WUIIUI Mi " -«• » h. « ■*■-; Cfnrn? II Ham Bd^tml ffitbrarg (lift of M^ran (?. Saaloi^. ffiffi.®- 1094 JX 4419.F85"^" ""'"^'■^'•V Library ''^1;?, ''■eedom of the > The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016951299 THE FREEDOM OF THE SEAS r The Sinking of The William P. Frge Prepared for COL. E. M. HOUSE Under the Direction of DR. SIDNEY E. MEZES B '^f37g 1^ Chicago, January 26, 1918. My Dbae Doctor Mezes: The notes which follow have been prepared at your suggestion in the hope that they may help to define the position that America has heretofore taken diplomatically and juridically in the development of the opinion of the world toward: "Absolute freedom of navigation upon the seas outside terri- torial waters, alike in peace and war, except as the seas may be closed in whole or in part by international covenants." I. After some hesitation in the choice of the method of approaching the inquiry, it was decided to take concrete cases, the facts of which could be ascertained with some degree of certainty, and thence to dis- cuss the law applicable thereto. This does not permit the whole field to be developed, but it was thought to give the specific instance an outline and reality that the discussion of general principles so often lacks. II. The whole field of international maritime law, as administered by our courts and asserted by our statesmen, has been so concisely and completely covered by Professor Mooee, that I am contenting myself with references to his Digest without discussion of his citations, except in those cases where restatement is necessary to give emphasis to the matter under consideration. Professor Moore's Digest was printed in 1906, and the latest case cited seems to be a decision in 197 IJ. S. Supreme Court. There is, therefore, the period of 12 years last past, which lacks his illuminating discussion; and to this period, in which were held the Second Hague Conference and the Naval Conference of London, I have therefore given attention. III. The Declaration of London (the result of the Naval Confer- ence of 1908-1909), sought to harmonize and codified the existing prac- tice and law of naval war; it did not seek to establish new law; it did not mark much of an advance. Nor was it to be expected. The con- ferees (with a few notable exceptions) seem to have been diplomats, naval officers and bureaucrats, trained in, and adhering tenaciously to, the traditions of their professions. A conference thus composed Could not be expected to concede many things to the smaller powers or sub- stantially to enlarge the rights of neutrals. IV. The United States has accepted the Declaration of London by the affirmative action of the Senate (April 24, 1912). and while it may not be effective owing to the failure of England to ratify it, and while the State Department may properly declare that it is not in force as a II code of laws binding alike upon Germany and America, tlie Declaration must nevertheless be accepted as a code which, in 1912, the United States approved. [Note: Unfortunately the Congressional Record does not disclose the debate ; the notation is : ' ' The injunction of secrecy was removed from the ratification of the declaration of international naval conference signed by the delegates of the United States to the International Naval Conference held at Lon- don, England, from December 4, 1908 to Februrary 26, 1909. (Ex. A. 61 Cong. First Session.) "] (Vol. 48, Part 6, p. 5259.) V. Freedom of the Seas: In Germany: In this war "Freedom of the Seas" appears to have been first used by Bethmann-HoUweg, in his speech on August 19, 1915, in the Eeichstag (5 Times Hist. 60-65) : "Germany must thus consolidate, strengthen and secure her posi- tion so that other powers can never again think of a policy of isolation. For our and other people's protection we must gain The Freedom of THE Seas., not as England did to rule over them, but that they should serve equally all peoples. We will be and will remain the shield of peace and freedom of big and small nations." In England: In reply, Sir Edward. Grey said, Aug. 25, 1915: "Germany supreme, Germany alone would be free — free to break international treaties, free to crush when it pleased her, free to refuse all mediation * * * and while she may act thus, all her commerce at sea is to remain as free in time of war as all commerce is in time of peace. Freedom of the Sea may be a very reasonable subject for discussion, definition and agreement between nations after this war; but not by it- self alone. * * * * jf there are to be guarantees against future war, let them be equal, comprehensive and effective guarantees that bind Germany as well as other nations, including ourselves." 5 Times Hist. 66-68. Lord Cromer : "In the second place it is well that President Wilson should fully realize the fact that the meaningless and misleading phrase, invented in Berlin, about the freedom of the seas is generally regarded in this country as a mere euphemism for the destruction of that naval suprem- acy on the part of Great Britain, which has in the past been of such infinite benefit not only to Englishmen, but to the rest of the civilized world." (8 Times Hist. 738.) Ill Major-General Sir George Aston: "By Freedom of the Seas we mean free and unfettered access in time of peace to all oceans by all who wish to cross them upon their law- ful occasions. In time of war we mean that this privilege must be fought for by belligerent navies causing as little inconvenience as pos- sible to neutrals ; but that the right of searching neutral merchant ships must be maintained in order to verify their nationality and to prevent their aiding an enemy." The Wet Triangle — Cornhill Magazine, December, 1917, p. 589. In America: "And the paths of the sea must alike in law and in fact be free. The freedom of the seas is the sine qua non of peace, equal- ity and co-operation. No doubt a somewhat radical reconsideration of many of the rules of international practice hitherto sought to be estab- lished may be necessary in order to make the seas indeed free and com- mon in practically all the circumstances for the use of mankind, but the motive for such changes is convincing and compelling." President Wilson to Senate, January 22, 1917. VI. Thirty years ago, William Edward Hall, who has given to us the best treatise on International Law in the English language, wrote: ' ' Looking back over the last couple of centuries we see International Law at the close of each fifty years in a more solid position than that which it occupied at the beginning of the period. Progressively it has taken firmer hold. * * * * g^^ j^ would be idle to pretend that this progress has gone on without check. # * * * ^jj(j ^|- -^ould be idle also to pretend that Europe is not now in great likelihood mov- ing toward a time at which the strength of International Law will be too hardly tried. Probably in the next great war the questions which have accumulated during the last half century and more will all be given their answers at once. Some hates, moreover, will crave for sat- isfaction; much envy and greed will be at work; but above all and at the bottom of all, there will be the hard sense of necessity. Whole nations will be in the field; the commerce of the world may be on the sea to win or lose; national existence w'ill be at stake; men will be tempted to do anything which will shorten hostilities and tend to a deci- sive issue. Conduct in the next great war will certainly be hard; it is very doubtful if it will be scrupulous, whether on the part of belligerents or neutrals ; and most likely the next war will be great. But there can be very little doubt that if the next war is unscrupulously waged, it also will be followed by a reaction towards increased stringency of law. * * * * I therefore look forward with much misgiving to the manner in which the next great war will be waged, but with no misgiving at all as to the character of the rules which will be acknowledged ten years after its termination, by comparison with the rules now considered to exist." Hall: International Law (preface to Third Edition). IV And with the reaction, will come the great opportunity to put into the International La'w of the seas safeguards for the small nations against the weak, for the peaceful nations against the warlike and for the neutral nations against the belligerent. With great respect, I am, my dear doctor. Very truly yours, Horace S. Oakley. Dr. Sidney E. Mezes, President of the College of the City of New York, New York. THE CASE OF THE WILLIAM P. FRYE. (Daily News Almanac 1916) 340—341 NAME: WILLIAM P. FEYE. (H. H. Kiehne, Master.) Type and Tonnage: Square-rigged sailing ship — steel — ^3374 tons. Bound from Seattle, Wash., to Queenstown, Ireland (or to Fal- mouth or Plymouth for orders) Sunk: When— January 28, 1915 Where — South Atlantic How — By — Prinz Eitel Friedrich (Max Tliierichsen, Master.) Crew : Nationality Lost, None. Saved Passengers : ' ' Lost, None. Saved Ownership: Hull — Arthur Sewell & Company, Bath, Maine. Cargo — M. H. Houser. Character of cargo : 5200 long tons wheat. Armed? No. Convoy? No. Resisted? No. Fled? Becalmed. Charter party : To M. H. Houser of Portland, Oregon. Ship's Papers: Taken aboard captor. Eemarks: "First sailing vessel under the American flag"? Cargo consigned to "order or to assigns." On the 27th of January the Frye was overhauled and ordered to throw her cargo overboard, the crew of the Prinz Eitel Fried- rich apparently assisting. The work of unloading was too slow and the next morning the Frye was sunk. Note. — In the following abstract the Declaration of London is abbreviated: D. of L. THE DIPLOMATIC CORRESPONDENCE. (Taken from Daily News Almanac 1916, page 405-412) I. United States' First Nole: March 31, 1915. Mr. Gerard is instructed to present a claim against the Ger- man Government for $228,059.54 w'ith interest from January 28, 1915. A brief summary of the facts is given, accompanied by an itemized statement of claim which is for hull, freight, expenses and damages for loss of use (biit not for cargo). II. Germany's I Note: April 4, 1915. Justifies: 1. The ports (Queenstotwn, et al.) of destination are "strong- ly fortified English coast places, which moreover serve as bases for British naval forces." 2. The cargo (wheat) being food, or foodstuffs, was con- ditional contraband within Art. 24, No. 1, Declaration of London, and Art. 23, No. 1, of the German Prize Ordinance, and was there- fore to be considered as destined for armed forces of the enemy under Art. 33 and 34, D. of L., and Art. 32 and 33 G. P. Ord., and to be treated as contraband pending proof to the contrary. 3. No proof was capable of being adduced at that time as cargo papers read "to order". 4. Sinking was therefore permissible under Art. 49 of D. of L., and Art 113 Ger. P. Ord., since the cruiser could not take prize to German port without danger to its own security or suc- cess of its operations. 5. The cruiser performed its entire duty in the premises by saving crew and ship's papers. 6. However, the whole matter will be reviewed (Art. 51 D. of L., and Sect. 1, No. 2, Ger. Code Prize Procedure) before the Prize Court of Hamburg, when the papers are received ; and these questions will then be adjudicated: (a) Was destruction of ship and cargo necessary? (b) Was the property sunk liable to capture? (c) Indemnity? If so, how much? 7. "However, the legal situation is somewhat different" in the light of the treaty of friendship and commerce of July 11, 1799, and May 1, 1828 (Art. 13), which provides that contraband belonging to citizens of either party cannot be confiscated by the other in any case, but only detained or used in consideration of payment of full value of same. On the ground of this treaty American owners of ship and cargo would receive compensation even if wheat is fotmd by court to be contraband. 8. But prize proceedings are necessary to determine (a) legality of capture; (b) legality of destruction; (c) standing of claimants; (d) amount of indemnity. III. United States' Reply to I German Note: April 28, 1915. While the admission of liability is highly appreciated, it is inappropriate to adjudicate the four questions. Only two are significant, and these can be settled by diplomatic negotiation: Standing of claimant and Amount. Calls attention to the fact that the present claim is for hull and not cargo. Offers to produce any other necessary evidence if ship's papers do not suffice ; suggest transference of negotiation to Washington as the evidence is in the United States. Does not regard the D. of L. (which is referred to in the German note) as in force. iV. Germany's II Note: June 7, 1915. Germany cannot admit that the destruction of the Frye vio- lates treaties or the American rights derived therefrom. These treaties did not have the intention of barring one of the parties from the right of stopping the supply of contraband to his enemy when he recognizes that the supply of such articles is detrimental to his military interests. Article 13 of Treaty recognizes the right to stop and detain contraband, and even to destroy it. The obligation to pay compensation, however, continues, whatever be the manner of stopping the supply. But the right to control contraband is subject to the decision of the prize courts. Germany has prize courts, and the Frye case is within their jurisdiction, as the treaties do not provide method of fixing indemnity. Germany complies with its treaty obliga- tion when its prize courts proceed. There would be no founda- tion for a claim by the American Government unless the German prize courts should refuse indemnity; but in that case the Ger- man Government would not refuse equitable indemnity. In the Frye case prize proceedings are indispensable apart from the American claims "for the reason that other claims of neutral and enemy interested parties are to be considered in the matter. ' ' Repeats the four matters for adjudication, and since adjudication is necessary suggests entry of claims in competent quarter in accordance with German Prize Code. V. United States, reply to Germany's II Note: June 24, 1915. Cannot concur. Only question is the method of ascertaining the amount of the indemnity, as Germany admits liability ; denies that Article 13 justifies sinking. Cites Article 13, and also Article 12 of the treaty of 1785. If cargo was contraband, the Master of the Frye should have been permitted to deliver it out, and the vessel should have been allo'wed to proceed; if not con- traband, the destruction of either cargo or vessel was not justi- fied. The U. S. Government does not agree that an American vessel carrying contraband may be destroyed without liability or accountability beyond the payment of such damages as may be assessed by a German Prize Court. The United States will not submit to the decision of a German Prize Court the disputed interpretation of a treaty the settlement of which requires direct diplomatic discussion. "The real question between the two governments is what reparation must be made for a breach of treaty obligations, and that is not a question which falls within the jurisdiction of a prize Court." If an indemnity for loss actually sustained is promptly paid it will be accepted as a satis- factory reparation; but it does not rest with a German Prize Court to determine what it should be or what would be satisfac- tory. Germany says that even if, the prize court should not grant indemnity, the German government would not hesitate to arrange for equitable indemnity. But the United States must be satis- fied with the indemnity, and it would be better to settle it now than later. The German view is that there would be no foundation for a claim by the American Government unless the prize court should NOT grant indemnity in accordance with the treaty. But the claim of the United States is for indemnity for the violation of a treaty, in distinction from an indemnity under the treaty: this must be settled by diplomacy and not by a prize court. This Government is not concerned with any proceedings affecting "other claims of neutral and enemy interested parties" which have not been presented by this Government, and it does not see the reason for delay. VI. Germany's III Note: July 30, 1915. The United States believes that existing treaties were vio- lated, but Germany insists that the cruiser acted in the legal exer- cise of its right to control trade in contraband, and the only obli- gation of Germany is to make compensation for damages sus- tained by the American citizens concerned. International law permits sinking of neutrals "under almost any conditions" for carrying contraband. These principles were laid down in Arti- cles 49 and 50 of the D. of L., "and were recognized at that time by the duly empowered delegates of all the nations which par- ticipated in the conference, including the American delegates, to be declarative of existing international law"; moreover, the United States proposed to the belligerent nations to ratify the D. of L. The position of Germany's first note is then repeated. Article 12 of the Treaty of 1785 "merely formulates general rules for the freedom of maritime intercourse and leaves the question of contraband untouched." The specific conditions are contained in the following Article, which is substantially Article 13 of the Treaty of 1799. The plain intention of Article 13 is to establish a reasonable compromise between the military interests of the belligerent party and the commercial interest of the neu- tral party. The belligerent may prevent the trade in war sup- plies while interfering as little as possible with commerce of the neutral. The right of sinking is not mentioned: therefore it is neither prohibited nor permitted, so that the stipulations of the treaty in this particular must be supplemented by the general rules of international law. "Delivering out" cannot be consid- ered when the consequent loss of time imperils the cruiser or the success of her other operations. This is illustrated by the Frye case. Article 13 asserts itself by providing compensation, which under the rules of international law is not necessary, "For if by Article 13 the mere exercise of the right of highways makes the belligerent liable for compensation, this must apply a fortiori to the exercise of the right of sinking. ' ' The case was one for a German prize court, and the govern- ment therefore laid the matter before the competent prize court at Hamburg which found (July 10) that the cargo was contraband; that the vessel could not be carried into port; that the sinking was justified; but that under the treaty the German government was liable for indemnity, the amount of which the court could not, for lack of data, fix. 6 It was suggested: 1. That the governments each appoint an expert to fix dam- ages which the German government will promptly pay — ^not as satisfaction for the violation of treaty rights, but as a duty or policy founded upon existing treaty stipulations; OR 2. That the controversy be submitted to the Hague under Article 38 of the Ckjnvention for the Settlement of International Disputes. [That questions of a legal nature should be submitted when diplomacy fails.] VII. United States' Reply to Germany's III Note: August 10, 1915. After objecting to the submission to a German Prize Court, a combination of Germany's two plans is proposed. Any payment must be accepted without prejudice to the contention of the U. S. that the Frye was sunk without legal justification. But the mean- ing and intent of the treaty should go to the Hague. Pending the arbitration, what course will Germany pursue? VIII. Germany 's IV Note : September 19, 1915. Nominates Dr. Kepny as its expert, but objects to third person as umpire as being unnecessary. Suggests that Compromis (Hague 52) be arranged between American Embassy and Berlin Foreign Office. As to future conduct, points out the loss to Germany under the American view would be greater than the loss to America under the German view: but to furnish evidence of its concilia- tory attitude, Germany has issued orders not to destroy Ameri- can merchantmen laden with conditional contraband, even where the conditions of international law are present, but to permit them to continue their voyage unhindered if it is not possible to take them into port. Reserves the right to destroy all vessels carrying absolute contraband. IX. United States' reply to Germany's IV Note: October 12, 1915. Consents that no umpire be appointed unless in case of dis- agreement of experts; urges expedition; without admitting that the Declaration of London is in force or that Article 50 ("before the vessel is destroyed all persons on board must be placed in safety") is satisfied by merely giving them an opportunity to escape in life boats, the U. S. is willing to accept the rule of D. of L. pending arbitration in matters of absolute contraband. The compromis may be drafted in Berlin. U. S. prefers summary procedure under Articles 86 to 90. [From Stowell & Munro : International Cases ; War and Neutrality, 527, the following information is taken.] X. Germany 's V note : December 2. 526. While still unwilling to agree to the appointment of an um- pire, it has prepared and submits a cotnpromis ; rejects summary procedure because the German Government "attaches very par- ticular importance to the interpretation of the Prussian- Ameri- can treaties which have existed over 100 years." On the question of the destruction of merchant vessels the Ger- man Government agrees "that all possible care must be taken for the safety of the crcAv and passengers of a vessel to be sunk. Consequently, the persons on board of a vessel may not be or- dered into her life boats except when the general conditions, that is to say, the weather, the condition of the sea, and the neigh- borhood of the coasts, afford absolute certainty that the boats will reach the nearest port. ' ' By the provisions of the compromis, there were to be five judges, only one of whom on each side could be a national. The question was thus fra.med: "Whether, according to the treaties existing betiveen the par- ties, in particular Article XIII of the Prussian-American treaty of amity and commerce of July 11, 1799, the belligerent contract- ing party is prevented from sinking merchant vessels of the neu- tral contracting party for carrying contraband when such sinking is permissible according to the general principles of Interna- tional Law." The owners of the Frye advise, under date of January 15, 1918, that the German Government has never paid their claim for the loss of their ship. The case was never submitted to the Hague Tribunal. II PRUSSIAN-AMERICAN TREATIES. The Treaty of 1785 (in effect) : ART. II and III. Citizens of both are to enjoy all the rights, privileges and exemptions in navigation and commerce which the most favored nation does or shall enjoy. ART. IV. Each party shall have a right to carry their own produce, etc., in their own or in any other vessel to any part of the domain of the other. The right is reserved, however, to pro- hibit in their respective countries the importation and exporta- tion of all merchandise whatsoever when reasons of state shall require it. ART. IX. The antient and barbarous right to wrecks of the sea shall be entirely abolished. "ART. XII. If one of the contracting parties should be en- gaged in war with any other Power, the free intercourse and commerce of the subjects or citizens remaining neuter with the belligerent Powers shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things be- long to an enemy of the other; and the same freedom shall be extended to persons who shall be on bourd a free vessel although they should be enemies to the other party, unless they be soldiers in actual service of such enemy." ART. XIII. In case either should be at war, with another power, no contraband — such as arms, ammunition and military stores carried, in the vessels or by the citizens of the non-bellig- erent party shall be deemed contraband so as to induce confisca- tion or condemnation. But the vessels and articles may be stopped and detained for such a length of time as the captor may deem necessary paying a reasonable compensation therefor; or the captor may take the military stores, paying the value thereof. If the master will deliver out the contraband he may do so, and the vessel shall not be carried into port or further detained. 9 AET. XV. A vessel of the neutral party sailing without con- voy shall not be approached by a man of war within cannon-shot. ART. XVI. No embargo. ART. XIX. The vessels of war, public and private of both parties, shall carry freely wheresoever they please the vessels and effects taken from their enemies. ART. XXIII. In case of war between the two parties the mer- chants of either country then residing in the other shall be al- lowed to remain nine months. Women, children, scholars of every faculty, cultivators of the earth, * * * * fishermen, etc., not to be molested. •) September 10, 1785. For the United States: , Benjamin Franklin. Thomas Jefferson. John Adams. The Treaty of 1799: ART. XII. "Experience having proved that the principle adopted in the twelfth article of the treaty of 1785 according to which free ships make free goods, has not been sufficiently re- spected during the two last wars and especially in that which still continues, the two contracting parties propose, after the return of a general peace to agree * * * to concert with the groat maritime powers of Europe such arrangements and such pei'ina- nent principles as may serve to consolidate the liberty and safety of the neutral navigation and commerce in future wars." And in the interval each shall observe the principles of the law of nations generally ackno^vledged. ART. XIII. No munitions carried in the vessels of one of the parties to the enemies of the other party shall be deemed con- traband, but they may be stopped and detained, the captor pay- ing damages, or they may be used, the captors paying the value thereof; but if the contraband is delivered out the vessel may proceed. Articles of contraband (arms, etc.) are enumerated. ART. XVI. Embargoes may be imposed, and in this particu- lar the treaty of 1785 is abrogated; but the proprietors of vessels detained shall obtain an equitable indemnity for freight and for loss. 10 ART. XIX. Vessels of war "shall carry freely wheresoever they please vessels and effects taken from their enemies * * * nor shall such prizes he arrested, searched or put under legal process when they come to and enter the ports of the other party, but may freely be carried out again at any time by their captors to the places expressed in their commissions which the com- manding officers of such vessels shall be obliged to show." Brit- ish vessels seem to be excepted. Berlin, July 11, 1799. For the United States : John Quincy Adams. The Treaty of 1828: ART. X. Each nation may have consuls, etc., in the ports of the other, who ' ' shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessel belonging to the nation whose interests are committed to their charge, without the interference of the local authorities unless the conduct of the crews or of the captain should disturb the order or tranquility of the country * # * * ; J ART. XII. The XII Article of the Treaty of 1785 and the XIII to XXIV of the Treaty of 1899 (except the last paragraph of Article XIX relating to treaties with Great Britain) are re- vived as if made part of the context of this treaty, it being under- stood that the Articles thus revived shall always be considered as in no manner affecting the treaties and conventions concluded by either of the parties with other po'wers between 1799 and the commencement of the operation of the present treaty. ART. XIII. A vessel of either party sailing for a port of the other "supposed at the time of its departure to be blockaded" shall not be captured or condemned for having attempted a first time to enter said port unless the vessel could and ought to have learnt during its voyage that the blockade still continued. But vessels need be warned but once. ART. XV. Treaty to continue for 12 years and stand re- newed for term of one year till notification. Washington, May 1, 1828. For the United States : Henry Clay. 11 The Prussian Treaties have been before the court for con- struction in several cases, none of which is pertinent to the pres- ent inquiry. [A Leading Case.] The Steamship Appam, 234 U. S. 124 (1917, Day, J.) The Appam, British, 7800 tons, from west coast of Africa to Liverpool, with cargo and passengers, was captured January 15, 1916, by the German cruiser Moewe on the high seas 1590 miles from Emden, the nearest German port. She was taken to Hampton Roads by a German prize crew. The German Ambassador informed the State Department that under existing treaties it was the intention of the Appam to stay in an American port until further notice, and requested that the (British) crew of the Appam be interned for the period of the war. Libel by British owner. The Court discusses: I. International Law: Wliich does not permit the ports of the United States to be used with a view to the laying up of prizes. The law would permit her entry into an American port for necessary fuel or provisions; because of stress of weather; or for necessary repairs; but would require her to leave as soon as the cause of entrv was removed. See also XII Hague Con- ference, 1907, Art. 2i. II. The Prussian Treaty (Art. 19) : Does not apply unless a vessel of war shall "carry" the prize to the port of the other signatory. The Appam was not "carried" by a vessel of war but came unescorted. Such use of an American port was a breach of the neutral rights of this government. There being jurisdiction in this class of cases, the vessel was restored to her English owners. The case below was reported in 234 Fed. Rep., 389. [A Leading Case.] United States v. Diekelman, 92 U. S. 520 (Waite, C. J., 1875). The matters involved in this controversy were the subject of diplomatic exchange between Prussia and the United States. They were finally referred by Congress to the Court of Claims. The facts are substantially as follows: May 12, 1862, the Presi- dent relaxed the blockade of New Orleans from and after June 1st, subject to such regulations as the Secretary of the Treasury 12 might prescribe. The Secretary granted permission to vessels to clear upon satisfactory evidence that the vessels so licensed would convey no persons, property, or information contraband of war, either to or from said ports. The Essex sailed from Liverpool June 19, arrived August 24, and found General Butler in command of the city, which was under martial law, and was practically in a state of siege by land, but w^as open by sea. General Butler had ascertained that the Confederate states had purchased supplies of clothing in Belgium. The first deliv- ery was at Matamoras awaiting payment. Another consignment was in Belgium, but would not be shipped until the first consign- ment was paid for. In September he learned that the Essex was taking on board large quantities of silver-plate and bullion, by persons, one of whom had declared himself an enemy of the United States, and none of whom would enroll himself as friend. He thereupon gave directions that the specified articles should be detained and their exportation not allowed until fur- ther orders. The master of the vessel and the Prussian consul were informed that the objection to the shipment of the articles complained of was that they were contraband. A part of the goods having been taken out of the vessel, she cleared October 6 and commenced her voyage. The Court holds: I. That under the law of nations the Essex was subject to martial law and to the regulations of this government when she came into port. General Butler acted properly and in good faith. The vessel was bound not to take out contraband, and took the risk of this obligation. She should have protected herself in her contracts with shippers against the contingency of being required to unload after the goods were on board. II. Under the treaty the vessel was in port when the deten- tion occurred. Article 13 of the treaty of 1828 contemplates the establishment of blockades which are to be respected. The right to exclude by blockade necessarily implies the right to admit upon condition; a condition which prohibits the taking out of contraband goods is not unreasonable, and its performance may be enforced by refusing clearance. The facts are not within Article 13 because there was no detention upon a voyage. The vessel was required to "deliver out the goods supposed to be contraband" before she could clear. Her case is not within the treaty. The Court notes that Article 6 of the treaty of 1799, to the effect that examination of goods shall be made before loading, is not revived by the treaty of 1828. WiLDENHus's Case, 120 U. S., 1 (1886, Waite, C. J.), turned on a treaty with Belgium, but the provisions of the Belgian Treaty were the same in substance as Article X of the Prussian 13 Treaty of 1828, which provides that consuls shall have the right to act as judges in differences which may arise between captains and crews of the vessel of the nation whose affairs are entrusted to their care; and that the respective governments should have no right to interfere in matters of this kind, except the conduct of the captain or crew should disturb the peace and tranquility of the country where the vessel may be. * * * "Wildenhus, a' member of the crew of a Belgian steamship, stabbed and killed another member of the crew. The boat lay moored at a dock in Jersey City. The affray occurred below deck and no persons were present except other members of the crew. The tranquility of the port was not disturbed. Held: the local authorities had jurisdiction and the applica- tion for a writ of habeas corpus was denied. The court recog- nizes that in the enforcement of discipline or in troubles not of a serious nature the jurisdiction of the consul is plenary, but where the offense is a crime which, from its gravity awakens the pub- lic interest and is of a character that a nation may not leave un- punished without impugning its rights of territorial sovereignty, the government or the country may take and keep jurisdiction of the criminal. The Paquete Habana. The Lolo. 175 U. S. 677-690. 1899, Gray, J.; (Fuller, C. J., Harlan and MoKenna, dissenting): These vessels were fishing boats, one of 25 and the other of 35 tons burden, sailing under the Spanish flag, running in and out of Havana and regularly engaged in fishing on the coast of Cuba. Their crews consisted of three and six men, respectively. The opinion in chief holds, reviewing the cases and the opinions of writers on international law, that fishing boats and their car- goes, both from views of mutual accommodations between neigh- boring countries and their tenderness to a poor and industrious order of people, are exempt from capture. It is in the historic aspect of the rule that the court refers to Article 23 of the Treaty of 1785 between the United States and Prussia, which was pro- posed by the American commissioners John Adams, Benjamin Franklin and Thomas Jefferson, and is said to have been drawn by Franklin : "all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers and fishermen, unarmed and inhabiting unfortified to'wns, villages or places, and in general all others whose occupations are for the common sub- sistance and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons; nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted, by the armed force of the 14 enemy, into whose power, by the events of war, they may hajtpen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a rea- sonable price." It appears that Admiral Sampson (after the capture of these two vessels, which were taken by the Castine and Dolphin on April 25 and April 26, respectively) , advised the Secretary of the Navy that a large number of fishing schooners were attempting to get into Havana from their fishing grounds; that they are generally manned by excellent seamen belonging to the maritime inscription of Spain; who have all served in the Spanish navy; and who are liable to further service. He therefore recommends that, as they would be most valuable to the Spaniards as artillery- men, either afloat or ashore, they should be retained as prisoners of war. The dissenting opinion proceeds on the theory that while usage is a guide, the sovereign follows it or abandons it at will; that the rule is addressed to the judgment of the sov- ereign and is flexable. "It is not an immutable rule of law, but depends upon political considerations which may continually vary. ' ' They call attention that the Prussian treaties in exempt- ing fishermen "unarmed and inhabiting unfortified towns, vil- lages or places" did not exempt fishing vessels from seizure as prize. "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate juris- diction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evi- dence of what the law really is. Hilton v. Guvot, 159 U. S., 113 163,164,214,215." ' "It is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck and others admit that the custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heff- ter, Calvo and others are to the contrary. Their lucubrations may be persuasive, but are not authoritative. ' ' (Fuller, 0. J., dissenting in the Paquete Habana, 175 U. S., 15 The other cases are not here significant. Ex parte Newman, 14 Wall. 152 (1871 Clifford, J.), involved Article X of the Treaty of 1828, which gives power to consuls to adjudicate questions arising between captains and crews (see Wildenhus's case, ante) ; but the case turns on a question of practice. In Smith V. Union Bank, 5 Pet. 518-526. The License Cases, 5 How. 504-626. The Passenger Cases, 7 How. 283-568. The Amiable labella, 6 Wheat. 1. Brown V. United States, 8 Cranch 110-142. the treaties are not under consideration but are referred to by way of illustration. 16 m. DECLARATION OF LONDON. 1. ANTECEDENT CONVENTIONS: A. The Armed Neutrality: The indignities and loss to which neutral shipping were sub- jected by belligerents, under the right of search, long the sub- ject of discussion by continental jurists, found diplomatic con- sideration in 1780 at the nominal instance of Catharine of Russia. In the war of the Revolution, it was England's policy to in- terfere as much as possible with our commerce, and in so doing she took great liberties with the shipping of the continental pow- ers. In her assertion of the right to seize enemy goods on neutral ships England was no doubt acting within the provisions of the Consolato del Mare (XIV Century) which was the prevailing maritime code of Europe, and whose rules were even more en- lightened than some of the nations (Spain, for example) were content to recognize. The King of Prussia, whose interests were promoted thereby (because Prussia had a large merchant marine and a small navy), had, years before (1752), announced the principle that free ships made free goods, and in 1778 France had proclaimed her ad- herence to the Prussian view: it remained to find some w'ay of forcing England to accept it. Prussian shipping was one of the chief sufferers; whereas Russia, who was on friendly relations with England, was practically unmolested: it was obviously de- sirable that Russia should take the initiative. At the instigation of France (Vergennes, Minister), as it would appear, Spain in 1779 and 1780, in direct violation of the Consolato del Mare, seized two Russian ships laden with wheat, confiscated their cargoes and mistreated their crews. By the good offices of Frederick the Great, Spain was induced to restore the ships and to make compensation for the cargoes; and availing himself of the influence he had thus acquired at the Russian Court, Fred- erick induced Catharine (Count Panin, Minister), to issue (Feb- ruary 28, 1780) her proclamation to France, Spain and England that henceforth her vessels of war would enforce these principles: 1st. Neutral vessels may freely sail from port to port and on the coasts of the nations parties to the war; 17 2nd. The goods belonging to tlie subjects of the said nations at war are, with the exception of contraband articles, free on board neutral vessels; 3rd. With respect to the definition of contraband articles Russia adheres to the provisions of her existing treaty with Eng- land which specified military stores (Art. X), cannon, mortars, muskets (here follow some twenty other items of military sup- plies) "beyond the quality that may be necessary for the use of the ships" (Art. XI) ; and Russia extends the obligations of this treaty to all the neutrals at war; 4th. To determine what constitutes a blockaded port, this denomination is confined to those, the entrance into which is manifestly rendered dangerous in consequence of the dispositions made by the attacking power with ships stationed sufficiently near; 5th. These principles are to serve as a rule in proceedings and jud^nents with respect to the legality of prizes. Russia was not in sympathy with the United States (as her treatment of our representative, Francis Dana, whom she re- fused to receive, only too plainly disclosed) ; accordingly in this proclamation the United States was ignored; but notice was given to the continental powers, the neutrals of which joined in a league called the Armed Neutrality. Although ignored in the proclamation, the United States immediately approved and adopted it. It is worthy of note, however, that Russia did not recognize the application of the proclamation to the United States; for while other countries opened their ports to us, Russia, through- out the whole period of the Revolution closed her ports to our ships. VII Moore: Sec. 1220, p. 558-561. 1 Johnson: Foreign Relations, 101. 2 Fisk: Am. Rev. 169 et seq. Of the Armed Neutrality, Fisk says: "It was the most em- phatic declaration that had ever been made of the principal that the interests of peace are paramount and permanent, while those of war are subordinate and temporary." (p. 185.) B. The Declaration of Paris: The Treaty of Paris in March, 1856, between the nations en- gaged in the Crimean war, was followed April 16 of that year by the Declaration of Paris. It was the next diplomatic inter- 18 vention in the defense of neutrals. The four propositions it as- serts are: 1. Privateering is and remains abolished; 2. 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 enemy's flag; 4. Blockades to be binding must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. VII Moore: Sec. 1221, p. 561. 1 Johnson: For. Rel. 534. This declaration was not recognized by the United States till 1898, when (at the beginning of the Spanish-American war) its provisions were accepted. Soon after the Crimean war began, the United States sub- mitted to the consideration of the maritime nations two proposi- tions equivalent to those of the Declaration numbered 2 and 3; to the last of the propositions (4) it was not possible for the United States to object. But to the first the objection was made that while we had a large merchant marine we had a navy inadequate to protect it. President Pierce (Marcy, Secretary of State), therefore sug- gested to the Powers that the following be added to Section 1: "And that the private property of subjects and citizens of a belligerent on the high seas be exempt from seizure by the public armed vessels of the other belligerents, except it be contraband. ' ' After a vigorous exchange of notes our amendment was re- jected and the United States did not become a party. At the outbreak of the Civil War, Jefferson Davis (April 17, 1861) issued a proclamation inviting all who wished to engage in privateering against the commerce of the United States to apply to him for letters of marque ; two days later President Lin- coln proclaimed such privateers as pirates, and immediately the Federal Government undertook to get the European nations to take the same view. Secretary Seward instructed the repre- sentatives of the Federal Government to negotiate for the ad- mission of the United States to the Declaration of Paris. The signatories were willing provided that stipulation be added that it be prospective and not retroactive and that it "did not intend to undertake any engagements which should have any bearing, direct or indirect, on the internal difficulties prevailing in the United States. ' ' This last stipulation, which was added by Great 19 Britain, was no doubt inspired by the fear that the original sig- natories, if this amendment was not inserted, would be held to the duty of pursuing and punishing as pirates all confederate privateers. On the other hand, the amendment seemed to admit that the Federal Government was without jurisdiction over the seceding states. It was for this reason promptly rejected by our Minister, Mr. Adams. The Declaration of Paris, hoiwever, suffered a temporary ab- rogation by Great Britain and France, who negotiated with the Confederacy a modification of paragraph I, whereby privateer- ing was specifically recognized and authorized. 2 Johnson: Foreign Eel. 7 and 9. But when war with Spain was declared in 1898, the United States proclaimed as rules of war that it would observe com- plete adherence to the four propositions of the Declaration of Paris, and in so doing was recognized by the other powers. Spain, which was not a signatory to the Declaration of Paris, reserved the privilege of privateering but only with armored cruisers of her navy. Spain deserves more credit than the United States in this matter for she was not committed to the Declaration by treaties with other nations as was the United States. Further- more, she was foregoing a privilege that was of more value to her as a means of waging a successful war. 2 Johnson: Foreign Relations, 260. Note: It is interesting to observe the change in English opin- ion on the IV paragraph of the Declaration between 1779 and 1856: In 1779 England captured five Dutch merchantmen. The protest of the Dutch Government was referred to the English court of admiralty which held the capture lawful on the theory that the vessels were blockade runners: "Great Britain by her insular position blocks naturally all the ports of Spain and France and she has a right to avail her- self of this position as a gift of Providence." 2 Fisk: Am. Eev. 180. C. General Order 100 of 1863: This (Lieber's) code, while in many particulars it is broad enough to apply to naval operations, contains but one specific provision governing war at sea (45) ; and therefore it is not within the scope of this inquiry. It is worthy of note that the unratified Conference of Brussels of 1874 approved the American rules. 20 D. Eed Cross Conventions: (a) The Geneva Convention of 1864 to ameliorate the con- dition of the wounded contained no rules in terms applicable to naval warfare. (b) The Geneva Conference of 1868 added ten articles appli- cable to naval warfare. (A. P. Higgins: The Hague Peace Con- ferences, p. 15) ; but this convention was never ratified, although its articles have been generally followed. (c) The Geneva Convention of 1906 does not in terms apply to naval warfare. The provisions of the Geneva Convention of 1864 was, however, extended to naval operations by III H. C. 1899, and 10 H. C. 1907. E. The Second Hague Conference: Eight conventions were drawn up at the Second Hague Con- ference affecting naval operations. They are: VI. Convention relative to the status of enemy mercbant ships at -the outbreak of hostilities. VII. Convention relative to the conversion of merchantships into warsMps. Vin. Convention relative to the laying of automatic sub- marine contact mines. IX. Convention respecting bombardment by naval forces in time of war. X. Eed Cross in naval affairs (noted heretofore). XI. Convention relative to certain restrictions with regard to the exercise of the right of capture in naval war. XII. Convention relative to the creation of an International Prise Court. Xni. Convention concerning the rights and duties of neu- tral powers in naval war. Of these several conventions the XII, for the establishment of an International Prize Court, was easily the most important. Sir Edward Fry, the British First Plenipotentiary at the Second Hague Conference said, October 17, 1907, in the Convention: "I have no intention to pass in review the labors of this Con- ference. I shall confine myself to saying that of all the projects we have adopted, the most remarkable in my opinion is that of the Prize Court, because it is the first time in the history of the world that there has been organized a court truly international. 21 International law of today is not much more than a chaos of opinions which are often contradictory and of decisions based on national laws. We hope to see little by little formed in the future about this court a system of laws truly international, which will owe its existence only to principles of justice and equity, and which consequently will coromand not only the admiration of the world, but the respect and obedience of civilized nations." Higgins : Hague Peace Conventions 520. Briefly the XII Convention, consisting of 57 Articles, pro- poses an International Court to have appellate jurisdiction to decide the validity of the capture of a merchant-ship or its cargo, when neutral or enemy property is involved. If the question of law to be decided is covered by a treaty, the provisions of the treaty control. In the absence of a treaty the court shall apply the rules of international law; and if there be no generally ac- cepted applicable international law the court shall give judg- ment in accordance with the "general principles of justice and equity, ' ' and these provisions apply equally to questions relating to the order and mode of proof. The rest of the act concerns the appointment of the fifteen judges, process, procedure, judgment, costs, and rules. Approval by the United States to the Convention was with- held till February 15, 1911, when ratification was advised. No doubt the Eusso-Japanese War brought to a focus the dissatisfaction of the neutral nations with the then existing prac- tice in prize cases. Nineteen English merchantmen and several German vessels suffered detention or capture, or destruction by Eussian vessels in 1904, and the only recourse was to submit claims to the Eussian Prize Courts, which applied the Eussian Eegulations, upheld the Eussian views of international law and executed their own decrees. An example (under the title The Knight Cbmmander) is given elsewhere in these notes. To the impartial mind the appearance in the case of one party as prose- cuting witness, as judge, as jury and as sheriff does not make for even-handed justice; and criticism to the practice in prize cases is to be found in the decisions of our courts. As a matter of fact, for nearly a century and a half there had been open op- position to the policy of local prize courts. The phrase in the 7th Article that " if no generally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity," was the storm center of the discussion that followed in England and in the United States. As Sir Edward Fry had said, the international law on the subject was chaos, and certain of the governments were of the 22 opinion that the establishment of an International Prize Court could not safely be sanctioned until the "principles of justice and equity" were defined. Accordingly on February 27, 1908, the British Government sent a circular to the various powers invit- ing them to meet in a conference for the purpose of defining gen- erally the recognized principles of international law in naval af- fairs. The conference held pursuant to such invitation formu- lated the Declaration of London. The United States, through its courts and the utterances of its executives, and the treaties of its Congress, has built up a system of laws which it observes in its own conduct with other nations, and which in turn it desires to have observed by others in their relations with it. It may be of value to know how far our own juridical system is in accord with the Declaration of London ; and to that inquiry the following pages are given over. 23 " Undoubtedlj', no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, w'hether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to consti- tute the commercial world." The Scotia, 14 Wall. 170-187 (Strong, J., 1871). ' ' The seat of judicial authority is, indeed, locally here, in the belligerent country according to the known law and practice of nations ; but the law itself has no locality. ' ' The Maria, 1 C. Rob. 296 (Am. Ed). Sir William Scott, 1799. 24 CHAPTER I. [BLOCKADE IN TIME OF WAK.] Article 1. A blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy. 1. Paoipic Blockade: Although Pacific Blockade is not in terms within the scope of this Chapter, Westlake and others believe that it should he governed by the same rules. The United States, in 1838, in the case of the schooner Lone, applied the rules of war blockade to a case of Pacific blockade. VII Moore, 135. The first instance of Pacific blockade was the blockade about 1827 of the coast of Greece ; here, too, was the last Pacific block- ade. In Oppenheim's apt phrase it is for "intervention or re- prisals." The general principles of Pacific blockade were approved by the Institute of International Law in 1887, pro- vided the blockade be limited to the ships of the blockaded power. The Venezuelan Preferential Case, 1 Hague C. R. 55 ; Consult: VII Moore, 135; Albert E. Hogan: Pacific Blockade, (Oxford, 1908) ; Westlake: Collected Papers, 572; 2 Oppenheim, 48. In any international agreement for world peace, the signifi- cance of the Pacific blockade cannot be overestimated. "Where it can be enforced at all it is obviously the most drastic economic measure that can be applied to a rebellious nation. Further- more, it is capable of specialized control as to ports and goods, so that the pressure may be applied where the pressure is most needed. If administered in accordance with an international understanding, objection on the part of individual nations dis- appears. 2. When Oub 'Coxjntey Is Not Our Couktky : A blockade may be of a home port or a home coast "occupied by the enemy." In the Franco-Grerman war France declared the blockade of Rouen and certain other French ports which were at that time occupied by the enemy. Territory so occupied is pro hac vice enemy territory. This is the rule in the United States. 25 United States v. Eice, 4 Wheat. 246 (1819, Story, J.) : September 1, 1814, Castine, Maine, was captured by the Brit- ish, who continued in exclusive possession of it by their military and naval forces till the ratification (in February, 1815) of the treaty of peace. During this period the British exercised all civil and military authority over the place, established a custom house, and admitted goods to be imported according to regula- tions prescribed by the British G-overnment, and among other goods, the goods here in question which remained in Castine till after the evacuation. After the peace, the collector of customs sought to collect American duties upon these goods: but his right to do so was denied by the Supreme Court, which held that by conquest and military occupation, the enemy acquired that firm possession that enabled him to exercise the fullest rights of sovereignty over the place, and that in the meantime the sovereignty of the United States was suspended. "By surrender the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recog- nize and impose." The goods were not, in any correct sense, imported into the United States. They were liable to duties when imported or not at all. Their status was the same as if Castine had previously been a foreign territory, ceded by treaty to the United States. And this rule was approved in MacLeod vs. The United States, 229 U. S., 416-428 (1912, Day, J.). The State Department has followed the Castine case in the Bluefields (1899), the Mazatlan (1873), and the Columbia (1875) cases, though hesitating to recognize it in the Civil War. I Moore 49 ; VI Moore 995. 3. When Domestic Chakacter Is Restored : It was agreed by counsel in The Venice, 2 Wall. 258 (1864, Chase, C. J.), that the foreign character of the territory (New Orleans) continued till a capitulation, the terms of which contemplate a change of national character, or by formal cession or by long lapse of time ; but the court held that under the legislative policy of our gov- ernment, actual military occupation and control replaced rebel, by national, authority, and recognized to some extent, the con- ditions and responsibilities of national citizenship. See the Circassian, 2 Wall. 135, post (Article 5). 4. In the War of the Eebellion, the Federal Government was often embarrassed in the practical application of the rule of Article I. Thus Matamoros, Mexico, and Brownsville, Texas, were on opposite sides of the Eio Grande Eiver, the mouth of which was 26 blockaded by the Federals. The Labuan, a British vessel laden with cotton and sailing from Matamoros, was captured and sent to New York for adjudication. "In all probability this govern- ment will ultimately have to pay heavy damages for this cap- ture." Seward to Stanton, March 13, 1862 (VII Moore 782-785). The situation was complicated by reason of our treaty with Mexico (1848) that the navigation of the river should be free and common to the citizens of both countries. See post : The Peter- hoff. Note : An official commentary accompanies the Declaration of London. It is indispensable; but it could not be included in these pages. Note : Volume I of British and Colonial Prize Cases is cited in these notes as 1 Trehem. 27 [BLOCKADE IN TIME OF WAR.] Article 2. In accordance with the Declaration of Paris of 1856, a block- ade, in order to be binding, must be effective, — ^that is to say, it must be maintained by a force sufficient really to prevent access to the enemy coastline. 1. Papee Blockade : For an elaborate discussion of paper blockade, see VII Moore, 797. Variants of paper blockades are tlie war zone pkoclamatiobts of Germany and England. February 4, 1915, Germany declared: "The waters around Great Britain and Ireland including the whole English channel are hereby declared a war zone on and after February 18, 1915. Every enemy merchant ship found in this war zone will be de- stroyed, even if it is impossible to avert dangers which threaten the crew and the passengers. Also neuteal ships in the war zone are in danger. * * * Shipping northward, around the Shet- land Islands, in the eastern basin of the North Sea, and a strip of at least 30 nautical miles in breadth along the Dutch coast is endangered in the same way. 3 Times Hist., 1. In March, 1915, a retaliatory order was issued by the English Government : No merchant vessel which sailed after March 1, 1915, shall be allowed to proceed to or from any German port ; vessels sail- ing after March 1, 1915, with goods for a German destination, or of a German origin, may be required to discharge such goods at an English port. Idem, p. 18. The Order in Council of March 11, 1915, above referred to, is called in the cases the "Eeprisals" Order: The United States, 2 B. & C. P. C, 390. The Feedbeik VIII, 2 B. & C. P. C, 395 (holding that German government bonds are "goods" or "commodities" and are good prize). Compare Napoleon's decree declaring all the British Islands under blockade and prohibiting all trade in English goods (Nov. 21, 1806), and England's reply ordering a blockade not only of the ports of France and of her allies, but of all countries from which her ships were excluded. 28 2. The case (1898) of the Olinde Rodrigues because of the divergence of view between the trial court and the Supreme Court, illustrates the scope of this article. The continental juris- consults have exhausted ingenuity in devising the conditions necessary to an effective blockade: that the ships of the block- ading squadron should be stationary; should be a specified dis- stance from each other and from the coast; and should be not less than a certain number. "Writers like Heffter, Ortolan and Hautefeuille would require the actual closure of the harbor by vessels anchored near to- gether, at least enough so that any vessel attempting to enter will be subject to a cross fire from two blockades." Benton: Int. Law and Dip. of Spanish- American War 203. But the case next discussed recognizes the increase of effi- ciency that steam, long-range guns and searchlights have wrought. The Olinde Eodbigues, 174 U. S. 510 (1899, Fuller, C. J.). Ee- ported below, 89 F. R. 105; 91 F. E. 274: June 27, 1898, President McKinley declared San Juan, Porto Rico, in a state of blockade. Eleven days before, the Olinde, a French merchant vessel of 1,675 tons, had sailed from Havre on a prescribed trip requiring ber to call, among other places, at San Juan, where she arrived on the morning of July 4th. The Yosemite (cruising off the port) stopped her and entered upon her log an official warning of the blockade. Without entering the port, she proceeded to San Domingo and Haiti, and on her return trip on July 17th was captured by the New Orleans and was taken by a prize crew to Charleston, where, after a hearing, she was ordered restored to claimants because, in the opinion of the court below, there was no effective blockade of the port of San Juan on July 17th. Claimant below had urged that on his return trip he was not intending to call at San Juan, and had notified the ship 's agent at San Juan that Olinde would not touch there. She had no passengers or mail for San Juan. Her cargo was the products of that region. She arrived off San Juan in broad daylight, and according to her testimony, was on her course to St. Thomas. The testimony is conflicting. The United States sought to show that she was trying to get under the protection of the forts at San Juan, but the views of the Government seem not well taken. The court finds, as a matter of fact, that she was not seeking to enter the port of San Juan, but that the captors had probable cause for making the capture. Eestitution was ordered, without damages, and all costs and expenses incident to her custody and 29 preservation and all costs in the cause except the fees of coun- sel, were imposed upon the ship. The case is important for deciding: 1. That if a single modern cruiser, hlookading a port, ren- ders it in fact dangerous for other craft to enter the port, that is sufficient, since thereby the blockade is made practically effective. 2. The old definition of "an effective blockade" seems to be approved, namely: that egress or entrance shall be attended with evident danger (522). 3. That there is a distinction between a military blockade and a commercial blockade (520-522) : a difference in kind and in degree; it is not open to a neutral trader to ask whether or not the blockade, as against the possible superiority of the enemy's fleet, is or is not effective in a military sense, if it be, as in this case, effective in a commercial sense. ■^j The opinion of Judge Beawlby, the trial judge, in the Olinde case contains many interesting citations. He says (91 Fed. E. 279): "What constitutes an 'effective' blockade cannot be defined with absolute and rigorous precision. Some nations have en- deavored to define it by treaty. Prussia and Denmark, in 1818, stipulated that two vessels should be stationed before every blockaded port. An earlier treaty between Holland and the Two Sicilies prescribed that at least six ships of war should be ranged at a distance slightly greater than gunshot from the entrance. A still earlier treaty between France and Denmark provided that the blockaded port should be closed by two vessels at least, or by a battery of guns on land. ' ' The Treaty of 1871 with Italy : " * * * being desirous of removing every uncertainty which may hitherto have arisen re- specting that which, upon principles of fairness and justice ought to constitute a legal blockade, they hereby expressly declare that such places only shall be considered blockaded as shall be actually invested by naval forces capable of preventing the entry of neutrals, and so stationed as to create an evident danger on THEIR PART TO ATTEMPT IT." (Art. XIII.) 30 [BLOOICADB IN TIME OF WAR.] Article 3. The question whether a blockade is effective is a question of fact. 1. In the OZwc^e JRoc^n^Me^, 174 U. S. 511, it is said : "This country has always recognized the essential difference between a military and a commercial blockade. ' ' Also : ' ' The difference is in kind and in degree. ' ' But the cases do not always distin- guish between the two kinds, and if one may rely upon this case to draw the distinction it would seem that an effective commer- cial blockade is one which makes it dangerous for merchant ves- sels to attempt to enter or to leave the blockaded port, and that an effective military blockade is one which makes it dangerous for enemy war vessels to attempt to enter or to leave the block- aded port. 2. Under existing practice in the Prize Courts, little chance exists of a prize to escape condemnation under this rule. The blockading vessels are not required to be stationary ; nor within a designated distance of the port blockaded (The Adula, 176 U. S. 361) ; one blockading warship is quite sufficient (The Olinde Rodrigues) ; and the blockaders are not required to be in sight of the port (The Baigorry, 2 Wall. 474) ; nor does the occupation of the blockaded city by the blockading belligerent in all cases terminate the blockade. (The Circassian, 2 Wall. 135). 31 [BLOCKADE IN TIME OF WAR.] Article 4. A blockade is not regarded as raised if the blockading force is temporarily withdrawn on account of stress of weather. 1. This has always been the law of the United States. The American delegate, Admiral Stockton, was within the tradition of his family ( ?) for, in 1846, Commodore Stockton (Robert Field Stockton, 1795-1866) considered this contingency in the block- ade of the Mexican west coast : "A sufficient American force to maintain it, actually present or temporarily driven from such actual presence by stress of weather, intending to return." (VII Moore, 791). And the same rule was announced in 1898 by General Order 492 (June 20) of the Navy Department: "A blockade to be effective must be maintained by a force sufficient to render in- gress or egress from the port dangerous." The English rule (declared as early as 1799: The Columbia, 1 C. Bob. 154) , holds with us, but the Continental authorities are not uniform. VII Moore, 843. 2. Temporary break, for other reasons: In the Civil War, when the Niagara, blockading Charleston, S. C, was replaced by the Harriet Lane after an interval of a day or two, the blockade was held by Mr. Seward not so far im- paired as to require new notice. But this opinion was without discussion of the effect that the hiatus in actual blockade might have on vessels that had entered or cleared during the interval. VII Moore, 843. The English view of this incident is thus stated : ' ' Thus when in 1861 during the American Civil War the Fed- eral Cruiser Niagara, which blockaded Charleston, was sent away and her place taken after five days by the Minnesota, the blockade ceased to be effective, although the Federal Government refused to recognize this. ' ' 2 Oppenheim, 465. The Nancy, 1 Acton 57 (1809, High Court of Appeals) : The charter-party provided that the ship should sail for Martinique ; but if it was blockaded she should go to St. Thomas. Given to 32 understand that there was no blockade, she went to the port of destination in Martinique, stayed twelve days without seeing a warship and set sail thence for New York. Captured, she was ordered restored : ' ' The periodic appearance of a vessel of war in the offing could not be supposed a continuation of a blockade, which the correspondence mentioned had described to have been previously maintained by a number of vessels and with such unparalleled vigor that no vessel whatever had been able to en- ter the island during its continuance. ' ' 33 [BLOCKADE IN TIME OF WAR.] Article 5. A blockade must be applied impartially to the ships of ail nations. 1. This is the reciprocal of Convention XIII Hague, 1907, Art. 9. "A neutral power must apply impartially to the two bellig- erents the conditions, restrictions or prohibitions issued by it in regard to the admission into its ports, roadsteads or territorial waters of belligerent warships or of their prizes." 2. It is said, in passing, in The Bermuda, 3 Wall. 514-551 : "Neutrals, in their own country, may sell belligerents what- ever belligerents choose to buy. The principal exceptions to this rule are that neutrals must not sell to one belligerent what they refuse to sell to another * * * " (Chase, C. J.) 3. Are the ships of a belligerent likewise excluded? Is the blockade raised when the blockaded port is occupied? Lord Lyons to Secretary Seward (July 11, 1864) : "Belligerent right of blockade cannot be lawfully enforced against neutrals by a belligerent who is in actual possession of the port alleged to be blockaded," protesting (July 11, 1864) against the blockade of Brownsville at that time in the posses- sion of the Federal forces. Secretary Seward's reply is not wholly responsive, but it refuses to consider the blockade as raised (July 13, 1864). In the Circassian, 2 Wall., 135, the Court held that the occu- pation by the Federal forces of the city of New Orleans and of the Mississippi Eiver for 70 miles above New Orleans, did not raise the blockade. The argument on page 151 indicates that although the military occupation occurred May 1 and May 2, yet the blockade was not broken till proclamation, which was made May 12 to go into effect June 1, 1862. Lord Lyon's pro- test may have been justified by the English rule that the block- ader can not relax the rigor of the blockade for his own benefit. The question came up in the Franciska, 10 Moore P. C, 37, where certain licenses had been issued to carry on a limited trade with specified ports (but not all) in the Gulf of Eiga. * * * "A 34 belligerent, if he inflicts upon neutrals the inconvenience of ex- clusion from commerce with such place must submit to the same inconvenience himself ; and that if he is at liberty to select par- ticular points in which it suits his purpose that the blockade should be violated with impunity, each neutral in order to be placed on equal terms with the belligerent, should be at liberty to make such selection for himself." 35 [BLOCKADE IN TIME OF WAR.] Article 6. The Commander of a blockading force may give permission to a warship to enter, and subsequently to leave, a blockaded port. 1. Neutral men-of-war were admitted into blockaded ports during the Civil War, and also during the Spanish-American War. Nevertheless, Admiral Dewey, blockading the harbor of Manila, denied access to the port to German warships and on one occasion Secretary Seward refused the request of Lord Lyons that a British man-of-war be admitted to Charleston or Wilmington (March 26, 1864). 36 [BLOCKADE IN TIME OF WAR.] Article 7. In circumstances of distress, acknowledged by an officer of the blockading force, a neutral vessel may enter a place under block- ade and subsequently leave it, provided that she has neither dis- charged nor shipped any cargo there. 1. A formal recognition of a rule that occasionally is ex- pressly incorporated in the declaration of blockade, as for ex- ample, in the peaceful blockade declared by England and Ger- many against Venezuela. Stowell and Munro : War : 10, Note 2. It was no doubt inserted in this case to placate the neutral powers. 2. Though not gebmane to the subject of this Article, the following notes are inserted for convenience at this point : Chapter II of XI H. C, 1907, treats of the exemption from capture of certain vessels in naval war as fishing boats (see Paqueta Habana, supra). But a deep-sea fishing cutter of 110 metric tons, manned by a crew of fifteen hands, is not immune as a coast fishing vessel. The Beelin ; 1 Trehern, 29, citing and following. The Michael ; 2 Russian and Japanese P. C, 80. The Alexandee; 2 idem, 86. and a small coasting vessel (not a fishing boat) is not exempt. The Maeia; 1 Treh., 259 ; neither are lighters and tugs. Deutsches Koehlen Depot Floating Craft. 2 B. & C. P. C, 439. 3. Article 4 is as follows: "Vessels charged with religious, scientific or philanthropic missions are likewise exempt from capture. ' ' When Tsing-tau was about to be invested by the English and Japanese squadrons, the German governor ordered the German steamer Paklat to transport the women and children to Tientsin. She was captured and taken to Hong Kong where she was ad- judged a good prize, on the ground (Kees-Davies, C. J.), that the Hague Convention did not cover the case. 1 Trehern, British P. C. 517. Stowell V. Munro : War 110. It will be recalled that in the case of the Manouha (Hague Court Reports, Scott, p. 341), it was stated by France that the 37 Ottoman passengers on the Mcmoiiba were members of the Red Crescent (equivalent to our Bed Cross) Mission, while Italy in- sisted that they were carrying arms and money for the use of the Turkish forces in Tripoli. The Eersog, having on board an ambulance corps for the aid of the Boers, was released although the members of the corps were armed with revolvers, on the ground that this did not dis- qualify them from being non-combatants. Pari. Deb., Vol. 78, p. 907. February 8, 1900. Article I of X, Hague Con., 1907, provides : "Military hospital ships, that is to say, ships constructed or assigned by states specially and solely with a view to assisting the wounded, sick and shipwrecked, the names of which have been communicated to the belligerent powers at the commence- ment or during the course of hostilities, and in any case before they are employed, shall be respected and cannot be captured while hostilities last * * *." The Ophelia, 1 Trehern 210, a German military hospital ship, was captured Oct. 18, 1914, off the Dutch coast. She had been officially designated as a military hospital ship by the German government which undertook to use the ship for no other mili- tary purpose. But it appeared that she was not suitably equipped as a hospital ship ; that she had never been used as such ; that she had more than twice as many signal lights of various colors as battleships carry; that when about to be boarded some of her books and documents were thrown overboard and that sub- sequently some were burned. Held: a good prize. Affirmed in Privy Council; 2 B. & C. P. C, 150 (Sir Arthur Channell) : an elaborate review of the facts. See also The Hanametal, post Art. 45. 38 [BLOCKADE IN TIME OF WAR.] Article 8. A blockade, in order to be binding, must be declared in ac- cordance with Article 9, and notified in accordance with Articles 11 and 16. [BLOCKADE IN TIME OF WAR.] Article 9. A declaration of blockade is made either by the blockading Power or by the naval authorities acting in its name. It specifies — (1) The date when the blockade begins; (2) The geographical limits of the coastline under blockade; (3) The period within which neutral vessels may come out. [BLOCKADE IN TIME OF WAR.] Article 10. If the operations of the blockading Power, or of the naval authorities acting in its name, do not tally with the particulars, which, in accordance with Article 9 (1) and (2), must be inserted in the declaration of blockade, the declaration is void, and a new declara- tion is necessary in order to make the blockade operative. 1. In the dissenting opinion in the Pedro, lib U. S. 354, it was doubted whether the blockade was effective because the block- ading fleet were on their way to the port of Havana. But this question was not necessary to a decision of the case. 2. The declaration is strictly construed. The Peteehoff, 5 Wal. 39-52. 3. The time permitted the vessels of neutrals to leave blockaded ports has varied from time to time with the exigencies of the case. Often in the same proclamation the time within which and the conditions upon which innocent belligerent mer- chantmen are immune from capture (if they be not actually en- gaged in the transportation of soldiers or of munitions), are also stated. The two declarations must not be confounded: Each proceeds upon its own precedents and reasoning, but for con- venience illustrations of both rules are given under this Article. 39 Neuteal : The Prize Cases, 2 Black, 635 (1862, Grier, J.), presents an unimportant variant : The Hiawatha, a British barque, was cap- tured May 20, 1861, in Hampton Roads. April 19 the President proclaimed a blockade, allowing, how- ever fifteen days for foreign ships to depart AFTER the estab- lishment of the blockade. The blockade was effectual April 30 and the barque, which had refused to come out of the James River at Richmond in ballast, hurried to take cargo, which was completed May 15. But Avhen she was ready for sea she could not get a steam tug and was not taken in tow till the 17th. The first tug lacked the power and she came to anchor ; her voy- age down river did not begin effectively till May 18. While the proclamation of effectiveness by Commodore Prendergast limits the warning to those who should "approach the blockade," his proclamation had been communicated to Lord Lyons. The Hia- watha was in a blockaded port and knew of the blockade, and when it became effective. "According to the construction con- tended for, a vessel seeking to evade the blockade might ap- proach and retreat any number of times and when caught her captors could do nothing but warn her and indorse the warning upon her registry." Condemnation decreed. Belligerent : The Buena Ventura, 175 U. S. 384 (1899, Peckham, J.). The Chief Justice and Gray and McKenna, J. J., dissenting. Merchant vessels of the enemy carrying on innocent com- mercial enterprises at the time, or just prior to the time when hostilities break out, are accorded liberal treatment. April 25, 1898, Congress declared war against Spain and stated that the war had existed since April 21. The President, on April 26, issued his proclamation of principles to be followed in the prosecution of the war. It was dated the day it was is- sued ; it provided that Spanish merchant vessels in any ports or places within the United States shall be allowed until May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places, and that such Spanish merchant vessels if met at sea by any United States ship should be permitted to con- tinue their voyage if upon examination of their papers it shall appear that their cargoes were taken on board before the ex- piration of the above term, but excludes from the operation ves- sels having on board any officer in the military or naval service of the enemy, or coal except such as may be necessary for their 40 voyage, or any other article prohibited or contraband of war, or any dispatch, of or to the Spanish government. The Bxiena Ventura arrived at Ship Island, Mississippi, March 31 ; was laden with innocent cargo by April 19, on which day she sailed to Norfolk for bunker coal; early on April 22 off the Florida reefs, she was captured. It will be noticed that she was not within the letter of the proclamation because prior to the 21st day of April she had sailed, and therefore on that date she was not ' ' in any ports or places within the United States." But the court held that the intent of the declaration was to fix a time in the future, prior to the expiration of which vessels of the character named might sail from our ports and be exempt from capture. Note: The dates given in the opinion would make the cap- ture occur before the proclamation. See VII Moore, 170. But the Panama, a Spanish mail steamer, bound for an enemy port, carrying an armament (no doubt placed on her for defense against "enemies, pirates and assailing thieves," but susceptible of use for hostile purposes), and herself liable, upon her arrival at that port to be appropriated by the enemy to such purposes, was not within the President's proclamation. The Panama, 176 U. S. 535. See also: VI Hague, 1907, Art. 3. The Perkeo: Stowell and Munro, War, 43. The Pedro (175 U. S., 354), built in England but duly reg- istered as a Spanish ship, arrived at Havana April 17, 1898, on a trip from Europe that contemplated (under her charter-party), a call at a port of the United States before her return. April 22, on her way from Havana to Santiago she was captured ; she was held a good prize because she was not in a port of the United States when war was declared (under the 4th rule) ; and the ma- jority of the court thought she was not under the 5th rule be- cause she must have known of the imminency of hostilities and was not carrying a cargo to the United States. VII Moore, 453. The period of immunity is usually from five days to six weeks. Germany did not agree to Article 3 of the VI H. C., 1907, and for that reason the English High Court of Justice in Prize (Sir Samuel Evans, President), declined to extend the exemp- tions of that Article to the German sailing vessel Moewe which was captured in the Forth near Granton the day after war was declared by England. 41 The case is interesting for the discussion of the right of an alien enemy to be heard in his own behalf in an English court: the right pro hac vice was upheld. The Moewe: Trehern's Prize Cases, p. 63-74; Stowell &, Munro : War : 105. The Barenfels, 2 B. & C. P. C, 36, allowing an appeal from S. C. 1 Treh., 122, and holding the case in abeyance till it can be ascertained if Germany intends to respect VI Hague, 1907, Arts. 1 and 2. The AcHAiA, 2 B. & C. P. C, 45, affirming S. C. 1 Treh., 242, where the British Prize Court, sitting in Alexandria, recognizes VI H. C. 1907. The Achaia refused a safe-conduct pass, re- mained in Alexandia {not a neutral port) beyond the time limit (Aug. 14) and was held a good prize. For form of safe conduct see this case (244). 3. The third paragraph of this Article is a recognition of Article 1, VI H. C, 1907 : it assumes, based upon well established custom, that days of grace will be given in every instance. But a distinction exists between the status of an enemy ship in port and the status of the same ship on the high seas. A port in the sense of the Article is not a fiscal port but a commercial port "where ships are in the habit of coming for the purpose of load- ing or unloading, embarking or disembarking." The Moewe, supra, and note the dissenting opinion in the Buena Ventura, supra. See, also, The Belgia, 1 Treh., 303. Affirmed, 2 B. & C. P. C, 32. 4. The Germania : 1 Treh., 573 ; affirmed 2 B. & C. P. C, 365 : a racing yacht is not within VI H. C, 1907. 42 [BLOCKADE IN TIME OF WAR.] Article 11. A declaration of blockade is nottfled — (1) To neutral Powers, by the blockading Power by means of a communication addressed to the Government direct, or to their repre- sentatives accredited to it; (2) To the local authorities, by the officer commanding the block- ading force. The local authorities will, in turn, inform the foreign consular officers at the port or on the coastline under blockade as soon as possible. [BLOCKADE IN TIME OP WAR.] Article 12. The rules as to declaration and notification of blockade ap- ply to cases where the limits of a blockade are extended, or where a blockade is re-established after having been raised. [BLOCKADE IN TIME OF WAR.] Artide 13. The voluntary raising of a blockade, as also any restric- tions in the limits of a blockade, must be notified in the manner pre- scribed by Article 11. [BLOCKADE IN TIME OF WAR.] Article 14. The liability of a neutral vessel to capture for breach of blockade is contingent on her knowledge, actual or presumptive, of the blockade. [BLOCKADE IN TIME OF WAR.] Article 15. Failing proof to the contrary, knowledge of the blockade is presumed if the vessel left a neutral port subsequently to the notifi- cation of the blockade to the Power to which such port belongs, pro- vided that such notification was made in sufficient time. [BLOCKADE IN TIME OF WAR.] Article 16. If a vessel approaching a blockaded port has no knowl- edge, actual or presumptive, of the blockade, the notification must be made to the vessel itself by an officer of one of the ships of the block- ading force. This notification should be entered in the vessel's log- book, and must state the day and hour, and the geographical position of the vessel at the time. 43 If, through the negligence of the officer commanding the blockad- ing force, no declaration of blockade has been notified to the local authorities, or, if in the declaration, as notified, no period has been mentioned within which neutral vessels may come out, a neutral ves- sel coming out of the blockaded port must be allowed to pass free. The Adtjla, 176 U. S. 361. (1900, Brown, J. Dissenting: SMras, Grray, White, Peckham, J. J.). [Memo : An unsatisfactory opinion. Much of it is taken up with a discussion of the evidence and the legal inferences there- from. The evidence was in preparatorio, but a motion had been made to open the case for complete proofs and in the opinion some of the moving affidavits are referred to as if they had been received in evidence.] Libel in Prize. April 20, 1898, a joint resolution of the House and Senate declared that the people of Cuba are, and by right ought to be, free and independent; that the government of Spain should re- linquish its authority, etc. ; that the President of the United States use the land and naval forces of the United States to carry these resolutions into effect ; that the United States disclaims any disposition to exercise sovereignty over Cuba, except for the pacification thereof. By Act of April 25, 1898, Congress declared a state of war to exist as of April 21, 1898. April 22 the President declared a blockade of the east coast of Cuba near Havana, and of Cienfuegos, on the south coast. On June 27 the President proclaimed a blockade extending from Cape Frances on the west to Cape Cruz on the east. Neither of these proclamations included the harbor of Santiago or Gruan- tanamo, which lie to the east of Cape Cruz on the south coast. Early in June, however. Admiral Sampson had established a blockade of Santiago (where the fleet of Cervera then was), and these two blockades were actual and effective until after the capture of the Adula. But the dissenting opinion, with consid- erable force, questions the right of Admiral Sampson to estab- lish the blockades of Santiago and Guantanamo, partly because such blockades violated the spirit of the President's proclama- tions and official utterances, and partly because it was doubted if Admiral Sampson, in view of all of the facts in the case, had the right to exercise this act of high sovereignty. 44 The Adula belonged to a British corporation, The Atlas Steamship Company, was registered in the name of the manag- ing director of the corporation; flew the British flag, and had been engaged in coastwise trade between Kingston and other ports in Jamaica and Cuba. She had made three trips (two with the consent of the American Consul) to carry refugees from Cuba to Jamaica. On the last trip, made without the permission of the American Consul, she entered the harbor unmolested, came out, was overhauled, warned, and permitted to return to Kingston. June 28 she was loading at Kingston when she was chartered by Solis, a Spanish subject born near Havana, and living at Manzanillo. He was running refugees out of Cuba at sixty dol- lars a head, and held a passport from the Spanish Consul to enter cities and take away refugees. He was a man of intelli- gence and substance, and chartered the Adula for £100 a day, entering himself upon the ship 's articles as supercargo. If the trip had been successful he would have cleared |19,000. Under the charter-party the vessel was to proceed to the ports of Man- zanillo, Santiago and Guantanamo, or any one, or any two, or all three of them, and to return to Kingston. The right to renew the charter-party on twenty-four hours' notice was reserved. The cargo she had taken was unloaded and she sailed light, with- out contraband aboard. At Guantanamo she was halted by the Vixen, but allowed to proceed. American warships were ob- viously investing the port. The permission of the Vixen was as follows : Captain of the Vixen: Didn't you sight the warships down at Santiago? Captain of the Adula: Yes. Captain of the Vixen: Didn't you hear that Guantanamo was blockaded? Captain of the Adula: Yes. Captain of the Vixen: You can proceed on. The Adula apparently took this as permission to enter the port, although the majority opinion charges her, by reason of this conversation, with knowledge that a state of blockade ex- isted (which, of course, it did), and insists that it thereby de- stroyed any distinction between a proclaimed blockade and an actual blockade. Guantanamo was then in the possession of the Spaniards, but marines had been landed on both sides of the Guantanamo Bay. The Adula entered the harbor of Guantanamo and cast anchor. She was then seized by the Marhlehead and sent to Havana, where she M'as condemned as a prize. The bulk of the 45 discussion is to determine whether the agent, the captain or the supercargo knew of the de facto blockade of Gnantanamo, and actually put to sea with the idea of running the blockade. The majority opinion proceeds on the theory that this knowledge was in the possession of one or of all of these persons, and that therefore from the moment she left Kingston she was guilty of a violation of the blockade and subject to captiire ; that she could not even approach the blockaded port to make inquiries; that because she was chartered to an enemy she became pro hac vice an enemy vessel ; and that notice to her charterer of the existence of a blockade is notice to the vessel. The minority opinion proceeds upon the theory that the block- ade of Guantanamo was unlawful because in violation of a declared intention of the President limiting the blockade to other ports of the coast (the expression of one being the exclusion of the other) ; but that even if there was a de facto blockade, the testi- mony does not disclose that the Adula knew it and therefore she was entitled to warning. The case of the Circassian, 2 "Wall. 135, 150, is cited to the effect that in cases of simple blockade (estab- lished by the act of a naval officer), the captors are bound to prove its existence at the time of capture ; but in cases of a pub- lic blockade, the claimants are held to proof of discontinuance. Note : In the discussion of the case (page 371) is a reference to the declaration of Paris of 1856, and a citation from Pistoye and Duverdy to the effect that a vessel must be notified to de- part before she can be captured, and that the contrary rule was the result of the doctrine of the British Orders in Council dur- ing the Napoleonic wars. But the court holds, notwithstanding this view, that the departure for a blockaded port with intent to violate the blockade, renders the vessel liable to seizure. "We cannot change our rulings to conform to the opinions of foreign writers as to what they suppose to be the existing law upon the subject." (371). Ouaeee: "Was Article 18 of Jay's treaty of 1794 abrogated by the war of 1812? The case below is reported in 89 Federal, 351. Note: The rules established by these articles are substan- tially the rules established by the Courts of the United States. VII Moore, 820. 46 [BLOCKADE IN TIME OF WAR.] Article 17. Neutral vessels may not be captured for breach of blockade except within the area of operations of the warships detailed to ren- der the blockade effective. This modifies the rule, previously obtaining, that the guilt followed the vessel until she had reached her home port or had finished her voyage; the rule of Art. 17 is a distinct gain for neutral commerce. The difficulty of defining the ' ' area of operations ' ' is obvious : it must depend upon the circumstances of the particular case. The Magicienne (not reported in the Federal reports) : An English brig, sailing for Matamoras in 1863 was captured off the Cape Verde Islands some three thousand miles ( !) from the nearest American port apparently by Bear Admiral Bailey, commanding the East Gulf blockading squadron. The vessel was released but the reason is unknown: perhaps because the capture was outside the rayon d' action? A. Maxjbice Low. 10 Times His. 916. At the conference 1,000 miles was suggested by the American conferees. In the case of the Baigorry, 2 "Wall., 474, it would seem that the vessel had left the blockaded port 600 miles behind: she sailed (May 26) from Port Calcasieu and was captured (June 9) one hundred miles from Havana, to which she was sailing. See Art. 20 post. In the case of the Springbok the capture was made 150 miles east of Nassau, and consequently at least 300 miles from the nearest (Florida) coast of the United States. The Bermvda (3 Wall., 514) was captured en route from Bermuda to Nassau, within sight of English land, 160 miles from the Florida coast and 430 miles from Charleston. 47 [BLOCKADE IN TIME OE WAR.] Article 18. The blockading forces must not bar access to neutral ports or coasts. The Peterhopf, 5 Wall., 28 (1866, Chase, C. J.) : The Peterhoff, a British steamer sailing from London to Matamoras, was captured south of Cuba. The cargo was partly neutral and partly contraband. The court found that the procla- mation of a blockade of "the whole coast from Chesapeake Bay to the Rio Grande" did not include the mouth of the Rio Grande, and that notwithstanding that the neutral cargo might have as its ultimate destination the City of Brownsville, whither it would be carried from Matamoras by inland transportation, the neutral cargo was immune, although such trade might be very incon- venient to the belligerent and might seriously impair the value of the blockade. Even the contraband, if really intended for sale in Mata- moras, would be free of liability, for contraband may be trans- ported by neutrals to a neutral port, if intended to make part of its general stock in trade. But here the contraband goods were found by the court to be destined for the use of the rebel forces in Brownsville. The rule of ulterior destination is this : Neutral GOODS are liable to capture only when a violation of a blockade is intended; contraband is liable to capture when destined to a hostile country or to the actual military or naval use of the enemy whether blockaded or not. If the same owner has on board both neutral goods and contraband goods, the neutral are "infected" by the contraband and share the same fate. Hull: Formerly the conveyance of contraband subjected the ship to forfeiture, but in more modern times that consequence, in ordinary cases, attaches only to the freight of the contraband merchandise. Costs: The refusal of the captain to send his papers on board the cruiser and the destruction of a mysterious parcel was not consistent with that frankness and good faith to which neu- trals engage in a commerce open to grave suspicion are most strongly bound, and costs and expenses went against the ship as a condition of her restitution. 48 [BLOCKADE IN TIME OF WAR.] Article 19. Whatever may be the ulterior destination of a vessel or of her cargo, she cannot be captured for breach of blockade, if, at the mo- ment, she is on her way to a non-blockaded port. [BLOCKADE IN TIME OF WAR.] Article 20. A vessel which has broken blockade outward, or which has attempted to break blockade inwards, is liable to capture so long as she is pursued by a ship of the blockading force. If the pursuit is abandoned, or if the blockade is raised, her capture can no longer be effected. [BLOCKADE IN TIME OF WAR.] Article 21. A vessel found guilty of breach of blockade is liable to con- demnation. The cargo is also condemned, unless it is proved that at the time of the shipment of the goods the shipper neither knew noi^ could have known of the intention to break the blockade. A blockade runner is purged of her guilt by completing her voyage. "The penalty never travels on with the vessel further than to the end of the return voyage, and if she is taken in any part of that voyage she is taken in delicto." Chancellor Kent; cited with approval in the Wren, 6 Wall., 582-588 (1867, Nel- son, J.). 49 CHAPTER II. CONTEABAND OP WAE. This war has witnessed the collapse of the limitations sought to be imposed by this chapter. And it is obvious that under the stress of any great war, classification of goods cannot endure. When all the economic as well as the military forces of a coun- try are employed, there is nothing worth the cost of transporta- tion that is not contraband (Article 33) ; and there is no im- portant commercial port in any land that cannot be said to be a "fortified place" or "other place serving as a ba^e for the armed forces of the enemy" (Art. 34). Secretary Madison to Armstrong (1806) : The question of contraband is a source and a pretext for much vexation to the commerce of neutrals, whilst it is of little real importance to the belligerent parties." VII Moore, 656. Mr. Madison (Letters and Other Writings, vol. 2, p. 264) calls attention to actual treaties in which the right to deal in con- traband, notwithstanding the existence of war, is reserved: Netherlands and Spain; Netherlands and Portugal; Spain and the Hanse Towns. Thomas Jefferson to Livingston (VIII Ford Ed., 90) : "We believe that the practice of seizing what is called con- traband of war, is an abusive practice, not founded in natural right. War between two nations cannot diminish the rights of the rest of the world remaining at peace. The doctrine that the rights of nations remaining quietly under the exercise of moral and social duties are to give way to the convenience of those who prefer plundering and murdering one another, is a mon- strous doctrine ; and ought to yield to the more rational law that 'the wrongs which two nations endeavor to inflict on each other must not infringe on the rights or conveniences of those remain- ing at peace'. * * * "What is contraband by the law of nature? Either every- thing which may aid and comfort the enemy or nothing * * * "Either all intercourse must cease between neutrals and belligerents or all must be permitted." He suggests that the doctrine "Free ships, free goods" arose from accident and the particular convenience of Venice and Genoa. "Thus it had never been supposed lawful in the terri- tory of a friend to seize the goods of an enemy. On an element 50 which nature has not subjected to the jurisdiction of any par- ticular nation but has made common to all for the purpose to which it is fitted, it would seem that the particular portion of it which happens to be occupied by the vessel of any nation in the course of its voyage is, for the moment, the exclusive property of that nation, and, with the vessel, is exempt from intrusion of any other, and from its jurisdiction, as much as if it were lying in the harbor of its sovereign." At the Hague in 1907, Great Britain proposed to do away with the capture of contraband altogether, relying upon her power to maintain blockade. 51 [CONTRABAND OF WAR.] Article 22. The following articles may, without notice,* be treated as contraband of war, under the name of absolute contraband: — (1) Arms of all kinds, including arms for sporting purposes, and their distinctive component parts. (2) Projectiles, charges, and cartridges of all kinds, and their dis- tinctive component parts. (3) Powder ajid explosives specially prepared for use in war. (4) Gun-mountings, limber boxes, limbers, military wagons, field forges, and their distinctive component parts. (5) Clothing and equipment of a distinctively military character. (6) All kinds of harness of a distinctively military character. (7) Saddle, draught, and pack animals suitable for use in war. (8) Articles of camp equipment, and their distinctive component parts. (9) Armour plates. (10) Warships, including boats, and their distinctive component parts of such a nature that they can only be used on a vessel of war. (11) Implements and apparatus designed exclusively for the manufacture of munitions of war, for the manufacture or repair of arms, or war materials for use on land or sea. *In view of the difficulty of finding an exact equivalent in Englisli for the expres- sion "de plein druit," it has been decided to translate it by the words "without notice," which represent the meaning attached to it by the draftsman as appears from the General Report (see p. 44). [CONTRABAND OF WAR.] Article 23. Articles exclusively used for war may be added to the list of absolute contraband by a declaration, which must be notified. Such notification must be addressed to the Governments of other Powers, or to their representatives accredited to the Power making the declaration. A notification made after the outbreak of hostilities is addressed only to neutral Powers. [CONTRABAND OF WAR.] Article 24. The following articles, susceptible of use in war as well as for purposes of peace, may, without notice,t be treated as contraband of war, under the name of conditional contraband: — (1) Foodstuffs. (2) Forage and grain, suitable for feeding animals. tSee note on Article 22. 52 (3) Clothing, fabrics for clothing, and boots and shoes, suitable for use in war. (4) Gold and silver in coin or bullion; paper money. (5) Vehicles of all kinds available for use in war, and their com- ponent parts. (6) Vessels, craft, and boats of all kinds; floating docks, parts of docks and their component parts. (7) Railway material, both fixed and rolling-stock, and material for telegraphs, wireless telegraphs, and telephones. (8) Balloons and flying madiines and their distinctive component parts, together with accessories and articles recognizable as intended for use in connection with balloons and flying machines. (9) Fuel; lubricants, (10) Powder and explosives not specially prepared for use in war. (11) Barbed wire and implements for fixing and cutting the same. (12) Horseshoes and shoeing materials. (13) Harness and saddlery. (14) Field Glasses, telescopes, chronometers, and all kinds of nau- tical instruments. [CONTRABAND OF WAR.] Article 25. Articles susceptible of use in war as well as for purposes of peace, other than those enumerated in Articles 22 and 24, may be added to the list of conditional contraband by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23. [CONTRABAND OF WAR.] Article 26. If a Power waives, so far as it is concerned, the right to treat as contraband of war an article comprised in any of the classes enumerated in Articles 22 and 24, such intention shall be announced by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23. [CONTRABAND OF WAR.] Article 27. Articles which are not susceptible to use in war may not be declared contraband of war. The Maeqxjis DB SoMEETJELES, ( Stowell & Munro : War: 180): In the war of 1812, the Somerueles was captured on her way to Salem, Mass., from Italy. On board was a case containing paint- ings and prints: Condemnation refused and the case released. "The arts and sciences are admitted amongst all civilized nations as forming an exception to the severe rights of warfare andasentitledtofavor and protection (181) * * * The public 53 standard of morals will therefore always rise with the advance- ment of the polite arts * * *. In the United States such im- provements are not improbable" (182) [Thanks!] The Amelia, Stowell & Munro : War : 183 : Apparently two cases of books intended for the University of North Carolina had been captured at sea. Released: "But the United States are not at war with literature in that part of their territory." (Cadwalader, D. J.) 54 [CONTRABAND OF WAR.] Article 28. The following may not be declared contraband of war: — (1) Raiw cotton, wool, silk, jute, flax, hemp, and other raw mate- rials of the textile industries, and yams of the same. (2) Oil seeds and nuts ; copra. (3) Rubber, resins, gums, and lacs; hops. (4) Raw hides and horns, bones and ivory. (5) Natural and artificial manures, including nitrates and phos- phates for agricultural purposes. (6) Metallic ores. (7) Earths, clays, lime, chalk, stone, including marble, bricks, slates, and tiles. (8) Chinaware and glass. (9) Paper and paper-making materials. (10) Soap, paint and colours, including articles exclusively used in their manufacture, and varnish. (11) Bleaching powder, soda ash, caustic soda, salt cake, am- monia, sulphate of ammonia, and sulphate of copper. (12) Agricultural, mining, textile, and printing machinery. (13) Precious and semi-precious stones, pearls, mother-of-pearl, and coral. (14) Clocks and watches, other than chronometers. (15) Fashion and fancy goods. (16) Feathers of all kinds, hairs, and bristles. (17) Articles of household furniture and decoration; office fur- niture and requisites. [CONTRABAND OF WAR.] Article 29. Likewise the following may not be treated as contraband of war: (1) Articles serving exclusively to aid the sick aM wounded. They can, however, in case of urgent military necessity and subject to the payment of compensation, be requisitioned, if their destination is that specified in Article 30. (2) Articles intended for the use of the vessel in which they are found, as well as those intended for the use of her crew and passen- gers during the voyage. 55 [CONTRABAND OF WAR.] Article 30. Absolute contraband is liable to capture if it is shown to be destined to territory belonging^ to or occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails transshipment or a subsequent trans- port by land. [CONTRABAND OF WAR.] Article 31. Proof of the destination specified in Article 30 is complete in the following cases: — (1) When the goods are documented for discharge in an enemy port, or for delivery to the armed forces of the enemy. (2) When the vessel is to call at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy be- fore reaching the neutral port for which the goods in question are documented. [CONTRABAND OF WAR.] Article 32. Where a vessel is carrying absolute contraband, her papers are conclusive proof as to the voyage on which she is engaged, unless she is found clearly out of the course indicated by her papers and unable to give adequate reasons to justify such deviation. [CONTRABAND OF WAR.] Article 33. Conditional contraband is liable to capture if it is shown to be destined for the use of the armed forces or of a government depart- ment of the enemy State, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress. This latter exception does not apply to a consign- ment coming under Artide 24 (4). [CONTRABAND OF WAR.] Article 34. The destination referred to in Article 33 is presumed to exist if the goods are consigned to enemy authorities, or to a con- tractor established in the enemy country who, as a matter of common knowledge, supplies articles of this kind to the enemy. A similar presumption arises if the goods are consigned to a fortified place be- longing to the enemy, or other place serving as a base for the armed forces of the enemy. No such presumption, however, arises in the case of a merchant vessel bound for one of these places if it is sought to prove that she herself is contraband. In cases where the above presumptions do not arise, the destination is presumed to be innocent. The presumptions set up by this Article may be rebutted. 56 [CONTRABAND OF WAR.] Article 35. Conditional contraband is not liable to capture, except when found on board a vessel bound for territory belonging to or oc- cupied by the enemy, or for the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port. The ship's papers are conclusive proof both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is found clearly out of the course indicated by her papers, and unable to give adequate reasons to justify such deviation. [CONTRABAND OF WAR.] Article 36. Notwithstanding the provisions of Article 35, conditional contraband, if shown to have the destination referred to in Article 33, is liable to capture in cases where the enemy country has no seaboard. Continuous Voyage ; Ultimate Destination : These Articles modify the American and perhaps the later English rules, for Article 35 is inconsistent with the American doctrine of continuous voyage and ultimate destination in the case of conditional contraband. For an admirable summary of the American rule both from the legal and the diplomatic aspects, see Stowell and Munro: War: 381-405, and VII Moore, 697, et seq. The Springbok, 5 Wall. 1 (1866, Chase, C. J.). The Springhoh, an English bark, commanded by a son of one of the owners, was chartered to T. S. Begbie of London (who was the owner of a blockade runner, The Gertrude) to take a cargo of lawful merchandise to Nassau. The bills of lading were "to order * * * or to * * * assigns". Of the 2,007 packages the bills disclosed the contents of but 619 and con- cealed the contents of 1,388. The owner of cargo had had ex- tensive dealings with the confederates and a considerable part was obviously contraband. The papers, however, were in per- fect order and the vessel made no resistance to capture. Nassau was a notorious place of trans-shipment of goods in- tended for the confederate service ; was so recognized in diplo- matic correspondence and by the Earl Eussell, EngUsh Foreign Secretary. 57 The ultimate destination of the contraband cargo was held to be the confederate government, not by the Springbok, but by trans-shiipment — ^probably by the Geirtrude. Cargo : Condemned as contraband. Hull: Released, but without costs to the claimants. The Bermuda, 3 Wall. 514 (1865, Chase, C. J.). The greater part of the forty-five pages of this case is taken up with a discussion of the facts by which it is established : That the ship, nominally owned by a British subject, was in fact the property of an enemy (semble) ; That the cargo was largely contraband; That the ultimate destination of the ship and cargo was Charleston, South Carolina, then blockaded, or if otherwise, to an intermediate port with intent to send forward the cargo by transshipment in a vessel provided for the completion of the voyage. The court recognized the general rules of law in this lan- guage: "It is asserted by counsel that a British merchant, as a neu- tral, had, during the late civil war, a perfect right to trade, even in military stores, between their own ports, and to sell at one of them goods of all sorts, even to an enemy of the United States, with knowledge of his intent to employ them in rebel war against the American government. "If by trade between neutral ports is meant real trade, in the course of which goods conveyed from one port to another become incorporated into the mass of goods for sale in the port of destination ; and if by sale to the enemies of the United States is meant sale to either belligerent, without partiality to either, we accept the proposition of counsel as correct. "But if it is intended to affirm that a neutral ship may take on a contraband cargo ostensibly for a neutral port, but destined in reality for a belligerent port, either by the same ship or by another, without becoming liable, from the commencement to the end of the voyage, to seizure, in order to the confiscation of the cargo, we do not agree to it." It makes no difference whether the destination to the rebel port was ulterior or direct : if trans-shipment was intended, trans- shipment would not break the continuity of transportation of the cargo. "A transportation from one point to another remains con- tinuous so long as intent remains unchanged, no matter what stoppages or transshipments intervene." (553) 58 It is noteworthy that although the English rule, announced as late as 1888 by Professor Holland in his Manual of Naval Prise Law,, issued by authority of the English Admiralty, was against the American doctrine of continuous voyage, yet twelve years later, in 1900, in the case of the Bundesrath, the American doctrine was applied to a German vessel sailing from a neutral German port to the neutral Portuguese port of Lorenco Marques ; and the first to defend the change in the English viewpoint was Professor Holland. Article 36 no doubt was framed to remove the embarrass- ments caused by the Boer war, for the Boers had no seaboard. From the English parliamentary debates it appears that Ger- man vessels, bound for Delagoa Bay, sailed into the harbor of Lorenco Marquez, and landed their cargoes at the railroad docks ; that the cargoes, in some instances munitions of war, without being unpacked, were loaded into cars and transported into the Boer territory under the eyes of and without hindrance from English men-of-war. "A blockade was out of the question" (Stowell & Munro : War: 409). The English had chaffed under the rule of the Springbok; Germany now cited to England her own words: There could have been no contraband no matter what cargoes the ships carried, for they sail from a neutral port to a neutral port, and under the principals of international law, there cannot be contraband of war in trade between neutral ports; England had declared this to be the law in her Navy Manual of 1866. Against the protest of many men in public life England released the Bundesrath; the Hersog and others, but she did not accept the rule that Germany laid down. Stowell & Munro : War : 409. The Kim, 1 Treh., 405, (the Packers' cases) the most im- portant English contribution to the doctrines of continuous voy- age and ultimate destination is worthy of careful consideration ; it was argued personally by the Attorney-General and by the Solicitor-General of England and a host of distinguished lawyers. These four vessels were captured en route to Copenhagen laden with lard, meat products, hides, wheat and rubber, all of which were, or by declaration had become, absolute contraband. The evidence was circumstantial (Denmark's average annual imports of lard 1911-1913: 1,459,000 lbs., on these four ships alone: 19,252,000, or in less than one month, thirteen times the amount of the average annual importations, etc., etc., etc., the consign- ments were "to order"). Held: good prizes. "If at the time of the seizure the goods were in fact on their way to the enemy government or its forces as their real ultimate destination by the action of the shippers, whenever their project was conceived or 59 however it was to be carried out — , if in trutli it is reasonably certain that the shippers must have known that that was the real ultimate destination of the goods * * * the belligerent had a right to stop the goods on their way and to seize them as confiscable goods" (489). Sir Samuel Evans, Prest. The Hague Tribunal had the opportunity of settling the ques- tion in The Caethage: Hague Ct. Reports (Scott) 329, an oppor- tunity that it diplomatically sidestepped. The rule seems now to be approved by the Institute of Inter- national Law (Annuaire, Vol. XV, 231). In 1896, in the case of the Doelwijh, Italy, in the Abyssinian war, announced the American rule. (2 Oppenheim, 505.) 60 [CONTRABAND OF WAR.] Article 37. A vessel carrying goods liable to capture as absolute or conditional contraband may be captured on the high seas or in the territorial waters of the belligerents throughout the whole of her voy- age, even if she is to touch at a port of call before reaching the hostile destination. [CONTRABAND OF WAR.] Article 38. A vessel may not be captured on the ground that she has carried contraband on a previous occasion if such carriage is in point of fact at an end. [CONTRABAND OF WAR.] Article 39. Contraband goods are liable to condemnation. [CONTRABAND OF WAR.] Article 40. A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume, or freight, forms more than half the cargo. [CONTRABAND OF WAR.] Article 41. If a vessel carrying contraband is released, she may be condemned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national prize court and the custody of the ship and cargo during the proceedings. [CONTRABAND OF WAR.] Article 42. Goods which belong to the owner of the contraband and are on board the same vessel are liable to condemnation. The sources of the rule announced in Article 40 may be found in the Eussian Prize Eegulation; they are not to be found in the American or in English cases prior to the Declaration of London. 61 The case of the Knight Commandbe (Sunk in 1904 during the Eusso-Japanese war) : The Knight Commander, of 4,306 tons burden, a British ship, was on her way from Hoboken to Japan with a miscellaneous cargo on board. She was required to stop by ships of the Rus- sian Vladivostok Squadron, was boarded and perfunctorily ex- amined. Her crew were taken off and she was sunk by shell fire. The British crew were taken to Vladivostok and the native crew were put on a passing vessel. 138 Pari. Deb., IV Series, p. 1435-6. The provisions of Rule 6 of the Russian Regulations defining contraband are most comprehensive: Every kind of fuel, including coal and naphtha. (Sub-Sec. 8) . Everything intended for warfare by sea or land, as well as rice, provisions, horses, beasts of burden and others which may be used for warlike purposes if they are transported on account of or are destined for the enemy. (Sub-Sec. 10.) Article XXI of the Russian Regulations seems to permit the sinking of neutral carriers of contraband. 140 Pari. Deb., IV Series, 156-157. VII Moore, 518-520. On appeal from the decision of the prize court at Vladivostok, the Supreme Prize Court at St. Petersburg held that a large part of the cargo was contraband; that this portion of the cargo ex- ceeded one-half of the total cargo ; that the ship was rightly de- clared a prize under the Russian rule; that the commander's action in sinking the vessel is not a circumstance for the prize court to deal with at all, but a matter of naval discipline ; that the Russian naval prize code contemplates the sinking of neutral ships as well as enemy ships, and behind that code the court cannot go, despite all that may have been written by interna- tional lawyers on the subject; that where the destruction of a vessel is necessary in the interests of a belligerent, parties inter- ested ought not to suffer; but as ship and cargo have been ad- judged prizes, the chief loss falls on the state and owners of innocent property must recover compensation by initiating claims before the prize court. 157 Pari. Deb., IV Series, 37-38. The State Department at Washington heard that the Knight Commander was sunk for want of coal to take her to Vladivostok, and expressed the view that the sinking of the vessel was not justified by the mere fact that she had contraband aboard. VII Moore 519-520. 62 For another account, see Stowell and Munro: Cases, War and Neutrality, 513. It subsequently appeared that the English government re- quested the Russian Government to submit this controversy to the Hague ; but that the Russian Grovernment declined. The Lorenzo, 1 Trehern 226, was one of the ships that accom- panied the Thor (q. v.). She was chartered by the Hamburg- Amerika Line to carry coal from New York to Buenos Ayres for which port she ostensibly cleared Aug. 6, 1914, but under the orders of her super cargo lay to awaiting the German cruiser Karlsruhe, to coal her. Held: Under Article 40, D of L, she was a good prize as more than half her cargo was contraband, notwithstanding that the owners did not know of her change of destination. Note: The fate of the innocent owner is no worse than the fate of the innocent mortgagee, even though he be an English sub- ject : the decree of condemnation destroys his mortgage. The Emil, 1 Trehern, 257. And the holders (pledgees) for value of the Bills of Lading are in the same plight. The Odessa, 1 Treh., 554. And the shipper of goods, innocent when shipped, contraband when captured, partially paid for, when the title had passed, is without remedy. The Sorfaeeeen, 1 Treh., 589. Art. 42: "Infection." The Petebhoff, 5 Wall., 59. The Keonprinsbssan Maegareta, 2 B. & C. P. C, 409. "The rule has come from ancient times right down to the days of the Declaration of London." 63 [CONTRABAND OF WAR.J Article 43. If a vessel is encountered at sea while unaware of the out- break of hostilities or of the declaration of contraband which applies to her cargo, the contraband cannot be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities, or of the declaration of contra- band, has had no opportunity of discharging the contraband. A vessel is deemed to be aware of the existence of a state of war, or of a declaration of contraband, if she left a neutral port subse- quently to the notification to the Power to which such port belongs of the outbreak of hostilities or of the declaration of contra- band respectively, provided that such notification was made in suffi- cient time. A vessel is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities. [CONTRABAND OF WAR.] Article 44. A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on ac- count of the proportion of contraband on board, may, when the cir- cumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship. The delivery of the contraband must be entered by the captor on the logbook of the vessel stopped and the master must give the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband that has been handed over to him under these conditions. Article 43 applies only to ships other than enemy ships. The Leda, 1 Trehern, 233. 64 CHAPTER III. [UNNEUTEAL SERVICE.] Article 45. A neutral vessel will be condemned and will, in a general way, receive the same treatment as a neutral vessel liable to condem- nation for carriage of contraband: — (1) If she is on a voyage specially undertaken with a view to the transport of individual passengers who are embodied in the armed forces of the enemy, or with a view to the transmission of intelli- gence in the interest of the enemy. (2) If, to the knowledge of either the owner, the charterer, or the master, she is transporting a military detachment of the enemy, or one or more persons who, in the course of the voyage, directly assist the operations of the enemy. In the cases specified under the above heads, goods belonging to the owner of the vessel are likewise liable to condemnation. The provisions of the present Article do not apply if the vessel is encountered at sea while unaware of the outbreak of hostilities, or if the master, after becoming aware of the outbreak of hostilities, has had no opportunity of disembarking the passengers. The vessel is deemed to be aware of the existence of a state of war if she left an enemy port subsequently to the outbreak of hostilities, or a neutral port subsequently to the notification of the outbreak of hostilities to the Power to which such port belongs, provided that such notification was made in sufficient time. [UNNEUTRAL SERVICE.] Article 46. A neutral vessel will be condemned and, in a general way, receive the same treatment as would be applicable to her if she were an enemy merchant vessel: (1) If she takes a direct part in the hostilities; (2) If she is under the orders or control of an agent placed on board by the enemy Government; (3) If she is in the exclusive employment of the enemy Govern- ment; (4) If she is exclusively engaged at the time either in the trans- port of enemy troops or in the transmission of intelligence in the in- terest of the enemy. In the cases covered by the present Article, goods belonging to the owner of the vessel are likewise liable to condemnation. 65 The Hanambtal, 1 Treh., 347, was an American vessel, wliicli had changed her British officers for German, was on her way to Tsing-tao, a German port, and soon, as it afterwards ap- peared, to be blockaded; but then open. The purpose of the trip was to carry away refugees. But the German master was found to be acting for the American owner, and under his con- trol, and not for the German Government; and the vessel was released (August, 1914). The Zambesi, 1 Treh., 358, a British boat, lay adrift off Nauru, a German island in the Pacific Ocean, waiting to land her cargo and ignorant (Aug. 6, 1914), that war had broken out be- tween England and Germany. The German agent at Nauru had learned by wireless of the war and desired to communicate dispatches of importance to his chief at another German island in the vicinity, with which communication by wireless had failed. Concealing the fact that England was in the war, the German agent chartered the Zambesi to carry the dispatches. Captured by the Encounter, the dispatches were seized and the vessel held a good prize under Article 45 Supra, notwithstanding the hard- ship to the owners. "In the sarhe manner, in cases of bona fide ignorance, there may be no actual delinquency, but if the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done, or at least repeated, by enforcing the penalty of confiscation." In this case the ship, an American vessel, had been chartered (but under a fictitious charter-party), to convey ' ' three military officers of distinction and two persons employed in the civil departments," enemies, to an enemy port. The Obozembo, 6 C. Rob., 430-434, Sir William Scott, J. But where the Pontopoeos, a Greek steamer, carrying coal (contraband) for England (1 Treh., 371), which had been taken by a German cruiser, the Emden, put in charge of a German of- ficer and thirteen Germans (engineers and crew) and required to follow the Emden and supply her with coal, was recaptured by an English cruiser : Held : No unneutral service : vessel released. "Articles 45, 46 and 47 are all grouped under the heading 'Unneutral Service,' or 'assistance hostile,' and in my opinion the use of that term implies ^ome act or acts in violation of neu- trality on the part of a neutral having authority over the neutral vessel, and the existence of some contractual relation, such as that of employer and employee, between the belligerent and such neutral. No such relation existed in this case (the Pontoporos). It is said that, while Article 45 speaks of knowledge on the part of the owner, charterer or master. Article 46 omits knowledge, and that therefore knowledge is not required on the part of these 66 persons. Yet it is admitted that the offences contemplated un- der Article 46 are more serious than those under Article 45. I am satisfied that the construction put by Mr. Oppenheim on Article 46 in the passage referred to by counsel for the ship owners on page 528, that mens rea is obviously always in exist- ence and therefore always presumed to be present, is the only reasonable construction of that article" ( Woodward, acting 0. J.) 384. > & J The Thob; 1 Trehern, 229 (194 Colleb, C. J.) : Aug. 3, 1914, the Thor, a Norwegian steamer M^as at Newport News loading coal for Uruguay. Apparently that day she was chartered by the Hamburg-American line, who put her under the orders of a supercargo and from Aug. 9 to Aug. 26, in company with Ger- man colliers, she steamed up and down "waiting for something to coal." She was captured by the Berwick and taken to St. Lucia, and was held a good prize. 1. Inasmuch as she left Newport News before the declara- tion of war, she was exempt from confiscation for carriage of contraband ; 2. The English rule (since 1811) is : "A neutral vessel char- tered or employed by a belligerent government to carry a cargo on its behalf and acting under the orders or direction of that government or of its officers, is liable to condemnation as an enemy ship, together with the cargo so carried." (The Eebecca, 2 Acton, 119) ; 3. "The formula submitted to the Conference [of London] was more epigrammatic but equally effective; it provided that merchant vessels 'entierement ou specialement au service du belligerant ennemi' should lose their neutral character. * * * Ultimately the new rule emerged (so far as relevant) in this form: 'A neutral vessel is liable to condemnation. * * * (2) If she is under the orders or control of an agent placed on board by the enemy government; (3) If she is in the exclusive employment of the enemy government.' I confess, with great respect, that I do not think the change altogether happy, nor do I find the rule, as enunciated, particularly clear. ' ' But, upon, consulting the official commentary : ' Such is the position of col- liers which accompany a hostile fleet/' the court reached the conclusion that the Thor was within the rule, although she had not accompanied a hostile fleet, but had merely attempted to do so. 67 [UNNEUTKAL SERVICE.] Article 47. Any individual embodied in the armed forces of the enemy who is found on board a neutral merchant vessel, may be made a prisoner of war, even though there be no ground for the capture of the vessel. It should be borne in mind that the provisions of Chapter III are independent of and additional to the municipal laws of the several nations for the observation of neutrality. Nevertheless, where the provisions of the two systems run in parallel lines, Chapter III will doubtless be held to carry with it as canons of interpretation all the existing judicial interpretation. A group of cases involving unneutral service arose out of the Cuban Eevolution: United States v. Pena, 69 Federal, 983 (1895, Wales, D. J.), (charging jury). Men and arms. United States v. Hughes, 70 Federal, 972 (1895, Brawley, J.). Aiding military expedition. Men and arms. United States v. Wiborg, 163 U. S. 632 (1896, Fuller, C. J.), reported below as 73 Federal, 159 (1896, Butler, D. J.), (charging jury). Men and arms. United States v. Haet, 74 Federal, 724 (1896, Brown, D. J.). Men and arms. United States v. Hughes, 75 Federal, 267 (Brawley, D. J.), (charging jury). Men and arms. United States v. Hart, 78 Federal, 686 (1897, Butler, D. J.), (charging jury). Men and arms; also Hart v. United States, 84 Fed. 799 (1898, C. C. A. Error to 78 Fed. 868). Men and arms. The Three Friends, 78 Fed. 175 (1897, Locke, D. J.). Fitting out vessel. The Three Friends, 89 Fed. 207 (1898, C. C. A. Appeal from 78 Fed. 173). Fitting out vessel. The Three Friends, 166 U. S. 1 (1897, Fuller, C. J.). United States v. Nunez, 82 Fed. 599 (Brown, D. J»). Men and arms. United States v. Murphy, 84 Fed. 609 (1898, Braadford, D. J.). Men and arms. 68 The Latjbada, 85, Fed. 760 (1898, Bradford, D. J.). Men and arms. The Laxjkada, 98 Fed. 983 (1900). Appeal from 85 Fed. 760. When these cases were decided (and since 1818), our neu- trality laws (E. S. U. S. 5281-5291), forbade: (1) A citizen of the U. S. and within its territory or juris- diction to accept and exercise a commission to serve a foreign prince, state, colony, district or people against a foreign prince, etc., with whom U. S. are at peace (5281). (2) All persons within the territory or jurisdiction of the U. S. to enlist or to hire or to retain others to enlist or to go beyond the limits of the U. S. to enlist (5282). (3) Every person within the limits of the U. S. to fit out and arm or to attempt to fit out and arm, or to procure to be fitted out and armed, or knowingly to be concerned in the fur- nishing, fitting out and arming of a vessel to be employed in the service of a foreign prince, etc., or to cruise against the sub- jects of any foreign prince, etc., with whom the United States is at peace. Or to deliver a commission within the territory of the U. S. to the intent that she may be so employed; and as a penalty for the violation, provided for the forfeiture of the guilty vessel (5283). Note : Upon this section were based the in rem proceedings hereinafter referred to. (4) Citizens, without the limits of the U. S. to fit out and arm, attempt to fit out and arm, or procure to be fitted out and armed, or knowingly to aid or to be concerned in furnishing, fitting out or arming a privateer to cruise against citizens or their property or to take command of or to board such a vessel for such a purpose or to purchase an interest therein with a view to profit thereby (5284). (5) Every person within the territory of the United States to increase or augment, or to procure to be increased or aug- mented, or be interested in increasing and augmenting the force of a ship of war of any forei^ prince, etc., or his subjects at war with any foreign prince with whom U. S. are at peace, by adding guns or military equipment (5285) ; The section under which most of the indictments were brought is the next (5286), which reads: Sec. 5286. Every person who, within the territory or juris- diction of the United States, begins, or sets on foot, or provides or prepares the means for, any military expedition or enter- prise, to be carried on from thence against the territory or do- 69 minions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, shall he deemed guilty of a high misdemeanor, and shall he fined not exceeding three thousand dollars, and imprisoned not more than three years." From the report accompanying the Declaration, the scope of the phrase "embodied in the akmed foeces of the enemy" seems to have been purposely left in doubt. It is stated: "Supposing the case is one of individuals who are natives of a continental European country and are settled in America ; these individuals have military obligations toward their country of origin; they have, for instance, to belong to the reserve of the active army of that country. Their country is at war and they sail to perform their service. Shall they be considered as embodied in the sense of the provision which we are discussing?" The question thus avoided by the conference, arose at the out- break of the present war. In response to a direct inquiry, Secre- tary Bryan wrote Senator Stone, January 20, 1915 (2 Times Hist., 1175-81) (following a precedent of Secretary Fish) : "(16) Failure to prevent transshipment of British troops and war materials across the territory/ of the United States. ' ' The department has had no specific case of the passage of convoys or troops across American territory brought to its no- tice. There have been rumors to this effect, but no actual facts have been presented. The transshipment of reservists of all belligerents who have requested the privilege has been permitted on the condition that they travel as individuals and not as an organized, uniformed or armed body. The German Embassy has advised the department that it would not be likely to avail itself of the privilege, but Germany's ally, Austro-Hungary, did so. "Only one case raising the question of the transit of war material' owned by a belligerent across United States territory has come to the Department's notice. This was a request on the part of the Canadian Government for permission to ship equipment across Alaska to the sea. The request was refused." In 1870 about 1200 Frenchmen embarked at New York in the Lafayette and Ville de Paris for the purpose of joining the armies of their nation at home. They were not officered nor m any way organized, but the vessel was laden with 96,000 rifles and 11,000,000 cartridges. Mr. Fish, then Secretary of State, was of the opinion that the ship could not be looked upon as intended to be used for hostile purposes against Germany; the men not being in an efficient state and the arms and ammunition being in themselves legitimate commerce. ' ' The uncombined elements of an expedition may leave a neutral state in company with one 70 another, provided they are incapable of proximate combination into an organized whole." It would be different if the men had previously received such military training as would have ren- dered them fit for closely proximate employment. (United States V. Hughes, 70 Fed. Rep., 972-075.) Note, however, that Chief Justice Fuller, in Wiborg v. United States, 163 U. S., 632-652, adds a further fact which the trial judge did not state : namely, that the passengers had no access to the arms and ammunition any more than an ordinary passenger on an ocean steamer has access to any part of the cargo (p. 652) . The articles of this Chapter might be defined as the Filibuster- ing Articles. They were no doubt inserted to put at rest by express provisions of international law questions arising acutely in 1895-1898 — the period of the Cuban insurrection. It will be recalled that some seventy-one (71) expeditions were fitted out in the United States to aid the Cuban insurgents. Of these, twenty-seven were successful ; thirty-three were stopped by the IJnited States Grovernment; five were captured or de- feated by Spain; two were prevented by England, and four by storms. Thirty-one separate vessels were engaged. The "pas- sengers" were generally Cubans returning from exile. Benton: Int. Law & Dip. of the Spanish- American War, 42 et passim. The Theee Friends, 166 U. S., 1 (1897, Fuller, C. J.) : In 1895 (June 12), a formal proclamation was issued by the President informing the people of the United States that the island of Cuba "was the seat of serious civil disturbances, ac- companied by armed resistance to the authority of the estab- lished government of Spain", and declaring that the neutrality laws of the country prohibited participation therein ; in his an- nual message of December 2, 1895, and in a proclamation of July 27, 1896, he again brought the Cuban situation before the nation. But the Cuban insurrectos were not recognized as bellig- erents. November 7, 1896, the Three Friends was seized and five days later was libeled under Section 5283 R. S. U. S. The case was equally embarrassing to the claimant and to the government. The claimant was guilty either as a filibuster under Section 5283 or, under international law, as a pirate ; while the govern- ment, if it did not recognize the Cuban revolutionists as bellig- erents might be liable for breaches of neutrality, should it fail in the performance of its duties to a friendly power, while if it did recognize them as belligerents, it also recognized coincidently 71 a state of war which involved the right of blockade, and of search, and of the seizure of contraband. The contention that there could be no offense under Sec. 5283 until after the belligerency of the Cubans had been recognized by the Government of the United States was denied and the libel was upheld. WiBOEG V. United States, 163 U. S., 632 (1896, Fuller, C. J., Har- lan, J., dissenting) : Indictment under Section 5286 for setting on foot a certain "military expedition and enterprise", etc. From a verdict of guilty Wiborg appeals. He was master of the Rorsa, in the fruit trade for Hart & Company of Philadelphia. In November, 1895, he cleared from Philadelphia for Jamaica with but little cargo. The owners instructed him after he had passed the Bireakwater to proceed north near Barnegat and await further orders. Accordingly after passing Delaware Breakwater he turned to the north and anchored over three miles from land off Barnegat light. That night a lighter from Brooklyn laden with cases of goods and two life boats, and carry- ing between thirty and forty passengers, mostly dark complex- ioned men speaking a foreign language, apparently Cubans or Spaniards, under a white flag, approached the Horsa, which also flew a white flag. The master states that his orders were to deliver the two boats and also two boats that he had shipped from Philadelphia, to the men, and that he should disembark them wherever a colored man, called the pilot, directed. After boarding the Horsa the newcomers broke open the boxes and took out rifles, swords, machetes and one cannon. They also took cartridge belts, medicines and bandages. They were not in uniform, but some of them had caps with a little flag which they said was a Cuban flag. They divided up the arms, each man taking a rifle; certain of them, understood to be officers, took swords and revolvers ; one seemed to be in command ; there were some military exercises in the nature of a drill by three to seven men at a time ; they stated they were going to Cuba to fight the Spaniards ; they made small canvas bags to put the cartridges in; they practiced with the rifle, the sword, the machete and with the cannon. The Horsa changed the colors on her funnel at sea and painted out her name amidships. About six miles off the coast of Cuba the colored pilot gave orders to disembark. The Horsa' s lights were put out, the passengers took to the boats, taking all the ammunition and arms they could carry. Some forty boxes of cartridges were left on the Horsa because there was no room for them, and Captain Wiborg directed these to be thrown overboard. 72 Held : The jury was justified in finding that this constituted a military expedition or enterprise against the territory of the King of Spain. United States v. Haet, 74 Fed. Eep., 724 (1896, Brown, D. J.) : This expedition, which was to have been carried by the Ber- muda, was broken up before it left New York. The court in charg- ing the jury stated that to fall within the statute the expedition must be military and carried on from this country ; and that a mere lawful intent to enlist abroad could not give the voyage a military character. The fundamental idea of a military enterprise or expedition to be carried on from this country is that it should be undertaken (1) by soldiers; (2) under officers and the duty of military obedience; (3) armed with appropriate weapons; (4) bound together by a unified organization under a definite command; (5) with a military or hostile purpose of attack or defense. The latest case seems to be The Lucy H., 235 Fed., 610 : Libel of information and seizure maritime for violation of neutrality laws. In September, 1915, the American schooner Lucy H., in Pensa- cola, Florida, took on board, besides a crew of nine men and six- teen Mexicans, a cargo of 162 rifles and 25,000 rounds of ammu- nition. The vessel then proceeded to Key West, where two more cases of rifles and a quantity of stores were added to the cargo. October 19 she sailed from Key West in an unauthorized man- ner toward Tuxpam, Mexico, where ultimately the Mexicans and the cargo were landed. Upon her return she was libelled under Section 11 of the Penal Code of 1910, Compiled Statutes 1913, Section 175, which provides for the forfeiture by every vessel which, in the territory of the United States, is fitted out to be employed in the service of any foreign prince or state, or of any colony, district or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace. Exceptions were filed to the libel on two grounds : That the vessel was not in the service of any foreign prince or state, and was not fitted out to commit hostilities against the subjects of any foreign prince or state, etc., for the reason that the situation in Mexico involved merely a controversy of one set of bandits against another set of bandits. The exceptions were not well taken and ordered overruled on the authority of The Three Friends, 166 U. S., 1. Wiborg V. U. S., 163 U. S., 647. Article 47 is cited in the Manouba case : The Hague Court Reports, Scott, 339. See Ante under Article 7. QuAEEE : The Trent Affair : Could either Mason or Slidell be regarded as "embodied in the armed forces" of the enemy I Prob- ably not. Cf . Stowell & Munro : War : 458. 73 CHAPTER IV. [DESTRUCTION OF NEUTRAL PRIZES.] Article 48, A neutral vessel which has been captured may not be de- stroyed by the captor; she must be taken into such port as is proper for the determination there of all questions concerning the validity of the capture. [DESTRUCTION OF NEUTRAL PRIZES.] Article 49. As an exception, a neutral vessel which has been captured by a belligerent warship, and which would be liable to condemnation, may be destroyed if the observance of Article 48 wotlld involve dan- ger to the safety of the warship or to the success of the operations in which she is engaged at the time. [DESTRUCTION OF NEUTRAL PRIZES.] Article 50. Before the vessel is destroyed all persons on board must be placed in safety, and all the ship's papers and other documents which the parties interested consider relevant for the purpose of de- ciding on the validity of the capture must be taken on board the war- ship. [DESTRUCTION OF NEUTRAL PRIZES.] Article 51. A captor who has destroyed a neutral vessel must, prior to any decision respecting the validity of the priae, estabhsh that he only acted in the face of an exceptional necessity of the nature contem- plated in Article 49. If he fails to do this, he must compensate the parties interested and no examination shall be made of the question whether the capture was valid or not. [DESTRUCTION OF NEUTRAL PRIZES.] Article 52. If the capture of a neutral vessel is subsequently held to be invalid, though the act of destruction has been held to have beem justifiable, the captor must pay compensation to the parties inter- ested, in place of the restitution to whichthey would have been en- titled. 74 [DESTRUCTION OF NEUTRAL PRIZES.] Article 53. K neutral goods not liable to condemnation have been de- stroyed with the vessel, the owner of such goods is entitled to com- pensation. [DESTRUCTION OF NEUTRAL PRIZES.] Article 54. The captor has the right to demand the handing over, or to proceed himself to the destruction of, any goods liable to condemna- tion found on board a vessel not herself liable to condemnation, pro- vided that the circumstances are such as would, under Article 49, justify the destruction of a vessel herself liable to condemnation. The captor must enter the goods siirrendered or destroyed in the logbook of the vessel stopped, and must obtain duly certified copies of all rele- vant papers. When the goods have been handed over or destroyed, and the formalities duly carried out, the master must be allowed to continue his voyage. The provisions of Article 51 and 52 respecting the obligations of a captor who has destroyed a neutral vessel are applicable. The war vessels of a belligerent may have as prize : 1. A warship of the enemy; 2. An enemy merchantman; 3. A neutral merchantman that is captured breaking block- ade or carrying contraband. Chapter IV of the Declaration of London has to do with the destruction of neutral prizes ; and it would seem clear that if the right exists to destroy a neutral merchantman the right also exists to destroy an enemy merchantman. Of the right to de- stroy a captured enemy warship there can be no doubt. The United States Navy was negligible till the beginning of the last century. In the war of 1812 (VII Moore, 516), enemy prizes were destroyed under specific instructions to individual commanders, but not under general orders. Unquestionably, however, the executive department countenanced if, it did not direct the policy of destruction, both because America was fight- ing against a navy much stronger than her own, and because "the comm"erce of the enemy is the most vulnerable point we can attack" (Sept. 19, 1813, Secretary of the Navy to Stewart). 75 The question seems not to have arisen acutely in the Mexi- can War or in the War of the Rebellion. By General Order 492, 1898, (sec. 28), the Navy Depart- ment permits the sinking of a prize (whether belligerent or neu- tral) if she is unseaworthy; or infected with disease; or is in danger of recapture; or if a prize crew is lacking. The Santo Domingo, 119 Fed. 386 (where the vessel was armed and in im- minent danger of recapture). The Naval War Code (Stockton) of 1900 contained a similar provision ; but it was recalled in 1904. So far as the Navy Department is concerned, its traditions seem to countenance the sinking of prizes. But it is doubted if Congress or the courts have taken that stand in the case of either enemy or neutral merchantmen. Jackson v. Montgomery, 13 Howard, 498 (1851, Taney, C. J.), is usually supposed to justify the sinking of a neutral prize at sea. The claim that this case so holds may be doubted. The Admittance, an American vessel, was found at San Jose on the coast of California, trading, it was alleged, with the enemy, by the Portsm,out'h, which took her to a prize court at Monterey, California, where she was held a good prize and was sold and the proceeds lodged with the Secretary of the Treasury pending the determination of proceeds. Jackson filed in the District of Columbia his libel against Montgomery, captain of the Ports- mouth, alleging that the capture was unlawful and the Monterey court without jurisdiction. The Act of Congress (Prize Section 4613 et seq.) requires the captor to bring the prize within the jurisdiction of a prize court ; and this is the rule of International Law "which in all civilized countries secures to the captured a trial in a court of competent jurisdiction before he can finally be deprived of his property" (516). But when this is impos- sible he may "sell or otherwise dispose of the property before condemnation. And where the commander of a national ship cannot without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured ves- sel ; or where orders of his government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country; and may afterwards proceed to adjudication in a court of the United States." It is doubted if '/otherwise dispose of" is the equivalent of "sink." It is probable that the lack of accessible ports into which the prizes might safely be sent for condemnation, is the reason for the regulation of Germany and Eussia permitting the practice of sinking prizes. See the Knight Commander, supra. What disposition, for example, could the Prinz Friedrich have made 76 of the Frye? It is perhaps too much to expect of the naval or- ganization of a nation that it will hamper itself with the duty of saving from destruction merchantmen prizes. That the English practice is not in accordance with the rule of Chapter IV has been asserted within the last few months by- England's Attorney-General, Sir Frederick Smith: The De- struction of Merchant Ships under International Law. (Dent.) The SINKING OF NEUTEAL PRIZES is Said to be justified by the regulations of Japan and France ; the Institute of International Law has declined to condemn it. Westlake: Collected Papers, 661. The case for the neutral is well put by the Marquess of Lans- down (Vol. 140, Parliamentary Debates, IV Series, p. 158) : "Let your Lordships imagine, for example, what would be the result were one cruiser operating at a distance from her base to seize and sink on the spot a number of neutral vessels simply on the ground that those neutral vessels had not on board of them as sufficient amount of coal to carry them to the port from which the belligerent cruiser had started; or again, we might find ourselves confounded with this result that a cruiser, starting with a crew sufficient only for the purpose of navigating her and consequently not having on board any men whom she could spare for the purpose of a prize crew, might sink every prize she took, merely on the ground that there was no means of conveying that prize before a prize court. I am speaking, of course, of neutral prizes because the case of enemy prizes is wholly different." The other view is thus stated, with his approval, by Professor Moore : "Let us take, for example, the case of a neutral vessel, laden with a cargo of arms and munitions of war which is captured by a cruiser of one belligerent while approaching a port of another. Soon afterwards a superior force of the latter bellig- erent appears so that the only way to prevent the arms- and munitions of war from being conducted to their hostile destina- tion is to burn or sink the vessel in which they are borne. Is the captor bound under such circumstances practically to hand over the vessel and cargo to his enemy?" I am free to say that I think that he is ! 77 CHAPTER V. [TRANSFER TO A NEUTRAL FLAG.] Article 55. The transfer of an enemy vessel to a neutral flag, effected before the outbreak of hostilities, is valid, unless it is proved that such transfer was made in order to evade the consequences to which aii enemy vessel, as such, is exposed. There is, however, a presumption, if the bill of sale is not on board a vessel which has lost her belliger- ent nationality less than sixty days before the outbreak of hostilities, that the transfer is void. This presumption may be rebutted. Where the transfer was effected more than thirty days before the outbreak of hostilities, there is an absolute presumption that it is valid if it is unconditional, complete, and in conformity wit^ the laws of the countries concerned, and if its effect is such that neither the control of, nor the profits arising from the employment of, the vessel remain in the same hands as before the transfer. If, however, the vessel lost her belligerent nationality less than sixty days before the outbreak of hostilities and if the bill of sale is not on board, the capture of the vessel gives no right to damages. [TRANSFER TO A NEUTRAL FLAG.] Article 56. The transfer of an enemy vessel to a neutral flag effected after the outbreak of hostilities, is void unless it is proved that such transfer was not made in order to evade the consequences to which an enemy vessel, as such, is exposed. There, however, is an absolute presumption that a transfer is void: (1) If the transfer has been made during a voyage or in a block- aded port. (2) If a right to repurchase or recover the vessel is reserved to the vendor. (3) If the requirements of the municipal law governing the right to fly the flag under which the vessel is sailing, have not been fulfilled. The provisions of these two Articles work a substantial change in the law, both of England and the United States. The imminence of war, even actual helium flagrcms, is no bar under the American rule to the sale of a belligerent vessel to a neutral purchaser, provided that by the sale an absolute, unqualified 78 title passes in good faith to the vendee. It would appear that with the motive or the reason inducing the sale the courts will not concern themselves. The Benito Estengee, 176 U. S. 568 (1900, Fuller, C. J.). Dis- senting, Shiras, "White and Peckham, J. J. : Eejecting the claim that the Benito was engaged in behalf of of a Cuban junta, allies of the United States, and employed in friendly offices to the forces of the United States, the court found that the Benito was "enemy property" under the admiralty rule, because she was engaged in illegal traffic with the enemy, " which establishes her hostile character. Originally owned by a Spaniard, resident in Cuba, she was on June 9, 1898, sold to Beattie, an Englishman, and registered as a British ship. Ap- parently no money passed; claimant refused to describe the payment or payments ; the Spanish crew and the Spanish mas- ter remained in charge and she continued to trade with the enemy. Under such circumstances the court held her a good prize. The rule recognized in England and the United States is thus stated (page 578) : "Transfers of vessels flagrante hello were originally held invalid, but the rule has been modified, and is thus given by Mr. Hall, who, after stating that in France "their sale is forbidden, and they are declared to be prize in all cases in which they have been transferred to neutrals after the buyers could have knowl- edge of the outbreak of the war"; says: 'In England and the United States, on the contrary, the right to purchase vessels is in principle admitted, they being in themselves legitimate ob- jects of trade as fully as any other kind of merchandise, but the opportunities of fraud being great, the circumstances attending a sale are severely scrutinized, and the transfer is not held to be good if it is subjected to any condition or even tacit understand- ing by which the vendor keeps an interest in the vessel or its profits, a control over it, a power of revocation, or a right to its restoration at the conclusion of the war.' International Law (4th Ed.), 525. And to the same effect is Mr. Justice Story in his Notes on the Principles and Practices of Prize Courts (Pratt's Ed.), 63 ; 2 Wheat. App. 30 : 'In respect to the transfers of enemies' ships during the war, it is certain that purchases of them by neutrals are not, in general, illegal; but such pur- chases are liable to great suspicion; and if good proof be not given of their validity by a bill of sale and payment of a rea- sonable consideration, it will materially impair the validity of a neutral claim; * * * and if after such transfer the ship be employed habitually in the enemy's trade, or under the man- agement of a hostile proprietor, the sale will be deemed merely 79 colorable and collusive. * * * Anything tending to continue the interest of the enemy in the ship vitiates a contract of this description altogether.' " The Dacia: In August, 1914, the Dacia, a Hamburg-American steamer regularly in the German-Mexican gulf trade, was in Port Arthur, Texas, where she remained to escape capture. After a cotton broker had entered into a contract with him for the carriage of cot- ton from Galveston to Bremen, an irresponsible promoter named von Novelly purchased the Dacia from her owners for $165,000, the money to be returned in case of failure to obtain American registry. Novelly thereupon transferred all of his rights to Breitung, who paid the purchase price of the boat. The cotton shipper forthwith received seventy-five per cent, of the pur- chase price of the cotton. American registry was granted, but the transfer was protested by Great Britain, which refused safe conduct and informed Washington that the Dacia would be seized. February 27, 1915, the Dacia was captured by the French cruiser Europe (while on the very voyage she had undertaken to make when still flying the German flag) and taken into Brest, where the French prize court adopted as a canon of construction of Article 56, that a transfer could be considered valid only when there was reason to believe that it would have taken place if the war had not occurred, calling attention to the fact that this was the construction that the framers of the Declaration of London gave to Article 56, and citing the German prize ordinance of September 30, 1909, which announces the same rule. The Dacia was held a good prize. The French government acquired the cotton and returned the articles and effects not contraband of the captain and crew. See Stowell & Munro': War : 364. It has been suggested that the capture was not made by an English, but by a French cruiser, in order that jurisdiction might be given to a French Prize Court. "Apart from the Declaration of London, and whatever al- teration that may make in the law of nations, these artificial periods of time which have been agreed upon by the various nations — namely thirty and sixty days — cannot be found in any decision of any particular Prize Court belonging to any coun- try" (27). Sir Samuel Evans, The Tommi, supra. 80 CHAPTER VI. [ENEMY OHAEAOTBE.] Article 57. Subject to the provisions respecting transfer to another flag, the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly. The case where a neutral vessel is engaged in a trade which is closed in time of peace, remains outside the scope of, and is in no wise affected by, this rule. [ENEMY CHARACTER.] Article 58. The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy character of the owner. [ENEMY CHARACTER.] Article 59. In the absence of proof of the neutral character of goods found on board an enemy vessel, they are presumed to be enemy goods. [ENEMY CHARACTER.] Article 60. Enemy goods on board an enemy vessel retain their enemy character until they reach their destination, notwithstanding any transfer effected after the outbreak of hostilities whUe the goods are being forwarded. If, however, prior to the capture, a former neutral owner exercises, on the bankruptcy of an existing enemy owner, a recognized legal right to recover the goods, they regain their neutral character. Article 57: The Tommi; the Bother sand, ^ 1 Treliern, 16 (Sir Samuel Evans, President) : These two sailing vessels were at sea Aug. 1, 1914. On that date their German owners offered by telegraph to sell them to an English company (all of whose shares, however, were held by German aliens), and the offer was accepted. Held: Good prizes. "The law, as it was understood which says that the national- ity of a ship depends upon the flag was adopted by the Declara- tion of London by the parties which agreed to the Declaration 81 * * * *." After citing Article 57: The neutral or enemy character of a vessel is determined by the flag which she is en- titled to fly, the coiTrt holds that at the time of their seizure they were entitled to fly the German flag. Art. 60 : "But in time of war this [transfer in tra)i.situ] is pro- hibited as a vicious contract being a fraud on belligerent rights, not only in the particular transaction but in the great facility which it would necessarily introduce, of evading those rights be- yond the possibility of detection. It is a road that in time of war must be shut up ; for although honest men might be induced to travel it with very innocent intentions, the far greater proportion of those who passed would use it only for sinister purposes, and with views of fraud on the rights of the belligerent. ' ' The Jan Frederick, 5 C. Rob., 128; 1804, Lord Stowell (Sir William Scott). Cited with approval : The Tommi, 1 Trehern, 23. Nationality or Domicile? The Declaration of London has been criticised because it left undisposed of three questions of constantly recurring impor- tance. One is, shall the ownership of a ship or of a cargo claim- ing neutrality be determined by the domicile or by the nationality of the claimant! At the conference five voted in favor of domi- cile and five in favor of nationality as the determining factor. Consult The Clan Grant, 1 Trehern, 272. But as Germany has extra-territorial jurisdiction in China, a German subject resident in Shanghai does not acquire a civil domicile in China for war purposes, as he remains subject to the jurisdiction of his own state. "* * *_ No British sub- ject can change his legal domicile by residence in any place where the Crown has extra territorial authority" (389) ; and the rule was applied equally to a German subject. The Derflinger (No. 1), 1 Treh., 386. Pitt Cobbett: "Where a person is domiciled in a neutral country, but has a house of trade in an enemy country, he will also be deemed to have an enemy character, 2 Leading Cases, 25. The Rostock, 1 Treh., 523 : A German who had lived in Cey- lon for five years, absenting himself twice, once for three and once for four months (for the sake of his health?) and who had consigned the goods to the order of himself in Hamburg where he carried on his trade, did not acquire a trade domicile in Cey- lon. 82 " 'Enemy property' is a technical phrase peculiar to prize courts, and depends upon principles of public policy as distin- guished from the common law. The general rule is that in war the citizens or subjects of the belligerents are enemies to each other without regard to individual sentiments or dispositions, and that political status determines the question of enemy owner- ship. And by the law of prize, property engaged in any illegal intercourse with the enemy is deemed enemy property, whether belonging to an ally or a citizen, as the illegal traffic stamps it with the hostile character and attaches to it all the penal conse- quences. Prize cases, 2 Black, 635, 674; The Sullv, 8 Cranch, 328, 384; Jeeker v. Montgomery, 18 How., 110; The PeterhofP, 5 Wall., 28; The Flying Scud, 6 Wall., 263." Fuller, C. J., in the Benito Estenger, 176 U. S., 568-571. The exception of the last sentence of Article 57 is known as "Eule of War of 1756," which may be thus stated: Neutrals will not be allowed to engage in time of war in the trade between the enemy and his colonies from which they are excluded in tirae of peace. A decision of the Japanese Prize Courts illustrates the rule : Eussia, prior to the Russo-Japanese War, permitted no trade by foreign ships with the Komandorski Islands, a small group off the coast of Kamchatka, but during the war Russia permitted two Russian companies to employ foreign ships in this trade, and under this authority one of the companies chartered the Montara, a United States ship, which sailed from San Francisco and traded among the islands, discharging cargo and taking on furs and other articles. She was captured twenty days before the peace was signed. The cargo was the property of the Russian company. Held : an enemy ship transporting enemy goods, and rejecting the suggestion that her voyage was made in the interest of humanity, the Japanese Prize Courts held that she was a good prize. As to the suggestion that she was not brought to trial until after peace was signed, the court says: "A distinction must be made between the act of capture and the act of judging whether or not a capture was valid. ' ' Stowell & Munro : War : 444. "Coastwise trade and colonial trade have ever been esteemed by the proprietary Power its exclusive property from which it had the right to exclude foreign merchants. Conceding that the rights of neutrals, notwithstanding a state of war, must be pro- tected. "* * * the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade to the utmost ex- tent of which that accustomed trade is capable. Very different is 83 the case of a trade which the neutral has never possessed, which he holds by no title of use and habit in times of peace, and which, in fact, can obtain in war by no other title, than by the success of the one belligerent against the other, and at the expense of that very belligerent under whose success he sets up his title; and such I take to be the colonial trade, generally speaking. ' ' The Immanuel, 2 0. Rob. 186 (156-166 Am. Ed.). Sir William Scott, J. The exception in Article 57 seems to leave the Rule of War of 1756 untouched ; that no attempt was made to formulate it and to incorporate it has been observed by some of the critics of the Declaration. Quaere: When a company, organized under the laws of a nation, all of whose stock, however, is held by aliens, owns a ship : what is the nationality of the ship? The Poona, 1 Treh., 275. The leading English case (a notable case), is the Maria, 1 C. Rob., 340 (Am. Ed., p. 287), Sir William Scott, 1799. Sailing under the convoy of a Swedish frigate, instructed by its government to resist by force visitation and search by bellig- erent warships, six Swedish ships were encountered off the Eng- lish coast laden with naval stores for Mediterranean ports. Visit and search was refused and armed resistance threatened. By stratagem and by the display of superior force an engage- ment was avoided and the ships and the frigate were taken into a British port. Holding that the right of visiting and searching is incontestible ; that treaty provisions (America-Holland, 1782, Art. 10), may waive the right; but that a lawful right can not lawfully be resisted by force, the court held the merchantmen good. prizes. The frigate was not in the case. * * * "The penalty for the contravention of this right is the confiscation of the property so withheld from visitation and search" (307). To the contention that the intention to resist by force was never carried to act : " The intention gives way, so far as it does give way, only to a superior force * * * the delivery and ac- ceptance of such instructions and the sailing under them were sufficient to complete the act of hostility." 84 CHAPTER VII. [CONVOY.] Article 61. Neutral vessels under national convoy are exempt from search. The commmander of a convoy gives, in writing, at the re- quest of the commander of a belligerent warship, all information as to the character of the vessels and their cargoes, which could be ob- tained by search. [CONVOY.] Article 62. If the commander of the belligerent warship has reason to suspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions to him. In such a case it is for the commander of the convoy alone to investigate the matter. He must record the result of such investigation in a report, of which a copy is handed to the officer of the warship. K, in the opinion of the commander of the convoy, the facts shown in the report justify the capture of one or more vessels, the protection of the convoy must be withdrawn from such vessels. The provisions of this chapter depart from the customary terms of many of our treaties by giving inquisitorial powers to the belligerent commander. "It is agreed that the stipulations contained in the present treaty relative to the visiting and examining of a vessel shall apply only to those which sail without a convoy ; and when said vessels shall be under convoy the verbal declaration of the com- mander of the convoy, on his word of honor, that the vessels under his protection belong to the nation whose flag he carries, and, when bound to an enemy's port, that they have no contra- band goods on board, shall be sufficient. ' ' Treaty U. S. with Italy, February 26, 1871 , Art. XIX. Treaty U. S. with Mexico, 1831, Art. XXIV. Treaty U. S. with Bolivia, 1858, Art. XXIII. Treaty U. S. with Brazil, 1828, Art XXII. Treaty U. S. with Chili, 1832, Art. XX. Treaty U. S. with Guatemala, 1849, Art. XXII. 85 Section 1624 R. S. TJ. S. (enacted in 1862) provides : "Such punishment as a court-martial may adopt may be in- flicted up an person in the navy : ' ' Twelfth. Or, when attached to any vessel appointed as con- voy to any merchant or other vessels, fails diligently to perform his duty, or demands or exacts any compensation for his serv- ices, or maltreats the officers or crews of such merchant or other vessels." The chapter on convoy finds place in the Declaration of Lon- don, it is said, because of the insistence of the American con- ferees. 86 CHAPTER VIII. [RESISTANCE TO SEARCH.] Article 63. Forcible resistance to the legitimate exercise of the right of stoppage, search, and capture, involves in all cases the condemna- tion of the vessel. The cargo is liable to the same treatment as the cargo of an enemy vessel. Goods belonging to the master or owner of the vessel are treated as enemy goods. Under the English rule "an attempt to escape by flight merely, is not interpreted as a ground of seizure; but is ac- companied by further opposition it is regarded as a form of resistance." British Manual Prize Law, No. 146. But Gen. Ord. 492 (1898) seems contra. The Government of the United States (White Paper, No. 1, p. 40) admits to the British Government the full right of a bel- ligerent to visit and search on the high seas American vessels carrying American goods or other neutral vessels carrying American goods; and to detain them when there is sufficient evidence to justify a belief that contraband articles are in their cargoes ; but protests against the taking and detaining in Brit- ish ports of American ships and American cargoes for the pur- pose of searching generally for evidence of contraband or "upon presumptions created by special municipal enactments which are clearly at variance with international law and practice. ' ' The importance and scope of the right claimed by England to take neutral ships and neutral mail into her ports for visit and search is so great that it should be made the subject of an independent investigation. [a leading case.] The Nebeide, 9 Cranch. 388 (1815, Marshall, C. J., Story, J., dissenting) : Pinto, a native and citizen of Buenos Ayres, and a subject of the King of Spain, chartered the Nereide, a merchantman mounting ten guns and manned by sixteen men, for a voyage from London to Buenos Ayres and back to London, to sail with 87 the first convoy. A cargo belonging in part to Pinto and in part to other inhabitants of Buenos Ayres and in part to British subjects, was taken aboard, and the Nereide sailed under con- voy some time in November, 1813. Off Madeira she was separated from her convoy, was "after a vigorous but unsuccessful re- sistance" captured by an American privateer, and was brought into the port of New York, where both ship and cargo were con- demned, including the cargo belonging to Pinto and other own- ers resident in Buenos Ayres. The treaty between Spain and the United States stipulated that neutral bottoms should make neutral goods, but did not stipulate that enemy bottoms made enemy goods. Furthermore, it appeared that certain ordinances of the King of Spain would subject American property, under the facts of this case, to con- fiscation. In one of the most enlightened and logical opinions to be found in any law book, the Chief Justice declared as a natural principle of public law, and as a part of the original law of na- tions, notwithstanding the silence of the treaty and the pro- visions of the Spanish ordinances, that the goods of a friend found in the vessel of an enemy are to be restored to him. At page 420 reference is made to the opinion of the King of Prussia "that in future neutral bottoms would protect the goods of an enemy, and that neutral goods would be safe in an enemy bottom. ' ' CHAPTER IX. [COMPENSATION.] Article 64. If the capture of a vessel or of goods is not upheld by the prize court, or if the prize is released without any judgment being] given, the parties interested have the right to compensation, unless there were good reasons for capturing the vessel or goods. The practice in prize courts: The common law rules of evidence have no place in prize cases: They are essentially lex juris civilis, and heresay and belief may be admitted. The Olinde-Rodriques, 89 F. R. 105-108. The Kim, 1 Treh., 405. A foreign public vessel of a power with which we are at peace is exempt from the jurisdiction of our courts; but not so the prizes that she takes and brings to our waters. The Santisima Trinidad, 7 Wheat 283. Ship's Papees are: The register, The crew and passenger list. The log book. Bill of health, Manifest of cargo, Charter-party (if any). Invoices and Bills of Lading. Stockton's Code, Art. 23. 89 [FINAL PROVISIONS.] Article 65. The provisions of the present Declaration must be treated as a whole, and cannot be separated. [FINAL PROVISIONS.] Article 66. The Signatory Powers undertake to insure the mutual ob- servance of the rules contained in the present Declaration in any war in which all the belligerents are parties thereto. They will therefore issue the necessary instructions to their authorities and to their armed forces, and will take such measures as may be required in order to insure that it will be applied by their courts, and more particularly by their prize courts. [FINAL PROVISIONS.] Article 67. The present Declaration shall be ratified as soon as pos- sible. The ratifications shall be deposited in London. The first deposit of ratifications shall be recorded in a Protocol signed by the Representatives of the Powers taking part therein, and by His Britannic Majesty's Principal Secretary of State for Foreign Affairs. The subsequent deposits of ratifications shall be made by means of a written notification addressed to the British Government, and ac- companied by the instrument of ratification. A duly certified copy of the Protocol relating to the first deposit! of ratifications, and of the notifications mentioned in the preceding paragraph as well as of the instruments of ratification which accom- pany them, shall be immediately sent by the British Government, throtigh the diplomatic channel, to the Signatory Powers. The said Government shall, in the cases contemplated in the preceding para- graph, inform them at the same time of the date on which it received the notification. [FINAL PROVISIONS.] Article 68. The present Declaration shall take effect, in the case of the Powers which were parties to the first deposit of ratifications, sixty days after the date of the Protocol recording such deposit, and, in the case of the Powers which shall ratify subsequently, sixty days after the notification of their ratification shall have been received by the British Government. 90 [FINAL PROVISIONS.] Article 69. In the event of one of the Signatory Powers wishing to| denounce the present Declaration, such denunciation can only be made to take effect at the end of a period of twelve years, beginning sixty days after the first deposit of ratifications, and, after that time, at the end of successive periods of six years, of which the first will begin at the end of the period of twelve years. Such denunciation must be notified in writing, at least one year in advance, to the British Government, which shall inform all the other Powers. It will only operate in respect of the denouncing Power. [FINAL PROVISIONS.] Article 70. The Powers represented at the London Naval Conference attach particular importance to the general recognition of the rules which they have adopted, aaid therefore express the hope that the Powers which were not represented there will accede to the present Declaration. They request the British Government to invite them to do so. A Power which desires to accede shall notify its intention in writing to the British Government, and transmit simultaneously the act of accession, which will be deposited in the archives of the said Gov- ernment. The said Government shall forthwith transmit to all the other Powers a duly certified copy of the notification, together with the act of accession, amd communicate the date on which such notification was received. The accession takes effect sixty days after such date. In respect of all matters concerning this Declaration, acceding Powers shall be on the same footing as the Signatory Powers. [FINAL PROVISIONS.] Article 71. The present Declaration, which bears the date of the 26th February, 1909, may be signed in London up till the 30th June, 1909, by the Plenipotentiaries of the Powers represented at the Naval Con- ference. In faith whereof the Plenipotentiaries have signed the present Dec- laration, and have thereto affixed their seals. Done at London, the twenty-sixth day of February, one thousand nine hundred and nine, in a single original, which shall remain de- 91 posited in the archives of the British aovermnent, and of which duly- certified copies shall be sent through the diplomatic channel to the Powers represented at the Naval Conference. (Here follow the signatures.) List of signatures appended to the Declaration of FeTjruary 26, 1909, up to March 20, 1909.* For Germany : For the United States of America: O. H. Stockton. _ . . . „ Geobqe Gbafton Wilson. For Austria-Hungary : „ „ O. DUMBA. For France: „ L. Renault. For Great Britain : For the Netherlands : J. A. ROKLL. li. H. Rttyssbinaebs. ♦Notification subsequently given of the signatures of the declaration : Spain, Italy, Russia, Japan. The teansfobmation op merchantmen into warships at sea : Attention has been called to three questions which the Con- ference purposely avoided. Two of them have already been noted. The third is: The transformation of merchant vessels to vessels of war on the high seas. It would appear that as early as 1870 Prussia proposed to bring private vessels into service in time of war by a system of voluntary enrollment in the navy of private vessels with their officers and crew. France protested, but Great Britain interposed no objection. Other nations soon after followed: Eussia in 1877, Great Britain in 1887, and the United States in 1892. (By the Federal Act— 27 U. S. Stats, at Large, 28, Chap. 63, Sec. 4— it was provided that any steamship so registered might be taken and used as cruiser or transport upon payment of the fair actual value.) The practice was open to many abuses, and the Hague Con- ference of 1907 adopted a Convention in regulation thereof. See 40 Cyc, page 340. Prof. George Grafton Wilson. When the Russo-Japanese War broke out vessels of the Russian Voluntary Fleet were in the Black Sea. As merchantmen, but not as vessels of war, they might freely pass through the Bosphorus and the Dardanelles. Accordingly, one of them, the Peterburg, after passing the Suez Canal, also in the character of a merchant vessel, was converted into a warship in the Red 92 Sea. Concealed guns were mounted, and under the Russian naval ensign she began to visit and search neutral vessels, among others the Malacca, a steamship of the P. & 0. Line from Lon- don to China with military supplies of the British Government intended for the English dock yards at Hong Kong and Singa- pore. At the protest of the English Government she was re- leased. Immediately upon the beginning of hostilities in August, 1914, the British Government advised the United States that Ger- many favored the policy of converting merchant vessels into armed ships on the high seas, and that it was probable that at- tempts would be made to equip and dispatch merchantmen for such purposes from ports of the United States. Attention was therefore called to treaties and conventions to which the United States was a party, and the United States was warned that she would be held responsible for damages to British trade or ship- ping or to British interests generally which might be occasioned by such vessels having been equipped at or departing from United States ports (British note of Aug. 4, 1914). To which the United States in reply called attention to the difference of opinion on this question of the Powers at the Second Hague Conference, and takes the matter under advisement. Stowell and Munro : War : 478 et seq. A Fable : Once upon a time there lived in a village by the sea a man with his wife and his two sons. At his death his estate was divided share and share alike among the members of his family. With his share the eldest son bought and stocked a farm on the bay ; the other son with his share bought a trading schooner which he kept at anchor in sight of his brother's farm; while the mother invested her share in personal effects which she kept in her possession till her death when they were divided amicably between her sons. The eldest son took his share to his farm and the other son took his share to his trading schooner. But a war was raging and the next day the village was seized by the army of the enemy and the port by the navy of the enemy. The farmer's farmstead was respected: he was not molested and everything the army took it paid for; but the sailor's schooner was seized and condemned both as to ship and cargo because they were good prize of war : Enemy goods in an enemy ship. ^ When the war was over the landsman was no worse off than before but the sailor was stripped of everything. This was all done under the approval of the law of nations as administered by the most civilized country of the Avorld.