest authorities in this country, that it rests in the discretion of the legislature of the Union, by a special law for that purpose, to confiscate debts contracted by our citizens and due to the enemy; but, as it is asserted by the same authority, this right is contrary to universal practice, and it may, therefore, well be considered as a naked and impolitic right, condemned by the enlightened conscience of modem times. Halleek says, as to English usage in the past : While the English text writers and jurists have contended for the right to seize and sequestrate the property of an alien enemy found in British territory at the declaration of war as a right conceded by the law of nations, they have almost uniformly denied the right to confiscate debts due to such enemy, on the ground that usage and custom have annulled that right. The distinction thus attempted to be drawn between debts and other property is not well founded in reason or authority, but has resulted, apparently, from policy and interest. ' Says Woolsey: With regard to the shares held by a government or its subjects in the public funds of another, all modem authorities agree, we believe, that they ought to be safe and inviolate. To confiscate either principal or interest would be a breach of good faith, would injure the credit of a nation and of its public securities, and wovild provoke retaliation on the property of its private citizens. In respect to property that is immovable, such as lands and houses, belonging to a subject of the enemy and located within the limits of the other belligerent, the general rule of civilized States seems well settled that such property is not to be confiscated. This is founded upon the principle that the State, by permitting these persons — aliens — to purchase and possess such property, comes under an implied pledge to protect them in the possession. Phillimore says in case the income of the estate is sent out of the country to augment the private or public resources of the enemy it may be confiscated during the continuance of the war without any breach of international usage. It is the established rule and usage that property of the subjects of the enemy found upon the high seas or in the ports or territorial waters of the enemy is in war after a certain time subject to capture and confiscation as prize of war. This is modified, so far as the powers who have acceded to the declaration of Paris are concerned, by the rule which it provides for the exemption of the goods of an enemy from capture, if not contraband of war, when covered by the flag of a neutral power. t Section 46. — Effect of War upon Contracts and Treaties. Contracts entered into between enemies, that is, between the citi- zens of two States at war, are legally void absolutely. Ransom con- tracts form a well-known exception to this rule. ' There is, however, a difference, that property may be serviceable to the enemy in carrying on the war; whereas mere debts, the collection of which is legally postponed till the restoration of peace, have not that quality. INTERNATIONAL LAW. 99 Of contracts between such persons, made before the outbreak of war, some are annulled by the war and some are simply suspended duTing the war and revive in full force at its close. In the first class are executorj- contracts, and those especially which would necessitate some intercourse with the enemy, such as partnerships, insurance pol- icies, and contracts for the performance of work, as the building of a ship or house. On the other hand, contracts of debt, as they are called, where there is nothing left to be done except to pay money, are merely suspended, though neither interest nor the statute of lim- itations runs during the war. Analogous to these private contracts are treaties between the bellig- erent States. Treaties which are fully executed, such as cessions of territory, are not affected by the war, but treaties of commerce or treaties granting privileges are abrogated by the war. Section 47. — Trade with the Enemy. The effect of war is generally to put a stop to all trade with the enemy. It is illegal unless especially permitted by the sovereigns. In the general prohibition of trade with the enemy is included all business communication across the hostile lines. Thus, if ?. citizen of one of the belligerent States possesses property within the other State, he can neither appoint an agent after the outbreak of war to care for his property nor send orders to one appointed before the war. A con- sequence of this prohibition is the right to confiscate merchandise which is the object of this traffic, and if the attempt is made afloat the penalty extends to the ship and cargo. It has been well said that a political war and a commercial peace are inconsistent. Dana says: The truth is, the most humane and often the most efficient part of war is that which consists in stopping the commerce and cutting off the material resources of the enemy. If cutting off our commerce with him and his with us cripples and embarrasses him, it must be done. * * * It takes no lives, sheds no blood, imperils no households, has its field on the ocean, which is a common highway, and deals only with persons and property voluntarily embarked in the chances of war for the purposes of gain and with the protection of insurance. But licenses to trade may be granted in certain cases by the sover- eign authority. During the civil war of 1861 Congress authorized the Pi'esident to grant licenses in certain cases ; but the Supreme Court held that a license granted by the collector of New Orleans to bring cotton out of the Confederate lines, although it was approved by General Banks and countersigned by Admiral Farragut, was not a legal license. It must be specially authorized by the President. The license issued by one State or belligerent does not bind the other State. In the year 1811 England granted 8,000 licenses to trade with the enemy, and by order in council of April 15, 1854, during the Crimean war. Great Britain also granted permission to her subjects to trade freely to unblockaded Russian ports in articles, not contraband, car- ried in neutral bottoms. A like policy was also adopted by France and Russia. Says Halleck : A license to trade with a port of the enemy does not serve as a protection for a breach of blockade in case the port is blockaded; nor does it afford any protection for carrying goods contraband of war, enemy's dispatches, or military persons, or for a resistance of the right of visitation and search; in fine, it can cover no act not expressly mentioned in the license or implied as a means necessary for its exe- cution. 100 INTERNATIONAL LAW. Ransom. — According to Halleck: The term ransom is now usually applied to property taken from an enemy in war and surrendered or restored to the owner on the payment of, or agreement to pay, a specified sum of money, which is called ransom money. The agreement is usually made in writing, in duplicate, one copy being retained by the captor, which is generally known as the ransom bill, and the other copy in the possession of the captured vessel con- stitutes its safe conduct. Practicallj'', a ransom is a repurchase of a prize by the original owners, and under it the crew are also released instead of becoming prisoners of war. The captor used to keep an ofl&cer of the prize as a hostage for payment, in addition to the ransom bill. Says Wheaton: If the ransomed vessel is lost by the perils of the sea before her arrival, the obli- gation to pay the sum stipulated for her ransom is not thereby extinguished. * * * Even where it is expressly agreed that the loss of the vessel by these perils shall discharge the captured vessel from the payment of the ransom, this clause is restrained to the case of a total loss on the high seas, and is not extended to ship- wreck or stranding, which might afford the master a temptation fraudulently to cast away his vessel, to save the most valuable part of the cargo and avoid the pay- ment of the ransom. * * * So, if the captor, after having ransomed a vessel belonging to the enemy, is himself taken by the enemy, together with the ransom bill, of which heis the bearer, this ransom bill becomes part of the capture made by the enemy; and the persons of the hostile nation who were debtors of the ran- som are thereby discharged from their obligation. In England ransom has at times been forbidden; in France it is permitted for vessels of war, but restricted as to privateers; Spain allows it after three prizes have been taken by privateers: while Russia, Sweden, Denmark, and the Netherlands forbid it altogether. The United States permit the practice of ransom under all circumstances. Section 48.— Commercial Domicil. With respect to property rights, the character of enemy is not limited to the citizens of an enemy State. Property liable to capture at sea takes its enemy character from the residence of its owner rather than from his nationality. If he has domicil in a belligerent country his property found upon the sea is enemy property, although he be a citizen of anevitralcountryor of the other belligerent State; and, on the other hand, if a citizen of a belligerent State is domiciled in a neutral country his property found on the sea is neutral property. In such a case a man is said to have a commercial domicil in the country where he resides and is engaged in commerce; but a merchant who has a house of trade in a belligerent country, though he may reside in a neutral State, is,, in so far as his property with that house is concerned, a belligerent. The French rule in this, as in many other cases, is different in a very essential respect from that of the United States and Great Britain. It is that wherever a man may have his domicil his national character impresses itself upon his property. This question of national domicil in time of war is wholly connected with property found upon the ?ea, and would have little importance if private property were exempt from capture in maritime war. Time is the principal element in constituting domicile. In most cases it is conclusive evidence. Furthermore, the presumption with regard to domicile is that the party is there animo manendi, and it is for him to explain if he seeks to avoid the consequences of the pre- sumption. The captors are not bound to prove that his place of resi- dence was his actual domicile; but for the redemption of his property he must give such evidence as to his intentions in regard to residence as will disprove the presumption of domicile. It has been established also that the produce of the enemy's soil is • INTERNATIONAL LAW. 101 to be considered as hostile property so long as it belongs to the owner of the soil, whatever may be his national character in other respects, or wherever may be his place of residence. Though generally the property of a house of trade established in an enemy's country is considered liable to capture and condemnation, this rule does not apply to cases, at the outbreak of the war, of persons who have habitually carried on trade in the enemy's country, though nonresident, and who have not had time to withdraw from such trade. If, however, a person commences such a trade connection or continues it during the war, or if the trade should be of such a nature as to constitute a special relationship between the merchant and the bellig- erent State, he can not protect himself by his neutral residence. As an example of the latter may be mentioned the case of an Ameri- can citizen possessing a tobacco monopoly in Spanish territory, who though a nonresident and transacting his business through an agent, was held to have contracted a Spanish mercantile character. The Supreme Court of the United States has held that the share of a partner in a neutral house is jure belli subject to confiscation where his own domicile is in a hostile country. Section 49.— Merchandise in Transit on the Sea. The right to capture the property of the enemy at sea has led to the larger part of the rules of international law connected with maritime cases. Goods shipped during war, or in contemplation of war, are at the rish of the consignee dv/ring transit. — When a war breaks out between two maritime States having large commerce, merchants of both bellig- erents will naturally resort to all possible means to protect their prop- erty frOm capture. The most common method, perhaps, is to make it appear that their goods, while in transit on the sea, belong to neu- trals. In time of peace merchants residing in different States in shipping goods over the ocean may make any contract they choose with respect to the risk during the transit; they may agree that the title may remain in the name of the shipper or in that of the consignee. The ordinary custom of merchants has always been that goods delivered to the master of a ship are held to be delivered to the buyer or consignee. In time of war prize courts will not permit any varia- tion from this custom. Otherwise the dealings between belligerents and neutrals would be so arranged that goods in transit on the sea would always belong to neutrals in order to avoid capture. By the French rule the neatral shipper may assume the risk of goods in transit to an enemy country. This rule, notwithstanding the Declaration of Paris, to which France was a party, is still of some effect. It determines whether goods under an enemy's flag are neu- tral or enemy. Enemy's goods, by the Declaration of Paris, are still liable to capture if under an enemy flag, while neutral goods are not unless they are contraband of war. Merchandise shipped to become the property of the enemy on arrival, if taken in transit is to be condemned as enemy's property, by the rulings of English prize courts. If it had been contracted to become the property of the enemy only upon delivery, the capture is considered as delivery. Transfer in transit and stoppage in transit. — According to the rules of the English and American prize courts, property hostile at the time 102 INTERNATIONAL LAW. ' of shipment can not change its character during transit by a sale to a neutral. Goods belonging to a belligerent, already in transit at the breaking out of the war, or even when war is imminent, are not allowed to be transferred ; that is, sold to a neutral during transit. A transaction of this kind is held to be the same in principle as a transfer in transit during war. Sir William Scott says : The nature of both contracts is identically the same, being equally to protect the property from capture in war, not indeed in either case from capture at the present moment, but from danger of capture when it is likely to occur. The object is the same in both instances, to afford a guaranty against the same crisis; in other words, both are done for the purpose of eluding a belligerent right, either present or expected. Both contracts are framed with the same animo fraudandi and are, in my opinion, justly subject to the same rule. Although the character of property is not permitted to be changed during transit so as to exempt it from capture and confiscation, never- theless, says Halleck : If it be neutral or friendly at the commencement of the voyage, its character may be so effectually altered before its termination as to insure its condemnation. As ' a general rule, no matter what its character at the commencement of the voyage, if its owner is an enemy at the time of the capture, the seizure is lawful and con- fiscation a necessary consequence. In the case of an owner formerly domiciled in a belligerent State who departs with his property for his native country to remain there, there seems to be a just exception to the rule that there can be no change in the hostile character of property in transit by a change in the national character of the owner. Halleck says : Every consignor, not only at common law, but by a rule of the general mercantile law, has in certain cases a control over the shipment which is technically called a right of stoppage in transitu — that is, a right to countermand the bill of lading and repossess himself of the goods at any time after their shipment and before their arrival at their destined port. The only case in which this right of stoppage in transitu can be legally exercised under the lav.?s of war is, in the expectation, confirmed by the event, of the insolvency of the consignee. * * * The effect of this right when duly exercised is to save property from its liability to capture where the consignment is made from a neutral to an enemy, and to incur that liability when the consignment is made from an enemy to a neutral. Recapture, and rescue. — As to recapture Wheaton says: As to the ships and goods captured at sea and afterwards recaptured, rules are adopted somewhat different from those which are applicable to other personal prop- erty. These rules depend upon the nature of the different cases to which they are to be applied. Thus the recapture may be made either from a pirate, from a captor clothed with a lawful commission, but not an enemy, or lastly from an enemy. The provisions as to recapture under the municipal laws of the United States are to be found in section 4652 of the Revised Statutes of the United States. It adopts the rule of restoration to the original owner, with salvage, at any time before condemnation by a competent tribunal. Restitution with salvage, and under varying conditions, is made by Great Britain, the United States, Portugal, Denmark, Sweden, Hol- land, France, and Spain. It may be considered settled by the case of the Emily St. Pierre dur- ing the civil war, and by the case of the brig Experience in 1800, that a neutral government is not required by executive action to restore a private vessel of one of its citizens which has been recaptured before condemnation 'to the government of the captors. INTERNATIONAL LAW. 103 Section 50.— Transfer of Flag from Belligerent to Neutral. The Declaration of Paris, making free ships free goods with the exception of contraband of war, has doubtless had the effect to increase the tendency to transfer belligerent merchant ships to a neutral flag, for the ships could then continue their commerce with impunity. This tendenc}' will jirobably increase in future maritime wars by the build- ing of swift crnisers — commerce destroyers — which take the place of privateers. The English and American prize courts hold in respect to the trans- fer of enemies' ships during war that purchases of them by neutrals are not, in general, illegal; but such purchases are liable to great suspicion and should be subject to the most searching inquiry. Hal- leck lays down the following ruM: The sale of an enemy's vessel to a neutral purchaser, to be valid, must in all cases be absolute and unconditional. The title and interest of the vendor must be com- pletely and absolutely divested. If there is any covenant, condition, agreement, or even tacit understanding by which he retains any portion of his interest, the entire contract is vitiated, and in international law regarded as void. Thus, if the vendee is bound by a condition to restore the vessel at the conclusion of the war, or if the vendor retains a lien on the vessel for a whole or a part of the pur- chase money, the transfer is held to be colorable and void. Even when the sale is ostensibly absolute, if the vessel continues under the control and management of her former owner and in the same trade and navigation in which she was previously employed, these circumstances are deemed conclusive evidence of a trandulent intent to cover under the name of a neutral the property of an enemy, and the con- tract is necessarily adjudged to be invalid. * * * So also if the neutral vendee, although residing himself in a neutral country, continues to employ the vessel con- stantly in the trade of the country to which she belonged. The inference from these circumstances is that the transfer was solely to carry on the trade of the enemy without liability to capture, aud was thus a fraud on belligerent rights. We find that here again the French rule differs somewhat from that of /England and the United States. France, in view of the difficulty of detecting the fraud in such trans- fers of ships, refuses absolutely to recognize their validity, the pre- sumption in all cases being that the transfer is fraudulent. While England and the United States admit proof to the contrary, France does not. This has been the French rule for over two hundred years. During the Crimean war the French rule was applied in two cases, which illustrate the kind of transaction attempted by belligerents. One was the case of a Russian ship transferred to the Tuscan flag by a fictitious sale, with a false date, anterior to the outbreak of the war, and changing the name of the vessel from Orio to Orione. The other was the case of a Russian vessel sold at Elsinore by the •master of the vessel, without the authority of the owners, to a Danish subject after the outbreak of the war was known. In both cases the ships wei'e confiscated. During the same war the English prize court was nearly as strict in enforcing the rule, and in the case of the Christiana, a Russian vessel sold to neutrals, condemned the ship, because the sale was adjudged fictitious. Any doubt is generally ruled against the vessel. This matter may easily become a matter of great consequence, especially to a great maritime country like Great Britain, a country whose supply of food and raw material for manufacture might easily become endangered in war with an active naval power. So large a proportion of the shipping of the world is under the English flag that 104 INTERNATIONAL LAW. there are not enough neutral vessels to suppljj^ the deficiencies caused by the withdrawal of English merchantmen. A transfer of English vessels to neutral flags, either by sale or mortgage, might readily be so colorable as to lead to seizure and judicial inquiry, which M'ould interfere materially with the carrying trade, the freight rates also being affected by the probable increase of insurance rates. The transfer of vessels sailing under the Chinese flag to American ownership and flag in the Franco-Chinese imbroglio in 1884-85 opened an interesting question. By this transfer the vessels became Ameri- can property, but not documented vessels of the United States. They are, as other floating pieces of American property, such as a raft of logs with a flag, etc. , entitled to the jjrotection of jbhe naval service of the United States; but ships in international law are something more than mere property. They are engaged in international trade; they carry passengers and goods, and in time of war may be engaged in carrying contraband of war, or enemy persons or dispatches; and yet in the case here in question they have not a single pajjer required by the rules of international law, except the certified bill of sale as evidence of ownership. Long practice and departmental decisions have probably fixed the right of vessels, foreign built and American owned, to bear the flag under certain restrictions; but how far this will protect them against a strong belligerent is yet to be tested. In the case of transfer of the Chinese vessels to American purchasers, the French at that time declared that a state of war did not exist, though afterwards they were obliged to assume the position of belligerents. Mr. Justice .Nelson said, with reference to vessels of somewhat sim- ilar character, that "they are of no more value as American vessels than the wood and iron out of which they are constructed ; " and Mr. Justice Miller, of the Supreme Court, said in a more recent case that " in a foreign jurisdiction or on the high seas they can claim no rights as American vessels." Chaptee VIII. .Military Occupation; Termination of War; Postliminium. Section 51.— Property op Enemy in His Own Country. When the territory of a country is invaded by a foreign army, the question arises as to property that may be seized by the invader for his own use. Public property. — In regard to the public property of the enemy in his own country, it may be given as a rule that the movable or per- sonal property belonging to the State may be confiscated, such as warlike stores, the treasure of the State, moneys, etc., the plant of the State railways and telegraphs, and the customs duties and other taxes. Works of art, the contents of museums and libraries, and the archives of the State are exempt from this rule, as well as religious, charitable, and educational institutions of a puljlic or governmental character. A notable disregard of this rule was the action of Napoleon I in seizing the famous pictures and statuary of the countries which he conquered. They were restored by the allies in 1815. During the short Turko-Grecian war, in 1897, it is stated that the commander in chief of the Turkish army in Thessaly was directed to transport to Constantinople all antiquities which he found during the occupation. This spoliation was either ignored or condoned by the European powers in the treaty of peace arranged under their super- vision at the close of the war. ' At sea public vessels engaged in explorations and scientific research are exempt from capture and condemnation. Real property, lands and buildings belonging to the State, can not be taken away or sold; but the invader may seize the profits accruing from such real estate, or use the property temporarily for his own purposes. Private property.— In the case of property of private persons, the rule, as we have seen, is that it is not subject to seizure and confisca- tion ; but this rule is subject to the important exception of requisitions and contributions. Military requisition consist in levying upon articles needed for the regular consumption or temporary use of the army or naval force. Such articles may consist of food for men or animals, clothes, coal and other fuel, wagons, horses and mules, railway materials, steam- ers, boats and other means of transportation, naval material, and of skilled and unskilled workmen tor various purposes. In the Franco- German war this was extended to beer for the men and tobacco and wine for the pf&cers. Contributions consist of money payments exacted in addition to taxes from towns or districts, either in line of requisition or by way of fine, and may be demanded only by the commander in chief, by generals commanding detached corps acting independently, or by the 105 106 INTERNATIONAL LAW. superior civil authority established by the belligerent occupying the , territory. Receipts are given, as a rule, in acknowledgment of the quantities or sums received, partly that they may not be exacted a second time from the same persons and also that the inhabitants may recover the amounts paid the enemy from their own government if, after the war, it chooses to reimburse them. This reimbursement, however, is not ordinarily made, and the individuals who have suffered must bear the loss as one of the casualties of the war. In 1871 the French Gov- ernment did appropriate 100,000,000 francs to be distributed among those that had been rendered d estitute and impoverished bj' the German invasion. In some eases generals commanding an invading army have refrained from requisitions on the ground that it was bad policy from a military point of view. They found that they could provide subsistence for their armies much better by paying for the articles needed. Wellington in invading France in 1813, General Seott during the war with Mexico, and the allies in the Crimean war followed this method. But the reasons were partly military or political and not " wholly from motives of humanity toward the people of the invaded territory. During the Franco-German war the Germans upon one occasion, at Nancy, made requisition for 600 workmen to build bridges, and, as they were not forthcoming at the time specified, the following order was issued: "If to-morrow, January 24, at noon, 500 workmen are not present at the railway station, the overseers first and then a cer- tain number of workmen will be seized and shot on the spot." Gen- erally in this war the right of levying requisitions was put in force with more than usual severity. Hall says upon this question : As the contributions and requisitions which are the equivalents of compositions for pillage are generally levied through the authorities who represent the popula- tion, their incidence can be regulated. * * * At the same time, if they are imposed through a considerable space of territory, they touch a larger proportion of the population than is individually reached by most warlike measures, and they therefore not only apply a severe local stress, but tend more than evils felt within a narrower range to indispose the enemy to continue hostilities. There is but little doubt that the use of these exactions on a large scale tends to shorten wars, even though the severity of the weight of the contributions may be postponed until after war is over by an assumption of the obligation by the local authorities. During the civil war in the United States the War Department, by an order dated July 22, 1862, directed that the military commanders within the States of Virginia, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, and Arkansas, in an orderly manner seize and use any property, real or personal, which might be necessary or conveni- ent for their several commands, as supplies or for other military pur- poses, and while such property might be destroyed for military objects none should be destroyed in wantonness or malice. This was fol- lowed by an order from the Confederate Government of August 1, 1862, threatening retaliation. ' Requisitions and contributions should exceed neither the military necessities nor the resources of the country levied upon. An innocent noncombatant who honestly yields obedience to the occupying power ' Glass, International Law. INTERNATIONAL LAW. 107 is entitled to protection against plunder or the levy of irregular con- tributions. tJpon this subject Winthrop declares that — Private property can not properly be impressed or taxes or contributions be assessed, except for public purposes. Private effects or funds can not be taken merely to speculate upon or to Increase the wealth, or capital of the State. It is also to be noted that the right under military government to appropriate the private property of enemies for any purpose is to be regarded as materially modified where, upon a permanent or continued occupation, an increased measure of protection to persons and prop- erty has been guaranteed. So where a commander, in occupying a country or town of the enemy, has formally pledged the government to the holding inviolate of the rights of property of individuals, the seizure pf private property by the military authorities will not be rec- ognized as legal. Section 53. — Character of Jurisdiction of the Invader over Territory Occupied. At the conference of Brussels in 1874 the majority of the delegates adopted a resolution that — A territory is considered as occupied when it is actually placed under the author- ity of the hostile army. The occupation only extends to those territories where this authority is established and can be exercised. In the discussion of this article it was said with reason that occupa- tion of a military nature was similar to a blockade, to be exercised and recognized only when and where it is 'effective. It was urged, and especially by the representatives from the smaller States, that greater power should not be accorded to the invader than actually possessed by him. He should be always in sufficient strength to repress outbreaks at once, and furthermore, if these could not be sup- pressed -and the territory freed itself, it then ceased to be occupied. Hall says : An invader may, therefore, fairly demand to be allowed to retain his rights of punishment within the district indicated until the enemy can offer proofs of suc- cess solid enough to justify his assertion that the occupier is dispoasessed. This requirement might probably be satisfied, and at the same time sufBcient freedom, of action might be secured to the invaded nation, by considering that a territory is occupied as soon as local resistance to the actual presence of an enemy has ceased, and continues to be occupied so long as the enemy's army is on the spot, or so long as it covers it, unless the operations of the national or an allied army or local insurrection have reestablished the public exercise of the legitimate sovereign authority. These definitions do not accord with the past theories and practice of the German authorities and writers. During the Franco-German war in 1870 the German armies, by a system of terrorism, by opera- tions in the nature of flying columns or raids, and by threats and penalties, held nominal occupation over territories much beyond the immediate control of their troops. The tendency of opinion in modern times, with the exception just mentioned, is in favor of requiring the occupation to be actual and not constructive. The rules in force with the armies of the United States during the latter part of the civil war prescribed that a place or district occupied stood under the military authority of the occupying army, whether any proclamation or warning to the inhabitants had been issued or not. The immediate and direct effect of occupation of any portion of the enemy's territory is the suspension of all authority derived from the 108 INTERNATIONAL LAW. enemy's government within the occupied district. The judicial and administrative agents of the former government may be retained in their functions at the will of the commander, in which case they are answerable to the latter for the discharge of their duties, and are usually put under oath to do nothing detrimental to the interests of the invading force. In our jurisprudence the system thiis established by an invading force is called military government. Such a government is peculiar in that it is subject to no constitutional or legal restraints other than those imposed by international law and the usages of war. The for- mer laws of the region, so far as they relate to the exercise of public functions, are of no validity against the invader. On the other hand, as the occupied territory lies without the bounds of the nation to which the occupying army belongs, neither the constitution nor the ordinary laws of that nation can have validity there. The result is that the declared will or instructions of the commander, tempered with the humane sentiments of the times and the established prac- tices of civilized warfare, must be regarded as having the force of law within the occupied territory. According to the rules under which the armies of the United States operate in such a contingency, the military government is expected to be less stringent in places and countries fully occupied than in regions where actual hostilities exist or are expected. It is also provided that civil and criminal law shall continue in operation unless interrupted by order of the military authority. It is now considered by' most modern writers upon the subject that the occupation by an invader being, as it were, only an incident of the hostilities, brings no permanent change in the national character or allegiance of the population of the occupied territory. The rela- tion existing between this population and the invader during his stay is not one of allegiance, but of constrained obedience, and this state of affairs exists only so long as the invader is able to compel such obedi- ence. Says Colonel Davis : If the ordinary laws of the country or any of them are permitted to exist, and if the courts are permitted to administer them, they do so at the pleasure of the commanding general. No guaranties, constitutional or otherwise, are effective against his will, and his consent to their existence or execution may be withdrawn at any time. The occupation is military, not civil, and the invader, in carrying on his government, is controlled by various considerations, among which, from the necessities of the case, those of a military character are likely to prevail. Although the rights acquired by occupation put the invader in tem- porary possession of the sovereignty of the territory, he is not justi- fied, unless he proposes a permanent retention of the country, in making any political or constitutional changes in the form of the civil government. Neither would it be proper, under ordinary circumstances, to change or suspend laws affecting property and private relations or the good order, morality, or religion of the country. Any acts of this kind on the part of the invader become null and void when his occupation ceases. In the manual proposed by the Institut de Droit Interna- tional it is required that female honor, religious beliefs, and forms of worship must be respected. Interference with family life is to be avoided. It has been decided by the Supreme Court of the United States that during the occupation of Castine, Me. , by the British in the war of 1812 it ceased for the time to be a port of the United States, so far as INTERNATIONAL LAW. 109 the revenue laws were concerned. Upon this basis the customs administration of the captured ports of Cuba, Puerto Rico, and the Philippines was conducted in the war with Spain in 1898. As to the ports in Mexico held by the United States during the war with Mexico, the same court at a later date held that these ports, so far as importations into the United States were concerned, were foreign territory. The groimd upon which this decision was based was that, although these ports were in exclusive possession of the United States through its military and naval forces, still they had not been incorporated into the Union as a portion of its territory by any act of the treaty-making or legislative power. It was admitted, however, by the court that so far as the citizens or subjects of foreign States were concerned, these ports were territory of the United States. As to the government of the invading State, Halleck says: Neither the civil nor the criminal jurisdiction of the conquering State is consid- ered in international law as extending over the conquered territory during occu- pation. Although the national jurisdiction of the conquered power is replaced by that of military occupation, it by no means follows that this new jurisdiction is. the same as that of the conquering State. On the contrary, it is usually very dif- erent in its character and always distinct in its origin. Ortolan refers in this connection to the case of Villasseque, a P'rench- man charged with assassination in the Province of Catalonia, Spain, during French military occupation. The French court of appeals decided that this occupation and this administration by French troops and French authorities had not communicated to the inhabitants of Catalonia the title of Frenchmen, nor to their territory the quality of French territory; this communication could result only from an act of union emanating from the public authority, which never existed. The same view was held by the Attorney-General of the United States with respect to crimes committed in Mexico during the military occupation of that country by the United States. Military occupation being obtained by force, and obedience to its authority being an act of constraint, the obligation to obey ceases when this constraint can be thrown off. The right of armed resistance to the authority of the invader is correlative to the right of the invader to govern the occupied territory by force of arms. Such resistance or revolt is made at the risk of those who take up arms, and the penalties in case of failure are generally severe. The right, therefore, is not a legal one. It is somewhat analogous to the right of rebellion against an arbitrary and oppressive government, a right of appeal to' force against force, with the risks attending the exercise of the right. Hall says, in discussing this phase of occupation : The invader succeeds in a military operation in order to reap the fruits of which he exercises control within the area affected; but the right to do this can no more imply a correlative duty of obedience than the right to attack and destroy an enemy obliges the latter to acquiesce in his own destruction. The legal and moral rela- tion, therefore, of an enemy to the government and people of an occupied terri- tory are not changed by the fact of occupation. He has gained certain rights, but side by side with these the rights of the legitimate sovereign remain intact. The latter may forbid his ofiacials to serve the invader, he may order his subjects to refuse obedience, or he may excite insurrections. It has been stated above that such insurgents usually meet with severe penalties. In the instructions for the armies of the United States of 1863 they are called war rebels, and are defined as persons ^within an occupied territory who rise in arms against the occupying army or against the authorities established by the same. The penalty 110 INTERNATIONAL LAW. given is death, whether the offenders be captured singly or in bands, and whether their action be incited by their own government or not. It can not be said that present opinion sanctions the severity of the penalty thus adjudged by these instructions. The paragraph in the code recommended by the Institut de Droit International in 1880, based upon that adopted by the Brussels conference, reads as follows: The population of the invaded district can not be compelled to swear allegiance to the hostile power; but individuals who commit acts of hostility against the occupying authority are punishable. This, thoiigh indefinite, is less severe than the article contained in our instructions of 1863. A war traitor is defined by our instructions as a person in a district under martial law who gives information to the enemy. Such an offender is made liable to the punishment of death if he betrays any information concerning the plans, safety, condition, or operations of the troops holding the district. The offense is too similar to that of a spy to cause any serious objection to the penalty mentioned. So, too, the extreme penalty, as a matter of self-preservation, may be said still to exist in the case of persons who serve as guides to any force intended to operate against the occupying army and who inten- tionally mislead the officers of that army when serving them as guides, or who destroy telegraphs, roads, canals, or bridges used by them, or set fire to the barracks or quarters of the soldiers. It is not necessary that the extreme penalty be carried out in every case, though the right to award it should be retained. Naturally the invader has the right of preventing his enemy from obtaining help from the resources of the occupied territory. This may require a commercial blockade along the boundaries of the occu- pied area and measures to prevent the inhabitants from joining the armies of their legitimate government. The costs of administration of the country are defrayed out of the produce of the regular taxes, custom dues, etc., which the military government is authorized to prescribe. These costs are considered to have the first lien upon the revenue raised in the country. In the case of Cross v. Harrison the Supreme Court of the United States rec- ognized the authority of the President of the United States, as com- mander in chief, during the Mexican war to impose at San Francisco, in 1847, through the military commander, duties on imports and ton- nage as military contributions for the support of the Government and of the Army. It is not proper to compel the inhabitants to serve in the army of the invader against their own country or, as a rule, to require them to construct or assist in the construction of works of attack or defense against their own government. Emergencies, however, may arise when the inhabitants may be properly impressed for such purposes, but this does not extend to a compulsory bearing of arms against their own country. In the Franco-Prussian war the French peasants were not infrequently compelled to work on the roads and, as mentioned before, on railways. They were also compelled to' serve as drivers when their own carts were called out by requisition. This subject may well be closed by an extract of the opinion of the Supreme Court of the United States as to the scope of military gov- ernment. In its words the governing authority — IS May do anything necessary to strengthen itself and weaken the enemy. There no limit to the powers that may be exerted in such cases, save those which are" INTERNATIONAL LAW. Ill found in the laws and usages of war. * * * In such, cases the laws of war take the place of the Constitution and laws of the United States as applied in times of peace. Section 53.— Armistice and Truce. The expressions armistice, truce, and suspension of hostilities or arms are used indiscriminately for various forms and periods of ces- sations of hostilities. It seems proper, however, to adopt the following definition of Hal- lect, who saj's : If the cessation is only for a very short period, or at a particular place, or for a temporary purpose such as for a parley, or for a conference, or removing the wounded and burying the dead after a battle, it is called a suspension of arms. This agreiement can be made by the oiflcers immediately in command of the opposing forces, or even by commanding offtcers of detachments, but the compact extends only to the forces under the command of the contracting parties. Winthrop defines an armistice to be — An agreement, general or local— i. e., applicable to the whole army, or only to a particular body of troops or district— for the suspension of military operations in war. Its duration is usually fixed, and official notice of its period and other terms is properly given without delay to all those whom it may concern. During its pendency neither party, in the absence of a special condition authorizing it, may engage in any military work, operation, or movement, at least upon the immediate theater of war, or, under its cover, execute a retreat. If violated by one of the parties, the other is entitled to terminate it, and its violation by private individ- uals subjects them to punishment under the laws of war and to a liability to indemnify an aggrieved party for losses sustained. The offense of violation of an armistice may consist in an act in contravention of the terms of the agreement, or in an act wholly incon- sistent with the status of suspension. In the Mexican war (1847) a violation of the laws of war was, as claimed by General Scott, com- mitted by Santa Anna in his strengthening the defenses of the City of Mexico during an armistice, and in disregard of its expressed conditions. A general truce, says Halleck — Applies to the general operations of the war, and, whether it be for a longer or shorter period of time, it extends to all the forces of the belligerent States and restrains the state of war from producing its proper effects, leaving ibhe contend- ing parties and the questions between them in the same situation in which it found them. * * * Such a general suspension of hostilities can only be made by the sovereignty of the State, either directly or by authority specially delegated. Such authority not being essential to enable a general or commander to fulfill his official duties, is never implied, and in such a case the enemy is bound to see that the agent is especially authorized to bind his principal. A truce binds the contracting parties from the time of its conclusion, unless other- wise especially provided, but it does not bind the individuals of the nation so as to make them personally responsible for a breach of it until they have had actual or constructive notice. If, therefore, individuals, without a knowledge of the suspension of hostilities, kill an enemy or destroy his property they do not by such acts commit a crime, nor are they bound to make pecuniary compensation; but if prisoners are taken or prizes captured the sovereign is under obligations to immediately release the former and to restore the latter. A general truce is often preliminary to negotiations for peace. Such a general truce was concluded January 28, 1871, between the French and German authorities, and with some special exceptions covered the military operations between the German and French armies, who were obliged to retain their respective positions. 112 INTERNATIONAL LAW. This general truce or armistice applied equally to tlie naval forces of the two countries, the meridian of Dunkirk being adopted as the line of demarcation ; the French naval force being obliged to remain to the west of this line, while any German vessels of war to the west of this line were obliged to return to the eastward as soon as they received notice. All captures made after the conclusion and before the notification of this general truce were to be restored to the original owners, as well as all prisonei's made during the interval just men- tioned upon either side. This truce, made for twenty-one days, was prolonged until the 12th of March, and was preliminary to the con- clusion of peace. During a general truce, though hostilities cease, each party may in its own jurisdiction do with its armed forces whatever it could do in time of peace. Fortifications can be built or put in order, vessels built and fitted out, troops raised and trained, and warlike stores of all kinds manufactured and collected. Troops can be moved about from one part of the country to another, with the exception of the actual area of hostilities, and ships can be sent abroad and brought home. In an armistice or special truce the two belligerents should refrain from all military operations directly or indirectly of a hostile nature which could only have been carried on under fire. Any act which could have been done without regard to the enemy during hostilities may continue to be done during an armistice. As to the provisioning of a besieged place, as previously mentioned, this should be arranged for by an agreement between the two parties. In a general way, except as indicated above, matters should be so car- ried on during an armistice as to find both belligerents in precisely the same position in which they were when it began. Nelson's action at Copenhagen during the armistice, and especially during the sus- pension of hostilities preparatory to the agreement as to the armistice, could not be received as a safe precedent at the present day. Unless otherwise arranged it is, as a rule, considered that the prohi.- bition of general intercourse, both commercial and personal, which exists during the war should remain in force during an armistice. Section 54. — Termination of Wab. The great object of war is a satisfactory peace. There are three general ways by which a war may be terminated and peace secured. First, by a cessation of hostilities and the subsequent recognition or reestablishment of peaceful relations between the belligerents. Second, by a complete and unconditional submission on the part of one of the belligerents, which may be followed by an absorption of part or the whole of its territory. Third, by the completion of a formal treaty of peace. The termination of war by the first way is rare. The war between Sweden and Poland ceased in this way in 1716, and the war between Spain and its American colonies ended in somewhat the same way. In this latter case hostilities had ceased by the year 1825, and it was not until 1840 that intercourse with them had generally begun on the part of Spain. The independence of Venezuela was not recognized until 1850. Later instances are the cases of the war between Chile and Spain, which actually was of short duration, but which had a nominal existence of fifteen years, and the war between France and Mexico, which may be said to have ended in 1867, though the diplo- matic relations between the two countries were not reestablished until 1881. INTERNATIONAL LAW. ■ ' 113 The disadvantages of this state of affairs, both to belligei-ents and neutrals, are evident. As the war fades away it is difftcult to define its actual termination and the rights and obligations of everybody concerned are in doubt and uncertainty, while the issues which led to the war remain unsettled and may lead in the future to fresh hostilities. As to the unconditional submission of one belligerent to anotlier, with its consequent extinction or partition, there are many cases in both ancient and modern history. The wars of the French Revolu- tion and Empire, and the later wars in which Poland and some of the German principalities were absorbed by other States, give examples of this sort. Geffcken says that, in order to constitute the proper title, the inten- tion and the fact of domination should coincide. The intention is made known by a declaration of incorporation ; the fact is shown by the complete inability on the part of the subjectied State to oust the power of the other. Phillimore says as to this way of terminating war: The most unconditional submiasipn would be holden, according to the principle of international law, to imply a retention of the common rights of humanity and between Christian States of Christian humanity. Any infringement of these rights would be beyond the moral competence of the conqueror. The third method mentioned of terminating war is by a formal treaty of peace. The importance of a treaty of this kind requires an appli- cation of all the rules and customs relative to treaties in general, and nothing should be neglected to add weight and dignity to such an agreement. A treaty of peace has been especially defined as an act by which the belligerent governments, taking into consideration the state of their forces, and the results of the war, determine their respective preten- sions and convert them into rights and obligations.* Such treaties terminating great wars mark epochs in the world's history. Treaties of peace are valid whether made with the authority which declared the war or with a de facto or established government succeed- ing it. They are obligatory even if made under the stress of military coercion, unless personal violence has been exercised upon the ruler or his representatives. A treaty of peace made with a ruler is not binding upon a nation when he is a prisoner or captive. A formal treaty of peace is often preceded by a conference which arranges the preliminaries of peace. As these preliminaries, which are afterwards developed into a regular treaty, contain the essential conditions upon which peace is established, they should be faithfully adhered to in the final treaty. The preliminaries of Villefranca led to the treaty of Zurich in 1859, and the preliminaries of Versailles led to the treaty of Frankfort in 1871. The protocol of August 12, 1898, provided for the necessary prelimi- naries of peace between the United States and Spain. After it had been duly signed a proclamation was issued by the President of the United States, giving notice, in accordance therewith, of the general suspension of hostilities between the two countries. The Constitution of the United States, in vesting in the President, by and with the advice and consent of the Senate, the authority to make treaties, constitutes him, with that body, the peace-making *Guelle. p. 314. fi433 8 114 " INTERNATIONAL LAW. power of tlie Bepublic so far as foreign nations are concerned. Under the circumstances of his position he generally takes the initiative, though Congress can compel him to act by refusing the means of carrjdng on war. Says Wheaton: A treaty of peace binds the contracting parties from the time of its signature. Hostilities are to cease between them from that time, unless some other period be provided in the treaty itself. But the treaty binds the subjects of the belligerent nations only from the tinie it is notified to them. Any intermediate acts of hos- tility committed by them before it is known can not be punished as criminal acts, though it is the duty of the State to make restitution of the property seized sub- sequently to the conclusion of the treaty; and in order to avoid disputes respecting the consequences of such acts it is usual to provide in the treaty itself the periods at which hostilities are to cease in diflEerent places. * * * When a place or a country is exempted from hostilities by articles of peace it is the duty of the State to give its subjects timely notice of the fact, and it is bound in justice to indemnify its ofittcers and subjects who act in ignorance of the fact. In such a case it is the actual wrongdoer who is made responsible to the injured party and not the supe- rior commandiBg oflBcer'of the fleet, unless he be on the spot and actually partici- pating in the transaction. Nor will damages be decreed by the prize court, even against the actual wrongdoer, after a lapse of a great length of time. In a civil war which results in the suppression of a rebellion the termination is fixed by some public act of the political department of the Government. In the case of our civil war the President's procla- mation declaring the war had closed marked its determination. As the proclamations included different States at different times it was ruled by the Supreme Court of the United States that the war did not close at the same time in all the States. As soon as peace is established all acts should be stopped which belong only to times of war. The general effect is, as Hall says — To replace the belligerent countries in their normal relation to each other. The state of peace is set up, and they enter at once into all the rights and are bound by all the duties which are implied in that relation. It necessarily follows that, as soon as peace is concluded, all acts must cease which are permitted only in time of war. Thus, if an army is in occupation of hostile territory when peace is made, not only can it levy no more contributions or requisitions during such times as may elapse before it evacuates the country, but it can not demand arrears of those of which the payment has been already ordered. It is obviously not an exception to this rule that an enemy may be. authorized by the treaty of peace itself to do certain acts which, apart from agreement, would be acts of war; such as to remain in occupation of territory until specific stipulations have been fulfilled, or to levy contributions and requisitions if the subsistence of the troops in occupation is not provided for by the government of the occupied district. A State may, of course, always contract itself out of its common-law rights. It can also hardly be said to be an exception that although prisoners of war acquire a right to their freedom by the simple fact of the^conclnsion of peace, it is not necessary that their actual liberation shall instantaneously take place; their return to their own country may be subor- dinated to such rules, and they may be so far kept under military surveillance, as may be dictated by reasonable precaution against misconduct or even by reason- able regard for the convenience of the State by which they have been captured. As to the larger questions settled, "Wheaton says : The efEect of a treaty of peace is to put an end to the war and to abolish the sub- ject of it. It is an agreement to waive all discussion concerning the respective rights and claims of the parties, and to bury in oblivion the original causes of the war. It forbids the revival of the same war by resuming hostilities for the origi- nal cause which first kindled it or for whatever may have occurred in the course of it. But the reciprocal stipulations of perpetual peace and amnesty between parties does not imply that they are never again to make war against each other for any cause whatever. The peace relates to the war which it terminates, and it is perpetual in the sense that the war can not be revived for the same cause. This will not, however, preclude the right to claim and resist if the grievances which INTERNATIONAL LAW. 115 originally kindled the war be repeated, for that would furnish a new injury and a new cause of war equally just with the former. ■ , If an abstract right be in question between the parties, on which the treaty of peace is silent, it follows that all previous complaints and injury arising under such claim are thrown into oblivion by the amnesty necessarily implied if not expressed, but the claim itself is not thereby settled either one way or the other. In the absence of express renunciation or recognition it remains open for future discussion. And even a specific arrangement of the matter in dispute, if it be special and limited, has reference only to that mode of asserting the claim, and does not preclude the party from any subsequent pretensions to the same thing on other grounds. Hence the utility in practice of requiring a general renunciation of all pretensions to the thing in controver.sy, which has the effect of precluding forever the assertion of the claim in any mode. A naval or military commander is not obliged to accept any informa- tion as to peace which is not duly authenticated by his own govern- ment. The consequences of suspending hostilities upon false news may be very serious. The restoration of peace carries with it the revival of certain private as well as public rights and obligations. Performance of acts rendered impossible by the war can not, however, be claimed. A man can not be required, for instance, to sell a house or live stock destroyed by war, and a period named for the fulfillment of obligations does not include the time of war. All hostile acts connected with the war committed by individuals are protected after the conclusion of peace from all civil or criminal process. This, however, does not extend to suits brought, or ransom bills, or debts contracted by prisoners of war, or to eases of ordinary crimes committed by prisoners of war or by soldiers. Acts of war done after the conclusion of peace or after the receipt of the official notice of the termination of hostilities are null and void, and they must be undone or compensated. Territory which has been captured must be given up, ships taken must be restored, damage from bombardment or loss of market compensated. In regard to maritime prizes at the termination of war, Calvo con- siders that ships and cargoes condemned by prize courts before the peace should not be returned, nor give rise to claims of indemnity; but those not condemned at the conclusion of the war should be returnefl, or their value paid. A stipulation tq that effect is found in the treaty of Frankfort, which closed the Franco-German war in 1871. Section 55. — Postliminium; uti Possidetis; Conquest and Cession. The jus postliminii in international law is derived from the fiction of similar title in the Roman law by which persons and, to a less extent, things captured by an enemy were restored to their original legal status when again coming under the power of the nation to which they formerly belonged. The right of postliminium, so far as international law is concerned, can be said to deal no longer with the restoration of persons, but refers now to the restoration of things, and less to movable things than to real property and territory. This right is incident to a state of war and belongs exclusively to war. Its tendency is to mitigate the evils of war, as the rule of post- liminium requires that property captured by the enemy and recaptured by the fellow-subjects or friends of the original owner does not become the property of the recaptor, but is to be restored upon certain condi- tions to the original owner. Says Phillimore : With respect to immovable property captured in war, the established doctrine of international law may now be said to be that the acquisition of it is not holden 116 INTERNATIONAL LAW. to be completed before (1) either the territory in which it is situated has by sub- mission, and consequent extinction of its national personality, become incoi'po- rated in the possession of the concLueror; or (2), what is a much safer title to the property so acquired, before a treaty of peace has recognized and ratified the possession of the conqueror. Says Halleck : Towns, provinces, and territories which are retaken from the conqueror during the war, or which are restored to their former sovereign by the treaty of peace, are entitled to the right of postliminiixm, and the original sovereign owner on recover- ing is bound to restore them to their former state. In other words, he acquires no new rights over them either by the act of recapture or restoration. * * * But if the conquered provinces and places are confirmed to the capturer by the treaty of peace, or otherwise, they can claim no right of postliminium. * * * A sub- sequent restoration of such territory to its former sovereign is regarded in law as a retrocession and carries with it no rights of postliminium. * * « But if the subjugated State is delivered by the assistance of another the question of postliminium may arise between the restored State and its deliverer. There are two cases to be considered: First, where the deliverance is effected by an ally, and second, where it Is effected by a friendly power unallied. In either case the State so delivered is entitled to the right of postliminium. If the deliverance be effected bjr an ally the duty of restoration is strict and precise, for an ally can claim no right of war against a co-ally. If the deliverance be effected by a State unallied, but not hostile, the reestablishment of the rescued nation in its former rights is certainly the moral duty of the deliverer. There are certain acts done by the invader that must remain good notwithstanding the right of postliminium. Judicial, administrative, and municipal acts, not of a political or military nature, remain good, or otherwise the whole social life of the community would be disorgan- ized. The payment of taxes to the de facto government must be recog- nized, as well as sentences passed upon ordinary criminals; but any punishment for acts directed against the security or control of the invader becomes null and void. While innocent acts done by the invader remain, and the legitimate sovereign can not take steps that are retroactive, all administrative acts of the invader concerning the resources of the State become inoperative from the time of the restora- tion of the legitimate government. Hall says : When an invader exceeds his legal powers, when for example he alienates the domain of the State or the landed property of the sovereign, his acts are null as against the legitimate government. Such acts are usually done by an invader who intends to effect a conquest and supposes himself to have succeeded. Whether, therefore, they are valid or invalid in a given instance depends solely upon the strength of the evidence for and against his success. The acts of the invader that have a political aim, or that change the constitution of the State, cease to be of effect upon the restoration of the legitimate government. It is no more than just and equitable, however, if the people of a country relieve themselves of the rule of the invader without the assistance of the former government or its allies, that this govern- ment should not recover its rights except by the consent of the people. As Bluntschli says, the expulsion of the enemies by the people them- selves demonstrates the strength of the nation and the weakness of the government. Conquest, as distinguished from military occupation, may be defined as that status which a territory taken from an enemy attains when it passes definitely into the hands of the conqueror. The title, by conquest, of territory may be completed in several ways: By treaty of peace or cession, by subjugation and decree of incorporation and the consent of the inhabitants, or by the inability •INTERNATIONAL LAW. 117 of the former government to regain control after a sufficiently long period of time lias elapsed. Says Halleek : In whatever way the conquest is completed, the institutions of the conquering power usually require some detinitive act in order to annex or incorporate the con- quered territory so as to complete the conquest and perfect the title. In such cases no alienation to a third party can be made complete till the conquest itself is per- fected by such definitive act. Thus the President of the United States, when war is duly declared, may conquer and take possession of foreign territory, but the joint action of the President and the Senate is required to complete it by treaty, and Congress alone can annex it or incorporate it into the Union. Without such act of treaty confirmation or of lawful annexation or incorporation the title to any conquest made by the United States would still be considered in international law as incomplete. By the principle of uti possidetis which, unless otherwise stipu- lated, is inherent with all ti'eaties of peace, all property captured dur- ing the war is conceded to the possessor. Hence, unless otherwise arranged, all conquered territory remains with the conqueror, and the establishment of peace gives a title so far as other countries are concerned. Hall mentions that the effects of a conquest are to legalize acts done in excess of the rights of a military occupant between the time of the declaration to conquer and its completion, and also to invest the con- quering State with all the rights of property and sovereignty and, of course, the corresponding obligations. It has been, however, usual, as he states, in modern times, to give liberty to inhabitants of a ceded territory to keep their original nation- ality by withdrawing from the ceded district. As a rule this choice is with the condition that they shall withdraw within a certain period. In the treaty providing for the cession of Alsace and Lorraine those retaining French nationality, though compelled to emigrate, were allowed to retain their landed property in the ceded territory. It seems well established that, on the conquest or cession of a con- quered territory, the laws of the country acquired, especially the municipal laws and usages, remain in force until they are altered by the conqueror or so far as they are not changed by the political insti- tutions of the new sovereignty. This applies to peaceful acquisition as well as conquest, and we have an example in our own history in the retention of the civil law by the State of Louisiana. The conqueror upon the completion of his conquest acquires all th& rights of the original State, such as titles to real estate, movables, and such incorporeal property as debts. PART III. RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS. Chapter IX. Rights and Duties of Neutrals. Section 56. — Neutrality; Notification at Outbreak op War. Discussing the general attitude of neutrality, Wheaton says: The right of every independent State to remain at peace whilst other States are engaged in war is an incontestable attribute of sovereignty. It is, however, obvi- ously impossible that nentral nations should be wholly unaffected by the existence of war between those communities with whom they continue to maintain their accustomed relations of friendship and commerce. The rights of neutrality are connected with coiTespondent duties. Among these duties is that of impartiality between the contending parties. The neutral is the common friend of both parties and consequently not at liberty to favor one party to the detriment of the other. State neutrality may be then defined as the position occupied by those countries which, in time of war, do not take part therein, but con- tinue friendly relations and proper intercourse with the belligerents. There is also a neutrality by treaty or convention, which is required by a special compact or convention from permanently neutralized States, such as Switzerland and Belgium. As a result of experience, the rules of international law have assigned to the condition of neutrality certain rights and obligations which exist only with a state of war. Limitations, for instance, are placed upon the use of neutral ports by belligerent cruisers; some supplies are denied to them while others are given in a sparing man- ner. The neutral government, on one hand, enforces respect for the neutrality of its waters and territory, while, on the other hand, cer- tain trade of citizens or subjects becomes liable to confiscation from the belligerent who suffers by its continuance. Every restriction, however, upon the rights of a neutral or belligerent must have a clear and undoubted rule and reason. The burden of proof lies upon the restraining government. In discussing the progress of the law of neutrality, Thomas J. Law- rence, in a recent work, says: The law of neutrality is a comparatively modern growth, in so far as it deals with the mutual rights and duties of belligerents and neutral States. It has arisen during the last three centuries from a recognition, dim at first, but growing clearer as time went on, of the two principles of absolute impartiality on the part of bel- ligerents. But in so far as it deals with the right of belligerent States to put restraint on the commerce of neutral individuals it is at least as old as the mari- time codes of the middle ages, and in some of its provisions traces can be found of 118 INTERNATIONAL LAW. 119 the sea laws of the Greeks and Bomans. Opposing self-interest are the operative forces which have determined the character of this part of the law of neutrality. At first the powers at war were able to impose hard conditions upon peaceful mer- chants. It was a favor for them to be allowed to trade at all, and they were not permitted to do anything that would impede the operations of the belligerents. Then, as commerce became stronger, concession after concession was won for neutral traders, and neutral States made common cause to protect their subjects from molestations they deemed unwarrantable. It has been generally conceded that the permanent and definite improvement in the rights of neutrals was due more to the policy and advocacy of the United States from 1793 onward than to any other one cause. When war breaks out between two States, there is no obligation on the part of other States to issue a proclamation of neutrality; but since the beginning of the nineteenth century it has become customary to do so when a State has commercial interests which may be affected, or in case its ports are likely to be entered by belligerent cruisers. This practice has several advantages, at least two of them being of considerable importance. In the first place, it calls the attention of its subjects or citizens to the neutrality or foreign enlistment act; and, secondly, in recent years it proclaims the policy of the neutral gov- ernment toward the belligerents, particularly as to entry and use of its ports and waters by belligerent cruisers. Good examples of proclamations of this kind are found in those issued by President Grant at the outbreak of the Franco-German war; the first dated August 22, 1870, and the second October 8 of the same year. The latter treated of the entry and use of ports of the United States, and laid down strict rules, which had become necessary from the previous experience of the United States both as a belligerent and as a neutral State. These rules will probably be promulgated in similar cases in future, as they seem to embody the settled policy of the United States. At the outbreak of the war with Spain (1808) practically all of the civilized nations of the world, as well as China, Japan, and Korea, issued proclamations or declarations of neutrality. This included also, in many cases, declarations from their various colonies and dependencies. These declarations varied greatly in form and sub- stance, from one of generalities, like France and Belgium, to state- ments in much detail, as the case of Great Britain and Brazil. Section 57.— Belligerent Acts Not Permissible in Neutral Territory. The rights of neutrals can be placed under two general heads: (1) That of inviolability of territory. No hostile act should take place within the territory of a neutral, and all of its sovereign rights with regard to its territory should be fully respected. (2) That in all mat- ters of trade, commerce, residence, navigation, etc. , the treatment of the citizens or subjects of a neutral State when brought in contact with the belligerents should be in strict accordance with treaty obli- gations and the rules and usages of international law. The subjects grouped under the second head will be more properly discussed hereafter in connection with contraband of war, blockade, the right of search, etc. Concerning the rights of neutral States referred to under the first head, these rights are now mainly connected with the transit of troops, the use of neutral waters as a hostile base of supplies and operations, of hostile acts toward vessels in neutral territory. 120 INTERNATIONAL LAW. So for as tlie passage of troops of either belligerent across neutral territory is concerned, the neutral State has not only the -right, 1)ut also the manifest duty of preventing this violation of its territory; no matter if it is attempted by one or both belligerents. The act of transit of troops in war times is a hostile measure, and if permitted would destroy the neutral character of the State permitting it. How indirect measures of this kind may be used by a belligerent to forward hostile movements is illustrated by the attempt made by Germany in 1870 to secure a transit across Belgium. After the battle of Sedan the German army was so embarrassed by wounded troops that it applied to Belgium for permission to transport the wounded across that country by railway. In this way the route open into Germany could be used for military purposes alone, and the German commissariat in France relieved from the task of feeding the wounded in addition to supplying the active forces. Belgium, after consultation with the English Government, refused the request. Hall says: It is indeed difBcult to see, apart from the grant of direct aid or of permission to move a corps d'armee from the Rhine provinces into France, in what way Belgium could have more distinctly abandoned her neutrality than by relieving the rail- way from Nancy to the frontier from incumbrances, by enabling the Germans to devote their transport solely to warlike uses, and by freeing the commissariat from the burden of several thousand men lodged in a place of difficult access. During the Franco-Prussian war in 1870 about 60,000 French troops crossed into Swiss territory for safety. They were at once disarmed and interned by oi'der of the Swiss Government. The sick and wounded were retained in Switzerland and the arms of the troops were held as security for the repayment of the cost of subsistence. Before this event the same country, in the same war, denied a pas- sage through its territory to bodies of Alsatian recruits bound for France. In this latter case the. recruits, though enlisted for the French army, were traveling without arms or uniforms. When a belligerent uses neutral ports and waters as a base for hos- tile operations and supplies, as a point to watch the other belligerent, or as an original starting point for hostile expeditions, the sovereignty of the neutral State is constructively if not actually violated. These acts may not involve the use of force, but they place the neutral in the position of aiding and assisting one belligerent by affording him the use of neutral territory in a manner to give him opportunities for hos- tile acts against the other belligerent. The use of territory in this way provides a base for a belligerent, a base being in a military sense a place where resources and reenforcements can be obtained, from which a force may proceed to take the offensive against the enemy, and in which it finds refuge and protection at need. The essential value of such a base as afforded by a neutral port in modern naval warfare can readily be comprehended. Nor is it necessary that the ports should be habitually used. Mel- bourne formed a sufQciently good base to the Confederate cruiser Slienandoah during our civil war to enable her after a single stay to carry on a campaign in the North Pacific Ocean against our mercantile and whaling vessels without being obliged to resort to any other port. A neutral, hence, has the right to impose such restrictions upon bel- ligerent vessels which come within its jurisdiction as may be deemed necessary for the enforcement of its neutrality, and so long as these restrictions are impartially carried out there is no ground for com- plaint. This right is exercised at times to the extent of forbidding all INTERNATIONAL LAW. 121 armed ci-tiisers, with or without prizes, to enter certain neutral ports and waters for the purpose of obtaining provisions, coal, or repairs. In 1854 Austria closed the port of Cattaro to belligerent vessels of war. Great Britain did the same as to the ports and anchorages of the Bahamas during oiir civil war, while Sweden more than once has closed its five military ports to the cruisers of belligerent nations. The restrictions and prohibitions imposed by neutrals upon the ves- sels of belligerents as to the use of neutral ports are never extended so far as to deny the hospitality of those ports in ease of 'immediate danger or want, such as stress of weather, want of provisions, etc. Asylum to this extent is required by the ordinary laws of humanity. By the first proclamation of President Grant, issued August 20, 1870, at the outbreak of the Franco-Prussian war, among the acts forbidden were those of increasing or augmenting the force, armament, or war- like equipment of any belligerent vessel of war within the territory of the United States, also the beginning or setting on foot, or providing or preparing means for any military expedition against the territory of either belligerent. The movements of the belligerent cruisers on our coast and in our waters being such as to call for more explicit and stringent rules. President Grant on the 8th of October, 1870, issued a second procla- mation, by which the belligerent ships were not permitted to frequent the waters of the United States for the purpose of preparing for hostile operations, or as ports of observation upon the ships of the other belligerent, and they were forbidden to leave the waters of the United States, from which a vessel of war, privateer, or merchant vessel of the other belligerent had sailed, until after the expiration of twenty- four hours from its departure. Belligerent vessels were not to use the ports of the United States except in case of necessity, and they were to leave port twenty-four hours after provisions had been secured or the necessary repairs effected. No supplies other than those neces- sary for the subsistence of the persons on board were to be taken, and only sufl&cient coal to take the vessel to the nearest European port of her own, country, and until her return to such port no coal was to be supplied oftener than once in three months. Belligerent ships of war, generally, entering ports of the United States were to remain but twenty-four hours, except in case of stress of weather, or for provisioning, or repairs. In the proclamation of neutrality made by Great Britain, April 26, 1898, during our war with Spain, it was directed that the three rules embodied in the treaty of Washington, of 1871, concerning the duties of a neutral government should be observed, and attention was also called to the foreign-enlistment act. Instructions were also issued to the various departments of the Government prescribing practically the same rules as to the movement of the belligerent cruisers as were contained in the proclamations of President Grant, referred to above. The final article or rule of the instructions accompanying the procla- mation of neutrality of Great Britain, however, interdicted armed ships of either belligerents from carrying prizes into British waters or the waters of any British colony or possession. In the case of the Twee Gerhroeders, captured by an expedition from the British vessel Espiegle, then lying at anchor in neutral waters. Sir William Scott laid down a general principle as follows : An act of hostility is not to take its' commencement on neutral ground. It is not sufQcient to say it is not completed there; you are not to take any measure there that shall lead to immediate violence: you are not to avail yourself of a station on 122 INTERNATIONAL LAW. neutral territory, making as it were a vantage ground of the neutral country, a country ■which is to carry itself with perfect equality between both belligerents, giving neither the one nor the other any advantage. Opinions vary as to the proper definition of a hostile expedition. Says "Walker: Such an expedition in general consists of an armed and organized body of men about to depart the soil in pursuance of a present design to carry on hostilities in the immediate future against a particular government. But the absence of a sin- gle feature may change the character of the entire proceeding. In 1870 a body of 1,200 Frenchmen left New York to join the armies of their native land in her struggle against the Prussians, and the vessels which conveyed them also carried a large consignment of rifles and ammunition for the use of the French troops; but, these men being a mere disorganized force, their departure from American soil, it is universally acknowledged, in no way reflected upon the neutral inten- tions of the United States Government. On the other hand, the elements of an expedition may be recognized in a seemingly less dangerous proceeding. The British ministers, for example, however open to criticism may have been their method of action, were well advised when in 1837 they conceived it to be their duty to prevent the landing in Terceira of Count Saldanha and his followers, although the members of the party left Plymouth entirely unarmed. The question of hostile acts within neutral territoiy is largely one connected with the attacks upon or capture of belligerent ships in neutral waters. It is not only the right of the neutral to prevent this capture or attack, but also his duty; and if necessary the neutral should resort to force to defend the attacked belligerent and to punish the offender. It is a well-established rule of international law that if a ship should be captured under such circumstances it is the duty of the neutral State whose territory is violated to effect restitution if possible, and secure redress for the in j ured belligerent. Walker says : As between a belligerent and his enemy a capture made within neutral waters is good prize. As between the captor and the neutral state, however, the capture imports an offense against the .jurisdiction of the neutral government, and as between the neutral government and the captive, that government it behooves, whether spontaneously or on the instigation of the injured shipowner, to address prompt complaints to the government of the wrongdoer, or otherwise to grant redress for the wrong, an obligation which only, perhaps, ceases when the vessel attacked within the neutral zone attempts to shift for herself and to repress force by force. Should a captor or his agent be bold enough to bring his prize at a sub- sequent period into a port of the neutral government, that government may vin- dicate its offended jurisdiction by seizing property and liberating prisoners taken in violation of its protectorate. In the case of the Anna, captured by a British privateer in 1805 near the mouth of the Mississippi River, the British Court of Admi- ralty not only restored the captured property, as having been taken within neutral territory, but fully asserted the sanctity of such terri- tory from belligerent operations. In this case it was decided by Sir William Scott that territorial waters extend three miles, not only from the shore line, but from islands off the coast, no matter what their nature may be. This claim was made under the direction of the American minister as representing the neutral power wronged. In the case of the privateer General Armstrong, destroyed by British vessels of war in the harbor of Payal in 1814, a claim was made by the United States against the Portuguese Government for permitting a violation of the neutrality of the port by the British squadron. After a long controversy the matter was referred to the President of the French Republic in 1851, who decided that where a capture has been made in neutral waters a claim for damages by tlie injured belligerent against the neutral State is not allowed if the captured ship resisted instead of asking protection of the neutral. It is doubtful, notwith- standing this decision, whether it can be held to be established as a INTERNATIONAL LAW. 123 precedent that simple resistance to an attack on a ship and omission of formal application for protection from the neutral sovereign release that sovereign from >his duty or the oflEending belligerent from the responsibility of the violation of neutral territory.^ HaUeck says . If a neutral State neglects to make restitution and to enforce the sanctity of its territory, but tamely submits to the outrages of one of the belligerents, it forfeits the immunities of its neutral character with respect to the other and may be treated by it as an enemy. The French courts have also decided in the case of the Perle that a capture in neutral waters is illegal, whether made under the guns of a fort or simply on an undefended coast, and the vessel, at the instance of the Spanish ambassador, who represented the neutral sovereign, was restored. In the case of the British ship Anne it was decided by the Supreme Court of the United States in 1818 that if the captured'ship first com- menced hostilities in neutral waters she thereby forfeited neutral pro- tection. In the same decision Judge Story delivered the opinion that a capture made in neutral waters is, as between enemies, deemed, to all intent and purposes, a legal capture. The neutral sovereign alone can call its validity in question. This latter principle has been repeat- edly aflrmed by courts in other cases, the infringement of the rights of the neutral sovereign being the only ground of the invalidity of such captures. • In 1864 the Confederate cruiser Florida was seized in the harbor of Bahia, Brazil, by the U. S. S. Wachusett. The Brazilian Government at once demanded full reparation from the Government of the United States for this indignity and violation of its sovereignty. The United States expressed its regrets, dismissed the consul who had been concerned in the affair, tried the commanding officer of the Wachw- sett by court-martial, surrendered the crew of the Florida, and saluted the flag of Brazil in the bay of Bahia. The Government of the United States was unable to surrender the Florida, as she had been sunk in a collision in Hampton Roads. Says HaUeck : If a belligerent cruiser, in acting offensively, passes over a portion of water within neutral jurisdiction, that fact is not usually considered such a violation of the territory as to invalidate an ulterior capture made beyond it. Permission to pass over territorial portions of the sea is not usually required or asked, because not supposed to result in any inconvenience to the neutral power. Hall goes so far as to say that not only should property captured in violation of neutrality be seized upon entering the neutral's 'jurisdic- tion, but, as a State has the right of pursuing vessels into the open sea and arresting them there for violations of the municipal law directed only against itself, the neutral State should have the right to vindi- cate its sovereignty and neutral duties in the same manner. This seems reasonable if the pursuit is made under the conditions of the pursuit and seizure for violations of municipal laws — that is, at the time or immediately after the act has occurred.^ 'Dana says, as to this affair, that "the principle of the decision must certainly be confined to cases where the vessel attacked has reason to believe that effectual protection can be seasonably afforded by the neutral, and makes a fair choice to take the chances of a combat rather than appeal to neutral protection." ^ Wheaton doubts whether vessels condemned by prize courts after capture in neutral territory would be restored by a neutral if they came again within its jurisdiction; but Ortolan seems to have justice with him when he states that the sovereign rights of a nation can not be put aside by a foreign tribunal, and hence such a decision is not binding so far as it is concerned. 124 INTERNATIONAL LAW. When a ship captured in neutral waters becomes transformed into a man-of-war by the belligerent captor, most writers seem to agree that a reentry into the neutral's port does not subject it to seizure, as^ it has become invested with the immunities of a vessel of war. There is no question, however, that such vessels can and should be denied the right to visit again the ports of a neutral whose territory has been violated. Brazil adopted a practice somewhat of this nature during our civil war. In regard to affording refuge and hospitality in neutral ports to prizes captured outside of neutral territory, it may be considered that the best usage, unless it is otherwise provided by treaty stipu- lation, forbids belligerents to bring prizes into neutral ports except in case of stress of weather, danger, or want of supplies necessary to their navigability, and then the stay should be only so long as their necessities require. On no account should the sale of prizes be permitted in neutral ports. During our civil war and our war with Spain, Great Britain forbade the armed ships of both belligerents to carry their prizes into any British port. The rule that when hostile ships meet in a neutral harbor the author- ities of the port may prevent one ship from sailing until after an inter- val of twenty-four hours has elapsed from the sailing of the other is becoming a general one, and will probably be enforced in all future maritime wars. A further extension of this rule was made in 1861 by Great Britain on account of the incident of the U. S. S. Tuscarora and the Confed- erate cruiser Nashville, at Southampton, England. The Tuscarora had arrived in Southampton water in the latter part of ].861, the Nashville being then in dock. By keeping up steam and having a slip rope on her cable, so that the moment the Nashville got underway the Tuscarora could slip and precede her and claim pri- ority of sailing, and by returning again within twenty-four hours, and by notifying and then postponing her own departure, the Tuscarora was able virtually to blockade the Nashville within British waters for some time. In order to guard against a repetition of such acts the British author- ities directed that in the future during the war any vessel of either belligerent entering an English port should "be required to depart and put to sea within twenty-four hours after her entrance into such port, except in ease of stress of weather, or of her requiring provisions or things necessary for the subsistence of her crew or repairs;" in such case the local authorities were to "require her to put to sea as sooa as possible after the expiration of such period of twenty-four hours." This rule is virtually the same as that incorporated in the proclama- tion of President Grant in 1870. Section 58. — Equipment op Vessels of War in Neutral Territory. The neutrality and foreign-enlistmeut acts of the various maritime States are those that cover such matters as the construction and equip- ment in neutral territory of vessels that may be used for belligerent purposes against any other State. On account of our geographical position and our policy of abstain- ing from interference in European quarrels the Government of the United States has been under the necessity of enforcing these neutral- ity regulations to a greater extent than that of most other countries. Our stand of neutrality during the wars which involved all Europe INTERNATIONAL LAW. 125 during the latter half of the eighteenth and the beginning of the nine- teenth century, and our proximity to the Latin- American States and colonies, with the constant wars and insurrections with which they were concerned, led to the enactment of the neutrality laws of 1794 and 1818, as well as to the existence of most of the cases which have arisen under them. By the act of 1794, revised in 1818, and now sections 5283 and 5285 of Revised Statutes of the United States, it is declared to be a high mis- demeanor, punishable by fine and imprisonment, for anyone to fit out and arm, or to increase and augment the force of any armed vessel, with the intent that such vessel be employed in the service of any for- eign prince, State, colony, district, or people at war with another State, colony, district, or people with whom the United States are at peace; or to begin, set on foot, or provide or prepare the means for any military expedition or enterprise against the territory of any for- eign prince, etc., with whom we are at peace. Any vessel or vessels fitted out for such purpose are made subject to forfeiture. The Presi- dent of the United States is also authorized to employ force to compel any foreign vessel to depart, which by the law of nations or by treaty ought not to remain within the United States, and to employ the public force generally in compelling the observance of the duties of neutral- ity prescribed by law. As a result of the controversy concerning the construction and fit- ting out of the Alabama and other Confederate cruisers, which after- wards resulted in the Treaty of Washington and the Geneva Tribunal of Arbitration, Great Britain enacted the foreign-enlistment act of 1870, section 8 of which provides : If any person within the dominions of Her Majesty builds or agrees to build, or issues or delivers any commission for any ship, or equips, dispatches, or causes or allows to be dispatched any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State at war with any friendly State, such person shall be deemed to have committed an offense against this act. The regulations that govern the French Republic are simpler and are in accord with the usage of the continental European nations. They are included in articles 84 and 85 of the French penal code, and provide briefly that whosoever shall expose the State to a declaration of war by hostile acts not approved by the Government will be pun- ished by banishment. Reprisals attempted without the approval of the Government are subject to the same penalty. Similar provisions are found in the penal codes of Italy, Portugal, Brazil, Spain, Russia, and the Netherlands. One of the most important cases that have occurred under the neu- trality acts of the United States is that of the Santissima Trinidad, in 1822, upon which a decision was rendered by the Supreme Court of the United States. The opinion was delivered by Mr. Justice Story, of that court, and very much from this opinion was quoted in support of the ease of Great Britain before the Geneva Tribunal. The Santissima Trinidad was a Spanish ship captured on the high seas by two small armed vessels originally fitted out in the United States, but sold at Buenos Ayres to the government of that State. At a subsequent period one of these vessels had her crew substan- tially increased in the United States. The cargo of the Santissima Trinidad was libeled by the Spanish consul at Norfolk, who claimed restitution. The judgment of the court was that citizens of a neutral State may 126 INTERNATIONAL LAW. send armed vessels to belligerent ports for sale, provided it be done as a bona fide commercial transaction, a ship in this situation being considered as merely an article of contraband of war. The augmentation of th§ force of a belligerent cruiser in neutral ter- ritory was held to be illegal, and entailed the restoration of a prize made by such vessel if brought within the jurisdiction of the offended neutral. The best comment upon this case and statement of its relation to the neutrality position of the United States up to the time of the treaty of Washington and its three rules and results at Geneva may be found in the following extracts from the summary in Mr. Dana's note 215, in the eighth edition of Wheaton. They are as follows: As to the preparing of vessels within our jurisdiction for subsequent hostile operations, the test we have applied has not been the extent and character of the preparations, but the intent with which the particular acts are done. If any per- son does any act, or attempts to do any act, toward such preparation, with the intent that the vessel shall be employed in hostile operations, he is guilty, without reference to the completion of the preparations, or the extent to which they may, have gone, and although his attempt may have resulted in no definite progress toward the completion of his preparations. The procuring of materials to be used knowingly and with the intent, etc. , is an offense. Accordingly it is not necessary to show that the vessel was armed, or was in any way or at any time, before or after the act charged, in a condition to commit acts of hostility. * * * It will be seen at once, by these abstract definitions, that our rules do not interfere with bona fide commercial dealings in contraband of war. An American merchant may build and fully arm a vessel, and supply her with stores, and offer her for sale in our own market. If he does any acts, as an agent or servant of a belligerent, or in pur- suance of an arrangement or understanding with a belligerent, that she shall be employed in hostilities when sold, he is guilty. He may, without violating our law, send out sucha vessel, so equipped, under the flag and pajjersof his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chances of capture as contraband merchandise, of block- ade, and of a market in a belligerent port. In su(!h case the extent and character of the equipments are as immaterial as in the other class of cases. The intent is all. The act is open to great suspicions and abuse, and the line may often be scarcely traceable; yet the principle is clear enough. Is the intent one to prepare an article of contraband merchandise, to be sent to the market of a belligerent, subject to the chances of capture and of the market? Or, on the other hand, is it to fit out a vessel which shall leave our port to cruise, immediately or ulti- mately, against the commerce of a friendly nation? The latter we are bound to prevent. The former the belligerent must prevent. In the former case the ship is merchandise, under bona fide neutral flag and papers, with a port of destina- tion, subject to search and capture as contraband merchandise by the other bellig- erent, to the risks of blockade, and with no right to resist search and seizure, and liable to be treated as a pirate by any nation, if she does any act of hostility to the" property Of a belligerent, as much as if she did it to that of a neutral. Such a trade in contraband a belligerent may cut off by cruising the seas and blockading his enemy's ports. But to protect himself against vessels sailing out of a neutral port to commit hostilities, it would be necessary for him to hover off the ports of the neutral; and, to do that effectually, he must maintain a kind of blockade of the neutral coast, which, as neutrals will not permit, they ought not to give occasion for. The cases of the Alabama and other cruisers, which gave rise to the • treaty of Washington, may be found with sufficient fullness in Snow's Cases and Opinions, or exhaustively in the volumes which contain the papers relating to the treaty of Washington of 1871. Article VI of that treaty provided for an arbitration to determine British liability for these depredations, the tribunal to be governed by the following three rules, and also by such principles of interna- tional law not inconsistent therewith as the arbitrators should deter- mine to have been applicable to the case. The rules are: A neutral government is bound — First — To use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is INTERNATIONAL LAW. 127 intended to cruise or carry on war with a power with which it is at peace, such vessel having been specially adapted in whole or in part, within such jurisdiction, to warlike uses. Secondly — Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. Thirdly — To exercise due vigilance in its own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obliga- tions and duties. Of these rules Calvo says, in the Revue de Droit International, that they are not new in principle, having been previously embodied in the practice and laws of most countries; that they were but the affirma- tion of preexisting principles, sanctioned since long time by numer- ous facts and by the legislation and practice of nations. Among other publicists Bluntschli, Rolin-Jacquemyns, Esperson, Pradier-Fodere, GefEcken, Fiore, Pierantoni, Kusserow, Caleb Gush- ing, and Bancroft Davis not only approve the three rules, but affirm that the claims of the United States were justified by the general principles of international law independently of these rules. The members of the Institut de Droit International in their session at Geneva in 1874 took into consideration these rules and pronounced an opinion that although the three rules in point of form were open to objection, in substance they were the clear application of a recog- nized principle of the law of nations.' Prof. E. Robertson, in an article upon international law in the Encyclopedia Britannica, says: These rules, which we believe to be substantially just, have been unduly dis- credited in England, partly by the result of the arbitration, partly by the fact that they were, from the point of view of English opinions, ex post facto rules, and that the words defining liability (due vigilance) are vague land open to unforeseen constructions; for example, the construction actually adopted by the Geneva Tribunal, "that due vigilance should be exercised in proportion to the belligerent's risk of suffering from any failure of the neutral to fulfill his obli- gations. " The qualifying clause inserted at the request of the British Govern- ment in the treaty of "Washington and the clause as to the future bind- ing effect of the treaty with respect to the rules read as follows : Her Britannic Majesty has commanded her high commissioners and plenipoten- tiaries to declare that He'' Majesty's Government can not assent to the foregoing rules as a statement of principles of international law which were in force when the claims mentioned in Article I arose; but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries arising out of these claims the arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules. ' In 1875, by a majority vote of those in attendance, the Institut adopted the following as an expression of opinion upon- the subject: "L!&tat neutre d6sireux de demeurer en paix et amitie aveo les belligferants et de jouir des droits de la neutralite, a le devoir de s'abstenir de prendre a la guerre une part quelconque, par la prestation de secours militaires a I'un des belligferants ou k tons les deux, et de veiller k ce que son territoire ne serve de centre d'organi- sation ou de point de depart a des expeditions hostiles centre I'un d'eux ou centre tons les deux. "En consequence, I'Etat neutre ne pent mettre, d'une maniere quelconque, k la disposition d'aucun des fitats belligerants, ni leur vendre ses vaisseaux de guerre ou vaisseau de transport militaire, non plus que le materiel de ses arsenaux ou de ses magasins militaires, en vae de I'aider a poursuivre la guerre. En outre, I'fitat neutre est tenu de veiller k ce que d'ajitres personnes ne mettent des vaisseaux de guerre a la disposition d'aucun des Etats belligerants dans ses ports ou dans les parties de mer qui dependent de sa jurisdiction." 128 INTERNATIONAL LAW. And the high contracting parties agree to observe these rules as between them- selves in the future, and bring them to the knowledge of other maritime powers, and to invite them to accede to them. As previously stated, in the proclamation of neutrality issvied by Great Britain at the outbreak of our war with Spain it is stated that — "Whereas we are resolved to insure by every lawful means in our power the due observance by our subjects, toward both the aforesaid powers, of the rules embod- ied in Article VI of the treaty of the 8th of May, 1871, between us and the United States of America, which said rules are as follows. * * * Acceptance of the general principles of these rules does not, of course, imply acceptance of the interpretations given them by the arbitrators at Geneva. Conflicting opinions concerning these latter matters have been expressed both by writers upon international law and by English and American statesmen. The British foreign-enlistment laws are not only superior in eflB- ciency to our existing statutes, revised in 1818, but are probably the best expression of the principles and of the "due diligence" required by the treaty of Washington borne upon the statute books of any nation. The changes made by the introduction of steam, with a constantly quickening speed of ships, and the increase in size, cost, and time required for the construction of modern vessels of war, especially armored vessels, have caused a revolution in naval construction and equipment, as well as in the conditions of naval warfare. The effect of these new conditions must not be ignored in the ques- tions under discussion. By these changes in conditions the value of a single vessel, if armored and armed in accordance with the latest improvements, is so great as to place it on a plane entirely different from that occupied by sailing and other vessels, whose equipment and construction by neutrals form the subject of most of the cases quoted in treatises upon international law. -The possession of modern seagoing armored vessels by either bel- ligerent may easily have a decisive effect upon the issue of the strug- gle. The gravity of permitting the issue of a vessel of this kind from a neutral port was not exaggerated by Mr. Adams, our representative in London, in the case of the two armored rams built for the Confed- erate Government, though nominally for a French house, by the Messrs. Laird, at Liverpool. On the 5th of September, 1863, Mr. Adams wrote to Earl Russell that one of these vessels was "on the point of departure from this kingdom on its hostile errand against the United States." He added, after a description of the warlike character and great power of these vessels, that "It would be superfluous in me to point out to your lord- ship that this is war." It is well to observe that this great cost and elaborate construction of a modern fighting vessel rendfir its building less and less probable as a matter of business speculation, and render also the intent of con- struction and of purchase moi-e evident. Still, in view of the very serious consequences that may result from such acts upon the part of neutrals in these days, it seems beyond argument that quickened vigilance and an increased diligence on the part of the neutral State is more required in regard to the construction, equipment, and depart- ure of vessels designed exclusively for purposes of war. Considering, then, this state of affairs it may not be improbable that the prescription of the arbitrators at Geneva as to due diligence may INTERNATIONAL LAW. 129 come to be accepted in the future as an approximation to the definition of the duty of a neutral. ' It reads as follows : And whereas the " due diligence'' referred to in the first and third of said rules ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obliga- tions of neutrality on their part, etc. As to fast steamers that are capable of being converted from mer- chant steamers into transports, depot vessels, supply steamers, com- merce protectors, and commerce destroyers, for many reasons they stand upon a different basis from vessels designed and built for fight- ing purposes alone. Hall says of these : Mail steamers of large size are fitted by their strength and build to receive, with- out much special adaptation, one or two guns of sufdcient caliber to render the ships carrying them dangerous cruisers agamst merchantmen. These vessels, though of distinct character in their more marked forms, melt insensibly into other types, and it would be impossible to lay down a rule under which they could be prevented from bemg sold to a belligerent and transformed into constituent parts of an expedition immediately outside neutral waters without paralyzing the whole ship- building and ship-selling trade of the neutral country. Section 59.— Loans of Money and Sales of Munitions of Wae to Bellig- erents BY Neutrals. In discussing the questions of neutral rights and obligations, the distinction should be sharply drawn between neutral States and their subjects and citizens. The neutral State is, as we have seen, under obligation toward the belligerents not to aid nor allow aid to either belligerent as against the other in or from its own territory. But as between the belligerents and the neutral individual, no legal obligation can be said to exist. Each individual owes duty only to his own sovereign, and acts done by individuals to injure a belligerent are criminally wrong only so far as they compromise the State of the individual. In return the belligerent State is under obligation only to other States, and its conduct toward the neutral individual is limited only by international agreements and by the accepted rules and usages of international law. "Within these rules the belligeient State is at liberty to act toward the neutral individual as it may deem necessary for the prosecution of the war. Such action is, however, generally performed by means of a judicial system of its own, the penalities being prescribed as well as enforced by itself. Loans of money to one of the belligerent States, made or guaranteed by a neutral State, are manifestly improper. They are direct aid, given by one of the most effective agencies of modern times. But loans of money by neutral individtials are another matter; they are matters of business, of quid pro quo, and not a violation of State obligations toward a belligerent. Hall sa,ys of this question : A modern belligerent no more dreams' of complaining because the markets of a neutral nation are open to his enemy for the purchase of money than because they are open for the purchase of cotton. The reason ia obvious. Money is, in theory and in fact, an article of commerce in the fullest sense of the word. To throw upon neutral Governments the obligation of controlling dealings in it, taking pi ace within their territories, would be to set up a solitary exception to the funda- mental rule that States are not responsible for the commercial acts of their sub- jects. * * * Money is merchandise, the transmission of which would elude all supervision. Loans need not be handed over in specie; it is possible that payment' might be made in bills, not one of which might enter the neutral country in which the contract is made, and if it were attempted to stop the practice by penalties 6433 9 1-SO INTEENATIONAL LAW. nothing could be more easy than for the real lenders to conceal themselves behind names borrowed in the country of the belligerent debtor. During the Franco-German war both the French loans and part of the North German Confederation loan were issued In England. Mr. Webster, when Secretary of State, as far back as 1842 said: As to advances and loans made by individuals to the Government of Texas or its citizens, the Mexican Government hardly needs to be informed that there is noth- ing unlawful in this as long as Texas is at peace with the United States, and that these are things which no Government undertakes to be responsible to restrain^ Woolsey says, also : The private person, if the laws of his own State or some special treaty does not forbid, can lend money to the enemy of a State at peace with his own country or can enter into its service as a soldier without involving the government of his country in gfuilt. As to the munitions of war, an application of the same rule seems logical. A sale of arms, directly or indirectly, by a State to one or even both of the belligerents seems to be a violation of neutral obli- gations. Says Hall: The general principle that a mercantile act is not a violation of a State's neu- trality is pressed too far when it is made to cover the sale of munitions or vessels of war by a State. Trade is not one of the common functions of a- Government,. and an extraordinary motive must be supposed to stimulate an extraordinary act. The nation is exceptionally unfortunate which is forced to get rid of surplus stores precisely at a moment when their purchase is useful to a belligerent. The case of the Swedish frigates, which is much quoted in this con- nection, is as follows: About 1825 the Swedish Government, wishing to reconstruct its navy, offered some of its older vessels for sale, first to Spain, then at war with its American colonies, and then to an open market. Three of the vessels were finally sold to a Stockholm mer- cantile house, which immediately sold them to an English house. As this latter house was known to be the agent of the Mexican Govern- ment, with whom Spain was engaged in hostilities, the Spanish charge d?affaires protested against the transfer as an act of hostility. The Swedish Government replied that in the sale they had merely exer- cised an ordinary legal right, but afterwards, when opportunity arose the contract was dissolved at some pecuniary loss to the Swedish Gov- ernment, and the vessels were taken back. In 1868 the Congress of the United States authorized the sale of the immense stock of munitions of war left on hand at the end of the civil war. During the Franco-Prussian war a large quantity of these munitions were sold under this act at open sale to Americans who afterwards proved to be agents for the French Government. The matter became a subject of investigation in the United States Senate, and the committee charged with the subject reported that the sale was made with no' intention that these articles should go into the hands of either belligerent. ' As to sales of arms, etc., by individuals, etc., the following quota- tion from JefEerson gives both our present and past practice : Our citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means, perhaps, of their existence, because a war exists in foreign and distant countries in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The.law of nations, there- fore, respecting the rights of those at peace does not require from them such an internal derangement in their occupation. It is satisfied with the external pen- alty pronounced in the President's proclamation, that of confiscation of such por- tion of these arms as shall fall into the hands of the belligerent powers on their way to the ports of their enemies. ' Snow's Cases, p. 459. Chapter X. Aid to Insurgents; Contraband of War. Section 60. — Aid to Insurgents. It has already been stated that while belligerent communities pos- sess the rights of war, there is no obligation on the part of existing States to recognize the existence of such rights in insurgents. Dana, in a note to Wheaton, speaking of the recognition of belliger- ency in an internal conflict, which must be accorded if a state of war exists, says, among other things : If it is a war, the rules and risks respectimg carrying contraband, or dispatches, or military personSj come into play. If it is not a war, they do not. Within for- eign jurisdiction, if it is a war, acts of the insurgents, in the way of preparation and equipments for hostility, may be breaches of neutrality laws; while if it is not a war, they do not come into that category, but into the category of piracy or of crimes by municipal law. The municipal laws of the United States, commonly known as the neutrality acts of 17^4 and 1818, do not, however, draw any distinction in language between belligerents and insurgents. The criminal fea- ture is the fitting out of a vessel with intent that such ship or vessel shall be employed in the service of any foreign prince, or State, or of any colony, district, or people, to cruise or commit hostilities upon the subjects, citizens, or property of another foreign prince, State, etc. Of the application of this act Attorney-General Hoar says, in an opinion delivered in 1869,* as follows: The neutrality act of 1818 is not restricted in its operation to cases of war between two nations, or where both parties to a contest have been recognized as belligerents; that is, as having a sufficiently organized political existence to enable- them to carry on war. It would extend to the fitting out and arming of vessels for a revolted colony whose belligerency had not been recognized.but it should not be applied to the fitting out, etc. , of vessels for the parent State for use against a revolted colony whose independence has not in any manner been recognized by our Government. Under this act of 1818, as thus construed, the policy of the executive has been a settled one with respect to insurgents. The greater part of the cases that have arisen have been in connection with the insur- rections and disturbances in the Island of Cuba and in the Republics of Central and South America. The formation of filibustering expeditions within the United States for insurrectionary purposes against other governments has been of sufi&cient frequency to call for many applications of our neutrality act. The duty of the United States toward other countries with which they are at peace is a matter of international law, but the penal meth- ods used to prevent individuals from using our territory in ways that are inconsistent with that duty belong to the domain of municipal law. It follows that neutrality acts may prohibit and punish many '13 Op., 177, Hoar, 169'. 131 132 INTERNATIONAL LAW. things which international law does not require neutral nations to prevent. In discussing this phase of the subject, Secretary Bayard wrote, in 1886, to Mr. Hall, our minister to Central America, as follows : Breaclies of neutrality may be viewed by this Governtnert in two aspects: First, in relation to our particular statutes, and secondly, in respect to the general prin- ciples of international law. Our own statutes bind only our own G-overnment and citizens. If they impose on us a larger duty than is imposed on us by inter- national law, they do not correspondingly enlarge our duties to foreign nations, nor do they abridge our duties if they establish for our municipal regulation a stand- ard less stringent than that established by international law. Mr. Bayard, in a previous year, in a letter to Mr. Valera, the Span- ish minister, had expressed himself more pertinently in the following words : I need scarcely remind you that the phrase " neutrality act " is a distinctive name, applied for convenience sake merely, as is the term "foreign-enlistment act " to the analogous British statute. The scope and purpose of the act are not thereby declared or restricted. The act itself is so comprehensive that the same provisions which prevent our soil from being made a base of operations ,by one foreign belligerent against another likewise prevent the perpetration within our territory of hostile acts against a friendly people by those who may not be legiti- mate belligerents, but outlaws in the light of the jurisprudence of nations. There is and can be no " neutrality " in the latter case. If the hostile party carries his hostility beyond the pale of the law, he commits a crime against the United States, and is aniienable to the prescribed process and punishment. In the decision made by the Supreme Court of the United States in what is known as the " Three Friends case" Mr. Chief Justice Fuller delivered the opinion of the court in favor of holding the vessel con- cerned for violating the "neutrality act" by being engaged in the employ of the Cuban insurgents, in a hostile expedition against Spain. The opinion states that — In the annual message of December 7, 1896, the President called attention to the fact that "the insurrection in Cuba still continues with all its perplexities" and gave an extended review of the situation. We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority of a Government with which the United States are on terms of pease and amity although acknowledgment of the insurgents as belligerents by the political department has not taken place; and it can not be doubted that, this being so, the act in question is applicable. We see no justification for imparting into section 5383 words which it does not contain and which would make its operation depend upon the recognition of belligerency; and while the libel might have been drawn with somewhat greater precision, we are of opinion that it should not have been di8mi3sed. The Itata case presents some interesting points coming within this subject. It is as follows: The Itata, a merchant steamer, was captured in May, 1891, in Val- paraiso harbor by the Congressional party, then in insurrection against the established or Balmaceda Government of Chile. After capture she was given a light armament and used for transport and other pur- poses under the command of a naval officer. Trumbull and Burt, the' defendants in the ease, came to the United States as agents for the Congressionalists and purchased arms and ammunition in New York, which were sent by rail to San Francisco. The Itata was sent by the Congressionalists to the United States to receive the purchased arms and transport them to Chile. Convoyed by the war vessel Esmeralda as far as Cape San Lucas, the Itata pro- ceeded from there under the command of the captain of the Esmeralda to San Diego. When she reached that port she was disguised as a peaceful merchantman, with anojiher person ostensibly in command. INTERNATIONAL LAW. 133 While at San Diego she took in stores of coal and provisions, some of ■which were marked Esmeralda. Meanwhile the arms sent to San Francisco were shipped in a char- tered schooner, the Robert and Minnie, which proceeded to Santa Barbara Islands, off southern (l/alifornia, to meet the Itata for the purpose of transferring the arms to her. Suspicion being aroused,, the marshal of the district took possession of the Itata for a violation of the neutrality laws, a keeper was ijut on board, and a search made for the Robert and Minnie. Arrangements having been made, however, between the schooner and the Itata, on the 6th of May, 1891, the Itata, without clearance and against the protest of the ship keeper in charge, went to sea, putting the keeper on shore at the mouth of the harbor. On the 9th of" May the Itata and the schooner came together about a mile and a half from San Clemente Island, one of the Santa Barbara group, and the arms being transferred to the Itata, this vessel left at once for Chile. The Government of the United States had not at that date recog- nized the Congressional party as belligerents or otherwise.' The Navy Department of the United States had, however, directed the admiral commanding the naval force in the Pacific not to render any assistance to either party, instructing him, however, that the ships of the Congressional party were not to be treated as piratical so long as they waged war only against the established or Balmaceda Govern- ment. The U. S. S. Charleston, however, was sent in pursuit of the Itata, but without success, the Itata teaching Iquique, Chile, in safety. The ship, however, was delivered into the hands of the naval force of ■ the United States lying at anchor in that port and brought back under American auspices to San Diego, Cal. Here the ship was duly libeled. The indictment was made under sections 5283, 5285, and 5286 of the Eevised Statutes. As to section 5285, which prescribes penalties for anyone increasing the force of any foreign ship of war for use against any foreign State, etc., with which the United States are at peace, by adding to the number of her guns, etc. , it was conceded that the evi- dence against the accused was insufflcient. As to section 5286, which prescribed punishment for any person who within the territory of the United States "begins or sets on foot or provides or prepares the means for any military expedition to be car- ried on from thence" against a foreign State, it' was held that the expedition was begun in Chile and that sending a ship from Chile to the United States to transport arms back to Chile did not bring the ship under this section. The counts under section 5283, which deals with the fitting out and arming of a vessel with the intent that such vessel be employed in the service of any foreign prince. State, colony, district,- or people, to cruise or commit hostilities agaiijst the subjects, citizens, or property of any foreign prince or State, etc. , with whom the United States are at peace, etc., charged the defendants with unlawfully fitting out the Itata to cruise and commit hostilities against the established Govern- ment of Chile. It was concerning this section that Judge Ross expressed his doubts ,i _ ■ — ' The recognition by the United States of the victorions Congressional party as the established Government 6f Chile occurred about four months after these events. 134 INTERNATIONAL LAW. as to its applicability to the case, upon the grounds that the Congres- sional party did not constitute "a people" within the meaning of the section. Taking the safe ground that the status of the insurgents was to be ascertained by the position of the political or executive department of the United States, he claimed, from the dispatches (especially that from the Navy Department previously quoted) that the Congressional party were j, people "whom it is optional with the United States to treat as pirates," sustaining his position from Secre- tary Fish's letter concerning the Haitian insurgents in 1869 already quoted in this volume. But the dispatches from the Navy Department applying to the Chilean insurrection first to Admiral McCann enjoined strict neutral- ity between the parties and afterwards to Admiral Brown instructed him "not to treat the ships of the Congressional party as piratical, so long as they waged war only against the Balmaceda Government." The judge seems to have held also that a recognition of belligerency or independence was necessary to cause the word "people" in the act to apply. This, however, must be considered to have been settled since by the decision in the "Three Friends Case," delivered by Chief Justice Fuller and referred to in a previous page. The judge did not, however, rest his instruction to the jury to find a verdict of not guilty upon his doubts as to the applicability of this section to the ease. None of the acts shown by the evidenoe consti- tuted an arming, fitting out, or' furnishing the Itaia with the intent that she should cruise or commit hostilities against the established Government of Chile. On the contrary, her only purpose was that of a storeship to transport the arms io question to Chile to be used on shore there by the insurgents. Hiis was held by the judge not to come in conflict with this or any other section of the laws referred to. In support of this view he quoted from an opinion of Attorney-General Speed,'! ijj which it is said: I know of nolaw or resrulation which forbids any person or Government, whether the political designation be real or assumed, from purchasing arms from the citizens of the United States and shipping them at the ri^ of the pu^chasei*. We can close this part of the subject by again quoting from the words of Chief Justice Fuller, who says : "Neutrality, strictly speaking, consists in abstinence from any participation in a public, private, or civil war, and in impartiality of conduct toward both parties, but the maintenance, unbroken, of peaceful relatione between two powers when tiie domestic peace of one of them is disturbed is not neutrality in the sense in which the word is used when the disturbance has acquired siich heiad as to haw demanded the recognition of belligerency. And, as mere matter pf municipal administration, no nation can permit unauthorized acts of war within its territory m infraction of its sovereignty, while good faith toward friendly nations requires their prevention. Section 61.— Contraband op War. Upon this subject Dana says : The right of the belligerent to prevent certain things getting into the military use of his enemy is the foundation of the law of contraband; and its limits are, as in most other cases, the practical results of the conflict between this belligerent right, on the one hand, and the right of the neutral to trade, on the other. Belligerent interests might well contend that any merchandise sent into his enemy's country gives that enemy aid or relief— moral, financial, or physical. But to prevent such trade would be to end all neutral commerce. Neutral interests therefore insist on the strictest limits of the war right of seizure and have at times striven to confine the rule to instruments which are completedly and are for exclu- ' 11 Opinions of Attorney-General, 453. INTERNATIONAL LAW. 135 olusively military use. The result of this conflict has left rather an undefined and irregular line. Contraband i/rade may be defined as a trade with a belligerent with the intent to supply him with military or naval supplies, equipments, instruments, arms, or armament. Contraband goods are munitions of war or articles which are designed or are capable of ijse as a support or assistance to the enemy in carry- ing on an offensive or defensive land or maritime war. Generallaiv of contraband. — The general law of contraband maybe given under two heads, as follows : (1) A State may not lawfully furnish contraband articles to either belligerent, whether shipment be by land or by water. (2) The citizens of a neutral State may sell contraband articles to a belligerent (ships of war or torpedo boats excepted)'subject only to the risk of capture by the cruisers of the opposing belligerent; that is to say, such trade is legal from the neutral point of view and illegal from the belligerent point of view. The neutral State is, not bound to prevent the trade; but a belliger- ent may prevent it by seizing the goods in transit on the ocean, by the law of right of self-defense and self-preservation. The question of unlawfulness, from a neutral standpoint, is given by Mr. Justice Kent in the case of Seton v. Low, in the supreme court of New York, in 1799. He speaks of the legality of the trade as follows : I am of the opinion tliat the contraband goods were lawful goods, and that whafr^ ever is not prohibited to be exported by the positive law of the country is lawful. It may be said that the law of nations is part of the municipal law of the land, and that by that law (and which so far as it concerns the present question is expressly incorporated into our treaty of commerce with Great Britain) contraband trade is prohibited to neutrals and coAsequently unlawful. This reasoning is not desti- tute of force, but the fact is that the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the bel- ligerent powers, and this it does from necessity. A neutral nation has nothing to do with the war, and is under no moral obligation to abandon or abridge its trade;' and yet at the same time, from the law of necessity, as Vattel observes, the powers at war have the right to seize and confiscate the contraband goods, and this they may do from the principle of self-defense. The right of the hostile powers to seize, this same very moral and correct writer continues to observe, does not destroy the right of the neutral to transport. They are rights which ma,y, at times, reciprocally clash and injure each other. But this collision is the result of inevitable necessity, and the neutral has no just cause to complain. A trade bya neutral in articles contraband of wai: is therefore a lawful trade, though a trade from necessity subject to inconvenience and logs. Probably the latest official formal declaration upon the subject with us is contained in President Grant's neutrality proclamation of August 2, 1870, in which it is said : While all persons may lawfully and without restriction, by reason of the afore- said state of war, manufacture and sell within the United States armsand munitions of war and other articles ordinarily known as " contraband of war," yet they can not carry such articles on the high seas for the use or service of either belligerent, nor can they transport soldiers or officers of either or attempt to break any block- . ade which may be lawfully established and maintained during the war without incurring the risk of hostile capture and the penalties denounced by the law of nations in that behalf. Contraband articles carried overland can not, of course, be stopped. Since railway systems have been introduced and extended, a State, situated as nearly all of the nations of continental Europe are placed, ' This is somewhat too broad for the present day as to trade in vessels of war by neutrals. 136 INTERNATIONAL LAW. can get supplies by land in time of war so long, at least, as it remains a,t peace with any of its neighboring States. In 1870 Bismarck remonstrated against the shipment of coal from England to France. The English Government replied that during the Crimean war Prussia permitted her subjects to furnish Russia with all kinds of contraband articles across the border, and also permitted others to send such articles across Prussian territory to Russia. It has been suggested that neutral States should be obliged to restrain the trade in contraband of war, and in the case of ships of war we have seen that this is growing to be the rule now. When it comes to the shipment of heavy guns, rifles, and ammunition in enormous quanties, it has been argued that there is hardly much difference in principle between such sales and those of ships; that the one may affect the course of the war as much as the other. Bluntschli, repre- senting the German school, thinks that though trade in contraband on a small scale may be permitted, yet on a great scale it ought to be prohibited by the neutral States. Perhaps international law may develop in the direction of limiting such trade, but this seems doubtful at present, and the German practice in the war between Spain and the United States did not seem to conform to such theories. The trade between Krupp's establishments, in Germany, and Spain in warlike stores, carried overland, apparently suffered no restriction, either as to the quantity or the quality of the munitions of war. The great difficulty of making a distinction between contraband trade upon alarge and small scale would alone present a serious obstacle to such a rule. Austria in 1854 prohibited the export of contraband, but in 1870 and 1877 this prohibition was not attempted. On the whole, we may conclude that the assumption by the neutral States of the task of preventing contraband trade is one not likely to be undertaken for the benefit of belligerents as an addition to the other and increasing duties required from the neutral State during modern warfare. The question of contraband of war is almost exclusively one of transport upon the high seas, and hence an, important question for officers of any navy that may become belligerent. Says Halleck : The liability to capture can only be determined by ijhe rules of international law as interpreted and applied by the tribunals of the belligerent State to the opera- tion of whose cruisers the neutral merchant is exposed. In making captures of this. kind it must be borne in mind that the question of evidence is involved as well as that of international law. -Moseley, in discussing this subject in a general manner, says : The tendency of all the recent authorities, both in works written on the subjijot and in j udicial decisions, especially the decisions of Sir William Scott, goes to show that contraband or not contraband of war is a question of evidence, to be deter- mined in each case by reference not to one particular rule of law, but many; not to any one fact, however strong that may be, but to all the circumstances con- nected with the goods in question. It is not only, or not so much, whether the . goods are as in themselves, or as belonging to a class, capable of being applied to a military or naval use, but whether, from all the circumstances connected with them, those very goods are or are not destined for such use. Classification of contraband. — Woolsey says: When, however, we ask what articles are contraband, the answer is variously given. Great maritime powers, when engaged in war, have enlarged the list; the nations generally neutral have contracted it. Treaties defining what is contra- band have differed greatly in their specifications; the same nation in its conven- tions with different powers at the same era has sometimes placed an article in the category of contraband, and sometimes taken it out. Writers on the law of INTERNATIONAL LAW. 137 nations, again, are far from uniformity in their opinions. To make the subject clear, it is necessary to enter into a consideration of different classes of articles. In the Peterhojf case, Chief Justice Chase, of the Supreme Court of the United States, in delivering the opinion of the court, divided contraband into three general.classes : The first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; The second, of articles which may be and are used for purposes of war and peace, according to circumstances; and The third, of articles exclusively used for peaceful purposes. Merchandise of the first class, destined for a belligerent country or places occupied by the army or navy, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belliger- ent; while merchandise of the third class is not contraband at all, although liabla to seizure and condemnation for violation of blockade or sie^e. In the war with Spain the Navy Department of the United States issued instructions to blockading vessels and cruisers which will be found at length in the- appendix. Paragraph 19 of these instructions, issued as General Order No. 492, reads as follows : The term contraband of war comprehends only articles having a belligerent des- tination, as to an enemy's port or fl^eet. With this explanation, the following articles are, for the present, to be treated as contraband: Absolutely contraband. — Ordnance, machine guns and their appliances and the parts thereof, armor plate and whatever pertains to the offensive and defensive armament of naval vessels, arms and instruments of iron, steel, brass, or copper, or of any other material, such arms and instruments being specially adapted for use in war by land or sea; torpedoes and their appurtenances; cases for mines, of whatever material; engineering and transport materials, such as gun carriages, caissons, cartridge boxes, campaigning forges, canteens, pontoons, ordnance stores, portable range finders, signal flags destined for naval use, ammunition and explo- sives of all kinds, machinery for the manufacture of arms and munitions of war, saltpeter, military accouterments and equipments of all sorts; horses. Conditionally contraband. — Coal, when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs, and money, when such materials or money are destined for the enemy's forces; provisions, when destined for an enemy's ship or ships, or for a place that is besieged. Article VI of the Royal Decree of Spain, drawn up with regard to the hostilities existing, or about to exist, with the United States, and dated April 2.3, 1898, reads as follows: Under the denomination "contraband of war," the following articles are in- cluded: Cannons, machine guns, mortars, guns, all kinds of arms and firearms, bullets, bombs, grenades, fuses, cartridge matches, powder, sulphur, saltpeter, dynamite and every kind of explosive, articles of equipment, like uniforms, straps, saddles, and artillery and cavalry harness, engines for ships and their accessories, shafts, screws, boilers, and other articles used in the construction, repair, and arming of war ships; and, in general, all warlike instruments, utensils, tools, and other articles, and whatever may hereafter be determined to be contraband. The principal articles mentioned in the classification of the instruc- tions of the United States, but omitted in that of Spain, are horses, as absolutely contraband, and coal, money, and provisions, as con- ditionally contraband. Spain mentions one article — sulphur — which the United States omits. As to horses. Hall justifies our classification when he saj's: Under the mere light of common sense the possibility of looking upon horses as contraband seems hardly open to argument. They may, no doubt, be important during war t^me for agricultural purposes, as powder may be used for fireworks; but the presumption is not in this direction. To place an army on a war footing often exhausts the whole horse reserve of the country. The subsequent losses must be supplied from abroad, and more necessarily so as the magnitude of armies increases. Almost every imported horse is probably bought on account of the 138 INTERNATIONAL LAW. government. If, in rare instances, it is not, some other horse is at least set free for belligerent use. It has been the custom of England and France, also, to regard horses as contraband. By the twenty-fourth article of the treaty between France and the United States in 1778, horses, with their furniture, were held to be contraband. In the treaties between the United States and the Soiith American republics cavalry horses are considered as contra- band. Halleck says: As between countries on the same continent, horses are usually regarded as con- traband, since, when they can be readily transported, they form an important and peculiarly available contribution to military strength. There is little doubt, with its great value as an agent in modern naval warfare, that coal will be increasingly ruled as conditionally contraband. Kent, in treating of articles that may be under certain conditions contraband, such as coal and provisions, says: The most important distinction is whether the articles were intended for the ordinary use of life, or even for mercantile ships' use, or whether they were going with a, highly probable destination to military use. The nature and quality of the port to which the articles are going is not an irrational test. If the port be a general commercial one, it is presumed the articles are going for civil use, though occasionally a ship of war may be constructed in that port, or there may be an unusually large demand for warlike stores thereat in consequence of contiguity to one or other of the belligerent countries. But if the great predominant char- acter of that port, like Brest in France, or Portsmouth in England, be that of a port of military or naval equipment, it will be presumed that the articles are going for military use, although it is possible that the article might have been applied to civil consumption. As it is impossible to ascertain the final use of an article ancipitis usus, it is not an injurious rule which deduces the final use from the immediate destination; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed if at the time when the articles were going a considerable ' armament was notoriously preparing to which a supply of those articles would be eminently useful. England, during the Franco-German war, judged of coal in this way. She refused to consider it as unconditionally contraband, but vessels were prohibited from sailing directly from English ports with coal for the French fleet in the North Sea. It is probable that nations having a limited coal supply will strive to keep coal from the list of contraband articles. France and Russia are at the present time the leading opponents among nations to declaring coal as contraband of war. Russia went so far as to declare at the time of the West African conference of 1884 that she would refuse her consent to any articles in any treaty, convention, or instrument whatever which would imply the recognition of coal as contraband of war. Provisions stand in the same position as coal. In the case of the JongJie Ma/rgaretha it was held by Sir William Scott that provisions, in this case Dutch cheeses, going .to a port of naval equipment 'of the enemy like Brest were to be treated as contraband of war. In the case of the Commercen the Supreme Court of the United States held : By the modem law of nations provisions are not in general deemed contraband, but they may become so, although the property of a neutral, on account of the particular situation of the war or on account of the destination. If destined for the ordinary use of life in the enemy's country they are not in general contraband, but it is otherwise if destined for military use. Hence if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband. INTERNATIONAL LAW. 189 France, in 1885, during her hostilities with China, dedared ship- ments of rice destined for any port north of Canton to be contraband of war. England protested upon the ground that though in particular cases provisions' may be treated as contraband, they can not be so declared in all cases. France justified her action by the fact that rice was essential to feeding the Chinese population as well as- the Chinese armies. In the end the English Government notified the French Government that it would not consider itself bound by the deci- sion of any prize court that would put into effect the doctrine advanced by France. No case, however, occurred ditring the hostilities, as the trade was stopped by the French declaration. Mr. Kasson, then our minister at Vienna, wrote to the Secretary of State, calling attention to the importance to American commerce of the principle involved in the declaration of Prance, the United States being likely to be neutral in European wars and being at the same time a gi'eat food-exporting country. He went on to say : The real principle involved goes to this extent, that everything the want of which will increase the distress of the civil population of , the belligerent coiantry may be declared contraband of war. The entire trade of neutrals with belliger- ents may thus be destroyed without the establishment of an effective blockade of ports. War itself would become more fatal to neutral States than to belligerent interests. Money, silver plate, and bullion, when destined for hostile use or for the purchase of hostile supplies, are contraband of war. Cotton was contraband of war diuriog the late civil war, when it was the basis upon which the belligerent operations of the Confederacy rested. * * * Cotton, in fact, was to the Confederacy as much munitions of war as powder and ball, for it furnished the chief means or obtaining these indispensables of warfare.' The question of contraband articles is largely a matter of treaty. The following list. of articles held to be contraband is taken from the treaty concluded with Bolivia in 1858 : This liberty of navigation and commerce shall extend to all kinds of merchandise 'excepting those oaly which are distinguished by th'e name of contraband of war. Under this name shall be comprehended — 1. Cannon, mortars, howitzers, swivels, blunderbusses, muskets, fusees, rifles, carbines, pistols, pikes, swords, sabers, lances, spears, halberds, hand grenades, bombs, powder, matches, "balls, and other things belonging to the use of. these arms, 2. Bucklers, helmets, breastplates, coats of mail, infantry belts, aioA clothes made up in the form and for military use. 3. Cavalry belts, and horses, with their furniture. ' 4. And, generally, all kinds of arms, offensive and defensive, and iflstruments of iron, steel, brass, and copper, or any other materials manufactured, prepared, and formed expressly to make war by sea or land. All other merchandises and things not comprehended in the articles of contra- band explicitly enumerated and classified as above shall be held and considered as free, and subjects of free and lawful commerce, so that they may be carried and transported in the freest manner by the citizens of both contracting parties, even to places belonging to an enemy, excepting only thoss places which are at that time besieged or blockaded. The following treaties give exactly the same list of contraband and hold the same language as to freedom of trade : Dominican Republic, 1S67; Ecuador, 1839; Guatemala, 1849; Haiti, 1864; Mexico, 1848. The treaties with the United States of Colombia, 1846, Salvador, 1850, give the same list of articles directlj'^ contraband, but add ' ' pro- visions that are imported into a besieged or blockaded place." These are the only treaties, it may be noted, concluded by the United States ' Secretary Bayard to Senor Muruaga, June 38, 1886. 140 INTERNATIONAL LAW. subsequent to the treaty of 1794 with Great Britain, in which it is admitted that provisions become contraband under any circumstances. The reason for including them in the list of contraband in the cases named is not clear, since they would be condemned on another ground, namely, breach of blockade. The following treaties contain substantially the same list of contra- band as that given above : Italy, 1871 — ^the treaty ' ' expressly declares that the following articles, and no other, shall be considered under this denomination." Horses are omitted from the list, but " war saddles and holsters" are included. Holland, 1872 — "soldiers, saltpeter, sulphur, and saddles" are included. Naval stores of all kinds are expressly excepted from the list of contraband, "even if suited for the construction and equipment of vessels of war and for the manufacture of implements of war." Sweden, 1783, renewed by treaty with Sweden and Norway, 1827— includes "sulphur and saltpeter" and expressly excludes naval stores. Russia, 1799, renewed by the treaty of 1828 — includes "saltpeter and sulphur " and omits horses. France, 1800 — includes saltpeter in the list, but omits horses. Venezuela, 1860 — adds saltpeter to the list. Treaties with Brazil, 1828, and Chile, 1832, contained the same list of contraband as that given in the treaty with Bolivia, but were all terminated in pursuance of formal notifications giv6n by those Gov- ei'nments. It follows, then, that the United States at present hold defined and limited agreements as to contraband with Bolivia, Colombia, Santo Domingo, Ecuador, France, Guatemala, Haiti, the Netherlands, Italy, Mexico, Prussia, Salvador, Sweden and Norway, and Venezuela. • Sulphur, as an element entering into explosives is not of so much importance as formerly, but its use in the manufacture of unwarlike articles is extending. In the recent war with Spain, Italy endeavored to have Spain remove sulphur from its list of contraband but without success. In the Peterhoff case it was held by the courts of the United States that destination to a neutral port will not protect from capture articles of contraband where an ultimate destination to the enemy's country or blockaded port can be shown, the immediate neutral destination being used only to cover the transaction. ^ Penalty of carrying contrabamd. — Halleck says: The inception of the voyage is held to complete the offense; and from the moment that the vessel with the contraband articles on board quits her port on a hostile destination the capture may be legally made. It is by no means necessary to wait till the ship and goods are actually endeavoring to enter the enemy's port. The voyage being illegal '' at its commencement, the penalty immediately attaches and continues to the end of the voyage, or at least so long as the illegality 'exists. In the case of Carrington v. Merchants' Insurance Co. it was decided that when the contraband goods have been deposited at the port of destination neither the vessel nor the cargo is liable to seizure on the return voyage, though the new cargo may have been purchased with the proceeds of the contraband. As to indirect voyages, in. his decision in the case of the Stephen ' See case of Stephen Hart, Snow, p. 515. ' That is, from the standpoint of the belligerent whose interests are likely to be injuriously affected by the voyage. INTERNATIONAL LAW. 141 Hart, which contains on the whole the clearest and most forcible statement of the principles and circumstances involved in what is known as continuous voyages, Judge Betts says: This court holds that in all such cases the transportation or voyage of the con- traband goods is to be considered as a unit, from the port of lading to the port of delivery in the enemy's country; that if any part of such voyage or transportation be unlawful, it is unlawful thi-oughout; and that the vessel and her cargo are sub- ject to capture as well before arriving at the first neutral port at which she touches after her departure from England as on the voyage or transportation by sea trom such neutral port to the port of the enemy. In these times of international and extensively developed railway systems, the carriage of contraband at sea could not be entirely stopped where continental conditions exist unless this manner of dealing with continuous voyages be adopted. Wherever insular countries are con- cerned, although evasions may still be made by the use of intermedi- ate neutral ports, still the circiimstances render such evasions much more difficult. Statements were made during our war with Spain that ports in Jamaica and on the Mexican and Central American coasts were used as intermediate ports to ship contraband or evade the block- ade of Cuba, In regard to the penalty of the carriage of contraband, Kent says : When goods are once clearly shown to be contraband, confiscation is the natural consequence. This is the practice in all cases, as to the article itself, excepting provisions; and as to them, when they become contraband, the ancient and strict right of forfeiture is softened down to a right of preemption on reasonable terms. But generally to stop contraband goods wouJd, as Vattel observes, prove ineflEeotual relief, especially at sea. The penalty of confiscation is applied in order that the fear of loss may operate as a check on the avidity for gain and deter the neutral merchant from supplying the enemy with contraband articles. The ancient custom was to seize the contraband articles and keep them, on paying their value. But the modern practice of confiscation is far more agreeable to the mutual duties of nations, and more adapted to the preservation of their rights. It is a general understanding, grounded upon true principles, that the powers at war may seize and confiscate all contraband goods without any complaint on the part of the neu- tral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself. It was contended on the part of the French nation in 1796 that neutral governments were bound to restrain their subjects from selling or export- ing articles, contraband of war, to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell at home to belligerent powers contraband articles, subject to the right of seizure in transitu. This right has since been explicitly declared by the judicial authority of that coun- try. The right of the neutral to transport and of the hostile power to seize are conflicting rights, and neither party can charge the other with a criminal act. As to the neutral carrier, Dana says : By the present practice of nations, if the neutral has done no more than carry goods for another which are in law contraband, the only penalty upon him is the loss of his freight, time, and expenses. If he makes use of fraudulent devices to mislead the belligerent and defeat or impair the right of search, he is liable to condemnation for unneutral acts in aid of the enemy. So, if he not only carries contraband goods but engages in a contraband service, * * * But if she (the vessel) has no relation with the enemy's government, and, as a private merchant vessel, is carrying goods on private account, as merchandise, to the enemy's ports, to be put into the market there or delivered into private hands, she is not, as the practice is now settled, liable to condemnation, whatever be the character of her cargo, * * * The interests of peace and commerce on the one hand, and those of war on the other, have, in the conflict of their forces, rested at a practical line of settlement. The interests of peace have prevailed so far as to permit the carrier to transport contraband goods, subject to no other penalty than the loss of his commercial enterprise, i. e,, his freight and expenses, wnile the interests of war have prevailed so far as to permit the belligerent to stop the contraband goods on their passage and convert them to his own Use, The advantage of this is that the carrying trade of the world may go on, subject to an ascertainable risk, which may be provided 142 INTERNATIONAL. LAW. for by contract and guarded against by insurance; and producers and merchanta can continue their business and procure transportation without criminality, tak- ing the risk of the capture and condemnation of noxious artic es. At the saUie time the belligerents have the further security of being able to condemn all the interests involved, whether vessel or cargo, if there have been fraudulent practise or hostile service. Chief Justice Chase, in the Peterhoff case, says : It is an established rule that the part of the cargo belonging to the same owner as the contraband portion must share its fate. This rule is well stated by Chan- cellor Kent thus: " Contraband articles are infectious, as it is called, and contami- nate the whole cargo belonging to the same owners, and the invoice of any particular acrticle is not usually admitted td exempt it from general confiscation." So much of the cargo of the Peterhoff, therefore, as actually belonged to the owner of the artillery harness and the other contraband goods must be also condemned. Lord Stowell had previously, in the Staadt Embden, said that in his opinion the law of nations required that innocent articles, to escape the contagion of contraband articles of a cargo, must be the property of a different owner. It is the current practice, where the ship and the contraband articles of the cargo belong to the same owners, to confiscate the vessel as well as the articles. Ortolan differs from the common ruling upon this sub- ject by advocating the release of the vessel carrying the contraband even if owned by the same owners. The United States, in a treaty with France in 1800, which expired in 1808,^nd with Sweden, the Central American republics — Mexico, Venezuela, Peru, Ecuador, and New Granada — at other times, have established the practice, as between the United States and those coun- tries,' of allowing the continuance of the voyage of the neutral carrier of contraband if he abandons the contraband on board of the bellig- erent. This would of course mean a quantity sufficiently small to be received by the captor. Hall says that it can scarcely be believed that the vitality of such a practice could stand the test of a serious maritime war, while Dana As the captor must still take the cargo into port and submit it to adjudication, and as the neutral carrier can not bind the owner of the supposed contraband not to claim it in court, the captor is entitled for his own protection to the usual evi- dence of the ship's papers and whatever other evidence induced him to make the capture, as well as the examination on oath of the master and supercargo of the vessel. It may not be possible or convenient to detach all the papers and deliver them to the captor, and certainly the testimony of the persons on board can not be taken at sea in the manner required by law. Dana goes on to say that a strong argument might be made from these considerations that the clauses in the treaties containing this rule can only be applied to cases where there is the capacity on the part of the neutral vessel to insure the captor against a claim on the goods. In any case the contraband articles are not legal prize until cout demned. Mr. Dana's argument as to the treaties with the American Kepublics extends also to the peculiar provisions of the treaty with Prussia. By the treaty with Prussia of 1799, continued in part by that of 1828, it was agreed that even articles directly contraband should not be confiscated. Vessels of either party having contraband on board, may be stopped and detained as long as the belligerent judges necessary to protect himself from the effects of the delivery of the contraband to the enemy, but the neutral proprietors are to receive a reasonable compensation for the loss occasioned by the detention. Or the captor INTERNATIONAL LAW. 143 may take any or all of the contraband merchandise for his own use, paying for it the market price at the port of destination. The treaty contains the same stipulations for the freedom of the vessel on delivery of the conti'aband to the captor as is found in other treaties cited. '^ There is one penalty or restriction, yet to be referred to, and that- is what is known as the preemption of contraband articles. Hall says : In strictness, every article which is either necessarily contraband, or which has become so from the special circumstances of the war, is liable to confiscation; but it is usual for those nations who vary their list of contraband to subject the latter class to preemption only, which by the English practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at 10 per cent on the amount. This mitigation of extreme belligerent privileges is also introduced in the Case of products native to the exporting country, even when they are affected by an inseparable taint of contraband. Sec. 63. Unneutral Service or Persons and Dispatches as Contraband. The carrying of certain persons and dispatches by neutrals for belligerent purposes is not really a contraband act, but is sufficiently like such an act to be generally discussed under the head of contra- band of war. Hall places acts and adventures of this kind under a distinct head, namely, "Analogues of contraband." Dana and T. J. Lawrence speak of them as unneutral acts, the latter giving the dis>- tinct title of "Unneutral service" to such actsi These acts difOer from contraband acts by a closer connection and association with the belligerent than can be af&rmed by the mere trans- port of contraband of war; and, as the title of Lawrence suggests, the acts are more in the nature of a direct service to a belligerent than that involved in the transporting of merchandise for sale to a good market. These acts are not violations of neutrality that involve the government of the neutral State, as they are done either beyond the jurisdiction of such State or with so much secrecy that they can not readily be detected or prevented. ' Woolsey says: If the obligations of neutrality forbid the conveyance of contraband goods to the enemy they also forbid the neutral to convey to him ships, whether of war or of transport, with their crews, and still more to forward his troops and dispatches. These have sometimes been contra.band articles."" * * * But in truth, as Heffter remarks, they are something more than contrab£|,nd, as connecting the neutral more closely with the enemy. A contraband trade may be only a continuation of one which is legitimate in peace, but it will rarely happen that a neutral undertakes in time of peace to send troops of war to another nation, and the carrying of hostile dispatches implies a state of war. A neutral vessel which is used as a transport for a 'belligerent is subject to confiscation upon capture by the other belligerent, and the military or naval persons become prisoners of war. It is immaterial whether the vessel be a transport by voluntary contract or otherwise, and it is also immaterial whether the number of persons carried be great or small. As Wheaton says, "To carry a veteran general, under some circumstances, might be a much more noxious act than the con- veyance of a whole regiment." In the case of the Orozemho, in 1807, an American vessel chartered to convey three military persons of distinction and two civil officials, the vessel was condemned by Sir William Scott. In this case, as in that of the Friendship and ithe Caroline, the offense was rather one of engagement of the vessel as an enemy transport than a mere carry- ing of the military persons of the enemy as passengers. An English ' Q-lass, International Law, p. 402. 144 INTERNATIONAL LAW. court in 1855 went so far during the Crimean war as to condemn a Bremen ship, the Greta, for carrying 270 shipwrecked Russian officers and seamen from a Japanese to a Russian harbor. Hall says : In the transport of persons in the service of a belligerent the essence of the offense cqnsists in the intent to help him: if. therefore, this intent can in any way- be proved, it is not only immaterial whether the service rendered is important or sl.ght, but it is not even necessary that it shall have an immediate local relation to warlike operations. It is possible for a neutral carrier to become, affected by responsibility for a transport effected to a neutral port, and it may perhaps be enough to establish liability that the persons so conveyed shall be iu civil employment. Concerning this statement it may be well to remark that the nature of the act shoijld be held as sufficient evidence of the intent of the neutril individual. A neutral ship shauld not, in general terms — 1. Tran^nit or repeat certain messages or information to or for a belligerent. 2. Carry certain dispatches for a belligerent. 3. Transmit certain persons in the service of a belligerent. 4. Accompany naval or military forces as auxiliaries, that is, as colliers, supply, or repair vessels. Hospital ships or transports under the Red Cross are, of course, not included in the above. As to the first categorj'^, if a neutral vessel repeats signals made between fleets or ships or from shore to ships, it is manifest that such , vessel is serving one belligerent at the expense of another to an extent that the other can but regard'her as an enemy and treat her so while she is performing this unneutral service. In the same manner, a vessel which is engaged in laying, cutting, or repairing a telegraph cable in. war time, for exclusively war pur- poses, is serving one belligerent most effectively at the expense of the other. The second undertaking which may be considered as forbidden to a neutral ship is the carriage of certain classes of dispatches for a belligerent. The kind of dispatches referred to are military or naval dispatches or dispatches between a belligerent government and the officials of its colonies and dependencies. Diplomatic and consular dispatches of a general nature may be carried without involving a performance of unneutral service or without subjecting vessels to the penalties of such service. Concerning this, Sir William Scott ruled that — The carr^g of two or three cargoes of military stores is necessarily an assist- ance of limited nature, but in the transmission of dispatches may be conveyed the entire plan of a campaign that may defeat all the plans of the other belligerent in that part of the world. * * * It is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character — as an act of the most noxious and hostile nature. The offense of fraudulently carrying dispatches in the service of the enemy being then greater than the carrying of contraband under any circumstances, it becomes absolutely necessary, as well as just, to resort to some other penalty than that inflicted in cases of contraband. The confiscation of the noxious article, which constitutes the penalty in contraband where the vessel and cargo do not belong to the same person, would be ridiculous when applied to dispatches, There would be no freight dependent on their transportation, and therefore this penalty could not, in the nature of things, be applied. The vehicle in which they are carried must therefore be confiscated.' iWheaton, 635, 636. INTERNATIONAL LAW. 145 Hall, discussing the question of mail and other regular steamers, says: If a neutral, who has been in the habit, in the way of his regular business, of carrying post bags to or from a belligerent port, receives sealed dispatches with other letters in the usual bags, or if he receives a separate bundle of dispatches without remuneration, he can not be said to make a bargain with the belligerent or to enter his service personally for belligerent purposes. He can not be said to have done an act of trade, of which he knows the effect will be injurious to the other belligerent. Dispatches may be noxious, but they may also be innoxious, and the mere handing of dispatches to hina in the ordinary course of business affords him no means of judging of their quality. A neutral, accepting dispatches in this manner, can not therefore be subjected to a penalty. When, again, a neutral, in the way of his ordinary business, holds himself out as a common car- rier, willing to transport everybody who may come to him for a certain sum of money from one specified place to another, he can not be supposed to identify himself specially with belligerent persons in the service of the State who take pas- sage with him. * * * Vessels not being subject to a penalty for carrying dispatches in the way of ordi- nary business, packets of a regular mail line are exempted as of course, and mer- chant vessels are protected in a like manner, when, by municipal regulations of the country from the ports of which they have sailed, they are obliged to take on board all government dispatches or letters sent from the post-ofi&ces. The great increase which has taken place of late years in the number of steam- ers flying regularly with mails has given importance to the question whether itis possible to invest them with further privileges. At present, although secure from condemnation, they are no more exempted than any other private ship from visit; nor does their own innocence protect their noxious contents, so that their post bags may be seized on account of dispatches believed to be within them. But the secrecy and regularity of postal communication is now so necessary in the inter- course of nations, and the interests affected by every detention of the mail are so great, that the practical enforcement of the belligerent right would soon become intolerable to neutrals. Much tenderness would no doubt be shown in a naval war to mail vessels and their contents, and it may be assumed that the latter would be seized under very exceptional circumstances. France, in 1870, directed its oflBcers that " when a vessel subject to visit is a packet boat engaged in postal service, and with a government agent on board belonging to the State of which the vessel carries the tiag. the word of the agent may be taken as to the character of the letters and dispatches on board." It is likely that the line of conduct fol- lowed on this occasion will serve as a model to other belligerents. At the same time it is impossible to overlook the fact that no national guaranty of the inno- cence of the contents of the mail can readily be afforded by a neutral power. No government could undertake to answer for all letters passed in the ordinary way through its post-ofSces. To give immunity from seizure as of right to neutral mail bags would therefore be equivalent to resigning all power to intercept cor- respondence between the hostile country and its colonies, or distant expeditions sent out by it, and it is not difficult to imagine occasions when the absence of such power might be a matter of grave importance. Probably the best solution of the difficulty would be to concede immunity as a general rule to mail bags upon a declaration in writing being made by^ the agent of the neutral government on board that no dispatches are being carried for the enemy, but to permit a bellig- erent to examine the bags upon reasonable grounds of suspicion being specifically stated in writing. Paragraph 15 of the instructions of the Navy Department to block- ading vessels and cruisers^ drawn up for the war with Spain, says : A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure, but not when she is a mail packet and carries them in the regular and customary manner, either as a part of the mail in her mail bags or separately, as a matter of accommodation and without special arrang:ement or remuneration. The voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade. There can not be any reasonable objection on the part of a belliger- ent to the eari-iage of private mail from another belligerent, even during hostile operations, by a neutral merchant vessel met at sea or elsewhere. 6433 10 146 INTERNATIONAL LAW. The transportation by a neutral of certain kinds of persons in the service of a belligerent can be most objectionable. A neutral does not come within the forbidden limits if he transports on board a regiilar passenger steamer individuals who come on board as ordinary passengers, even if they should turn out eventually to be officers or isolated individuals in the service of one or the other of the belligerents. In the case of the Friendship Lord Stowell stated that no British tribunals had ever decided against a neutral vessel for carrying a military ofi&cer in the service of an enemy if he went as an ordinary passenger and at his own expense. But naval or military persons coming on board in that character, and being transported by a neutral vessel at the expense of a belligerent government, subjects this vessel to a capture and confiscation. Dana sums up the whole subject of carrying persons and dispatches by giving three rules which he claims to be in accord with the deci- sions of English prize courts and with the policy of the English Gov- ernment, as well as with the decisions of the prize courts and national acts of other States. They are : (1) If the vessel is in actual service of the enemy as a transport, she is to be con- demned. In such case it is immaterial whether the enemy has got her into his service by voluntary contract or fraud. It is also in such case immaterial what is the number of the persons carried or the quantity or character of the cargo; and, as to dispatches, the court need not speculate on their immediate military impor- tance. It is also unimportant whether the contract, if there be one, is a regular letting to hire, giving the possession and temporary ownership to the enemy, or a simple contract of afEreightment. The truth is, if the vessel is herself under the control and management of the hostile government, so as to make that government the owner pro tempore, the true ground of coiidemnation should be as enemy's property. The interpretation of this technical phrase of prize law will cover all such cases. (3) If a vessel is not iji the enemy's service, still, if the master knowingly takes for the enemy's government or its agents persons or papers of such a character or destination that the transporting of them under the neutral flag is an actual bellig- erent service to the State, it is an unneutral act which forfeits the vessel. If he avers ignorance of the character of the persons or papers, all the circumstances are to be considered for the purpose of determining not only the truth of his averment, but whether his ignorance, though real, is excusable. He is bound to a high degree of diligence in such cases, and if the circumstances fairly put him on inquiry, which he does not properly pursue, he will not be discharged. Among those cir- cumstances are the character of the dispatch, as far as shown from itself, the cir- cumstances attending its delivery or custody, and the character of the ports of departure and destination of the vessel as being neutral or hostile. In the case of a vessel not in the enemy's service, but doing such acts for his benefit, can she be said to be enemy's property pro hac vice? (3) It is not an unneutral intervention, entailing a penalty, to knowingly carry a dispatch of a character recognized as diplomatic in the international intercourse of States. Of this class is a dispatch passing either way between the enemy's home government and its diplomatic agent in a neutral country, or between a neutral government and its diplomatic agent in an enemy's country; and consuls- general come within the privilege of this rule. But if the dispatches are placed within a private vessel of the nation with whom the ambassador's nation is at war, and she is captured bya cruiser of the former nation, the dispatches have no immunity. As to the cases mentioned under this last grouping, it may toe said that the dispatches from a neutral diplomatic agent to a belligerent, or vice versa, should be exempt from seizure upon the ground also that they may be as important to the interests of the neutral as to the inter- ests of the belligerent State, and hence their transmission, as Dana says, is not an unneutral act. INTERNATIONAL LAW. 147 Paragraph 16 of the instructions of the Navy Department, previously referred to, says that — A neutral vessel in the service of the enemy, in the transportation of troops or military persons, is liable to seizure. There are two famous cases that come within the limits of this sub- ject that may not improperly be discussed here. The first is the case of the Trent The Trent was one of a line of English mail steamers plying between Havana and St. Thomas, there connecting with a line for England. At an early stage of our civil war, in 1861, Messrs. Mason and Slidell, with their secretaries, took passage on board the Trent at Havana for England. These gentlemen had been appointed as diplomatic agents by the Confederate Government to England and France, and had with them dispatches and instructions which were under their personal charge. The Trent was overhauled on the high seas by the U. S. S. San Jacinto, and Messrs. Mason and Slidell, with their secretaries, forcibly removed from the Trent, their dispatches being secretly by them given to some of the passengers to be taken to Europe. There was no evidence or charge that the commander of the Trent aided in the con- cealment or forwarding of these dispatches. He denied the right of search by the cruiser, obstructed in every way the acts of Captain Wilkes, and vielded only to superior power. Captain Wilkes per- mitted the Trent to proceed and took Messrs. Mason and Slidell as prisoners to the United States. The act of Captain Wilkes was unauthorized by our Government, and upon demand by the British Government the persons were surrendered. Mr. Seward admitted that these persons could not lawfully be taken from the Trent at sea, but contended that she might have been brought in as a prize. Mr. Dana says in regard to this affair: This celebrated case can be considered as having settled but one principle, and that had substantially ceased to be a disputed question, viz, that a public ship, though of a nation at war, can not take persons out of a neutral vessel at sea, whatever may be the claim of her Government on those persons. It has been borne in mind that Earl Russell in his demands makes no reference to the diplo- matic character of Mason and Slidell, oi to any special right of exemption in this case. He presents the naked fact that a United States vessel of war had taken persons from an innocent British neutral vessel at sea. To his reclamation against such proceeding the United States were only too glad to assent, considering it a triumph of their own principles, secured by their own decision, made against a strong national feeling in the particular case on the demand of the only power that had ever contended for the opposite doctrine. Sir Sherston Baker, in examining the question, says : The rule, therefore, to be collected from these authorities is, that you may stop an enemy's ambassador in any place of which you are yourself the master, or in any other place where you have a right to exercise acts of hostility. Your own territory or ships of your own country are places of which you are your.self the master. The enemy's territory or the enemy's ships are places in which you have the right to exercise acts of hostility. " Neutral vessels, guilty of no violation of the laws of neutrality, are places where you have no right to exercise acts of hostility. Mr. Thomas L. Harris, an American writer, in a work wholly devoted to this case, sums up his views of the whole question in the following conclusions: 1. The commissioners were not contraband of war in any sense of the term. 2. Their dispatches, being of a nonmiUtary character, were not contraband of war. 148 INTERNATIONAL LAW. 3. A neutral power is entitled to hold necessary informal relations with au unrec- ognized belligerent. 4. The Trenthad in no way violated her duties as a neutral ship when she was stopped by the San Jacinto. 5. Captain Wilkes had an undoubted right to stop and search the Trent for con- traband of war. In the absence of anything of this character, resistance to the right of search alone would have made the Trent liable to capture. 6. In any event, Captain Wilkes had no right to seize the persons or dispatches of the Confederate commissioners while they were on board the Trent on the high seas. 7. Viewed solely from the standpoint of international law, sound reasons were not given for the surrender of the commissioners by Secretary Seward. In most discussions of this question the point of view of the case has been that of contraband of war rather than from that of unneu- tral service. The comparatively recent case of the Kowshing also comes under tjiis head of an unneutral service, and is as follows: The Kowshing was an English steamer, engaged ordinarily in the Chinese coasting trade. She was chartered by the Chinese Govern- ment especially .o carry troops from China to Korea before the actual outbreak of hostilities between China and Japan, but at a time when a controversy and strained relations existed between them concerning Korea, and just before hostilities commenced. This controversy was a public affair, and the Kowshing was one of the ten transports char- tered by China to carry troops exclusively to different parts of Korea, which was also out of their usual routes. The Kowshing had on board aboiit 1,200 Chinese soldiers, with arms and ammunition, two Chinese generals, a German officer who had been employed in a military capacity by the Chinese for years, and 12 field guns. On the morning of the 2oth of July, 1894, when entering the Korean archipelago, near Chemulpo, the Kowshing was met by three Japanese vessels of war, one of whom ordered her to anchor and afterwards to follow the Japanese vessel. This latter the master of the Kowshing was forbidden to do raider penalty of death by the Chinese soldiery on board and their officers. These latter also prevented the English master and officers of the Kowshing from leaving the ship, which facts were communicated to the Japanese ves- sel of war, the Nan-iwa-han. The Nan-iiva-kan, in view, it is sup- posed, of the menacing attitude of the Chinese, refused to send a boat to the Kowshing, but after warning the Europeans to leave the ves- sel, sunk the Kowshing by gun and torpedo fire. The lives lost were in number over 1,000, some of whom were Europeans belonging to the ship. No indemnity nor reparation was claimed from the Japan- ese by the English Government, but it is understood that an indem- nity was required from and paid by the Chinese Government for cer- tain persons and losses in the Kowshing, as it has been stated, and apparently without contradiction, that certain war risks were guar- anteed by the agents of the Chinese Government to the company owning the Kowshing. It has been asserted that the Japanese Government were at fault in destroying the Kowshing before the declaration of war, and as inno- cent neutral property. Without going into the question of hostilities without declaration of war, which is treated elsewhere, it appears in the face of matters that, as the Kowshing was chartered with the prob- ability of hostilities and without proviso making the charter void in case of hostilities, that she was engaged in an enterprise which, military in its character, might at any moment be warlike service for a bellig- INTERNATIONAL LAW. 149 erent, and hence unneutral service, "with its liability to seizure and condemnation. The destruction of the vessel with its military and other passengers was an extreme penalty, and'might well have been avoided by the good judgment of a humane foe, though it must be borne in mind that although the Japanese war vessels were mechanically superior to the KowsMng, yet in the number of the personnel of the armed force the KowsMng was the superior, as well as in the hands of an unrea- soning enemy, who refused to allow obedience to the directions of the vessels of war or to surrender as prisoners, or even to allow the ship to be brought before a prize court for trial as engaged in the unneutral service of the enemy. Nothing justifies the conduct of the Japanese, proven by the evidence, in firing upon the Chinese in the water after the sinking of the ship, but they seemed to have avoided any techni- cal violation of the rules of international law, as the KowsMng, being practically an enemy vessel, was engaged in a hostile enterprise and taken by force out of the control of the neutral commander and his of&cers. The risks incurred were hence the same as the risks that pertained to a Chinese vessel engaged in operations adjudged by the Japanese to be hostile against themselves. Chapter XI. Blockade; Continuous Voyages; Right of Search. Section 63.— Basis and Character op Blockades. Blockades may be either military or commercial, or may partake of the nature of both. As military blockades, they may partake of the nature of a land or land and sea investment of a besieged city or sea- port, or they may consist of a masking of an enemy's fleet by another belligerent fleet in a port or anchorage where commerce does not exist. As commercial blockades, they may consist of operations against an enemy's trade and revenue, either localized at a single important sea- port or as a more comprehensive strategic operation by which a por- tion or the entire sea frontier of an enemy is placed under blockade. A measure of this kind was applied by the British in the war of 1812 to our Atlantic coast; by the Federal Government in the civil war to our Southern Atlantic and Gulf coast, and by the United States to the coasts of Cuba in the war with Spain. A measure of this kind is a war operation of vital importance, conducing strongly to a suc- cessful peace, not only by the suppression of that part of a nation's revenue arising from customs duties, but by causing a cessation or great reduction of the export of the great products of the country, upon the movement and sale of which so much of the. prosperity and the livelihood of its citizens depend. It may also cut off the supply or the imported part of the supply of the materials requisite for the effective conduct of the war. Efforts have been made to do away with commercial blockades by neutral nations. The United States at one time advocated such abo- lition, but afterwards, during the period of the civil war, established the largest commercial blockade ever known. Of this blockade Dana says: It extended from the Potomac to the Rio Grande, both on the Atlantic coast and the Gulf of Mexico, over a stretch of over 3,000 miles. Except at Charleston, the blockading force made no attempt to reduce the cities blockaded. Not more than one of the ports, and that only for a portion of the time, was a naval station ot tiie enemy. None of them were military or fortified towns, unless every town is such which is defended at all, and none of the ports except Charleston, and for a short time one or two others, were subjects of direct military operations looking to their siege or reduction. This vast blockade for four years was purely commercial. The great aid it contribui;ed toward the diminution of the resources of the enemy, their exhaustion and final surrender, and the now generally recognized necessity for it, have doubtless been instructive to America and the rest of the world. It has been, shown that there may be wars in which such a blockade may be extremely useful, if not necessary. At the same time it has shown that a blockade, commercial in its immediate action, may be a necessary part of a lar.'e system of military strategy in its more remote relations. The strategy was to surround the entire rebel territory by sea and land, force it in upon itself, reducing its proportions and resources, and making advances into its interior from the seaooast or by land at such points as should be selected. The blockade of the entire coast did not only cut oflE the com- merce and shut in the naval force of the entmy, but compelled them to maintain. 150 INTERNATIONAL LAW. 151 military forces to defend ports from possible attacks of the ships, so diverting their strength from the immediate scenes of operations by the aiinies. Charleston was, as Mr. Dana suggests, an example of a sea invest- ment or military blockade and a commercial blockade combined. In cases of this kind a much larger blockading force is necessary, partly to carry on the attack upon the enemy's fortifications, and also because these fortifications assist the entrance of the blockade runners. A blockade being an operation of war, any government, independent or de facto, whose rights as a belligerent are recognized, can institute it as an exercise of those rights. The circumstances of a land and sea blockade are very different, one being carried on in territory of which the blockader is in possession, while the other extends over both marginal waters and the high seas. The sea being the highway of all nations, the blockade with which international law is chiefly concerned, since it involves the relations of belligerents with neutrals, especially with the neutrals as individuals, is the sea or maritime blockade. The' neutral has the general right of trade and access to a bellig- erent, unless this right comes in contact with the special needs and operations of the other belligerent; bvit these needs and blockades, as in other matters of the kind, must be duly set forth and carried on under certain rules and usages in conformity with the law of nations. Among the first of the rules is the one that the blockade must be properly instituted, and sufficiently made known to all likely to be affected by its institution. Says Halleck: The institution of a siege or blockade is a high act of sovereignty, and must pro- ceed either directly from the government of the State or from some officer to whom the authority has been expressly or impliedly delegated. Notification of blockade. — Kent says: It is absolutely necessary that the neutral should have had due notice of the blockade in order to affect him with penal consequences of a violation of it. This information may be communicated to him in two ways — either actually, by a formal notice from the blockading power, or constructively, by notice to his gov- ernment, or by the notoriety of the fact. It is immaterial in what way the neutral comes to the knowledge of the blockade. If the b ockade actually exists and he has a knowledge of it, he is bound not to violate it. A notice to a foreign government is a notice to all the individuals of that nation; and they are not permitted to aver ignorance of it, because it is the duty of the neutral government to communicate the notice to their people. There is a difference in the usage of nations as to the amount of notification necessary -to be given to neutrals. The practice of the United States and Great Britain, which is followed by Germany and Denmark, is to recognize two kinds of blockade — one de facto, which begins and ends with the fact and which condemns no vessel attempt- ing to enter the harbor unless previously warned off, and- the other a blockade of which notice is duly promulgated and accompanied by the fact. In the latter case it is to be presumed that the blockade con- tinues until notice to the contrary is given by the blockading State. In this case ignorance of the blockade is not accepted as an excuse for sailing for the blockaded port or an appearance in its vicinity. Being bound to a blockaded port is considered evidence, under ordinary circumstances, of an intention to violate the blockade. The French practice, which is also followed by Italy, Spain, and Sweden, is to give a notification from the government of the blockad- ing State and a notice from a vessel of the blockading force of a port. Each neutral vessel is individually warned by one of the blockading 162 INTERNATIONAL LAW. squadron, a vessel not blockading being considered incompetent to warn the vessel. The warning is indorsed on the ship's papers, with date and locality, and only on subsequent attempts to enter is the vessel liable to seizure. Comparing the two methods, Hall says : The theory accepted in England and the United States is the natural parent ot a more elastic usage. Notification is a convenient mode of fixing a neutral with knowledge of the existence of a blockade, but it is not the necessary condition of his liability to seizure. In strictness, if a neutral vessel sail with the destination of a blockaded port from a place at which the fact of the blockade is so notorious that ignorance of its existence is impossible, confiscation may take place upon seizure without previous warning. But in practice, notilication of some sort ia always given. If the blockade is instituted under the direct authority of the gov- ernment, the fact of its commencement is notified to foreign States. The infor- mation thus communicated afifeota their subjects, who must be supposed to be put in possession of the knowledge which is afforded with the express object of its being communicated to them. Furthermore, if approach for inquiry or for warning, after due general notification, were permissible in these days of fast steamers, " it will be readily seen," as Judge Field observed, "that the greatest facilities would be afforded to elude the blockade." The President's proclamation of blockade of April 19, 1801, stated in general terms that neutral vessels would be individually notified at each blockaded port, but Commodore Pendergrast, commanding the North Atlantic blockading squadron, in giving notice of the actual commencement of the blockade under the President's proclamation, limited the warning to vessels in ignorance of the existence of the blockade. This construction of the President's proclamation was not disavowed by the Government and was upheld by the courts of the United States in the prize cases brought before them. Judge Grier ruled : A vessel which has full knowledge of the existence of a blockade before she enters upon her voyage has no right to claim a warning or indorsement when taken in the act of attempting to enter. It would be an absurd construction of the President's proclamation to require a notice to be given to those who already had knowledge. A notification is for those only who have sailed without a knowl- edge of the blockade and get the first information from the blockading vessel. After these decisions were made this usage became settled and accepted, and no complaints were made against this construction of the proclamation of the President, "and under it," says Dana, "the law respecting notice of blockades was applied as heretofore in the English and American courts." In the instructions to blockading vessels and cruisers, drawn up for the war with Spain, the following paragraphs bear upon this subject: 3. Neutral vessels are entitled to notification of a blockade before they can be , made prize for its attempted violation. It may be actual, as by a vessel of the blockading force, or constructive, as by a proclamation of the Government main- taining the blockade, or by common notoriety. If a neutral vessel can be shown to have had notice of the blockade in any way, she is good prize, and should formal notice not have been given, the rule of constructive notoriety should be construed in a manner liberal to the neutral. 4. Vessels appearing before a blockaded port, having sailed without notifica- tion, are entitled to actual notice by a blockading vessel. They should be boarded by an officer, who should enter in the ships log the fact of such notice, such entry to include the name of the blockading vessel giving notice, the extent of the block- ade, the date and place, verified by his official signature. The vessel is then to be set free, and should she again attempt to enter the same or any other blockaded port as to which she has had notice, she is good prize. 5. Should it appear from a vessel's clearance papers that she sailed after notice of blockade had been communicated to the country of her port of departure, or after the fact of blockade had, by a fair assumption, become commonly known at INTERNATIONAL LAW. 153 that port, she should he sent as a prize. There are, however, treaty exoeptions to this rule, and these exceptions should be strictly observed. 6. A neutral vessel may sail in good faith for a blockaded port, with an alterna- tive destination to be decided upon by information as to the continuance of the blockade obtained at an intermediate port. But in such case she is not allowed to continue her voyage to the blockaded port in alleged quest of information as to the status of the blockade, but must obtain it and decide upon her cruise before she arrives in suspicious vicinity; and if the blockade has been formally estab- lished with due notification, any doubt as to the good faith of such a proceeding should go against the neutral and subject her to seizure. Blockades as a rule are instituted to prevent both ingress and egress, and it is a settled usage that a vessel in a blockaded port is presumed to have notice of a blockade as soon as it has been commenced. The vessel is allowed to come out, however, with the cargo which was on board when the blockade was instituted, and a certain period is gen- erally allowed after the commencement of the blockade before the egress of a vessel is a breach of blockade. In the war with Spain this period was one of thirty days. What constitutes an effective hlocJcade. — Halleck says: It is now a well-settled principle of international jurisprudence that a lawful maritime blockade of a port requires the actual presence of the blockading force. A mere proclamation of notification of one belligerent that such a port of the other belligerent will be blockaded at such a time, and thus closed to neutral commerce, is not sufficient to constitute a legal blockade ; the force must be actually present at the entrance to the port, or sufficiently near to prevent communication. Nor is the mere presence of the hostile force sufficient of itself to make the blockade a 1 egal one ; it must not only be actually present, but it must be large enough to prevent communication, or at least to render it dangerous to attempt to enter the port. The actual force necessary to maintain an effective blockade varies with the circumstances. A treaty between France and Denmark, con- cluded in 1742, required that the entrance of a port should be closed by at least two vessels, or by a battery on shore. A later treaty between Holland and the Two Sicilies required the presence of at least six vessels at the distance of a little more than gunshot from the port, or the existence of batteries on shore so placed that entry could not be made except by passing under the guns of the besieger. The declaration of Paris in 1856 prescribed: Blockades to be obligatory are to be effective— that is to say, maintained by a sufficient force to shut out the access of the enemy's ships and other vessels in reality. The United States have practically become a party to this declara- tion, but have in the instructions issued during the war with Spain adopted a more satisfactory definition of an effective blockade. This definition reads as follows : 3. A blockade to be efEective and binding must be maintained by a force suffi- cient to render ingress to or egress from the port dangerous. If the blockading vessels be driven away by stress of weather, but return without delay to their stations, the continuity of the blockade is not thereby broken; but if they leave their stations voluntarily, except for purposes of the blockade— such as chasing a blockade runner — or are driven away by the enemy's force, the blockade is aban- doned or broken. As the suspension of a blockade is a serious matter, involving a new notification, commanding officers will exercise especial care not to give grounds for complaints on this score. It was decided in the case of the Circassian that a blockade may be made effective by batteries on shore as well as by ships afloat, and, in ease of an inland port, may be maintained by batteries commanding the river or inlet by which it may be approached, supported by a naval force sufficient to warn off innocent and capture offending vessels attempting to enter. ' 154 INTEKNATXONAL LAW. An occasional evasion of a blockade does not prevent it from being effective. Lord Russell, after consultation with the law oflBcers of the Crown, wrote as follows to the British minister at Washington in 1862 concerning our blockade during the civil war: Her Majesty's Government are of the opinion that, assuming that the blockade is duly notified, and also that a number of ships are stationed or remain at the entrance of a port, sufficient really to prevent a.cce8s or to create evident danger on entering or leaving it, and that these ships df) not voluntarily permit in^ess or egress, the fact that various ships may have successfully escaped through it will not in itself prevent the blockade from being an effective one by international law. Hall says further on this subject : Provided that access is in fact interdicted, the distance at which the blockading force may be stationed from the closed port is immaterial. Thus Buenos Ayres has been considered to be eflEectually blockaded by vessels stationed in the neighborhood of Montevideo; and during the Russian war in 1854 the blockade of Riga was main- tained at a distance of 120 miles from the town by a ship in the Lyser Ort, a channel 3 miles wide, which forms the only navigable entrance to the gulf. The dif&eulty of blockading certain ports during our civil war may be appreciated when it is stated that the blockade of the port of Wil- mington in 1864 required a force of fifty vessels, all of speed, and some of them the fastest in the United States Navy. A blockade is raised when an enemy's force succeeds in driving off the vessels engaged in the blockade or when the blockading vessels are withdrawn by the government instituting the blockade. But in case of hostile attack it must be shown without question that all of the blockading vessels were driven from their stations ofE the port. In this case the same notice is required for a renewal as for the original establishment of the blockade. A blockade whose establishment has been regularly notified to neu- tral governments must be presumed to continue until notification is given by the blockading government of a discontinuance, unless clear proof to the contrary can be shown. In the case of the Nancy (Snow's Cases, p. 494) it was held by the privy council of Great Britain in 1809 that where the blockading force is temporaiily absent from the port blockaded, in order to accomplish other objects, no penalty attaches to a vessel which enters and leaves the port during such absence. In this case it was held that the peri- odical appearance of the vessel in the oflng could not be supposed to be a continuation of a blockade, which had been previously maintained by a number of vessels and with such rigor that no vessel had been able to enter the island (of Martinique) during its continuance. If the blockading force becomes instifacient and negligent in its blockade or partial in the execution of its duties toward individual ships or toward one nation more than another, the blockade may be ruled to be ineffective and void. A constructive or paper blockade is one established by decree or proclamation only, without the actual presence of an adequate force to prevent the entrance of neutral vessels into the port supposed to be blockaded. Such a blockade is null and void, and captures made under it are no longer recognized as legal captures by any nation. Says Woolsey: A blockade is not confined to a seaport, but may have effect on a roadstead or portion of a coast, or the mouth of a river. But if the river is a pathway to inte- rior neutral territories, the passage' on the stream of vessels destined for neutral soil can not be impeded. For this reason the Rio Grande could not be blockaded during our civil war. INTERN ATJ ON AL LAW. 155 Any public vessel of the belligerent power establishing a blockade is competent to capture ships that have run the blockade or are discovered at sea bound for a port which is known to be blockaded. In the case of the Memphis, it was held that a capture was valid when made by a vessel not stationed at the blockaded port, as the blockade runner did not purge her offense by a successful act of fraud or deceit in pre- venting an arrest by the force supporting the blockade. In reference to the actual visibility of a blockading vessel or vessels from the blockaded port, it must be borne in mind that the necessary requirements are to make ingress to or egress from the port dan- gerous. It is not necessary that the blockading vessels should be in sight from.the blockaded port. Kelson states, for instance, that fault was found with the blockade of Genoa, on the ground that it did not comply with the requirements of international law, the complaint resting apparently upon the statement that the blockaders could not be seen from Genoa. Nelson replied that the proof of evident danger to vessels seeking to enter or leave rested on the fact that captures were made; and it is, he said, "Absurd to say that there can be no danger to a vessel seeking to enter a blockaded port because the blockading vessels are not visible to the port. Much more depended upon their number, disposition, and speed." He further said : From my knowledge of Genoa and. its gulf, I assert, without fear of contradic- tion, that the nearer ships cruise to Genoa the more certain is the escape of vessels from that port or their entrance into it assured. I am blockading Genoa accord- ing to the orders of the admiralty and in the way I think most proper. Whether modern law or ancient law makes my mode right I can not judge; and surely of the mode of disposing of a fleet I must, if I am fit for my post, be a better judge than any landsman, however learned he may appear.' This is nautical common sense, and is in accord with our practice and instructions. Empirical rules prescribing the number of vessels, their anchorages, situations, etc. , as made by some continental powers, are not practi- cal, and have no connection with either intelligent practice or the hard facts of sea blockades. Section 63.— Breach of Blockade. A breach of blockade is not an offense against the laws of the coun- try of the neutral owner or master. The only penalty for engaging in such trade is the liability to capture and condemnation by the belligerent. The use of the terms lawful or unlawful, innocent or noxious, in connection with neutral trade, has reference to the rights of the belligerent blockading State only, and to the liability of the neutral vessel concerned to capture or condemnation. The acts which constitute a breach of blockade vary with the cir- cumstances of the blockade and the time of occurrence. There is a difference also as to the usage of the different nations, the usage of the French being different from that of the English and Americans. As by far the greatest experience in blockades of late jj^ears has occurred to England and the United States, and as their courts have adopted virtually the same rules in dealing with violations of block- ades, these rules will be followed in this work. Halleck says: An actual entrance into a blockaded port is by no means necessary to render a neutral ship guilty of violation of the blockade. Indeed, such a construction ' Mahan's Life of Nelson. 156 INTERNATIONAL LAW. would essentially defeat the very object of a blockade, by rendering the capture of a ship lawful only after such capture had ceased to be possible. Hence, it is universally held that an attempt to enter the port, knowing it to be blockaded, completes the offense to which the penalty of the law is attached. It is the attempt to commit the offense, which, in the judgment of the law, constitutes the crime, and is as much a breach of neutrality as an actual entrance into the pro- hibited port. It would be absurd to say that the penalty is not incurred till the unlawful design is fully accomplished, for the offender would, in most cases, be placed by its accomplishment beyond the reach of the law. Nor is the word " attempt " to be understood in a literal and narrow sense. It is not limited to the conduct of the ship at the mouth of the blockaded port, but is apiilicable to her whole conduct from the moment she has knowledge of the existence of the blockade and the consequent prohibition of neutral commerce. If she has this knowledge before she begins her voyage, the offense is complete the moment she quits her port of departure: if that knowledge is communit;ated to her during the voyage, the continued prosecution involves the crime and justifies the penalty; if it is not given to her until she reaches the blockading squadron, she must immedi- ately retire or she is made liable to confiscation. It is not the mere mental inten- tion that the law punishes, but it is the overt act by which the execution of an unlawful intent is begun. This overt act is the starting for, or proceeding toward, the prohibited port with the knowledge that it is blockaded. The general rule thus given by Halleck has some exceptions. If a vessel sails from a distant country, she may clear provisionally for the blockaded port, and be exempt from the penalty of a breach of block- ade if it be clearly and unmistakably shown that she was to go to an alternative destination in case it was ascertained by inquiry during the voyage that the blockade was still in force. An inquiry at the blockaded port is only justifiable when the mas- ter of the vessel is ignorant of the existence of the blockade. Sir William Scott says : A neutral merchant has no right to speculate on the greater or less probability of the termination of a blockade and, on such speculation, to send his vessel to the very mouth of the blockaded river or port, with instructions to enter if no blockading force appeared, otherwise to demand a warning and proceed to a dif- ferent port. A rule that would permit this would be introductory of the greatest frauds. Entering a blockaded port is of course a breach of blockade. If a neutral ship go in with a cargo, it is presumed that she goes in to deliver it. If the entry is made without a cargo, the presumption is that she goes in to obtain one. If she comes out as she went in, the presumption of an intention to violate the blockade still remains. A license' from the government of the blockading nation is a suffi- cient justification to enter a blockaded port. A vessel in such a con- dition of distress as to require the safety and resources of the blockaded port may enter without violation of the blockade. But tliis necessity must be, Mr. Duer says in his work on insurance, "evident, immedi- ate, pressing, and from its nature not capable of removal by any other means than by the course she had adopted." As a rule, the act of egress during a blockade is a violation of block- ade. This rule does not extend to a neutral vessel found in port when the blockade was first established, nor does it prevent egress to such a vessel with the cargo purchased in good faith and taken on board before the commencement of the blockade. But if even a por- tion of the cargo is taken on board after the establishment of the blockade is known the act is considered as a breach of blockade and justifies its penalty. There are several other cases wherein the egress of a neutral vessel from the blockaded port is permitted. She may come out when the port was sought by reason of immediate distress or when for any rea- son she has the permission of the blockader to enter Again, if it INTERNATIONAL LAW. 157 should happen that there is a well-founded expectation that the State to which the neutral vessel belongs is about to go to war with the State to which the blockaded port belongs the vessel may be allowed egress. The time allowed for the egress of a ship in a blockaded port is generally fifteen days after the establishment of the blockade. Spe- cial circumstances may call for an extension of time, as when a river of great length is blockaded at its mouth, or as in the case of New Orleans in 1861, when the very low water on the bar led the com- manding ofBcor of the blockading vessels to extend the period for ves- sels of deep draft. The transport of goods through the mouth of a river under block- ade by lighters or small vessels for the purpose of transfer and ship- ment for exportation by means of an outside vessel makes the latter vessel subject to capture and condemnation. If the vessel is in a port not blockaded and delivers or receives her cargo to or from a blockaded port by interior navigation or other transport, the blockade is not violated. In regard to the return voyage from the blockaded port Wheaton says : The offense incurred by the breach of blockade generally remains during the voyage, but the offense never travels with the vessel farther than to the end of the return voyage; although if she is taken during any part of that voyage she is taken in delicto. This is deemed reasonable, because no other opportunity is afforded to the belligerent cruisers to vindicate the offended law. But where the blockade has been raised between the time of sailing and capture, the penalty does not attach; because, the blockade being gone, the necessity for applying the pen- alty to prevent further transgression no longer exists. When the blockade is raised, a veil is thrown over everything that has been done, and the vessel is no longer in delicto. The delictum may have been completed at one period, but it is by subsequent events done away. If a belligerent captures or recovers a blockaded port, then the blockade is held to cease, as the belligerent can cause the trade of the port to be stopped by municipal regulations. After the capture of the blockaded port any neutral vessel bound to that port becomes inno- cent and not liable to capture. In some cases of blockade, mail steamers have been allowed immu- nity from the operations of the blockade, provided they gave pledges against carrying contraband of war. During the war against Mexico the United States blockading squadron allowed British mail steamers to enter and leave the port of Vera Cruz. During the blockades on The coast of South America it has been generally the custom to allow the mail steamers to continue their regular service under the condi- tion that they were not to carry any contraband of war. Mr. Wheaton, in a letter to Mr. Buchanan in 1846, said that neutral vessels of war have no privilege against blockade; and the fact that they can not be searched gives the blockading power the more right to require them to keep clear of the lines of the blockade. But the custom has been, as a matter of courtesy, to permit free egress and ingress to neutral men-of-war. During our civil war this was allowed by special orders from the Federal Government, and the privilege was extended to allow them to carry ofllcial dispatches, not only for their own Government, but for other friendly Governments. Usage permits, upon request, this entry on the part of a neutral man-of-war, and unless it interferes with the military or naval opera- tions there seems to be no good reason to forbid it. Our own usage has almost invariably been in favor of this entry both to others and for ourselves, but it can not be said to have become more than an 158 INTERNATIONAL LAW. act of courtesy, subject to refusal in case of an abuse of the privilege, from military necessity, or a doubt as to the character of the applying vessel. (See Appendix 7. ) The crews of blockade runners are not enemies and should not be treated as prisoners of war, but with due consideration. Any of the officers or men whose testimony is desired before the prize court can, and should, be detained as witnesses. The Revised Statutes wf the United States bearing upon this subject are found in various sections, ranging from 4613 to 5441, and also arti- cles 15, 16, and 17 of the Laws for the Government of the Navy of the United States. Says Chancellor Kent: The consequence of a breach of blockade is the confiscation of the ship, and the cargo is always prima /acte implicated in the guilt of the owner or master of the ship , with whom it lies to remove the presumption that the vessel was going in for the benefit of the cargo and with the direction of the owner. Where, therefore, as in the case of the Mercurius, it may appear that the shippers at the time of the shipment could not have known of the blockade, though the ship be condemned, the cargo will be restored; but when at the time of the shipment the blockade either is or might be known to the owners of the cargo, who may therefore possi- bly be aware of an intention of violating the blockade, they will be considered as included by the illegal act of the master, although done without their privity or perhaps contrary to their wishes. Section 65.— Continuous Voyages. Applied to the colonial and coastiyig trade. — By the rule of the war of 1756 neutrals were not permitted to engage in the direct trade between the enemy and his colonies. When in order to avoid this rule the neutral carrier touched at a neutral port, either of his own coun- try or of another neutral State, it was decided by Lord Stowell, and the principle extended by Sir William Grant in the case of the William in 180G, that the vessel was still subject to condemnation. In this way the doctrine of continuous voyages was declared and made applicable to the colonial and by analogy to the coasting trade of the belligerent. In the case of the WiUiam, the vessel arrived at Marblehead, Mass., from La Guayra on the 29th of May. On the 30th and 31st the goods were landed, weighed, and packed, and on the 1st of June the permit to reship them was obtained, and on the 3d of June the vessel \^as cleared for a Spanish port, La Guayra then being in a Spanish colony. In this, as in all cases of continuous voyages, the intention is the controlling factor, and nothing was alleged to have happened betv/een the landing of the cargo and its reshipment that could have had any effect upon the determination of the destination. The landing of the goods was held not to be a true importation into the United States, because it was admittedly done with the intention of immediate reshipment. The whole transport from La Guayra to Spain was therefore held to be a single continuous voyage. This doctrine of continuous voyages, applied by the British courts, resulted adversely to certain American interests. When in turn it was adopted and somewhat extended by American courts during our civil war it bore severely on certain interests and adventures of English vessels. Applied to the carriage of contraband and to the breach of block- ade. — At the time just mentioned the rule of continuous voyages became the settled practice of the American prize courts. The lead- in'g cases under which that doctrine was enunciated were those of the Bermuda, the Stephen Hart, the Peterhoff, and the Springbok. This doctrine has not been accepted by all continental publicists, and in INTERNATIONAL LAW. 159 the case of the Springbok, particularly, there has been dissent by some leading Euglish and American writers. The latter vessel was cap- tured while, at least in form, on a voyage from England to the English colonial port of Nassau, New Providence. The question of her lia- bility to capture having been decided adversely to her neutral owners by our highest court, appeal was made to the English Grovernment for a diplomatic settlement. The English Government referred the mat- ter to its law oflcers, and the owner of the goods also obtained legal opinions. Sir Robert Phillimore, Sir Roundell Palmer, Sir Vernon flareourt were among those consulted. The opinions given concur with the judgment of the Supreme Court, that the point upon which the question must turn was that of the original destination of the cargo. If they were intended to be sold at the neutral port of Nas- sau, to which the .Springbok was bound, the goods would not be liable to seizure. But if it were originally intended that the goods should go beyond Nassau, and the voyage of the Springbok was in part ful- fillment of that original design, then they were liable to capture. The English lawyers, in reviewing the reasons given by the con- demning court for holding this latter view, expressed the belief that these reasons were partly founded on mistake and partly consisted of erroneous deduction. A claim for compensation was then preferred, under the auspices of the Bi'itish Government, by the owners of the cargo before the international commission created to investigate this and numerous other claims. The commission was composed of an English and American member, and was presided over by Count Corti, then minister of Italy at Washington, afterwards Italian minister of foreign affairs. This commission unanimously rejected the claim and sustained the decision of the Supreme Court of the United States, but without giving the reasons for its decision. There seems to be but little question that the evidence as to, the destination of the cargo should be definite. A presumption should not be sufficient. In the case of the Springbok, although only about one per cent of the cargo could be held as contraband, j'et of that propor- tion there was no doubt as to its character. A review of this case, and incidentally of the question of continuous voyages, was made in 1878 by Hon. J. C. Bancroft Davis, formerly Assistant Secretary of State and later minister to Berlin, as a reply to a paper by Sir Travers Twiss. This review answers the criticisms and objections raised by that learned writer.^ Judge Betts, in the case of the Stephen Hart, as previously remarked, gives the best statement of the doctrine. After holding that the mere touching at a neutral port, or even a transshipment, does not break the voyage if the intention on sailing was to carry contraband or break the blockade, he goes on to say: The principles upon which the Government of the United States and the public vessels acting under its commission have proceeded during the present war in arresting vessels and cargoes as lawful prize upon the high seas are very succinctly embodied in the instructions issued by the Navy Department on the 18th of August, 1862, to the naval commanders of the United States. These instructions 'In " Les Tribunaux de Prises des ififcats-Unis," the title of the memoir referred to, Mr. Davis says: " L'examen des colis portes sur les connaissements Nos. 3 et 4 y a fait d6couvrir des couvertures grises et blanches k I'usage de I'arm^e, des bou- tons de marine marques C. S. N. (Confederate States Navy), des boutons pour soldats, marques A (artillerie) , I (infanterie) , et C (cavalerie), tous portant au c6t6 I'estampille de 'Isaac Campbell & Co.' II y avait aussi quelques sabres de cavalerie, des baionettes," etc., etc. 160 INTERNATIONAL LAW. are therein declared to be a recapitulation of those theretofore from time to time given. The substance of them, so far as they are applicable to the present case, is that a vessel is not to be seized without a search carefully made so far as to render it reasonable to believe that she is engaged in carrying contraband of war for or to the insurgents and to their ports, directly or indirectly, by transshipment, or otherwise violating the blockade. The main feature of these instructions, so far as they bear upon the questions involved in the case, is but an application of the doctrine in regard to captures laid down by the Government of the United States at a very early day. In au ordinance of the Congress of the Confederation, which went into effect on the Ist of February, 1782 (5 Wheaton App. , p. 130) , it was declared to be lawful to capture and obtain condemnation of all "contraband goods, wares, and merchandise, to whatever nations belonging, although found in a neutral bottom, If destined for the use of the enemy. " In his introduction to tlie Manual of Naval Prize Law, drawn up for the use of officers of the British navy in 1866, Mr. Godfrey Lushington says: Connected with the subject of contraband is the important question of the mode of ascertaining the destination of goods on board a vessel. In this volume it has been treated as conclusively determined by the destination of the vessel. This view is clearly to the interest of the neutrals. On the other hand, the interest of the belligerent when endeavoring to intercept contraband goods from going to the enemy, is to look beyond the destination of the vessel to the tiestination of the goods. * * * Judged by principle, the view of the belligerent seems correct. A neutral vessel which forwards munitions of war part of their way to their ulti- mate destination to one of the belligerents is really aiding and abetting in the war, and this on the high seas. This view is maintained by Halleck, Duer, and His- toricus, and was enforced by the American courts in the cases of the Stephen Hart and the Commercen. But the decisions of the British courts, so far as they extend, have been in the opposite direction. The view of the neutral was supported in the case of the Hen- dric and the Alida, and more recently in the case of Hobbs v. Henning. As to the last case, however, it is to be observed that the judgment of the court of common pleas was only upon the proceedinjjs, and apparently rests on no other authority than that of Ortolan, an avowed advocate of neutral rights, on an abstract theory which is indifferent alike to positive decisions and general practice. Sir Edward Creasy, in a lonj^ discussion of the matter, says : In the administration of all law, international as well as municipal, realties and not shams are to be regarded. The artifice which is in fraud of a law is itself a breach of that law. Unque^itionably there ought to be very lull and clear proof of such artifice being practiced as well as planned. The burden of proof necessarily lies on the captors, who impute liability to seizure. Nay, more, the neutral des- tination of the ship ought to be looked on as a presumptive proof of the neutral destination of the cargo; and the evidence on belialf of the captors to outweigh such presumption ought to be very different in quality and amount from what it was held sufficient in the case of the Springbok. But if full and clear evidence is adduced that the contraband goods are not destined for sale and consumption in the neutral market, but that the direct and primary object of their shipment was to forward them to or toward the enemy, then the belligerent against whom they were destined to be used has a right to protect himself by arresting and seizing the intended instruments of ill to him while they are on the seas, which are the highways of all nations but the territories of none. Mr. Bancroft Davis, in his memoir, takes the ground that the doctrine of continuous voyages, although opposed by various continental pub- licists, is one held by the English and American courts; that is to say, by the courts of the principal maritime powers of the world, and hence, that this doctrine can not justly be regarded as one imposing special and onerous restrictions upon neutral commerce. The fact that the United States have been a defender of neutral rights in the past does not require them to advocate and justify a fictitious neutrality. In the case of the Springbok not only has the Supreme Court of the INTERNATIONAL LAW. 161 United States sustained the doctrine, but its decision has been main- tained by the international tribunal to which final appeal was taken. ^ This doctrine was not promulgated in the war with Spain, and cir- cumstances did not cause any case of this nature to come to trial or adjudication. The latest English writer, Dr. Macdonell, on the rights and duties of belligerents and neutrals speaks of this question as follows: It must be conceded that but for the theory of continuous voyages blockaders may be easily evaded in these days of developed railway communications. None the less is a new chain on neutral commerce forged by those decisions. In the case of the Dodwijk, in the late hostilities between Italy and Abyssinia, the question is discussed in favor of the doctrine of con- tinuous or indirect voyages, by Mr. Prosper Fedozzi, in No. 1, volume .of Revue de Droit International for 1897. Mr. Fedozzi asserts the inion that the theory of continuous voyages is accepted by a major- ity of the best publicists. In 1896 the Institute of International Law, at a meeting in Venice, after discussion, adopted the following declaration : 1. Sont contrebandes de guerre, les munitions de guerre, ainsi que les instru- ments spSoialement fait pour les fabriquer, transportSes par mer pour le compte ou a destination d'un ennemi. La destination pour 1 "ennemi est presume, lorsque le transport va a un de ses ports, ou bien a un port neutre qui d'apres des preuves evidentes et de fait incon- testables, n'est qu'une etape pourl'ennemi comme but final de la meme operation commercials. Section 66.— Right op Search. The right of visit and search a 'belligerent right. — Sir William Scott, in his decision in the Maris case, speaks of the right of search as follows ■ The right of visiting and searching a merchant ship upon the seas — whatever be the ships, whatever be the cargoes, whatever be the destination — is an incontest- able right of the lawfully commissioned cruisers of a belligerent nation. I say, be the ships, the cargoes, and the destination what they may, because, till they are visited and searched, it does not appear what the ships, or the cargoes, or the des- tination are, and it is for the purpose of ascertaining these facts that the necessity ♦ * *of this right of visitation and search exists. This right is so clear in principle that no man can deny It who admits the legality of maritime capture, because if you are not at liberty to ascertain by sufficient inquiry whether there is property , that can be legally captured it is impossible to capture. * * * The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode as possible, but soften it as much as yoii can, it is still a right of force, 'The original text reads: " Ne pouvons nous pas logiquement conclure que les regies de conduite Internationale sanctionnes depuis tant d'annees par les deux principales puissances maritimes du monde ont en elles quelque chose qui s'adresse k ce sens commun elev6 et qu'elles ne doiyent pas etre regardees exclusivement comme des restrictions on6reuses impos6es au commerce neutre? * * * J'ai confiance que-le jour est encore eloigne ok les ifitats Unis cesseront d'etre au pre- mier rang parmi les defenseurs des droits des neutres de bonne foi. Le jour est encore plus 61oign6 oil'Amerique se fera le d6f enseur et lesoutien d'une neutrality Active. Dans votrememoires vous parlez des la fiction de la continuitS du voyage. Qu'il me soit permis de penser que cette expression est plutot applicable k la neu- tralite des parties qu'aux voyages qu'elles projettent et qu'elles entreprennent. Quand on se rappelle que le Bermiida a ete condamne comme un vaisseau ennemi et n'a pas appele de ce jugement, et que la decision de la plus haute cour nationale d'appel, qui a condamne le Springbok, a ete maintenue en appel devant un tribunal international, on ne pent s'emp6cher de croire que c'est abuser du mot 'neutre' que de I'appliquer k ces parties." (Pp. 36, 27, Les Tribunaux de Prises des idltats- Unis, par J. C. Bancroft Davis.) 6433 11 162 INTERNATIONAL LAW. though of lawful force in something of the nature of civil process when force is employed, but a lawful force which can not be lawfully resisted. In regard to the extent of this right of search, Dr. Woolsey says : In the first place, it is only a war right. The single exception of this is that a nation may lawfully send a cruiser in pursuit of a vessel which has left its port under suspicion of having committed a fraud upon its revenue laws or some other crime. This is merely a continuation of a pursuit beyond the limits of maritime jurisdiction with the examination conducted outside these bounds, which, but for the flight of the ship, might have been conducted within. In the second place, it is applicable to merchant ships alone. Vessels of war, pertaining to the neutral, are exempt from its exercise, both because they are not wont to convey goods and because they are, as a part of the power of the State, entitled to confidence and respect. If a neutral State allowed or required its armed vessels to engage in an unlawful trade, the remedy would have to be applied to the State itself. To this we must add that a vessel in ignorance of the public character of another-®for instance, suspecting it to be a piratical ship — may without guilt require it to lie to, but the moment the mistake is discovered all proceedings must cease. In the third place, the right of search must be exerted in such a way as to attain its object and nothing more. Any injury done to the vessel or its cargo, any oppres- sive or insulting conduct during the search, may be good grounds for a suit in the court to which the cruiser is amenable, or even for interference on the part of the neutral State to which the vessel belongs. The right of search in war time can be exercised in the territory of both belliger- ents or upon the high seas. But the right of search and visit can not be exercised in places where hostilities are forbidden, that is, within the territory of neutrals or within the territory of powers allied to the searching belligererit, without their consent. The right of search can only be exercised by regular commissioned vessels Drovided with authority as such by the Government of the State. The usual method of summoning a vessel for the purpose of exami- nation and search is by hoisting the national ensign and firing a blank charge, which is known as the afl&rming gun. The neutral vessel may also be summoned by signals or by hailing through the speaking trumpet. It is the duty of the neutral vessel to obey such summons by heaving to, to allow boarding, at the same time displaying her national colors. The summons must be made in some form, otherwise there can be no blame attached to a neutral ship for not heaving to, and further steps in the way of firing a shotted gun can not be made unless the preliminary summons be disregarded. The distance of the boarding vessel should be a convenient one, and the old rule of cannon- , shot distance can no longer be followed. Resistance to search made against a lawful cruiser subjects the vessel in time of war to confisca- tion. The resistance of the neutral vessel can not be justified or excused by any order from the sovereign power of the State, as inter- national law does not permit a neutral State to interfere with the legal rights of the belligerent. The following are the paragraphs bearing upon the right and method of search in the instructions of the Navy Department to blockading vessels and cruisers: 13. The belligerent right of search may be exercised without previous notice, upon all neutral vessels after the beginning of war to determine their nationality, the character of their cargo, and the ports between which they are trading. 13. This right should be exercised with tact and consideration and in strict con- formity with treaty provisions, wherever they exist. The following directions are given, subject to any special treaty stipulations, wherever they exist: After firing a blank charge and causing the vessel to lie to, the cruiser should send a small boat, no larger than a whaleboat, with an ofiScer to conduct the search. There may be arms in the boat, but the men should not wear them on their persons. INTERNATIONAL LAW. 163 The oflBcer, wearing only his side arms, and accompanied on board by not more than two men of his boat's crew, unarmed, should first examine the vessel's papers to ascertain her nationality and her ports of departure and destination. If she is a neutral and trading between neutral ports, the examination goes no further. If she is neutral and bound to the enemy's port not blockaded, the papers which indi- cate the character of her cargo should be examined. If these show contraband of war the vessel should be seized; if not, she should be set free, unless by reason of strong grounds of suspicion, a further search should seem to be requisite. ; Search of neubral ships under convoy. — This brings us to the luuch- debated question whether neutral vessels convoyed by their own ves- sels of war have a right in war time to resist visitation and search. Most of the recent continental publicists maintain that neutral vessels, under such circumstances, are exempt from search. English writers, following the lead of Sir William Scott, maintain that the right to visit and search merchantmen is not affected by convoy, notwithstand- ing assurances on the part of the convoying men-of-war that the vessels of the convoy are free from fraudulent intent or taint of contraband. The policy of the United States has been to favor the rule of exemp- tion, and this principle has been introduced into thirteen of the treaties made with other States, the last being with Italy in 1871. France has made similar conditions in six treaties, while Germany, , Austria, Spain, and Italy, in addition to the Baltic powers, provide by their naval regulations that the declaration of a convoying offlcer shall be accepted. Great Britain stands alone. Many of our publicists hold views not unlike those of England, but in view of the policy of the United States as shown in its treaty stipulations and the concurrent view of almost all of the great powers it is most probable that, our practice in future wars will conform to that enunciated in the Regula- tions of the Navy for 1876, which instruct officers in command of con- voying ships not to permit ships under their protection to be searched or detained by any belligerent or other cruiser, but to be satisfied also that no contraband is being carried to a belligerent port, and to be acquainted with all particulars as to the nationality and ownership of the vessels of the convoy. The question whether neutral vessels who place themselves under the convoy of a belligerent cruiser are liable to capture and confisca- tion has also been much discussed. The lords of appeal in England decided tliat sailing under the convoy of an enemy was sufftcient and conclusive grounds for condemnation. Mr. Wheaton maintained that though it might be considered presumptive evidence it could not be regarded as conclusive evidence. The weight of opinion favors the doctrine that such acts are sufficient to condemn the vessel joining a belligerent convoy. The right of a belligerent to visit and search neutral vessels carries with it the right to demand and examine the ship's papers. Chan- cellor Kent says on this point : A neutral is bound not only to submit to the search, but to have his vessel duly furnished with genuine documents requisite to support her neutral character. The most material of these documents are the register, passport or sea letter,' muster roll, log book, charter party, invoice, and bill of lading. The want of some of these papers is strong presumptive evidence against the ship's neutrality, yet the want of any one of them is not absolutely conclusive. * * * The concealment of papers material for the preservation of the neutral charac- ter justifies a capture and carrying it into port for adjudication, though it does not actually require a condemnation. ' Not now required by vessels of the United States. 164 INTEENATIONAL LAW. The destruction or spoliation of papers is a still more suspicious cir- cumstance, and in most countries would be suffteiont in itself to exclude further proof and condemn the vessel; but it does not in England create an absolute presumption juris et de jure. The Supreme Court of the United- States has followed the English rule and held that spoliation of papers was a circumstance open to expla- nation. False papers when intended expressly to deceive the belligerent by whom the capture is made, and which if accepted as genuine would clear the vessel from any taint, are sufficient cause for condemnation. A neutral vessel, in general terms, is liable to seizure: 1. In case of an attempt to avoid search, by escape; but this must be clear and evident. 2. In case search is resisted by violence. 3. In case of false or fraudulent papers. 4. In case of the absence of the necessary papers. 5. When papers are destroyed, mutilated, or hidden. The captured vessel must be sent in for adjudication as soon as pos- sible. If improper delay should occur demurrage is allowed. Neutral property can only be transferred and condemned by proper courts and trial, so it is not proper to destroy it. If a neutral vessel can not be brought into port for adjudication it should be released. Due care should be exercised to preserve the vessel and its cargo from loss or damage; but loss by unavoidable perils of sea will not require compensation or penalty. Compensation, however, is awarded in case of loss or injuries from a want of proper care or assistance on the part of the captor. The right of search in time of peace as applied to piracy and the slave trade — 'fiie right of approach. — The right of seizure beyond the 3-mile limitf or a violation of municipal law, which has already been discussed, is, as Woolsey says : An incident of sovereignty in a state of peace, but is confined in its exercise to a small range of the sea. The right of search on suspicion of piracy, however, is a war right, and may be exercised by public vessels anywhere except in the waters of another State, because pirates are enemies of the human race, at war with all mankind. Vessels suspected of piracy can, then, be detained in time of peace, but if detained with insufficient grounds there is a possibility of a claim for damages. The State has no right to direct its public vessels to visit and search vessels of other States upon suspicion of being engaged in the slave trade without special treaty arrangements. The slave trade not being piracy by the law of nations, but only by municipal and con- ventional law, the right of search is not conceded to foreign vessels except by agreement. The question of the search and visit of American vessels for the impressment of seamen can be considered as closed by Mr. Webster's communication to Lord Ashburton in 1842. In it he says: The American Government, then, is prepared to say that the practice of impress- ing seamen from American vessels can not be allowed to take place. That prac- tice is founded on principles which it does not recognize and is invariably attended by consequences so unjust, so injurious, and of such formidable magnitude as can not be submitted to. In the case of the Mariana Flora the Supreme Court of the United States declared that ships of war, properly commissioned, had the INTERNATIONAL LAW. 165 right to approach merchantmen or other vessels in time of peace upon the high seas for the purpose of observation. This, however, has never been supposed to draw after it any right of visitation or search. The right of approach is for the sole purpose of ascertaining the real nationality of the vessel sailing under suspi- cious circumstances. Secretary Cass, in his dispatch to Lord Lyons of date of May 12, 1859, stated that the United States Government concurred with those of Great Britain and France as to the propriety of an exhibition of her flag by every merchantman on the ocean whenever she meets a ship of war, either of her own or any foreign nation; that in refer- ence to the friendly approach to a suspicious vessel no objection could exist, but those vessels so approached could not be bound to lie to or await the approach. Chapter XII. Capture in Maritime War; Prize Courts. Section 67.— The Declaration of Paris; Immunity op Enemy's Property IN Neutral Vessels. The Declaration of Paris, signed April 16, 1856, consists of an agree- ment or declaration as to the following four articles, viz : (1) Privateering is and remains abolished. (3) The neutral flag covers enemy's goods, with the exception of contraband of war. (3) Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag. (4) Blockades, in order to be binding, must be effective — that is to say, main- tained by a force sufficient really to prevent access to the coast of the enemy. At the outbreak of our civil war the United States made it known to the maritime powers of Europe that they were ready to adopt the second, third, and fourth articles of the declaration, and that, though they preferred them with the amendment proposed by Mr. Marcy exempting private property from capture at sea, and without the first article, they were willing to adopt them as they stood. Their offer was declined by Great Britain and France, who desired to make special restrictions and exceptions applying to the civil war and the Confederates. Notwithstanding this, the United States made known their intention to follow the second, third, and fourth rules of the declaration during the civil war. As the Executive policy was likely to be at variance with the judicial precedents, it was thought that the latter would come in conflict with the tenets of the second article. The Executive has control of such matters, however, by instructions to the Navy as to the capture of neutral vessels, and also by ordering restitution if such capture should have occurred before adjudication is had. As a matter of fact, no case is reported to have happened of a condemna- tion in opposition of either the second or third articles of the Declara- tion of Paris during the civil war. In the proclamation issued by the President of the United States at the outbreak of the war with Spain, and dated April 26, 1898, he states that the policy of the Government of the United States will be to adhere to the rules of the Declaration of Paris, and he proclaimed that the neutral flag would be held to cover enemy's goods, with the exception of contraband of war. This adherence on the part of the United States to the Declaration of Paris, added to the assent of Spain to the Declaration with the exception of a reservation as to privateer- ing, gives an additional weight to that important manifesto, and makes what may be almost considered a rule of international law of the sec- ond article of the Declaration, with respect to the immunity of the property of an enemy under a neutral flag, except as to contraband of war. In the treaty between Italy and the United States, in 1871, this principle of free ships and free goods was not only affirmed, but it 166 INTERNATIONAL LAW. 167 was agreed to exempt all private property of the two countries from capture in case of maritime war existing between them, with the exception of contraband of war or of the case of violation of blockade. Section 68. — Exemption of Neuteal Goods in Enemy's Ships. This question of whether the innocent goods of a neutral can be transported in a belligerent vessel without exposure to confiscation upon capture of the belligerent vessel was a subject of much discus- sion until the adoption of the third article of the Declaration of Paris practically settled the question. This provides that neutral goods are not liable to capture afloat when under enemy's flag, with the exception always of contraband of war. Chief Justice Marshall, in the case of the Nereide, delivered the opinion of the majority of the Supreme Court of the United States: A neutral merchant has a right to charter and lade his goods on board a bellig- erent armed vessel without forfeiting his neutral character. * * * That a neu- tral may lawfully place his goods on board a belligerent vessel for conveyance on the ocean is universally recognized as the original law of nations. In the words of Sir Travers Twiss : This opinion is entitled to great weight, not merely from the authority which attaches to the opinion of that eminent judge, but also from the solidity of the reasoning upon which his judgment in that case proceeded. The almost universal acceptance of the Declaration of Paris upon this point, and the announced policy of the United States as well as its acceptance of the Declaration of Paris, practically establishes this usage and principle for the maritime world. In 1872 the French prize court gave a decision as to neutral goods on board of two German ships which had been captured and destroyed in the war of 1870-71. It was decided that, though under the terms of the Declaration of Paris neutral goods on bop,rd an enemy's ves- sel can not be seized, it only follows that the neutral whose goods are ^o embarked can claim restitution of his merchandise, or, in case of its sale, the proceeds of its sale; but that an indemnity can not be claimed for any destruction or loss by acts of war which may accom- pany or follow its capture. Hall says: It is to be regretted that no limits were set in this decision to the right of destroy- ing neutral property embarked in an enemy's ship. That such property should be exposed to the consequences of necessary acts of war is only in accordance with principle, but to push the rights of a belligerent further is not easily justifiable, and might, under some circumstances, amount to an indirect repudiation of the Declaration of Paris. In the case, for example, of a State, the ships of which were largely engaged in carrying trade, a general order given by its enemy to destroy, instead of bringing in for condemnation, would amount to a prohibition addressed to neutrals to employ as carriers vessels, the right to use which was expressly conceded to them by the declaration in question. * * * It ought to be incumbent upon a captor who destroys such goods together with his enemy's vessel to prove to the satisfaction of the prize courts, and not merely to allege, that he has acted under the pressure of a real military necessity. Section 69.— Phizes and Prize Courts. The courts of the United States which take cognizance of mai'itime capture' are the district courts, the circuit courts, and the Supreme Court. The district courts have exclusive original cognizance of all civil causes of admiralty, and maintain jurisdiction within certain limita- tions as to the tonnage of the vessels. They have also jurisdiction concurrently with the circuit and State courts of causes where an 168 INTEENATIONA.L LAW. alien sues for an injury suffered in violation of international law or a treaty of the United States. They possess all the powers of a prize court and have cognizance of complaints by whomsoever instituted in cases of captures made within the United States. In prize cases appeals from the final decrees of the district court may be carried direct to the Supreme Court of the United States. On the other hand, appeals in admiralty cases go to the circuit court of appeals, whose judgment is final.' The prize courts of the other powers vary in jurisdiction and con- stitution. No civilized State which has a commercial or an armed navy is without such court. There are different methods of procedure in the various States, but the general principles of law, and the rules as to evidence, etc., are as a general rule very much the same. The rules of international law recognized by the authorities of the United States are those admitted by common custom at the period when the United States became independent, except when modified by treaty. And the practice of our prize courts, which are the real expounders of the law, conforms to that of the British courts, except when modified by treaty. The Supreme Court of the United States declared, in the decision of the cases growing out of the war of 1812, that as the United States was at one time a component part of the British Empire, the prize law of that country was, as understood at the time of the separation from the mother country, the prize law of the United States. But the rules later adopted by England are entitled to no more authority in our courts than those of other countries. Beach Lawrence says: . The constitution of prize courts is an anomaly in jurisprudence. Deriving their authority from one nation, they pass irrevocably on the property belonging to the citizens or subjects of another. Tribunals exclusively of the belligerents, they pronounce on the rights of neutrals, who have no other appeal from the admiralty courts in the last resort than to the justice of the sovereign of the captor, through the diplomatic interposition of their own government. Of late there has been an opinion among some publicists, which has arisen after much discussion, in favor of having prize courts organ- ized upon an international basis. Dr. McDonnel, in a recent lecture before the Royal United Service Institution, in London, says as to this question : That the prize court should be always the court of the belligerent State; that the nation which has seized the jjroperty of neutrals, or is interested in condemn- ing it, should give a decision binding their property and rights; that neutrals should have no voice in the matter — that also is an anomaly, but one too deeply rooted to be removed in our time. The instructions of the Navy Department require that prizes should be sent in for adjudication, unless otherwise directed, to the nearest home port in which a prize court may be sitting. By the law of nations there is an established method for determin- ing whether the capture be or be not a legal prize. Capture alone does not transfer any right of property in the vessel or cargo to the captors; the title remains unchanged until a regular sentence of con- demnation is given by some competent prize court after a regular trial wherein both parties can be heard. The competent and proper prize court for such condemnation is, under presejit usage, a court of that State to which the captor belongs. If the captured vessel or any part of her cargo is not in fit condition ' Act of March 3, 1891. INTERNATIONAL LAW. 169 to be seat in for adjudication, the laws of the United States provide for an appraisement and sale, and deposit of the proceeds to the order of the prize court in which proceedings are to take place. In case any captured vessel or property is taken for the use of the United States before it comes into the custody of a prize court it must be surveyed, appraised, and inventoried, and the results sent to the prize court in which proceedings are to take place, and the department of the government for whose use it has been appropriated must deposit the value thereof subject to the order of the court in the cause. The British Government objected to this law during our civil war. Dana says: Necessity will excuse the captor from the duty of sending in his prize. If the prize is unseaworthy for a voyage to the proper port, or there is impending danger of immediate recapture from an enemy's vessel in sight, or if an infectious disease is on board, or other cause of a controlling character, the law of nations author- izes a destruction or abandonment of the prize, but requires all possible preserva- tion of evidence in the way of papers and persons on board. And even if nothing of pecuniary value is saved it is the right and dnty of the captor to proceed for adjudication in such a case, for his own protection and that of his government and for the satisfaction of neutrals. In the case of the Trent, the reason assigned by Captain Wilkes for not sending in his prize was the great inconvenience that would result to the numerous passengers on board and to the commercial world, as there were mails on board for all parts of Europe which would have to be subjected to delay. This motive, though creditable to the commander in that case, is not recog- nized by the law of nations as an excuse. If damage happens to the vessel or cargo while in the hands of the captors, and the court holds the capture to have been made on prob- able grounds, the responsiblity of the captor is only for a failure to use reasonable care and skill. In the instructions of the Navy Department it is required that the prize should be delivered to the custody of the court as nearly as pos- sible in the condition in which she was at the time of seizure; and to this end her papers should be sealed at the time of her seizure and kept in the custody of the prize master. When circumstances permit, it is recommended that the of&cer making the search of the prize should also be made prize master. The papers, including the log book of the prize, should be delivered to the prize commissioners, the witnesses to the custody of the mar- shal of the United States, and the prize remain in the custody of the prize master until the court issues process directing one of its own oflcers to take charge. If, for any controlling reason, the ship is not sent in for adjudica- tion, such as unseaworthiness, infectious disease, lack of a prize crew, or danger of recapture, the prize may be destroyed or it may be appraised and sold. In all such cases, however, all the papers and other testimony should be sent to the prize court, in order that a decree nlay be entered in the case. Article 16, for the government of the Navy of the United States, prohibits the taking out of a prize any money, plate, goods, or any part of her equipment, unless for better preservation, or unless such articles are absolutely needed for the use of vessels or the armed forces of the United States. Article 17 of the same provides punish- ment for the pillage or maltreatment of any persons found on board a prize. In sections 1624, 4615, 4616, 4617, and 5441 of the Revised Statutes of the United States are found the instructions as to procedure in case of the capture of a prize, including its conveyance home and the delivery to the prize court. APPENDIX 1. Documents and Papers Carried by Vessels of the United States. Evidence of nationality: Permanent register for vessels engaged in foreign trade. (Granted by col- lectors to vessels of their districts.) Temporary register for vessels engaged in foreign trade. (Granted by col- lectors to vessels not of their districts.) (See Forms (Catalogue No. 534), p. 10, Customs Begulations. ) Permanent enrollment for vessels engaged in coasting trade. (Granted as above. ) Temporary enrollment for vessels engaged in coasting trade. (Granted as above.) {See Forms (Catalogue No. 538), p. 15, Customs Regulations.) Permanent license for vessels engaged in fisheries. (Granted as above.) Temporary license for vessels engaged in fisheries. (Granted as above.) Licenses to yachts. Commissions to licensed yachts for cruising abroad. Other papers that may be used as evidence of nationality: Shipping articles. Crew list. (See Customs Regulations, p. 68.) Evidence of nationality of foreign-built vessels owned by citizens of the United States entitled to carry the flag and to legal protection, but not documented ves- sels of the United States: Certificate'of ownership, and also as to the validity and filing of the bill of sale. (Issued by the collector of port or United States consul.) Other papers carried: Permit for fishing vessel to touch or trade at a foreign place. (See Customs Regulations, p. 75.) Passenger list. Manifest of cargo, foreign or coasting. (See Customs Regulations, pp. 53, 66,78.) Clearance. (See Customs Regulations, pp. 70,74.) Bills of lading. Ship's log book. Bill of health. Commercial intercourse with the guano islands under the jurisdiction of the United States is a part of the coasting trade. Vessels engaged in this guano trade are not required to produce clearances or certified manifests. The tonnage of a vessel, besides being shown upon her certificate of registry, etc., is marked upon the face of the beam under the forward side of the main hatch of seagoing vessels. 170 INTERNATIONAL LAW. 171 APPENDIX 2. Papers Carried by Vessels in Evidence of Their Nationality, and Other Papers Which Ought to be Pound on Board. [From Hall's International Law, p. 753, 3d ed.] AUSTRIA. Papers evidencing nationality: Patents sovrana (royal license) . Scontrino mlnisteriale (certificate of registry) . Other papers carried : Giornale di navigazione (o^cial log book). Scartafaccio, giornale di navigazione cotidiano (ship's log book) . Ruolo deir eqnipaggio (muster roll). Manifest of cargo and bills of lading. Charter party, if the vessel is chartered. BELGIUM. Lettre de mer (sea letter), R61e d'Sqnipages. R6gistre de certificat de jaugeage (certificate of registry). Log book. Manifest of cargo. Les connaissements (bills of lading). Acte de propri§te. Charter party. BRAZIL. ' Papers evidencing nationality: Carta de registro (certificate of registry) . Passe especial (special pass) issued to Brazilians out of the B,epublic by the minister or consul in the foreign country, and constituting provisional proof of nationality. Other papers carried: Passport. Muster roll. Manifest of cargo. Bills of lading. DENMARK. Papers evidencing nationality: Registrering certiflkat (certificate of nationality and registry) . Provisional certificate of registry issued by governors of possessions abroad, or by consuls. [The letters D. E. (Dansk Eiendom) burnt into the main beam in the after part of the main hatchway.] Papers carried other than that above mentioned: Royal passport, in Latin, with translation, available only for the voyage for which it is issued, unless renewed by attestation. Certificate of ownership. Build-brief (certificate of build). Admeasurement-brief. Burgher-brief (certificate that the master has burgher rights in some town of the kingdom). Muster roll. Charter party, if the vessel is chartered. 172 INTERNATIONAL LAW. PRANCE. Papers evidencing nationality: L'acte de francisation (certificate of nationality). Acte de francisation provisoire. Other papers which must be carried under the provisions of the Code de Commerce: CongS (sailing license). Le r61e d 'equipage. L'acte de propriete de navire. Les connaissements et chartes-parties. Les proces-verbaux de visite. Les acquits de paiement ou k caution. Manifest of cargo and inventory of ship's fitting and stores. GERMANY. Papers evidencing nationality: SchifEs certiflkat (certificate of nationality). Flaggen attest (provisional certificate of nationality). Other papers carried: Messbrief (certificate of measurement) . Beilbrief (builder's certificate) ■ See-pass (sailing license). Journal (ship's log book). Musterrolle (muster roll). Charter party, if the vessel is chartered. GREAT BRITAIN, • Papers evidencing nationality: Certificate of registry, or provisional certificate granted by a consul resident in a foreign country to a vessel brought there. The provisional certificate is good for six months from the date of issue. A pass granted to a vessel before registration, enabling her to go from one British port to another within the British dominions, has also the force of a certificate. Other papers carried : Official log book. Ship's log book. Shipping articles. Muster roll. Manifest of cargo. Bills of lading. Charter party, if the vessel is chartered. GREECE. Papers evidencing nationality : Certificate of nationality. Other papers carried : Conge or passport. Inventory of ship's fittings. Certificate of tonnage. Muster roll. Description of visits to which the ship has been subjected. Log book. Bill of health. INTERNATIONAL LAW. 173 ITALY. Papers evidencing nationality : Alto di nazionalita (certificate of nationality). Other papers carried : Giornale di navigazione (ofllcial log-book), Seartafaccio, giornale di navigazione cotidiano (ship's log book). Ruolo del' equipaggio (muster roll) . Manifest of cargo and bills of lading. Charter party, if the vessel is chartered. NETHERLANDS. Zeebrief (sailing license). Voorloopige Zeebrief (provisional sailing license) . Buitengevone Zeebrief (extraordinary sailing license) . Bijlbrief (certificate of ownership). Meetbrief (certificate of tonnage). Journal (ship's log-book). Monster-rol (mnster roll) . Manifest of cargo and bills of lading. Charter party, if the vessel is chartered. NORWAY. Papers evidencing nationality : Nationalitetsbreviis (certificate of nationality). Provisional certificate granted by consul. Other papers carried : Btilbrev (certificate of build). Maalebrev (certificate of measurement). The biilbrev and the maalebrev need not be carried by vessels bought in foreign ports for two years after purchase. Mandskabliste (muster roll). Journale (ship's log book). Manifest of cargo and bills of lading. Charter party, if the vessel is chartered. PORTUGAL. Papers with which a vessel must be provided: Pasaporte de navigacion. Acta de propriedad del buque. Rol. Conocimientos.. Recibos de fletes y despacho. A copy of the Code of Commerce. RUSSIA. Evidence of nationality: Patent authorizing the use of the Russian flag. The fact that the master and half the crew are Russian. [N. B. The patent is not conclusive in itself, because it can be granted, though it is not com- monly granted, to foreign ships.] Papers which must be carried by Russian ships: The patent above mentioned. Beilbrief (builder's certificate). Custom-house passport. 174 INTERNATIONAL LAW. Other papers carried: Ship's log book. Muster roll. ■Charter party, if the vessel is chartered. SPAIN. Papers evidencing nationality: La patente 6 pasaporte de navigacion. ' Other papers carried: El rol del equipage y lista de pasajeros. Testi "onio de la escritura de propriedad de la nave. Contrato de fletamento. Conocimientos, facturas y guias de la carga. , SWEDEN. A passport from a chief magistrate or commissioner of customs. Bilbrief (builder's certificate) . Matebref (certificate of measurement) . Fribref (certificate of registry). Joumalen (ship's log book). Folkpass or sjomansrubla (muster roll). Charter party, if the vessel is chartered. APPENDIX 3. GrENERAL ORDER ) NAVY DEPARTMENT, No. 492. I Washington, Jwne 20, 1898. The following "Instructions to Blockading Vessels and Cruisers," prepared by the Department of State, are published for the informa- tion and guidance of the naval service. John D. Long, Secretary. Instructions to Blockading Vessels and Cruisers. 1 . Vessels of the United States, while engaged in blockading and cruising service, will be governed by the rules of international law as laid down in the decisions of the courts and in the treaties and manuals furnished by the Navy Department to ships' libraries, and by the provisions of the treaties between the United States and other powers. The following specific instructions are established for the guidance of officers of the United States: BLOCKADE. 2. A blockade to be effective and binding must be maintained by a force suffi- cient to r'ender ingress to or egress from the port dangerous. If the blockading vessels be driven away by stress of weather, but return without delay to their stations, the continuity of the blockade is not thereby broken; but if they leave their stations voluntarily, except for purposes of the blockade— such as chasing a blockade runner— or are driven away by the enemy's force, the blockade is aban- doned or broken. As the suspension of a blockade is a serious matter, involving a new notification, commanding officers will exercise especial care not to give grounds for complaints on this score. INTERNATIONAL LAW. 175 NOTIFICATIONS TO NEUTRALS. 3. Neutral vessels are entitled to notification of a blockade before they can be made prize for its attempted violation. The character of this notification is not material. It may be actual, as by a vessel of the blockading force, or construc- tive, as by a proclamation of the Government maintaining the blockade, or by common notoriety. If a neutral vessel can be shown to have had notice of the blockade in any way, she is good prize and should be sent in for adjudication; but, should formal notice not have been given, the rule of constructive knowledge arising from notoriety should be construed in a manner liberal to the neutral. 4. Vessels appearing before a blockaded port, having sailed without notification, are entitled to actual notice by a blockading vessel. They should be boarded by an ofQcer, who should enter in the ship's log the fact of such nqtice, such entry to include the name of the blockading vessel giving notice, the extent of the blockade, the date and place, verified by his ofScial signature. The vessel is then to be set free, and should she again attempt to enter the same or any other blockaded port as to which she has had notice, she is good prize. 5. Should it appear from a vessel's clearance that she sailed after notice of block- ade had been comniunicated to the country of her port of departure, or after the fact of blockade had, by a fair assumption, become commonly known at that port, she should be sent in as a prize. There are, however, treaty exceptions to this rule, and these exceptions should be strictly observed. 6. A neutral vessel may sail in good faith for a blockaded port with an alterna- tive destination, to be decided upon by information as to the continuance of the blockade obtained at an intermediate port. But, in such case, she is not allowed to continue her voyage to the blockaded port in alleged quest of information as to the status of the blockade, but must obtain it and decide upon her course before she arrives in suspicious vicinity; and if the blockade has been formally estab- lished with due notification, any doubt as to the good faith of such a proceeding should go against the neutral and subject her to seizure. 7. In accordance with the rule adopted by the United States in the existing war with Spain, neutral vessels found in port at the time of the establishment of a blockade will, unless otherwise ordered by the United States, be allowed thirty days from the establishment of the blockade to load their cargoes and depart from such port. 8. A vessel under any circumstances resisting visit, destroying her papers, pre- senting fraudulent papers, or attempting to escape, should be sent in for adjudi- cation. The liability of a blockade runner to capture and condemnation begins and terminates with her voyage. If there is good evidence that she sailed with intent to evade the blockade she is good prize from the moment she appears upon the high seas! Similarly, if she has succeeded in escaping from a blockaded port she is liable to capture at any time before she reaches her home port. But with the termination of the voyage the offense ends. 9. The crews of blockade runners are not enemies, ani^should be treated, not as prisoners of war, but with every consideration. Any of the officers or crew, how- ever, whose testimony before the prize court may be desired, should be detained as witnesses. 10. The men-of-war of neutral powers should, as a matter of courtesy, be allowed free passage to and from a blockaded port. 11. Blockade running is a distinct offense, and subjects the vessel attempting, or sailing with the intent, to commit it, to seizure, without regard to the nature of her cargo. The presence of contraband of war in the cargo becomes a distinct cause of seizure of the vessel, where she is bound to a port of the enemy not block- aded, and to which, contraband of war excepted, she is free to trade. 176 INTERNATIONAL LAW. .RIGHT OF SEARCH. 13. The belligerent right of search may be exercised without previous notice, upon all neutral vessels after the beginning of war, to determine their nationality, the character of their cargo, and the ports between which they are trading. 13. This right should be exercised with tact and consideration, and in strict conformity with treaty provisions, wherever they exist. The following directions are given, subject to any special treaty stipulations: After firing a blank charge, and causing the vessel to lie to, the cruiser should send a small boat, no larger than a whale boat, with an ofiflcer to conduct the search. There may be arms in the boat, but the men should not wear them on their persons. The officer, wearing only his side arms, and accompanied on board by not more than two men of his boat's crew, unarmed, should first examine the vessel's papers to ascertain her nationality and her ports of departure and destination. If she is neutral and trading between neutral ports, the examination goes no further. If she is neutral and bound to an enemy's port not blockaded, the papers which indicate the character of her cargo should be examined. If these show contraband of war the vessel should be seized; if not, she should be set free, unless, by reason of strong grounds of suspicion, a further search should seem to be requisite. 14. Irrespective of the character of the cargo or her purported destination, a neutral vessel should be seized if she — (1) Attempts to avoid search by escape; but this must be clearly evident. (3) Resists search with violence. (3) Presents fraudulent papers. (4) Is not supplied with the necessary papers to establish the objects of search. (5) Destroys, defaces, or conceals papers. The papers generally to be expected on board of a vessel are: (1) The register. (3) The crew list. (8) The log book. (4) A bill of health. (5) A charter party. (6), Invoices. (7) Bills of lading. 15. A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure, but not when she is a mail packet and carries them in the regular and customary manner, either aae, part of the mail in her mail bags or separately, as a matter of accommodation and without special arrangement or remuneration. The voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade. 16. A neutral vessel in the service of the enemy, in the transportation of troops or military purposes, is liable to seizure. MERCHANT VESSELS OP THE ENEMY. 17. Are good prize, and may be seized anywhere, except in neutral waters. To this rule, however, the President's proclamation of April 26, 1898, made the follow- ing exceptions: "4. Spanish merchant vessels in any ports or places within the United States shall be allowed till May 21, 1898, inclusive, for loading their cargoes and depart- ing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage, if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term: Provided, That nothing herein contained INTERNATIONAL LAW. 177 shall apply to Spanish vessels having on board any oflflcer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war. or any dispatch of or to the Spanish Government. " 5. Any Spanish merchant vessel which, prior to April 31, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place, and to discharge her cargo, and afterward forthwith to depart without molestation; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded." enemy's property in neutral vessels not contraband of war. 18. The President, by his proclamation of April 36, 1898, declared: "1. The neutral flag covers enemy's goods, with the exception of contraband of war." / contraband of war. 19. The term " contraband of war" comprehends only articles having a bellig- erent destination, as to an enemy's port or fleet. With this explanation, the following articles are, for the present, to be treated as contraband: Absolutely contraband. — Ordnance; machine guns and their appliances, and the parts thereof; armor plate, and whatever pertains to the offensive and defensive armament of naval vessels; arms and instruments of iron, steel, brass, or copper, or of any other material, such arms and instruments being specially adapted for use in war by land or sea; torpedoes and their appurtenances; cases for mines, of whatever material; engineering and transport materials, such as gun carriages, caissons, cartridge boxes, campaigning forges, canteens, pontoons; ordnance stores; portable range Anders; signal flags destined for naval use; ammunition and explosives of all kinds; machinery for the manufacture of arms scad munitions of war; saltpeter; military accouterments and equipments of all sorts; horses. Conditionally contraband. — Coal, when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs, and money, when such materials or money are destined for the enemy's forces; provisions, when destined for an enemy's ship or ships, or for a place that is besieged. SENDING IN of prizes. 30. Prizes should be sent in for adjudication, unless otherwise directed, to the nearest home port in which a prize court may be sitting. 31. The prize should be delivered to the court as nearly as possible in the condi- tion in which she was at the time of seizure; and to this end her papers should be sealed at the time of seizure, and kept in the custody of the prize master. Atten- tion is called to Articles Nos. 16 and 17 for the government of the United States Navy. (Exhibit A.) 33. All witnesses whose testimony is necessary to the adjudication of the prize should be detained and sent in with her, and, if circumstances permit, it is prefer- able that the 6fflcer making the search should act as prize master. 33. As to the delivery of the prize to the judicial authority, consult sections 4615, 4616, and 4617, Revised Statutes of 1878. (Exhibit B. ) The papers, including the log book of the prize, are delivered to the prize commissioners; the witnesses, to the custody of the United States marshal; and the prize itself remains in the custody of the prize master until the court issues process directing one of its own ofBcers to take charge. 6433 12 178 INTERNATIONAL LAW. 34. The title to property seized as prize changes only by the decision rendered by the prize court. But if the vessel itself, or its cargo, is needed for immediate public use, it may be converted to such use, a careful inventory and appraisal being made by impartial persons and certified to the prize court. 38. If there are controlling reasons why vessels may not be sent in for adjudica- tion, as unseaworthiness, the existence of infectious disease, or the lack of a prize crew, they may be appraised and sold; and if this can not be done they may be destroyed. The imminent danger of recapture would justify destruction, if there was no doubt that the vessel was good prize. But in all such cases all the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered. EXHIBIT A. Art. 16. No person in the Navy shall take out of a prize, or vessel seized as a prize, any money, plate, goods, or any part of her equipment, unless it be for the better preservation thereof, or unless such articles are absolutely needed for the use of any of the vessels or armed forces of the United States, before the same are adjudged lawful prize by a competent court; but the whole, without fraud, con- cealment, or embezzlement, shall be brought in, in order that judgment may be passed thereon; and every person who offends against this article shall be punished as a court-martial may direct. Art. 17. If any person in the Navy strips off the clothes of, or pillages, or in any manner maltreats, any person taken on board a prize, he shall suffer such punish- , ment as a court-martial may adjudge. EXHIBIT B. Sec. 4615. The commanding officer of any vessel making a capture shall secure the documents of the ship and cargo, including the log book, with all other docu- ments, letters, and other papers found on board, and make an inventory of the same, and seal them up, and send them, with the inventory, to the court in which proceedings are to be had, with a written statement that they are all the papers found, and are in the condition in which they were found; or explaining the absence of any documents or papers, or any change in their condition. He shall . also send to such court, as witnesses, the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and any person found on board whom he may suppose to be interested in, or to have knowledge respecting, the title, national character, or destination of the prize. He shall send the prize, with the documents, papers, and witnesses, under charge of a competent prize master and prize crew, into port for adjudication, explaining the absence of any usual wit- nesses; and in the absence of instructions from superior authority as to the port to which it, shall be sent, he shall select such port as he shall deem most convenient, in view of the interests of probable claimants, as well as of the captors. If the captured vessel, or any part of the captured property, is not in condition to be sent in for adjudication, a survey shall be had thereon and an appraisement made by persons as competent and impartial as can be obtained, and their reports shall be sent to the court in which proceedings are to be had; and such property, unless appropriated for the use of the O-overnment, shall be sold by the authority of the commanding officer present, and the proceeds deposited with the assistant treas- urer of the United States most accessible to such court, and subject to its order in the cause. (See Sec. 1624, Art. 15.) Sec. 4616. If any vessel of the United States shall claim to share in a prize, either as having made the capture or as having been within signal distance of the vessel or vessels making the capture, the commanding officer of such vessel shall INTERNATIONAL LAW. 179 , make out a written statement of his claim, with the grounds on which it is founded, the principal facts tending to show what vessels made the capture, and what vessels were within signal distance of those making the capture, with rea- sonable particularity as to times, distances, localities, and signals made, seen, or answered; and such statement of claim shall be signed by him and sent to the court in which proceedings shall be had, and shall be filed in the cause. Sec. 4617. The prize master shall make his way diligently to the selected port, and there immediately deliver to a prize commissioner the documents and papers, and the inventory thereof, and make affidavit that they are the same, and are in the same condition as delivered to him, or explaining any absence or change of condition therein, and that the prize property is in the same condition as delivered to him, or explaining any loss or damage thereto; and he shall further report to the district attorney and give to him all the information in his possession respect- ing the prize and her capture; and he shall deliver over the persons sent as wit- nesses to the custody of the marshal, and shall retain the prize in his custody until it shall be taken therefrom by process from the prize court. (See Sec. 5441.) APPENDIX 4. The Additional, Articles of the Geneva Convention for the Ameliora- tion OF the Condition of the Sick and Wounded. Article 1. The persons designated in article 2 of the convention (hospital and medical staff) shall, after the occupation of the enemy, continue to fulfill their duties to the sick and wounded, according to their wants, in the ambulance or hospital which they serve. When they request to withdraw, the commander of the occupying troops shall fix the time of departure, which he shall only be- allowed to delay for a short time in case of military necessity. Art. 3. Arrangements will have to be made by the belligerent powers to assure to the neutralized person fallen into the hands of the enemy the entire enjoyment of his salary. Art. 3. Under the conditions provided for in articles 1 and 4 of the convention the name " ambulance " applies to field hospitals and other temporary establish- ments which follow the troops on the field of battle to receive the sick and wounded. Art. 4. In conformity with the spirit of article 5 of the convention, and to the reservations contained in the protocol of 1864, it is explained that for the appoint- ment of the charges relative to the quartering of troops and of the contributions of war account only shall be taken in an equitable manner of, the charitable zeal displayed by the inhabitants. Art. 5. In addition to article 6 of the convention it is stipulated that, with the. reservation of ofiicers whose detention might be important to the ifate of arms and within the limits fixed by the second paragraph of that article, the wounded who may fall into the hands of the enemy shall be sent back to their country, after they are cured, or sooner if possible, on condition, nevertheless, of not again bearing arms during the continuance of the war. Art. 6. The boats which, at their own risk and peril, during and after an engagement, pick up the shipwrecked or wounded, or which, having picked them up, convey them on board a neutral or hospital ship, shall enjoy, until the accom- plishment of their mission, the character of neutrality, as far as the circumstances of the engagement and the position of the ships engaged will permit. The appreciation of these circumstances is intrusted to the humanity of all the 180 INTERNATIONAL LAW. combatants. The wrecked and wounded thus picked up and saved must not serve again during the continuance of the war. Art. 7. The religious, medical, and hospital staff of any captured vessel are declared neutral, and on leaving the ship may remove the articles and surgical instruments which are their private property. Art. 8. The staff designated in the preceding article must continue to fulfil their functions in the captured ship, assisting in the removal of the wounded made by the victorious party. They will then be at liberty to return to their country, in conformity with the second paragraph of the first additional article. The stipulations of the second additional article are applicable to the pay and allowances of the staff. ART. 9. The military hospital ships remain under martial law in all that con- cerns their stores; they become the property of the captor, but the latter must not divert them from their special appropriation during the continuance of the war. Art. 10. Any merchantman, to whatever nation she may belong, charged exclu- sively with removal of sick and wounded, is jsrotected by neutrality; but the mere fact, noted on the ship's books, of the vessel having been visited by an enemy's cruiser renders the sick and wounded iiicapable of serving during the continuance of the war. The cruiser shall even have the right of putting on board an officer in order to accoinpany the convoy, and thus verify the good faith of the operation. If the merchant ship also carries a cargo, her neutrality will still protect it, provided that such cargo is not of a nature to be confiscated by the belligerent. Art. 11. Wounded or sick sailors and soldiers, when embarked, to whatever nation they belong, shall be protected and taken care of by their captors. Their return to their own country is subject to the provisions of article 6 of the convention and of the additional article 5. Art. 13. The distinctive flag to be used with the national flag, in order to indi- cate any vessel or boat which may claim the benefit of heutrality, in virtue of the principles of this convention, is a white fiag with a red cross. The belligerents may exercise in this respect any mode of verification which they may deem nec- essary. Military hospital ships shall be distinguished by being painted white outside, with green strake. Art. 13. The hospital ships which are equipped at the expense of the aid societies, recognized by the governments signing this, convention, and which are furnished with a commission emanating from the sovereign, who shall have given express authority for their being fitted out, and with a certificate from the proper naval authority that they have been placed under his control during their fitting out and on their final departure, and that they were then appropriated solely to the purpose of their mission, shall be considered neutral, as well as the whole of their staff. They shall be recognized and protected by the belligerents. They shall make themselves known by hoisting, together with their national flag, the white flag with a red cross. The distinctive mark of their staff, while performing their duties, shall be an armlet of the same color. The outer painting of these hospital ships shall be white, with red strake. These ships shall bear aid and assistance to wounded and wrecked belligerents, without distinction of nationality. They must take care not to interfere in any way with the movements of the combatants. During and after the battle they must do their duty at their own risk and peril. The belligerents shall have the right of controlling and visiting them. They will be at liberty to 'refuse their assistance, to order them to depart, and to detain them, if the exigencies of the case require such a step. INTERNATIONAL LAW. 181 The wounded and wrecked picked up by these ships can not be reclaimed by either of the combatants, and they will be required not to serve during the con- tinuance of the war. Akt. 14. In naval wars any strong presumption that either belligerent takes advantage of the benefits of neutrality with any other view than the interest of the sick and wounded, gives the other belligerent, until proof to the contrary, the right of suspending the convention as regards such belligerent. Should this presumption become a certainty, notice may be given to such bellig- erent that the convention is suspended with regard to him during the whole con- tinuance of the war. Art. 15. The present act shall be drawn up in a single original copy which shall be deposited in the archives of the Swiss Confederation. The convention proper was signed at Geneva, Switzerland, August 3, 1864. It was signed by representatives of the following powers; i. e., the Swiss Confedera- tion, Baden, Belgium, Denmark, Spain, France, Hesse, Italy, the Netherlands, Portugal, Prussia, and Wurttemberg. The ratifications of the contracting parties were exchanged at Geneva on June 33, 1865. In accordance with the invitation contained in the ninth article of the convention, the following powers acceded to the convention at various dates between 1864 and 1880. These were: Sweden, December 13, 1864; Greece, January 5-17, 1865; Great Britain, February 18, 1865; Mecklenburg-Schwerin, March 9, 1865; Turkey, July 5, 1865; Wurttemberg, June 3, 1866; Hesse, June 33, 1866; Bavaria, June 30, 1866; Austria, July 31, 1866; Rus- sia, May 10-33, 1867; Persia, December 5, 1874; Roumania, November 18-30, 1874; Salvador, December 30, 1874; Montenegro, November 17-39, 1875; Servia, March 34, 1876; Bolivia, October 16, 1879; Chile, November 15, 1879; Argentine Republic. November 35, 1879; Peru, April 33, 1880. The convention was acceded to by the United States on March 1, 1883. The additional articles were agreed to and signed at Geneva, on October 30, 1868, by the duly accredited representatives of the following powers, i. e. , Great Britain, Austria, Baden, Bavaria, Belgium, Denmark, France, Italy, the Netherlands, the North German Confederation, Sweden, Norway, Switzerland, Turkey, and Wur- temberg. In the published English text, from which this version of the additional articles is taken, the following paragraph appears in continuation of article 9. It is not found in the original French text adopted by the Geneva Conference, October 30, 1868: "The vessels not equipped for fighting which, during peace, the government shall have offlcially declared to be intended to serve as floating hospital ships shall, however, enjoy during the war complete neutrality, both as regards stores and also as regards their stafE, provided their equipment is exclusively appropri- ated to the special service on which they are employed.'' By an instruction sent to the United States minister at Berne, January S, 1883, the right is reserved to omit this paragraph from the English text, and to make any other necessary corrections, if at any time hereafter the additional articles shall be completed by the exchange of the ratifications thereof between the several signatory and adhering powers. The President of the United States, in his proc- lamation announcing the accession of that power to the Geneva convention, reserves the promulgation of the additional articles until the exchange of the rat- ifications thereof between the several contracting States shall have been effected and the said additional articles shall have acquired full force and effect as an. international treaty. 182 INTERNATIONAL LAW. ■ APPENDIX 5. Special Order ) Navy Department, No. 54. j Washington, November 9, 1896. The following translation of a copy of a decree of the Government of France, dated Paris, June 12, 1896, prescribing certain regulations in regard to the entrance and sojourn of vessels in seaports of that country, in time of way, is published for the information and guidance of commanding officers of vessels of the United States Navy. H. A. Herbert, Secretary. Decree Establishing Regulations Concerning the Entrance and Sojourn IN French Ports and Anchorages, During Time op War, of French and of Foreign Vessels. The President of the French Republic, upon the recommendation of the minis- ter of marine, decrees: Article I. In time of war, between sunrise and sunset, no French merchant vessel, nor any foreign vessel, whether a man-of-war or a merchantman, shall approach within less than 3 miles of the French coasts (France and French posses- sions) before having been authorized so to do. Between sunset and sunrise the prohibition to approach within less than 3 miles is absolute. Between sunrise and sunset all vessels that are at such a distance from the land that their colors can be distinguished therefrom shall carry their national colors. If they desire to enter the prohibited regions, they shall so signify by hoisting the signal for a pilot; but they shall remain without the 8-mile limit until they have been boarded, or until a semaphore has signaled to them that their request has been granted. All vessels must immediately obey all orders signaled by a semaphore or received from a man-of-war, either verbally or by international code or signal. Art. II. In time of war, in case of failure by a vessel affected by this decree to conform to the above order, the nearest fort or vessel of war shall warn her to obey the same by firing a blank charge. If this first notice is without effect, there shall be fired, two minutes later, a projectile, and finally, after another interval of two minutes, if the vessel does not stop or stand off, an effective fire shall be opened. In case of urgency, the preliminary blank charge may be omitted. A vessel that violates the order relating to the interdiction of the prohibited districts ren- ders itself liable to be destroyed. Art. III. In time of war no small craft, other than those belonging to French men-of-war, shall go and come in the fortified roadsteads and harbors without special authorization and without having received from the maritime authorities the means of making themselves known. During both day and night the going and coming of small steamers, other than those belonging to French vessels of war, shall be absolutely prohibited. Row- boats, however, can go and come from sunrise to sunset, provided they have received permission from the port authorities, but under the reservation that they are to keep clear of vessels of war, if so ordered, and of not communicating with them, in any case, without having asked and received authority so to do. The going and coming of authorized small craft is subjected elsewhere to the local instructions issued by the prefectoral authority and especially as regards the prohibition to enter certain portions of the roadsteads or of communicating with any other places than those expressly designated. INTEENATIONAL LAW. 183 In commercial ports special measures will be taken by higher authority, of such a nature as to serve the interests of commerce, although imposing upon the traffle of small craft the restrictions judged necessary. Art. IV, In time of war, vessels authorized to enter French roadsteads and harbors must take the anchorages which will be assigned them by the local authori- ties and conform to the instructions of every kind issued by these authorities. The length of their sojourn is subordinate to the necessities ©f the military command, and when it is necessary to place these localities upon a war footing the higher authority can, if circumstances require it, order them to withdraw to the oflflng or to some designated place. This order must be executed at once, but a delay may always be granted to ves- sels which are justified in being so situated as to render immediate compliance impossible. No vessel shall get under weigh either to change her anchorage or to leave the harbor without having been authorized so to do by the local authorities. Art. V. The measures provided for by Articles III and IV may be put in force during the period of mobilization. Dated at Paris, June 12, 1896. Felix Faukb. By the President of the Republic. The Minister of the Marine, G. Besnahd. APPENDIX 6. Existence of War — Spain, BY THE president OF THE UNITED STATES OF AMERICA: A PEOCLAMATION. Whereas by an Act of Congress approved April 35, 1898, it is declared that war exists and that war has existed since the 31st day of April, A. D. 1898, including said day, between the United States of America and the Kingdom of Spain; and Whereas, it being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent prac- tice, it has already been announced that the policy of this Government will be not to resort to privateering, but to adhere to the rules of the Declaration of Paris; Now, Therefore, I, William McKinley, President of the United States of America, by virtue of the power vested in me by the Constitution and the laws, do hereby declare and proclaim: 1. The neutral flag covers enemy's goods, with the exception of contraband of war. 3. Neutral goods, not contraband of war, are not liable to confiscation under the enemy's flag. 3. Blockades in order to be binding must be effective. 4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and depart- ing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage, if, on exami- nation of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term; Provided, that nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval 184 INTERNATIONAL LAW. service of the enemy, or any coal (except such as may be necessary for their voy- age) , or any other article prohibited or contraband of war, or any despatch of or to tne Spanish Government. ."). Any Spanish merchant vessel which, prior to April 31, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place, and to discharge her cargo, and afterward forthwith to depart without molestation; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded. 6. The right of search is to be exercised with strict regard for the rights of neu- trals, and the voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade. In Witness Whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the City of Washington, on the twenty-sixth day of April, in the year of our Lord one thousand eight hundred and ninety-eight, and of the Independ- ence of the United States the one hundred and twenty-second. [seal.] William McKinley By the President. Alvey a. Adee Acting Secretary of State. APPENDIX 7. As TO Neutral Vessels op War entering Blockaded Poets. This matter is of growing importance. It may be a serious disadvantage, if not positive injury, to a blockading belligerent to have a blockaded port subject to frequent or sympathetic visits of a neutral vessel of war. The tendencies favor a limitation of such visits which usage permits as a matter of courtesy alone. The vessel of war desiring to enter the blockaded port should , in seeking permis- sion, if necessary, establish her identity to the blockading vessels. Quotations from authorities upon this subject follow here. Captain Ortolan, of the French navy, in his Diplomatic de la Mer, vol. 3, p. 339, says: "En droit, Tacces et la sortie de ce lieu sont interdits aussi bien aux b&timents de guerre qu'a ceux de commerce. " 'Tres-certainement,' a ecrit M. Wheaton, 'le droit de visitene peutetre exerce sur un batiment de guerre, mais il n'est pas moins certain qu'un tel navire n'a pas le droit d'entrer dans un port bloque ni d"en sortir, a moins qu'il n'y f ut dSja k I'epoque ot a commence le blocus.' Neanmoins, la puissance tenant le blocus aflfranchit sou vent de la regie les batiments de guerre en raison du caractere dont lis sont revetus et des privileges dont ils jouissent, et cette concession qu'exigent les egards dus aux gouvernements neutres doit, comme I'indique aussi M. Wheaton, ^tre faite toutes les fois qu'elle pent se concilier avec Tobjet dela guerre. Les Etats-Unis, depuis le commencement de leur lutte actuelle contre les Etats con- ffederes, laissent I'entree et la sortie des ports qu'ils bloquent libres aux navires de guerre des neutres, "En fait, le but principal d'un blocus etant d'interdire tout commerce par mer avec le lieu bloqu6, le moyen d'atteindre ce but reste tout entier si la prohibition d'entrer et sortir n'est appliqu6e qu'aux navires marchands." INTERNATIONAL LAW. 185 Perels, a German authority, makes the following statement upon the subject, which is the more interesting from his position as lecturer at the Imperial Naval Academy at Kiel. In his work, translated into French by Arendt, he says, on page 293: " (3^ Lafermeture de la place bloquee doit §tre respeet§e par les naviresde guerre et de commerce neutres; il n'est pas rare, cepe,ndant, que les navires de guerre neutres soient except6s de la prohibtion d'entrer. Les 6gards auxquels ont droit les puissances neutres justifient d'autant plus cette concession qu'elle ne porte aucune atteinte au but essentiel du blocus, qui est la suspension des relations com- merciales par mer. C'est ainsi que, pendant le blocus des c6te8 des 6tats conf6deres par la flotte de I'Union, tons les navires de guerre neutres y eurent libre a'cces. Le Gouvernement frangais avait adopte une regie contraire en 1838, lorsqu'il fit met- tre, par sa ilotte, les c6tes de la republique Argentine en etat de blocus. Le departement des affaires 6trangeres rendit alors led6cret suivant: ' Les batiments de guerre neutres se presentant devant un port bloque doivent aussi etre invites a s'eloigner; s'ils persistent, le commandant du blocus a le droit de s'opposer £1 leur entree par la force, et la responsabilit§ de tout ce qui pent s'en suivre pesera sur les violateurs du blocus.'" Captain Testa, of the Portuguese navy, professor at the naval school in Lisbon, in the French translation of his work, by M. Boutiron, states on page 285 that— ' ' D'accord avec les principes admis, le blocus etablit le droit de prohiber I'entree des points bloques tant pour les navires de guerre que pour les navires de com- merce. Cependant, les puissances qui 6tablissent le blocus autorisent souvent la libre entree et la sortie des navires de guerre neutres par la consideration qu'il n'est pas presumable, d'apres leur caractere, qu'ils aillent aider le belligSrant bloque; et qu'en outre, la fin principale du blocus 6tant d'interdire le commerce par mer, I'entree on la sortie des navires de guerre impartiaus et non oommergants ne porte pas prejudice a ce but.'' Calvo says, in section 2561, page 97, of volume 4, that — "En droit I'acces et la sortie d'un port bloque sont interdits aussi bien aux batiments de guerre quaux navires de commerce. "'Unbatiment de guerre,' ditWheaton, 'n'aspas le droit d'entrer dans un port bloqufe nl d'en sortir, a moins qu'il n'y fut deja k Tepoque oft a commence le blocus. ' "Cependant, les belligerants, en consideration tant des egards qu'ils doivent aux autres gouvernements que du caractere dont sont revetus les batiments de guerre et des privileges dont ils jouissent, laissent souvent, toutes les fois que cette con- cession pent se concilier avec I'objet de la guerre, I'entree et la sortie des ports qu'ils bloquent libres aux navires de guerre neutres." Mr. J. H. Ferguson, formerly of the Netherlands royal navy, and at one time minister of the Netherlands in China, says in his manual, volume 2, page 486, arti- cle 276: " During the continuance of the state of blockade no vessels are allowed to enter or leave the blockaded place without special license or consent of the blockading authority. Public vessels or vessels of war of neutral powers are all equally bound by the same obligation to respect the blockade. When the public vessel of a neutral State, to have comipiunication with a blockaded place, the neutral com- manding oiflcer is obliged to observe strict neutrality and to comply with the conditions under which such permission has been granted to cross the lines of the blockading belligerent. The impartiality, which must be the prevailing feature of an effective blockade, prohibits that, except to public vessels, permission to enter the blockaded place be given than in extreme cases of positive necessity. Diplomatic agents and consular officers of a neutral State are also allowed the amount of communication ilecessary for the fulfillment of their ofQcial duties." 186 INTERNATIONAL LAW. Hall says, on page 737, that: "The right possessed by a belligerent of excluding neutral ships of war from a blockaded place is usually waived in practice as a matter of international courtesy; and for a like reason the minister of a neutral State resident in the country of the blockaded ports is permitted to dispatch from it a vessel exclusively employed in carrying home distressed seamen of his own nation." Walker, on page 523, says: "The stringency of a blockade may indeed be relaxed in two peculiar cases. After the expiration of the period appointed for the withdrawal of ordinary neutral private vessels, and at any time during the continuance of the investment men-of-war flying the flags of neutral powers are commonly by courtesy permitted to communicate with the blockaded ports, and to maintain the public correspond- ence of their own or other neutral governments with their respective consular or diplomatic agents. It behooves such licensed carriers, however, to see to it that their privilege does not become a cloak for illegitimate dealings. The acting British consul at Mobile in 1863, having placed on board Her Majesy's ship Vesuvius for conveyance to Havana a large sum of money belonging to the State of Alabama and destined to pay the London interest due from that State to British bond- holders, the offender, Mr. Magee, was promptly dismissed from the British service, and Lord Lyons was instructed to apologize to the United States Government for conduct on the part of a British civil servant, which was ' entirely at variance with the duties of an agent of a neutral power. ' In £^ny case the communication of neutral vessels of war with a coast under blockade is, as Vice- Admiral Milne clearly intimated to the officers of his fleet in 1863, permissive only, and not of strict right." IliJ^DEX. A. Page. Abandoned vessels op war 34 Acquisition of conquered territory. 116,117 Acts, for repression of slave trade 46,47 exterritorial _ 33,34 Adams, C. F., on the Laird rams.. ,__ 128 Adams, J. Q., on recognition of new States 11 Admiralty courts 88 Admission to ports. See Poets. Adriatic Sea.. 15 Aeronauts _ 86 Agents, international 58,63 Alabama, case of the, and claims _ 68,185,126 ■Alaskan waters 15 Aliens, expulsion 58 exterritorial offenses _ , 31 exterritoriality in Oriental countries 81,63 jurisdiction over 30,37,38,49,58 military service..... 53 protection 53-55,57 real estate 58 taxation 53 See also Citizens. Allegiance, acquired. Indelible, local, natural 49, 50 Amazon River 17 Ambassadors, exterritoriality 21 immunities 31,33 rank 58 reception 58 See also Diplomatic agents. Ambrose lAght, case of the 43 Amicable settlement of disputes. 65,68,69,74 Amos, S., on arbitration 69 Anchorages in harbors... 19 Andorra 5,8 Approach, right of _. 164 See also Search, right op. Arbitration 68,69 Archives, consular 60 Armed forces, immunities 23 See also War. Arming belligerent vessels in neutral waters 124, 135, 136 Armistice 65,66,111,113 Arms 88 Art, works of .- 105 Asia, consular jurisdiction ■ _ 62 semicivilized States _ 8,22 territorial jurisdiction 81,33 Assassination - 88 Assistance to belligerents 139, 180 Asylum, right of, in legations and consulates 37,38 on board merchant vessels 39,80 on board vessels of war 28, 39, 88 to fugitives 37,28,39,30,38 187 188 INDEX. Page. AuBE, Admieal, on French naval policy 91 protects American consulate at Samoa 56 Austria-Hungary, class of State 6 closes ports to belligerents, 1854 131 consular convention __. 27 convoy regulations 163 jurisdiction over exterritorial offenses 31, 33 Koszta case .. _ 53 pacific blockade of Greece _ 73,74 papers carried by vessels 171 policy as to capture of private property at sea 80 slave trade 47 Tousig case 53 Authority to commission public vessels __ 38,39 Auxiliaries _.. 85 B. Baker, SirS., on the 2Verai affair 147 Balloons, status of persons in military 86 Baltic Sea _ 15 Baltimore, attack on seamen of the _ 54 Barrundia, case of 30, 31 Bayard, Secretary, on contraband 139 Cutting case _. ... 31 Gomez case 30 insurgent vessels -.. 44 neutrality and insurgents _ 133 persons domiciled but not naturalized 53 Belgium, consular convention _ 37 crime committed aboard steamer in Jersey City 36 jurisdiction over exterritorial offenses . . 31 neutrality during Franco-German war 130 papers carried by vessels _ 170 part-sovereign States 8 Belligerent community, relations to parent State _ _ _ 14 Belligerents, capture of blockaded port 157 moral obligations-.- 87 recognition - 11-14 relations to neutrals _ 77,119-169 rights. 77,119,176 Benham, Admiral, action in Rio Janeiro... 13,13 Bering Sea controversy 15, 68 Berlin Conference 17 Bermuda, case of the - 158 Bernard, M., on arbitration 68 Betts, Judge, on the iietonce case 27 the Stephen Hart case 141, 159 Bismarck, Prince, on bombardment of Paris 90 coal as contraband 136 prisoners of war 86 Black Sea 9,18 Blockade, breach -.. 155 commercial 150 definition 150 discontinuance 154, 157 effective. 158,155,174 establishment 151 exclusion of vessels of war .-- 157 extent - - 154 military 150 notification. 151,152,174,175 pacific -- - 70,73-74 paper. 154 penalty for breach 158 raising - 154 recognition 151 runners, crews of- 158 INDEX. 189 Page, Blockading vessels and cbuisers, instructions to, 1898 174-179 Bltjntsohli, J. C, oncontraband 136 expulsion of invaders . . _ _ _ _ . _ 116 instructions for government of armies of the United States in the field 75 permanent treaties 67 responsibility of a State for mob violence 35 treaty of Washington 137 Boats op a vessel of war in foreign ports 64 Bolivia, treaty on contraband.. .._ ___ 140 Bombardment, besieged towns _ 90 buildings exempt _ 91, 93 Paris and other French towns. _ _ 89, 90 unfortified towns 91 Valparaiso _ _ .__ 91 BosPHORUS and Dardanelles 18 Boundaries 15 Brazil, arrest of deserters in 25 insurrection, 1894 12, 13 neutrality law __ 135 papers carried by vessels- 171 reprisals by England, 1861 _ _ _ 71 sovereignty violated by the Wachusett, 1864 128 treaty on contraband _. _. 140 Bristol Ghannel _ 18 Brown, Judge, on the Ambrose lAght case 44 Brussels Conference, combatants, 1874 _ 85 laws of war, 1874 75,110 military occupation, 1874 -_. 107 slave trade, 1890 _.■. 29 Bulgaria _ ..- 8 BuLMERiNCQ, VON, on pacific blockade - - 73 C. Cables, telegraphic -.. _-- 94 Calvo, C, on admission to ports 19 legislation to carry out treaties 66 pacific blockade _. 73 responsibility of a State for mob violence _-. 35,36 treaty of Washington. 137 Canada. See Great Britain. Canals, interoceanic. 16 Capitulations - - 95 Capture, enemy's property 98-101, 105, 176 municipal seizure beyond 3-mile limit -- _ -. 41, 161, 163, 164 neutral waters 123-134,176 prizes _ - . 177 resistance to search ._ 163,176 responsibility of captors '. 158,168,169,176,177 right of 79,80,164,176,177 validity - --- --- 168,177 See also Search, right of. Cargo, confiscation for breach of blockade _.. 158 See also Blockade; Contraband. Caroline., case of the _-_ _ 83,34,143 Cartagena, insurrection, 1885__ 48 Cartels and cartel ships --- - 95 Cass, Secretary, on approach, right of _ 165 Castioni, case of - - - - - - - 33 Central America, asylum in legations 27 Corinto affair - - 70 insurrections _ _ _ _ _ 131, 133 treaties on carriers of contraband 139, 140-142 Cession and conquest - - --- 115-117 Change of sovereignty, effect on private rights ._. 11 effect on public rights 11,14 Chaleur, Bay of. 15 190 INDEX. Page. Chaplains _ 86 Charg£ d'affaires .- _ 58,59 See also Diplomatic agents. Chase, Chief Justice, on the PeteWio^ case 137,142 Chesapeake, affair of the ._ 71 Chesapeake Bay, territorial water - 15, 18 Children, nationalty of 50 of subjects of a state : 49 Chile, assault on seamen of the BaWimore, 1893 54 bombardment of Valparaiso, 1865 91, 93 demands recall of Mmister Egan _ 59 dissents from recommendations of arbitration in International Ameri- can Congress .-. 68 the 7ta 103 Orozembo, case of the 143 Ortolan, T., on neutral rights 160 P. Pacific blockade 73,73,74 Palmerston, Lord, on maritime war 80 Panama, transit across the isthmus. .:.. 57 Papers carried by vessels, Austria-Hungary 171 Belgium '. 171 Brazil... 171 INDEX. 203 Page: Papers caeeied by vessels, captured, to be sealed 177,178 concealment 163,164,176 Denmark 171 evidence of nationality 40, 170-174 false 164,176 France 172 Germany _ _ _ 172 Great Britain 173 Greece 173 Italy 173 Netherlands 173 Norway _ 173 Portugal _ 173 Russia - 173-174 Spain 174 spoliation 164 Sweden - .. 174 United States 40,170 Papers of prizes 169,177,178 Parana River 17 Parent State, recognition by 10,14 Paris, bombardment -__ 90 declaration of. See Declaration of Paris. tribunal of arbitration, Bering Sea controversy 15 Parole , 96,97 Partnership _ 99 Part sovereign States 7,8 Passage, of troops over neutral territory 120 rights of innocent - - 16 Passports 41 Peace, treaty of __ - - 113,113,114,116 Penalty for breaoh of blockade 158 carrying contraband __ 141-144 Persia 8 Personal union ._ 7 Persons, as contraband 144-148 effect of war as to 84^87 of doubtful nationality _ _ 49, 50 Peru, rebellion, 1877 __ - 45 treaty on carriers of contraband 142 war with Chile _ _ 48 Peier/io/, case of the 137,140,142,158 Phillimore, Sir R., on arbitration _ 68 confiscation of property 98 the Constitution case... 25 navigation of the St. Lawrence 17 postliminium __ 115 submission of conquered territory _ , 113-115 war - 76 PiERANTONi, A., on treaty of Washington - - 137 Pillage - - 97 Pinhbiro-Perreira, on treaties _ 67 Piracy, definition and character - - - 43, 164 insurgency - - - - 13, 46, 53 slave trade - 164 Plevna - 93 Poison - 88 Poland, war with Sweden - 113 PoMEROY, J. N., on abandoned vessels of war__ 17,24 navigation of rivers _ 17 protection of citizens abroad 57 Porcupine River - - 17 Poets, admission to - 19 closed - -.19,23,120 foreign ...- 19,23-37 French, in time of war - 182 jurisdiction over. - - 19, 27 204 INDEX. Paga Poets, law of 25-37 neutral 120,131,123,134 violation of jurisdiction 25-37 iSfeeafeoAsYLUM, RIGHT of; Neutral; Vessels, merchant; Ves- sels OP WAR; Vessels, public. Portugal, centralized state 7 consular convention 27 expedition to Terceira 132 the General Armstrong case 128 neutrality law 125 pacific blockade by France, 1831 73 papers carried by vessels 173 salvage law 102 Postliminium 115,116 PEADiER-FoDfiRE, On treaty of Washington 127 Precedence _ 58,59 Preemption of contraband 143 Preliminaries of peace 113 Prince Edward Island, waters about 15 Prisoners of war _ 85-87,95-97 Private property, seizure of _ 79,80 Private rights, effect of change of sovereignty on 11,14 Privateers - 81,82 Prize cases - 1 167,169 courts ..- 158,167-169 courts, international - 168 master^. 169 proceedings v(rith 169,177,178 See afeo Blockade; Contraband; Search, right of. Proclamation, of President McKinley, 1898, as to policy in war with Spain _ 82 concerning^ enemy's ves- sels _ 176,177 notice of suspension of hostilities between the United States and Spain 113 Property, enemy 79-81,97-101,167 neutral 167 private 79-81,107,115,167 public 14,15,20 territorial - '. 14,15 Protected States - 7, 8 Protection of aliens 58,54,55 citizens abroad.. 53-56,63 merchant vessels 63, 176 Protectorates _ _ J 7,8 Protocols ._ 65,113 Provisions as contraband _ 138 Prussia. See Germany. Public rights, effect of change of sovereignty on 11 Q. Quarter to defeated enemies _. 93 R. Ransom, contracts — 98, 100 prisoners of war 96 towns - 91 vessels 100 Ratification of treaties 66 Real union . 7 Recapture of ships and goods 103 Recognition of belligerency 13-14,124 blockade 151 independence - 10, 11 of new states 10 Red Cross Society 75,88,179 INDEX. 205 Page. Registry of vessels 39,170-174 Relations op belligerent community to parent state 14 Relations of neuti-als to belligerents 76,119-169 Reliance, case of the 27 Reprisals... 69,93 Repression of slave trade.. 47 Requisitions.- 106,107 Rescue _. 103 Resistance to capture _ 163 Restitution of property 103,115,116 Restoration of peace _ 113,113 retali.a.ti0n 93 Retorsion. 73 Revictualing a besieged place 89,90,111,113 Revised Statutes, United States 34 Right of approach. See Approach, right of. asylum. See Asylum, right of. search. See Search, right of. Rights of citizens. See Citizens. neutrals. See Neutral. states. See State. RIPPERDA, case of the Duke of.- 37 Rivers, navigation of ^ 15,17 Robertson, E., on treaty of Washington 137 RoLiN- Jacquemyns, on treaty of Washington _ 137 Roman law 3 Ross, Judge, on the Itata case.. 133-134 Rule of war of 1756 158 Rules of war. See Laws of war. Russell, Lord, on blockade ' 154 Laird rams. 128 the Trent affair _ 147 Russia, coal not contraband _ 138 consular convention _._ 27 Crimean war 99,103,136,144 jurisdiction over exterritorial offenses _ 31 laws of war 75 naturalization law 57 neutrality law 125 pacific blockades of Greece, 1837, 1886 73,74 papers carried by vessels 173-174 ransom forbidden 103 war with Turkey, 1877 .^ 79 S. Safe conducts and safeguards 97 Santo Domingo, consular convention 27 St. Albans raid -. -.. 33 St. Lawrence River, navigation 17 St. Marks, seizure of _ 34 St. Petersburg, declaration of. See Declaration op St. Petersburg.. 80 Sale of arms to belligerents 139-130 Salutes, visits, and courtesies _ - - 63,63 Salvador, Barrundia case 30,31 consular convention 27 refugees aboard the Bennington, 1894 33 treaty on contraband 140,142 Salvage 35,103 Samoa, United States consulate protected by French man-of-war, 1877 56 San Jacinto, affair of the. - 147,169 San Marino - 5 Santissima Trinidad, case of the 135 Savages, employment in war __ 85 Scope of international law. _ 1 Scott, General, purchases provisions in Mexican war 106 Scott, Sir W., on blockade. 156 contraband 136 206 INDEX. Page. Scott, SiaW., on convoy 163 • dispatches as contraband.- 143 the Louis case 46 the Mimcase 161 the Orozembo case 143 provisions as contraband 138 the Staadt Embden case 148 transfer of goods in transit - 102 the Twee Gerbroeders case 131 Sea, .inrisdiction on the high 37,38 letters - 41 marginal 15, 16 Seamen, merchant ^ 84 Seaech, eight of, approach 165 belligerent right 161,176 convoy 163 duty of captor 164 duty of neutral vessel 162, 163 extent 161,162 highseas 161,163 instructions of Navy Department concerning 163 Impressment of seamen _ 164 manner of conducting 161-164, 176 neutral territory ___ 162 piracy 1 64 resistance to _ 163, 164, 176 slave trade 47,164 spoliation of papers 164,176 suspicion .^ 162, 164 violation of municipal law 47,164 See also Captuee; Peize. Selden, on mare clausum 15 Self defense -.. 83,84 government 9 preservation _ 9 Sbmicivilized States : 8, 23, 57 Semi-sovereign States _ _ 7 Shenandoah, case of the _ __ 120 Shipbuilding, materials contraband 137 neutrals 134 Ships. See Vessels, meeohant; Vessels of wae; Vessels, public. Ships' papers. See Papers carried by vessels. SiAM, consular jurisdiction in 62 semicivilized 57 Sick, treatment of - 88 Singapore - 19 Siege of fortified places, 89 Slave trade as piracy 164 treaty of 1890 - 47 Soil, produce in enemy's country 100 SoTELO, case of 30 Sound dues — 17,18 Sources of modern international law 3 South American States, asylum in legations 27,38 equality of 8,9 horses contraband 139 insurrections in. 13,13,131 recognition of independence 10 semi-sovereign, see also part sovereign 8, 9 Sovereign, immunities of 20,31 Sovereign States 5,11 Sovereignty, efiEect of change 5,11 external and internal 5,6 political _ 6 rights 5,9,11 violation by belligerents. 119-124 See also State. INDEX. 207 Page. Spain, American colonies 8,10,13-14,112 asylum in legations 37,28 bombardment of Valparaiso, 1865 91 centralized State __ .. 7 consulate in New Orleans attacked', 1851 ' . .... 35 convoy regulations _ 163' Declaration of Paris ___ 82 extraditionofArgliellos and Tweed 33 insurgents proclaimed pirates, 1878 _ 45 neutrality law 135 notification of blockade 151 papers carried by vessels. 174 ransom .._. _ 100 Ripperda, case of the Duke of 27 salvage law i.. _. 102 Sotelo case _ 30 the Virginius case _ 34,56 the William case _ _ 158 war with Chile ___ 113 war with Mexico _ 130 war with United States 80,83,109,113,174-179 war with United States, neutrality proclamation .._ __ 119 Spanish-American States __ 8,9,10,37,28 Speed, Attorney-General, on trade in contraband 134 Spezzia __ _ _ 19 Spies k _ 92 Springbok, ease of the _ 158,160 State, admission to ports 19 armed forces 23 attributes _ 5, 11 change of sovereignty _ _ 5, 10, 11 citizens __ _ 48,49,53,54,58 classification , 7 commencement of a_ 10 definition _,._ _._ 5 equality 7 exterritorial acts 33, 34 extradition 32 fundamental rights and duties. 9, 10 identity _. 67 insults and injuries 70-72 insurgent 12-14,43,131-134 internal changes 5,6,7,11 international agents 58, 63 intervention 48 jurisdiction on high seas _ 37,37,38 jurisdiction over exterritorial oilenses 31 jurisdiction over merchant vessels 26,27 jurisdiction over ports and harbors 19 jurisdiction over territory occupied 106,111 nature of title 14 neutral rights and duties 119,120,135,13^136 prize courts. 167,169 protection of citizens abroad _ 53,54 protection of domiciled aliens .53,54 public vessels 33-25,38 recognition _ . 10, 11 relation of parent 14 responsibility for miob violence , 35 sovereignty 5 right to continue and develop existence 9 territorial jurisdiction '. 15, 16, 20 territorial property 14, 15 territorial waters - 15-30,37 treaties 65-67 units dealt with in international law ,... & See also Belligeeents; Neutral. 208 INDEX. ■Pagft Stephen Hart, case of the 140,143,158,159 Story, Justice, on captures in neutral waters 123 piracy _. 43 the Santissima Trinidad case 125 Stowbll, Lord, See Scott, Sir W. Straits _ 16,17,18 Stratagems in war 93 Subjects. See Citizens. Submarine telegraph cables 94 Sun YatSen, affair of 22 Supplies to belligerent vessels 120,121 Suspension of arms _ Ill, 112 Sweden, closes ports to belligerents 121 consular convention..., 27 jurisdiction over exterritorial offenses i. 31 notification of blockade 151 papers carried by vessels 174 ransom forbidden 100 sale of frigates 130 salvap^elaw 102 treaties on contraband 140,142 war with Poland, 1716 112 Switzerland, Castionicase 83 neutrality in Franco-German war 120 part sovereign 8 T. Telegraph CABLES 94 Teroeira, expedition to 122 Territorial conquest 116, 117 jurisdiction 14-16 occupation 106, 111 property 14,15 waters '. 15-19 Territoriality of vessels 33,24 Teutonia, case of the 78 Texan BONDS 130 Thibet .-- 8 Thirty years' war ■ 2 Three-mile limit 15,16,18 Three Friends, case of 132 Tousig, Simon, case of 52 Trade, belligerents 129,130 enemy 98-103 license - 99 neutral 129,130,134-167 See also Blockade; Contraband. Transfer of goods in transit 100-103 to neutral flag 103 Transvaal Bepublic 5 Treachery 110 Treaties - 65 abrogation 66, 67 blockade 153 classification 65 contraband 139 convoy 163 forms - 65,66 legislation to give effect to 66 limits - 66 peace 113,113,114,116 precedence, in order of 68 ratification 66 right to negotiate ...i 65 slave trade ..., 46,47 violation - - 65,67 INDEX. 209 Treaty of Frankfort _ __ 113 Washington]I^-!^"^'^^'.'].^^""''~r/-!J^^[!^^!'"y.^- 1^17,135-129 Zurich ._ _ . 113 Trent, affair of the _ _ _ 147,148,169 Truce, definition . . ... Ill flag _. 93-94 operations during ,•... 113 See also Armistice. TtJRKBY, claim to Bosphorus and Dardanelles..., _ 18 naturalization laws _ 51 pacific blockade of Greece, 1837 . - _ 73 semicivilized _ _ 8, 57 territorial jurisdiction, exception to 31, 33 war with Russia __- 79 Tusoarora blockades the Nashville in English waters , the 1 34 Twee Gerbroeders, case of the • 131 TwENTY-FOUE HOURS RULE, issue from neutral ports 1 34 Twiss, SirT., on continuous voyages 159 neutral goods in enemy's ships -- 167 U. Unfortified towns, bombardment 91, 93 contribution and ransom 91, 92, 106 defense of _ 93 Uniform, foreign 93 United States, asylum in legations and consulates 37, 38 asylum on board ships of war _ 28 civil war in _ . 13 civil war, close of — _ 114 consular conventions 27 declaration of Paris. 81,83 enclosed waters _ 18 fisheries disputes 15 foreign policy of _.. 11,13 immunities of merchant vessels 37 navigation of St. Lawrence and other Canadian rivers 17 neutrality acts 135 policy with regard to privateering _ _ 81, 83 protection to aliens _ - _ 54 private property at sea in war _ 80 public vessels of - --_ 35 recognition of - _ 10, 11 Sound dues of Denmark. .._ _ 18 treaties _ _ - 113 treaties, law of the land 66 treaty with Italy, 1871 _. 80 war with Spain 80,83,113,161,166 contraband of war 137,177 instructions to blockading vessels and cruisers 174-179 instructions concerning neutral mail steam- ers -- 145 neutrality proclamations 119 United States Consular Regulations 23,41,81,63 United States Instructions for G-overnment of Armies in the Field, laws of war _ - 75 military occupation _ 107 newspaper correspondents -- 85,95 prisoners of war '. - 85,95 quarter --- 93 war rebels and traitors _ . _ - _ 110 United States Navy Regulations, assistance to merchant vessels 63 asylum 39 blockades 63,174-179 boats parts of ship 64 consular functions of ofBcers - . 63 6433 14 210 INDEX. Page. United States Navy Regulations, convoy 168 court-martial in foreign jurisdiction . 64 examination by foreign customs offi- cers 24 foreign flag 93 foreign territory 35,26 international law 63 instructions for blockading vessels and cruisers, 1898 174-179 neutrality 63 protection of citizens and merchant vessels 55,56,63 relation of ofiflcers to diplomatic agents and consuls 55, 57, 63 right of search 163,176 salutes and visits _ 63, 63 search and impressment 63 target practice 15 treaty rights 65 United States Revised Statutes, blockade 158 consular courts in China and Japan. . 63 consuls , diplomatic functions 32 expulsion of vessels 24 neutrality. 125,131-134 prizes 169 recapture 103 vessels of the United States 40, 170 United States Supreme Court, Belgian steamer in Jersey City 26 the Bermuda case 158 close of the civil war ..., 114 collisions at sea 38 the Commercen case 138,160 commercial dornicil 101 confiscation of enemy's property 97 equipmentof vessels inneutral territory. 134 extradition , _ 33 hostilities in neutral waters , 133 immunities of merchant vessels 26, 27 license to trade 99 the Mariana Flora case 164 military government 110 municipal seizure beyond territorial waters 41 the Nereide case 167 occupation of Castine by British 108 the Peterhoff case 137, 142, 158 piracy , _ 42 the Santissima Trinidnd case 125 spoliation of papers 164 the Springbok case 158, 160 the Stephen Hart case 1 41 , 158, 160 Three Friends case 132 transfer to neutral flag 104 Unneutral service . . 143 Uruguay River, na,vigation of 17 Uti possidetis 117 V. Valparaiso, attack on United States seamen ; 54 bombardment of 91, 92 Vattel, E. , on responsibility of a State for 'acts of citizens 54, 55 Venezuela, independence recognized 113 treaties on contraband 140 Versailles, preliminaries of _ 113 Vessels, MERCHANT, asylum on board 39-31 enemy's _ 176,177 French law as to, in port _ 26 INDEX. 211 Page. Vessels, merchant, immunities 36,37 innocent passage 16,36 jurisdiction over 36,37,38 nationality - __- 40 papers carried by _ _ 40, 170-174 passing through marginal waters _ _ _ 36, 37 ransom _ 100 self-defense. 83 iSfeeaZso Blockade; Contraband; Search, rightof. Vessels op war, abandoned , 34 asylum on board_ _ _ _ 38-30 boatsof 64 commission _ _ _ _ 38 exterritoriality _. 33-35 foreign ports 19, 33-35 immunities 33-35 innocent passage 16 neutral ports .. 119, 130, 134, 135 See also Blgckadb; Contraband; Navy; Search, RIGHT OF; United States Navy Regulations. Vessels, public 38-35,38 military hospital __ 179 ViLLAFRANCA, preliminaries of _ _ _ . 113 Violation of neutrality __ 119-131,134,135 parole _ _ 97 Virginius, case of the 34, 56 Visit and search. See Search, right op. Vladivostok, limitations to admission _.- 19 Volunteer navy : , 81, 83 Waite, Chief Justice, on immunities of merchant vessels 37 Walker, T. A. , on bombardment of undefended seaports 91 captures in neutral waters 133 hostile expeditions from neutral territory 131 merchant vessel resisting capture .._ _. 83 pacific blockade -.. 73 three-mile limit _ 16 War, causes 76 declaration _ - 78 definition _ 76 effects --- 84^87,97-99 epoch making _ _ - 69 indemnity - - - 81 . influence of commerce, improved usage, and publicists 3 laws - 75,84,87 maritime - 79-83 , measures short of . _ _ _ : 69-74 mitigations - 75 nature 76,77 necessity _ - 77 outbreak _. 78 power to make. _ - __.._ 7 prisoners.. _-_ --- ---- 85-87,95-97 private property on sea and on land 80 rebels 110 sometimes unavoidable 69 termination of 113, 113 traitors --. - .- 110 VonMoltkeon -..- _ 80,81 See also Laws of War. Washington, treaty of --- 17,135 Weapons allowed in war . _ 88 Webster, Secretary, on the Caroline case 33 impressment of seamen _ . . _ _ _ 164 Texan bonds. _ 130 Westphalia, peace of _ 3,58 212 INDEX. Page. "Whaeton, v., on inBTirgents as pirates 44 Wheaton, H., on breach of blockade 157 declaration of war 77 intervention 48 nationality of vessels. 39 nature of war 76 navigation of rivers .' 17 neutrality 118 ransomed vessels, 100 recapture _ 103 right of self-preservation of States 9 treaties of peace. 114, 115 vessels of war and blockades 157 Widows, nationality of 50 Wilkes, Captain, the San Jacinto and the Trent 147, 169 William, case of the 158 WiNTHKOP, on laws of war 87 parole 97 prisoners of war 1 95 spy, definition of 93 WooLSEY, T. D,, on blockade 154 classification of contraband 136 confiscation of property 98 loans of money to belligerent States 130 persons and dispatches as contraband 148 political refugees 32 privateering 81 search, right of 163,164 seizure of vessels beyond territorial jurisdiction 164 slave trade as piracy 46 the Trent aSaiT 147,148 the Virginitis case 34 Women, nationality of 50 Wounded, treatment of 88,89,179 Y. Yachts, flag 39 license - 39,170 papers 39,170 Z. Zone op search, African slave trade 47 Zurich, treaty of 113