THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW UW UBRARY OF mmmffmt Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. A succinct statement of leading principles In black-letter type. 2. A more extended commentary, elucidating the principles. 3. Notes and authorities. Published in regular octavo form, and sold at the uniform price of $3.75 per volume, including delivery. Bound in Standard Law Buckram. Barrows on Negligence. Black on Construction and Interpretation of Laws (2d Ed.). Black on Constitutional 1-aw (3d Ed.). Black on Judicial Precedents. Burdick on Real Property. ^ Chapin on Torts. Childs on Suretyship and Guaranty. Clark on Contracts (od Ed.). Clark on Corporations (3d Ed.). Clark on Criminal Law (3d Ed.). Clark on Criminal Procedure (L'd Ed.). Cooley on Municipal Corporations. Costigan on American Mining Law. Croswell on Executors and Administrators. Dobie on Bailments and Carriers. Eaton on Equity. Gardner on "Wills (2d Ed.). Gilmore on Partnership. Hale on Damages (2d Ed.). Hopkins on Real Property. Hughes on Admiralty. Hughes on Federal Jurisdiction and Procedure (2d Ed.). Jaggard on Torts. 2 Vols. McKelvey on Evidence (2d Ed.). Norton on Bills and Notes (4th Ed.). Shipman on Common-Law Pleading (2d Ed.). Shipman on Equity Pleading. Smith's Elementar>' Law. Tiffany on Agency. Tiffany on Banks and Banking. Tiffany on Persons and Domestic Relations (2d Ed.). Tiffany on Sales (2d Ed.). Vance on Insurance. Wilson on International Law. In preparation: Handbooks of the law on other subjects to be an- nounced later. Published and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. Note: For a full description of the different books see cata- logue at the end of this volume. C11517— b .^v HANDBOO j^v OF INTERNATIONAL LAW BY GEORGE GRAFTON WILSON Professor of International Law in Harvard University. Lecturer on International Law in Brown University and in the United States Naval War College, American Delegate Plenipotentiary to the International Naval Conference, Associe de rinstitut de Droit International ST. PAUL, MINN. WEST PUBLISHING COMPANY 1910 OOPTBIGHT, 1910 BY WEST PUBLISHING CO. (Wlls.Int.L.) PREFACE The calling of the Peace Conference which assembled at The Hague in 1899 marked an epoch in International Law. The work of this Conference has been amplified and extended in many directions by the Conference for the Revision of the Geneva Convention in 1906, by the Second Hague Peace Con- ference in 1907, and by the International Naval Conference of 1908-1909. Thus, after nearly three hundred years from the founda- tions laid by Grotius, "the father of International Law," in 1625, there rises a worthy structure and in a single decade the advance made in centuries is surpassed. Where earlier writ- ers referred to philosophical or religious sanctions to fortify their expression of hope that justice might prevail among the nations, the writers of the present day refer to the sanction of international conventions embodying the realization of these hopes. Hubner, a century and a half ago, suggested an international prize court ; in 1907 a convention for establish- ing such a court was drawn up, and is a typical example of the modern realization of the hopes of the early writers. Many of the matters formerly receiving much attention in texts on International Law are now mainly of historical inter- est. New problems have arisen. The states of the world have been drawn nearer through improved means of trans- portation and communication. The security of trade routes is demanded. New means of transportation and communica- tion have made necessary a consideration of rights of aerial domain. Minor political unities have acquired status. Spheres of influence receive attention. Economic, ethnic, and other unities have demanded a measure of recognition. The indi- vidual has gained a new place. "No longer does strange air make a man unfree." The treaties of the early part of the nineteenth century re- lated mainly to peace, amity, boundaries, navigation, and com- (y) Vi PKEFACE. mercc. The treaties of recent years regulate trade-marks, copyrights, postal service, naturalization, extradition, arbitra- tion, wireless telegraphy, condominium, leased territory, and other matters showing the closer interdependence and changed relations of modern states. It is the aim of this Handbook of International Law to set forth as far as space permits the historical development of the principles of international law. Owing to the numerous and recent modifications of earlier views, particular attention is also given to those principles as they are at present inter- preted. Law in international relations is more and more tak- ing the place of war, and war itself, on land and more recently on the sea. has been brought under law. Diplomatic negotia- tion has gained in importance and accordingly has been given a more extended treatment. As far as possible, the texts of documents, treaties, and cases have been inserted, rather than lengthy and perchance misleading descriptions of their con- tents or nature, and late precedents and illustrations have been freely used. The appendices contain certain of the most im- portant international documents. The author desires particularly to testify to the great as- sistance which he has received from that unrivaled source- book for the precedents and practice of the United States, the International Law Digest of Professof John Bassett Moore. The works of text-writers and other valuable books to which most frequent reference has been made are mentioned in the bibliography, and the author acknowledges his indebtedness to these and to many others mentioned in the footnotes. G. G. W. TABLE OF CONTENTS INTRODUCTION. INTERNATIONAL LAW. Section Page 1. Definition of Public International Law 8-6 2. Place of "Private International Law" 6 3. Development of International Law 7-9 4. Sources of International Law 9-14 5. Force of International Law 15-17 Part I PERSONS IN INTERNATIONAL LAW CHAPTER I. PERSONS IN INTERNATIONAL LAW. 6. Status 21 7. States in International Law 22 8. Definition of State 22-24 9. Acquisition of International Status 24-25 10. Recognition of International Status 26-31 11. Persons Having Limited Status 31 12. States Outside the Family of Nations 32 13. Neutralized States 32-33 14. Members of Political Unions 33-35 15. Protected States 35-39 16. Belligerents 39 17. Recognition of Belligerency 40— l^i 18. Insurgents 43^9 19. Loss or Modification of Status 49-52 Wils.Int.L. (vii) Vlll TABLE OF CONTENTS. Part II GENERAL RIGHTS AND OBLIGATIONS CHAPTER II. EXISTENCE, INDEPENDENCE AND EQUALITY. Section Page 20. Right Of Existence 55 21. Right of Self-Preservation 55-56 22. Right of Independence 56-57 23. Duty of Noninten-ention 57-65 24. Policy of Intervention 66-73 25. Right of Equality 73-75 CHAPTER III. PROPERTY AND DOMAIN. 26. Property 76-78 27. Domain 78-79 28. Acquisition of Territorial Domain 79-85 29. Maritime and Fluvial Domain 85-87 30. Aerial Domain 87-90 CHAPTER IV. JURISDICTION. 31. Jurisdiction 91-92 32. Jurisdiction over Territory and Property— General .. . 92-93 33. Joint Jurisdiction 93-95 34. Leased Territory 95-97 35. Maritime and Fluvial Jurisdiction — Marginal Seas... 97-99 36. Sti-aits 99-100 37. Gulfs and Bays 100-103 38. Inland Seas and Lakes 103-105 39. Rivers 105-107 40. Navigation 108-115 41. Fisheries 115-117 42. Vessels 117-120 TABLE OF CONTENTS. IX Section Page 43. A6rlal JurlBdiction 120-124 44. Jurisdiction over Persons — Nationals 125 45. Acquisition of Nationality 126-135 46. Expatriation 135-136 47. Protection of Nationals 136-143 48. Aliens 143-145 49. Extradition 145-147 50. Exemptions from Jurisdiction 147-150 51. Extraterritorial Jurisdiction 151-152 52. Servitudes 153-154 Part III INTERCOURSE OF STATES CHAPTER V. DIPLOMATIC RELATIONS. 53. The Head of the State in International Relations 157-158 54. Department of Foreign Affairs 158-159 55. Diplomatic Agents 159-162 56. Appointment 162-164 57. The Right of Legation 164-166 58. Suite of Diplomat 166 59. Credentials, etc., of Diplomat 166-168 60. Commencement of Mission 168-169 , 61. Privileges and Prerogatives of Diplomat 169-176 62. Diplomatic Functions 176-178 63. Termination of Diplomatic Mission 178-180 CHAPTER VI. CONSULAR AND OTHER RELATIONS. 64. Consuls 181-182 65. Functions of Consular Officers 182-184 66. Appointment and Reception of Consuls 184^186 67. Termination of Consular Office 186-187 68. Immunities and Privileges of Consular Officers 187-190 69. Other State Agents 190 TABLE OF CONTENTS. CHAPTER VII. TREATIES AND OTHER INTERNATIONAL AGREEMENTS. Section Pa(?e 70. Treaty Defined 191 71. Other Agreements between States 192-194 y 72. E}ssentials of a Valid Treaty 194-195 "^ 73. Form of the CJontract 195-197 74. Ratification 197-199 75. Interpretation 199-202 76. Most Favored Nation Clause 202-205 77. Treaties of Guaranty 205-207 78. Operation of a Treaty 207-209 79. Termination 209-212 SO. Continuation 212-213 Part IV INTERNATIONAL DIFFERENCES CHAPTER VIII. AMICABLE MEANS OF SETTLEMENT OF INTERNATIONAL DIFFERENCES. 81. Nature of International Differences 217 82. Negotiation 218 83. Good Offices and Mediation 218-220 84. Commissions of Inquiry 220-221 85. Arbitration 221-226 86. Award 227-22S CHAPTER IX. NON-AMICABLE MEASURES OF REDRESS SHORT OF WAIt. 87. Non-Amicable Measures of Redress 229 88. Breaking of Diplomatic Relations 229-230 89. Retorsion 230-231 90. Reprisals 231-232 91. Embargo 232-233 92. Non-Intercourse 233 93. Display or Restricted Use of Force 233-234 94. Pacific Blockade 235-237 TABLE OF CONTENTS. XI PartV WAR CHAPTER X. NATURE AND COMMENCEMENT. Section Page 95. War Defined 241-24-' 96. Kinds of War 24.3-244 97. Object of War 244-24.") 98. Commencement 24.5-24B 99. Declaration 246-248 100. Date of Commencement 248-249 CHAPTER XI. AREA AND GENERAL EFFECT OF BELLIGERENT OPERA- TIONS. 101. Area 250 102. General Effect 250-253 CHAPTER XII. RIGHTS AND OBLIGATIONS DURING WAR. 103. Obligations of Belligerents 254-255 104. Neutral Duty of Abstention 256-258 105. Neutral Duty of Prevention 258-262 106. Neutral Obligation of Toleration 262-263 107 Neutral Duty of Regulation 263-270 108. Civil Rights and Remedies During War 270-272 CHAPTER XIII. PERSONS DURING WAR. 109. Pei'sons within Belligerent Jurisdiction 273 110. Combatants and Noncombatants 273-276 111. Neutral Individuals 277 XU TABLE OF CONTENTS. CHAPTER XIV. PROPERTY ON LAND. Section Page 112. Public Property During War — Immovable Public Prop- erty 278-279 113. Movable Public Pi-operty 279-281 114. Property of Municipalities and Institutions 281 115. Immovable Private Property 281-282 116. Movable Property of Military Use 282-283 117. Private Property in Enemy Jurisdiction 283-284 118. Booty : 284 CHAPTER XV. PROPERTY ON THE WATER. 119. Public Property of Belligerents on the Water— Vessels 285-286 120. Goods , 286 121. Private Property of Belligerents on the Water — Vessels 286-287 122. Vessels Exempt by Senice 287-288 123. Vessels Exempt by Occupation 288-289 124. Vessels Exempt, by Delai de Faveur 289-290 125. Goods in General 290-295 126. Means of Telegraphic Communication 296-298 CHAPTER XVI. MARITIME CAPTURE. 127. Maritime Capture 299-300 128. Title to Prize 300 129. Treatment of Prize— Conducting to Port 300-302 130. Release 302-303 131. Appropriation and Destruction 304-308 132. Prize Money and Bounty 309-310 133. Privateers 310-312 134. Volunteer, Auxiliary, or Subsidized Vessels 312-316 CHAPTER XVII. RULES OF WAR. 135. Regulation of Belligerent Action 317-310 136. Prohibited Means 319-322 TABLE OF CONTENTS. XIU Section Page 137. Prohibited Methods 322-323 138. Special Regulations— Bombardment 323-324 139. Submarine Mines and Torpedoes 324-326 140. Discharge of Projectiles and Explosives from Bal- loons 326-327 141. Spies 327-328 CHAPTER XVIII. MILITARY OCCUPATION AND GOVERNMENT. 142. Military Occupation 329^^331 143. Military Government 331-334 144. Exercise of Military Authority in Occupied Territory 334-338 145. Martial Law 339-340 146. Military Law, Courts-Martial, etc 340-341 147. Cessation of Military Control 341-343 CHAPTER XIX. PRISONERS. DISABLED, AND SHIPWRECKED. 148. Prisoners of War 344-345 149. Treatment of Prisoners of War 345-348 150. Release of Prisoners 348-353 151. Sick, Wounded, and Shipwrecked 353-356 CHAPTER XX. NON-HOSTILE RELATIONS BETWEEN BELLIGERENTS. 152. Non-Hostile Relations between Belligerent Forces.... 3.57 153. Flags of Truce 357-358 154. Capitulations 358-359 155. Armistices 360 156. Operation of Armistices 361-362 157. Cartels 362-3^3 158. Safe-conducts and Passports 364 159. Safeguards 364 160. Licenses to Trade 365 XIT TABLE OF CONTENTS. CHAPTER XXI. TERMINATION OF WAR. Sfction Fag* 161. Methods of Termination 366 162. Conquest 360-368 163. Effect of Conquest 36S-372 164. Cessation of Hostilities 373-374 165. Effect of Cessation of Hostilities 374-375 166. Treaty of Peace 375 167. Scope of a Treaty of Peace 376-377 168. Effect of a Treaty of Peace 377-379 169. Proclamation 379 170. Postliminium 379-380 171. Amnesty 881 Part VI RELATION OF NEUTRALS CHAPTER XXII. NATURE OF NEUTRALITY. 172. Neutrality Defined 385-386 173. Development 386-391 1 74. Neutralization 391-393 175. Declaration 393-394 176. Divisions 395-396 CHAPTER XXIII. VISIT AND SEARCH. 177. Visit and Search 397 178. The Exercise of the Right 397-399 179. Method of Visit and Search 399-401 180. Exemption from and Limitation of Risbt 401-402 181. Convoy 402-403 182. Grounds of Capture 404-405 183. Transfer of Property 40(>-409 184. Treatment of Captured Vessels 409-412 185. Destruction or Appropriation of Property at Sea 412—417 TABLE OF CONTENTS. XT CHAPTER XXIV, CONTRABAND. Section Page 186. Contraband Defined 418-420 187. Contraband Classified 420-430 188. Liability to Seizure 430^32 189. Penalty for Carriage 432-437 190. Pre-emption 437-438 CHAPTER XXV. BLOCKADE. 19L Blockade Defined 439-440 192. Places That may be Blockaded 440^42 193. Establishment of a Blockade 442-443 194. Notification 444-446 195. Vessels in Blockaded Port 446-447 196. Maintenance 447-449 197. Termination 449-451 198. Violation 451-452 199. Penalty for Violation 453 200. Period of Liability for Violation 454r-458 CHAPTER XXVI. CONTINUOUS VOYAGE. 201. Continuous Voyage 459-468 CHAPTER XXVII. UNNEUTRAL SERVICE. 202. Unneutral Service Defined 469^70 203. Scope 470-474 204. Penalty 474-476 CHAPTER XXVIII. PRIZE. 205. Prize 477-^78 206. National Prize Court 478-480 207. International Prize Court 480-4S2 XVi TABLE OF CONTENTS. APPENDICES APPENDIX I. Pag* Declaration of Paris, April 16, 1856 487 APPENDIX II. Instructions for the Government of Armies of the United States In the Field, April 24, 1863 488 APPENDIX III. Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, July 6, 1906 508 APPENDIX IV. Hague Conventions of 1907. Final Act of the Second International Peace Conference.. 515 Convention for the Pacific Settlement of International Dis- putes 519 Convention Respecting the Laws and Customs of War on Land 53o Convention Respecting the Rights and Duties of Neutral Povp- ers and Persons in Case of War on Land 546 Convention for the Adaptation to Naval War of the Prin- ciples of the Geneva Convention 549 Convention Relative to the Creation of an International Prize Court 554 Convention Concerning the Rights and Duties of Neutral Powers in Naval War 563 Draft Convention Relative to the Creation of a Court of Arbitral Justice 568 APPENDIX V. Declaration of London, February 26, 1909 574 BIBLIOGRAPHY For convenience of reference a brief bibliography is Inserted. An extended bibliography may be found in 1 Moore, International Law Digest, pp. Lx-xxx. Alvarez, A. Droit International Americain, 1909. American Journal of International Law, 1907 — Annuaire de l'Institut de Droit International, 1877 — Ariga, N. La Guerre Sino-Japonaise au point de vue du droit international, 1896. La Guerre Russo-Japonaise au point de vue continental et le droit international, 1908. Atherley-Jones, L. a. Commerce in War, 1907. Bello, a. Principios de Derecho Internacional, 2 vols., 1883. Bluntschli, J. C. Le droit international (Lardy), 1895. Bonfils. Droit International Public (Fauchille), 1898. Bordwell, p. Law of War, 1908. Butler, C. H. Treaty-Making Power of the United States, 2 vols., 1902. Bynkershoek, C. v. De Foro Legatorium, 1721. Ouestionum Juris Public, 1737. Calvo, Ch. Droit International, 5e ed., 6 vols., 1896. CoBBETT, Pitt. Leading Cases and Opinions on International Law, 3d ed., 1909. Dahlgren, J. A. Maritime International Law, 1877. Davis, G. B. The Elements of International Law, 3d ed., 1908. Despagnet. Droit International Public, 3e ed., 1905. Deuxieme Conference Internationale de la Paix, 3 vols., The Hague, 1907. Duer, J. Law and Practice of Maritime Insurance, 2 vols., 1845-46. Fauchille, P. Du Blocus Maritime, 1882. Ferguson, J. H. Manual of International Law, 2 vols., 1884. WiLS.lNT.L— b (xvii) Xvili BIBLIOGRAPHY. Field, D. D. Outline of an International Code, 1876. FiORE, P. Noveau Droit International Public, Trad. Antoine, 3 vols., 1885-86. FocLix, J. J. G. Traite du Droit International Prive, 2 vols., 1866. Foster, J. W. A Century of American Diplomacy (1776- 1876), 1901. American Diplomacy in the Orient, 1903. The Practice of Diplomacy, 1906. Gessxer, L. Neutres sur Mer, 1875. Glass, H. Marine International Law, 1884. Glexn, E. F. Hand Book of International Law, 1895. Grotius, H. De Jure Belli ac Pacis, 3 vols., Whewell, 1853. Hall, W. E. International Law, 5th ed., 1904 ; 6th ed., 1909. Halleck, H. W. Elements of International Law, 4th ed., 2 vols. Baker, 1908. Heffter, a. G. Das Europiiische V51kerrecht der Gegen- wart, 8th ed., Gefifcken, 1888. Hershey, a. S. International Law and Diplomacy of the Russo-Japanese War, 1906. Hertslet, E. Map of Europe by Treaty, 1815-1891, 4 vols., 1875-1891. HiGGixs, A. P. The Hague Peace Conferences, 1909. HoLLAXD, T. E. British Admiralty Manual of the Law of Prize, 1888. Studies in International Law, 1898. Letters on War and Neutrality, 1909. HoLLS, F. W. The Peace Conference at The Hague, 1900. HosACK, J. Rise and Growth of the Law of Nations, 1882. Hull, W. I. The Two Hague Conferences, 1908. Interxational Law Situations axd Discussioxs, U. S. Naval War College, 1901— Jourxal du Droit Interxational Prive et de la Juris- prudence COMPAREE, 1871 — Kent, J. Commentaries on American Law, 14th ed. Commentary on International Law, Abdy, 1878. Kleen, R. Lois et Usages de la Neutralite, 2 vols., 1896- 1900. BIBLIOGRAPHY. XIX Lawrence, T. J. Principles of International Law, 2d ed., 1900; 3d ed. 1905. War and Neutrality in the Far East, 2d ed., 1904. Lehr, E. Manuel des Agents Diplomatiques et Consulaires, 1888. Magoon, C. E. Law of Civil Government under Military Occupation, 1902. Maine, H. International Law, 2d ed., 1894. Martens, Chas. de. Le Guide Diplomatique, 1866. Martens, F. de. Traite de Droit International, 3 vols., 1883- 1887. MaurEL, M. De la Declaration de Guerre, 1907. Maurice, J. F. Hostilities without Declaration of War (1700-1870), 1883. Merignhac, a. Traite de Droit International Public, 2 vols., 1905-1907. Moore, J. B. Extradition and Interstate Rendition, 2 vols., 1891. International Arbitration, 6 vols., 1898. American Diplomacy, Its Spirit and Achievements, 1905. A Digest of International Law, 8 vols., 1906. Nys, E. Le Droit International, 3 vols., 1904. Les Origines du Droit International, 1894. Oppenheim, L. International Law, 2 vols., 1905-06. Ortolan, T. Diplomatie de la Mer, 4th ed., 2 vols., 1864. Owen, D. Declaration of War, 1889. Perels, F. Manuel de Droit Maritime International par Arendt, 1884. Ofifentliche Seerechts der Gegenwart, 2te aufl., 1903. Phillimore, R. International Law, 3d ed., 1889. Pille:t, a. Les Lois actuelles de la Guerre, 1901. Piggott, F. Nationality, 1907. Exterritoriality, 2d ed., 1907. PoMEROY, J. N. International Law in Times of Peace, 1886. Pradier-Foderb, p. Traite de Droit International Public Europeen et Americain, 8 vols., 1885-1906. Cours de Droit Diplomatique, 2 vols., 2d ed., 1899. PuEendorF, S. Law of Nature and Nations, English trans., 1703. XX BIBLIOGRAPHY. ReddawaYj W. F. The Monroe Doctrine. Revue de Droit Internatioxae et de Legislation Com- PAREE, 1869— Revue Generale de Droit International Public, 189J: — RiviER, A. Principes du Droit des Gens, 2 vols., 1896. RoscoE, E. S. English Prize Cases, 2 vols., 1905. Schuyler, E. American Diplomacy, 1886. Scott, J. B. Cases on International Law, 1902. Texts of the Peace Conferences at The Hague 1899 and 1907-1908. Smith, F. E., and Sibley, N. W. International Law during the Russo-Japanese War, 1905. Snow, F. Cases and Opinions on International Law, 1893. American Diplomacy, 1894. International Law, Naval War College, 2d ed., prepared by Stockton, 1898. Story, J. Commentaries on the Conflict of Laws, 5th ed. Stowell, E. C. Consular Cases and Opinions, 1909. Takahashi, S. Cases on International Law, Chino- Japanese, 1896. International Law Applied to the Russo-Japanese War, 1908. Taylor, H. International Public Law, 1901. Treaties and Conventions betv/een the United States AND Other Powers, 1776-1887. Treaties in Force, Compilation of United States. 1904. Tucker, G. F. The Monroe Doctrine. Twiss, Sir T. The Law of Nations, 1875-1884. Ullmann, G. Volkerrecht, 1898. Van Dyne, F. Citizenship of the United States, 1904. Law of Naturalization of the United States, 1907. Vattel, E. Law of Nations, Trans. Ingraham, 1876. Walker, T. A. Science of International Law, 1893. Manual of Public International Law, 1895. History of the Law of Nations, vol. 1, 1899. Westlake, J. Chapters on Principles of International Law, 1894. International Law, 2 vols., 1904-07. BIBLIOGRAPHY. XXI Wharton, F. Digest of International Law, 3 vols., 2d ed., 1887. Treaties on the Conflict of Laws, 1881. Diplomatic Correspondence of the American Revolution, 6 vols., 1880. Wheaton, H. History of the Law of Nations, 1845. Elements of International Law, 1836. Edited by Lawrence, W. B., 1863. Edited by Dana, R. H., 1865. Edited by Atlay, 4th ed., 1904. Wilson, G. G., and Tucker, G. F. International Law, 5th ed., 1910. WooLSEY, T. D. International Law, 6th ed., 1891. ZoRN, A. Das Krieg^srecht zu Lande, 1906. TABLE OF ABBREVIATIONS The Reports and Statutes are Cited bt Their Familiab Abbre- viations. A. J. I American Journal of International Law, Hertslet Hertslet's Map of Europe by Treaty. Moore Aloore's Digest of International Law. Wils.Int.L, (xxiii) t INTRODUCTION WILS.INT.L. (1)« HANDBOOK OF INTERNATIONAL LAW INTRODUCTION. INTERNATIONAL LAW. 1. Definition of Public International Law. 2. Place of "International Private Law." 3. Development of International Law. 4. Sources of International Law. 5. Force of International Law. DEFINITION OF PUBLIC INTERNATIONAL LAW^. 1. Public international law is tlie body of generally accepted principles governing relations among states, i International law is a growth and is growing. It early be- came evident that if states were to exist in proximity there must be some standards which should regulate their conduct toward one another. The Egyptian states recognized this in ancient times and made treaties with their neighbors. Practice and theory contributed to the establishment of principles. These principles were from time to time added to, expanded, and otherwise modified. Writers attempted to find a basis for certain rules of state action in the laws of nature, in divine law, in Roman law, and elsewhere. Each additional sanction made international law more potent. As Professor Moore 1 Other definitions are as follows: International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing WiLS.lNT.L. (3) 4 INTERNATIONAL LAW. (§ 1 well says : "It is thus apparent that from the beginning the science in question denoted something more than the positive legislation of independent states, and the term 'international law,' which has in recent times so generally superseded the earlier titles, serves to emphasize this fact. It denotes a body of obligations which is, in a sense, independent of and su- perior to such legislation." ^ A recog'nition of the principles of international law is re- garded as fundamental to the existence of a state in the mod- ern sense. In 1T96 Justice Wilson said : "When the United States de- clared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement." ' In 1824 an act of the United States Congress in regard to land definitely provided for a court trial "to settle and deter- mine the question of the validity of title according to the law of nations, the stipulations of any treaty," etc.* Referring to among independent nations, with snch definitions and modifications as may be established by general consent. AVheat. Int. Law, D, 23. The aggregate of the rules which Christian states acknowledge as obligatory in their relations to each other, and to each other's subjects. The rules, also, which they unite, as in treaties, to impose on their subjects, respectively, for the treatment of one another, are included here, as being in the end rules of action for the states themselves. Woolsey, Int. Law (6th Ed.) 4. The rules of conduct regulating the intercourse of states, i iial- leck. Int. Law. 41. International law is the collection of recognized facts and prin- ciples which unite different states into a juridical and humanitarian association, and which, in addition, assures to the citizens of the several states common protection in the enjoyment of the general rights pertaining to them as human beings. Bluntschli, Droit Inter- national, art. 1. International law consists in certain rules of conduct which mod- ern civilized states regard as being binding on them in their re- lations with one another, with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country, and which they also regard as being enforceable by ap- X»ropriate means in case of infringement. Hall, Int. Law (5th Ed.) 1. 2 1 ^loore, 2. 3 Ware, Adm. of Jones, v. Hylton et al., 3 Dall. 190, 2S1, 1 L Ed. r.(>s. 4 4 Stat. 53, c. 173, § 2. § 1) DEFINITION OF PUBLIC INTERNATIONAL LAW. 5 such acts the Supreme Court in 1832 interpreted "according to the law of nations" as according to "the usage of civilized nations." ° In 1815 Chief Justice ]\larshall stated the position of inter- national law in an opinion which has been often cited : "The law of nations is the great source from which we de- rive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part un- written and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice; but, as these principles will be differently understood by different nations under different circumstances, we con- sider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded upon a law com- mon to every country, will be received, pot as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." ^ In 1894 Justice Gray said in the case of Hilton v. Guyot: "International law in its widest and most comprehensive sense — including not only questions of right between nations, governed by what has been appropriately called the law of nations, but also questions arising under what is usually called private international law, or the conflict of laws, and concern- ing the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation — is a part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination." ^ In the case of The Paquete Habana, decided in 1900, the B United States v. De la Maza Arredondo et al., 6 iPet. 691, 712, 8 L. Ed. 547. ., .■ 6 Thirty Hogsheads of Sugar v. Boyle,, & Craneh, 191, 198, 3 L. Ed. 701. C.. 7 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95. 6 INTERNATIONAL LAW. (§ 2 United States Supreme Court based its decision exempting coast fishing vessels from capture in time of war on "an an- cient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law." " PLACE OF "INTERNATIONAL PRIVATE LAW." 2. "Private international la^p" or "international private la^" is tlie term sometimes applied to the body of rules wliicli regulate private rights involving the conflicting jurisdiction of different states. The proper title for the branch of laxr is "Conflict of Laws." This body of riiles is properly a part of municipal laiv.s In the case of Hilton v, Guyot, in 1894, Justice Gray said: "In case of conflict of laws, comity must determine the ef- fect which will be given to the expression of the will of a foreign state. 'Comity,' in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will on the other. But it is the recogfnition which one nation allows within its territory to the legislative, execu- tive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the pro- tection of its laws." ^° 8 The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320. » Private international law is not, however, a part of International law proper. The latter, as has been seen, is concerned with the relations of states ; in so far as individuals are affected, they are affected only as members of their states. Private international law, on the other hand, is merely a subdivision of national law. It derives its force from the sovereignty of the states administering it; it affects only the relations of individuals as such; and it con- sists in the rules by which courts determine within what national jurisdiction a case equitably falls, or by what national law it is just that it shall be decided. Hall, Int. Law (5th Ed.) 52. 10 159 U. S. 113, 10 Sup. Ct. 139, 40 L. Ed. 95. § 3) DEVELOPMENT OF INTERNATIONAL, LAW. DEVELOPMENT OF INTERNATIONAL LAW. 3. The body of rules noi7 knoivn as international la^v lias been of slotir groMrtb, and bas particularly developed since tbe early days of tbe sixteenth century. Some of the practices which became customary, and sub- sequently were recognized as rules of international law, ap- peared very early. The ancient records of the East show cer- tain usually observed rules of intercourse between states. A degree of uniformity of diplomatic procedure was developed in Greece. The spread of commerce in the Mediterranean Sea made necessary commercial comity. This gradually hard- ened into law. There appear remains of the early maritime law of Rhodes in Justinian's Digest.^^ Rome at first contributed rather to the body of interna- tional private law than to the field of public international law. Rome, however, in the jus feciale prescribed certain rules for the declaration of war and the negotiating of treaties. The conception of jus gentium varied with the development of European civilization and was differently interpreted by dif- ferent writers. According to Justinian, "that law which nat- ural reason has established among all men, that which is especially regarded by all, is called 'jus gentium.' " ^^ The early idea at Rome seemed to be that jus gentium was the body of law in accord with the general reason of mankind. As the modern conception of state did not exist, it is evident that the idea of jus gentium was not used in the sense of the modern term, "international law," but rather in the sense of a body of law common to all mankind, because necessary for ordinary intercourse of man with man as regards selling, let- ting, hiring, partnerships, etc. The term "jus naturale" was a philosophical concept, held by the Greek philosophers, which was popularized at Rome and came to be regarded as the foundation of all true law. Jus naturale was the law in harmony with the inherent forces 11 Digest of Justinian, 14, 2. 12 Institutes of Justinian, I, 2, 1. 8 INTKKNATIONAL LAW. (§ 3 of the universe. ^^ Jus naturale was frequently identified with jus gentium. The idea of a law of nature strongly influenced early writ- ers in the field of what was later called "international law." and the titles of early treatises often contain the term "jus naturale," or "jus gentium," or even both.^* Such writers as Victoria (1480-1546), Brun (1491-15G3), Belli (1502-1575). Vasqucz (1509-1566), Ayala (1548-1584), Saurez (1548-1617). Gentilis (1552-1608), usually look to some such broad philosophical basis as a support for their arguments.^-'' Grotius (1583-1645). whose great contribution to interna- tional law, "De Jure Belli ac Pacis," in 1625. marks a new epoch in the development of the science, recognizes the weight of jus naturale. He defines it as "the dictate of right reason, indicating that any act, from its agreement or disagreement with rational nature, has in it moral turpitude or moral neces- sity, and consequently such act is either forbidden or enjoined by God, the author of nature." ^^ The emphasis upon the idea of natural law led to the de- velopment of a school of "Naturalists." These were opposed by the "Positivists," basing their ideas of international law on customs and treaties. Between the extremes were those who recognized the value of both theory and precedent, who regarded themselves as exponents of the doctrines of Grotius. Not merely the thought and philosophy of the period before the middle of the sixteenth century, but the course of events also, had taught men some lessens. "The world empire of Rome showed a common political sovereignty by which the acts of remote territories might be regulated ; the world re- ligion of the Church of the middle period added the idea of a common bond of humanity. Both of these conceptions im- 13 Id. I, 2, 2. 14 Fufendorf. De Jure Naturre et Gentium. 1G72. 15 Brun. De Legationibus, 1548; Belli, De re Militari, 15G3 ; Vas- quez. Illustrium Controversarium, 15G4; Ayala, De .Jure et Otfieiis Bellicis et Dlsciplina Militari, 15S2; Suarez, Tractatus de Legibu.s ac Deo Legislatore, 1012; Gentilis, De Legationibus, 158-5, De Jure Belli. 1588. 10 De Jure Belli ac Pacis. bk. I, c. 1, § 10. § 4) SOURCES OF INTERNATIONAL LAW. 9 bued men's minds with the possibility of a unity, but a unity in which all other powers should be subordinate to a single power, and not the unity of several sovereign powers acting on established principles. The feudal system emphasized the territorial basis of sovereignty. The Crusades gave to the Christian peoples of Europe a knowledge and tolerance of one another which the honor of the code of chivalry made more beneficent, while the growth of the free cities opposed the dominance of classes, feudal or religious. The fluctuations and uncertainties in theory and practice of international inter- course, both in peace and war, made men ready to hear the voice of Grotius." ^^ From the Peace of Westphalia, 1648, the modern idea of the state and of international law became more and more de- veloped. Zouch (1590-1660), Professor of Roman Law at Oxford, distinguished between "jus gentium" and "jus inter gentes," the Law of Nations. Bentham (1748-1832) proposed the term "International Law," which is now generally ac- cepted. SOURCES OF INTERNATIONAL LAW. 4. (a) In the narrow sense the chief sources of international laiv are: (1) Custom. (2) Treaties and other interstate agreements. (3) The decisions of international tribunals. (b) In a broader sense there are also included in the sources of international law: (4) Decisions of national tribunals, such as prize courts. (5) Opinions of text-w^riters. (6) Diplomatic papers. (1) States in their relations to^ one another often follow customs which have never been formally enacted into law. These customs are tacitly accepted as binding upon states with 17 Wilson & Tucker, Int. Law (5th Ed.) 18. For the general development of international law as Illustrated by the early writer's, see Les Fondateurs du Droit International, Paris, 1904. 10 INTERNATIONAL LAW. (§ 4 the force of law.'^' Sometimes a custom or usage looks back to what a single state has found good in some line of activity in which it is particularly engaged. As was said in the case of The Scotia : "Many of the usages which prevail, and which have the force of law, doubtless originated in the positive pre- scriptions of some single state, which were first of limited effect, but which, when generally adopted, became of universal obligation. The Rhodian law is supposed to have been the earliest system of maritime rules. It was a code for Rhodians only; but it soon became of general authority, because ac- cepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Amalphitan table, of the ordinances of the Hanseatic League, and of part of the marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. * * * This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws, but it is a recogni- tion of the historical fact that by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign municipal laws must, indeed, be proved as facts ; but it is not so with the law of nations." ^° 18 Orlotau, Diplomatie de la Mer, liv. I, c. IV, 1. "By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels^ pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war." The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320. 19 14 Wall. 170, 20 L. Ed. S22. Sir William Scott's decisions, the source of so much authority, are frequently based on custom. In the case of the Santa Cruz he says: ''There is a law of habit, a law of usage, a standing and known principle on the subject in all civilized countries. It is the common practice of European States in every war to issue proclama- tions and edicts on the subject of prize; but till they appear courts of admiralty have a law and usage on which they proceed, from habit and ancient practice, as regularly as they afterwards con- form to the express regulations of their prize acts." 1 C. Rob. 50. And referring to the right of capture Sir William Scott in the cele- brated case of The Maria says: "The right is equally clear lit § 4) SOURCES OF INTERNATIONAL LAW, 11 III the opinion rendered in the case of West Rand Central Gold Mining Company v. Rex, June 1, 1905, the English court held in regard to international law that : "It is quite true that whatever has received the common consent of civil- ized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our national tribu- nals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant. But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must show either that the par- ticular proposition put forward has been recognized and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized state would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognized, are not in themselves sufficient. They must have received the express sanction of international agreement, or gradually have grown to be part of international law by their frequent practical recognition in dealings between various nations." "° (2) Treaties and other interstate agreements, such as con- ventions, protocols, etc., may show upon any subject the at- titude of the states parties to the agreements. Where a consid- erable number of states are parties to an agreement, as to the Convention for the Pacific Settlement of International Dis- putes, signed at The Hague, October 18, 1907, such a con- vention becomes in effect international law for the signatory states. In a less general way the reappearance of the same clause in a large number of treaties between two or a few states may indicate the existing law for all, and does indicate the existing law for the states parties to the treaties. When the practice, for practice is uniform and universal upon the subject. The many European treaties which refer to this right refer to it as pre-existing and merely regulate the exercise of it." 1 C. Rob. 340. 2" (1905) King's Bench Division, 39. 12 INTERNATIONAL LAW. (§ 4 same clauses appear in treaties made between several different states at considerable intervals of time, it is usual to draw the same conclusions in regard to their general application. (3) In recent years the practice of reference of questions liable to cause disagreement among states to international tribunals has become common. The Hague Convention of 1907 states: "Art. 41. With the object of facilitating an im- mediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Con- tracting Powers undertake to organize a permanent Court of Arbitration as established by the First Peace Conference, ac- cessible at all times, and operating, unless otherwise stipulated by the parties, in accordance with the Rules of Procedure in- serted in the present Convention." Many temporary and spe- cial courts have been instituted.^ ^ These tribunals usually decide the questions before them on broad grounds, and their decisions become precedents for subsequent tribunals. The decisions of the later tribunals more and more refer back to those of earlier years, and a considerable body of rules, prac- tically a part of international law, has thus developed.^ ^ (4) "The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The de- cisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." 2« Sir William Scott in 1799 said of the British prize court: "This court is properly and directly a court of the law of na- 21 "The summer of 1903 saw collected at Caracas ten full com- missions appointed to adjudicate claims of as many nations against Venzuela, and also the commissioners of an eleventh (French) com- mission. Before these various bodies were presented for considera- tion many most interesting questions of international law, touching perhaps all of the problems likely to prove sources of difficulty be- tween European and North American nations on the one hand and the South American Republics on the other." Preface, Venezuelan Arbitrations, 1903, Kalston's Kerwrt. 22 Moore, International ArbiU-ation, 6 vols., 1898. 23 Opinion of Marshall, Thirty Hogsheads of Sugar v. Boyle, 9' Cranch, 191, 3 L. Ed. 701. § 4) SOURCES OF INTERNATIONAL LAW. ^ 13 tions only, and not intended to carry into effect the municipal law of this or any other country." ^* The decision of a na- tional prize court, if legally rendered, is held generally binding. "International law in its widest and most comprehensive sense," as was said by the United States Supreme Court in 1894, "is part of our law, and must be ascertained and admin- .istered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted ,to their determination. "The most certain guide, no doubt, for the decision of such questions, is a treaty or a statute of this country. But where, as the case is here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decisions, from the work of jurists and commentators, and from the acts and usages of civilized nations." -^ (5) Text-writers upon international law usually consider in- terstate relations from broad points of view. They pay at- tention to historical development and consider ethical as well as jural bearings of such relations. They frequently attempt to set forth the underlying principles which may appear in customs, treaties, court decisions, and diplomatic negotiations. Wheaton says : "Without wishing to exaggerate the impor- tance of these writers, or to substitute, in any case, their au- thority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without rules laid down in their works being impugned by the avowal of contrary principles." ^® In the case of The Paquete Habana the United States Su- preme Court affirms that : "Where there is no treaty, and 2 4 The Walshingham Packet, 2 O. Rob. 77. 25 Hilton V. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95. 26 International Law, D, § 15, p. 23. 14 ' INTERNATIONAL LAW. (>J 4 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 experi- ence, 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 evidence of what the law really is." " (6) Diplomatic papers do not usually express anything be- yond the attitude of a given state upon the matter under con- sideration. A general agreement among states, as shown in diplomatic correspondence, may be a presumptive evidence of the direction in which international law may be expected to move. A position vigorously maintained in diplomatic corre- spondence, and generally conceded, will tend to become a precedent, and to have great weight. The correspondence of various states with Russia in regard to the list of contraband in the Russo-Japanese war of 1901-05, and the protests against the decisions of the Vladivostok prize courts, did much to make clear the law in regard to contraband.-^ One of the most consistent of diplomatic positions is that of the United States in regard to the exemption of private property at sea from capture ; but even a long-continued and aonsistent diplomatic policy is not sufficient to determine the law. In the case of The Pedro the Supreme Court of the United States said: "Nor are we justified in expanding ex- ecutive action by construction because of the diplomatic atti- tude of this government in respect of the exemption of all property, not contraband, of citizens and subjects of nations at war with each other — an exemption which has not as yet been adopted into the law of nations." ^^ 2 7 175 U. S. 677, 20 Sup. Ct. 290, 44 Jj. Ed. 320. 28 British Parliamentary Papers, Russia, 1905; Foreign Relations. U. S. 1904, 1905. 2 9 17o U. S. 354, 20 Sup. Ct. 138. 44 L. Ed. 195. § 5) FORCE OF INTERNATIONAL LAW. 15 FORCE OF INTERNATIONAL LAW. 5. International law is a part of the municipal la\r of states. International law is generally recognized as a part of the law of the land, and is accordingly enforced by municipal au- thority. The Constitution of the United States provides that Con- gress shall have power "to define and punish offences against the Laws of Nations." ^X "Congress has power to make all laws which shall be neces- sary and proper to carry into execution the powers vested by the Constitution in the government of the United States (arti- cle 1, section 8, clause 18) ; and the government of the United States has been vested exclusively with the power of repre- senting the nation in all its intercourse with foreign countries. It alone can 'regulate commerce with foreign Nations' (arti- cle 1, section 8, clause 3) ; make treaties and appoint am- bassadors and other public ministers and consuls (article 2, section 3, clause 2). A state is expressly prohibited from en- tering into any 'treaty, alliance, or confederation' (article 1^ section 10, clause 1). Thus all official intercourse between a state and foreign nations is prevented, and exclusive authority for that purpose is given to the United States. The national government is in this way responsible to foreign nations for all violations by the United States of their international obli- gations, and because of this Congress is expressly authorized 'to define and punish * * * offences against the law of nations' (article 1, section 8, clause 10). "The law of nations requires every national government to use 'due diligence' to prevent a wrong being done within its own dominion to any other nation with which it is at peace, or to the people thereof. * * * "It remains only to consider those questions which present the point whether, in enacting a statute to define and punish an offense against the law of nations, it is necessary, in order 'to define' the offense, that it be declared in the statute itself 80 Article 1. § 8, cl. 10. 1 ('} INTERNATIONAL LAW. (§ 5 to be 'an offense against the law of nations.' This statute defines the offense, and if the thing made punishable is one which the United States are required by their international obligations to use due diligence to prevent, it is an offense against the law of nations. Such being the case, there is no more need of declaring in the statute that it is such an of- fense than there would be in any other criminal statute to de- clare that it was enacted to carry into execution any other particular power vested in the government of the United States. Whether the offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that effect by Congress." ^^ The opinion of the Supreme Court of the United States is "that the laws of the United States ought not, if it be avoid- able, so to be construed as to infract the common principles and usages of nations or the general doctrines of national law." V An act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains, and, consequently, can never be construed to violate neutral rights, or to affect neutral commerce further than is warranted by the law of nations as understood in this coun- try." ^2 The intercourse of the United States "with foreign nations and its policy in regard to them, are placed by the Con- stitution of the United States in the hands of the government, and its decisions upon these subjects are obligatory on every citizen of the Union." ^* "Foreign municipal laws must in- deed be proved as facts ; but it is not so with the law of na- tions." The law of nations "in its full extent is part of the law of this state, and is to be collected from the practice of different nations, and the authority of writers." ^® In 1899 31 United States v. Arjona, 120 U. S. 479, 7 Sup. Ct. 028, 30 L. Ed. 728. 32 Talbot V. Seeman, 1 Cranch, 1. 2 L. Ed. 15; The Amelia, 4 Dall. 34, 1 L. Ed. 730 ; The Charming Betsy, 2 Crauch, 64, 2 L. Ed. 20S. 33 The Charming Betsey, 2 Cranch, 64, 2 L. Ed. 208; Ex parte Blu- mer, 27 Tex. 740. 3 4 Kenuett v. Chambers, 14 How. 38, 14 L. Ed. 31G. 3s Respiiblica v. De Longchamps, 1 Dall. Ill, 1 L. Ed. 59; The Scotia. 14 Wall. 170, 20 L. Ed. 822. Vide, also, Thii-ty Hogshead.s of Sugar V. Boyle, 9 Cranch, 191, 3 L. Ed. 701 ; United States v. The § 5) FORCE OF INTERNATIONAL. LAW. 17 the United States Supreme Court said that it would be bound "to take judicial notice of, and give effect to," a rule of inter- national law, "in absence of any treaty or other public act of their government in relation to the matter." ^^ Active, 24 Fed. Cas. 759 ; The Nereide, 9 Cranch, 388, 3 L. Ed. 769 ; The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126. 3 6 The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320. WiLS.lNT.L.— 2 Part l PERSONS IN INTERNATIONAL LAW WiLS.lNT.L. (19)* g 6) PERSONS IN INTERNATIONAL LAW. 21 CHAPTER I. PERSONS IN INTERNATIONAL LAW. 6. Status. 7. States in International Law. 8. Definition of State. 9. Acquisition of International Status. 10. Recognition of International Status. 11. Persons Having Limited Status. 12. States Outside tlie Family of Nations. 13. Neutralized States. 14. Members of Political Unions. 15. Protected States. 16. Belligerents. 17. Recognition of Belligerency. 18. Insurgents. 19. Loss or Modification of Status. STATUS. 6. The status of persons in international law may vary as in otlier branclies of lax^ according to their rights, liabilities, and disabilities. A state is regarded as having f nil legal status. Various other unities are accorded a limited status, such as belligerents in time of war, political unities under protectorates, etc. Status may be determined by policy of one or more states or by public law. Turkey, after a de facto existence of many years, was formally admitted to international statehood by the Treaty of Paris, 1856. Insurrectionists recognized as bellig-erents obtain definite legal status, giving them, so far as hostilities are concerned, the same privileges as the state against which they are waging war. Sweden-Norway, a per- sonal union from 1815, became two kingdoms in 1905. While the physical, moral, ethnic, or other conditions may not change, and while the reason may not always be evident for the granting of international status where it had not previously existed, yet when once granted the rights of the status must be conceded. 22 PERSONS IN INTERNATIONAL LAW. (Ch. 1 STATES. 7. Only states in the strict sense of the word are recognized as full legal persons in international law. A recognized belligerent has a qualified status, limited to the conduct of warfare, or a protectorate may have certain rights which have not passed to the protector; but full inter- national status appertains only to states in the strict sense of the word, as distinguished from the use of the term to desig- nate political divisions; e. g., Maine, New Hampshire, Ver- mont, etc., in the United States. The only state on the Ameri- can continent north of Mexico which international law recog- nizes is the United States of America. DEFINITION OF STATE. 8. A state is a sovereign political unity. Concretely vieived, a state is a body politic possessing sov- ereignty. The word "state" has had many definitions. Some of these predicate of it physical, moral, ethnic, numerical, social, or other attributes. State is, however, a political concept, and the characteristics sometimes attributed to it may be condi- tions of its existence, but are not in themselves essential to a state. The definition given by Grotius is rather of a unity to be hoped for than of a state as existing in his day or since: "A state is a perfect body of freemen associated for the en- joyment of rights and of common advantages." ^ From the point of view of international law recognized political sovereignty is the test of statehood. Any body politic possessing sovereignty is entitled to be called a state. The definition, "A state is a sovereign political unity," implies that the unity is not necessarily of any particular form, but must be political and sovereign ; i. e., must be "for public ends as understood in the family of nations," in distinction from pri- 1 Est autem civitas coetus perfectus liberorum hominum, juris fruendi et communis utilitatis causa sociatus. De Jure Belli ac Pacis, Lib. I, cap. I, XIV, 1. § 8) DEFINITION OF STATE. 23 vate ends, as in a commercial company, and the unity must be self-sufficient and self-determining. Territory and population are conditions necessary for the existence of a state as for any other social institution; e. g., the church or family. The form of the internal organization of a state, the rela- tions of its parts, and the like, have often received much at- tention in books on international law. Such matters, however, belong to the field of constitutional and other branches of public law, rather than to international law, which is more concerned with the external relationship than with the form of internal organization. There is for international law no distinction between monarchy and republic, confederation and federation, simple and composite states. It may be necessary for diplomats to know how far a given organ of state has authority to act for the state — e. g., an Emperor or President ; But this relates to constitutional rather than international law. As Phillimore says : "It is a sound general principle, and one to be laid down at the threshold of the science of which we are treating, that international law has no concern with the form, character, or power of the constitution or govern- ment of a state, with the religion of its inhabitants, the extent of its domain, or the importance of its position and influence in the commonwealth of nations." ^ A state de facto may possess full right to regulate its in- ternal affairs without interference from any foreign state, in- ternal sovereignty ; but this does not make the state a person in the family of nations. To be a member of the family of nations a state must be recognized as such by those already within the international circle. From the time of such recog- nition, the state is regarded as in possession of external sov- ereignty. There has been much discussion as to the Holy See. Some claim that it is a full state; others deny it such position. Certainly the Pope has been, and is, even by the Italian Law of Guaranty of May 13, 1871, regarded as having the attri- butes commonly possessed by sovereigns. He possesses in- violability. He is exempt from foreign jurisdiction. He re- ceives the honors of a sovereign. He has the right to send 2 1 Phillimore, International Law, LXIII, p. 81. 24 PERSONS IN INTERNATIONAL LAW. (Ch. 1 and to receive diplomatic a.Q"cnt?. The area over which he exercises temporal jurisdiction is very limited, and the juris- diction is qualified.^ ACQUISITION OF INTERNATIONAL, STATUS. 9. A de facto state, possessing all the necessary character- istics required by constitutional law for full state- hood, may exist, and yet such a state may not have full status in international law. This status is ac- quired at the present time on admission to the number of states noiv regarded as constituting the family of nations. The entrance of the state into international statehood, how- ever, depends entirely upon the recognition by those states already within this circle. Whatever advantages membership in this circle may confer, and whatever duties it may impose, do not fall upon the new state until its existence is generally recognized by the states already within the international circle. These advantages and duties, as between the recognizing and recognized state, immediately follow recognition, but do not necessarily extend to other states than those actually party to the recognition. The basis of this family of nations or inter- national circle, which admits other states to membership, is historical, resting on the polity of the older European states. These states, through the relations into which they were brought by reason of proximity and intercourse, developed among themselves a system of action in their mutual deal- ings ; and international law in its beginning proposed to set forth what this law was and should be. This family of states could not permit new accessions to its membership, unless these new states were properly constituted to assume the mu- tual relationships, and as to the proper qualifications for ad- mission in each case the states already within the family claim and exercise the right to judge.* Other states were from time to time and in various ways recognized as members of the family of nations. The family 3 For bibliography in reg;ird to the Holy See, Bonfils, Droit In- ternational Public, §§ 370, £f. 4 Wilson & Tucker, Int. Law (5th Ed.) § 22, p. 47. § 9) ACQUISITION OP INTERNATIONAL STATUS. 25 was at first European, and its law European. Gradually the group admitted new members ; these new members acknowl- edging the existing law as binding. The United States of America was the earliest addition outside of Europe ; but the United States adopted for the most part the international law of the European family. As Hamilton said : "Ever since we have been an independent nation, we have appealed to and acted upon the modern law of nations as understood in Europe. Various resolutions of Congress during our Revolu- tion, the correspondence of executive officers, the decisions of our courts of admiralty, all recognized this standard." ^ Oth- er American states similarly became members of the family of nations. In the early days, also, international law was regarded as limited to Christian states, though, as declared by the five powers in 1818, it was "their invariable resolution never to depart, either among themselves or in their relations with other states, from the strictest observation of the principles of the rights of nations." ® In 1856, however, the five great powers of that day admitted the Turkish Empire to "the par- ticipation in the advantages of European public law and con- cert." The entrance of Japan into the family of nations in 1899 added another non-European state to the international circle.''' 5 Letters to Camillus, No. 20, 5 Hamilton's Works (Lodge's Ed.) 89. 6 1 Hertslet, 574. 7 "The treaty of commerce and navigation between the United States and Japan on November 22, 1S94, toolc effect in accordance with the terms of its XlXth article on the 17th of July last, simul- taneously with the enforcement of like treaties with the other powers, except France, whose convention did not go into operation until August 4th; the United States being, however, gi-anted up to that date all the privileges and rights accorded to French citizens under the old French treaty. By this notable conventional reform Japan's position as a fully independent sovereign power is assured ; control being gained of taxation, customs revenues, judicial admin- istration, coasting trade, and all other domestic functions of govern- ment, and foreign exti*aterritorial rights being renounced." Message of President McKinley, Dec. 5, 1899. In accordance with the Emporer's orders, the Japanese ministers of state issued instructions in regard to the operation of treaties 26 PEKSONS IN INTERNATIONAL LAW. (Cll. 1 RECOGNITIOX OF INTERNATIONAL STATUS, 10. Recognition is the act \irhicli gives to a de facto state international status. Recognition is the act of the department of government intrusted with authority in foreign affairs, and makes the parties equal as regards international law. Rec- ognition is usually regarded as a deliberate act, which is irrevocable. Recognition of a new state is uniformly regarded as an act reserved to the department of government charged with the conduct of foreign affairs. As is said by the Supreme Court of the United States: "Who is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political, question, the determination of which by the legislative and admitting Japan to the family of nations. The following is an "Cabinet Notification No. 1. "The work of revising the treaties has caused deep solicitude to His August Majesty since the centralization of the government, and has long been an object of earnest desire to the people. More than twenty years have elapsed since the question was opened by the dis- patch of a special embassy to the West in 1871. Throughout the whole of that interval, various negotiations were conducted with foreign countries and numerous plans discussed, until finally, in 1884, Great Britain took the lead in concluding a revised treaty, and the other powers all followed in succession, so that now the operation of the new treaties is about to take place on the 17th of July and the 4th of August. "The revision of the treaties, in the sense of placing on a footing of equality the intercourse of this country with foreign states, was the basis of the great liberal policy adopted at the time of the restor- ation, and that such a course conduces to enhance the prestige of the Empire and to promote the prosperity of the people is a propo- sition not requiring demonstration. But, if there should be anything defective in the methods adopted for giving effect to the treaties, not merely will the object of revision be sacrificed, but also the country's relations with friendly powers will be impaired, and its prestige may be lowered. It is, of course, beyond question that any rights and privileges accruing to us as a result of treaty revision should be duly asserted. But there devolves upon the government of this Empire the responsibility, and upon the people of this realm the duty, of protecting the rights and privileges of foreigners, and § 10) RECOGNITION OF INTERNATIONAL STATUS. 27 executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances.* * * * It is equally well settled in Eng- land." « Recognition, of course, would not be withheld from a state formed by the voluntary union of two or more previously recognized states, as this recognition could not be regarded by any other state as premature or otherwise improper. Such recognition took place when the German Empire was estab- lished in 1871. Likewise there is no offense in the recognition of states which come into being through the peaceful dissolution of of sparing no effort that they may one and all be enabled to reside in the country confidently and contentedly. It behooves all officials to clearly apprehend the august intentions, and to pay profound at- tention to these points. "Marquis Yamagata, Minister President of State. "July 1, 1S99." Foreign Relations U. S., 1899, p. 469. 8 Can there be any doubt that when the executive branch of the government, which is charged with our foreign relations, shall in its correspondence with a foreign nation assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the execu- tive be right or wrong. It is enough to know that in the exercise of his constitutional functions he has decided the question. Hav- ing done this under the responsibilities which belong to him, it is obligatory on the people and government of the Union. Williams v. Suffolk Ins. Co., 13 Pet. 415, 10 L. Ed. 226 ; Jones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691; Gelston v. Hoyt, 3 Wheat. 246, 4 L. Ed. 381; United States v. Palmer, 3 Wheat. 610, 4 L. Ed. 471 ; The Diviua Pastora, 4 Wheat. 52, 4 L. Ed. 512; Foster v. Neilson, 2 Pet. 253, 7 L. Ed. 415 ; Keene v. M'Donough, 8 Pet. 308, 8 L. Ed. 955; Garcia v. Lee, 12 Pet. 511, 9 L. Ed. 1176; United States V. Yorba, 1 Wall. 412, 17 L. Ed. 635; United States v. Lynde, 11 Wall. 632, 20 L. Ed. 230. 9 The Pelican, Edw. Adm, appx. D; Taylor v. Barchlay, 2 Sim. 213; Emperor of Austria v. Day, 3 De G., F. & J. 217, 221, 233; Republic of Peru v. Peruvian Guano Co., 36 Ch. D. 489, 497; Re- public of Peru V. Dreyfus, 38 Ch. D. 348, 356, 359. 28 PERSONS IN INTERNATIONAL LAW. (Cb. 1 previously existing- bonds of union, as in the case of Sweden and Norway in 1905.^ *> There is greater possibility of misunderstanding in case rec- ognition is given to a state that comes into being through dis- ruption of previously existing bonds by force of arms. Such recognition is a question of policy, and, if premature, may be !• Foreign Relations U. S., 1905, pp. 853-874. Some of the questions arising in consequence of dissolution of the union of Sweden and Norway are considered in the following memo- randum of the Secretary of State of the United States: "The Secretary of State to the Japanese Minister. "Department of State, Washington, November 10, 1905. "The Secretary of State has considered the questions In regard to the treaties of Sweden and Norway and the diplomatic and con- sular relations of those countries with other powers propounded in the memorandum left with him by the Japanese minister on the 9th instant. "The first and second points therein brought up remain for future adjustment. The views of this government as to their treatment may be thus stated. The queries are: " '(1) Are the treaties hitherto concluded and existing between the United Kingdom of Sweden and Norway and other powers to be considered to have ceased to be valid at this juncture so far as regards Norway, and has Norway temporarily to lose its treaty re- lations with such other powers? " '(2) Are such treaties as referred to above to be considered valid so far as regards Sweden?' "The treaty of 1816, which was terminated in 1826, and that of 1827, still extant, were concluded by the United States with the sov- ereign of Sweden and Norway, acting on behalf of each country. Sweden and Norway are not therein described as a united kingdom ; but the obligations contracted and privileges granted by their com- mon king are separately specified, in each instance as to the ter- ritories, shipping, and commerce of each country. This government would regard the treaty provisions in regard to Norway and to Sweden as severally binding upon each country and unaffected by the dynastic change in Norway. In point of fact the government of Norway and the government of Sweden have hitherto acted in- dependently in execution of their treaty engagements, each within its sovereign jurisdiction. In the matter of extradition the United States has concluded separate treaties with the governments of Nor- way and of Sweden. " '(3) Are the diplomatic agents and consular ofBcers hitherto ac- credited by the United Kingdom of Sweden and Norway to the other § 10) RECOGNITION OF INTERNATIONAL STATUS. 29 regarded by the previously existing government as a cause for war. The recognition of the United States of America by France in 1778 was premature, and was practically an alliance against Great Britain. ^^ powers to be hereafter recognized as the diplomatic agents and con- sular officers of Sweden?' "This government has been notified by the government of Norway that the functions of the diplomatic representatives of Sweden and Norway have ceased, ipso facto, so far as Norway is concerned, and that representatives of Norway will be appointed. It is nnderstood that the Swedish government regards its diplomatic agents as the representatives of the sovereign, and that with the termination of the king's sovereignty over Norway his ministers cease to represent Norway, but that their representation of Sweden is unaffected there- by, and that no new credentials are needed. It is presumed that each country holds the same position with regard to its consular representatives. " '(4) Are the diplomatic agents and consular officers hitherto ac- credited by foreign powers to the United Kingdom of Sweden and Norway to be recognized hereafter as the diplomatic agents and consular oflScers of Sweden alone? If so, is it not required at this juncture to renew the credentials presented to the king of Sweden and Norway by the diplomatic agents of foreign iwwers, or to take any such course in order to continue the terms of office of these diplomatic agents and consular oflicers as are accredited to Sweden alone?' "The United States will, upon provision therefor by the Congress, accredit a diplomatic representative to Norway. "As under our constitutional system the President is not a sover- eign, but the mandatory of the sovereign powers of the states of the Union, the relations of the United States with foreign countries are as between government and government, rather than as between sovereign and sovereign. Consequently the United States will in due time accredit its diplomatic representative to Sweden alone ; but in the meanwhile it is disposed to regard its present minister as dually accredited to the two kingdoms, and therefore competent to transact affairs with the government of Norway. As the con- suls of the United States in Sweden and Norway act under exequa- turs defining their territorial jurisdiction, it is not thought necessary to seek a new exequatur for a consul who already has a Norwegian exequatur. A consul who has a Swedish exequatur is, of course, un- affected by the change." 11 Treaty of February 6, 1778, between France and the United States: "Article I. If war should break out between France and Great Britain during the continuance of the present war between the 30 PERSONS IN INTERNATIONAL LAW. (Ch. 1 While recognition must proceed from the poHtical depart- ment of the government of the recognizing state, there is no fixed method in accord with which recognition should be giv- en. Recognition may be a formal state act, as by treaty, proc- lamation, declaration, or implied, from the reception or send- ing of a diplomatic agent, the grant of an exequatur, the offi- cial salute of the flag,^- or other act of similar significance. The recognition may be individual by one state, as in the case of the recognition of the United States by the Nether- lands in 1782, or collective, by a group of states, as in the case of the Congo Free State at the Conference of Berlin in 1884. Recognition of a state is irrevocable and absolute, unless granted under specific reservations or conditions. In 1903 the United States recognized Panama as a state. On occasion of the presentation of his letter of credence on No- vember 13th, the Minister of Panama said: "Mr. President: In according to the minister plenipoten- tiary of the Republic of Panama the honor of presenting to you his letters of credence, you admit into the family of na- tions the weakest and the last-born of the republics of the New World." The President in his reply said: "Mr. Minister: I am much gratified to receive the letters whereby you are accredited to the government of the United States in the capacity of envoy extraordinary and minister plenipotentiary of the Republic of Panama. "In accordance with its long-established rule, this govern- ment has taken cognizance of the act of the ancient territory of Panama in reasserting the right of self-control, and, seeing in the recent events on the Isthmus an unopposed expression of the will of the people of Panama and the confirmation of their declared independence by the institution of a de facto government, republican in form and spirit, and alike able and resolved to discharge the obligations pertaining to sovereignty, Uuited States and England, His Majesty and the said United States shall make it a common cause and aid each other mutually with their good offices, their counsels and their forces, according to the exigence of conjunctures, as becomes good and faithful allies." 12 Declaration of the United States, April 22, 18S4. § 11) PERSONS HAVING LIMITED STATUS. 31 we have entered into relations with the new republic. It is fitting that we should do so now, as we did nearly a century ago when the Latin peoples of America proclaimed the right of popular government; and it is equally fitting that the United States should, now as then, be the first to stretch out the hand of fellowship and to observe toward the new-born state the rules of equal intercourse that regulate the relations of sovereignties toward one another." ^' It is usually maintained that recognition of statehood by the family of nations, though subsequent to the time when the recognized state has declared its independence, does not deter- mine the date of the beginning of the state recognized. As was said in the Supreme Court of the United States in 1796 : "From the 4th of July, 1776, the American states were de facto, as well as de jure, in the possession and actual exercise of all the rights of independent governments. * * * j have ever considered it as the established doctrine of the United States that their independence originated from and com- menced with the declaration of Congress, on the 4th of July, 1776, and that no other period can be fixed on for its com- mencement, and that all laws made by the Legislatures of the several states, after the Declaration of Independence, were the laws of sovereign and independent governments." ^* PERSONS HAVING LIMITED STATUS. lit Political unities, not recognized by the family of nations as having full rights to determine their external re- lations, are regarded as having limited statns as in- ternational persons. This limited status may be because recognition has never been given, has been qualified or suspended, or has been made the subject of special agreement. Persons having limited status include states not admitted to the family of nations, neutralized states, members of political unions, protected states, and some others, en- tities under special circumstances, as in the case of recognized belligerents. 18 Foreign Relations U. S., 1903, p. 245. 1* Ware, Adm'r of Jones, v. Hylton et al., 3 Dall. 199, 224, 1 L. Ed. 568. 82 PERSONS IN INTERNATIONAL LAW. (Ch. 1 STATES OUTSIDE THE FAMILY OF NATIONS. 12. States not yet admitted to the family of nations may have all the attributes of states, in the sense of public lawr and from the point of vieTP of political science, and yet lack international statehood. Asia has furnished numerous instances of poHtical unities which have not been recognized by the family of nations as states in the sense of international law. Such states have not been invited as of right to international conferences, though often some have been invited from courtesy. They have not been allowed to exercise certain rights over foreigners within their own jurisdiction. Such restrictions frequently appear in the grant of special judicial authority to consuls of the states of the family of nations accredited to Asiatic states. Article IV of the treaty of November 17, 1880, between the United States and China provides that: "When controversies arise in the Chinese Empire between citizens of the United States and subjects of His Imperial Majesty, which need to be ex- amined and decided by the public officers of the two nations, it is agreed between the governments of the United States and China that such cases shall be tried by the proper official of the nationality of the defendant." NEUTRALIZED STATES. 13. A neutralized state is one virhich by international agree- ment is bound to abstain from offensive hostilities and from acts w^hich -nrould involve such hostilities. Neutralization usually has for its object the guarantee of the peace of the neutralized area. The neutralized state may enter into treaties or agreements with other states which would involve only peaceful relations, but must not resort to war, unless for its own defense. In return for this absten- tion the neutralized state is guaranteed in its security and in- tegrity.^^ 1'' By the declaration of the eight powers on INIarch 20, 1815, to which Switzerland acceded May 27, 1815, it was set forth: "That as soon as the Helvetic Diet shall have duly and formally § 14) MEMBERS OF POLITICAL UNIONS. 33 The Convention for the Neutralization of Switzerland was signed by six powers in 1815 ; of Belgium by six powers in 1839 ; of the Ionian Islands by five powers in 1863, and by four powers in 1864; of Luxemburg by eight powers in 1867; and of the Congo Free State by fourteen powers in 1881. The degree of power residing in a neutralized state may be determined by the treaty by which it is given its status, or may be left without specific statement. Neutralization does not necessarily detract from the position of honor to which a state is entitled in the family of nations, though restricting the right to undertake hostilities, except for defense of its dominion. MEMBERS OF POLITICAIi UNIONS. 14. Tlie status of members of political unions varies as the nature of the union is more or less complete. Such unions include: (a) Personal unions, (h) Real unions. (c) Confederations. (d) Federal unions. In general, the relationships of members of political unions belong rather to the field of constitutional law than to inter- acceded to the stipulations contained in ttie present instrument, an act shall be prepared containing the acknowledgment and the guar- antee, of the part of all the powers, of the perpetual neutrality of Switzerland, in her new frontiers." 1 Hertslet, Map of Europe, by Treaty, p. 65. The treaty of London, November 15, 1831, between the five powers and Belgium, provided: "Art. VII. Belgium within the limits specified in articles I, II, and IV, shall form an independent and perpetually neutral state. It shall be bound to observe such neutrality towards all other states." "Art. XXVI. In consequence of the stipulations of the present treaty there shall be peace and friendship between their majesties the King of the United Kingdom of Great Britain and Ireland, the Emi>eror of Austria, the King of the French, the King of Prussia, and the Emperor of all the Russias, on the one part, and his majesty the King of the Belgians on the other part, their heirs and succes- sors, their respective states and subjects, forever." 2 Hertslet, Map of Europe by Treaty, p. 863. Wirs.lNT.L. — 3 34 PERSONS IN INTEKNATIONAL LAW. (Cll. 1 national law. Yet in some cases the members of the union may possess a qualified international status, even after the •union. (a) The term "personal union" is applied to such states as, even though having distinct governmental organizations and international personalities, are under a single head. There have been numerous instances of such unions. One of the longest in history was that of Great Britain and Hanover, from 1714 to 1837, when the union ceased on thp accession of Victoria, who under Hanoverian law would not be the next in line of succession. The union of the Netherlands and the Grand Duchy of Luxemburg similarly ceased in 1890 on the death of William HI and the accession of Wilhelmina.^*' The Belgian Legis- lature in 1885 authorized Leopold H of Belgium to assume the sovereignty of the Congo Free State. The union was, however, to be purely personal. (b) When the union is not merely personal, but also such that, for foreign relations, there is in the main only a single international personality, there is said to be a real union. Sweden and Norway from 1815 to 1905, and Austria and Hungry since 1867, are examples of such unions. (c) In a confederation the international personality of the members may not be destroyed, though it may be limited, and in the person of the confederation a new unity may appear. The German Confederation from 1815 to 18G6, and the United States of America from 1781 to 1789, afford examples of confederation. (d) When the external sovereignty of several states passes to a central organization, which has the power to exercise this sovereignty, a federation or federal union arises. The United States of America since 1789, Switzerland, and sev- eral of the Central and South America states are of this form. The German Empire since 1871 has for international law possessed certain characteristics of both federation and con- federation ; e. g., some of the states of the Empire have the right of legation, the right to grant exequaturs, and a limited 16 This union was instituted under the Family Compact of July .30. 1783. 4 Hertslet, 3289. § 15) PROTECTED STATES. 3,5 right to make conventions with foreign powers. The Em- peror, however, for most matters, represents the German Empire. PROTECTED STATES. 15. "When a state resigns the control of a part of its sover- eign functions to another state, or to other states, it is nnder a protectorate. The degree of authority ex- ercised by the protecting state varies greatly in dif- ferent cases. The existence of a state is not destroyed by coming under a protecting state, though it is often a step toward annexation by the protecting state. The tiny repubHc of Andorra, about twenty by thirty miles in area, in the Pyrenees, has for more than six hundred years- been under a joint Franco-Spanish protectorate. The repubhc; of San Marino, about thirty-two square miles in area, is an- other survival from early times, and is now under the protec- tion of Italy.^^ The Principality of Monaco was also for many years under the protection of Spain, France, or Italy; but since 1861 this protection has not been exercised. The Ionian Islands were under British protection from 1815 to 1863. Outside of Europe, particularly in Africa, protectorates of the most diverse character have been established or claimed. Many of these have already become parts of the protecting state and have lost their international status. By the agree- ment of 1884 Great Britain assumed a protectorate over the South African Republic as regard most foreign affairs. This was terminated by war and absorption in 1903, when the former republic became a part of the British Empire. France claimed a protectorate over Madagascar by the treaty of 1885. The United States and Great Britain acknowledged the exist- ence of the protectorate in 1890, and Madagascar with the 17 Article XXXVIII of the Convention between Italy and San Marino of March 27, 18G2, states that "the Republic of San Marino, having every reason to trust that it will never be deprived of His Majesty the King of Italy's protecting friendship for the preserva- tion of its very ancient liberty and independence, declares that it will not accept the protection of any other power whatever." 36 PERSONS IN INTERNATIONAL LAW. (Cll. 1 islands dependent was declared a French colony in 1896. A treat}' of 1889 between Abyssinia and Italy was interpreted by Italy as establishing- a protectorate over Abyssinia ; but Abyssinia denied this. In 1895 an armed struggle broke out, and as a result Italy recognized, in the treaty of October 26, 1896, "the independence, absolute and without reserve, of the Empire of Ethiopia." In certain instances colonies, protectorates, or other posses- sions are granted in international negotiations a large measure of equality with full states. The Berlin International Wireless Telegraph Convention of 1906 provides for the representation and adhesion of "Colonies, Possessions, or Protectorates." ^' 18 The Final Protocol of the Berlin International Wireless Tele- graph Convention of November 3, 1906, provides: "I. "The high contracting parties agree that at the next conference the number of votes which each country shall have (article 12 of the convention) shall be determined at the outset of the deliberations, so that the colonies, possessions, or i3rotectorates admitted to the en- n'oyment of votes may be able to exercise their right of voting throughout all the proceedings of the conference. "The decision arrived at shall have immediate effect, and shall remain in force until it is varied by a later conference. ''So far as the next conference is concerned, proposals for admis- sion of new votes in favor of colonies, possessions, or protectorates which may have adhered to the convention shall be addressed to the International Bureau six months at least before the date of meeting of that conference. These proposals shall immediately be notified to the other contracting governments, which may, within a period of two months from the receipt of the notification, put forward similar proposals." "The adhesion to the convention of the government of a country having colonies, possessions, or protectorates does not imply the ad- hesion of its colonies, possessions, or protectorates, in the absence of a declaration to that effect on the part of such government. A sep- arate adhesion or a separate denunciation may be made in respect of the whole of such colonies, possessions, or protectorates, taken together, or in respect of each of them separately, under the condi- tions laid down in articles 16 and 22 of the convention. "It is iinderstood that stations on board ships having their port of registry in a colony, possession, or protectorate may be deemed to be subject to the authority of such colony, possession, or pro- tectorate." § 15) PROTECTED STATES. 37 The status of a political unity under a protecting state may be that of almost complete independence, or of such depend- ence as to deprive it of any stanJini^ as a person in interna- tional law, even though the protected state may have control of its internal affairs. ^^ A political unity which has only the powers granted to it by the state of which it is a part, and is in general involved in the consequences of any action which the superior may take, is usually regarded as under a suzerain, and as having no inter- national status. The degrees of international relationship vary so much, however, that it is not always possible to agree whether a giv- en instance is of the nature of a protectorate or of a suzerain- ty, and sometimes characteristics of both may clearly appear, Egypt, by firman of June 8, 1873, may make commercial 19 By an agreement between France, Great Britain, Italy, and Rus- sia in 1S9S, Crete was made an autonomous state under a High Commissioner of ttie Powers, not paying tribute, but under the su- zerainty of the Sultan. The foreign relations were to be controlled by representatives of the four powers. Japan assumed control over foreign relations of Corea by agree- ment of November 17, 1905, in which Corea covenants "not to con- clude hereafter any act or engagement having an international char- acter except through the medium of the government of Japan." By the treaty between the United States and Cuba, signed 'May 22, 1903, the relations of these two states are shown: "Article I. The government of Cuba shall never enter into any treaty or other compact with any foreign powder or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes, or otherwise, lodg- ment in or control over any portion of said island. "Article II. The government of Cuba shall not assume or contract any public debt to pay the interest upon which, and to make reason- able sinking-fund provision for the ultimate discharge of which, the ordinary revenues of the Island of Cuba, after defraying the current expenses of the government, shall be inadequate. "Article III. The government of Cuba consents that the United States may exercise the right to Intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the Treaty of Paris on the United States, now to be assumed and under- taken by the government of Cuba." 38 PERSONS IN INTKRNATIONAL LAW. (Ch. 1 treaties and maintain an army, but pays tribute to the Sultan of Turkey. In 1878 a dual control over Egyptian finances was assumed by Great Britain and France. In 1881, owing to unsettled conditions and the stress upon France elsewhere, Great Britain entered upon a "temporary occupation" of Egypt, which, continuing since that time, has given to Egypt a large degree of British administration. Even under these conditions Great Britain made a convention with Egypt, Janu- ary 19, 1899, by which Anglo-Egyptian Soudan is to be ad- ministered by a Governor-General, appointed by Egypt with the assent of Great Britain, and in the territory under this condominium the British and Egyptian flags are to be used together. By the Anglo-French declaration of April 8, 1904, respecting Egypt and Morrocco, "the government of the French Republic for their part declare (as regards Egypt) that they will not obstruct the action of Great Britain in that coun- try by asking that a limit of time be fixed for the British oc- cupation or in any other way." Thus a political unity, from earliest times subject to many vicissitudes, while under a suzerain, is "temporarily occupied" by a foreign state, which, while "occupying," concludes a convention with it in regard to the government of outside territory, and also makes an agreement with another foreign state as to freedom from re- striction as to "occupancy" and in other matters. One of the most attenuated relations somewhat analogous to a protectorate is that established by a treaty of Germany, Great Britain, France, Norway, and Russia of November 2, 1907, by which Norway undertakes "not to cede any portion of the territory of Norway to any power to hold on a title founded either on occupation or on any other ground whatso- ever." The other powers "recognize and undertake to respect the integrity of Norway." "If the integrity of Norway is threatened or impaired by any power whatsoever, the German, French, British, and Russian governments undertake, on the receipt of a previous communication to this effect from the Norwegian government, to afford to that government their support, by such means as may be deemed the most appropriate, with a view to safe- guarding the integrity of Norway." § 16) BELLIGERENTS. 39 Much has been written upon the nature of the relationship in cases of protectorate or suzerainty, which particularly shows how diverse are the conditions and how impossible in definition is precision sufficient to cover all cases. In practice it is recognized, also, that certain political unities not possessing sovereignty and certain other bodies have a limited status as persons in international law. BEIililGERENTS. 16. 'When states engage in armed conflict, those thus engaged are called "belligerents." The law^s of xear and neu- trality come into operation. These laxurs may also become operative xrhen a community by force of arms attempts to free itself from the ju- risdiction of the parent state, or when a state within the family of nations engages in w^ar against a com- munity outside the family. Both belligerents, so far as belligerency is recognized, have a like status as regards international law relating to the conduct of hostilities. The recognition, of the belligerency of independent states does not affect the existence of the states, or create new uni- ties having international status. The recognition of the belligerency of a community in re- volt against the parent state gives, so far as the recognizing state is concerned, to the revolting community the same inter- national status as regards the conduct of the war as is pos- sessed by the parent state, and to that extent recognizes a new international unity. Similarly the recognition of the existence of belligerency between a state and a community outside the family of nations makes the community an international per- son as regards the conduct of war. As was said in the case of The Three Friends in 1897, "agreeably to the principles of international law and the reason of the thing, the recognition of belligerency, while not conferring all the rights of an in- dependent state, concedes to the government recognized the rights, and imposes upon it the obligations, of an independent state in matters relating to the war being waged." ^^ 2 166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897. 40 PERSONS IN INTERNATIONAL LAW. (Ch. 1 RECOGNITION OF BELLIGERENCY. 17. (a) Reccjjnition of tlie belligerency of a revolting com- mnnity by a foreign state is an act of the political department of the government of tlie recognizing state, and if premature, or ■witbout reasonable grounds, may be regarded by tbe parent state as cause for xv&t. Sucb recognition gives to the recognized revolting com- munity a legal war status as regards the recognizing state, (b) Recognition of belligerency of a revolting community by the parent state gives the revolting community a general ivar status as regards all states. (a) Recognition of belligerency of a revolting community by a foreign state is not obligatory, but when once granted gives rise to new legal relations, which cannot justly be dis- claimed during the continuance of the conditions under which they were assumed. As the relations may affect other states, particularly the parent state, recognition, once granted, is gen- erally held to be irrevocable.^^ As recognition brings such consequences, it is a matter wholly within the competence of the political department of the government, and by the action of this department all other departments are bound.-' The method by which recognition is accorded to a revolting community by a foreign state is usually by the issue of a dec- laration of neutrality, though some states make known their position by other formal action.-^ 21 1 Moore, International Law Digest, pp. 164-205, §§ 5&-71. 2 2 "But it belongs to the political department to detennine when beiligerency shall be recognized, and its action must be accepted ac- cording to the terms and intention expressed." The Three Friends, 166 U. S. 1, 17 Sup. Ct. 495, 41 D. Ed. 897; U. S. v. One Hundred Barrels of Cement, 27 Fed. Cas. 292. 2 3 Great Britain recognized the belligerency of the (Confederate States of America in the proclamation of May 13, 1861: "WTiereas, we are happily at peace with all sovereign powers and states ; "And whereas, hostilities have unhappily commenced between the government of the United States of America and certain states styling themselves the Confederate States of America ; "And whereas, we, being at peace with the government of the § 17) RECOGNITION OF BELLIGERENCY. 41 Recognition of the belligerency of a revolting community by a foreign state before that community has shown its ability to resist in an orderly manner the forces of the parent state, or when the relations of the recognizing state are not to any considerable extent disturbed, is usually regarded by the par- ent state as premature, and as an evidence of an unfriendly disposition on the part of the recognizing state. Recognition releases the parent state from all responsibility to the recognizing state for acts of recognized belligerents. The recognizing state may hold the belligerent community re- sponsible for its acts, if the community establishes its inde- pendence. If the belligerent community fails to establish it- self, the recognizing state can hold no one responsible for acts of the revolting community subsequent to the date of recogni- tion of belligerency. After recognition of belligerency the revolting community has as regards the recognizing state the same war status as the parent state. Such recognition does not, however, affect their relations to other states. The note of Dana in his edition of Wheaton of 1866 con- tains a brief statement of the principles which since that time have in the main been followed : "The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign state. The reason which requires, and can alone justify, this step by the govern- ment of another country, is that its own rights and interests are so far affected as to require a definition of its own relations to the parties. Where a parent government is seeking to sub- due an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights, which the parent government does not concede, a recognition by a for- United States, have declared our royal determination to maintain a strict and impartial neutrality in the contest between the said con- tending parties: "We, therefore, have thought fit, by (and with) the advice of our Privy Council, to issue this our royal proclamation. "And we do hereby strictly charge and command all our loving subjects to observe a strict neutrality in and during the aforesaid hostilities, and to abstain from violating or contravening either the laws and statutes of the realm in this behalf or the law of nations in relation thereto, as they will answer to the contrary at their peril." 42 PERSONS IN INTERNATIONAL LAW. (Ch. 1 eign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government. But the situa- tion of a foreign state with reference to the contest, and the condition of affairs between the contending parties, may be such as to justify this act. It is important, therefore, to de- termine what state of affairs, and what relations of the foreign state, justify the recognition. "It is certain that the state of things between the parent state and insurgents must amount in fact to a war, in the sense of international law; that is, powers and rights of war must be in actual exercise. Otherwise the recognition is falsified, for the recognition is of a fact. The tests to determine the question are various, and far more decisive where there is maritime war and commercial relations with foreigners. Among the tests are the existence of a de facto political or- ganization of the insurgents, sufficient in character, population, and resources, to constitute it, if left to itself, a state among the nations reasonably capable of discharging the duties of a state ; the actual employment of military forces on each side, acting in accordance with the rules and customs of war, such as the use of flags of truce, cartels, exchange of prisoners, and the treatment of captured insurgents by the parent state as prisoners of war ; and, at sea, employment by the insur- gents of commissioned cruisers, and the exercise by the parent government of the rights of blockade of insurgent ports against neutral commerce, and of stopping and searching neu- tral vessels at sea. If all these elements exist, the condition of things is undoubtedly war ; and it may be war before they are all ripened into activity." ^* 24 "The occasiou for the accordance of belligerent rights arises when a civil conflict exists within a foreign state. The reason which requires and can alone justify this step by the government of an- other country is that its own rights and interests are so far affected as to require a definition of its own relations to the parties. Where a parent government is seeking to subdue an insurrection by mu- nicipal force, and the insurgents claim a political nationality and belligerent rights, which the parent government does not concede, a recognition by a foreign state of full belligerent rights, if not jus- tified by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government. But the § 18) INSURGENCY. 43 (b) The parent state may recog-nize the belligerency of a revolting community by acts which imply the existence of war or by formal declaration. Either course may justify recogni- tion by foreign states. The British proclamation of neutrality of INIay 14, 1861, was justified by President Lincoln's procla- mation of a blockade on April 19, 1861, which announced that action against vessels permissible only in time of war would be taken by the United States.-^ INSURGENCY. 18. The status of insurgency is sometimes admitted in cases iv^Iiere there is 'vrithin a state an organized body of men pursuing public ends by force of arms, and tem- porarily beyond the control of the civil authority. The Constitution of the United States provides for the call- ing forth of the militia to suppress insurrections.-® Messages of the Presidents have frequently mentioned that insurrections existed in foreign states.-^ Decisions of the courts, both in situation of a foreign state with reference to the contest, and the condition of affairs between the contending parties, may be such as to justify this act. It is important, therefore, to determine what state of affairs, and what relations of the foreign state, justify the recognition." Wheaton, International Daw (Dana's Ed.) p. 34, note 15. This was followed in President Grant's message of December 7, 1S75. and by President McKinley December 6. 1897. 2 5 "Now, therefore, I, Abraham Lincoln, President of the United States, * * * have deemed it advisible to set on foot a blockade of the ports within the states aforesaid in pursuance of the laws of the United States and of the law of nations in such case provided. For this purpose a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid. If, therefore, with a view to violate such blocliade, a vessel shall approach, or shall attempt to leave, any of the said ports, she will be duly warned by the commander of one of the blocliading vessels, who will indorse on her register the fact and the date of such warning; and if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured and sent to the nearest convenient port, for such, proceedings against her and her cargo as prize as may be deemed advisable." 26 Article 1, § 8. 2 7 See particularly the Presidents' messages from 18G8 to 1878 and from 1S95 to 1898. 44 PERSONS IN INTERNATIONAL LAW. (Cll. 1 the United States and foreign states, have admitted the ex- istence of insurgency.^® In 1896 the Supreme Court of the United States declared, in the case of The Three Friends: "The distinction between recognition of belligerency and rec- ognition of a condition of political revolt, between recognition of the existence of war in a material sense and war in a legal sense, is sharply illustrated by the case before us. For here the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare pre- vailing before, at the time, and since this forfeiture is alleged to have been incurred." In 1895 President Cleveland issued a proclamation practically putting into operation the neutrality laws, though not declaring neutrality, as no belligerency had been recognized.^* Frequent attempts have been made by the parent state to put those rebelling against its authority beyond the pale of law. Such claims have been unifonnly resisted, though the right of revolution has been conceded.^" It is fully established that decrees of the parent state putting those in insurrection against it beyond the pale of law, or con- demning them to unusual treatment, are not binding upon foreign states. Such a decree may be regarded as an admis- sion by the parent state of the existence of an insurrection within its borders. The legitimate government cannot in any way throw the burden of executing its decrees upon a foreign state. Even its decrees of closure in time of insurrection must be supported by sufficient force to render them effective. The United States was early in the Civil War forced to give up the claims that the Confederate cruisers were piratical and that other forces were bands of outlaws. Attempts were also made in 1885 to induce the United States to prevent the sale of arms to the Colombian insurgents, but Mr. Bayard said in a letter of March 25, 1885 : "That the existence of a rebellion in Colombia does not au- 28 The Three Friends, IGG U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897 ; Underhill v. Hernandez, 168 U. S. 250, 18 Sup. Ct. 83, 42 L. Ed. 45U ; The Salvador, L. R. 3 P. C. 218. 2 9 Proclamation of June 12, 1895, 9 Richardson, Messages and Pa- pers of the Presidents, 591. 3 Foreign Relations U. S., 1885, p. 212. § 18) INSURGENCY. 45 thotize the public officials of the United States to obstruct or- dinary commerce in arms between citizens of this country and the rebellious or other parts of the territory of the Republic of Colombia." ^^ Attempts have also been made by the parent state to obtain advantages of a blockade without the obligations of war through a proclamation declaring ports held by insurgents closed. Foreign states have, however, usually taken the posi- tion that such decrees are of no effect, and the ports in the hands of the insurgents are closed only to the extent to which an effective force may physically prevent entrance. The parent state cannot prescribe the attitude which a for- eign state shall assume toward insurgents. It is, however, within the competence of the foreign state to determine its own attitude toward insurgents, so far as this may accord with the laws of humanity and its obligations to a friendly state. The foreign state has full right to deny to the insurgents the right to exercise any belligerent rights toward its subjects. A foreign state, for example, would not be under any obliga- tion to allow the exercise of the right of visit or search of its vessels, and, if its vessels were seized by insurgents, the war vessels of the foreign state might rescue them on the high seas. Admiral Benham, at the time of the Brazilian revolt of 1893- 94 took a position which has been generally approved. He maintained that American merchant vessels in the harbor of Rio Janeiro were liable to risk if they came within the field of actual hostile operations during the continuance of an en- gagement, but that interference by insurgents with legitimate movements of American merchant vessels at other times would not be permitted.^^ Yet acts of the insurgents are liable to such penalties as the parent state may inflict. Foreign states do not generally take extreme measures against insurgents. They do not permit insurgents to exercise the right of visit and search on the high seas, as the obligation to submit to this interference with the 81 Foreign Relations U. S., 1S85, p. 238. 3 2 Foreign Relations U. S., 1893, p. 116, ff. Admiral Benham's position was sanctioned in the opinion of the Institute of Internation- al Law in its session of 1901. 46 PERSONS IN INTERNATIONAL LAW. (Ch. 1 freedom of commerce rests upon a neutral only when there is war, and until there is war there can be no neutral in the sense of international law. The right of visit and search is, of course, denied during an insurrection to the parent state on the same grounds as to the insurgent. As regards relations of insurgents and parent state, it may be said that they must so far as possible observe the rules of civilized warfare. This is expedient, in order that the parent state may maintain the respect of sister states, and in order that the insurgents may, if successful, be more readily ad- mitted into the family of nations. A foreign state would not permit the parent state to pre- scribe the attitude which the foreign government should as- sume toward its insurgent subjects. A foreign state would not permit the insurgents to prescribe what attitude the foreign government should assume toward other parties involved in the insurrection. Probably the most frequent action of this kind on the part of the insurgents is seen in the attempt of the insurgents to proclaim blockades. It is clear, however, that blockade is a war measure, and involves the existence of courts to pass upon its violations and to decree penalties. In absence of such responsible courts, a foreign state would not be under obligation to respect such insurgent proclamation. As Secretary Hay said in a letter to the Secretary of Navy, November 15, 1902 : "It seems important to discriminate between the claim of a belligerent to exercise quasi sovereign rights in accordance with the tenets of international law and the conduct of hostili- ties by an insurgent against the titular government. "The formal right of the sovereign extends to acts on the high seas, while an insurgent's rig^ht to cripple his enemy by any usual hostile means is essentially domestic within the ter- ritory of the titular sovereign whose authority is contested. To deny to an insurgent the right to prevent the enemy from receiving material aid cannot well be justified without denying the right of revolution. If foreign vessels carrying aid to the enemies of the insurgents are interfered with within the ter- ritorial limits, that is apparently a purely military act incident to the conduct of hostilities, and, like any other insurgent in- § 18) INSURGENCr, 47 terference with foreign property within the theater of insur- rection, is effected at the insurgent's risk." He also maintained that, "within the territorial limits of the country, the right to prevent the access of supplies to their enemy is practically the same on water as on land — a defensive act in the line of hostility to the enemy. But in no case would the insurgents be justified in treating as an enemy a neutral vessel navigating the internal waters ; their only right being, as hostiles, to prevent the access of supplies to their domestic enemy. The exercise of this power is restricted to the precise end to be accomplished. No right of confiscation or destruc- tion of foreign property in such circumstances could well be recognized, and any act of injury so committed against for- eigners would necessarily be at the risk of the insurgents." ^' Balmaceda, in 1891, declared various ports of Chili closed. Some of the European states, as well as the United States, declined to respect the decree. If ports in the possession of the insurgents could be closed by decree, there would be a close analogy to the old idea of a paper blockade. The prin- ciple has come to be generally recognized that in time of in- surrection closure, to be respected, must be by effective force. A general agreement on the part of various states was shown in their attitude toward the Haitien insurgents in 1902. This is evident in the letter of the commander of the U. S. S. Machias to the insurgent commander on August 10, 1902. The letter was as follows : "Sir: I wish to give you notice that I am charged with the protection of British, French, German, Italian, Spanish,, Russian, and Cuban interests, as well as those of the United States. You are informed also that I am directed to prevent the bombardment of this city without due notice ; also to pre- vent any interference with commerce by the interruption of telegraph cables or the stoppage of steamers engaged in inno- cent trade with a friendly power. All interference excepting with Haitien interests, I shall endeavor to prevent." That insurgents have not belligerent status is sufficient rea- son for refusing to their vessels the rights of belligerents in foreign ports. 3 3 International Law Situations, Naval War College, 1902, p. 79. 48 PERSONS IN INTERNATIONAL LAW. (Ch. 1 Section 4295 of the United States Revised Statutes (U. S. Comp. St. 1901, p. 2950) made it lawful for a private vessel to resist the aggression of an insurgent not yet recognized as a belligerent. This statute provides : "The commander and crew of any merchant vessel of the United States, owned wholly or in part by the citizens there- of, may oppose and defend against any aggression, search, restraint, depredation or seizure which shall be attempted up- on such vessel, or upon any other vessel so owned, by the com- mander or crew of any armed vessel v^diatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same ; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States." Insurgency may be regarded as a fact which is generally ac- cepted in the international practice. The admission of this fact is by such domestic means as may seem expedient. This admission is made with the object of bringing to the knowl- edge of citizens, subjects, and officers of the state such facts and conditions as may enable them to act properly. In the parent state the method of conducting the hostilities may be a sufficient act of admission, and in a foreign state the enforce- ment of a neutrality law. The admission of insurgency by a foreign state is a domestic act, which can give no offense to the parent state, as might be the case in the recognition of bel- ligerency. Insurgency is not a crime from the point of view of international law. A status of insurgency may entitle the insurgents to freedom of action in lines of hostile conflict which would not otherwise be accorded, as was seen in Brazil in 1893-94, and in Chili in 1891. It is a status of potential belligerency which a state, for the purpose of domestic order, is obliged to recognize. The admission of insurgency does not place the foreign state under new international obligations, as would the recognition of belligerency, though it may make the execution of its domestic laws more burdensome. It admits the fact of hostilities, without any intimation as to their extent, issue, righteousness, etc. The admission of the existence of this status of insurgency makes unnecessary much of the § 19) LOSS OR MODIFICATION OF STATUS. 49 earlier diplomatic circumlocution prevailing between the state divided by domestic strife and foreign states, and makes it possible for states to conduct negotiations with much less liabilty to misunderstandings. This is particularly evident in the diplomatic correspondence of late years. The tendency to depart from or to give special interpretations to the principles ordinarily governing the recognition of belligerency is much less, because, when a status of insurgency is admitted, many of the domestic reasons for such recognition may disappear, and the formal recognition need only take place when the international relations warrant such action. The admission of msurgency is the admission of an easily discovered material fact. The recognition of belligerency involves, not only a recognition of a fact, but also questions of policy touching many other considerations than those consequent upon the simple existence of hostilities.^* LOSS OR MODIFICATION OF STATUS. 19. Tlie loss or modification of tlie international status of a political unity may affect treaty relations, public ob- ligations, public property, and private property and relations. Grotius maintains that the political unity may be destroyed through the disappearance of the body politic, as by destruc- tion of the people by flood or famine. The unity may disap- pear through the destruction of the bond of union which holds the people together, as in civil war. The international per- sonality may disappear when one political unity is merged in or subordinated to another political unity, as when one state is conquered by another.^ ^ The destruction of the people of a state by pestilence, by flood, or other similar disaster, is now hardly conceivable. The dissolution of political bonds through revolt or otherwise has frequently occurred. The loss of inter- 3 4 Wilson, Insurgency, Lectures U. S. Naval War College, 11)00; International Law Situations, 1902, pp. 57-83; Id. 1904, pp. 2(>-62; Insurgency and International Maritime Law, 1 American Jour. In- ternational Law, p. 4G. 35 De Jure Belli ac Pacis,- lib. II, cap. IX, 4-6. Wils.Int.L.- — 4 50 PERSONS IN INTERNATIONAL LAW. (Cb. 1 national status by one unity through some form of merging in another poHtical unity has been particularly common in in- ternational relations. The modification of international status through the loss or giving up of a part of the independence possessed by a political unity may make it impossible for that unity to perform obli- gations which rested upon it previous to this modification of its status. If the absolute destruction of the people of a state should occur, obligations resting upon them as a body politic would of necessity fall, though obligations resting on the territorial basis of the state might be sustained. Similarly as a general principle it is maintained that, so far as treaty relations and public obligations are not in the main political, but territorial, they remain binding upon the local territory, even though the international person formerly hav- ing jurisdiction over the territory has lost status in the family of nations. The general principle is "res transit cum suo onere." This succession is generally restricted to those obli- gations which are of the nature of property rights^*' and to those which relate to the territory as public domain.^^ 36 English decision, United States v. McRae. 8 L. R. Eq. 72, quoted in United States v. Suiitli. l Huglaes, 347, Fed. Cas. No. 16,335. "I apprelieud it to be clear, public, universal law that any govern- ment which de facto succeeds to any other government, whether by revolution or restoration, conquest or reconquest, succeeds to all the public property, to everything in the nature of public property, and to all rights in respect to the public property of the displaced pow- er, whatever may be the nature or origin of the title of such dis- placed power. Any such public money in any treasury, any such I)ublic property found in any warehouse, fort, or arsenal, w'ould, on the success of the new or restored power, vest ipso facto in such power, and it would have the right to call to account any fiscal or other agent or any debtor or accountant to or of the persons who had exercised and had ceased to exercise the authority of a government, the agent, debtor, or accountant having been the agent, debtor, or accountant of such persons in their character or pretended character of a government. But this is the right of succession, is the right 3 7 Claim of the Manila Railway Company, Magoon, Law of Civil Government under Military Occupation (2d lid.) p. 177, ff; 23 Ops. Attys. Gen. 181, 451 ; 1 Moore, §§ 90-98. § 19) LOSS OR MODIFICATION OF STATUS. 51 When the whole or a portion of one state becomes a part of another state as a result of conquest, cession, or otherwise, local obligations pass to the acquiring state. Contracts re- lating to the public interests of the acquired territory, entered into by the state formerly having sovereignty, are usually acknowledged by the new sovereign. Provisions to this effect occur in many treaties, and when not specifically mentioned such obligations are usually assumed, on proof that the claim is just and equitable. Similarly, concessions relating to the acquired territory are usually continued.^* of represeutation, is a right, not paramount, but derived, I wil] not say under, but through, the suppressed and displaced authority, and can only be enforced in the same way, and to the same extent, and subject to the same correlative obligations and rights, as if that authority had not been suppressed and displaced, and was itself seeking to enforce it." Scott's Cases, 89. 38 "9. It is clear that a state which has annexed another is not legally bound by any contracts made by the state which has ceased to exist, and that no court of law has jurisdiction to enforce such contracts if the annexing state refuse to recognize them. But the modern usage of nations has tended in the direction of the acknowl- edgment of such contracts. After annexation, it has been said, the people change their allegiance; but their relations to each other and their rights of property remain undisturbed, and property in- cludes those rights which lie in contract. 'La conquete change les droits politiques des habitants du territoire, et transfere au nouveau souverain la propriete du domaine public de son cedant. II n'en est pas de mgme de la propriete priv6 qui demeure incommutable entres les mains de ses legitimes possesseurs.' Concessions of the nature of those which were the subject of our inquiry presented examples of mixed public and private rights. They probably continue to exist after annexation until abrogated by the annexing state, and, as matter of practice in modern times, where treaties have been made on the cession of territory, have been often maintained by agreement. In considering what the attitude of a conqueror should be towards such concessions, we are unable to perceive any sound distinction between a case where a state acquires part of an- other by cession and a case where it acquires the whole by annexa- tion. The opinion that in general private rights should be respected by the conqueror, though illustrated and supported by jurists by analogies drawn from the Roman law of inheritance, is based on the principle, which is one of ethics rather than of law, that the area of war and of suffering should be, so far as possible, narrowly con- 52 PERSONS IN INTERNATIONAL LAW. (Ch. 1 The protection of private rights is held to be obligatory up- on the new sovereign as on the old. Sovereignty and political allegiance are transferred, but private rights and obligations are only so far modified as may be necessary for the exercise of jurisdiction by the state which has acquired the territory. "The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each oth- er, and their rights of property, remain undisturbed." ^* fined, and that uoncombatants should not, where it is avoidable, be disturbed in their business ; and this principle is at least as applica- ble to a case where all as where some of the provinces of a state are annexed. "10. Though we doubt whether the duties of an annexing state towards those claiming under concession or contracts granted or made by the annexed state have been defined with such precision in authoritative statement, or acted upon with such uniformity in civilized practice as to warrant their being termed rules of inter- national law, we are convinced that the best modern opinion favors the view that, as a general rule, the obligations of the annexed .state towards private persons should be respected. Manifestly the general rule must be subject to qualification ; e. g., an insolvent state could not by aggression, which practically left to a solvent state no other course but to annex it, convert its worthless into valuable obligations. Again, an annexing state would be justified in refusing to recognize obligations incurred by the annexed state for the im- mediate purposes of war against itself ; and probably no state would acknowledge private rights, the existence of which, caused, or con- tributed to cause, the war which resulted in annexation." Report of the Transvaal Concessions Commission, British State Papers, South Africa, 1901, Cd. G23, p. 7. Maintaining the contrary to this last clause, Oppenheim says: "A state which has subjugated another would be obliged to take over even such obligations as have been incurred by the annexed state for the immediate purpose of the war which led to its sub- jugation." 1 International Law, 122. 3 9 United States v. Percheman, 7 Pet. 51, 8 L. Ed. 604. Part 11 GENERAL RIGHTS AND OBLIGATIONS WiLS.lNT.Lu (53)* 5 21) EXISTENCK, INDEPENDENCE AND EQUALITY. 55 CHAPTER II. EXISTENCE, INDEPENDENCE AND EQUALITY. 20. Right of Existence. 21. Right of Self-Preservation. 22. Right of Independence. 23. Duty of Nonintervention. 24. Policy of Intervention. 25. Right of Equality. BIGHT OF EXISTENCE. 20. In international law, the fundamental right of a state is the right of existence. The right of a state to exist as a member of the family of nations is based for those states, members of the original family of nations, upon historical grounds, and for other states upon international recognition or agreement. A de facto state, in the sense of public law, may exist prior to this acquisition of international status ; but existence as a member of the international family is the fundamental right, from which the other rights recognized in international law are de- rived. The recognition of the right to exist would imply the possession of the power to exercise those rights generally ex- ercised by the states constituting the family of nations. These rights have been variously classified, and with the rights cor- responding duties and obligations have been grouped.^ RIGHT OF SELF-PRESERVATIOX. 21. The right of self-preservation is an absolute right, Based upon the right of existence, and is limited in its ex- ercise by the rights of other states. A state may take measures necessary to maintain the con- ditions essential to its being, as in the protection of land and people and the development of national life and resources. 1 Pradier-Fodere, §§ 164-210. 56 EXISTENCE, INDEPENDENCE AND EQUALITY. (Ch. 2 Under the right of self-preservation states have taken action to increase the national dominion, population, and resources ; to strengthen the means of defense and offense ; to regulate commerce and other intercourse with foreign states ; and, in general, to maintain the national security and well-being. Of action necessary for national development or security the state is itself the judge, and for its action it must be respon- sible. The range of action is conditioned by the right of ex- istence as possessed by other states, as in time of war the rights of the belligerents are conditioned by the rights of neutrals. Authorities do not agree as to what action may be taken under stress of necessity on the ground of self-preserva- tion. As each state is the judge of what endangers its own ex- istence and what measures may be necessary for its preserva- tion, the action to be taken under given conditions is deter- mmed by policy, rather than by principles of law, and such action is usually tempered by the fear of war or other meas- ures of -redress. RIGHT OF INDEPENDENCE. 22. Tlie right of independence or freedom from external political control is derived from tlie natnre of the state as sovereign. The right of independence is implied in the recognition of existence of a state. Upon this right of independence of a state are based the exercise of internal political supremacy, the control over territory and population, and the regulation of relations with other states.^ The exercise of internal polit- ical supremacy carries the right to adopt a constitution and to establish the government. Action in accord with the laws, made under the constitution, may give rise to international complications, as when citizens or property of one state are 2 "E\'ery sovereign state is bound to respect the independence of every otlier sovereign state, and ttie courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves." Underbill v. Hernandez, 16S U. S. 250, 18 Sup. Ct. 83, 42 L. Ed. 456. § 23) DUTY OF NONINTERVENTION. 57 within another. Many of these questions belong to the field of conflict of laws, rather than to public international law. The exercise of the right of independence in making laws in regard to commercial relations was one of the earliest matters giving rise to conflicts which made international agreements desirable and necessary. The field of uniformity in the do- mestic laws upon matters of common interest has rapidly broadened. Very many of the important questions upon which uniformity in legislation in different states is desirable have been discussed by official international conferences. Such con- ferences averaged more than two for each year during the last quarter of the nineteenth century, and have been even more frequent during the twentieth century. The results of the conferences have tended to enlarge the range of possible independent action, while removing to a considerable degree the probability of arbitrary action on the part of the states participating in the conferences. Thus there has been an at- tempt to secure the advantages of internal sovereignty without the possible disagreements and friction naturally consequent upon the closer relation between different states and the citi- zens of different states. The principle of independence is in no wise denied in the voluntary engagements to which states may become parties. Treaties and conventions are made with a view to benefit all who ratify them, and such agreements do not create a power superior to the contracting parties. DUTY OF NONINTERVENTION. 23. Correlative -roitli the right of independence is the duty of nonintervention by one state in affairs wrhich solely concern another state or other states. While a state is under obligation not to intervene in the af- fairs of other states, yet intervention is sometimes regarded as justifiable on the ground of the fundamental right of self- preservation of the state, for the maintenance of conditions necessary for the existence of international relations,^ for the 3 Intervention took place in China in 1900 in consequence of the Boxer uprising, which shut up in Pelvin diplomatic representatives 58 EXISTENCE, INDEPENDENCE AND EQUALITY. (Ch. 2 fulfillment of a treaty of guarantee, on invitation of a party to a civil war, under sanction of a body of states, as a matter of national policy, or upon grounds clearly outside the field of international law. In theory, intervention for self-preservation would involve the intervening state in no more serious consequences than would follow nonintervention. The existence of the state is threatened in either case. The determination of a line of ac- tion, therefore, becomes a question of policy. The action will and other foreii^ners. The several powers sent armed forces to their rescue. The United States defined its pm poses and policy in the following circular note to the co-operating powers: "Department of State, Washington, July 3, 1900. "In this critical posture of affairs in China, it is deemed appro- priate to define the attitude of the United States as far as present circumstances permit this to be done. We adhere to the policy ini- tiated by us in 1857 of peace with the Chinese nation, of furtherance of lawful commerce, and of protection of lives and property of our citizens by all means guaranteed under extraterritorial treaty rights and by the law of nations. If wrong be done to our citizens, we prO' pose to hold the responsible authors to the uttermost accountability. We regard the condition at Pekin as one of virtual anarchy, where- by power and responsibility are practically devolved upon the local provincial authorities. So long as they are not in overt collusion with rebellion, and use their power to protect foreign life and prop- erty, we regard them as representing the Chinese people, with whom we seek to remain in peace and friendship. The purpose of the President is, as it has been heretofore, to act concurrently with the other powers, first, in opening up communication with Pekin and rescuing the American ofl^cials, missionaries, and other Americans who are in danger; secondly, in affording all possible protection ev- erywhere in China to American life and property; thirdly, in guard- ing and protecting all legitimate American interests ; and, fourthly, in aiding to prevent a spread of the disorders to the other provinces of the Empire and a recurrence of such disasters. It is, of course, too early to forecast the means of attaining this last result ; but the policy of the government of the United States is to seek a solu- tion which may bring about permanent safety and peace to China, preserve Chinese territorial and administrative entity, protect all rights guaranteed to friendly powers by treaty and international law, and safeguard for the world the principle of equal and impartial trade with all parts of the Chinese Empire. "You will communicate the purport of this instruction to the min- ister for foreign affairs. Hay." Foreign Relations U. S., 1901, Appendix, p. 12. § 23) DUTY OF NONINTERVENTION. 59 naturally vary according- to the strength of the state and ac- cording to the degree to which the well-being of the state is endangered. It may be by force of arms, by diplomatic nego- tiation, or by other means. "Intervention takes place when a state interferes in the re- lations of two other states without the consent of both or either of them, or when it interferes in the domestic affairs of another state, irrespectively of the will of the latter, for the purpose of either maintaining or altering the actual condition of things within it. Prima facie intervention is a hostile act, because it constitutes an attack upon the independence of the state subjected to it. Nevertheless its position in law is some- what equivocal. Regarded from the point of view of the state intruded upon, it must always remain an act which, if not consented to, is an act of war. But, from the point of view of the intervening power, it is not a means of obtaining re- dress for a wrong done, but a measure of prevention or of pol- ice, undertaken sometimes for the express purpose of avoiding war. * * * The right of independence is so fundamental a part of international law, and respect for it is so essential to the existence of legal restraint, that any action tending to place it in a subordinate position must be looked upon with disfavor, and any general grounds of intervention pretending to be sufficient, no less than their application in particular cases, may properly be judged with an adverse bias." * Intervention has often been justified on the ground that citizens of one state have been denied ordinary justice while in another state. While it may be admitted in principle that states must respect ordinary justice in their international deal- ings, in practice it has been found difficult to reconcile the ideas of justice as held in different states. Unreasonable de- lays in trial, discrimination against the foreigner on trial, or refusal of rights usually granted to accused in civilized states, have been held as grounds justifying intervention,^ and upon 4 Hall, Int. Law (Sth Ed.) pp. 284, 285. 6 Secretary Bayard maintained, in a commnnication to the United States minister to Mexico in 18S6, that: "By the law of nations no punishment can be Inflicted by a sover- 60 EXISTENCE, INDEPENDENCE AND EQUALITY. (Ch. 2 such grounds diplomatic and other intervention has taken place. Demands have also often been made by a citizen that his state interfere in aiding him in collecting a debt due from a foreign state. At the Hague Conference of 1907 an agree- ment was reached that states would not engage in hostilities for this reason. This is a modification of the "Drago Doc- trine." It has not been the practice of the United States to interfere in such cases other than by use of its good offices.® Other states have exercised a wide discretion in such cases, employing at times various degrees of constraint, even resort- ing to war.' eign on citizens of other countries, unless in conformity with those sanctions of justice which all civilized nations hold in common. "Among these sanctions are the right of having the facts on which the charge of guilt was made examined by an impartial court, the explanation to the accused of these facts, the opportunity granted to him of counsel, such delay as is necessary to prepare his case, permission in all cases not capital to go at large on bail till trial, the due production under oath of all evidence prejudicing the ac- cused, giving him the right to cross-examination, the right to pro- duce his own evidence in exciilpation, release even from temporary imprisonment in all cases where the charge is simply one of threat- ened breacli of the peace, and where due security to keep the peace is tendered." Foreign Relations U. S., 1886, p. 701. e For review of cases involving United States citizens, see 6 Moore, Int. Law Dig. § 912 et seq. 7 A letter bearing date of December 29, 1902, from Senor Luis M. Drago, Argentine Minister of Foreign R.elations, was transmitted ta the State Department of the United States, contains what has been called the "Calvo Doctrine," or the "Drago Doctrine," in regard to the collection of public debts: "The only principle which the Ar- gentine Republic maintains, and which it would, with great satisfac- tion, see adopted, in view of the events in Venezuela, by a nation that enjoys such great authority and prestige as does the United States, is the principle, already accepted, that there can be no ter- ritorial expansion in America on the part of Europe, nor any oppres- sion of the peoples of this continent, because an unfortunate financial situation may compel some one of them to postpone the fulfillment of its promises. In a word, the principle which she would like to see recognized is that the public debt cannot occasion armed inter- vention, nor even the actual occupation of the territory of American nations, by a European power." Foreign Relations U. S., 1903, p. 4. A modified form of this "Drago Doctrine" was approved by the Second Hague Conference in 1907 by thirty-nine votes, with five § 23) DUTY OF NONINTERVENTION. 61 The question as to intervention under treaty of guaranty has been much disputed. Treaties containing guaranties vary in character, and some could doubtless be supported, while the attempt to carry out others would involve unjustifiable inter- vention. Such treaties must usually receive interpretation ac- cording to the principle "rebus sic stantibus," and the observ- ance of their provisions frequently becomes merely a question of policy, and may need other justification than the written agreement. Intervention under a treaty of guaranty which provides for the maintenance of a certain form of government or ruling family is regarded by some as unjustifiable ^ and by others as justifiable.® Provisions of guaranty may limit the abstentions. T^'elve Latin-American states made reservations. Ar- ticle I of the Convention Respecting ttie Limitation of the Employ- ment of Force for the Recovery of Contract Debts contains the regulation: "The contracting powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals. "This undertaking is, however, not applicable when the debtor state refuses or neglects to reply to an offer of arbitration, or, after accepting the offer, prevents any compromise from being agreed on. or, after the arbitration, fails to submit to the award." Some reservations were entered because the use of force was pro- hibited only till efforts at arbitration were refused or failed. Cobro Coercitivo de Deudas Publicas, Drago, 1906. On December 7, 1902. Germany and Great Britain issued notes identical in form in regard to the contractual claims of citizens of the respective states against the Venezuelan government. This note de- clares that, "if the demands of the two governments are not satisfied, joint military action will immediately be undertaken." Foreign Re- lations U. S., 1903, p. 419. It was proposed that coercion should take the form of blockade, without a declaration of war. The United States did "not acquiesce in any extension of the doctrine of pacific blockade," and a regular blockade was declared on December 20, 1902, in which Italy also joined.. Foreign Relations U. S.. 1903, p. 417 et seq. After the blockade was raised the questions in regard to claims were referred to arbitration. See Ralston's Report, Ven- ezuelan Arbitration of 1903 : Report of William L. Penfield, The Venezuelan Arbitration before the Hague Tribunal, 1903. 8 As by Twiss, Halleck. and Hall. • As by De Jlartens, Heffter, and Oppenheim. 62 EXISTENCE, INDEPENDENCE AND EQUALITY. (Ch. 2 exercise of full sovereignty,^** or may make secure the exist- ence of a state having a qualified status, as in the case of cer- tain neutralized states. Intervention on invitation of a party to a civil war is not now regarded as justifiable. Of course, civil war may give rise to conditions which may lead a state to intervene on other grounds, as in case of the intervention of the United States in Cuba in 1898.^^ It was regarded by some writers as justifiable 10 The Republic of New Grauada (Colombia) and the United States, by the treaty of December 12, 1846, article 35, make mutual guar- anties, and the United States prior to 1903 frequently intervened under its provisions by landing armed forces on the Isthmus of Panama. "The government of New Granada guarantees to the gov- ernment of the United States, that the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be hereafter constructed, shall be open and free to the government and citizens of the United States, and for the transportation of any articles of produce, manufactures, or merchan- dise, of lawful commerce, belonging to the citizens of the United States; that no other tolls or charges shall be levied or collected upon the citizens of the United States, or their said merchandise, thus passing over any road or canal that may be made by the government of New Granada, or by the authority of the same, than is under like circumstances levied upon and collected from the Granadian citizens; that any lawful produce, manufactures, or mer- chandise belonging to citizens of the United States, thus passing from one sea to the other, in either direction, for the purpose of exportation to any other foreign country, shall not be liable to any import duties whatever, or, having paid such duties, they shall be entitled to drawback, upon their exportation ; nor shall the citizens of the United States be liable to any duties, tolls, or charges of any kind to which native citizens are not subjected for thus passing the said Isthmus. And, in order to secure to themselves the tranquil and constant enjoyment of these advantages, and as an especial compensation for the said advantages and for the favors they have acquired by the fourth, fifth and sixth articles of this treaty, the United States guarantee positively and efficaciously to New Granada, by the present stipulation, the perfect neutrality of the before-men- tioned Isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this treaty exists ; and, in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said ter- ritory." ] 1 The President of the United States gives "the interests of hu- § 23) DUTY OF NONINTERVENTION. 63 to intervene on invitation of the parent state, if not on invi- tation of the rebelHng party. Even such intervention would imply a doubt as to the ability of the party in power to main- tain itself as the de facto government, and international law does not sanction the assumption by a foreign state of the right to judge as to the merits of a conflict in another state. Intervention in behalf of the rebelling party would violate the independence of the established state. Intervention under sanction of a body of states, or through joint or concerted action, has been common. It is reasonable to conclude that such intervention would be less liable to be on narrow or selfish grounds, because based on the approval of several states. Such intervention was common in Europe for the preservation of the so-called balance of power. This has been the argument for the many interventions in the affairs of Southeastern Europe. Intervention by a body of states is usually professedly for the highest well-being of all parties concerned, particularly of the state subject to the action. The final results often give evidence that each state expects its own policy will in some way be advanced, frequently at the expense of the state subject to the intervention. ^- Intervention on grounds outside the field of international manity" as one of the grounds justifying intervention in Cuba in 1898: "Tlie grounds justifying that step were the interests of hu- manity, the duty to protect the life and property of our citizens in Cuba, the right to checli injury to our commerce and people through the devastation of the island, and, most important, the need of re- moving at once and forever the constant menace and the burdens en- tailed upon our government by the uncertainties and perils of the situation caused by the unendurable disturbance in Cuba." Message of President McKinley, December 5, 1898. 12 At the close of the Chiuo-Japanese vs^ar in 1895, Japan obtained the concession of the Diao-tung peninsula, with Port Arthur. Eight days after the treaty of cession was signed, Russia, supported by France and Germany, presented the following note to Japan: "The Imperial Russian Government, having examined the terms of peace demanded of China by Japan, consider the contemplated possession of the Liao-tung peninsula by Japan will not only consti- tute a constant menace to the capital of China, but will also render the independence of Korea illusory, and thus jeopardize the perma- nent peace of the Far East. Accordingly, the Imperial Government, in a spirit of cordial friendship for Japan, hereby counsel the govern- 64 EXIvSTEXCE, INDEPENDENCE AND EQUALITY. (Ch. 2 law must look outside of international law for sanction ; e. g., intervention on grounds of humanity or religion. Intervention on the grounds of humanity has looked to the general principles of human association for its justification. It is maintained that, as a single state can resort to interven- tion to preserve itself, so society can take action against any state within it for the preservation of itself or for its well- being. While such intervention might be viewed favorably, if sanctioned by society in general outside the offending state, intervention on this ground may be open to grave abuse, if taken by a single state without general sanction. The claim that intervention on the ground of preserving the public health, or preventing the spread of dangerous diseases, and the like, is intervention on the ground of humanity, seems to be an unnec- essary inference, as such intervention would be justified on the ground of self-preservation.^^ The protection of religion has been named as the reason justifying many interventions. This has been particularly true in affairs in Southeastern Europe. Treaties sometimes provide for diplomatic action, or even intervention by force, for the protection of religion.^* inent of the Emperor of .Japan to renounce the definitive possession of the Liao-tung peninsula." Japan, not desiring to talce the risli of defying the three powers, issued a rescript in which she "yielded to the dictates of magnanim- ity, and accepted the advice of the three powers." On April 5, 1S98, a proclamation was issued, stating that Russia had acquired a lease of Liao-tung region. Foreign Relations U. S., 1898, p. 183. 13 Pradier-Foderg, § 435. 14 Treaty of Berlin of 1878 provides, that: "The right of ofiicial protection by the diplomatic and consular agents of the powers in Turkey is recognized, both as regards the above-mentioned persons and their religious, charitable, and other establishments in the holy places and elsewhere." 4 Hertslet, p. 2797. In 1891, Mr. Blaine, Secretary of State, sent a communication to the United States minister at St. Petersburg in regard to the treatment of Jews in Russia, closing with the statement of the posi- tion of the United States: "The government of the United States does not assume to dictate the internal policy of other nations, or to make suggestions as to § 23) DUTY OF NONINTERVENTION. 65 In general, it may be said that in actual practice intervention becomes a matter of policy. Nonintervention is the duty rest- ing upon states as regards one another's affairs. Each state must judge for itself of the propriety of intervention, or of an agreement to intervene vmder given conditions, and must then abide the consequences. In practice it has never been difHcult to find an ostensible reason for intervention in the affairs of a foreign state, w^hen the wish was present. Formerly the tender of good offices or of mediation by a third state, in case of disagreement between two states, was sometimes regarded as intervention, and as an unfriendly act; but the Hague Convention for the Pacific Settlement of Inter- national Disputes, 1907, provides that "the exercise of this right can never be regarded by the one or the other of the parties in dispute as an unfriendly act." ^^ Thus, for the states parties to the convention, constituting practically all civilized nations, the tender of good offices and mediation be- comes a right. Intervention as a policy has been avowed by a group of states as in the "balance of power" doctrine, and by a single state as in the "Monroe Doctrine." what their municipal laws should be, or as to the manner in which they should be administered. Nevertheless, the mutual duties of nations require that each should use its power with a due regard for the results which its exercise produces on the rest of the world. It is in this respect that the condition of the Jews in Russia is now brought to the attention of the United States, upon whose shores are cast daily evidences of the suffering and destitution wrought by the enforcement of the edicts against this unhappy people. I am persuaded that His Imperial Majesty the Emperor of Russia and his councilors can feel no sympathy with measux'es which are forced upon other nations by such deplorable consequences. "You will read this instruction to the minister of foreign affairs, and give him a copy if he desires it." Foreign Relations U. S., 1891, p. 739. 16 Title II, art. 3, Appendix, p. 520. Wfls.Int.L.— 5 66 EXISTENCE, INDEPENDENCE AND EQUALITY. (Cll. 2 POLICY OF INTERVENTION. 24. Tvtro Tirell-establislied policies have been based upon inter- vention, viz., the balance of po^ver in Europe, and the Monroe Doctrine in America. (a) The maintenance of the balance of po\eer implied that the members of the European family of nations ivould vieiv as a cause for intervention the concentration of such -poxveT in any one of its members as to enable that state to coerce the others. (b) The Monroe Doctrine implied that the United States TO-ould viewT as a just ground for intervention any at- tempt to extend European dominance on the American continent. The principle underlying the doctrine of the balance of power seems to be that the increase in the power of one state or the change in relations of states may endanger the existence of others ; hence it is necessary that states in such geograph- ical proximity as to be endangered must take measures for their preservation. There is no claim that the increase in power or change in relations may involve wrong dealing or injustice, but rather that, owing to the neighborhood of the states, their security as political unities is involved. This may be interpreted so as to justify the refusal of the fruits of con- quest or diplomatic negotiations to a state, or so as to uphold the government of a weak state, lest a strong state may absorb it, and thus disturb the equilibrium. (a) Some ideas of the European balance of power among states appear very early.^*^ The Treaty of Westphalia, 1648, embodies its principles. The Treaty of Utrecht between Great Britain and Spain, in 1713, gives as its object the establish- 16 Hill, speaking of the end of the fifteenth century, says: "Too distrustful of one another's designs to unite in permanent confederations, the Italians had learned to preserve their local inde- pendence by a system of diplomatic equilibrium. In the conflict for pre-eminence which was soon to fill the broader arena of Europe, the experience of Italy was to furnish the method by which the nations were to maintain their local sovereignty against imperial aspira- tions so colossal in their proportions as to render the pretensions of the past comparatively insignificant." II History of European Diplo- macy, p. 164. § 24) POLICY OF INTERVENTION. 67 ment of peace and tranquility in Christendom through a just equihbrium of power. This object was frequently reaffirmed in treaties during the eighteenth century. The memory of ac- quisition of great power in the hands of a single ruler at the time of Napoleon caused all European states to view with suspicion the increase of power in the hands of any ruler. To protect, to maintain, or to re-establish the balance of power or the European equilibrium was a common nominal object for which conferences were called and agreements made dur- ing the nineteenth century. The European states have particu- larly concerned themselves with the status of Southeastern Europe. Each power feared any movement which would change the conditions in these domains. An Asiatic rule at one of the most important strategic positions in Europe has been maintained through fear of the results if Constantinople should fall into the hands of a European power. Conferences,, in which representatives of the peoples directly concerned have not been present, have settled the boundaries, political' relations, etc., of countries of Southeastern Europe. (b) Referring to the claims of Russia on the northwest coast of the American continent, President Alonroe, in his message of December 2, 1823, said: "The occasion has been judged proper for asserting as a principle in which the rights and in- terests of the United States are involved that the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be consid- ered as subjects for future colonization by any European pow- ers." As to the attitude of the allied powers toward the states to the south of the United States he says : "We owe it, there- fore, to candor, and to the amicable relations existing between the United States and those powers, to declare that we should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. With the existing colonies or dependencies of any European power we have not interfered, and shall not inter- fere. But with the governments who have declared their in- dependence, and maintained it, and whose independence we have, on great consideration and on just principles, acknowl- edged, we could not view any interposition for the purpose of oppressing them, or controlling in any other manner their 68 EXISTENCE, INDEPENDENCE AND EQUALITY. (Ch. 2 destiny, by any European power, in any other light than as the manifestation of an unfriendly disposition toward the United States." Thus there was announced the doctrine that (1) the Ameri- can continents "are henceforth not to be considered as sub- jects for future colonization by any European powers"; (2) the United States would "consider any attempt on their part to extend their system to this hemisphere as dangerous to our peace and safety" ; and (3) as to existing governments on the American continent the United States would "not view any interposition for the purpose of oppressing them, or control- ling in any other manner their destiny, by any European pow- er, in any other light than as the manifestation of an un- friendly disposition toward the United States." This state- ment of policy received the name of the "Monroe Doctrine." ^'^ It is accepted that, while the doctrine is generally called by the name of the President, it was in a sense not his work, but was distinctly "the work of John Quincy Adams." ^* While the doctrine has never received formal sanction by Congress, Congress has many times taken action in accord with its principles. Secretaries of State have reaffirmed it. Presidents have interpreted it to meet the needs of the period, and, though no action was taken by the Hague Conferences, it was formally mentioned in the reservation under which the United States became a party to The Hague Conventions for the Pacific Settlement of International Disputes of 1899 and 1907. ^^ 17 President Monroe's Message, December 2, 1823. > 18 John Quincy Adams and the ^Monroe Doctrine, Worthiugtou C. Ford, 7 Amer. Historical Rev. 1902, (376, and 8 Id. 28 ; Reddaway, The Monroe Doctrine. 87 ; Hurt, Foundations of American Foreign Policy, 214; Tucker. The Monroe Doctrine, 12. 19 "Nothing contained in this convention shall be so construed as to require the United States of America to depart from its tradi- tional policy of not intruding upon, interfering with, or entangling itself in the political questions of policy or internal administration of any foreign state; nor shall anything contained in the said con- vention be construed to imply a relinquishment by the United States of America of its traditional attitude toward purely American ques- tions." TSTiile the United States participated in the International Confer- § 24) POLICY OF INTERVENTION. &9 In commenting' on this action, President Roosevelt gives a broad interpretation to the earher doctrine in his message of December 3, 1901 : "This same peace conference acquiesced in our statement of the Monroe Doctrine as compatible with the purposes and aims of the conference. "The Monroe Doctrine should be the cardinal feature of the foreign policy of all the nations of the two Americas, as it is of the United States. Just seventy-eight years have passed since President Monroe in his annual message an- nounced that 'the American continents are henceforth not to be considered as subjects for future colonization by any European power.' In other words, the Monroe Doctrine is a declaration that there must be no territorial aggrandizement by ence of Algeciras and with the European powers signed the General Act of April 17, 190G, it was done under reservation that this ac- tion was for the general protection of United States interests in Morocco and was without "assuming obligation or responsibility for. the enforcement thereof." The United States Senate appended a further explanation of the conditions of ratification to the effect that it was "without purpose to depart from the traditional Amer- ican foreign policy, which forbids participation by the United States in the settlement of political questions which are entirely European in their scope." 1 Amer. Jour. Int. Law, Official Documents, p. 47. In a pro memoria of December 11, 1901, the German ambassador to the United States distinctly announced the intention of Germany to observe the Monroe Doctrine while pressing the claims against Venezuela: "The Imperial Government proposes therefore to submit the recla- mations in question, which have been carefully studied and have been considered as well founded, directly to the Venezuelan Govern- ment, and to ask for their settlement. If the Venezuelan Govern- ment continues to decline as before, it would have to be considered what measures of coercion should be used against it. "But we consider it of importance to let first of all the Govern- ment of the United States know about our purposes, so that we can prove that we have nothing else in view than to help those of our citizens who have suffered damages, and we shall first take into con- sideration only the claims of those German citizens who have suf- fered in the civil war. "We declare especially that under no circumstances do we con- sider in our proceedings the acquisition or the permanent occupation of Venezuelan territory." Foreign Relations U. S., 1901, p. 194. 70 EXISTENCE, IXDETEXDENCE AND EQUALITY, (Ch. 2 any non-American power at the expense of any American pow- er on American soil. It is in no wise intended as hostile to any nation in the Old World. Still less is it intended to give cover to any agc^rcssion by one New World power at the ex- pense of any other. It is simply a step, and a long step, to- ward assuring the universal peace of the world by securing the possibility of permanent peace on this hemisphere. "During the past century other influences have established the permanence and independence of the smaller states of Europe. Through the Monroe Doctrine we hope to be able to safeguard like independence and secure like permanence for the lesser among the New World nations. "This doctrine has nothing to do with the commercial rela- tions of any American power, save that it in truth allows each of them to form such as it desires. In other words, it is really a guaranty of the commercial independence of the Americas. We do not ask under this doctrine for any exclusive commer- cial dealings with any other American state. We do not guar- antee any state against punishment if it misconducts itself, provided that punishment does not take the form of the ac- quisition of territory by any non- American power." -° In the message of December 6, 1904:, President Roosevelt says : "Chronic wrongdoing, or an impotence which results in a general loosening of the ties of civilized society, may in Amer- ica, as elsewhere, ultimately require intervention by some civil- ized nation, and in the Western Hemisphere the adherence of the United States to the Monroe Doctrine may force the United States, however reluctantly, in flagrant cases of such wrong- doing or impotence, to the exercise of an international police power." ^^ In the actual strain of diplomatic relations consequent upon the controversy over the boundary between Venezuela and British Guiana, the United States formally declared in 1895 the intention to support the Monroe Doctrine. President Cleveland said : "If the balance of power is justly a cause for jealous anxiety among the governments of the Old World, and a subject for 20 Foreign Relations U. S., 1901, p. xxxvi. 21 Foreign Relations U. S., 1904, p. xli. § 24) POLICY OF INTERVENTION. 71 our absolute noninterference, none the less is an observance of the Monroe Doctrine of vital concern to our people and their government. "Assuming, therefore, that we may properly insist upon this doctrine, without regard to 'the state of things in which we live,' or any changed conditions here or elsewhere, it is not apparent why its application may not be invoked in the present controversy. "If a European power, by an extension of its boundaries, takes possession of the territory of one of our neighboring Republics, against its will and in derogation of its rights, it is difficult to see why to that extent such European power does not thereby attempt to extend its system of government to that portion of this continent which is thus taken. This is the precise action which President Monroe declared to be 'dan- gerous to our peace and safety,' and it. can make no difference whether the European system is extended by an advance of frontier or otherwise." ^^ The principles set forth in the Monroe Doctrine have been variously interpreted."^ Foster, reviewing American diplo- macy from 1776 to 1876, says : "From the foregoing historical review I think it may be fairly deduced that the principle or policy of the government ot the United States, known as the Monroe Doctrine, declares affirmatively : "First. That no European power, or combination of powers, can intervene in the affairs of this hemisphere for the purpose, or with the effect, of forcibly changing the form of govern- ment of the nations, or controlling the free will of their people. "Second. That no such power or powers can permanently acquire or hold any new territory or dominion on this hemi- sphere. "Third. That the colonies or territories now held by them cannot be enlarged by encroachment on neighboring territory, nor be transferred to any other European power; and, while the United States does not propose to interfere with existing 2 2 Foreign Relations U. S., pt. 1, 1S95, p. 542. 2 3 6 Moore, §§ 927-969. 72 EXISTKXCK, INDEPRNDKNCH AND EQUALITY. (Ch. 2 colonies, 'it looks hopefully to the time when * * * Amer- ica shall be wholly American.' "Fourth. That any interoceanic canal across the isthmus of Central America must be free from the control of European powers. "While each of the foreg^oing declarations has been officially recognized as a proper application of the Monroe Doctrine, the government of the United States reserves to decide, as each case arises, the time and manner of its interposition, and the extent and character of the same, whether moral or material, or both. "The Monroe Doctrine, as negatively declared, may be stated as follows : "First. That the United States does not contemplate a per- manent alliance with any other American power to enforce the doctrine, as it determines its action solely by its view of its own peace and safety ; but it welcomes the concurrence and co-operation of the other in its enforcement, in the way that to the latter may seem best. "Second. That the United States does not insist upon the exclusive sway of republican government ; but, while favoring that system, it recognizes the right of the people of every country on this hemisphere to determine for themselves their form of government. "Third. That the United States does not deny the right of European governments to enforce their just demands against American nations, Avithin the limits above indicated. "Fourth. That the United States does not contemplate a protectorate over any other American nation, seek to control the latter's conduct in relation to other nations, nor become re- sponsible for its acts." ^* In 1902, in a note, Mr. Drago, the Minister of Foreign Re- lations of the Argentine Republic, referring to the collection of loans by military means, said that this practice upon the part of the European states as regards South American states implied territorial occupation of South American states. He stated that : "Such a situation seems obviously at variance with the principles many times proclaimed by the nations of 2 4 Foster, A Century of American Diplomacy, 1776-1876, p. 475. § 25) RIGHT OF EQUALITY. 73 America, and particularly with the Monroe Doctrine, sustained and defended with so much zeal on all occasions by the United States, a doctrine to which the Argentine Republic has hereto- fore solemnly adhered. * * * In a word, the principle which she [the Argentine Republic] would like to see recog- nized is: That the public debt cannot occasion armed inter- vention, nor even the actual occupation of the territory of American nations, by a European power." ^^ This principle is known as the "Drago Doctrine." The United States an- nounced that, without expressing assent to or dissent from the propositions, the general position of the government had been expressed in the President's message of December 3, 1901 : "We do not guarantee any state against punishment if it mis- conducts itself, provided that punishment does not take the form of the acquisition of territory by any non-American power," This principle, brought before the Hague Conference of 1907 by the American plenipotentiary, General Porter, after discussion, took form in a Convention Respecting the Limita- tion of the Employment of Force for the Recovery of Contract Debts : "Art. I. The contracting powers agree not to have. recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals." The United States did not in this convention, as in the case of the Convention for the Pacific Settlement of International Disputes, enter the reservation embodying the Monroe Doc- trine. RIGHT OF EQUALITY. 25. Eacb state of the family of nations is regarded as having similar privileges, immunities, and duties, as regards international law^, though inequalities may exist in the amount of poxver '^hich each may exercise in in- terstate relations. The breaking up of the political unity of Christendom in the sixteenth century brought new theories of the state. Bodin's 2 Foreign Relations U. S., 1903, p. 3. 74 EXISTENCE, INDEPENDENCE AND EQUALITY. (Cll. 2 theory of sovereignty as absolute, indivisible, and inalienable made comparatively simple the development of the doctrine of the equality of states under the influence of the concepts of natural law current at that period. Grotius (1583-1645), strongly influenced by the theory of natural law, emphasizes the necessity for the recognition of equality in the domain of law.-® The equality was not of power, territory, popula- tion, influence, or honor, but equality in the sense of having the same attributes as states. On the ground of equality, re- gardless of extent of territory or number of population, each state of the family of nations has a similar status at interna- tional law. The doctrine of equality has been denied by many writers upon international law, and certainly in wealth, in age, and in many other respects states are not equal. However, whether wisely or unwisely, in the two recent international conferences at The Hague in 1899 and in 1907, the equality of states tak- ing part in the conferences was fully recognized in voting up- on the matters under consideration. In actual practice, inequalities exist in the amount of in- fluence exercised by different states. Austria-Hungary, France, Germany, Great Britain, Italy, and Russia are recog- nized as the Great Powers in Europe. Certain others are rec- ognized as the Minor Powers. In recent years, those states which have possessions of such wide extent as to involve them in relations with many other states have come to be called "World Powers." Not all the Great Powers of Europe are in- cluded among the World Powers, and other than European states have equal claim to be regarded as Great Powers. Other inequalities are manifest in matters of ceremonial and precedence. Such marks of inequality frequently have their bases in conditions which have ceased to exist, as when king- doms claimed precedence over republics, because kingdoms were regarded as entitled to royal honors, or when kings and emperors claimed the sole right to send diplomats of the rank of ambassadors. Each state now claims equal right to determine the form of its internal government, whether monarchical or republican, the 2 8 Grotius, De Jure Belli ac Pacis, Prolegomena xxiii. § 25) RIGHT OF EQUALITY. 75 privileges due to its personality, and immunity from any ac- tion on the part of other states which would be in derogation of its sovereignty. In 1825 Chief Justice Marshall maintained that: "No prin- ciple of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be devested only by con- sent. * * * As no nation can prescribe a rule for others, none can make a law of nations." ^^ 2T The Antelope, 10 Wheat. 66, 6 L. Ed. 268. 76 PROPERTY AND DOMAIN. (Cb. 3 CHAPTER III. PROPERTY AND DOMAIN. 2G. Property. 27. Domain. 28. Acquisition of Territorial Domain. 29. Maritime and Fluvial Domain. 30. Aerial Donuiin. PROPERTY. 26. A state, as a public person, may hold property in tlie sense o£ absolute ournersbip, and the treatment of such property, both in peace and in Ttrar, may be determined by the status of the owner, rather than by the locus and nature of the thing itself. In time of peace, public property, as vessels belonging to one state within the ports of another state, or the official residences of diplomats, receive special exemptions.^ In the time of war, public property of one belligerent state is liable to special se- verity of treatment by the other belligerent. Cash, funds, and property liable to requisition, and belonging strictly to the state, is liable to be taken, while similar property belonging to pri- vate persons, if appropriated, must be made good at the con- clusion of peace.* Neutral public property also receives special 1 Vavasseur v. Krupp, L. R. 9 Ch. Div. 351, Scott's Cases, 182 seq. "As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sov- ereign state to respect the independence of every other sovereign state, each and every one declines to exercise, by means of any of its courts, any of its territorial jm-isdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction." The Parlement Beige, L. R. 5 P. Div. 197. 2 Hague Convention, Laws and Customs of War on Laud, art. r>'6. Appendix, p. f)44. § 26) PROPERTY. 7t exemption in time of war. A neutral public vessel is exempt from visit and search, to which a neutral private vessel is li- able. On the other hand, in time of war the neutral state can- not give the same privileges to certain public vessels of the belligerents as in time of peace, e. g., in permitting equipment in the neutral port; while private vessels in time of war are generally allowed the same privileges as in time of peace. The public property appertaining to a given territory passes from one state to another on the transfer of sovereignty, but the status of private property would remain unchanged so far as it was not repugnant to the laws of the new sovereign.' 3 "By the cession public property passes from one goverument to the other, but private property remains as before, aucl with it those municipal laws which are designed to s.ecure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regula- tions in conflict with the political character, institutions, and con- stitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power — and the latter is involved in the former — to the United States, the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect ; and the laws of the country on other subjects would necessarily be superseded by exis.ting laws of the new government upon the same matters. But with respect to other laws affecting possession, use, and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed." Chicago, R. I. & P. Ry. Co. v. McGlinn, 114 U. S. 542, 5 Sup. Ct. 1005, 29 L. Ed. 270. "No proceedings affecting the rights of the new sovereign over public property can be taken, except in pursuance of his authority on the subject." More v. Steinbach, 127 U. S. 70, 8 Sup. Ct. 1067, 32 L. Ed. 51. The nature of the transfer is indicated in the Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, 1898: "Whereas, the government of the Republic of Hawaii having in due form s.ignified its consent, in the manner provided by Its Constitution, to cede, absolutely and without reserve, to the United States of America, all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and owner- 78 PROPERTY AND DOMAIN. (Cll. 3 Under the right of eminent domain, a state, in accordance with the laws, has the right to resume, when pubHc interest re- quires it, possession of any property within the state. DOMAIN. 27. The term "domain," or sonietimes "territory," is used to cover the sphere within which a state may exercise its sovereignty. The word "territory," from its derivation and history, nat- urally emphasizes the idea of sovereignty over land, which is an essential condition of state existence. The word "domain" refers rather to the entire range of exercise of dominion. It is accordingly becoming more common to use the word "ter- ritory" in the stricter sense as applying to the land of a state, over which the sovereignty is more absolute than over the wa- ter or atmosphere. While the term "maritime territory" is sometimes used, it seems to involve a contradiction, as would "aerial territory." Domain may accordingly be (a) Territorial, (b) Maritime or fluvial, or (c) Aerial. (a) As against all other states, a state has exclusive title to all its land and its appurtenances, and a paramount title as re- gards its own subjects, as is shown in the right of eminent do- main. The territorial domain its coterminous with the land belonging to the state or under its sovereignty for the time be- ing. (b) In general, the sovereignty over maritime and fluvial do- main is limited, and rights of the state to the neighboring sea and certain other waters are not exclusive. Wheaton says : "Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others ship of all public, government, or crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the govern- ment of the Hawaiian Islands, together with every right and ap- purtenance thereunto appertaining." 30 Stat. 750. § 28) ACQUISITION OF TERRITOKIAL DOMAIN. 79 from using these elements in any manner which does not occa- sion a loss or inconvenience to the proprietor."* (c) The principle enunciated by Wheaton above applies in a general way to aerial domain. ACQUISITION OF TERRITORIAJL DOMAIN. 28. Tlie title to territorial domain is now usually based on occupation, prescription, accretion, conquest, or ces- sion. The methods of acquisition of title to territorial domain have been variously classified. Some writers recognize only two or three methods, from which others are derived; others enu- merate a large number.^ The methods most commonly ac- cepted at present are (a) occupation; (b) prescription; (c) accretion; (d) conquest; (e) cession. (a) Occupation is the basis of the title to the original terri- torial domain of many states. An inchoate title is obtained by discovery of land hitherto unknown to civilized states ; but, in order that this title may be good against other states, it must be followed by occupation,^ or by some other act which may be 4 "S\n3eaton, International Law, § 193. s Ullmau, Volkerrecht, § 81, derives all forms from cession and occupation. 6 "On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all ; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European govern- ments, which title might be consummated by possession. "The exclusion of all other Europeans necessarily gave to the 80 PROPEUTV AND DOMAIN. (Cb. 3 similarly construed. General Act, chapter VI. article 34, of the Berlin Conference, 1885, makes special provision in re- gard to the acquisition of land on the coasts of the African continent, requiring that : "Any power which henceforth takes possession of a tract of land on the coasts of the African continent outside of its present possessions, or which, being hitherto without such pos- sessions, shall acquire them, as well as the power which as- sumes a protectorate there, shall accompany the respective act with a notification thereof, addressed to the other signatory powers of the present act, in order to enable them, if need be, to make good any claims of their own. "The signatory powers of the present act recognize the obli- gation to insure the establishment of authority in the regions occupied by them on the coasts of the African continent suf- ficient to protect existing rights, and, as the case may be, free- nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. "Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. * * * If the discovei'y be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled that the discovery is made for -the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ in w-hich all vacant territory is vested by law." Johnson v. Mcintosh, 8 Wheat. 543, 5 L. Ed. 681. "By law of nations, recognized by all civilized states, dominion of new territory may be acquired by discovery and occupation, as well as by cession and conquest; and when citizens or subjects of one nation, in its name, and by its authority, or with its assent, take and hold actual, continuous, and useful possession (although only for the purpose of carrying on a particular business, such as catch- ing and curing fish, or working mines) of territory unoccupied by any other govei'nment or its citizens, the nation to which they belong may exercise such jurisdiction and for such period as it sees fit over territory so acquired." .Tones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. G91. § 28) ACQUISITION OF TERRITORIAL DOMAIN. 81 dom of trade and of transit under the conditions agreed up- on." ' The Institute of International Law, at its session in 1888, ap- proved the plan of obligatory declaration in case of assumption of possession of such new territory, accompanied by the es- tablishment of responsible local authority. In early days the possession of the coast land was often made the basis of a claim to unlimited interior. "Title by oc- cupation extends as a rule to that area, not under the jurisdic- tion of another state, which is necessary for the safety of the occupied area, or is naturally dependent upon it, as to the ter- ritory drained by a river of which a given state holds the mouth." ^ The so-called "Hinterland Doctrine," maintained by some of the European states, is to the effect that the occupation of coast gives a claim to the unexplored interior. The theory of a potential right of domain without exploration or occupa- tion has been advanced in extreme forms in some of the agreements between states as to "spheres of influence." By the declaration of Germany and Great Britain, in 1886, in re- gard to their spheres of influence in the Western Pacific, "Ger- many engages not to make acquisitions of territory, accept pro- tectorates, or interfere with the extension of British influence, and to give up any acquisitions of territory or protectorates already established in that part of the Western Pacific lying to the east, southeast, or south of the said conventional line." Great Britain is similarly bound. Both make the following reservations : "This declaration does not apply to the Naviga- tor Islands (Samoa), which are affected by treaties with Great Britain, Germany, and the United States ; nor to the Friendly Islands (Tonga), which are affected by treaties with Great Britain and Germany; nor to the island of Nine (Savage Is- land), which groups of islands shall continue to form a neutral region; nor to any islands or places in the Western Pacific which are now under the sovereignty or protection of any oth- er civilized power than Great Britain or Germany." " 7 Pari. Papers, Africa No. 4 (1SS5) p. 313. 8 Wilson & Tucker, Int. Law (5th Ed.) p. 109. Pari. Paper.s, Misc. No. 2 (1S9S) G-9088, p. 126. WiLS.lNT.L.— 6 82 PROPEKTY AND DOMAIN. (Cb. 3 (b) Title to domain may be acquired by prescription through uninterrupted and uncontested possession going be3^ond mem- ory. The Roman law idea of "usucapio," that long-continued use of real property became transmuted into ownership, strongly influenced the early writers.^*' On admission to the family of nations a previously existing state is usually regarded as hav- ing that territorial domain of which it has had long possession and such other domain as was within its efifective control at the time of admission ; e. g., Japan was admitted with the islands over which it had long had dominion and with Formosa, which it had obtaind from China in 1805. This immemorial prescrip- tion, by which de facto possession was converted into de jure possession, has been modified by the introduction of conven- tional periods as sufficient to constitute possession. ^^ The length of the necessary period has not been defined. Volun- tary abandonment or dereliction by the original possessor gives to the new possessor a title by occupation, which may be strengthened by prescription. (c) Accretion is the addition to the land area of a state through the operation of natural or artificial means. The ad- dition to the land may be by alluvium, as when new deposits of soil are thrown above the water, or by dereliction, when the water subsides so as to leave a greater exposed area. Deltas at the mouths of rivers through accretion frequently add much to the territorial domain. The territorial domain may also be enlarged through the construction of breakwaters, dykes, or other artificial extensions of the land area of the state. Accre- tions, whether natural or artificial, within the boundaries of a state, belong to that state. (d) Conquest is the forcible acquisition of territory, and is 10 Grotius, lib. II, C, lY, ix. 11 The rules for determining the disputed boundary between Brit- ish Guiana and Venezuela, adopted in 1897, provide: "Adverse holding or prescription during a period of fifty years shall make a good title. The arbitrators may deem exclusive political control of a district, as well as actual settlement thereof, sufficient to constitute adverse holding or to make title by prescription." Foreign Relations U. S., 1896, p. 254. § 28) ACQUISITION OF TERRITORIAL DOMAIN. 83 regarded as an incident of national sovereignty.^^ "Conquer- ed territory, however, is usually held as a mere military occupa- tion until the fate of the nation from which it is conquered is determined ; but if the nation is entirely subdued, or in case it be destroyed and ceases to exist, the right of occupation be- comes permanent, and the title vests absolutely in the conqueror. Complete conquest, by whatever mode it may be perfected, car- ries with it all the riglits of the former government ; or, in oth- er words, the conqueror, by the completion of his conquest, be- comes the absolute owner of the property conquered from the enemy, nation, or state." ^^ (e) Cession, the transfer of the domain of one state to an- other state, has been very common in international practice. The form and conditions of cession have varied greatly. There may be cession as a result of war, or cession by gift, sale, ex- change, or other international act. The treaty of cession us- ually prescribes the conditions under which the transfer is made, and unless otherwise agreed upon a treaty of cession is 12 Church of .Tesus Christ of Latter-Day Saints v. United States, 13G U. S. 42, 10 Sup. Ct. 792, 34 L. Ed. 478. 13 "The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall re- main as eligible as is compatible with the objects of the conquest. Most usually they are incorporated- with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other, the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain -unimpaired, that the new subjects should be governed as equitably as the old, and that confidence in their se- curity should gradually banish the painful sense of being separated from their ancient connections and united by force to strangers." Johnson v. Mcintosh, 8 Wheat. 543, 5 L. Ed. 681. That inhabitants should be secure in their liberty and property on transfer of sovereignty is "but the recognition of modern usages of civilized nations, which have acquired the force of law even in the case of an absolute and unqualified conquest of an enemy's country." United States v. De Repentigny, 5 Wall. 211, 18 L. Ed. 627; United States v. Huckabee, 16 Wall. 414, 21 L. Ed. 457. 84 PROPERTY AND DOMAIN. (Ch. 3 binding from the date of signing.'^ Spain in 1898 ceded the is- land of Porto Rico to the United States as a result of war. Gift of territory was common in the early days, when the ter- ritory of the state was often regarded as the personal property of the ruler, as when the Emperor Charles V conferred the Austrian provinces on Ferdinand. Spain ceded the Philippine Islands to the United States in 1898 for $20,000,000.^^ In 14 Chief Justice Marshall said: "The sovereign who acquires au inhabited territory acquires full dominion over it ; but this dominion is never supposed to devest the vested rights of individuals to property." Delassus v. United States (1835) 9 Pet. 117. 9 L. Ed. 71 ; United States v. De la Maza Arre- dondo, G Pet. G91, 8 L. Ed. 547 ; United States v. Percheman, 7 Pet. 51, 8 L. Ed. 604 ; Strother v. Lucas, 12 Pet. 410, 9 L. Ed. 1137 ; Davis v. Concordia Parish, 9 How. 280, 13 L. Ed. 138. 15 "By the third article of the treaty Spain ceded to the United States 'the archipelago known as the Philippine Islands,' and the United States agreed to pay Spain the sum of $20,000,000 within three months. The treaty was ratified. Congress appropriated the money. The ratification was proclaimed. The treaty making pow- er, the executive power, the legislative power, concurred in the com- pletion of the transaction. "The Philippines thereby ceased, in the language of the treaty, 'to be Spanish.' Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same, although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they be- came entitled to its protection."' The Diamond Rings, 183 U. S. 176, 22 Sup. Ct. 59, 46 D. Ed. 138. See, also, De Lima v. Bidwell, 182 U. S. 1. 21 Sup. Ct. 743, 45 L. Ed. 1041; Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074; Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088. On February 14, 1899, it was resolved by Congress: "That by ratification of the treaty of peace with Spain it is not intended to incorporate the inhabitants of the Philippine Islands Into citizenship of the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States; but it is the intention of the United States to establish on said islands a government suitable to the wants and conditions of the inhabitants of said islands to prepare them for local self- government, and in due time to make such disposition of said § 29) MARITIME AND FLUVIAL DOMAIN. 85 1890 Germany recognized a British protectorate over Zanzibar and Pemba, and in return Great Britain ceded to Germany the island of Heligoland in the North Sea. A state may cede its own domain, in order to become a part of another state, as in the case of the annexation of the Republic of Hawaii to the United States in 1898.^* MARITIME AND FLUVIAI. DOMAIN. 29. Maritime and fluvial domain includes tlie water area Avithin the boundaries of a state and xritliin conven- tional limits of its shores. The Roman Law early provided that the aerial, maritime, and fluvial domain was of a less absolute character than terri- torial domain, stating that, unlike territory, the use of such things is common to mankind under certain limitations.^^ Domain over certain water area is incident to the possession of the territorial domain, and passes to the holder of the land, though the sea and land are regarded as distinct in Great Brit- ain.^* islands as will best promote the interests of the United States and the inhabitants of said islands." 16 For relations between United States and Hawaii, 1820 to 1893, see Foreign Relations U. S., 1894, Appendix II. 17 "Et quidem naturali jure communia sunt omnium hjec, aer, aqua profluens, et mare et per hoc litora maris. Nemo igitur ad litus maris accedere prohibetur, dum tamen villis et monumentis et a?dificiis abstineat: quia non sunt juris gentium, sicut et mare." Digest, 1, 8, 2, I. 18 MoUoy maintains that: "The right to the sea ariseth not from the possession of the shores ; for the sea and land make distinct territories, and by the laws of England, the land is called the realm, but the sea the dominion ; and as the loss of one province doth not infer that the prince must resign up the rest, so the loss of the land territory doth not by concomitancy argue the loss of the adja- c-ent sea." De Jure Martino, c. 5. In the discussion as to relative rights of parties to minerals under the sea above and below low-water mark in the sea adjoining Corn- wall, there was no question that the land under the sea was within the domain of Great Britain and "a part of the soil and territorial possessions of the Crown." See remarks thereon In Regina v. Keyn, L. R. 2 Ex. Div. 63, 121, 155, 199. 86 PROPERTY AND DOMAIN. (Cll. 3 (a) Waters wholly within the territorial domain of a state are under the exclusive dominion of the state. This applies particularly to inland seas, lakes, and the rivers discharging into them. (b) Rivers flowing wholly within the territorial domain of a state are regarded as the projjerty of that state. Domain in rivers which form the boundary line of two states, in default of other evidence, extends to the middle of the navigable chan- nel, or thalweg. Title to the entire river may be acquired, as in cases of territorial domain.^® (c) The coast waters of the open sea to the distance of three miles from the low-water mark are for certain purposes with- in the maritime domain. The title to this domain goes with the title to the coast. The three-mile limit of domain has grad- ually received favor, though much more extended claims have been made.^° in "WTien a great river is the boundary between two nations or states, if tbe original property is in neither, and there be no conven- tion respecting it, each holds to the middle of the stream. But when, as in this case, one state is the original proprietor, and grants the territorj- on one side only, it retains the river within its own domain, and the newly-created state extends to the river only. The river, however, is its boundary, * * * Even when a state retains its dominion over a river which constitutes the boundary between itself and another state, it would be extremely inconvenient to extend its dominion over the land on the other side, which was left bare by the receding of the water. And this inconvenience is not less where the rising and falling is annual than where it is diurnal. Wherever the river is a boundary between states, it is the main, the permanent, river which constitutes that boundary; and the mind will find itself embarrassed with unsurmountable difficulty in attempting to draw any other line than the low-water mark." Handly v. Anthony, 5 W-hent. 374, 5 L. Ed. 113. 2 Solden, Mare Clausum, published in 1035, opposed Grotius' Mare Liberum, published 1G09. and maintained that British sovereignty over the coast sea extended even to the North Pole, and that the sea might properly be private propert.v. INIany writers also followed Selden's claim that the fundus maris, or the sea bottom, was a "part of the waste and demesnes and dominions of the King of England." Till the decision in Regina v. Keyn [1876] L. R. 2 Ex. Dlv. G3. the British limits of maritime domain were subject to dispute. This decision was followed by an act of Parliament, "Territorial Waters Jurisdiction Act, 1878," which provided: "The territorial waters of § 30) AERIAL DOMAIN. 87 (d) Gulfs, bays, and other arms of the sea, whose openings toward the sea do not exceed six miles in width, are uni- formly regarded as within the maritime domain of the state which holds the coast land. There are various claims to more extended domain. ATRIAL DOMAIN. 30. Aerial domain inclndes tlie atmospliere above tlie terri- torial, maritime, and fluvial domain of a state. The dominion over the air has received consideration for many years. Some would date the discussion from the first chapter of the book of Genesis, when man is given "dominion over the fish of the sea and over the fowl of the air." Of this Pufendorf in 1672 says : "We cannot conceive any supremacy and rule over animals, without a right of using the element which they inhabit, according as the nature of it will allow. Indeed, mention is likewise made of the fowls of the air, yet since we cannot move and support ourselves in that element alone, therefore we are unable to exercise dominion over the air any further than we can reach while we stand on the earth." "^ Early writers, however, recognize certain rights in the atmosphere, as the right to the wind for mills depending upon currents of air for power, as later mills depended upon the force of water. The early writers usually referred to the Roman law principle that by the law of nature the air, run- ninof water, the sea, and shores of the sea were common to mankind.- - Her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions, as is deemed by in- ternational law to be within the territorial sovereignty of Her ^Majesty ; and for the purpose of any offense declared by this act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions." 21 Pufendorf, The Law of Nature and Nations (Kennet's Trans.) bli. ly, c. V, § V. 2 2 Institutes, lib. II, tit. I, 1. See, also, Nys, Droit et Aerostats Rev. de Droit Int. et de Leg. Comparee (2e serie) IV, p. 510. 88 PROPERTY AND DOMAIN. (Cll. 3 The atmosphere above the state is within its domain, and this is generally recognized in the unquestioned appropriation of the space above the state area for the erection of buildings, monuments, bridges, etc., as well as in the ordinary use of the atmosphere. It would not be reasonable to attribute to a state property rights in the atmosphere. Such rights would neither be consistent with the nature of the atmosphere itself nor with the rights of others. Yet, with the increasing use of the at- mosphere for aerial transportation both of messages and per- sons, it is evident that it cannot be regarded as in all respects res nullius. With the development of modern war balloons and of wire- less telegraphy, there would naturally be a corresponding de- velopment of dominion over the atmosphere. The war balloons would bear a close resemblance to war ships in certain re- spects ; e. g., the war ship might sink if its buoyancy were re- duced through the entrance of water, while the balloon might sink if its buoyancy were reduced through the entrance of air. In time of peace, unregulated use of the atmosphere by wire- less telegraphy might destroy the efficiency of this means of communication. Photographing of or observations upon for- tifications from any means of aerial transportation would be no less objectionable, because made from above, rather than on the surface of a state. States have already begun to make agreements upon the subject of wireless telegraphy. The In- stitute of International Law at its session in 1906 declared that, while the air was free, a state had the right to regulate the use of the atmosphere above its territorial and maritime domain for the transmission of wireless messages, whether from public or private stations on land, or sea, or in the air.^^ The United States has in recent years asserted that the at- mosphere was within the domain of the state. In the case of Georgia v. Tennessee Copper Co., in 190G, the Supreme Court of the United States said that, while the state itself owned very little of the property alleged to have been damaged by the discharge of gases into the air, yet in its capacity of quasi sovereign "the state has an interest, independ- 23 21 Annuaire de I'lnstitut, p. S27. See post, p. 122, note 52, chap- ter IV. • § 30) AERIAL DOMAIN. 89 ent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air." "* In 1907 the Supreme Court of the United States said that: "It is recognized that the state, as quasi sovereign and representative of the interests of the public, has a standing in court to protect the atmosphere, the water, and the forests within its territory, irrespective of the assent of the private owners of the land most immediately concerned." ^^ The German Civil Code, which came into effect January 1, 1900, announces certain principles in regard to the rights of the owner of land in the atmosphere : "904. The owner of a thing has not the right to prohibit the mterference of another with the same, if the interference is necessary to avert a present danger and the threatened damage compared to the damage arising to the owner from the inter- ference is disproportionatel}^ great. The owner may demand indemnity for the damage to him. "905. The right of the owner of a piece of land extends to the space above the surface and to the earth under the surface. However, the owner cannot prohibit interferences which take place at such height or depth that he has no interest in their ex- clusion. "906. The owner of a piece of land cannot prohibit the in- coming of gases, steam, odors, smoke, soot, heat, noises, shocks and similar interference coming from another piece of land in so far as the interference does not, or only inconsiderably, af- fect the use of his land, or so far as it is caused by a use of the other piece of land, which under the local condition is usual with land in such situation. The introduction through a spe- cial channel is not permissible." '° Other codes enunciate similar principles, showing that the owner of the land has a right to demand that the use of the at- mosphere above the land may not be to his serious detriment. 24 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038. 25 Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct. 529. 52 L. Ed. 828. 2 6 Loewy, German Civil Code, Nos. 904-906. 90 PROPERTY AND DOMAIN. (Ch. 3 The general drift of opinion is toward the recognition that the right of aerial dominion is coterminous with the territorial jurisdiction of a state, and that to the extent a state is ahle to enforce its jurisdiction within such area it must he recognized, provided it is not an infringement of the rights of other states."^ 2 7 See 2 Holtzendorff, Handbuch, § 4G; 1 Rivier. Droit de Gens, p. 140; 1 Nys, Droit lut p. 523; 4 A. J. I. L. Baldwin, Law of the Air Sliip, p. 95; Id., Kuhn, Begiuuiugs of an Aerial Law, p. lOS. § 31) JURISDICTION. 91 CHAPTER IV. JURISDICTION. 31. Jurisdiction. 32. Jurisdiction oyer Territory and Property — General. 33. Joint Jurisdiction. 34. Leased Territory. 35. Maritime and Fluvia] Jurisdiction— Marginal Seas. 36. Straits. 37. Gulfs and Bays. 38. Inland Seas and Lalies. 39. Rivers. 40. Navigation. 41. Fisheries. 42. Vessels. 43. Aerial Jurisdiction. 44. Jurisdiction over Persons — Nationals. 45. Acquisition of Nationality. 46. Expatriation. 47. Protection of Nationals. 48. Aliens. 49. Extradition. 50. Exemptions from Jurisdiction. 51. Extraterritorial Jurisdiction. 52. Servitudes. JURISDICTION. 31. Jurisdiction, the right to exercise state authority, extends in general to all persons and things within the hound- aries of the state, and, conditioned by the rights of other states, to the property and subjects of the state beyond its boundaries.i Jurisdiction, the right to exercise state authority, may have its basis in property right, in the right of domain, or in pohtical 1 Mr. Justice Story said in 1S22: "It may therefore be justly laid down as a general proposition that all persons and property within the territorial jurisdiction of a sovereign are amenable to the jurisdiction of himself or his courts, and that the exceptions to this rule are such only as by common usage and public policy have been allowed, in order to preserve the peace and harmony of nations, and to regulate their intercourse in a manner best suited to their 92 JURISDICTION. (Ch. 4 relationship, and may extend where property or domain does not exist. In general, jurisdiction may be classified as (a) jurisdiction over territory and property; (b) maritime and fluvial jurisdic- tion; (c) aerial jurisdiction; and (d) jurisdiction over persons. JURISDICTION OVER TERRITORY AND PROPERTY — GENERAL. 32. As a general principle the jurisdiction of a state is ex- clusive over its own land area, and over all property within its boundaries, and over its ow^n and the prop- erty of its nationals w^hich is not w^ithin the bound- aries of another state. Chief Justice Marshall in 1812 said: "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no lim- itation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its own sovereignty to the extent of the restriction, and an in- vestment of that sovereignty to the same extent in that power which could impose such restrictions. "All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. "This consent may be either expressed or implied. In the latter case, it is less determinate, exposed more to the uncer- tainties of construction, but, if understood, not less obliga- tory." 2 As against all other states, a state is regarded as proprietor of the land within its boundaries. A state may not exercise any act of state authority upon the land of a foreign sovereign without permission ; e. g., may not march troops upon foreign land even in time of peace. A state has exclusive jurisdiction over its property and the dignity and rights." The Santissima Trinidad, 7 Wheat. 283, 5 L. Ed. 454. 2 Schooner Exchange v. McFaddon, 7 Cranch, 116, 3 L. Ed. 287. § 33) JURISDICTION OVER TERRITORY AND PROPERTT. 93 property of its subjects outside the boundaries of any other state. This jurisdiction extends over property throughout its own domain and throughout the extent of space which is with- in the dominion of no state, as on the high seas for property under its own flag. This jurisdiction over property extends to patents, copy- rights, etc., which ma)'- be made the subject of international agreement. The jurisdiction over property and territory im- pHes the right to protect territory and property by such means as may be necessary. SAME— JOINT JURISDICTION. 33. In recent years joint jurisdiction lias been in certain in- stances exercised by t^vo or more states in the same area in accord iiritli conventional agreements. The exercise of joint jurisdiction — condominium — does not necessarily imply the possession of sovereignty by those states exercising jurisdiction. The local state possessing sovereignty may or may not itself be a party to the agreement. The au- thority exercised is specified in the agreement, and an obliga- tion corresponding to the right is generally assumed, unlike the usual practice in case of assumption of a sphere of in- fluence. The condominium would naturally be based on conventional agreement, in order that there might not be conflict of juris- diction. The exercise of power may cease with the joint sanc- tion of the appointment of an official to represent the states in all matters, or the jurisdiction over specified matters may be retained by each state. By a general act, concluded by the United States, Germany, and Great Britain in 1889, and remaining in force till 1899, ar- ticle I : "It is declared that the Islands of Samoa are neutral terri- tory in which the citizens and subjects of the three signatory powers have equal rights of residence, trade and personal pro- tection. The three powers recognize the independence of the Sainoan government and the free right of the natives to elect their chief or king and choose their form of government ac- 94 JURISDICTION. (Ch. 4 cording to their own laws and customs. Neither of the powers shall exercise any separate control over the islands or the gov- ernment thereof. "It is further declared, with a view to the prompt restora- tion of peace and good order in the said islands, and in view of the difficulties which would surround an election in the pre- sent disordered condition of their government, that Malietoa Laupepa, who was formerly made and appointed king on the 12th day of July, 1S81, and was so recognized by the three powers, shall again be so recognized hereafter in the exercise of such authority, unless the three powers shall by common ac- cord otherwise declare ; and his successor shall be duly elected according to the laws and customs of Samoa." This general act provides for the establishment of a "Su- preme Court of Justice for Samoa," with extended powers for taxation and other matters of administration. By an agreement of January 19, 1899 between Great Britain and Egypt as to the condominium over Soudan : "II. The British and Egyptian flags shall be used together on land and water throughout the Soudan. * * * "III. The supreme military and civil command in the Soudan shall be vested in one officer, termed the 'Governor General of the Soudan.' He shall be appointed by Khedviral decree on the recommendation of Her Britannic Majesty's government." ^ The Convention of October 20, 1906 between Great Britain and France concerning the New Hebrides is one of the most detailed statements as to the exercise of joint jurisdiction. The general provisions state : "Article I. Status — 1. The group of the New Hebrides, in- cluding the Banks and Torres Islands, shall form a region of joint influence, in which the subjects and citizens of the two signatory powers shall enjoy equal rights of residence, per- sonal protection, and trade, each of the two powers retaining jurisdiction over its subjects or citizens, and neither exercis- ing a separate control over the group. "2. The subjects or citizens of other powers shall enjoy the same rights and shall be subject to the same obligations as British subjects or French citizens. They must choose within 8 19 Br. and For. State Papers, 119. § 34) JURISDICTION OVER TERRITORY AND PROPERTY. 95 six months between the legal systems of one of the two powers. Faihng such choice, the High Commissioners mentioned in ar- ticle II or their delegates shall decide under which system they shall be placed. "3. In all matters not contrary to the provisions of the pre- sent Convention or the regulations made thereunder, the sub- jects and citizens of the two signatory powers and the subjects and citizens of other powers shall, within the New Hebrides, remain subject to the fullest extent to the laws of their re- spective countries. "4. The two signatory powers undertake not to erect forti- fications in the group and not to establish penal settlements of any kind." The sixty-eight articles of this Convention provide with much detail for the condominium, even to the regulation of la- bor and the sale of liquors.* SAME— LEASED TERRITORY. 34. Leased territory, xrhile remaining under tlie sovereignty of the lessor, passes witliin the jurisdiction of the lessee. Instances of leasing territory for various purposes have from time to time occurred. The most numerous are the Chinese leases. The leases have usually been to European powers. The lease to Germany in 1897 states that: "His Majesty, the Emperor of China, being desirous of pre- serving the existing good relations with His Majesty, the Em- peror of Germany, and of promoting an increase of German power and influence in the Far East, sanctions the acquire- ment, under lease, by Germany of the land extending for 100 li at high tide (at Kiaochow). "His Majesty, the Emperor of China, is willing that German troops should take possession of the above-mentioned territory at any time the Emperor of Germany chooses. China retains her sovereignty over this territory, and should she at any time 4 1 A. J. I. Doc. p. 179. See, also, Politis, Le Condominium Franco- Anglais des Nouvelles Hebrides, p. 32 et seq. 96 JURISDICTION. (Ch. 4 wish to enact laws or carry out plans within the leased area she shall be at liberty to enter into negotiations with Germany with reference thereto: Provided, always, that such laws or plans shall not be prejudicial to German interests. Germany may en- gage in works for the public benefit, such as waterworks, with- in the territory covered by the lease, without reference to China. Should China wish to march troops or establish garri- sons therein, she can only do so after negotiating with and ob- taining the express permission of Germany. "II. His Alajesty, the Emperor of Germany, being desirous, like the rulers of certain other countries, of establishing a naval and coaling station and constructing dockyards on the coast of China, the Emperor of China agrees to lease to him for the purpose all the land on the southern and northern sides of Kiaochow Bay for a term of ninety-nine years. Germany is to be at liberty to erect forts on this land for the defense of her possessions therein. "III. During the continuance of the lease China shall have no voice in the government or administration of the leased ter- ritory. It will be governed and administered during the whole term of ninety-nine years solely by Germany, so that the pos- sibility of friction between the two powers may be reduced to the smallest magnitude. * * * Germany shall not cede the territory leased to any other power than China." ^ Mr. Conger, Minister to China in 1899, reported in 1899 : "I have conferred with the English, German, Russian, French, Spanish, Netherlands, and Japanese ministers upon the subject and all of them, except the Japanese, agree that the control over all of these leased ports has, during the existence of the lease, passed as absolutely away from the Chinese gov- ernment as if the territory had been sold outright, and that they are as thoroughly under jurisdiction of the lessee govern- ments as any portion of their home territory, and their con- suls, accredited to China, would not attempt to exercise juris- diction in any of said ports. "The Japanese claim that sovereignty is too important a mat- ter to pass thus with a lease, and say that China can, if she wishes, surrender jurisdiction over her own people; but they 6 Foreign Relations U. S., 1900, p. 383. § 35) MARITIME AND FLUVIAL JURISDICTION. 97 do not agree that these lessee governments shall or can exer- cise jurisdiction over other foreigners in the leased territory. However, no case has yet arisen for them to test the matter."*^ The Chinese lease of Port Arthur to Russia in 1898 distinct- ly stated that it was "on the understanding that such lease shall not prejudice China's sovereignty over this territory," though full jurisdiction over the territory passed to Russia and subsequently to Japan. In the Agreement of February, 1903, between the United States and Cuba for the lease of certain coaling and naval sta- tions to the United States, it is provided that : "Article III. While on the one hand the United States rec- ognizes the continuance of the ultimate sovereignty of the Re- public of Cuba over the above-described areas of land and wa- ter, on the other hand the Republic of Cuba consents that dur- ing the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas, with the right to acquire (under conditions to be hereafter agreed upon by the two governments) for the pub- lic purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof." The terms of leases usually specify the powers to be exer- cised by the lessee, and by implication other powers remain in the lessor. In all these cases sovereignty is theoretically re- tained by the lessor state, while complete jurisdiction may be Sfranted to the lessee. MARITIME AND FLUVIAL JURISDICTION— MAR- GINAL SEAS. 35. A marine league from the shore loiv-T^ater mark lias long been recognized as the limit of maritime jurisdiction. In the early days of interstate relationship there was much controversy over the limits of maritime jurisdiction. In 1702 Bynkershoek set forth the reasonable proposition that the ter- ritorial power should end where the effective range of arms 6 Id. p. 385. WiLS.lNT.L. — 7 98 JURISDICTION. (Ch. 4 ends.'^ At this time the range of guns was considered about three miles. There have been various attempts to extend this jurisdiction, but the marine league is still generally accepted for ordinary purposes.^ The three-mile limit was legalized by the British Territorial \\^aters Jurisdiction Act of 1878, was recognized in the Suez Canal Convention of 1888, in the Fur Seal Arbitration of 1893, and in the Hay-Pauncefote Treaty of 1901. "Article 21 of the Russian Prize Law provides: 'The right of making prizes is recognized only in the open seas. As for the open sea, it consists of waters which are not under fire of neutral batteries, or three sea miles from the neutral shores.' " ® Kent made an extreme claim, saying, "All that can reasonably be asserted is that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety and for some lawful end," and says that "in 1793 the government of the United States thought they were entitled, in reason, to as broad a margin of protected navigation as any nation whatever, though at that time they did not positively in- sist upon more than the distance of a marine league from the seashores ; and in 1806 they thought it would not be unreason- able, considering the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well- defined path of the Gulf Stream, to expect an immunity from belligerent warfare for the space between that limit and the American shore." ^° The Institute of International Law dis- 7 "Potestatem terrse finiri, ubi fiiiitur armorum vis." De Domino Maris (1702) c. 2. 8 "There can be no possible doubt that the water below low-water mark is part of the high seas. But it is equally beyond question that for certain purposes every country may. by the common law of nations, legitimately exercise jurisdiction over that portion of the high seas which lies within the distance, of three miles from its shores. Whether this limit was determined with reference to the supposed range of cannon, on the principle that the jurisdiction is measured by the power of enforcing it, is not material ; for it is clear, at any rate, that it extends to the distance of three miles, and that many instances may be given of the exercise of such juris- diction by various nations." Screw Collier Ck). v. Schurmans, 1 Johnson & H. Ch. 193. 9 Foreign Relations U. S., 1SS6, p. 957. 10 Int. Law (Abdy's Ed.) p. 112. § 36) MARITIME AND FLUVIAL :.UP13WcnON *99 cussed the question of maritime jurisdiction at great length at its session in 1894, and the general opinion was favorable to an extension of the three-mile limit. A large majority de- clared in favor of a six-mile limit, with a right of extension by declaration of a neutral state in time of war to the limit of ef- fective control by guns on shore. Since 1894 there has been a tendency to return to the three-mile limit of jurisdiction, be- cause the more extended jurisdiction would carry correspond- ing obligations to exercise authority, a burden which might outweigh the advantages, particularly in time of war. Within the three-mile limit exclusive jurisdiction over fish- eries and other undertakings is generally admitted. A wider special jurisdiction is often claimed, and generally admitted, for purposes of administration of revenue, fisheries, and sanitary regulations, and for better policing of a coast. This has often extended to ten miles, and sometimes to twelve miles. States often make regulations for the coast trade, limit- ing such trade to vessels flying their own flag. SAME— STRAITS. 36. (a) Tlie rule in regard to marginal seas applies to straits -wbiicli are six miles or more in ividth. (b) Straits less than six miles in ividth are ivitliin the ju- risdiction of the shore state or states. (a) When a strait is six miles in width, if the same state has jurisdiction over both shores, the strait is wholly within the ju- risdiction of that state. If different states have jurisdiction over the opposite shores, each state has jurisdiction to the three-mile limit. Similar jurisdiction prevails in case the strait is more than three miles in width. (b) When straits are less than six miles in width, in absence of conventional agreement, each shore state has jurisdiction to the middle of the navigable channel. In general, it may be said that the claims to jurisdiction of broad straits and channels which were formerly made seem to have been surrendered. Great Britain once claimed the Bristol Channel, St. George's Channel, and the North Channel as with- in her territorial jurisdiction, and some eminent writers, such 'iOO JUUISDICTION. (Cll. 4 as PhilHmore, have supported this claim ; but this would hard- ly be maintained since the Territorial Waters Jurisdiction Act of 1878. Some straits have been made the subject of special agree- ments. By article I of the Convention of London of July 10, 1841, warships were excluded from the Bosphorus and Dar- danelles. This regulation was reaffirmed by the Treaty of Paris in 1856 and by the Treaty of London in 1871. By this latter treaty provision was made for entrance of warships for the purpose of assuring the execution of the provisions of the Treaty of Paris of 1856. The United States has never formal- ly admitted the right to exercise this exclusive jurisdiction. The right of navigation is, however, distinct from the right of jurisdiction. SAME— GULFS AND BAYS. 37. Over snlta and bays xirliolly ^ivithin the territorial limits, and over such, as are not more than six miles in ividth at the opening into the sea, the jurisdiction is in the shore state or states. More extended jurisdiction is in some cases claimed and admitted. When the opening to the sea from a gulf or bay is six miles or less in width, and the jurisdiction of both shores is in one state, that state has jurisdiction over the gulf or bay. When the shore is in the jurisdiction of different states, the middle of the navigable waters is usually considered the limit of juris- diction, in absence of agreement. Claims to jurisdiction over waters of large area and having wide openings toward the sea have been made.^^ James I of 11 "Passing from the common law of England to the general law of nations, as indicated by the text-writers on international jurispru- dence, we find a universal agi'eement that harbors, estuaries, and bays landlocked belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to determine what is 'bay' for this purpose. "It seems generally agreed that, where the configuration and di- mensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is part of the territory, and, with this idea, most of the writers on the subject refer to de- fensibility from the shore as the test of occupation ; some suggesting, § 37) MARITIME AND FLUVIAL JURISDICTION. 101 England made extensive claims to the waters within lines drawn from headlands about England. These were called King's Chambers. ^- Conventional agreements as to boundaries have been made when the openings of waters toward the sea have exceeded the six-mile limit.^^ Certain gulfs and bays having wide open- ings toward the sea and of large surface area are generally re- garded as within the boundaries of the shore states, as in case of the Delaware and Chesapeake Bays in the United States.^* therefore, a width of one cannon-shot from shore to shore, or three miles; some, a cannon-shot from each shore, or six miles; some, an. arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of New- foundland, but also would have excluded from the territoi-y of Great Britain that part of the Bristol Channel which in Reg. v. Cunning- ham, 1 Bell's Cr. Cas. 72, was decided to be in the county of Glamor- gan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdiction over much more extensive bays, and Chancellor Kent, in his Commentaries, though by no means giving the weight of his authority to this claim, gives some reason for not considering it altogether imreasonable." Direct U. S. Cable Co. v. Anglo-American Tel. Co., L. R. 2 App. Cas. (1877) 419. "Where two nations are possessed of territory on opposite sides of a bay or navigable river, the sovereignty of each presumptively extends to the middle of the water from any part of their respective shores." 5 Ops. Attys. Gen. 412. 12 Selden, Mare Clausum, c. 22. 13 Boundary Treaty between United States and Great Britain, 1846, art. 1: "From the point on the forty-ninth parallel of north latitude where the boundary laid down in existing treaties and con- ventions between the United States and Great Britain terminates, the line of boundary between the territories of the United States and those of Her Britannic Majesty shall be continued westward along the said forty-ninth parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island ; and thence southerly through the middle of the said channel, and of Fuca's Straits to the Pacific Ocean: Provided, however, that the navigation of the whole of the said channel and Straits, south of the forty-ninth parallel of north latitude, remain free and open to both parties." 14 "The question of jurisdiction over many such partly included bodies of water, sometimes called 'closed seas,' has already been decided. The Chesapeake and Delaware Bays are recognized as parts of the territory of the United States ; Hudson Bay and the Irish 102 JURISDICTION. (Ch. 4 The Institute of International Law in 1894 adopted twelve miles as the width of mouth of inclosed gulfs and bays.^'^ The ten-mile width of mouth for inclosed gulfs and bays has receiv- ed much sanction in i-ecent years. ^® From whatever line is rec- Sea as British territory; the Caspian Sea belongs to Russia; Lake Michigan to the United States. The Black Sea, before Russia ob- tained a foothold upon it, formed part of the territories of the Otto- man Porte; it is now subject to the joint jurisdiction of Turkey and Russia. The Baltic is acknowledged to have the cbaracter of a closed sea (and to be subject to the control of the powers surrounding it), certainly to the extent of guaranteeing it against acts of belligerency when the powers within whose territory it lies are at peace." Davis, Elements of Int. Law, p. 58. 15 13 Annuaire de Tlnstitut, 329. "In conformity with your recent oral request, I have now the honor to make further response to your unofficial note of November Sth last, which was acknowledged on the 9th of the same month, by informing you that careful consideration would be given to the im- portant inquiry therein made as to the views of the United States government touching the expediency of settling by treaty among the interested powers the question of the extent of territorial jurisdiction over maritime waters. "This government would not be indisposed, should a sufficient num- ber of maritime powers concur in the proposition, to take part in an endeavor to reach an accord having the force and effect of inter- national law, as well as of conventional regulation, by which the ter- ritorial jurisdiction of a state, bounded by the high seas, should henceforth extend six nautical miles from low-water mark, and at the same time providing that this six-mile limit shall also be that of the neutral maritime zone. "I am unable, however, to express the views of tbis government upon the subject more precisely at the present time, in view of the important consideration to be given to the question of the effect of such a modification of existing international and conventional law upon the jurisdictional boundaries of adjacent states and the applica- tion of existing treaties in respect to the doctrine of headlands and bays. "I heed scarcely observe to you that an extension of the headland doctrine, by making territorial all bays situated Avithin promontories twelve miles apart, instead of six, would affect bodies of water now deemed to be high seas and whose use is the subject of existing con- ventional stipulations." Mr. Oluey, Sec. of State, to Mr. de Weckberlin, Dutch Min., Feb. 15, 189G, MS. Notes to the Netherlands, VIII, 359, cited in 1 Moore, § 152, p. 734. 16 1 Rivier, Principes de Droit des Gens, 154; Bonfils, Droit Int Public, 51G; Perels, Seerecht, § 5. § 38) MARITIME AND FLUVIAL JURISDICTION. 103 ognized as the boundary of the mouth of an inclosed gulf or bay the maritime jurisdiction is held to extend to a distance of three miles from this line.^^ A case arose relating to the jurisdiction over Conception Bay, v^^hich is more than twenty miles in width at its mouth. A cable was laid within the Bay, and at all points more than three miles distant from the shore. While admitting there was great diversity of opinion as to what constituted water of such description territorial, the court held that this was within British jurisdiction, "that in point of fact the British govern- ment has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to show that the bay has been for a long time occupied ex- clusively by Great Britain, a circumstance which in the tri- bunals of any country would be very important. And moreover (which in a British tribunal is conclusive) the British legisla- ture has by acts of Parliament declared it to be part of the British territory, and part of the country made subject to the legislature of Newfoundland." ^* SAME— INLAND SEAS AND LAKES. 38. In general, the jurisdiction over inclosed waters is in tlie state Tirliose land surrounds tlie water. If an inland sea or lake is surrounded by land belonging to two or more states, in absence of conventional agree- ment, jurisdiction is in each state in proportion to its coast line. Such inclosed waters as Lake Baikal, Aral Sea, Dead Sea, the Swiss and English lakes, Lake Winnipeg, or Lake Mich- igan, are wholly within the exclusive jurisdiction of the states 17 "Article 8. Under the territory of the Icingdom is also included the seacoast to within a distance of three nautical miles of 60° lati- tude at low-water mark. In regard to bays, that distance of three nautical miles shall be measured from a straight line athwart the liay as close as possible to the entrance at the first point at which the entrance to the bay exceeds ten miles of 60° latitude." Nether- lands Proclamation of Neutrality, Russo-Japanese War, 1904. 18 Direct U. S. Cable Co. v. Anglo-American Telegraph Co., [1877] L. R. 2 App. 394. 104 JURISDICTION. (Cll. 4 whose land surrounds them. A state may exercise its jurisdic- tion over landlocked waters as over the land within its bounda- ries. If an inland sea or lake is surrounded by land belonging to different states, the jurisdiction over the water area has been generally considered to reside in the surrounding states, though the right to navigate the waters is conceded to all the states whose lands touch the inclosed waters. The exercise of ju- risdiction by different states over the waters of an inclosed sea or lake has usually been regulated by conventional agree- ment. The rights to the Caspian Sea are specified under the treaties between Russia and Persia of 1813 and 1828 ; the Black Sea has been the subject of many negotiations, and by treaty opened to merchant vessels ;^^ Lake Constance is con- sidered as belonging to Germany, Switzerland, and Austria. The boundary between the United States and Canada in the Great Lakes was provided for in the Treaty of Peace between the United States and Great Britain in 1783 as in the middle of Lakes Ontario, Erie, and Huron, and to the north of the middle of Lake Superior. Under the Treaty of 1811, article VII, commissioners were to be appointed to make these bound- aries more definite. Several subsequent treaties provided for the maintenance of naval force on the Lakes by the United States and by Great Britain, for the navigation of the bound- ary waters and of the rivers flowing from the Lakes, for wreck, ing privileges,^" etc. The decisions of the United States courts upon the nature of the jurisdiction to be exercised over the Great Lakes have not always been consistent as regards mu- nicipal law,-^ though the claim of exclusive jurisdiction up to the Canadian boundary line has been repeatedly affirmed by the United States and admitted by Great Britain. A decision of the United States Supreme Court in 1892 states that "the Great Lakes are not in any appreciable respect affected by the tide, and yet on their waters, as said above, a 19 See Treaty of Paris, 1856, and Treaty of London, 1871. 20 Foreign Relations U. S., 1893. pp. 341-344. 21 United States v. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071 ; Illinois Central Railroad v. Illinois, 146 U. S. 3S7, 13 Sup. Ct. 110, 36 L. Ed. 1018. § 39) MARITIME AND FLUVIAL JURISDICTION. 105 large commerce is carried on, exceeding in many instances the entire commerce of states on the borders of the sea. When the reason of the limitation of admiralty jurisdiction in Eng- land was found inapplicable to the condition of navigable wa- ters in this country, the limitation and all its incidents were discarded. So also, by the common law, the doctrine of the dominion over and ownership by the crown of lands within the realm under tide waters is not founded upon the existence of the tide over the lands, but upon the fact that the waters are navigable ; 'tide waters' and 'navigable waters,' as already said, being used as synonymous terms in England. The public being interested in the use of such waters, the possession by private individuals of lands under them could not be permitted except by license of the crown, which could alone exercise such domin- ion over the waters as would insure freedom in their use so far as consistent with the public interest. The doctrine is founded upon the necessity of preserving to the public the use of navi- gable waters from private interruption and encroachment, a rea- son as applicable to navigable fresh waters as to waters moved by the tide. We hold, therefore, that the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies, which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea, and that the lands are held by the same right in the one case as in the other, and subject to the same trusts and limita- tions." 22 SAME— RIVERS. 39. (a) A state has exclusive jurisdiction over rivers xeholly within its boundaries. (b) When a river floivs through tvsro or more states, each state has jurisdiction over that part Tvholly ivithin its boundaries. (c) When a river flows betw^een tw^o states, each state, in ab- sence of other agreement, has jurisdiction to the mid- dle of the river, or in case of a navigable river to the middle of the main channel, or thalw^eg. «2 Illinois Central Railroad v. Ilinois, Id. 106 JURISDICTION. (Ch, 4 Jurisdiction over rivers should be distinguished from the subject of navigation of rivers. Jurisdiction gives to the state entitled to it the right to exercise state authority within its limits. This control may be subject to certain restrictions as in case of rights to navigate a navigable stream. The general principle is that the jurisdiction over a river is in the riparian state or states. (a) Rivers which are wholly within the boundaries of one state can have no divided jurisdiction, but are subject to its exclusive jurisdiction. To such rivers the state can apply any regulations at will, unless rights have been waived by interna- tional agreements. In speaking of the Hudson river in 1892, Secretary Foster said that certain foreign claims in regard to its use ignored "the salient fact that the Hudson river is a nat- ural water way, rising and lying wholly within the territory of the United States, and in no sense an international water course, to which the riparian rules of international law are ap- plicable." -^ (b) A river, whose course is partly within the boundaries of one state and partly within the boundaries of another, is for each part within the jurisdiction of the state within which that part may flow. It is considered that a state nearer the mouth of a river has a right to demand that a state nearer the source shall not deprive it of rights which it has in the flow of water, and, though the state or states nearer the source have a right to reasonable use of flowing water, they have not a right to ap- propriate the water to the undue injury of the state below.-* (c) "When a navigable river constitutes the boundary be- tween two independent states, the line defining the point at which the jurisdiction of the two separates is well established to be the middle of the main channel of the stream. The inter- est of each state in the navigation of the river admits of no other line. The preservation by each of its equal right in the navigation of the stream is the subject of paramount interest. It is, therefore, laid down in all the recognized treatises on in- ternational law of modern times that the middle of the chan- 2 3 Foreign Relations U. S., 1S92, p. 337. 24 1 Moore, § 132, p. G.j3; State of Kansas v. State of Colorado et al. (1907) 20G U. S." 4G, 27 Sup. Ct. 655, 51 L. Ed. 95G. § 39) MARITIME AND FLUVIAL JURISDICTION. 107 ncl of the stream marks the true boundary between the adjoin- ing states, up to which each state will, on its side, exercise ju- risdiction. In international law, therefore, and by the us- age of European nations, the term 'middle of the stream,' as applied to a navigable river, is the same as the middle of the channel of such stream." -^ When a river is not navigable, it is held that the jurisdiction of the states upon the opposite banks extends to the middle of the stream. When the river suddenly changes its course and seeks a new channel, the limits of jurisdiction remain at the middle of the old channel. The limits of jurisdiction are, however, liable to gradual change through the change of the course of the stream by the deposit of alluvial formation. In such case the losses and gains would ordinarily be equivalent. Questions of a more complicated nature may arise when the states upon opposite banks of a boundary river wish to divert a portion of the water. In 1897 the Swiss Federal Court decid- ed that the canton of Schaffhausen had no jurisdiction over the southern half of the waterfall of the Rhine, which the can- ton of Lurich wished to exploit for power. This did not, how- ever, define the respective rights of the two cantons. Profes- sor Huber was asked for an opinion upon this phase of the re- lations of the two cantons. In this opinion he says : "The text-writers, the practice of courts, and particularly the intercantonal and international practice, agree on the whole that each riparian owner has on principle full control over one- half of the river, and, therefore, may grant concessions for works located exclusively on its side, but that the adjoining state has an international right of protest, which cannot be lost through conflicting private rights, against all measures which may affect its territory injuriously. Joint action, though not a joint granting of concessions, is necessary in all cases where a single establishment affects both territories. With respect to rights in the river both riparian states stand upon an absolute equality." ^^ 2 5 Iowa V. Illinois, 147 U. S. 1, 13 Sup. Ct. 239, 37 L. Ed. 55. 2 6 Translated in 1 A. J. I. p. 246. 108 jurusDicTioN. (Ch. 4 NAVIGATION. 40. (a) The high seas beyond the marine league are open to the free navigation of all states, (b) There is a qualified right of navigation in most other Avaters. (a) While there were attempts to control the navigation of the open seas in early days, in recent years the principle of free navigation has not been questioned, though a certain degree of control over the high seas is claimed and admitted for revenue and sanitary purposes as regards vessels approaching port. (b) The navigation of other waters is usually subject to a measure of jurisdiction varying according to the nature of wa- terway and of local control. Where there is what may be call- ed a general or special right of navigation by other states of waters within the domain of a state, it partakes of the nature of a servitude. Marginal Sea. Within the three-mile limit innocent passage of vessels sail- ing the open sea is uniformly permitted. In time of war re- strictions may be prescribed in regard to conduct within this limit. In the time of peace the coast state may prescribe reg- ulations in regard to trade, fishing, revenue, pilotage, quaran- tine, ceremonials, etc., to which vessels coming within the ju- risdiction may be obliged to conform. Foreign vessels simply passing through the marginal sea are not usually regarded as liable to the local jurisdiction unless involved in some act which takes effect outside the vessel. Gulfs and Bays. In general there are the same rules for navigation of gulfs and bays as for the marginal sea. The navigation of waters in the neighborhood of fortifications is sometimes forbidden or regulated. Straits. The general rule is that straits connecting free seas are open to innocent navigation. Denmark for several centuries collected toll on vessels and cargoes passing between the North and Baltic Seas, and justi- § 40) NAVIGATION. 109 fied this action on the ground of ancient usage, and on the ground of keeping up the Hghts and poHce of the Danish Sounds. These tolls were known as the "Danish Sound Dues." The European states in 1857 paid Denmark a sum in capitali- zation of the dues, while at the same time the United States paid $393,011 in consideration that Denmark would secure free and unincumbered navigation of American vessels through the Sound and Belts forever.-^ While the Black Sea was wholly within Turkish jurisdic- tion, the navigation of the Bosphorus and Dardanelles was in the control of Turkey. From 1774 treaties opened the straits to navigation by merchant vessels. The exclusion of war vessels was accepted by Austria, France, Great Britain, Prussia, and Russia in the Convention of London in 1841, and again con- firmed by the Treaty of Paris, 1856, though by the Treaty of London, 1871, the Sultan may, for executing the Treaty of Paris of 1856, "open the said straits in time of peace to the ves- sels of war of friendly and allied powers." The United States, though not a party to these treaties, has acquiesced in their provisions.^^ Great Britain protested against the passage of the Straits in 1902 by Russian torpedo destroyers, even though disarmed and under the Russian merchant flag. On July 28, 1904, Mr. Balfour in the British House of Commons said of the vessels of the Russian volunteer fleet which passed the Dar- danelles : "We took the strongest possible exception to that course on the ground that no ship of war could issue from the Black Sea, and that in our judgment the members of the volun- teer fleet, if they issued from the Black Sea and took belligerent action, either had no right to issue or no right to take that ac- tion." Canals. Canals are artificial waterways. They are constructed with- in the jurisdiction of a state or states, and in absence of inter- national agreement are subject to the jurisdiction within which they may be. Certain canals are almost wholly national in character, and while shortening somewhat the routes of commerce, as af- 2 7 Article III, Treaty of April 11, 1857. 2 8 1 jNloore, § 134, p. G64. 110 JURISDICTION. (Cll. 4 fording convenient routes, are not essential for international communication, nor would the closing of them greatly inter- fere with the movement of world commerce. Such canals are the Corinth and the Kiel Canals. The Corinth Canal, opened 1893, shortening somewhat the route to the Black Sea, wholly within the territory of Greece, is subject to the exclu- sive jurisdiction. The Kiel Canal, opened 1896, serving sim- ilarly for the route to the Baltic Sea, is exclusively German. Canals which connect great bodies of water, and are inter- national in character, modify the course of the commerce of the world, and their status is therefore a matter of interna- tional concern. The powers parties to the treaty of October 29, 1888, in re- gard to the Suez Canal, were Austria-Hungary, France, Ger- many, Great Britain, Italy, Netherlands, Russia, Spain, and Turkey. These states expressed the wish that they might es- tablish "a definite system destined to guarantee at all times, and for all powers, the free use of the Suez Maritime Canal." Cer- tain articles of the treaty particularly concern the international position of the Canal : "Article I. The Suez Alaritime Canal shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag. "Consequently, the high contracting parties agree not in any way to interfere with the free use of the canal, in time of war as in time of peace. "The canal shall never be subjected to the exercise of the right of blockade." Article IV contracts to regard the three-mile limit, the lim- itation on the provisioning of vessels, and the twenty-four hour rule in regard to sailing of belligerent vessels in time of war. The general result of the other clauses of the treaty is to give security for innocent passage of the canal by ships of any state at all times. ^^ 2 9 For text of treaty see 3 Moore, § 3G9, p. 204. While Great Britain originally signed the treaty under reservation "as to the application of these provisions, in so far as they may not he compatible with the transitory and exceptional condition of things actually existing in Egypt and may limit the freedom of action o" their government during the period of the occupation of Egypt by § 40) NAVIGATION. Ill In 1850 the United States and Great Britain made what was known as the "Clayton-Biihver Treaty." This treaty provided for the free navigation and neutrahzation of a canal between the Atlantic and Pacific Oceans by the way of Nicaragua. This treaty was the subject of much discussion,^" and was final- ly superseded by the Hay-Pauncefote Treaty of November 18, 1901, between Great Britain and the United States, which pro- vides for construction of a canal between the Atlantic and Pa- cific Oceans under the auspices of the United States by any route considered expedient, without, however, impairing the "general principle" of neutralization established in the treaty of 1857.^^ the forces of Her Britannic Majesty," this reservation was practical- ly waived by the treaty between France and Great Britain in re- gard to Morocco and Egypt of April 8, 1904: "Art. VI. In order to insure the free passage of the Suez Canal, His Britannic Majesty's government declare that they adhere to the stipulations of the treaty of the 29th October, ISSS, and that they agree to their being put in force. The free passage of the Canal being thus guaranteed, the execution of the last sentence of paragraph 1 as well as of paragraph 2 of article VIII of that treaty will remain in abeyance." Par. Papers, Treaty Series (1905), No. 6. 30 3 Moore, § 351, seq. 31 The clauses covering the provisions of the Hay-Pauncefote Trea- ty of November 18, 1901, in regard to a trans-isthmian canal are as follows: "Article I. The high contracting parties agree that the present treaty shall supersede the afore-mentioned convention of the 19th April, 1850. "Article II. It is agreed that the canal may be constructed under the auspices of the government of the United States, either directly at its own cost, or by gift or loan of money to individuals or corpo- rations, or through subscription to or purchase of stock or shares, and that, subject to the provisions of the present treaty, the said government shall have and enjoy all the rights incident to such con- struction, as well as the exclusive right of providing for the regula- tion and management of the canal. "Article III. The United States adopts, as the basis of the neutral- ization of such ship canal, the following rules, substantially as em- bodied in the Convention of Constantinople, signed the 2Sth October, 1888, for the free navigation of the Suez Canal, that is to say: "1. The canal shall be free and open to the vessels of commerce and of war of all nations observing these rules, on terms of entire equality, so that there shall be no discrimination against any such cation, or its citizens or subjects, in respect of the conditions or 112 JURISDICTION. (Ch. 4 A revolution occurred on the Isthmus of Panama early in November, 1903. The United States recognized the revolution- ary as the de facto government on November G, and a treaty with the new Republic of Panama was signed November 18, 1903.^^ By this treaty, providing for the construction of a canal, the United States "guarantees and will maintain the in- (harges of traffic, or otherwise. Such conditions and charges of traf- fic shall be just and equitable. "2. The canal sliall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it. The United States, however, shall be at liberty to maintain such military police along the canal as may be necessary to protect it against law- lessness and disorder. "3. Vessels of war of a belligerent shall not revictual nor take any stores in the canal except so far as may be strictly necessary ; and the transit of such vessels through the canal shall be effected with the least possible delay in accordance with the regulations in force, and with only such intermission as may result from the necessities of the service. "Prizes shall be in all respects subject to the same rules as vessels of war of the belligerents. "4. No belligerent shall embark or disembark troops, munitions of war, or warlike materials in the canal, except in case of accidental hindrance of the transit, and in such case the transit shall be re- sumed with all possible dispatch. "5. The provisions of this article shall apply to waters adjacent to the canal, within three marine mDes of either end. Vessels of war of a belligerent shall not remain in such waters longer than twenty-four hours at any one time, except in case of distress, and in such case, shall depart as soon as possible, but a vessel of war of one belligerent shall not depart within twenty-four hours from the de- parture of a vessel of war of the other belligerent. "6. The plant, establishments, buildings, and all work necessary to the construction, maintenance, and operation of the canal shall be deemed to be part thereof, for the purposes of this treaty, and in time of war, as in time of peace, shall enjoy complete immunity from attack or injury by belligerents, and from acts calculated to impair their usefulness as part of the canal. "Article IV. It is agreed that no change of teii'itorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralization or the obligation of the high contracting parties under the present treaty." 3 2 For history since 1898, see La tang, America as a World Power, c. XII, The Panama Canal. § 40) NAVIGATION. 113 dependence of the Republic of Panama" (Art. I). "The Re- pubHc of Panama grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said canal of the width of ten miles extend- ing to the distance of five miles on each side of the center line of the route of the canal to be constructed ; the said zone beginning in the Caribbean Sea three marine miles from mean low-water mark and extending to and across the Isthmus of Panama into the Pacific Ocean to a distance of three marine miles from mean low-water mark, with the proviso that the cities of Panama and Colon and the harbors adjacent to said cities, which are included within the boundaries of the zone above described, shall not be included within this grant" (Art. II). The United States also acquire similar rights over cer- tain other waters, islands, etc., the right of eminent domain in the cities of Panama and Colon, as well as sanitary control and the general rights of control of the Canal Zone. The treaties thus far negotiated provide, therefore, for a trans- Isthmian canal under the control of the United States, with an international status "substantially as embodied in the con- vention" for the navigation of the Suez Canal. Riz'crs. The claim that river navigation should be free has received much support both in the earlier"^ and later writers;^* but in later years practice has inclined toward regulation of naviga- tion by conventional agreements.^^ The general rules are as follows : (a) The navigation of rivers wholly within the boundaries of one state is exclusively within the control of that state. (b) The navigation of boundary rivers is in the control of the states having jurisdiction over the river. (c) The navigation of rivers flowing through two or more states is, for such parts as are in each state, within the con- trol of such state. The above rules are modified by many treaties and by practice. 33Grotius, II, c. II, 12-14. 3 4 Calvo, §§ 2.59, 290, 291. 35 2 Pradier-Fodere, §§ 727-755. WiLS.lNT.L.— S 114 JURISDICTION. (Ch. 4 There has been a tendency, particularly since the Congress of Vienna in 1815, to open the rivers which are the more im- portant highways of international commerce to freedom of navigation. This Congress made certain arrangements for the free navigation of the Rhine, Neckar, Maine, Moselle, Meuse, and Scheldt.^^ Provisions like that of the treaty of peace be- tween Great Britain and the United States in 1783, article VIII, "The navigation of the river Mississippi, from its source to the ocean, shall forever remain free and open to the subjects of Great Britain and the citizens of the United States," had often been negotiated between two or more states. ^^ This pro- vision for the navigation of the Mississippi was not included in the Treaty of Ghent between the two powers in 1814. Arti- cle XV of the Treaty of Paris of March 30, 1856, provided as follows : "The act of the Congress of Vienna having established the principles intended to regulate the navigation of rivers which separate or traverse different states, the contracting powers stipulate among themselves that those principles shall in fu- ture be equally applied to the Danube and its mouths. They declare that this arrangement henceforth forms a part of the public law of Europe, and take it under their guarantee." The navigation of the St. Lawrence river has been regulated by conventional agreement. In nearly all cases the states through which the river flows, while granting freedom of navigation in the treaties, reserve the right to regulate the use of the river, in order that it may not be inconsistent with domestic law or harmful to the state. Interior Waters. Interior waters, such as lakes and seas, form a part of the maritime domain of the border state or states. If wholly with- in one state, that state, in absence of agreement, has exclusive regulation of the use of the waters. If surrounded by the land of two or more states, the use of the waters is consid- ered common to the border states. "There are other seas than the ocean whose open waters 86 1 Hertslet, p. 2, arts. CVIII-CXVII. 37 Austria and Russia, as to Vistula, 1815; Border States, as to Elbe, 1821 ; Same, as to Weser, 1823 : Same, as to Po, 1823. § 41) FISHERIES. 115 constitute a free highway for navigation to the nations and people residing on their borders, and are not a free highway to other nations and people, except there be free access to those seas by open waters or by conventional arrangements." ^* The domain, in absence of conventional agreement, is pro- portional to the extent of the shore line,^® while jurisdiction for many purposes may be concurrent, extending over the whole water area.*" FISHERIES. 41. (a) Fishing in the open sea is free to all, though some- times regulated by treaties or domestic laws binding those subject to them, (b) A state may control or forbid fishing ivithin its mari« time or fluvial domain. (a) While fishing on the open sea is free to all, it has often been deemed advisable to make agreements for the good of all as to the manner, time, amount, etc., of fishing. In the time of Elizabeth the use of waters for fishing was assimilated to the use of waters for navigation.*^ Claims to exclusive fish- ing rights beyond the marine league, in the open sea, have in general been abandoned, though not in waters within what may be classed as inclosed gulfs, bays, etc., even though the opening to the sea is more than ten miles in width. The question of the rights of the United States over waters in the Bering Sea was raised in the Fur Seal Arbitration in 1893: 38 United States v. Rogers, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071 ; Treaty of Washington, 1871, art. XXXIII. 30 Weber v. Harbor Commissioners, IS Wall. 57, 21 L. Ed. 798; Illinois Central Railroad v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 30 L. Ed. lOlS. 40 In the case of United States v. Rogers it was declared that "the courts of the United States have jurisdiction, under section 5340 of the Revised Statutes [U. S. Comp. St. 1901, p. 3G30], to try a person for an assault, with a dangerous weapon, committed on a vessel be- longing to a citizen of the United States, when such vessel is in the Detroit river, out of the jurisdiction of any particular state, and within the territorial limits of the Dominion of Canada." 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071. See, also, 1 Moore, §§ 135-143. 41 1 Phillimore, p. 266. 116 JURISDICTION. (Cll. 4 "5. Has the United States any right, and, if so, what right, of protection or property in the fur seals frequenting the is- lands of the United States in Bering Sea, when such seals are found outside the ordinary three-mile limit?" The opinion of the arbitrators was : "As to the fifth of the said five points, we, the said Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said arbitrators, do decide and determine that the United States has not any right of protection or property in the fur seals frequenting the is- lands of the United States in Bering Sea, when such seals are found outside the ordinary three-mile limit." The jurisdiction over the pearl fisheries off Ceylon to a con- siderable distance beyond the three-mile limit was based, ac- cording to the British contention in the Fur Seal Arbitration, upon "'claim to the products of certain submerged portions of land which have been treated from time immemorial by the successive rulers of the island as subjects of property and ju- risdiction." The many questions in regard to fishing in the open sea have ordinarily arisen in consequence of treaty provisions ex- isting among states. This is seen in such conventions as that of North Sea Fisheries of May 6, 1882 ; Convention Concern- ing the Regulation of the Liquor Traffic among the Fishermen in the North Sea, November 16, 1887; Convention of London in Regard to Fisheries around Faroe Islands, etc., June 24, 1901.*"^ In general, however, fishing on the high sea is free to all. Citizens of a state are, of course, bound by treaties and local laws of that state, which may prohibit or limit to some extent their exercise of the general right. (b) Within its maritime or fluvial domain a state may con- *- On July 19, 1906, in the case of INIorteusen v. Peters, Ilish Court of Jus.tic'iary of Scotland, it was maintained that domestic legislation extended to the regulation of fishing in Moray Firth, even though the opening toward the sea might be more than ten miles wide. This decision has been criticised on various grounds. See "The Recent Controversy as to the British Jurisdiction over Foreign Fishermen More than Three Miles from Shore," C. N. Gregory, 1 Amer. Pol. Sol. Rev. p. 410. § 42) VESSELS. 117 trol fishing. A state may grant to other states rights in its coast fisheries, and these may become, as in the case of the Nortlieastern or Canadian Fisheries, fruitful sources of in- ternational differences.*^ VESSELS. 42. The jurisdiction over vessels depends: (a) On the character of the vessel, as public or private. (b) On place in ivhich the vessel is, as in port, on the high seas. (c) On the nationality of the vessel. Closely related to the exercise of maritime jurisdiction is the exercise of jurisdiction over the vessels which are upon the water. It is necessary that a vessel be under some jurisdiction, even on the high seas ; for many of the acts which are pro- hibited on land may take place on a vessel at sea. A theft or assault on a vessel at sea would not be unlike a similar offense on land. Unless there were established rules for the exercise of jurisdiction, complications might arise if on a British vessel' an American sailor should assault a French traveler. (a) Public vessels are those engaged in service of the state and under command of government officers. As such they are under the direct government control, and for their acts the government is liable. Private vessels are only indirectly under government control, and for their acts the government is only indirectly liable. Certain vessels are regarded as semi-public when engaged in service which is of value to all states, as postal vessels and exploring expeditions. Provisions for the treatment of such vessels are usually made in treaties. (b) A state has exclusive jurisdiction over its public and private vessels in all places outside the jurisdiction of a foreign state.** 4 3 1 Moore, §§ 163^168. For Newfoundland Acts 1906 and Modus Vivendi October 6-8, 190G, see 1 A. J. I. Official Documents, pp. 22-31. 44 Wilson V. McNamee, 102 U. S. 572, 26 L. Ed. 234; United States V. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071. 118 JURISDICTION. (Ch. 4 A public vessel within the jurisdiction of a foreign state is'*^ in general subject only to local port regulations. The exemp- tion from local jurisdiction in a foreign port extends not mere- ly to the ship itself, but to the boats, rafts, etc., belonging to the ship and engaged in its service.^" Asylum on board public vessels in a foreign port is some- times granted, though such action is less frequent than ior- merly. On unquestioned grounds of humanity it may be and is granted, as in less civilized regions to those fleeing from slavery, or to those who in time of political uprising flee to the vessel, pursued by irresponsible parties.*® The commander o~T, y the vessel is in all cases responsible to his government for his action ; and, if he refuses to release a refugee at the request of the local authorities, resort must be had to the ordinary diplo-/ matic processes. The local state is at liberty to regard such action as an interference with its legitimate exercise of juris- diction, and may even request the vessel to leave.*' - It is generally admitted that merchant vessels cannot grant asylum, and that passengers in transit, accused of committing crime in a state, are liable to local jurisdiction while within ports of that state.*** 4 5 The Santissima Trinidad, 7 Wiieat. 283, 5 L. Ed. 454. 4 6 "The right of asylum for political or other refugees has no foundation in international law. In countries, however, where fre- quent insurrections occur, and constant instability of government ex- ists, usage sanctions the granting of asylum ; but, even in the waters of such countries, officers should refuse all applications for asylum, except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Offi- cers must not directly nor indirectly invite refugees to acc-cpt asy- lum." United States Navy Regulations of 1905, No. 308. 4 7 For discussion as to asylum to political refugees in Brazil, 1894, Foreign Relations U. S., 1894, pp. 65 seq., 514 seq. 4 8 "If it were generally understood that the masters of American merchantmen are to permit the orderly operation of the law in ports of call, as regards persons on board accused of crime committed in the country to which the port pertains, it is probable on the one hand that occasions of arrest would be less often invited by the act of the accused in taking passage Avith a view to securing supposed asylum, and on the other hand that the regular resort to justice would replace the reckless and offensive resort to arbitrary force against an unarmed ship, which, when threatened or committed, has in more than one instance constrained urgent remonstrance on the § 42) VESSELS. 119 Though a state may admit foreign merchant vessels to its ports, it does not thereby waive the right to exercise over these vessels such jurisdiction as it may deem expedient. Secretary Bayard in 1885 said : "It may be safely affirmed that, when a merchant vessel of one country visits the ports of another for the purposes of trade, it owes temporary allegiance and is amenable to the jurisdiction of that country, and is subject to the laws which govern the port it visits so long as it remains, unless it is other- wise provided by treaty. "Any exemption or immunity from local jurisdiction must be derived from the consent of that country." *® In case of offenses committed on board a foreign vessel in a port, the French usage has steadily grown in favor. The French usage is, unless local interference is requested, to leave to the authorities of the state whose flag the merchant vessel flies action as to offenses which concern the discipline of the vessel itself and as to offenses which do not disturb the peace of the port.^" Acts committed by or against parties who do not belong to the vessel, or acts which disturb the peace of the port, may be cognized by thfe local authorities. Article XIII of the Treaty between the United States and the German Em- pire, December 11, 1871, embodies these principles: "Consuls general, consuls, vice consuls or consular agents shall have exclusive charge of the internal order of the mer- chant vessels of their nation, and shall have the exclusive pow- er to take cognizance of and to determine differences of every kind which may arise, either at sea, or in port, between cap- tains, officers and crews, and specially in reference to wages and the execution of mutual contracts. Neither any court or authority, shall, on any pretext, interfere in these differences except in cases where the differences on board ship are of a nature to disturb the peace and public order in port, or on part of this government." Secretary Gresham to President of Pacific Mail Steamship Co., Dec. 30, 1S93, Foreign Relations. U. S. 1894. p. 297 ; 2 JNIoore, § 307. 4 9 Foreign Relations U. S., 18S5, p. 82. 00 Bonfils, De la Competence de Tribunaux Frangais, No. 326; XVI Annua ire de I'lustitut de Droit International, p. 231. 1-0 JURISDICTION. (Ch, 4 shore, or wlien persons other than the officers and crew of the vessel, are parties to the disturhancc. "Except as aforesaid, the local authorities shall confine themselves to the rendering of efficient aid to the consuls, when they may ask it in order to arrest and hold all persons, whose names are borne on the ship's articles, and whom they may deem it necessary to detain. Those persons shall be arrested at the sole request of the consuls addressed in writing- to the local authorities and supported by an official extract from the register of the ship or the list of the crew, and shall be held, during the whole time of their stay in the port, at the disposal of the consuls. Their release shall be granted only at the re- quest of the consuls, made in writing. "The expenses of the arrest and detention of those persons shall be paid by the consuls." Similar provisions are contained in many other treaties. The British Territorial Waters Jurisdiction Act of 1878, however, claims that vessels simply passing through British marginal waters are liable to British law.^^ (c) The nationality of a vessel is usually determined by the flag of the vessel. In time of peace, the nationality of a public vessel is determined by its flag, or in exceptional cases by the word of the commander. The nationality of a private vessel is usually that of its flag; but, in case of question, the vessel must have papers w^hich establish its claims. These papers vary for different states, but usually include registry, muster roll, description, certificate of ownership, license, etc. AERIAL JURISDICTION. 43. It is now^ recognized that tlie jurisdiction of a state in- cludes the right to exercise authority in the atmos- phere above the state domain. The use of the atmosphere as a medium of communication and as a highway for airships, etc., has led to the recognition of the rights and duties of states in the atmosphere above their domain. 61 St. 41 & 42 Vict. c. 73. § 43) AERIAL JURISDICTION. 121 When the atmosphere was first used as a highway in time of war, those thus using it were threatened with exceptionally se- vere treatment, as during the Franco-Prussian war of 1870 Bismarck regarded those crossing territory occupied hy the Prussians as liable to treatment as spies. Similarly the Rus- sian commander in the Far East during the Russo-Japanese war in 1901 declared he would regard newspaper correspondents using wireless telegraph apparatus as spies. Both these claims were regarded as extreme, and protests were entered. It was not denied, however, that the state would have some measure of jurisdiction in such cases. It was admitted that the use of the atmosphere above belligerent territory might be forbid- den to balloons, or that those making use of the atmosphere above belligerent territory might become liable to treatment cis prisoners of war. It was also admitted that the use of wire- less telegraph in time of war might be regulated within the area of hostilities, and that belligerents might be forbidden the use of wireless telegraph apparatus within neutral jurisdiction. The Hague Convention Respecting the Rights and Duties of Neutral Powers provides : "Article III. Belligerents are likewise forbidden to : "(a) Erect on the territory of a neutral power a wireless telegraphy station or other apparatus for the purpose of com- municating with belligerent forces on land or sea ; "(b) Use any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes, and which has not been opened for the serv- ice of public messages," though a neutral is not called upon to forbid the use of its own or regular private system within its territory. In time of peace, also, it has been admitted that a state should exercise jurisdiction over its aerial domain. Numerous reports of national and international commissions have shown that this is necessary in order that systems of wireless teleg- raphy may not "be rendered absolutely useless by accident or by design." In 1903 the states signing the protocol of the Preliminarv Conference on Wireless Telegraphy at Berlin did not hesi- tate to assume the right of aerial jurisdiction, and the larger 122 JURISDICTION. (Ch. 4 conference in 190G, proceeding on the same basis, prescribed more detailed regulations for the use of the atmosphere for radio-telegraphic purposes. The Institute of International Law, at its session in Septem- ber, 1906, maintained the right of a state to make rules for the use of its atmospheric domain by wireless telegraph.^^ 6-^ DISPOSITIONS fri!;liminaikes. Article Proniier. L'air est libre. Les fitats n'ont sur lui, en temps de paix et eu temps de guerre, que les droits necessaires Sl leur conser- vation. Art. 2. A defaut de dispositions speciales, les regies applicables k la correspondance telegrapliique ordinaire le sont S, la correspondance telfigrapliiqiie sans til. PBEMlfiRE PaKTIE. Etat de Paix. Art. 3. Chaque Ktat a la faculty, dans la mesure ngcessaire h sa security, de s'opposcr, au-dessus de son territoire et de ses eaux terri- toriales, et aiissi haut quil sera utile, an passage d'ondes hertziennes. que celles-ci soient eniises par nn appareil d'Etat ou par un appareil privg place u terre. a bord d'un navire ou d'un ballon. Art. 4. Au cas d'interdiction de la correspondance par la telegra- phie sans fil, le gouvernenient devra aviser immediatement les autres gouvernemeuts de la defense qu'il §dicte. Seconde Partie. Etat de Guerre. Art. .5. Les regies admises pour le temps de paix sont, en prineipe. applicables au temps de guerre. Art. 6. Sur la baute mer, dans la zone qui correspond a la spbere d'action de leurs operations railitaires. les belligerants peuvent em- pecber les emissions d'ondes. nieme par un sujet neutre. Art. 7. Ne sont pas consideres comme espions de guerre mais doivent etre traites comme prisonniers de guerre, s'ils sont captures, les indi- vidus qui, malgre la defense du belligerant, se livrent a la transmis- sion ou a la reception des depecbes par telegrapbie sans fil entre les diverses parties d'une armee ou d"un territoire belligerant. 11 doit en etre autrement si la correspondance est faite sous de faux pretextes. Les porteurs des depecbes transmises par la telegrapbie sans til sont assimiles k des espions lorsqu'ils emploient la dissimulation ou la ruse. Les navires et les ballons neutres qui, par leurs communications avec I'ennemi, peuvent etre consideres comme s'etant mis a son serv- ice, pourront etre confisques ainsi que leurs depecbes et leurs appa- reils. Les sujets, navires et ballons neutres, s'il n'est pas etabli que leur correspondance etait destinee ^ fournir a I'adversaire des ren- § 43) AERIAL JURISDICTION. 123 The provision in the Constitution of the United States vest- ing- in Congress the power to regulate commerce has already been held to extend to the regulation of the carriage of tele- graphic messages in the case of Western Union Telegraph Co. V. Texas. ^^ The regulation of the transmission of wireless telegraphic messages has in recent years often been shown to be most necessary, particularly for the preservation of life and property upon the sea. The aerial jurisdiction is thus held to reside in the state having the jurisdiction over the land and water below. The regulations in regard to the use of wireless telegraphy on the high seas have also shown a tendency on the part of states to assume a control of the atmosphere above the high seas similar to that assumed over the high seas in establishing other regulations generally advantageous. The exact limits of aerial jurisdiction are not yet deter- mined. The Institute of International Law in 1906 enunciated the principle, "The air is free," and limited the rights of the states in the air to such as were necessary to self-preserva- tion, whether in peace or war. If this is interpreted in the strict sense, it would correspond to the rights of a state upon the high seas. It is evident, from the physical relationship of the atmosphere to the earth below, that the analogy does not hold in all respects. A ship, becoming disabled upon the high seas and sinking, might bring no risk to the life and property of the state nearest which it might at the time be sailing. A ship, becoming disabled in the air and sinking to the earth below, would bring danger to the life and property of the state .^eiguements relatifs a la conduite des liostilites, pouiTont etre ecar- tes de la zone d'operations et leurs appareils saisis et sequestros. Art. 8. L'Etat neutre n'est pas oblige de s'opposer au passage au- dessus de son territoire d'ondes bertziennes destinees a un pays en guerre. Art. 9. L'liltat neutre a le droit et le devoir de fermer ou de prendre sous son administration I'etablissement d'un Etat bolligerant qu'il avait autorise a fonctionner sur son territoire. Art. 10. Toute interdiction de communiquer par la telegraphie sans fil, formulee par les belligerants, doit etre immediatement noti- fiee par eux aux gouvernements neutres. 21 Annuarie de I'lnstitut, p. 327. 63 105 U. S. 460, 26 L. Ed. 1067. 124 JIUISDICTION. (Cll. 4 above wliicli it might at the time be passing. It is probable that for the control of aerial navigation somewhat different regulations may be necessary than for the regulation of wire- less telegraphy, which the Institute of International Law had particularly under consideration in 1906. It would certainly be difficult to maintain that, in a contigu- ous area not within the jurisdiction of any state, a stale would have no right of jurisdiction, though an act within this area might bring to the state serious consequences. What these rights are may be inferred from analogy to rights of jurisdic- tion already accepted. Nys, after mentioning that the develop- ment of the principles of maritime jurisdiction follows the fundamental principles of land jurisdiction, says that, "to the extent that 'the conquest of the air' is made and 'aerial navi- gation' progresses, the principles of 'aerial law' will be derived from the fundamental principles of maritime law." ^* The extension of the principles of maritime law may not always be sufficient.^^ Certain writers, following this analogy, would limit the qualified jurisdiction of the air to the actual range of projectiles from the surface of the earth. There is to be remembered in this proposition that, while the place of de- parture of the projectile from the earth may be known, unless some special form of projectile is used, its return to the earth's surface may be dangerous, and also that the projectile sent from the earth's surface is acting against the force of gravity, while one dropped from a distance above is acting with the force of gravity. Some would deny the free use of the air within 5,000 feet of the earth's surface to the public ships of foreign states.^ ^ Others would admit free use in time of peace, subject to police regulations, but extend the restraint in time of war.^^ C4 1 Xys, Le droit interuationnl, p. 524. 5 5 Meurer, Luftscliiffartsrecht, p. 5. 56 Fauchille, 19 Annuaire de I'lnstitut de Droit International, p. 34. 5 7 Merii,'nhae, Lois et Coutumes de la Guerre sur Terre, p. I'JG; Scliolz, Dralitlose Telegrapliie uud Neutralitiit, p. 19. § 44) JURISDICTION OVER PERSONS. 125 JURISDICTION OVER PERSONS— NATIONALS. 44. Nationals are persons •who ow^e allegiance to a state and are entitled to its protection. In the discussions of the jurisdiction over persons, the words ■■"citizen," "subject," "person within the jurisdiction of a state," have been used in so many different senses that in recent years the word "national" has been introduced as the term to desig- nate those who owe allegiance to and are entitled to the pro- tection of a given state. The conditions requisite for citizen- ship are of significance to other branches of public law, rather than to international law. Over its nationals within its own jurisdiction a state has full authority. This jurisdiction extends, not merely to its domain, but to the ships under its flag on the high seas. Over its nationals within foreign jurisdiction a state has a qualified jurisdiction, varying according to circumstances and according to the law and practice of the foreign state. Over its nationals when in a foreign port on vessels flying its flag, for acts beginning and ending on board the vessel, or for acts which do not take effect outside the vessel, a state has, in general, jurisdiction. Certain persons are by practice exempt from foreign juris- diction, and under the authority of the state to which they owe allegiance, as in case of a diplomat and the persons connected with the suite of a diplomat. States sometimes claim authority over their nationals so- journing within a foreign jurisdiction. Claim to authority to call home nationals who may be abroad in time of war has been made from time to time. Claim to authority to punish nationals for crimes committed abroad has been admitted. Many phases of the jurisdiction over nationals belong to the field of "Conflict of Laws," or "International Private Law." Other phases of the subject will be treated in Part III, "Inter- course of States," and under appropriate sections elsewhere. 126 JURISDICTION. (Ch. 4 ACQUISITION OF NATIONALITY. 45. Nationality may be determined by place of birth, jus soli; by the nationality of the parents, jus sanguinis; or by some form of naturalization.'' i^ While nationality is not determined by international law, its determination is often a subject of international negotiation; indeed, few subjects have given rise to so many diplomatic controversies. The laws determining nationality in different states are unlike, and sometimes there are different methods of determination within the same state. °^ The United States laws provide that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." ^^ Here the jus soli is followed. Great Britain and South American states generally follow jus soli. The United States law also provides that "all children here^ tofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States ; but the rights of citizenship shall not descend to children whose fathers never resided in the United States." ®^ Here the jus sanguinis is followed; but the father must be a citizen of the United States at the time of the birth of the child, and must have resided in the United States. By the act of March 2, 1907, children, born of American parents resident abroad, who continue to reside abroad, in order to re- ceive the protection of the United States must "upon reaching the age of eighteen years record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath 58 For full treatment of United States practice see Van Dyne, Nat- uralization in the United States. 5 9 By Act June 29, 190G, the United States established a Bureau of Naturalization in the Department of Commerce and Labor. 34 Stat. .596 (U. S. Comp. St. Supp. 1909, p. 477). 60 Const. U. S. Amend. 14. See, also, Foreign Relations U. S. 1901, p. 303; Great Britain, Act May 12, 1870, art. 4. 61 Rev. St. § 1993 (U. S. Comp. St. 1901, p. 1268). § 45) ACQUISITION OF NATIONALITY. 127 of allegiance to the United States upon attaining their majori- ty." The race, residence, or status of the mother does not af- fect the status of the child, provided only the father is a citizen at the time of the child's birth. ®^ Foundlings are regarded as nationals of the state in which they are found. An illegitimate child, born within the state of which the mother is a subject, is a national of that state. It has been held that an illegitimate child born abroad to an American woman is' not entitled to United States citizenship."* As some other states follow the jus soli, and some the jus sanguinis, and some, like the United States, follow both, there has grown up the practice of allowing the child born abroad to elect his allegiance upon attaining his majority. Certain states, however, require in case of renunciation, not merely that citizenship be renounced by the child, but also that the renunciation be accepted by the state of which the parents are nationals.^* Naturalization is the act conferring on a foreigner the status of a national. Naturalization may be (a) by general law; (b) by marriage; (c) through act of parent; (d) through general transfer of allegiance by treaty of cession, purchase, etc. ; (e) through the transfer of allegiance by conquest; (f) in consequence of cer- tain special service, etc.; (g) by admission of new territory into a state; (h) by special act of legislation; (i) by election. (a) The laws in regard to the acquisition of nationality vary greatly in different states. In general, they require a renuncia- tion of allegiance to the parent state and an oath of allegiance to the adopted state.®" 62 Foreign Relations U. S. 1903, p. 45. 6 3 Guyer v. Smith, 22 Md. 239. 85 Am. Dec. 6.50. 64 Swiss Law, July 3, 1876. The jus sanguinis is also followed by Austria, Civil Code, art. 23 ; Hungary, Law Dec. 24, 1879 ; Germany, Law June 1, 1870 ; Sweden, Law Feb. 5, 1858. 6 3 In the United States the act of Congress of June 29, 1906, pro- vides in section 4: "That an alien may be admitted to become a citizen of the United States in tlie following manner and not otherwise: "First. He shall declare on oath before the clerk of any court 128 JURISDICTION. (Cb. -1 (b) In general, a woman by marriage acquires tbe national- ity of her husband, though this does not follow unless she autliorized by this act to naturalize aliens, or his authorized deputy, in the district in which such alien resides, two years at least prior to his admission, and after he has reached the age of eighteen years, that it is bona fide his intention to become a citizen of the United States, and to renounce forever all allegiaufe and fidelity to any for- eign prince, potentate, state, or sovereignty, and particularly, by name, to the prince, potentate, state, or sovereignty of which the alien may be at the time a citizen or subject. * • * "Second. Not less than two years nor more than seven years after he has made such declaration of intention he shall make and tile, in duplicate, a petition in writing. * • * The petition shall set forth that he is not a disbeliever in or opposed to organized government, or a member of or affiliated with any organization or body of per- sons teaching disbelief in or opposed to organized government, a po- lygamist or believer in the practice of polygamy, and that it is his intention to become a citizen of the United States and to renounce absolutely and forever all allegiance and fidelity to any foreign prince. ^ * * "Third. He shall, before he is admitted to citizenship, declare on oath in open court that he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity lo any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty of which he was before a citizen or subject; that he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same. "Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the state or territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well dis- posed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral char- acter, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record. "Fifth. In case the alien applying to be admitted to citizenship has borne any hereditary title, or has been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or § 45) ACQUISITION OF NATIONALITY, 129 would in her own right be entitled to obtain such nationality.^" If a United States citizen should marry a Chinese woman, the Chinese woman would not thereby acquire United States citi- zenship, though their children would follow the nationality of the father.^^ In some states it is made easier for a foreigner who has married a native woman to acquire the citizenship of his wife.®^ . By the act of March 2, 1907 (U. S. Comp. St. Supp. 1909, p. 439), an American woman who marries a foreigner takes his nationality. On the termination of the marital relation, if abroad, she may by registering before a United States consul within one year resume her American citizenship, or on return- ing to reside, or if residing in the United States, American citizenship is resumed by continuing to reside therein. By the same act a foreign woman who acquires American nationality by marriage to an American citizen retains the same after termination of the marital relation, if she continues to reside in the United States and does not formally renounce the same, or if residing abroad she may retain United States order of nobility iu the court to wbicli liis application is made, and his renunciation shall be recorded in the court. "Sixth. When any alien who has declared his intention to become a citizen of the United States dies before he is actually naturalized the widow and minor children of such alien may, by complying with the other provisions of this act, be naturalized without making any declaration of Intention." 34 Stat. 596 (U. S. Comp. St. Supp. 1909, p. 478). 6 6 "Any foreign woman who acquires American citizenship by mar- riage to an American shall be assumed to retain the same after the termination of the marital relation if she continue to reside in the United States, unless she makes formal renunciation thei'eof before a court having jurisdiction to naturalize aliens, or if she resides abroad she may retain her citizenship by registering as such before a United States consul within one year after the termination of such marital relation." Act March 2, 1907, § 4 (U. S. Comp. St. Supp. 1909, p. 439). Whenever a foreign woman marries an American and is abroad when the marital relation is terminated, she must register as an American citizen before an American consul within one year. 6T Rev. St. § 1994 (U. S. Comp. St. 1901, p. 12GS): "Any woman who is now or may hereafter be mai'ried to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen." 6 8 Belgium, Law of Aug. G, 1881; France, Law of June 26, 1889. WiLS.lNT.L.— 9 ir?0 JURISDICTION. (Ch. 4 citizenship by registering before an American consul witliin one year.*'^ (c) Naturalization of the parents ordinarily confers upon minor children the nationality acquired by the parents, though it may be under conditions. The United States law contains a clause restricting such acquisition of nationality to children "under twenty-one years of age at the time of naturalization of their parents" and "dwelling in the United States." ""^ The 6 9 Britisli Naturalization Act, 1S70, provides iu section 10 for read- mission: "National Status of Married Women and Infant Children. "10. The following enactments shall be made with respect to the national status of women and children: "(1) A married woman shall be deemed to be a subject of the state of which her husband is for the time being a subject. "(2) A widow being a natural-born British subject, who has become an alien by or in consequence of her marriage, shall be deemed to be a statutory alien, and may as such at any time during widowhood obtain a certificate of readmission to British nationality in manner provided by this act. "(3) Where the father being a British subject, or the mother being a British subject and a widow, becomes an alien in pursuance of this act, every child of such father or mother who during infancy has become resident in the country where the father or mother is nat- uralized, and has, according to the laws of such country, become naturalized therein, shall be deemed to be a subject of the state of which the father or mother has become a subject, and not a British subject. "(4) Wliere the father, or the mother being a widow, has obtained a certificate of readmission to British nationality, every child of such father or mother who during infancy has become resident in the British dominions with such father or mother, shall be deemed to have resumed the position of a British subject to all intents. '■(5) Where the father, or the mother being a widow, has obtained a certificate of naturalization in the United Kingdom, every child of such father or mother who during infancy has become resident with such father or mother in any part of the United Kingdom, shall be doomed to be a naturalized British subject " 7 Rev. St. § 2172 (U. S. Comp. St. 1901, p. 1334): "The children of persons who have been duly naturalized under any law of the United States, or who previous to the passing of any law on that subject, by the government of the United States, * * * being under the age of twenty-one years at the time of the naturalization of their § 45) ACQUISITION OP NATIONALITY. 131 words "dwelling in the United States" do not necessarily mean dwelling- in the United States at the time of the parent's nat- uralization, but "either at the time of the father's naturaliza- tion or afterwards during the child's minority." '^^ The doubt as to the operation of certain clauses of sections of the law mentioned above was removed by section 5 of the act of March 2, 1907 (U. S. Comp. St. Supp. 1909, p. 410), which provides: "That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided, that such naturalization or resumption takes place during the minority of such child : And provided further, that the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States." ' (d) Transfer of territory by treaty usually transfers the political allegiance of the inhabitants of the territory. Inhab- itants of a territory thus transferred are often allowed a rea- sonable time in which to withdraw, if they do not wish to ac- cept the nationality of the new jurisdiction. Later treaties usually make provision for the transfer of nationality.'^- The same is true of some of the earlier treaties, as in the treaty of Utrecht of 1713. Treaties transferring territory by exchange, sale, voluntary cession, cession as a result of war, etc., ordi- parents, shall, If dwelling in the United States, be considered as citizens thereof." 71 Foreign Relations U. S. 1900. p. 527. The American position in rerty, and secured in the free exercise of their religion without restriction." These provisions were reaffirmed in the Gadsden Purchase Treaty of 1853, article V. 74 "Article IX. Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, § 45) ACQUISITION OF NATIONALITY. 133 (e) Lacking treaty or other agreement, the inhabitants of territory acquired by conquest are regarded as of the national- ity of the conquering state. The conquering state may deter- mine the stc.tus of the inhabitants of the conquered territory. It is evident that this would be necessary, if the former gov- ernment should be entirely overthrown as a result of the war, or if the former government should refuse to make any agree- ment in regard to the transfer.'^ '^ (f) The acquisition of nationality is frequently made easier for foreigners who have rendered military, naval, or other service to a state. The United States laws permit an alien of legal age who has rendered honorable military service to the United States to become a citizen after one year of residence.^' Previous declaration is not required of aliens who have honor- ably served five years in the Navy or Marine Corps.'' ^ Provi- sion is made for the admission of aliens serving as merchant seamen three years after declaration of intention, instead of five.^« (g) Territory previously outside the jurisdiction of any rec- ognized state may be taken within the jurisdiction of a state. The inhabitants of such territory are generally entitled to the protection of and owe allegiance to the state within which including the right to sell or dispose of such property or of its proceeds ; and they shall also have the right to carry on their indus- try, commerce and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the crovpn of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which dec- laration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside. "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress." See, also, the Insular Decisions, 182 U. S. 1-391, 21 Sup. Ct. 742, 743. 762, 770, 827, 45 L. Ed. 1041, 1065, 1074, 1086, 1088. 7 5 Downes v. Bidwell, 182 U. S. 300, 21 Sup. Ct. 770, 45 L. Bd. 1088. 7 6 Rev. St. § 2166 (U. S. Comp. St. 1901, p. 1331). 7 7 28 Stat. 124, c. 165. 7 8 Rev. St. § 2174 (U. S. Comp. St. 1901, p. 1334). 134 JURISDICTION, (Cll. 4 they may thus come. This has been recognized in varying de- grees in the protectorates established in Africa.'^® Territory which forms a part or the whole of a political unity may be admitted as a part of an existing state. Provi- sion may be made in such case for the granting of the na- tionality of the receiving state to the inhabitants, even though the rights previously existing are in large measure retained. By the act of Congress of April 30, 1900, "providing a govern- ment for the territory of Hawaii," annexed to the United States by a joint resolution of July 7, 1898, it was provided that persons who were citizens of the Republic of Hawaii on August 12, 1898, were "citizens of the United States and citi- zens of the territory of Hawaii," and also that all citizens of the United States resident in the Hawaiian Islands August 12, 1898, and "all citizens of the United States who shall hereafter reside in the territory of Hawaii for one year, shall be citizens of the territory of Hawaii." ^° (h) Naturalization of individuals of groups may be by spe- cial act of legislation. Mrs. Sartoris was in 1898 admitted to United States citizenship by joint resolution of Congress.^ ^ Tribes or larger groups of Indians have also been admitted to United States citizenship by special act.^^ Many treaties for the reciprocal acknowledgment of naturalization were asrreed upon about 1870.«» "9 Britisli South Africa Order in Council, 1S91. 80 31 Stat. 141. See case of status of Chinaman born In Hawaiian Islands, Foreign Relations U. S. 1905, p. 735. 81 "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that Nellie Grant Sartoris, daughter of General Ulysses S. Grant, be, and she is here- by, on her own application, unconditionally readmitted to the char- acter and privileges of a citizen of the United States, in accordance with the provisions of article third of the convention relative to naturalization between the United States and Great Britain con- cluded May thirteenth, eighteen hundred and seventy." 30 Stat. 14iH>. 8 2 31 Stat. 1447. 83 The Treaty of September 20, 1870, between the United States and Austria-Hungary provides: "Article I. Citizens of the Austro-Hungarian monarchy who have resided in the United States of America uninterruptedly at least five years, and during such residence have become naturalized citizens of § 46) EXPATRIATION. 135 (i) By jus sanguinis, followed by the United States, the child of an American father, though born abroad, ordinarily would acquire his father's nationality. Other states follow the same rule. Certain states, including the United States, also follow the jus soli, by which children born within the state acquire the nationality of the place of birth. There might, therefore, be a conflict as to allegiance. To obviate this it has become customary to allow the child born abroad to elect, on arriving at majority, whether he will assume the nationality of the place of birth or of his parentage. EXPATRIATION. 46. Expatriation is the renunciation or abandonment of na- tionality. The doctrine of perpetual or mdehble allegiance has been maintained by many states. There was much difference of opinion in the United States^* in regard to the right of ex- patriation, till by an act of July 27, 1868, restrictions upon the right of expatriation were "declared inconsistent with the fundamental principles of this government." Great Britain had for many years particularly maintained the doctrine of in- alienable allegiance. This was distinctly renounced in 1870.^' It is now recognized that citizenship may be forfeited by naturalization in a foreign state, by marriage to a foreigner in case of a woman, by entering the military service of a foreign state, by certain other service involving the taking of an oath of allegiance, by desertion from the army or navy, by long- continued residence abroad, or, in case of naturalized citizens, by residence abroad for a shorter period. Not all states are agreed upon these grounds of expatriation or forfeiture of citizenship. The United States has maintained that service in a foreign army does not necessarily forfeit citizenship. The Netherlands law holds a citizen expatriated if he enters for- tlie United States shall be held by the government of Austria and Hungary to be American citizens, and shall be treated as such." 84 3 Moore, § 431, ff. ; Moore, American Diplomacy, c. VII. 8 5 Act Concerning Aliens and British Subjects, May 12, 1870 (St. 33 & 34 Vict. 105, c. 14). 136 JURISDICTION. (Ch. 4 eign military service without permission. Some states main- tain that residence abroad for a definite period forfeits citizen- ship ; others require proof of intention to remain. German law prescribes that ten j'cars' residence abroad may forfeit German nationality and possibly render a German heimatlos. The United States has frequently demanded proof of animus manendi. There have been many treaties in regard to expatriation. A common provision of such treaties is to prescribe for the mu- tual recognition of naturalization as a means terminating prior citizenship. Citizenship based on naturalization may, however, lapse through residence abroad. The law of the United States of March 2, 1907,®® provides in general that two years of resi- dence in the foreign state from which he came, or five years of residence in any other foreign state, may expatriate a nat- uralized citizen.®^ PROTECTION OF NATIONALS. 47. (a) A state usually extends as full protection as possible to its native nationals in foreign states. Cb) A like protection is extended to its naturalized nationals in states other than those of their previous allegiance, (c) A degree of protection is extended to those xirho through taking steps toivard obtaining its citizenship have an. inchoate right of nn,tionality in a state, even though the new citizenship is not yet granted. (a) While a state usually extends as full protection as possi- ble to its native nationals, this protection may be conditioned 8 8 Act March 2, 1907, 34 Stat. 1228 (U. S. Comp St. Supp. 1905), p. 438). See, also, Van Dyne, Naturalization in a Foreig:n State, c. V. ST "When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for Ave years in any other foreign state it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, that such presumption may be overcome on the presentation of satisfac- tory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, that no American citizen shall be allowed to expatriate himself when this country is at war." 34 Stat 1228 (U. S. Comp. St Supp. 1909, p. 438). § 47) PROTECTION OF NATIONALS. 137 upcn the acts of the nationals themselves. The limits of pro- tection of native nationals abroad depend upon the laws of the foreign state and upon treaty relations. The rights of a national of one state in another state are usually specified in treaty agreement. Article II of the Treaty of July 3, 1902, between the United States and Spain provides that: "There shall be a full, entire and reciprocal liberty of com- merce and navigation between the citizens and subjects of the two high contracting parties, who shall have reciprocally the right, on conforming to the laws of the country, to enter, travel and reside in all parts of their respective territories, saving al- ways the right of expulsion which each government reserves to itself, and they shall enjoy in this respect, for the protection of their persons and their property, the same treatment and the same rights as the citizens or subjects of the country or the citizens or subjects of the most favored nation. "They can freely exercise their industry or their business, as well wholesale as retail, without being subjected as to their persons or their property, to any taxes, general or local, im- posts or conditions whatsoever, other or more onerous than those which are imposed or may be imposed upon the citizens or subjects of the country or the citizens or subjects of the most favored nation. "It is, however, understood that these provisions are not in- tended to annul or prevent, or constitute any exception from the laws, ordinances and special regulations respecting taxa- tion, commerce, health, police, and public security, in force or hereafter made in the respective countries and applying to foreigners in general." Nationals of a foreign state cannot claim more privileges than the subjects of the state in which they are for the time. As the foreign state has relations only with the national gov- ernment, the national government cannot disclaim ordinary re- sponsibility because its control of local divisions is of a re- stricted character. Instances have arisen in the United States in which the jurisdiction of the local states over aliens has giv- en rise to complications in consequence of conflict with the national jurisdiction. Several cases of lynching have taken 138 JURISDICTION. (Cb. 4 place in certain states. In some instances those guilty of par- ticipation have not been punished, owing to the impossibihty of enforcing the penalties through the local courts, which have ju- risdiction. Mr. Flay, Secretary of State of the United States, in a letter to Baron Fava, the Ambassador of Italy, in regard to the lynching of certain Italians in Tallulah, Louisiana, in July, 1899, said on June 12, 1900 : "Excellency : I have the honor to acknowledge the receipt of your excellency's esteemed favor of May 6 in relation to the cruel lynching at Tallulah. "In answer to your inquiry as to 'what measures the federal government intends to take in order to settle this unfortunate matter,' and to the assurance of your faith in the efficient ac- tion of the Department for the prevention in future of any repetition of such atrocious outrages, and for the application of remedial measures to the failure on the part of the Louisi- ana authorities to do justice, it should hardly seem necessary to testify to your excellency the unqualified condemnation with which the government of the United States views all such acts of lawless violence, whether committed against the subjects of other States residing in the United States or against its own citizens. "Your excellency is advised of the dual nature of our gov- ernment, and of the defect in the federal laws, which the President has sought, so far as lies in his power, to have remedied, and of the prompt and energetic measures adopted by the Department of State with a view to the punishment, by the only competent authorities, of the authors of the crime un- der discussion. "It having been shown that Italian subjects were slain by said lynching, and that there has been a failure on the part of the only competent authorities to indict or bring the guilty parties to trial in any form, the President feels that a case has been established that should be submitted to the consideration of Congress, with a view to the relief of the families of Italian subjects who lost their lives by lawless violence, which will accordingly be done on the reassembling of Congress in De- cember next." ®® 88 Foreign Relations U. S. 1900, p. 72a § 47) PROTECTION OF NATIONALS. 139 Presidents of the United States have repeatedly recom- mended that legislation be passed conferring upon the federal courts jurisdiction in cases involving the treaty rights of aliens. There have been several cases of violence against Italians for which the national government has paid indemnity. ^° The indemnity for the lynching in New Orleans in 1890 amounted to nearly $25,000. By an act of Congress of March 3, 1901, it was voted: "To pay, out of humane consideration, without reference to the question of liability therefor, to the Italian government as full indemnity to the heirs of Joseph Defatta and John Cyrano, Italian citizens who were lynched at Tallulah, Louisiana, on July twentieth, eighteen hundred and ninety-nine, four thou- sand dollars." "" The United States has thus in fact recognized its responsi- bility in many cases. The correspondence with foreign states on this subject covers many pages of the United States For- eign Relations since 1891, and receives considerable attention in the messages of the Presidents. Over its nationals outside the jurisdiction of any state the state exercises full jurisdiction and protection as on its vessels on the high sea. A large degree of protection is also often extended to nationals in dependent areas, even when these are not incorporated into the state.® ^ When a native national by residence abroad changes his domicile^^ to the foreign state, he cannot as of right claim protection from his native state. The rights and obligations of citizenship are naturally correla- tive. Long residence abroad and identification of interests with those of the foreign state may be sufficient evidence of intent to acquire a foreign domicile to warrant the withdrawal of national protection. 89 Id. 1891, pp. 665-713; 1895, II, pp. 938-954; 1896. 31 Stat. 1010, c. 831. 91 Hall, Foreign Jurisdiction of the Britisti Crown, c. 3. 9 2 Domicile by the Roman law was "the place from which a person going was on a journey and to which returning he was at his jour- ney's end"— "unde cum profectus est perigrlnari jam videtur, quo si rediit peregrinari jam destitit." 140 JURISDICTION. (Cll, 4 Nationals of one state, domiciled in a foreign state which is at war, are liable to the consequences of the war. (b) Naturalized nationals are entitled to the same degree of protection as natives elsewhere than in states of their prior al- legiance. In states of their prior allegiance their status will be dependent upon the local law. If obligations to the state of their prior allegiance or liabilities rested upon a naturalized national before his naturalization, it is generally maintained that such obligation or liability revives on his return to the state of his prior allegiance. Some states hold that only those obligations and liabilities incurred before emigration revive.®' (c) When a national of one state declares his intention to become a citizen of another state and to renounce his allegiance to his former sovereign, he acquires an inchoate nationality in the state of his choice. This declaration, called the "declara- »3 "But a naturalized American of German birth is liable to trial and punishment upon return to Germany for an offense against Ger- man law committed before emigration, saving always the limitations of the laws of Germany. If he emigrated after he was enrolled as a recruit in the standing army; if he emigrated while in service, or while on leave of absence for a limited time; if, having an unlim- ited leave, or being in the reserve, he emigrated after receiving a call into sei*vice, or after a public proclamation requiring his appear- ance, or after war broke out — he is liable to trial and punishment on return." Liability to military service in Germany extends from the completion of the seventeenth year of age to the forty-fifth year. Foreign Relations U. S. 1901, p. 161. See same volume for Austria-Hungary, p. 7 ; Belgium, p. 16 ; Den- mark, p. 139; France, 153; Germany, 160: Greece, 247; Italy, 282; Netherlands, 418; Persia, 424; Portugal, 439; Roumania. 441; Russia, 453; Servia, 455; Sweden and Norway, 486; Switzerland, 499 ; Turkey, 515. "The Turkish government denies the right of a Turk to become a citizen of any other country without the authority of the Turkish government. His naturalization is therefore regarded by Turkey as void with reference to himself and his children, and he is forbidden to return to Turkey. "The consent of the Turkish government to the naturalization in another country of a former Turk is given only upon condition that the applicant shall stipulate either never to return, or, returning, to regard himself as a Turkish subject. Therefore, if a naturalized American citizen of Turkish origin returns to Turkey, he may expect arrest and imprisonment or expulsion." § 47) PROTECTION OF NATIONALS. 141 tion of intention" in the United States,"* does not confer upon the declarant the rights of citizenship, and until naturalization is completed he remains an alien. It is customary for a state to extend a degree of protection to those who have declared their intention to acquire its nationality. Such protection will ordinarily only be afforded to the declarant when outside the jurisdiction of the state which he proposes to renounce."^ One of the most widely discussed cases of protection arose in 1853. Martin Koszta, a Hungarian, who had participated in the Revolution of 1848-49, fled to Turkey, was imprisoned, 84 "Declaration of Intention. "(Invalid for all purposes seven years after the date hereof.) "I, , aged years, occupation , do declare on oath (affirm) that my personal description is: Color , complexion height , weight , color of hair , color of eyes , other visible distinctive marks ; I was born in on the day of , Anno Domini ; I now reside at ; I emigrated to the United States of America from on the vessel ; my last foreign residence was It is my bona fide intention to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly to , of which I am now a citizen (subject); I arrived at the (port) of , in the state (territory or district) of on or al>out the day of Anno Domini; I am not an anarchist ; I am not a polygamist, nor a believer in the practice of polygamy; and it is my intention in good faith to become a citi- zen of the United States of America and to permanently reside there- in. So help me God. "(Original signature of declarant) "Subscribed and sworn to (affirmed) before me this day of , Anno Domini "[L. S.] "(Official character of attestor.)" 9 5 Act March 2, Um (U. S. Comp. St. 1901, p. 438) provided: "That the Secretary of State shall be authorized in his discretion to issue passports to persons not citizens of the United States as follows: Where any person has made a declaration of intention to become such a citizen as provided by law, and has resided in the United States for three years, a passport may be issued to him entitling him to the protection of the government in any foreign country: Provided, that such passport shall not be valid for more than six months and shall not be renewed, and that such passport shall not entitle the holder to the protection of this government in the country of which he was a citizen prior to making such declaration of intention," 142 JURISDICTION. (Ch. 4 and released on condition that he would leave that state. Koszta came to the United States, declared his intention to be- come a citizen July 31, 1S52, and returned to Turkey in 1853, as he alleged, on "private business of a temporary character." The American representatives in Turkey furnished him with "a tezkereh — a kind of passport or letter of safe-conduct." XMiile in Smyrna he was thrown into the sea. He was picked up by a crew from the Austrian warship Huzzar, taken on board the ship, and confined in irons. The American repre- sentatives requested Koszta's release, which was not granted. On arrival of an American warship in the harbor, Koszta's re- lease was demanded, with an intimation that force would be used. Koszta was then delivered "into the custody of the French consul general, to be kept by him until the United States and Austria should agree as to the manner of disposing of him." Koszta was allowed to return to the United States, though Austria maintained her right to proceed against him if he should again return to Turkey. After mentioning that Koszta had by declaration manifested the intention of making the United States his permanent abode. Secretary Marcy says : "The establishment of his domicile here invested him with the national character of this country, and with that character he acquired the right to claim protection from the United States, and they had the right to extend it to him as long as that char- acter continued. * * * This right to protect persons having a domicile, though not native-born or naturalized citizens, rests on the firm foundation of justice, and the claim to be protected is earned by considerations which the protecting power is not at liberty to disregard." ®^ 9c This case is stated quite fully In 3 Moore, §§ 490. 491. The position taken by Secretary Marcy has been regarded as carrying the right to protection farther than may be generally expedient. Sec- retary Olney. in a letter to the Minister of China, Mr. Denby, in 189G, said: "The somewhat extreme position taken by Mr. Marcy in the Koszta case, that the declarant is followed, during sojourn in a third countiy, by the protection of this government, has since been necessarily regarded as applying particularly to the peculiar circum- stances in which it originated, and to relate only to the protection of such a declarant in a third country against arbitrary seizure by the government of the country of his origin." Foreign Relations U. S. 1896, p. 92. See, also, case of Burnato, 3 Moore, p. 847. § 48) ALIENS. 143 The United States by law of 1907 allows the Secretary of State in his discretion to issue a passport to a person not a citizen of the United States, provided he has declared his in- tention to become such and has resided in the United States for three years. Such passports are not valid for more than six months, nor in the state of prior allegiance, and cannot be renewed.®^ ALIENS. 48. In general, a state lias tlie right to proliiliit or condition tlie entrance and sojourn of aliens \5ritliin its borders. (a) The right to exclude aliens was one generally recognized and observed in early times. Some states now make the en- trance of any alien difficult. Other states exclude certain classes. The United States, by the treaty of November 17, 1880, excludes Chinese laborers.®^ A state may also exclude 9 7 34 Stat 1228 (U. S. Comp. St. Supp. 1909, p. 438). 9 8 22 Stat. 826. "Article I. Whenever in the opinion of the government of the United States, the coming of Chinese laborers, to the United States, or their residence therein, affects or threatens to affect the inter- ests of that country, or to endanger the good order of the said country or of any locality within the territory thereof, the govern- ment of China agrees that the government of the United States may regulate, limit, or suspend such coming or residence, but mar not absolutely prohibit it. The limitation or suspension shall be reasonable and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitations. Legislation taken in regard to Chinese laborers will be of such a character only as is necessary to enforce the regulations, limitation, or suspension of immigration, and immigrants shall not be subject to personal maltreatment or abuse. "Article II. Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exceptions which are accorded to the citizens and subjects of the most favored nations." Treaty between the United States and China, November 17, 1880. See, also, Chinese Exclusion Case, 130 U. S. 581, 9 Sup. Ct. 623, 32 L. Ed. 1068 ; Foug Yue Ting v. United States, 149 U. S. 098, 13 Sup. Ct. 1016, 37 L. Ed. 905. 144 JURISDICTION. (Ch. 4 certain classes by legislation. The United States has passed laws excluding anarchists and polygamists and other laws re- stricting immigration."" (b) States generally claim the right to expel aliens regarded as endangering the safety of the state. There have been many examples of such expulsion.^ In 1901 Mr. George Kennan, who had previously published criticisms upon the administration of the Siberian prisons, was expelled from Russia under the law which provides : "Foreigners who have come into Russia with passports may be expelled from the Empire only upon the deci.-ion of a court of law or by order of the higher police authorities, "Those foreigners whose behavior is suspicious and those who are not desirable as residents within the Empire may be expelled by order of the minister of the interior." Of this expulsion Mr. Kennan wrote to the American Am- bassador in St. Petersburg : "A very courteous officer from the department of police called at my room this afternoon to inform me that by direc- tion of the minister of the interior and in accordance with chapter 313 of Volume II of the laws of the Empire, I, as an 'untrustworthy' American citizen, am to be sent out of the country by the train leaving here for Germany at 10 :30 to- morrow night. Meanwhile I am under close arrest in my room. "Of course, they are acting within their right, and I have no complaint whatever to make, nor do I ask interposition on the part of the embassy. I merely wish you to know why it is impossible for me to make a farewell call upon you." ^ (c) Aliens may be admitted conditionally, with the under- standing that they are to have only certain privileges ; e. g., the privilege of study or travel, but not the right to engage in business. (d) The state usually claims full authority over aliens as regards police, sanitary, and penal jurisdiction. This does not extend to compulsory military service for political ends, though 88 Act Feb. 20, 1907 (U. S, Comp. St. Supp. 190'J, p. 447). 1 4 Moore, §§ .jr,0-r..j9. 2 Foreign Relatious U. S. 1901, pp. 451, 452, § 49) EXTRADITION. 145 an alien may enter the military service as a volunteer, or may be compelled to serve the state in the maintenance of public order, which may be as essential to him as to citizens. Such service might be in the defense against savages or irresponsible bodies of men. (e) Rights of property and inheritance may be determined by local laws, and are not always the same for alien and national. (f) A state may require a passport or other documentary evidence of identity. In some instances the documents of identification must contain the photograph of the alien, as well as the ordinary description of his physical characteristics. EXTRADITION. 49. Extradition is the surrender hj one state to another state for trial and punishment of a person accused of crime committed outside the jurisdiction of the state making the surrender. Not only may a state expel an offender against its own well- being, but it may surrender a person accused of crime com- mitted outside of its jurisdiction. This principle of extradi- tion has long been recognized, though it cannot be claimed that there is a universally accepted right to dem.and a criminal who has sought refuge in a foreign state. Grotius in 1625 said: "Since, however, it is not customary for states to permit another state to 'enter its territory under arms for the sake of administering punishment, nor is it expedient, it follows that the state where the one who has committed the offense sojourns ought to do one of two things : Either on demand it should punish the guilty party, or it should turn him over for trial to the state making the demand." ^ Treaties of extradition are particularly the product of the nineteenth century, though the practice of surrendering certain fugitives from justice was common among states in earlier days. There are now so many treaties of extradition that a criminal can rarely escape justice by flight to another state. 8 De Jure Belli ac Pacis. lib. II, c. XXI, § IV, 1. WiLS.lNT.L.— 10 140 JuitisDUTioN. (Ch. 4 (a) Extradition is an act of the state. While surrender is sometimes granted as an act of courtesy, extradition is usually based on treaty agreement. Air. Justice IMillcr in 1886 said: "It is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed for trial and punishment. This has been done gen- erally by treaties made by one independent government with another. Prior to these treaties, and apart from them, it may be stated, as the general result of the writers upon interna- tional law, that there was no well-defined obligation on one country- to deliver up such fugitives to another, and, though such delivery was often made, it was upon the principle of comity, and within the discretion of the government whose action was invoked ; and it has never been recognized as among those obligations of one government towards another which rest upon established principles of international law." * (b) The crimes for which extradition is granted vary in the different treaties. In general, all crimes, except offenses against religious laws and such as are purely political, are re- garded as extraditable. Political crimes, accompanied by acts of violence against the person or family of the sovereign, are usually made liable to extradition.' Desertion from the mili- tary service is often excluded from the list of extraditable offenses. (c) Nationals of a state, who have taken refuge in a foreign state and are accused of an extraditable crime committed with- in their own state, are usually extradited on demand. Extradi- tion of the nationals of a state who are within its jurisdiction is at present at the discretion of the state, though they are usually given up on demand.*' Extradition may be delayed if the person requisitioned is charged with or under sentence for crime committed in the state within whose jurisdiction he is. 4 United States v. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234. 30 L. Ed. 425. &1 Moore, Extradition, p. 308; Treaty between the United States and Russia 1887, art. III. 6 1 Moore, Extradition, p. 152. § 50) EXEMPTIONS FROM JURISDICTION. 147 When a fugitive from justice is claimed by two or more powers, later practice and treaties generally give preference to prior demand. Sometimes the gravity of the crime is con- sidered. (d) A person who has been surrendered to a state on ac- count of an offense mentioned in an extradition treaty, and has satisfied the state as to that offense, is usually allowed a reasonable time in which to leave the state before prosecution for any crime committed previous to extradition. (e) Procedure in extradition is well established. Extradi- tion proceedings are usually through officials of national gov- ernments, though local officials are sometimes authorized to receive applications for requisitions.^ Requisitions must show evidence of an offense enumerated in the treaty between the states concerned and of the identity of the person demanded. Provisional arrest and detention is often permitted pending the presentation of the formal proofs upon which a demand for extradition is based. ^ EXEMPTIONS FROM JURISDICTION. 50. Immunity from local jurisdiction is generally granted to certain officials of a foreign state and tlie persons or things under tlieir control. "The world being composed of distinct sovereignties, pos- sessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. * '■' * "This perfect equality and absolute independence of sover- eigns, and this common interest impelling them to mutual in- " In case of the frontier states and territories of the United States and of Mexico, requisitions may under certain circumstances be made by local officials. Treaty of the United States and Mexico, Feb. 22, 1899, art. IX, 31 Stat. 1818. 8 For United States practice in general, see 4 Moore, §§ 579-622. 148 JURISDICTION. (Cll. 4 tercourse and an interchange of g'ood offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation. "First. One of these is admitted to be the exemption of the person of the sovereign from arrest or detention within a for- eign territory. * * * "Second. A second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers. * * * "Third. A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is where he allows the troops of a foreign prince to pass through his dominions." ® (a) The sovereign is exempt from both civil and criminal jurisdiction.^" His retinue and hotel or place of residence are exempt from local jurisdiction. He may not make his hotel an asylum for those not of his retinue. A foreign sov- ereign may be invited to leave, or even be expelled by force, if his acts unduly endanger the peace of the state of his sojourn. A sovereign may lay aside his official capacity and engage in business or travel incognito. He is then entitled to the privi- leges accorded to the position he has assumed, but can at any time resume his sovereign personality and the immunities ap- pertaining thereto. (b) A diplomatic agent, as a representative of the sover- eignty of the state which sends him, is accorded immunities similar to those accorded to the sovereign. ^^ (c) A consul, representing the commercial and business af- fairs of his state, is usually accorded the exemption needful for the performance of his functions. ^- (d) It is held that the grant of free passage through a state for a foreign army "implies a waiver of all jurisdiction over 9 Schooner Exchange v. McFaddon (1812) 7 Cranch, 116, 3 L. Ed. 287. 10 In the ease of Vavasseur v. Krupp, [1878] L. R. 9 Ch. Div. 351, it was decided that the Mikado of Japan was not liable under the English patent law. In the case of Migbell v. Sultan of Johore, 1 Q. B. [1894] 149, it was decided that the sovereign was exempt from suit for breach of promise of marriage. 11 See section 61. 12 See section 68. § 50) EXEMPTIONS FROM JURISDICTION. 149 the troops during- their passage, and permits the foreign gen- eral to use that discipHne, and to inflict those punishments, which the government of his army may require." ^^ (e) Naval forces, entering or remaining within the maritime jurisdiction of a foreign state in time of peace, are usually ex- empt from local laws and regulations, except such as are nec- essary for the peace and well-being of the port.^* Naval ves- sels, and the boats, tenders, etc., belonging thereto, with their officers and crews, are exempt from local jurisdiction. This exemption does not necessarily extend to any of the officers or crew of the vessel who may violate the local law when on shore, though it is customary for local authorities to send to the commander members of his crew who have been guilty only of minor offenses on shore. The right of asylum on public vessels, formerly maintained, is now generally disclaimed, ex- cept in uncivilized regions, or in time of revolution, or under exceptional circumstances.^^ The abuse of exemptions may lead to a request that the ves- sel be withdrawn, or in an extreme case to the use of force. The request would ordinarily be through the diplomatic agent of the state of the flag of the vessel. In recent years there has been a tendency to claim that a state which receives a for- eign naval vessel within jurisdiction is under obligation to afford it a reasonable degree of protection. In a communica- tion to the United States minister to Spain in regard to the destruction of the U. S. S. Maine in Habana harbor, the Sec- retary of State said of the responsibility of the Spanish govern- 13 Exchange v. McFaddon. 7 Craiich, 116, 3 L. Ed. 287. 14 By Belgian Royal Decree of February 18, 1901, art. VII, "cap- tains of foreign men of war are required to observe the laws and reg- ulations concerning the police, public health, taxes, and imposts, unless exception be made by particular convention or by interna- tional usage." 15 The U. S. Navy Regulations state: "308. The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions the grant- ing of asylum ; but even in the waters of such countries, officers should refuse all applications for asylum except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers must not directly nor indirectly invite refugees to accept asylum." 150 JURISDICTION. (Ch. 4 ment: "The l\Iaine, on a peaceful errand, and with the knowl- edge and consent of that government, entered the harbor of Habana. relying upon the security and protection of a friendly port. Confessedly she still remained, as to what took place on board, under the jurisdiction of her own government, yet the control of the harbor remained in the Spanish government, which, as the sovereign of the place, was bound to render pro- tection to persons and property there, and especially to the public ship and the sailors of a' friendly power." ^^ Sailors from the U. S. S. Baltimore were attacked while on shore leave in Valparaiso on October IG, 1891. Several were wounded and one killed. Chili was at the time in a disturbed condition because of revolutionary movements. Chili paid an indemnity of $75,000 to the injured seamen and to the families of those who had lost their lives. ^^ (f) Other public vessels, such as those engaged in hospital, scientific, transport, mail, telegraph, collier, or other service for the government of a state, and under state control, have been granted exemptions. Public vessels engaged in philanthropic or scientific work and vessels engaged in exploration are usually accorded large immunity from local jurisdiction. The court decided the troop ship Athol was beyond its juris- diction when claims against it for damages on account of col- lision were brought in 1842.^^ In the case of The Parlement Beige in 1880 the court de- cided "that an unarmed packet belonging to the sovereign of a foreign state, and in the hands of officers commissioned by him, and employed in carrying mails, is not liable to be seized in a suit in rem to recover redress for a collision, and this im- munity is not lost by reason of the packet's also carrying mer- chandise and passengers for hire." ^® Colliers and other vessels have been declared exempt from local jurisdiction.'" 16 Foreign Relations U. S. 1S98, p. 1037. 17 Foreign Relations U. S. 1891, p. 194 ff.; Id. 1892, p. 54 Cf. 18 1 W. Rob. Adm. 374. 19 5 L. R. Prob. Div. 197. 20 Symons v. Baker, K. B. Div. Aug. 4, 1905 ; Foreign Relations U. S. 1885, pp. 343, 925 ; The Constitution, [1879] 48 L. J. Prob. Div. 13. § 51) EXTRATKRUITORIAL JURISDICTION. 151 EXTRATERRITORIAI, JURISDICTION. 51. In certain states, chiefly those possessing Oriental civiliza- tion, the nationals of Western states are by custom or by treaty in a large degree subject to the jurisdiction of their home state, or subject to some court not de- pendent on the state in w^hich it acts. From the early part of the seventeenth century, when per- manent diplomatic agents began to be sent by states of West- ern civilization among themselves, the jurisdiction of consuls over their nationals declined. In the Mohammedan states con- suls had already large jurisdiction. This was extended by capitulations, from the capitulation of Turkey and Great Bri- tain in 1675, until in many cases this jurisdiction became al- most exclusive as to nationals of the consul's own state.- ^ Similar jurisdiction was by treaty extended to other non- European states. China by treaties of 1841 and 1858 gave large powers of jurisdiction to the consuls of the United States.- 2 The clauses relating to the United States consular jurisdiction, incorporated in certain other treaties, are of simi- 21 A treaty between the Ottoman Empire and the United States in 1830 provides that citizens of the United States charged with crime "shall l>e tried by their minister or consul, and pimished according to their offense, following in this respect the usage observed towards other Franks." Article IV. 22 Treaty between the United States and China 1858: "Article XI. * * * Subjects of China guilty of any criminal act towards citizens of the United States shall be punished by the Chinese authorities according to the laws of China. And citizens of the United States, either on shore or in any merchant vessel, who may insult, trouble or wound the persons or injure the property of Chinese or commit any other improper act in China, shall be pun- ished only by the consul or other public functionary thereto author- ized according to the laws of the United States. Arrests in order to trial may be made by either the Chinese or the United States au- thorities." "Article XXVII. All questions in regard to rights whether of prop- erty or person, arising between citizens of the United States in China shall be subject to the jurisdiction and regulated by the author- ities of their own government. And all controversies occurring in China between citizens of the United States and the subjects of any other government shall be regulated by the treaties existing 152 JURISDICTION. (Ch. 4 lar effect, as in the treaty with Morocco, 1787; Tunis, 1797; Tripoli, 1S05; Persia, 1856; Siam, 1856. By the treaty of 1891 between the United States and Japan the jurisdiction granted to United States consuls by the treaty of 1858 was to come to an end July 17, 1899, and citizens of either state in the other were to have before the courts the rights of natives. The regulations and laws for consular courts are prescribed by the state accrediting the consul. ^^ In 1906 Congress estabHshed "the United States Court for China" which has "exclusive jurisdiction in all cases and judi- cial proceedings whereof jurisdiction may now be exercised by United States consuls and ministers by law and by virtue of treaties between the United States and China," where in civil cases the sum involved exceeds five hundred dollars and in criminal cases exceeds a fine of one hundred dollars or sixty days' imprisonment, or both. "The United States Court for China" has appellate jurisdiction in other cases which remain in the jurisdiction of the ordinary consular courts. Appeal may be taken from the "United States Court for China * * * to the United States Circuit Court of Appeals of the Ninth Judicial Circuit," and thence to the Supreme Court of the United States.^* In Egypt there are specially constituted mixed courts, estab- lished by a convention of 1875, and exercising their functions since 1876.^® These courts are mainly concerned with civil cases involving nationals of different states. There are three courts of first instance, having four foreign and three native judges, and one court of appeal, with seven foreign and four native judges. between the United States and such governments respectively with- out interference on the part of China. "Article XXVIII. * * * And if controversies arise between citizens of the United States and subjects of China, which cannot be amicably settled otherwise, the same shall be examined and decided conformably to justice and equity by the public officers of the two nations acting in conjunction." 23 For Great Britain, see Foreign Jurisdiction Act 1890 (St. 53 & 54 Vict c. 37); Piggott, Exterritoriality, p. 47. 2 4 Act .June :i(). 1906 (U. S. Comp. St. Supp. 1909, p. 1045). 2- 19 Stat. G(j2. § 62} SERVITUDES. 153 SERVITUDES. 52. Restrictions on the free exercise of the jurisdiction of a state in the -way of obligation to allow a foreign state to do a thing, or in the w^ay of obligation to a foreign state not to do a thing, are considered as servitudes.'- « . Servitudes are usually classified as positive, consisting in the obligation to allow a foreign state to do a thing, or negative, consisting in the obligation of the state not to do a thing. Servitudes may exist by prescription, or may be created by treaty. The right of the dominant state, which has the benefit of the servitude, as against the servient state, which suffers the servitude, must always be strictly construed. Among servitudes are obligations of a state to allow the ex- ercise of foreign jurisdiction within its territory. The admis- sion of foreign troops, the cession of military and coaling sta- tions, or the grant to foreign states of judicial and police func- tions, within a state, may give rise to servitudes. Many of these cessions, made in recent years, distinctly state that, while jurisdiction over the area is temporarily relinquished, sover- eignty is retained.^'' Fishing rights in foreign territorial wa- ters, the right to use foreign coasts or ports for special pur- se S6rvitutum non ea natura est, ut aliquid faciat quis, sed ut all- quid patiatur aut non faciat. Digest, VIII, 1, 15; Fabres, Des Serv- itudes dans le Droit Internatioual. (1901). 27 For Chinese leases, see Foreign Relations U. S. 1900, pp. 384, .388. In the agreement between the United States and Cuba, February 16-23, 190S, the Republic of Cuba leased certain areas to the United States for coaling and naval stations under the following conditions: "Article III. While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cnba. over the above-described areas of laud and water, on the other hand the Republic of Cuba consents that during the period of the occupa- tion by the United States of said areas under the terms of this agree- ment the United States shall exercise complete jurisdiction and con- trol over and within said areas, with the right to acquire (under con- ditions to be hereafter agreed upon by the two governments) for the public purposes of the United States any land or other property there- in by purchase or by exercise of eminent domain, with full compen- sation to the owners thereof." 154 JUKiSDicTiox. (Ch. 4 poses, as for landing cables, etc., may be in the nature of servi- tudes.-^ Many treaties and other agreements have contained provi- sions by which a state is prevented from doing a thing which in absence of the agreement would be within its competence. Such agreements may place a limitation upon armament, limit the location of fortifications, limit jurisdiction over certain per- sons or places, or put a state under other disability.-'' 2 8 1 Moore, § 103 ff. 29 In some cases the restriction may be mutually undertaken as in article IX of the Russo-Japanese Treaty of September 5, 1905 (Treaty of Portsmouth). "Japan and Russia mutually agree not to construct Avithin their respective possessions on the island of Saghalin. and the islands adjacent thereto, any fortification or similar military worl^. They likewise mutually agree not to adopt any military measures which might hinder the free navigation of the Straits of La Perouse and Tartary." Part hi intercourse of states WiLs.lNX.L. (155)< § 53) DIPLOMATIC RELATIONS. 157 CHAPTER V. DIPLOMATIC RELATIONS. 53. The Head of the State in International Relations. 54. Department of Foreign Affairs. 55. Diplomatic Agents. 56. Appointment. 57. The Right of Legation. 58. Suite of Diplomat. 59. Credentials, etc., of Diplomat. 60. Commencement of Mission. 61. Privileges and Prerogatives of Diplomat 62. Diplomatic Functions. 63. Termination of Diplomatic Mission. THE HEAD OF THE STATE IN INTERNATIONAI, RELATIONS. 53. The head of the state, as representing its sovereignty, acts for his state so far as he is legally competent, and is entitled to the status of a sovereign. It is necessary that in international relations some person represent the authority of the state. The head of the state, whether called emperor, king, president, or by other title, and whatever the limitation of his authority by local law, may act within his legal competence in international affairs on behalf of the state. The power possessed by heads of states varies according to the internal constitution of the state. The power of the head of a state may be almost absolute, or may be nar- rowly prescribed. The head of the state accredits and receives international agents of the higher grades, and authorizes them to act in behalf of the state. The head of the state, whatever his title, is entitled to the honors and privileges due to a representative of the sovereignty of a state. He can claim the recognition of his title and form of address. When in a foreign state, the head of a state (a) is inviolable as to his person, and he must be given the widest possible freedom in his action; (b) is exempt from local law, 158 DIPLOMATIC IIELATIONS. (Cll. 5 and is given the fullest degree of so-called exterritoriality ; (c) is entitled to the conventional honors, such as salutes, etc. There is a difference of opinion as to extent of the prerogatives to which the head of a republic is entitled. Some maintain that these are not equal to those of a monarch; ^ others would dif- ferentiate according as the head of the republic is sojourning in his official capacity or in his private capacity.- Later opin- ion inclines to like recognition of the heads of the states, re- gardless of titular designation. A head of a state, who is in a foreign state incognito, is entitled to the immunities and priv- ileges due to the rank which he has assumed, though he may at any time assert his sovereign rank. The exemption from jurisdiction in a foreign state does not imply that the visiting sovereign thereby acquires the right to exercise his own jurisdiction while in the foreign state. Cour- tesy usually allows him a measure of control over those at- tached to his person, and offenders among these may be sent to the sovereign's own state for trial. At the present time negotiations among states are ordinarily carried on through the Department of Foreign Affairs, often under direction of the head of the state. DEPARTMENT OF FOREIGN AFFAIRS. 54. The conduct of ordinary international negotiations xp^ith- in and on behalf of the state is intrusted to officials designated by the state for such functions, usually called a "department of foreign affairs." The office intrusted with the conduct of international nego- tiations, usually called the "Department of Foreign Affairs," since 1789 in the United States has been called the "Depart- ment of State," and has functions in addition to those involved in the conduct of foreign relations.^ 1 1 Rivier, § 91. 2 1 Martens, § 80. 3 Previous to 1781 foreign affairs had been in ctiarge of committees, etc. In 1781 a Secretary for Foreign Affairs was appointed; but tbe conduct of international relations was subject to many changes. Act July 27, 1789, provided for the establishment of a "Department of § 55) DIPLOMATIC AGENTS. loO The chief officer of such departments usually bears the title of "Minister" or "Secretary." He signs important documents issued by the head of the state, and in some of the less impor- tant matters acts for the state, as in accrediting charges d'af- faires. The functions of officers of the department dealing with foreign affairs are matters of state rather than of inter- national law. DIPLOMATIC AGENTS. 55. Diplomatic agents are commonly of four grades: (a) Ambassadors, legates, and nuncios. (b) Envoys, ministers, and otber persons accredited to sov- ereigns. (c) Ministers resident. (d) Charges d'affaires. Agents of grades varying according to the service are appointed upon temporary or special mission. The third grade, that of minister resident, was introduced by the Congress of Aix-la-Chapelle, November 21, 1818. The other grades had been prescribed at the Congress of Vienna, March 9, 1815." Foreign Affairs" (1 Stat. 28); but later in the same year the depart- ment was made custodian of the "acts, records, and seal of the United States," and intrusted with certain functions usually belonging to a department of the interior, and named the "Department of State" (1 Stat. 68). As other departments have been created in the United States, the functions of the Department of State have now become largely those of a department of foreign affairs. Hunt, "Department of State" ; Michael, "Department of State." The Bureaus of the United States Department of State are: Diplo- matic; Consular; Indexes and Archives; Accounts; Rolls and Library; Trade Relations; Appointments; Citizenship; Near East; and Far East. There are also three Divisions: Western European Affairs ; Latin-American Affairs ; Information. 4 In the protocol of March 9, 1815, at the Congress of Vienna, an agreement was entered upon by Austria, Spain, FTance, Great Britain, Portugal, Prussia, Russia, and Sweden as follows: "In order to prevent in future the inconveniences which have fre- quently occurred, and which may still occur, from the claims of precedence among the diffei-ent diplomatic characters, the plenipoten- tiaries of the powers who signed the Treaty of Paris have agreed 160 DIPLOMATIC RELATIONS. (Ch. 5 From the thirteenth century, under the influence of the ItaHan city states, a system of foreign representation devel- oped.^ In the fifteenth century the sending of permanent mis- on the following articles, and think it their duty to invite those of other crowned heads to adopt the same regulations: "Art. I. Diplomatic characters are divided into three classes: That of Ambassadors, Legatees, or Nuncios. "That of Envoys, Ministers, or other persons, accredited to Sov- ereigns. "That of Charges d' Affaires accredited to Ministers for Foreign Affairs. "Art. II. Ambassadors, Legatees, or Nuncios only shall have the representative character. "Art. III. Diplomatic characters charged with any special mission shall not, on that account, assume any superiority of rank. '•Art. IV. Diplomatic characters shall rank in their respective classes according to the date of the official notification of their arrival. "The present regulation shall not occasion any change respecting the representative of the Pope. "Art. V. There shall be a regular form adopted by each state for the reception of diplomatic characters of every class. "Art. VI. Ties of consanguinity or family alliance between courts confer no rank on their diplomatic agents. The same rule also ap- plies to political alliances. "Art. VII. In acts or treaties between several powers that admit alternity. the order which is to be observed in the signatures of ministers shall be decided by ballot." 1 Ilertslet, 02. At the Congress of Aix-la-Chappelle, article VIII was added, though Spain, Portugal, and Sweden were not parties to it: "Art. VIII. It is agreed between the five courts that ministers res- ident accredited to them shall form, with respect to their precedence, an intermediate class between Ministers of the second class and Cl).u.mjs d'Ailaires." 1 Uertslet, 575. Instructions to Diplomatic Officers of the United States, 18U7, were in accord with tne provisions of the Treaties of Vienna and Aix-la- Chappelle: "Article I. Diplomatic agents are divided into three classes: That of ambassadors, legatees, or nuncios; that of envoys, ministers, or other persons accredited to sovereigns ; that of charges d'affaires accredited to sovereigns ; that of charges d'affaires accredited to ministers for foreign affairs." 5 "By a law of December 22, 12G8, an ambassador was not allowed to be accompanied by his wife, lest she divulge his business ; but he was requiied to take his own cook, lest he be poisoned." 1 Hill, History of European Diplomacy, p. 3G0. § 55) DIPLOMATIC AGENTS. 161 sions became common.® The post of foreign representative was not a popular one in the early days, either in the sending or receiving state, and laws were sometimes passed fixing the penalty for delaying or declining to undertake a diplomatic mission. The office has, however, steadily gained in dignity and honor, particularly since the Treaty of Westphalia in IG IS. The ranking of diplomats, at length settled in 1815, is now a matter of far less significance than in early days of perma- nent missions, when struggles for precedence often led to phys- ical encounters between the suites of representatives of rival states. '^ (a) Diplomatic agents of the first rank, ambassadors, legates, and nuncios, are theoretically held to represent the person and majesty of the accrediting sovereign. In states recognizing the 8 Nys, Les Origines clu droit international, p. 297. f Wicquefort recounts many instances of contests in regard to prece- dence. Of an encounter between the followers of Yatteville, the French Ambassador, and those of Destrades, the Spanish Ambassa- dor, in London in 16G1, he says: "They were both to send their coaches to meet Count Brahe, Em- bassador from Sweden, on the Day of his Entry. And for as much as they made no doubt, but there would be a Contest about the Rank, they each of them took those Measures they judg'd necessary to pro- cure the Advantage to his own side. Vatteville sent for some Soldiers from Ostend, made sure of several English ; and instead of Traces, had caus'd Chains of a moderate Thickness to be cover'd with Leather, that they might not be liable to be cut. Destrades had indeed reiuforc'd his Equipage a little; but not expecting things would come to such Extremities, he had not taken all the Precau- tious, which might have protected him from the Violence of others. "The Duke of York, who fear'd and foresaw the Disorder, had caus'd a Troop of Horse, and three Companies of his Regiment of Foot to be drawn out; but as the Officers had no Orders to meddle with the Quarrel of the Embassadors, all they could do, was to be Spectators of the Fight and Confusion. Some of the French Embas- sador's Coach-Horses were kill'd, as well as two or three of his People. There were also some Spaniards who lost their Lives, but yet they carry'd the Day, because Destrades' Coach could not move without Horses. It was in Consequence of this Disorder, and of the Complaints Destrades made thereof, that the King of England or- dain'd, that the foreign Ministers' Coaches should not for the future attend at this kind of Ceremonies." Wicquefort, The Embassador and his Functions, p. 220. WiLS.lNT.L.— 11 162 DIPLOMATIC RELATIONS. (Ch. 5 papal supremacy, the papal representatives may be given prec- edence in their class. (b) The diplomatic agents of the second class, envoys and ministers, are not considered as representing the person of the sovereign, but as representing the state. (c) Ministers resident are usually upon less important mis- sions. The institution of this rank in 1818 was not necessary, as the Congress of Vienna provided for the inclusion in the second class of "other persons accredited to sovereigns," and these resident ministers are within this category. (d) The fourth class, charges d'affaires, are accredited by and to the ministers of foreign affairs. While the expediency of sending ambassadors to represent the United States had often been discussed,® the United States had not been represented by diplomatic agents of the grade of ambassadors until after the act of March 1, 1893. By this act it was provided that, "whenever the President shall be advised that any foreign government is represented or is about to be represented in the United States by an ambassador, envoy ex- traordinary, minister plenipotentiary, minister resident, or spe- cial, envoy or charge d'aft'aires, he is authorized in his discre- tion to direct that the representative of the United States to such government shall bear the same designation. This provi- sion shall in no wise affect the duties, powers, or salary of such representative." ^ In accord with this act the United States has gradually appointed ambassadors to the more im- portant courts of the world. APPOINTMENT. 56. As a diplomatic agent is supposed to represent tlie state, he is usually appointed by the head of the state, or by some authorized executive officer. Confirmation of the appointment may or may not be required. In many states the diplomatic agents, except charges d'af- faires, are still, as almost universally in early times, regarded 8 7 Moore, American Diplomacy, p. 263. » 27 Stat. 497, c. 182 (U. S. Comp. St. 1901, p. 1152). § 56) ArroiNTMENT. 163 as the personal representatives of the sovereign, and as such are appointed by and responsible to him. Sometimes confirmation of the appointment may be requir- ed by the fundamental law of a state. This v^ould ordinarily be the case in republics, where there might be fear of too great centralization of power in the hands of the head of the state. The Constitution of the United States provides that the President "shall nominate, and by and with the advice and con- sent of the Senate, shall appoint ambassadors, other public min- isters and consuls." ^'^ By an act of Congress the President of the United States "is authorized to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof, and ascertain the fitness of each candidate in respect to age, health, character, knowledge, and ability for the branch of service into which he seeks to en- ter." ^^ By an executive order of November 26, 1909, Presi- dent Taft, on recommendation of Secretary Knox, directed that promotions within the diplomatic service be based on "spe- cial capacity" and that initial appointments from the outside to secretaryships be based upon stated examinations. "The examinations shall be both oral and in writing, and shall include the following subjects: International law, diplo- matic usage, and a knowledge of at least one modern language other than English, to wit, French, Spanish, or German ; also the natural, industrial and commercial resources and the com- merce of the United States, especially with reference to the possibilities of increasing and extending the trade of the United States with foreign countries ; American history, gov- ernment and institutions ; and the modern history since 1850 of Europe, Latin America and the Far East. The object of the oral examination shall also be to determine the candidate's alertness, general contemporary information, and natural fit- ness for the service, including mental, moral, and physical qualifications, character, address, and general education and good command of English. In this part of the examination the applications previously filed will be given due weight by the Board of Examiners. In the determination of the final 10 Art. 2, § 2. 11 Rev. St. § 1753 (U. S. Comp. St. 1901, p. 1200). 104 DirLOMATIC RELATIONS. (Ch. 5 rating, the written and oral ratings shall be of equal weight. A physical examination shall also be included as supplemental. "Examination papers shall be rated on a scale of 100, and no person with a general rating of less than 80 shall be certified as eligible. "No person shall be certified as eligible who is under twenty- one or over fifty years of age, or who is not a citizen of the United States, or who is not of good character and habits and physically, mentally, and temperamentally qualified for the proper performance of diplomatic work, or who has not been specially designated by the President for appointment to the diplomatic service subject to examination and subject to the occurrence of an appropriate vacancy." "In designations for appointment subject to examination and in appointments after examination, due regard will be had to the rule that, as between candidates of equal merit, appointments should be made so as to tend to secure proportional representa- tion of all the states and territories in the diplomatic service ; and neither in the designation for examination or certification or appointment after examination will the political affiliations of the candidates be considered." This order does not necessarily preclude the appointment of such persons as the President may deem suitable to the higher diplomatic posts, but provision is made that "the Secretary of State is hereby directed to report from time to time to the President, along with his recommendations, the names of those secretaries of the higher grades in the diplomatic service who by reason of efficient service have demonstrated special capacity for promotion to be chiefs of mission." THE RIGHT OF LEGATION. 57. Tie right of legation involves tlie right to send and the right to receive diplomatic agents, and in its fullness is possessed only by states having unqualified sover- eignty. The choice and sending of a diplomatic agent is usually re- garded as an act of the sovereign person or of his representa- tive. Diplomatic agents of the first three grades are accredited § 57) THE RIGHT OF LEGATION. 165 to the sovereign person, and of the fourth grade to his min- ister of foreign affairs. The diplomatic agent bears a letter of credence, which gives his name, the grade and object of his mission, and requests favorable and full credence for him as the representative of the state. While it is generally maintained that a state which is a mem- ber of the family of nations should receive a diplomatic agent from another state of the family, it is also established that it may decline to receive a person who is not acceptable. Such action does not imply any unfriendly disposition or discourtesy, but may be rather an expression of the belief that the partic- ular person is not the one to carry on acceptably and to the sat- isfaction of both states their mutual intercourse. Under such circumstances the receiving state may indicate that the person suggested is a persona non grata. No reason need be given in such a case, though reasons are sometimes asked and given. Among European countries it is customary to inquire in ad- vance as to the acceptability of a given person as a diplomatic representative. The United States had not been accustomed to take any such preliminary step until the practice of sending ambassadors arose. On several occasions there has been con- siderable discussion in consequence of appointments made by the United States. In 1885 Italy informed the United States that Mr. Keiley, in consequence of certain utterances at a pub- lic meeting in 1871, would not be a persona grata as United States Minister to Italy, and Mr. Keiley returned his commis- sion to the President.^- The subsequent appointment of Mr. Keiley as Minister to Austria-Hungary led to extended correspondence and a formal statement of the objections of Austria-Hungary.^^ The President's message of December 8, 1885, says of this episode : "The Austro-Hungarian Government finally decided not to receive Mr. Keiley as the envoy of the United States, and that gentleman has since resigned his commission, leaving the post vacant. I have made no new nomination, and the in- terests of this government at Vienna are now in the care of the secretary of legation, acting as charge d'affaires ad interim." 12 Foreign Relations U. S., 1S85, p. 550. 13 Id. p. 55. See, for other cases, Fostex-, The Practice of Diplo- macy, c. III. 1G6 DIPLOMATIC RELATIONS, (Ch. 5 It is obviously to the advantage of both sending and receiv- ing state that the diplomatic representative who is to carry on business between them should be a persona grata, and it seems to be in no way a derogation of sovereignty to inquire in ad- vance whether a given person is wholly acceptable. It is not an objection to the reception of a diplomatic representative, but an objection to receiving a particular person in that capacity, which is raised. SUITE OF DIPLOMAT, 58. The personnel of a mission varies according to the nature of the mission, but is usually both official and non- official. The official suite includes those directly in the service of the mission, and the nonofficial suite in- cludes those directly connected T^ith the diplomat's household. (a) The official suite of a diplomatic representative varies greatly under differing conditions. The official suite may in- clude (1) counselors; (2) secretaries; (3) attaches, military, naval, etc.; (4) interpreters and dragomans; (5) clerks; (G) couriers ; (7) chaplain ; (8) doctor ; and other persons distinct- ly in the official service. The United States recently author- ized ten "student interpreters" for China and six for Japan. ^* (b) The nonofficial suite includes (1) the family and (2) those attached to the minister for the service in his household, as the private secretaries, chaplain, doctor, and domestic serv- ants. CREDENTIAIiS, ETC., OF DIPLOMAT. 59. Letters of credence from the head of the sending state to the head of the receiving state are given to diplomatic representatives of the grades above charges d'affaires. Similar letters from and to respective foreign offices are given the charges d'affaires. Diplomatic representatives are also given instructions for their guidance in international negotiations and such other documents as may be essential to the effec- tive performance of their mission. The letters of credence given by different states and under different circumstances may vary somewhat, but in general 14 Acts approved March 12, 1904, and June 16, 1906. § 59) CREDENTIALS, ETC., OF DIPLOMAT. 167 give the name of the representative, the character and general object of the mission, and a request for favorable reception and treatment of the diplomat.^^ A representative on a permanent mission needs no further authorization for the transaction of ordinary business ; but for any special negotiation, as of a treaty or convention, he would generally require authorization by a special grant, called "full powers." Similarly diplomats on a special mission require full powers. Full powers are us- ually given in an open letter, signed by the head of the state, and may be unlimited and general, or limited and special. By the constitution of some states treaties must receive the assent of some body within the states before becoming operative. The full powers of representatives of such states would naturally be ad referendum. The diplomatic representative also usually receives a special passport, which serves to identify the diplo- ic Form of U. S. Letter of Credence: "A B "President of the United States of America. "To "Great and Good Fi-iend: "I have made choice of one of our distinguished cit- izens, to reside near the Government of Your in the quality of He is well informed of the relative interests of the two countries and of our sincere desire to cultivate to the fullest extent the friendship which has so long subsisted between the two Governments. My knowledge of his high character and abil- ity gives me entire confidence that he will constantly endeavor to advance the interest and prosperity of both Governments, and so render himself acceptable to Your "I therefore request Your to receive him favorably- and to give full credence to what he shall say on the part of the United States, and to the assurances which I have charged him to convey to you of the best wishes of this Government for the pros- perity of "May God have Your in His wise keeping. "Written at Washington this day of ^ . . in the year "Your good friend, "By the President, "A B "Secretary of State," 1G8 DIPLOMATIC RELATIONS. (Cb. 5 mat in his official capacity. This "differs from the ordinary passport, in that it usually describes the official rank or occupa- tion of the holder, and often also the purpose of his traveling abroad, while generally omitting the description of his per- son." ^"^ The passports are dcjiosited with the Foreign Office of the state to which he is accredited, and remain there until he requests them when he leaves his post, or until they are given to him as an intimation that he is to retire. Other papers, such as may be necessary for the business of the mission, are also given to the diplomat. These are such as special or general instructions, etc. COMMENCEMENT OF MISSION. 60. A diplomatic mission to a specified state commences -when proper credentials liave been presented to and received by tbe government to whicb the diplomatic representa- tive is accredited. A diplomatic mission to a. congress or conference of diSerent states commences when prop- er credentials are exchanged v^ith other similar agents. The ceremonial for the presentation and reception of diplo- matic agents was formerly very elaborate, as the idea of per- sonal sovereignty dictated. "It may not be unfortunate that the monarch placed a high estimate upon the sovereign office, and devised a ceremonial commensurate with this estimate ; for what was once done out of respect for and in response to the demand of a personal sovereign is now done out of respect for the dignity of the state itself. Thus, in the days of more democratic sovereign- ties, international representatives are clothed with a dignity which both elevates the attitude of participants in international negotiations and gives greater weight to their conclusions. The ceremonial also fixes a definite course of procedure, which any state may follow without giving offense to another, wheth- er it be weak or powerful. "While the minor details of the ceremonial of reception of a diplomatic agent are not invariable, certain customs are well established. A diplomat officially notifies the receiving li^ate of his arrival by sending, (1) if he be of the first rank, a secretary le Tlie American Passport, U. S. Dept. of State, p. 7. § 61) PRIVILEGES AND PREROGATIVES OF DIPLOMAT. 1G9 of the embassy to the Minister of Foreign Affairs, with a copy of his letter of credence and a request for a day and hour when he may have an audience with the head of the state, in order to present his credentials ; (2) if of the second rank, while sometimes the above procedure is allowed, he usually makes the announcement and request in writing; (3) if of the third rank, he always observes the last-mentioned procedure; (4) if of the fourth rank, charge d'affaires, he notifies the Minister of Foreign Affairs of his arrival and requests an audience. "The audience may be for any grade more or less formal, public or private. Usually diplomats of the first rank are re- ceived in public audience. At the audience the diplomat pre- sents his letter of credence, and usually makes a brief address, of which he has earlier furnished a copy to the INIinister of Foreign Affairs, in order that a suitable reply may be prepared. Diplomats of the second rank customarily receive a similar sol- emn audience. This may or may not be granted to ministers of the third rank. Official visits, varying somewhat in ceremonial in different states, follow." ^^ PRIVILEGES AND PREHOGATIVES OF DIPIiOMAT. 61. Diplomatic representatives are now generally accorded: (a) Inviolability. (b) Exemption of person from criminal and civil jurisdic- tion. (c) Immunity of domicile. (Francbise de I'botel.) (d) Riglit of asylum. (e) Rigbt of religion. (Droit de culte.) (f) Jurisdiction -ivitbin domicile. (g) Precedence, ceremonial prerogatives, according to rank. (a) Inviolability of person is necessary, in ordor that a diplo- mat, as representative of a state, may be free in the perform- ance of his functions. Inviolability has been granted from early times, and, according to Roman Law, "Sancti habentur legati." In earliest times ambassadors were usually chosen from the priestly class. Inviolability extends to diplomats of all grades ; to the suite, official and nonofficial ; to the official residence, archives, and IT Wilson & Tucker, Int. Law (5th Ed.) p. 172. 170 DIPLOMATIC RELATIONS. (Ch. 5 letters ; and to all that belong-s to the mission and is necessary for its maintenance.^^ Inviolability and such immunities as are necessary for convenient passage are usually conceded to a diplomat while he is passing to or from his post through a third state and so long as he retains his official character. A diplomatic representative is, of course, liable to the conse- quences to which he, acting in his private capacity, may volun- tarily expose himself, as in dueling; and he may be restrained to such an extent as may be necessary to prevent him from will- fully injuring the state or nationals of the state to which he is accredited. Physical force should be used against an ambas- sador only as a last resort. Force may be used in self-defense. In case he disturbs the internal peace of the state, his recall may be requested, or in an extreme case he may be expelled. A diplomatic agent's public character and reputation is en- titled to protection and respect. Whenever he engages in non- diplomatic undertakings, as in writing or lecturing upon reli- gious or literary suljjects, he is not exempt from criticism which may follow. (b) It is now generally accepted that diplomatic representa- tives are exempt from prosecution and punishment for viola- tion of criminal law. This does not free him from the obliga- tion to respect the law enacted to insure the well-being of the state in which he is sojourning, but removes him from the legal authority of the state. For failure to observe law, a diplomat may be requested to leave a state, or in an extreme case may be expelled. ^° The diplomatic representative is also free from civil juris- diction. He cannot be pursued for debt ; neither is his property liable to seizure. If he engages in business in a private ca- pacity, his property thus engaged is liable, though he may not be constrained in such manner as to interfere with the perform- ance of his diplomatic functions.^** 18 By article 46 of the Hague Convention for the Pacific Settlement of International Disputes the members of the Tribunal in service abroad enjoy diplomatic privileges and immunities, and by article 13 of the Priz-e Court Convention its judges have similar treatment. 19 ,3 Phillimore, Int. Law, 160 et seq. 20 Rev. St. U. S. §§ 4063, 4004 (U. S. Comp. St. 1901, pp. 2760, 2761). § 61) PRIVILEGES AND PREROGATIVES OF DIPLOMAT 171 He is also exempt from witness duty. United States diplo- matic representatives are instructed not to testify without con- sent of the President.-^ In the trial of the murderer of Presi- dent Garfield, the Minister from Venezuela, under instructions from his government, waived his rights to immunity and ap- peared "as a witness in the case, the same as any witness who is a citizen of this country." -^ The more common method is .for a diplomatic representative to give testimony in the form of a deposition as an act of courtesy. A diplomatic representative is exempt from direct personal taxes, and the property of the mission is also usually exempt from general taxes. The property may be held liable to as- sessments for betterments, as for construction of sewers, or for taxes for objects which serve the property, as for water, light, etc., though in many cases these are also waived. A dip- lomat is also usually allowed to bring in goods for his private use free of duty. Sometimes the principle of reciprocity is fol- lowed in making exemptions.-^ Diplomatic representatives are also exempt from the ordi- nary police regulations. This exemption is not to be construed as a license to disregard the regulations prescribed for the safe- ty of the community. The diplomatic officer is supposed to be carefully observant of the law of the state in which he is so- journing, in order that his presence may be acceptable and his service may be most effective, because free from friction. A diplomatic representative who disregards local police regula- tions, as by driving a vehicle at a speed beyond the limits pre- scribed to insure public safety, may be restrained, though he may not be punished. "In considering the immunities of diplomatic officers, it is important to draw a distinction, which, it is believed, has not usually been noticed, between measures of punishment and measures of prevention. The theory of diplomatic immunity is, not that the diplomatic officer is freed from the restraints of the law and exempt from the duty of observing them, but only that he cannot be punished for his failure to respect them. The punitive power of the state cannot be directly enforced 21 Foreign Relations U. S., 1804, p. 426. 22 1 Guiteau's Trial, p. 136. 23 4 Moore, § 667. 172 DIPLOMATIC RELATIONS. (Cll. 5 against him. It will hardly be denied, however, that it is his duty to respect the laws of the country in which he resides, and that he may in many conceivable cases be prevented from doing unlawful acts, for which, if he were allowed to commit them, he could not be punished. This distinction is peculiarly applicable to police regulations made for the purpose of as- suring the public health and safety." ^* (c) The domicile of a diplomatic officer, including his house, grounds, buildings, and appurtenances, including carriages, is considered exempt from local jurisdiction. This franchise de I'hotel in earlier days extended to considerable areas, franchise du quaticr, and in some states certain areas are still set apart for the foreign embassies.^ ^ (d) The so-called right of asylum in the house of a diplomat- ic officer was once considered as a sort of corollary to the im- munity of the domicile of the ambassador. So early as the days of Grotius this right was questioned, and the writings of his successors in the seventeenth and eighteenth centuries gen- erally gave it less and less sanction. Officers of the state in which an embassy is located are not entitled to enter without permission. Temporary shelter may therefore be secured when a fugitive enters the embassy. On demand of the proper of- ficial, the fugitive should be surrendered, unless he belongs to the embassy. The United States advises its diplomatic officers that "the privilege of immunity from local jurisdiction does not embrace the right of asylum for persons outside of a rep- resentative's diplomatic or personal household." ^^ In practice the grant of asylum has been more common in states where the political conditions were unstable, or in time of revolution to political offenders. (e) The diplomatic officer is allowed within his grounds freedom of worship, and often the services are open to the pub- lic, though it is held that an attempt to induce the public to enter by the ringing of a bell or otherwise may raise objection. (f) As local jurisdiction does not extend to the house and 24 4 Moore, § 669. 25 For description of the Legation Quarter in Pelcing, see Appendix Foreign Relations U. S.. 1901, p. 3.30. 2 6 Instructions to Diplomatic Officers, 1897, § 50. § 61) PRIVILEGES AND PREROGATIVES OF DIPLOMAT. 173 grounds of the diplomatic representative, it is customary to grant to him jurisdiction within his residential and official dom- icile. This is now held to give to an ambassador jurisdiction. general charge over his retinue, and the right to arrest and send home for trial any one of his suite. Sometimes, when crimes are committed outside the embassy, the ambassador turns the offender over to the local authorities for trial. (g) Questions of precedence and prerogatives received much attention in early days."^ Precedence was fairly well establish- ed by the Congresses of Vienna, 1815, and Aix-la-Chapelle, ISIS. x\t this time it was established that precedence among diplomats of the same rank should be according to the date of the official notification of their arrival. "A diplomat officially notifies the receiving state of his arrival by sending, (1) if he be of the first rank, a secretary of the embassy to the Minister of Foreign Affairs, with a copy of his letter of credence and a request for a day and hour when he may have an audience with the head of the state in order to present his credentials ; (2) if of the second rank, wdiile sometimes the above procedure is allowed, he usually makes the announcement and request in writing; (3) if of the third rank, he always observes the last- mentioned procedure; (4) if of the fourth rank, charge d'af- faires, he notifies the Minister of Foreign Affairs of his arrival and requests an audience." ^^ The precedence among the differ- ent classes is for social purposes according to grade. In states receiving representatives of the Pope, these representatives are usually given precedence, regardless of the date of arrival. In some states precedence for business purposes is also accord- ing to grade; i. e., an ambassador, having right of personal access to the sovereign, arriving late at the residence of the sovereign or at a foreign office, would precede ministers al- ready waiting to transact business with the sovereign or with the foreign secretary. In Turkey ambassadors claim and have access to the Sultan as the personal representatives of their sov- ereigns. The representatives of the United States, being for many years of the grade of minister, found it difiicult to ob- 2 7 Wicquefort, The Ambassador acfd his Functions (Digby's Trans.) p. 201; Bynkershoelv, De Foro I^gatorium, cc. I and XII. 28 Wilson & Tucker, Int. Law (.5th Ed.) p. 172. 174 DIPLOMATIC RELATIONS. (Cll. 5 tain from the Sultan prompt consideration for their business. President McKinley proposed to Turkey the mutual appoint- ment of ambassadors. The proposition was renewed by Presi- dent Roosevelt; but it was not until after the passage of the act of Congress of June 16, 1906, providing for the salary of an ambassador to Turkey, that Turkey heeded the wishes of the United States."'' Until 1872 it was the custom for an am- bassador to take precedence at the foreign office, even though a minister might be waiting when he arrived. This caused some friction at that time between the United States Minister to Germany, Mr. Bancroft, and the British ambassador. The rule was established for the German court that the chief of a mission arriving first should be first admitted, regardless of rank. This rule is now generally followed. Precedence in conferences and congresses of states is now usually according to the French alphabetical order of the state names.^" In signing treaties the same practice is now usually followed, where a number of states are signatories. In some treaties the name of the representative of the state appears first in the copy to be transmitted to his state. When precedence is determined by nearness to the person at the head of the table, the first place is on his right; the second, at his left ; the third, the second chair on the right ; the fourth, the second chair on the left ; and so to the foot of the table. In processions, precedence may vary. Sometimes it is the first place ; sometimes, the last. In general, in relatively short pro- cessions, the following rules are observed: If of two, the first has the precedence ; if of three, the middle is the place of hon- or, the first the second in honor, and the third the third in honor; if of four, the second is the place of honor, the first 2 9 34 Stat. 286. 30 This was the arrangement at both the First Conference, 1899, and the Second Conference, 1907, at The Hague, though the United States as Etats-Unis d'Amerique was placed after Spain (Espagne) in 1899, and as Amgrique (Etats-Unis d') was placed after Germany (Allemagne) in 1907. The use of the adjective "American," instead of "United Stiites," in the diplomatic and consular service, was in accord with a circular of Secretary Hay of November 28, 1904. For- eign Relations U. S., 1904, p. 7. • The precedence of ambassadors at Washington has caused some discussion. 4 Moore, p. 740, § 683. § 61) PRIVILEGES AND PREROGATIVES OF DIPLOMAT. 175 the second in honor, the third and fourth in place third and fourth in honor; if of five, the middle is the place of honor, the place in advance the second in honor, the fourth place the third in honor, the first place the fourth in honor, and the fifth place the fifth in honor.^^ The ceremonial for the reception of different grades of dip- lomats varies. Their prerogatives were formerly matters of grave concern. The different grades are now usually entitled to salutes by cannon according to rank : The ambassador, nine- teen guns; the envoy extraordinary and minister plenipoten- tiary, fifteen ; the minister resident, thirteen ; and the charge d'affaires, eleven. Some of the prerogatives formerly regarded as ambassa- dorial, such as the right to remain covered in the presence of the sovereign while he remained covered, the right to a dais and throne in the reception chamber, the right to use a "coach and six with outriders," etc., are now regarded as interesting survivals of the days when personal sovereignty was more evi- dent in international relations. The right to invitation to of- ficial functions, the right to the use of the coat of arms over the door, the right to the title of Excellency, etc., are now usually conceded without question. Court dress or a diplomatic uniform is worn in many states. The question as to the proper dress of American diplomats has been discussed from time to time.^^ The entire body of diplomats accredited to a state constitute what is known as the "Diplomatic Corps." This body some- times takes action upon matters which alike concern all the states represented or concern their own diplomatic rights or 31 1 Pradier-Fodgrg, Cours de droit diplomatique, p. 127. 32 The United States Instructions to Diplomatic officers provide: "67. Military Title and Uniform. — The statute authorizes all of- ficers who have served during the Rebellion as volunteers in the Army of the United States and have been honorably mustered out of the volunteer service to bear the official title, and, upon occasions of ceremony, to wear the uniform of the highest grade they have held by brevet or other commissions in the volunteer service (Rev. St. § 1226). In all other cases diplomatic officers are permitted to wear upon occasions of ceremony the dress which local usage pre- scribes as appropriate to the hour and place. At some capitals a court dress is prescribed by custom." See, also, 4 Moore, § 686. 1 76 DIPLOMATIC RELATIONS. (Ch. 5 privileges. \\nTcn thus acting, the diplomat of the highest rank longest in service at the post acts as "Do}en," or the head, of the "Diplomatic Corps" except in states receiving representa- tives of the Pope, v^here the corresponding Papal representa- tive may act as "Doyen," regardless of term of service. DIPLOMATIC FUNCTIONS. 62. The chief functions of a permanent diplomatic officer are to represent his state in negotiations with the state to Trhich he is accredited; to observe and report occur- rences xtrhich may affect his state; to protect the rights of the nationals of his state. The functions of a diplo- matic officer on a temporary or special mission are usually defined at the time of his appointment. The general negotiations between states may be conducted betwreen two states through the diplomatic officers of either of the states in the other, and in some cases both diplomats and both foreign offices may be concerned. Matters particularly appertaining to the state in which a diplomat is, and requiring attention of the local authorities, are usually transacted through the diplomat residing in the state, as in cases of extradition, where the procedure may be prescribed by treaty.'^ In early days diplomats were often regarded as little different from spies, and the means to which they sometimes resorted in order to obtain information were sometimes such as to justify the opinion. It is one of the main functions of a diplomatic officer to keep his state informed of the condition of affairs in the state to which he is accredited, and to send to his state such 33 "And the government of Belgium will, upon request of the government of the United States, transmitted through the diplomatic agent of the United States, or, in his absence, through the competent consular officer, secure in conformity with law the provisional arrest of persons convicted or accused of the commission therein of crimes or offenses extraditable under this convention. But if the demand for surrender, w-ith the formal proofs hereinbefore mentioned, be not made as aforesaid by the diplomatic agent of the demanding government, or, in his absence, by the competent consular officer, within forty days from the date of the commitment of the fugitive, the prisoner shall be discharged from custody." Treaty t)etween United States and Belgium, Oct. 26, 1901, art. VII. § 62) DIPLOMATIC FUNCTIONS. 177 information of a character to be of service to his government as he may obtain. Nationals of the state of the diplomatic representative who are sojourning in the state to which he is accredited are enti- tled to his protection to such extent as may be prescribed in the municipal law of his state. The questions arising in conse- quence of this duty of protection of nationals are most diverse and form a considerable bulk of diplomatic business. The United States diplomatic representatives always have many complications in consequence of the return to their native states of persons who have declared their intention of becoming or who have become United States citizens. The celebrated case of Martin Koszta in 1853 shows the claims made for a man who had declared his intention to become a citizen.^* In the case of Predicaris, an American citizen was seized by bandits under Raisuli in Morocco in 1904. The United States sent a fleet to Tangier, and stated that the government "wants Predicaris alive or Raisuli dead."^^ Many cases have also arisen in conse- quence of the return to their native state of naturalized citizens who have failed to perform military service. Numerous other duties, such as the conduct of the internal business of the mission, the issue and vise of passports, the ex- tension of reasonable courtesies to his countrymen, the fulfill- ment of his social obligations in the state to which he is accred- ited, and the like, fall upon the permanent diplomatic represent- ative. The functions of the diplomat on a temporary mission are usually specific, and limited to the powers given in his letter of credence. The functions of a diplomatic representative have become such as to make it necessary that he should have large contact with his fellow diplomats and other leading men. This involves certain expenditures commensurate with his position. Some states provide with reasonable liberality for such purposes, by furnishing official residences and necessary equipment. Other states furnish no residences and only small salaries, which make it impossible for other than men of large means to accept a dip- 343 Moore, §§ 490-491. 85 Foreign Relations U. S., 1904, p. 503. WiLS.lNT.L.— 12 178 DIPLOMATIC RELATIONS. (Ch. 5 lomatic post. President Cleveland, in his message of December 2, 1895, said of the practice of the United States: "I am thor- oughly convinced that, in addition to their salaries, our ambas- sadors and ministers at foreign courts should be provided by the government with official residences. The salaries of these officers are comparatively small, and in most cases insufficient to pay, with other necessary expenses, the cost of maintaining household establishments in keeping with their important and delicate functions. The usefulness of a nation's diplomatic rep- resentative undeniably depends much upon the appropriateness of his surroundings, and a country like ours, while avoiding unnecessary glitter and show, should be certain that it does not suffer in its relations with foreign nations through parsimony and shabbiness in its diplomatic outfit. These considerations and the other advantages of having fixed and somewhat per- manent locations for our embassies, would abundantly justify the moderate expenditure necessary to carry out this sugges- tion." 8« TERMINATION OF A DIPLOMATIC MISSION. 63. The mission of a diplomatic representative may be ter- minated: (a) By recall. (b) By vaar or tlie interruption of amicable relations be- tTPeen tbe states. (c) By a cbange of government in tlie accrediting state. (d) By expiration of letter of credence. (e) By completion of the specific duty for xrhich letters of credence were issued. (f) By personal departure of the agent for cause stated. (g) By change of grade, (h) By death of the agent. (i) By dismissal by the accrediting government, (j) Perhaps by the death or change of the sovereign in a mo- narchical state. (a) As the accrediting state has jurisdiction over its diplo- matic representatives, it may recall the diplomat at pleasure. The procedure in recall is ordinarily similar to that of recep- tion; i. e., the diplomat, if of grade above charge d'affaires, 86 Id.. ]SO.j. XXXVII. 8 63) TERMINATION OF A DIPLOMATIC MISSION, 179 is received in solemn audience by the head of the state, or if a charge d'affaires, by the Minister of Foreign Affairs. Recall, in the ordinary course of events, is merely a routine matter in the succession of officials. In time of strained relations, it may indicate the breaking of diplomatic intercourse. Sometimes re- call is because of conduct displeasing either to the sending or receiving state, which would render the services of the diplo- mat less useful. ^^ (b) War breaks off friendly relations between the belligerent states, and thereby terminates diplomatic relations. Necessary negotiations are under such circumstances usually intrusted to the diplomatic representatives of third states friendly to both belligerents. (c) A complete change of government in a state which has sent out diplomatic representatives, as from a monarchy to a re- public, often results in a change of diplomatic agents, on the ground that these representatives are probably not in sympathy with the new government. A simple change of parties in con- trol of the administration formerly brought about extensive changes in the diplomatic service in the United States. (d) Letters of credence to permanent ambassadors are now usually given without time limit ; but when there is time speci- fied the mission terminates at that time. (e) The mission of diplomatic representatives appointed for special purposes usually terminates with the performance of the functions with which they were intrusted. (f) Sometimes a mission is terminated by the diplomatic rep- resentative through request for his passports because of per- sonal reasons. Such action does not break off diplomatic rela- tions. (g) When the grade of a diplomatic agent in a state is changed, he presents his letter of recall in his original capacity, which terminates that mission, though he may at the same time present his letter of credence in his new capacity. (h) The death of a diplomat terminates the mission. The property, archives, etc., are usually placed in the custody of a secretary, or in his absence are taken in charge by representa- tives of friendly states. The dignity of his office is respected 3T 4 Moore, § 639. ] 80 DIPLOMATIC RELATIONS. (Ch. 5 in the honors paid to the deceased diplomat, and the fullest im- munities possible are extended to his suite. A time limit may, if expedient, be fixed for the departure of his suite. (i) The state to which a diplomatic agent is accredited may dismiss him as an evidence of displeasure with his conduct,^** or because of strained relations with his state. In case of dis- missal for personal misconduct, another ambassador may be re- ceived. In case of dismissal on the ground of strained rela- tions, the suspension may continue till normal relations are re- stored. (j) Sometimes the death or change of the head of a state, where sovereignty is personal in nature, terminates the mission of all diplomats accredited to or by him, and new letters of credence must issue. So far as there is no change in the diplo- matic personnel, the former order of seniority prevails, and the new letters of credence are regarded as in continuation of the old. 38 In 1895 Venezuela dismissed tlje Belgian and French ministers, at the same time asserting "that the dismissal of the Belgian and French ministers was a purely personal act, due alone to the circum- stance that those individuals had joined with certain other foreign representatives not now accredited to Venezuela in signing a certain protocol of conference containing gratuitous and defamatory state- ments reflecting upon the honor of the state and the integrity of its executive, which protocol was subsequently made public by the Italian government in the annual Green Book ; that by so doing, of their own initiative and not in compliance with instructions from the friendly governments they represented, each of those gentlemen had rendered himself individually to the government of Venezuela persona non grata ; and that in acting upon the situation so created, and in accordance with the usual course of independent states in such contingencies, Venezuela intended no affront to France or Bel- gium, whose flags she had conspicuously saluted on the same dtiy that she dismissed their personally objectionable agents, but rather invited the continuance of the hitherto unbroken friendly relations through new agents, who should more fittingly reflect what she is happy to believe are the true sentiments of friendship which those governments feel for Venezuela." Foreign Relations U. S., 18U5, p. 41. § 64) CONSULAR AND OTHER RELATIONS. 181 CHAPTER VI. CONSULAR AND OTHER RELATIONS. 64. Consuls. 65. Functions of Consular Officers. 66. Appointment and Reception of Consuls. 67. Termination of Consular Office. 68. Immunities and Privileges of Consular Officers, 69. Other State Agents. CONSULS. 64. A consul is au official appointed by a state mainly for the purpose of protecting and advancing its business, com- merce, and navigation in a foreign state, in wMcb be is officially permitted to exercise bis functions. Functions somewhat similar to those of consuls of modern times seem to have been exercised in very early days. There were commercial magistrates, who like the Roman praetores mercatorum, settled disputes of sailors on board vessels. The spread of commerce and the settlement in a particular quarter of a city of a number of foreigners engaged in trade made nec- essary some degree of protection of their interests. Sometimes officials whose functions corresponded somewhat closely to those of consuls were appointed by a ruler to care for the rights of his citizens abroad. Sometimes the consuls seem to have been chosen by the merchants themselves to look out for their interests. With the rise of permanent diplomatic mis- sions and their development in the sixteenth and seventeenth centuries, the political and some of the other functions formerly performed by consuls passed to the ambassadors.^ With the revival and extension of general commercial relations and the greater intercourse following improved means of communica- tion since the end of the eighteenth century, the consular of- fice has again increased in importance.^ 1 Nys, Les Origines du droit international, p. 286. 2 For full treatment of United States system and practice, see "The Consular Service of the United States," Chester Lloyd Jones. See, also, "Le Consul," Ellery C. Stowell, 1909. 182 CONSULAR AND OTHER RELATIONS. (Ch. 6 The foreigners in a city seem sometimes to have purchased the right to the benefit of their own laws, or of laws which they were willing to acknowledge. Very often states made treaties by which special laws should be applicable to the foreign trad- ers. From the time of the Crusades examples of the exercise of consular jurisdiction are common. The foreign quarters of commercial towns were quite generally under foreign officers. In the commercial towns of Italy during the Middle Ages the consular institutions developed rapidly. In the Mohammedan countries the consuls by capitulations of the sovereigns came to have complete jurisdiction of the persons and interests of those of their own nationality. For a time the consuls had sim- ilar jurisdiction in some of the European states. In the Asiatic states the jurisdiction has tended to remain very wide, while in other states the tendency was to reduce it to the field of busi- ness and commercial interests. The United States has appointed consuls since 1780, though its agents abroad discharged consular functions prior to tb.at date. The service was formally established by an act of April 14, 1792.=* SAMB-FUNCTIONS OF CONSULAR OFFICERS. €5. While the general functions of consuls are to uratcli over the commercial and business interests of the country ■which they serve, they are charged Trith many other duties, particularly in some non-Christian states. The duties of consuls may be prescribed by municipal law or by treaty. The consul usually has large supervision over the maritime commerce of his state which may enter his jurisdic- tion. According to the law of some states, he receives the ship's papers on entrance to port. He may take depositions on board the ship, draw up, attest, certify, or authenticate acts, adjust differences arising on board between captain, officers, and crew, cause the arrest of deserters, adjust claims for dam- ages, care for shipwrecked seamen, take charge of the wrecked vessel, authenticate the bill of sale of a vessel, etc. By reports he is supposed to keep his state informed of the a 1 Stat. 254. § 65) CONSULS. 183 business and other conditions of which it would be serviceable for his state to be informed. The range of consular reports is very comprehensive, and if desired information cannot be had from the reports it is often possible to obtain information from a special investigation, if application is made through the proper channel. A consul may be, and usually is, intrusted with many duties in the way of car-' ing for and protecting the nationals of the state he is serving. He may aid in securing proper treatment by the courts, attest legal documents, examine witnesses, vise passports, care for the property and person of deceased nationals, etc. In certain states not members of the family of nations the jurisdiction over nationals of states members of this family is intrusted to the consuls. This is exceptional jurisdiction, and will tend to disappear.* The jurisdiction varies somewhat under different treaties. It may go so far as to cover all cases to which a consul's nationals are parties, ° may cover merely cases where a national is the defendant (here the consul or a representative may be present), may cover cases between na- tionals of the same or different foreign states ; ^ and may pro- vide for mixed courts, as in Egypt since 1876, or make other provisions.'^ The treaty between the United States and the Ottoman Em- pire of May 7, 1830, is an example of a treaty granting special consular jurisdiction: 4 United States consular courts in Japan were discontinued July 17, 1S99, in accord witli ttie treaty of November 22, 1894. 5 "His Higliness, tlie Sultan of Borneo, agrees tliat in all cases where a citizen of the United States shall be accused of any crime committed in any part of His Highness' dominions the person so accused shall be exclusively tried and adjudged by the American consul, or other officer duly appointed for that purpose, and in ail eases where disputes or differences may arise between American K^itizens, or bet^-een American citizens and the subjects of His High- ness, or between American citizens and the citizens of subjects of any other foreign power, in the dominions of the Sultan of Borneo, the American consul or other duly appointed officer shall have power to hear and decide the same without any interference, molestation or hindrance, on the part of any authority of Borneo, either before, during or after the litigation." Treaty of June 23, 1S50, art. 9. 6 United States Treaty with Persia, Dec. 13, 1856, art. 5. 7 A special court for China was created by Act Cong. June 30, 1906 (U. S. Comp. St. Supp. 1909, p. 1045). 18i CONSULAU AND OTHnil RELATIONS. (Cll. 6 "Article IV. If litij^ations and disputes should arise, between subjects of the Sublime Porte and citizens of the United States, the parties shall not be heard, nor shall judgement be pronounced unless the American drag;oman be present. Causes, in which the sum may exceed five hundred piastres, shall be submitted to the Sublime Porte, to be decided according to the laws of equity and justice. Citizens of the United States of America, quietly pursuing" their commerce, and not being charged or convicted of any crime or offense, shall not be mo- lested ; and even when they may have committed some offense, they shall not be arrested and put in prison, by the local au- thorities, but they shall be tried by their minister or consul, and punished according to their offense, folio ,ving in this respect the usage observed towards other Franks." The international court established in Eg>'pt in 187G took over some of the jurisdiction formerly exercised by the con- sular courts and remedied some of the evils in that form of jurisdiction. Mixed criminal cases, cases between citizens of different nations, still remain largely under the consular juris- diction. The international tribunal may exercise "simple po- lice" jurisdiction. ISlixed civil causes were assigned for the most part to the international court. Three courts of the first instance, each consisting of four foreign and three native judges, and one court of appeal, consisting of seven foreign and four native judges, constituted the international courts.^ APPOINTMENT AND RECEPTION OF CONSUI^S. 66. Consuls general and consuls are usually appointed by a commission or patent from tlie liead of the state, "nrliicli is communicated to tiie government wliere he is to reside. Vice and deputy consuls general and consuls are usually commissioned by the foreign secretary on recommenda- tion of their chief. Consular agents are similarly commissioned. The authorization by -which a consul is admitted to the performance of his functions by the foreign state is termed an "exequatur." A consular officer may be a citizen of the appointing state, or a citizen of receiving state, or of some other foreign state, though some states decline to receive their own citizens as con- 8 6G British and Foreign State Papers, 593. § 66) APPOINTMENT AND RECEPTION OF CONSULS. 185 sular representatives, and other states decline to accredit for- eigners. It is the policy of the United States not to appoint foreigners or naturalized citizens to consular offices. The grades of consular officers vary in different states. In the United States there are consuls general at large,^ consuls general, consuls, vice and deputy consuls general, vice and dep- uty consuls, commercial agents, vice commercial agents, con- sular agents, consular clerks, interpreters, marshals, and clerks.^** The vice consular officers are "substitute consular of- ficers," and the deputy consular officers are "subordinate con- sular officers." ^^ The commission or patent of the consuls general and consuls are usually from the head of the state, ^" while the vice consuls and consular agents are commissioned by the minister of for- eign affairs in most states. China, however, empowers her for- eign minister in a state to commission consular officers. The exequatur by which a consular officer is authorized by the foreign state to perform his functions may or may not be formal, but in the United States is usually formal.^^ Some- 8 Office created by Act April 5, 1906 (U. S. Comp. St. Supp. 190U, p 406). 10 Consular Regulations, 1896, 1. 11 Rev. St. § 1674 (U. S. Comp. St. 1001, p. 1149). 12 Commercial agents, a grade peculiar to the United States, re- ceive commission from the President. Rev. St. § 1674 (U. S. Comp. St. 1901, p. 1149). This grade is not usually recognized in treaties. 13 Form of "Full Presidential Exequatur" : " , President of the United States of America. "To All to Whom It may Concern: "Satisfactory evidence having been exhibited to me that has been appointed , I do hereby recognize him as such, and declare him free to exercise and enjoy such functions, powers, and privileges as are allowed to [Seal of "In testimony whereof, I have caused these letters to the be made patent, and the seal of the United States to be United hereunto affixed. States.] "Given under my hand at the city of Washington the day of , A. D. 19. ., and of the Independence of the United States of America the "Ry the President, "Secretary of State." 18G coNSULAU AND OTHHii ui:latioxs. (Ch. 6 times it may take the form of an official notification of his recognition as consul, or an indorsement upon the consul's commission. Consuls general, on entering upon their office, notify the foreign office and the diplomatic representative, and consuls notify the foreign office and consul general. By an executive order of June 27, 1906, the consular service of the United States was placed under the civil service act of 1883. New appointments were to be made from among candi- dates who had passed a satisfactory examination. "The scope and method of the examinations shall be determined by the board of examiners, but among the subjects shall be included at least one modern language other than English ; the natural, industrial and commercial resources and the commerce of the United States, especially with reference to the possibilities of increasing and extending the trade of the United States with foreign countries ; political economy ; elements of interna- tional, commercial and maritime law." The age limit is be- tween twenty-one and fifty. "In designations for appointment subject to examination, and in appointments after examination, due regard will be had to the rule that, as between candidates of equal merit, appointments should be so made as to secure proportional rep- resentation of all the states and territories in the consular service ; and neither in the designation for examination or certification or appointment will the political affiliations of the candidate be considered." TERMINATION OF CONSULAR OFFICE. 67. The service of a consul may be terminated: (a) By recall. (b) By expiration of period of appointment. (c) By deatb. (d) By witbdraival of exequatur. (a) Recall of a consular officer is a matter wholly within the jurisdiction of the sending state. The receiving state is not particularly concerned, as the service which he renders is par- ticularly as to business affairs, rather than relating to matters of state. § 68) IMMUNITIES, ETC., OF CONSULAR OFFICERS. 187 (b) Certain states appoint consular officers for specific pe- riods, at the expiration of which they are promoted, discharged, or otherwise changed in place. (c) The death of a consular officer places the office in the hands of a subordinate, or, in absence of such officer, consuls of friendly states take custody. (d) The withdrawal or revocation of the exequatur termi- nates the service of the consular officer, and is an act of which the state which granted it is the sole judge. It may, without offense to the sending state, be for any cause which the state issuing the exequatur may think sufficient.^* Usuallv a case is not so urgent that it is necessary to do more than suggest that the consul be recalled. Strained relations do not necessarily affect the exercise of consular functions. IMMUNITIES AND PRIVILEGES OF CONSULAR OFFICERS. 68. Consular officers, ivho are citizens or subjects of the state appointing them, are usually accorded such immunities and privileges as are necessary for the convenient per- formance of their functions. These immunities and privileges usually are: (a) Inviolability of office and archives. (b) Immunity frozn military service or burdens. (c) Exemption from arrest except on criminal charge. (d) Exemption from taxation if solely engaged in consular business. (e) Exemption from Tvitness duty, though testimony may be taken at the consulate, or the consul may be instructed to appear by his home government. 14 Treaty between the United States and Spain, July 3, 1902: "Article XIV. Consular officers shall receive, after presenting their commissions, and according to the formalities established in the re- spective countries, the exequator required for the exercise of their functions, which shall be furnished to them free of cost; and on presentation of this document, they shall be admitted to the en- joyment of tne rights, privileges and immunities granted to them by this treaty. "The government gi'anting the exequatur shall be at liberty to withdraw the same on stating the reasons for which it has thought proper so to do. Notice shall be given, on producing the commission, of the extent of the district allotted to the consular officer, and sub- sequently of the changes that may be made in this district." 188 CONSULAR AND OTHER RELATIONS. (Ch. 6 (f) Privilege of placing tlie arms of their state above tlie outer door, and of flying the national flag above the consulate, or above a vessel Trhen engaged in discharge of official port duties. (g) In some of the Eastern states special privileges similar to those accorded to diplomatic representatives. Any one accredited as consul, whether or not a citizen of the receiving- state, when once given an exequatur, would be entitled to inviolabilty of office and archives, and to such other immunity as attaches to the office, as the privileg-e of use of the arms above the door. If the consul is a citizen of, or a domiciled alien in, the receiving state, his immunities and privileges are usually strictly limited. If an alien engages in other business while holding a consular office, he is liable to the local laws to the extent which his business brings him un- der their provisions. So long as he is allowed an exequatur, he is entitled to perform his consular functions; but he does not have special privileges for other purposes. In time of war the consular flag specially protects the con- sulate. In some states the consulate has at times been used as an asylum for political and other refugees. The United States has discountenanced the use of the residences of its diplomatic representatives for such purpose, and the use of a consulate for such purpose would be still more open to objection. ^^ The immunities of consular officers are quite fully set forth in the Treaty between the United States and Spain of July 3, 1902: "Article XV. All consular officers, citizens or subjects of the country which has appointed them, shall be exempted from military billetings and contributions, and shall enjoy personal immunity from arrest or imprisonment except for acts consti- tuting crimes or misdemeanors by the laws of the country to which they are commissioned. They shall also be exempt from all national, state, provincial and municipal taxes except on real estate situated in, or capital invested in, the country to which they are commissioned. If, however, they are engaged in professional business, trade, manufacture or commerce, they shall not enjoy such exemption from taxes, but shall be subject 15 Foreign Relations U. S., 1899, p. 256, § 68) IMMUNITIES, ETC. , OF CONSULAR OFFICERS. 189 to the same taxes as are paid under similar circumstances by foreigners of the most favored nation, and shall not be entitled to plead their consular privilege to avoid professional or com- mercial liabilities. "Article XVI. If the testimony of a consular officer, who is a citizen or subject of the state by which he was appointed, and who is not engaged in business, is needed before the courts of either country, he shall be invited in writing to appear in court, and if unable to do so, his testimony shall be requested in writing, or be taken orally at his dwelling or office. "To obtain the testimony of such consular offxer before the courts of the country where he may exercise his functions, the interested party in civil cases, or the accused in criminal cases, shall apply to the competent judge, who shall invite the con- sular officer in the manner prescribed above, to give his testi- mony. "It shall be the duty of said consular officer to comply with this request, without any delay which can be avoided. Nothing in the foregoing part of this article, however, shall be construed to conflict with the provisions of the sixth article of the amend- ments to the Constitution of the United States, or with like provisions in the Constitutions of the several states, whereby the right is secured to persons charged with crimes, to obtain witnesses in their favor, and to be confronted with the wit- nesses against them. "Article XVII. Consuls general, consuls, vice consuls, and consular agents may place over the outer door of their office the arms of their nation with this inscription 'Consulate,' 'Vice Consulate,' or 'Consular Agency of the United States,' or 'Spain.' "They may also hoist the flag of their country over the house in which the consular office is, provided they do not re- side in the capital in which the legation of their country is established, and also upon any vessel employed by them in port in the discharge of their official duties. "The consular offices and archives shall be at all times in- violable. The local authorities shall not be allowed to enter such offices under any pretext, nor shall they in any case^ ex- .amine or take possession of the official papers therein deposited. These offices, however, shall never serve as place of asylum. 190 CONSULAR AND OTHER RELATIONS. (Ch. 6 "When the consular ofificer is engaged in trade, professional business or manufacture, the papers and archives relating to the business of the consulate must be kept separate and apart from all others." OTHER STATE AGENTS. G9. There may be agents of a state Tirho have no acknoivledged diplomatic or consular character such as secret agents, special commissioners, bearers of dispatches, etc. It may be that under special circumstances a state may desire to send, and another state may desire to receive, an agent whose status and business is not publicly disclosed. So far as the sending and receiving states are concerned, such an agent is entitled to all the privileges and immunities which appertain to his office. As his status is not publicly known, he cannot, without disclosing it, claim its privileges, and such a disclosure would not accord with his mission, nor would he expect to be accorded privileges by third powers. Agents are also sometimes sent to ascertain the condition of affairs in a territory where insurrection prevails, and in a more public manner to a recognized belligerent. Commissioners are often sent on special foreign service, which does not require the grant of any diplomatic or consular privileges. Such commissioners may be sent for various serv- ices, as to fix boundary lines, arrange for highways of com- merce between states, make investigations, etc. They are usually accorded such courteous treatment as will facilitate the performance of their functions. Bearers of public dispatches, even though not the regular dispatch agents of a state, would, if their character were estab- lished, be accorded reasonable exemptions. Some other state agents, such as spies, and those engaged in other secret service without the consent, tacit or direct, of the state in which they are may be expelled or treated in such manner as the authorities of the state where they are found may determine. Sometimes such agents, while secretly in a foreign state, are allowed to remain without interference, as when reporting the movements of insurgent leaders, anarchists, etc. § TO) TREATIES AND OTHER AGREEMENTS. 191 CHAPTER VII. TREATIES AND OTHER INTERNATIONAL AGREEMENTS. 70. Treaty Defined. 71. Other Agreements between States. 72. Essentials of a Valid Treaty. 73. Form of tlie Contract, 74. Ratification. 75. Interpretation. 76. Most Favored Nation Clause. 77. Treaties of Guaranty, 78. Operation of a Treaty 79. Termination. 80. Continuation. TREATY DEFINED. 70. A treaty is an. agreement betiveen txt^o or more states in conformity to law^. A treaty is the most formal agreement between states, and usually relates to matters of general concern, as a treaty of peace, or to matters of high importance, as cession of territory. "A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the inter- est and the honor of the governments which are parties to it." ^ Treaties are usually in writing. Treaties may relate to any subject within the competence of the treaty-making pow- er.^ The term "treaty" is also loosely used as the general term to designate any form of international agreement. Separate articles, or sole articles, explanatory of a treaty, may be agreed upon at the time of the negotiation of the treaty, or at a subsequent date, and are separately ratified. 1 Edye v. Robertson, 112 U. S. 580, 5 Sup. Ct. 247, 28 L. Ed. 798 ; The Diamond Rings. 183 U. S. 182. 22 Sup. Ct. 59, 46 L. Ed. 138. 2 1 Butler, Treaty Making of the United States, § 3. 192 TREATIES AND OTHER AGREEMENTS. (Ch. 7 OTHER AGREEMENTS BETW^EEN STATES. 71. (a) A convention usually relates to some specific subject ratlier than to matters of general character, as in the case of a treaty. (b) A protocol, or proces verbal, generally referring to an agreement already made or to be made, is usually less formal than a convention, both in phrasing and ar- rangement. Protocols are sometimes formally ratified by the treaty-making po-wer, and sometimes are simply the signed minutes of a conference. (c) An agreement, an arrangement or a modus vivendi, usu- ally prescribes in detail the line of conduct ■which xpilj be f ollow^ed in interstate relations under certain condi- tions. (d) Declarations are usually in the form of reciprocal agree- ments, relating to the rights and privileges of the na- tionals of the states. The term "declaration" is also applied to the formal statement of the principles in ac- cord \Fith ivhich states propose to act, or to the formal statement of the grounds for an action. (e) Cartels are agreements concluded betw^een belligerents in regard to intercourse in time of xsrar. (f) Sponsions, or agreements sub spe rati, are agreements made betw^een representatives of states not properly commissioned, or agreements made by representatives in excess of authority. The terms "treaty," "convention," "protocol," etc., are often used without clear distinction. (a) Convention is the usual term given to agreements in regard to consular relations, naturalization, extradition, postal relations, and the like. (b) Protocols vary greatly, but generally are preparatory to a more formal agreement. A protocol was signed by the plenipotentiaries of the various powers at the conclusion of the so-called "Boxer Troubles" in 1900.^ A protocol, embodying the terms of a basis for the establishment of peace between the United States and Spain, was signed by the United States Secretary of State and the French Ambassador, representing Spain, on August 13, 1898 and was preliminary to the treaty 3 Foreign Relations U. S., 1901, Appendix, p. 30G. For tlie nego- tiations, signing, etc., see preceding pages. § 71) OTHER AGREEMENTS BETWEEN STATES. 193 of peace. The official minutes of a conference often take the form of a protocol, when signed by the accredited represen- tatives. (c) Arrangements, agreements, modi vivendi, take many forms and relate to many subjects. An arrangement was made between the United States and Great Britain in 1817 in regard to the naval force to be maintained upon the American bound- ary lakes.* A reciprocal commercial agreement was entered • into between the United States and France May 28, 1898." The United States and Great Britain have entered into many modi vivendi, particularly in regard to temporary adjustments of difficulties over fishing rights on the adjacent seas.® (d) Declarations frequently confer reciprocal trade-mark or copyright privileges upon the nationals of the states becoming parties thereto.'^ The declaration of Paris of 1856 set forth the principles which the states proposed to follow in maritime warfare.^ A declaration of war usually sets forth the reasons for entering upon hostilities. (e) Cartels are agreements between belligerents in regard to intercourse in time of war. Cartels have been made relating 4 "The naval force to be maintained upon tbe American lalies, by His Maj^^sty and the government of the United States, shall hence- forth be confined to the following vessels on each side; that is: "On Lake Ontario, to one vessel, not exceeding one hundred tons burden, and armed with one eighteen-pound cannon. "On the upper lalies, to two vessels, not exceeding like burden each, and armed with like force. "On the waters of Lake Champlain, to one vessel, not exceeding like burden, and armed with like force. "All other armed vessels on these lakes shall be forthwith dis- mantled, and no other vessels of war shall be there built or armed. "If either party should hereafter be desirous of annulling this stip- ulation, and should give notice to that effect to the other party, it shall cease to be binding after the expiration of six months from the date of such notice. "The naval force so to be limited shall he restricted to such services as will, in no respect, interfere with the proper duties of the armed vessels of the other party." 8 Stat. p. 231. B30 Stat. 1774. « Modus vivendi respecting Fisheries on Newfoundland Treaty Coast, Oct. 6-8, 1906. 7 United States and Russian Agreement, March 28, 1874. « Appendix, p. 487. Wils.Int.L. — 13 194 TREATIES AND OTIIEU AGREEMENTS. (Ch. 7 to telegraphic, mail, and lilce services, but most frequently re- late to the exchange of prisoners. (f) Sponsions, or agreements sub spe rati are often made where new conditions arise after negotiators are appointed, which make it seem expedient that an agreement should be made which is beyond their powers, and that it should be en- tered upon subject to subsequent rejection or ratification by their government. This form was more common in earlier times, when negotiators could not so easily communicate with their home governments and obtain extension of powers. ESSENTIALS OF VALID TREATY. 72. It is generally recognized that the essentials of a valid treaty or contract betxreen tw^o or more states are: (a) Capacity of the parties to contract. • (b) Duly enipoTirered agents to act on behalf of the states. (c) Freedom of consent. (d) An object in conformity to Islmt, (a) The capacity of a state to make a treaty may be limited in certain respects by its fundamental law, as is usually the case in states having written constitutions, even though the limitations are only implied,® or may be limited by the relations which a state sustains to other states, as in the case of states whose existence is under restrictions, such as neutralized states. (b) In every state certain agents have, under certain condi- tions, the power to bind their state by their contracts. ^° If, however, these agents exceed their powers, the state is not bound. Where their acts are not ratified, and the state has re- ceived some material advantage as a result of the agreement » "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instru- ment against the action of the govei'nment or of its departments, and those arising from the nature of the government and of that of the States." De Geofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642. 10 "He [the President] shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur." Const. U. S., art. 2, § 2 (2). § 73) FORM OF THE CONTRACT. 195 entered into by them, or where the other contracting state has performed acts in pursuance of the agreement, it is the duty of the state receiving the benefits, or the action of whose agent caused the performance of the acts mentioned, either to make proper compensation or to restore the former status as far as practicable. If the agent has clearly exceeded his powers in such a manner that this fact should have been known to the other party, there is no obligation upon the agent's state. (c) Many treaties are made in order to bring to an end fur- ther use of force. The state is, however, held to be free to continue to resist or to agree upon terms. The use of force, if a proper means of redress, cannot be made to vitiate a con- tract resulting from its use. A state can enter into a perfectly valid contract which has been forced upon it, however disad- vantageous its terms may be, provided it does not part with an essential to its existence. No state can be supposed to be will- mg to part with independence as a result of constraint, and^ when this results, the contract is assumed to be vitiated by the constraint. In case constraint be imposed upon the person of the sovereign of a state or upon the person of a commander, or of an agent authorized to negotiate a treaty, the state which he represents is in no manner bound by his acts, and all such contracts are absolutely void. If the consent of an agent of a state is obtained through fraud, the contract resulting there- from is not valid. (d) A treaty which does not conform to international law and established usages may be void or voidable, as a treaty which has as an object the exercise of proprietary rights over the open sea, or a treaty contrary to the recognized rights of humanity, as for the establishment or protection of the slave trade. FORM OF THE CONTRACT. 73. 'While no prescrilied form is necessary, contracts betiween states are usually in the form of written agreements, signed by or in behalf of the treaty-making power of the states parties to the contract. Agreements may even be made by the display of symbols by agents of a state, as in the raising of a white flag in token 196 TREATIES AND OTHER AGREEMENTS. (Ch. 7 of surrender. Verbal agreements between sovereigns have been held as binding upon states, particularly in earlier times., when the sovereign often had absolute power. Less formal agreements are sometimes made by the exchange of notes be- tween agents of states. In general, however, interstate contracts are of such impor- tance that they are entered upon with much formality. Usually a preamble, containing the names of the heads of the states or their representatives, is followed by a statement of the reasons for the negotiation of the treaty. The body of the treaty ordi- narily consists of numbered articles, setting forth the agree- ments to which the states have come. The stipulations in re- gard to ratification, duration, accession of other states, denun- ciation, and similar provisions, are usually followed by the signatures and seals of the negotiators.^^ 112 Pradier-Fodere, Droit Int. Public, §§ 10S&-1096. The usual form may be seen in the treaty between the United States and Great Britain to facilitate the construction of a ship canal, concluded No- vember 18, 1901: "The United States of America and His Majesty Edward the Seventh, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, and Emperor of India, being desirous to facilitate the construction of a ship canal to connect the Atlantic and Pacific Oceans, by whatever route may be considered expedient, and to that end to remove any objection which may arise out of the Convention of the 19th April, 1850, commonly called the Clayton-Bulwer Treaty, to the construction of such canal under the auspices of the government of the United States, without impairing the 'general principle' of neutralization established in ar- ticle VIII of that Convention, have for that purpose appointed as their plenipotentiaries: "The President of the United States, John Hay, Secretary of State of the United States of America ; "And His Majesty Edward the Seventh, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King and Emperor of India, the Right Honorable Lord Pauncefote, G. C. B., G. C. M. G., His Majesty's Ambassador Ex- traordinary and Plenipotentiary to the United States ; "Who, having communicated to each other their full powers, which were found to be in due and proper form, have agreed upon the following articles: "[Here follows the body of the treaty.] "Article V. The present treaty shall be ratified by the President of the United States, by and with the advice and consent of the Sen- § T4) RATIFICATION. 197 While the above is the common form, treaties vary greatly in form. The order of signing was in early times often a sub- ject of discussion. At present the most common order is in ac- cord with the alphabetical order of the names of the states, and usually following the order in the French language, where sev- eral states are parties to the treaty. Sometimes the order is determined by lot. In the draft of the treaty for his own state, the representative of that state may, following the principle of the alternat, sign first. RATIFICATION. 74. Ratification is the act by \irliich tlie treaty-making pow- er approves and confirms tliat Tvhich lias been agreed upon by its autliorized agent or agents. The fundamental law of a state in many states prescribes the procedure in making and ratifying treaties. In monarchies the ratifying power is generally in the monarch, provided the treaty does not alienate territory or change the status of nationals, ^- and in republics in some representative body. In some cases ratification may not be necessary, as in cases where treaties are concluded by functionaries having treaty- making power. Usually, however, the signing of a treaty by the representatives of the states is an indication that they have reached an agreement. Whether this agreement will commend itself to the states by which they are accredited is to be deter- mined by subsequent ratification. Many treaties are now con- cluded subject to ratification, even if the fundamental law of a state does not prescribe this method, and even if this condition is not mentioned in the treaty. If no time for ratification is specified, a reasonable period is presumed to be allowed. Rat- ate thereof, and by His Britannic Majesty; and the ratifications shall be exchanged at Washington or at London at the earliest possible time within six months from the date hereof. "In faith whereof the respective plenipotentiaries have signed this treaty and thereunto affixed their seals. "Done in duplicate at Washington, the 18th day of November, in the year of Our Lord one thousand nine hundred and one. "John Hay. [8eal.j "Pauncefote. [Seal.]" 12 Crandall, Treaties, Their Making and Enforcement. 198 TREATIES AND OTHER AGREEMENTS. (Ch. 7 ification must be by the treaty-making- power or by an author- ized agent. It is generally held that it must be complete, for partial ratification would in effect be a new treaty. The form of ratification varies. Sometimes it may even be tacit, by ful- filling- the terms of the treaty; but it is more often formal, by the exchange of documents, sometimes reciting the whole treaty, sometimes reciting merely the preamble, the names of the negotiators, the date of signing, etc. ; i. e., the earlier and later clauses of the treaty to such an extent as to make its identification certain. "The exchange of ratifications is usually a solemn — i. e., highly formal — ceremony by which parties to the treaty or convention guarantee to each other the execution of its terms. As many copies of the act of ratification are prepared by each state as there are state parties to the treaty. When the repre- sentatives of the states assemble for the exchange of ratifica- tions, they submit them to each other. These are carefully com- pared, and, if found in correct form, they make the exchange and draw up a proces verbal of the fact, making as many copies of the proces verbal as there are parties to the treaty. At this time, also, a date for putting into operation the provisions of the treaty may be fixed. Sometimes clauses explanatory of words, phrases, etc., in the body of the treaty, are agreed upon. Such action usually takes the form of a special proces verbal, or protocol." ^^ While ratification generally follows the negotiation of a treaty, it is not now maintained, as was formerly held by many, that ratification is legally or even morally obligatory. The United States Senate has on various occasions refused to ratify, or ratified an amended treaty, which was in effect a refusal to ratify, the agreement which the negotiators had made.^* Rat- ification may be refused for sufficient reason, though there may be differences of opinion as to what constitutes sufficient rea- son for such refusal. 13 Wilson & Tucker, Int. Law (5th Ed.) p. 212. 14 This -was the case with certain reciprocity treaties at the end of the nineteenth century and with certain arbitration treaties in the early twentieth century. The Senate also modified the proposed treaty with Great Britain concerning the Nicaragua Canal, signed February 5, 1900. § 75) INTERPRETATION OF TREATIES. 199 "The following have been offered at various times as valid reasons for refusal of ratification: (1) Error in points essen- tial to the agreement; (2) the introduction of matters of which the instructions of the plenipotentiaries do not give them power to treat; (3) clauses contrary to the public law of either of the states ; (4) a change in the circumstances, making the ful- fillment of the stipulations unreasonable ; (5) the introduction of conditions impossible of fulfillment; (6) the failure to meet the approval of the political authority whose approval is neces- sary to give the treaty effect ; (7) the lack of proper credentials on the part of the negotiators, or the lack of freedom in nego- tiating." ^^ Ratification makes the treaty binding. While there is some difference of opinion as to whether the date upon which a treaty becomes binding is the date of ratification, or the date of the signing of the treaty, the United States Supreme Court has held that after ratification, as between the governments, a treaty "is considered as concluded and binding from the date of signature," while, as regards persons, it is binding only from the date of ratification and proclamation.^® The proclamation or promulgation of a treaty or publication of the contents of a treaty may be delayed, as in the case of a secret treaty. The treaty is in such case binding on the state, but not upon its citi- zens, who are ignorant of its provisions. The method of mak- ing a treaty known is a matter of municipal law. INTEHPRETATION OF TREATIES. 75. Treaties should receive reasonable interpretation. In case of doubt in regard to interpretation, tbe follow- ing rules bave been generally accepted: (a) Wlien tbere is doubt as to tbe interpretation of tbe -words of a treaty: (1) The words are to be interpreted in their usual sense, unless this involves an absurdity or is incompatible \7ith the general provisions of the treaty; (2) w^ords having more than one meaning are interpreted in the more general sense, rather than the technical sense, unless clearly used in the technical IB Wilson & Tucker, Int. Law (5th Ed.) 211. 16 Haver v. Yaker, 9 Wall. 32, 19 L. Ed. 571. For full discussion, see 2 Butler, Treaty-Making Power of the United States, § 3S3. 200 TREATIES AND OTHER AGREEMENTS. (Cll. 7 sense; (3) Tvords are to be interpreted as understood at tile time of the negotiation of the treaty and favorably to the party assuming an obligation. (b) AVhen there is doubt as to the interpretation of the pro- visions of a treaty: (1) That wrhich is specifically stat- ed prevails against the more genei*al; (2) provisions operating unequally may be strictly construed by the party suffering the greater burden: (3) single provi- sions should be interpreted writh reference to the Avhole treaty. (c) In case of conflict betxreen different treaties: (1) If be- ttveen treaties to -which the same states are parties, the later treaty is binding; (2) if betTveen earlier and later treaties to which the same states are not parties, the earlier treaty is binding. The rules of interpretation have been set forth at various times by the Supreme Court of the United States. In the case of De Geof roy v. Riggs, in 1890, the court said : "It is a general principle of construction with respect to treaties that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality between them. As they are contracts between independent nations, in their construction words are to be taken in their ordinary mean- ing, as understood in the public lav/ of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended. And it has been held by this court that, where a treaty admits of two con- structions, one restrictive of rights that may be claimed under it, and the other favorable to them, the latter is preferred." ^^ In 1902, in the case of Tucker v. Alexandroff, the broad basis of interpretation was stated : "As treaties are solemn en- gagements entered into between independent nations for the common advancement of their interests and the interests of civ- ilization, and as their main object is, not only to avoid war and secure a lasting and perpetual peace, but to promote a friendly feeling between the people of the two countries, they should be interpreted in that broad and liberal spirit which is calculated to make for the existence of a perpetual amity so far as it can be done without the sacrifice of individual rights or those prin- 17 De Geof roy v. Riggs, 133 U. S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642. See, also, Hauenslein v. Lynham, 100 U. S. 487, 25 L. Ed. G28. § 75) INTERPRETATION OF TREATIES. 201 ciples of personal liberty which lie at the foundation of our jurisprudence." ^* While many rules for the interpretation of treaties have been given by various writers/^ controversies in regard to interpre- tation have in fact often resulted in the making of new treaties which would secure the objects sought by the states. Some- times a protocol or declaration is added to a treaty interpreting the treaty; e. g., in the protocol of April 29, 1872, between the United States and the German Empire, it is stated that "the expression 'property,' used in the English text of articles III and IX, is to be construed as meaning and intending 'real es- tate.' " In recent years it has become common to refer disputes as to the construction of treaties to arbitration, and many general and special agreements have been made to this effect. The United States has entered upon a policy of reference of differ- ences of interpretation to arbitration, as follows: "Differences which may arise of a legal nature, or relating to the interpretation of treaties existing between the two con- tracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of the 29th July, 1899 : Provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of either of the two contracting states, and do not concern the interests of third parties. "In each individual case the high contracting parties, before appealing to the Permanent Court of Arbitration, shall con- clude a special agreement defining clearly the matter in dis- pute, the scope of the powers of the arbitrators, and the periods to be fixed for the formation of the arbitral tribunal and the several stages of the procedure. It is understood that, on the part of the United States, such special agreements will be made by the President of the United States, by and with the advice and consent of the Senate thereof." ^° 18 Tucker v. Alexandroff, 1S3 U. S. 424, 22 Sup. Ct. 195. 46 L. Ed. 204. 19 2 Phillimore, Int. Law, LXIV-XCIX. 20 Treaty between United States and France, Feb. 10, 190S. 202 TREATIES AND OTHER AGREEMENTS. (Ch. 7 Similar provisions occur in many treaties negotiated since the First Hague Conference in 1899 and under the provisions of the Second Hague Conference of 1907. MOST FAVORED NATION CLAUSE. 76. This is a clause inserted in many treaties, especiallly of a commercial natnre, by whicli is granted to tlie parties advantages similarly conferred or ixrliich may be sim- ilarly conferred upon tbird poivers. Measures of reciprocity were taken in early international dealing. It was but natural that states which entered upon negotiations with a state should desire to obtain from that state, not only all the privileges which other states already possessed as a result of negotiations, but also the advantages which other states might subsequently acquire. To provide for this, clauses were introduced, varying in form, but to the effect that the parties to the treaty should receive all the privileges and immunities accorded to any nation whatsoever in the mat- ters specified. Toward the end of the seventeenth century the expression "most favored nation" came into use. These treaties did not relate to commercial affairs only, but often to political matters.^ ^ During the eighteenth century the "most favored nation" clause appeared in many commercial treaties. In the treaty of amity and commerce negotiated between the United States and France, February 6, 1778, the general form of the "most favored nation" clause appears : "Article IV. The subjects, people, and inhabitants of the said United States, and each of them, shall not pay in the ports, havens, roads, isles, cities, and places under the domination of His Most Christian Majesty, in Europe, any other or greater duties or imposts, of what nature soever they may be, or by what name soever called, than those which the most favored nations are or shall be obliged to pay; and they shall enjoy all the rights, liberties, privileges, immunities, and exemptions in trade, navigation, and commerce, whether in passing from one port in the said dominions, in Europe, to another, or in going = 1 Cavaretta, La Clausola del la Nazione piu Favorita, p. 59. § 76) MOST FAVORED NATION CLAUSE. 203 to and from the same, from and to any part of the world, which the said nations do or shall enjoy." In the same treaty there appears a restriction to the effect that favors may be in return for equal concessions : "Article 11. The Most Christian King and the United States engage mutually not to grant any particular favor to other na- tions, in respect of commerce and navigation, which shall not immediately become common to the other party, who shall en- joy the same favor, freely, if the concession was freely made, or on allowing the same compensation, if the concession was conditional." The form used in article II of this treaty has been used in many other treaties to which the United States has been a party. The United States has interpreted the "most favored nation" clause as aiming at equality of treatment. In commer- cial matters the following rule of interpretation was given in 1898: "It is clearly evident that the object sought in all the varying forms of expression is equality of international treatment, pro- tection against the willful preference of the commercial inter- ests of one nation over another. But the allowance of the same privileges, and the same sacrifice of revenue duties, to a nation which makes no compensation, that had been conceded to another nation for an adequate compensation, instead of maintaining, destroys that equality of market privileges which the 'most favored nation' clause was intended to secure. It concedes for nothing to one friendly nation what the other l^ets only for a price. It would thus become the source of in- ternational inequality and provoke international hostility. "The neighborhood of nations, their border interests, their differences of climate, soil, and production, their respective capacity for manufacture, their widely different demands for consumption, the magnitude of the reciprocal markets, are so many conditions which require special treatment. No general tariff can satisfy such demands. It would require a certainty of language which excludes the possibility of doubt to justify the opinion that the government of any commercial nation had annulled its natural right to meet these special conditions by compensatory concessions, or held the right only on condition of extending the same to a nation which had no compensation 2U4 TREATIES AND OTHER AGREEMENTS. (Ch. 7 to offer. The fact that such concessions, if made, would in- evitably inure to the equal benefit of a third competitor, would often destroy the motive for, as well as the value of, such reciprocal concessions. "But, instead of such certainty of expression, one of the articles in each of the treaties referred to contains a distinct recognition that special and compensatory commercial arrange- ments may be made, notwithstanding the 'most favored nation' clause, and provides that in such cases the favors granted shall be enjoyed by the party claiming favored nation treatment — gratuitously, if so granted; for equivalent compensation, if granted for a price. "\\'hat will be an equivalent compensation is to be honorably determined by the governments concerned. So many consid- erations have necessarily entered into such special concession- ary agreements that no universal rule can be applied. The price has often been special privileges in the market of the other for certain manufactures or products of the contracting country; but it may also be a port, a bay, or an island, or a protectorate, as well as an expanded market, or a privileged export trade. It may be anything within the range of the treaty-making power." ^^ Certain other states, including Great Britain, have contended that the "most favored nation" clause should be absolute and unconditional in all cases, and that a favor granted to one state should extend immediately to all other nations having "most favored nation" treaties with that state. ^^ The "most favored nation" agreement in different treaties varies in form and in content. In treaties to which the United States is a party the agreement is not always uniform. It may be a gratuitous conferring of privileges, it may be conditional, or it may depend upon like concessions on the part of the other nation. Reciprocity is frequently at the basis of this agreement, though it does not follow that the conces- sions stipulated for are equivalent. When privileges granted 22 5 Moore, § 765, p. 278. 23 5 Moore, § 765. For discussion, see J. R. Herod, "Favored Na- tion Treatment" ; Stanley K. Hornbeeli "The Most-Favored Nation Clause in Commercial Relations" ; Imperial Japanese Government v. P. & O. Co., [1895] A- C. 644. § 77) TREATIES OF GUARANTY. 205 under the "most favored nation clause" are in the nature of reciprocal concessions, as in fixing of taxes, rights of citizens, etc., other states can only claim such privileges under a "most favored nation clause" through the grant of similar conces- sions.^* A "most favored nation clause" of a general nature appears in the treaty between the United States and Japan of Novem- ber 22, 1894, by which nationals of the respective states "shall not be compelled, under any pretext whatsoever, to pay any charges or taxes other or higher than those that are, or may be, paid by native citizens or subjects, or citizens or subjects of the most favored nation." ^^ TREATIES OF GUARANTY. 77. Treaties of guaranty are agreements througli which one or more powers engage to maintain given conditions or rights. Treaties of guaranty were particularly common in the nine- teenth century. These treaties cover a wide range of subjects, such as the maintenance of neutrality, the maintenance of a particular form of government or a certain status quo, or the performance of a certain act. The Act of Acknowledgment and Guaranty of the Perpetual Neutrality of Switzerland, and of the Inviolability of Its Ter- ritory, Paris, November 20, 1815, states that: "The powers who signed the declaration of the 20th March acknowledge, in the most formal manner, by the present act, that the neutrality and inviolability of Switzerland, and her independence of all foreign influence, enter into the true interests of the policy of 2 4 This point was fully discussed in the controversy over the inter- pretation of the treaty of 1803 between the United States and France. France claimed all the privileges granted to any nation, whether or not in exchange for special concessions. The United States contended that " 'a most favored nation clause' cannot be un- derstood to mean that France should enjoy as a free gift that which is ceded to other nations for a full equivalent." 5 American State Papers, Foreign Relations, 152, ff. Herod, Favored Nation Treatment, cc. 3, 10. 2 B Article I. 206 TREATIES AND OTIIKU AGUEKMENTS. (Ch. 7 tlie whole of Europe." By a declaration of April 6, 188G, Great Britain and the German Empire gave mutual guaranty to respect their spheres of influence in the Western Pacific. The agreement between Great Britain and Japan, signed at London, August 12, 1905, has for its object: "(a) The consolidation and maintenance of the general peace in the regions of Eastern Asia and of India. "(b) The preservation of the common interests of all powers in China, by insuring the independence and integrity of the Chinese Empire and the principle of equal opportunities for the commerce and industry of all nations in China. "(c) The maintenance of the territorial rights of the high contracting parties in the regions of Eastern Asia and of In- dia, and the defense of their special interests in the said re- gions." These two states propose to secure these objects as follows: "Article I. It is agreed that whenever in the opinion of either Great Britian or Japan any of the rights and interests re- ferred to in the preamble of this agreement are in jeopardy, the two governments will communicate with one another fully and frankly and will consider in common the measures which should be taken to safeguard those menaced rights or interests. "Art. II. If by reason of unprovoked attack or aggressive action, wherever arising, on the part of any other power or powers either contracting party should be involved in war in defense of its territorial rights or special interests mentioned in the preamble of this agreement, the other contracting party will at once come to the assistance of its ally and will conduct the war in common and make peace in mutual agreement with it." A treaty of November 7, 1907, respecting the independence and territorial integrity of Norway, provides : "Article 2. The German, French, British, and Russian gov- ernments recognize and undertake to respect the integrity of Norway. "If the integrity of Norway is threatened or impaired by any power whatsoever, the German, French, British, and Rus- sian governments undertake, on the receipt of a previous com- munication to this effect from the Norwegian government, to § 78) OPERATION OF A TREATY. 207 afford to that government their support, by such means as may- be deemed the most appropriate, with a view to safeguarding the integrity of Norway." OPERATION OF A TREATY. 78. A treaty, if ratified, is binding— (a) Upon the states parties to it, (b) In general, from tbe date of a signing, and (c) Usually, regardless of changes in the form of govern- ment. (a) A treaty is essentially an agreement to which states are parties. Two states cannot properly make a treaty which will deprive a third state of its rights, though many treaties do affect the relations of third states. A treaty is not in itself binding upon the nationals of a state or upon its local officials, but must in general be made thus operative by municipal law. The Constitution of the United States provides that, in ad- dition to the Constitution and laws in accord therewith, "all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land." -^ The Supreme Court has said "that 'a treaty may supersede a prior act of Congress, and an act of Congress supersede a prior treaty,' is elementary." ^^ Thus in the United States a treaty 2 6 Const. U. S. art. 6, § 2. 2T Ward V. Race Horse, 163 U. S. 511, 16 Sup. Ct. 1076, 41 L. Ed. 244. "The second section of the sixth article of the Constitution is: 'This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the su- preme law of the land.' There is nothing in the language of this clause which enables us to say that in the case supposed the treaty, and not the act of Congress, is to afford the rule. Ordinarily treaties are not rules prescribed by sovereigns for the conduct of their sub- jects, but contracts by which they agree to regulate their own con- duct. This provision of our Constitution has made treaties part of our municipal law ; but it has not assigned to them any particular degree of authority in our municipal law, nor declared whether laws so enacted shall or shall not be paramount to laws otherwise enacted. No such declaration is made, even in respect to the Constitution itself. It is named in conjunction with treaties and acts of Congress as one 20S TREATIES AND OTHER AGREEMENTS. (Ch. 7 is by the fundamental law rendered operative to the same ex- tent as an act of Congress, and in case of conflict would be interpreted in accord with the same principles as apply in cases of conflict in acts of Congress. (b) A modern treaty usually contains an article specifying the date upon which it will become operative, and as between the states parties to it is, in absence of such specification, op- erative from the date of signing. The treaty concluded be- tween the United States and Japan, November 22, 1894, con- tained the following: "This treaty shall go into operation on the 17th day of July, 1899." -^ Nationals of a state cannot in general be held to be bound by a treaty till it is made known by proclamation. (c) The change in the form of government, as from one party to another, by the death of a sovereign, from a mon- archy to a republic, is not considered as operating to terminate or modify the provisions of a treaty, unless the treaty is made of the supreme laws, but no supremacy is in terms assigned to one over the other; and when it became necessary to determine whether an act of Congress repugnant to the Constitution could be deemed by the judicial power an operative law, the solution of the question v.-as found by considering the nature and objects of each species of law, the authority from which it emanated, and the consequences of allowing or denying the paramount effect of the Constitution. It is only by a similar course of inquiry that we can determine the question now under consideration. "In commencing this inquiry I think it mnterial to observe that it is solely a question of municipal as distinguished from public law. The foreign sovereign between whom and the United States a treaty has been made has a right to expect and require its stipulations to be kept with scrupulous good faith ; l)ut through what internal ar- rangements this shall be done is exclusively for the consideration of the United States. Whether the treaty shall itself be the rule of action of the people as w^ell as the government, whether the power to enforce and apply it shall reside in one department or another, nei- ther the treaty itself nor any implication drawn from it gives him any light to inquire. If the people of the United States were to repeal so much of their Constitution as makes treaties part of their municipal law. no foreign sovereign with whom a treaty exists could justly complain, for it is not a matter with which he has any concern." 2 Curtis' U. S. Circuit Court Decis. 454. 2 8 Article 19. § 79) TERMINATION OF TREATIES. 209 with reference to such a contingency. The state is regarded as a permanent entity, the organs of which may change, with- out modifying the relationships of states to one another. TERMINATION OF TREATIES. 79. A treaty may expire in accord \iritli the terms of the treaty agreement, or may be dissolved, may become void or voidable, or may be annulled. While the terms of treaties or conventions may cease to be binding in many ways and for different causes, treaties or con- ventions most often expire in accord with the terms under which they are concluded. Many treaties are concluded for the performance of a specific object or to maintain a certain status for a definite time. Less formal agreements than treaties or conventions are often temporary in nature, and are regarded as at an end if there is not ample evidence that they are still binding. A common provision in modern treaties is that the treaty "shall remain in force until the expiration of one year from the day on which either of the contracting par- ties shall give notice of its intention to terminate the treaty." A convention for the payment of a certain sum of money, for the cession of a certain territory, or for similar purposes, would ordinarily come to an end by the fulfillment of its stipu- lations. In the treaty between Great Britain and the United States of November 19, 179-1:: "It is agreed that the first ten articles of this treaty shall be permanent, and that the subse- quent articles, except the twelfth, shall be limited in their dura- tion to twelve years." The date of the exchange of ratifica- tions was fixed as the time when this treaty should become operative. Ratifications were exchanged October 28, 1795, and articles XI to XXVII, mainly relating to commercial relations, expired by their own limitation October 28, 1807. ^^ 2 9 "Article XXVII. It is agreed that the first ten articles of this treaty shall be permanent, and that the subsequent articles, except the twelfth, shall be limited in their duration to twelve years, to be computed from the day on which the ratifications of this treaty shall be exchanged, but subject to this condition: That whereas the said twelfth article will expire, by the limitation therein contained, Wils.Int.L. — 14 210 TREATIES AND OTHER AGREEMENTS. (Cb. 7 A treaty whose conditions have not been fulfilled may be dissolved by mutual agreement, may be superseded by a new agreement upon the same subject, or an obligation under a treaty may terminate by the voluntary release of the debtor state from the obligation by the state in whose favor the obli- gation runs. A treaty which has not come to an end in accord with its own provisions and has not been dissolved may be void, if it depends upon a condition which has ceased to exist, by the complete destruction of the thing which forms the object of the treaty, when its execution becomes impossible, or by decla- ration of war, which either suspends or entirely destroys its effect. Such conditions arise most often when a state which has been a party to a treaty ceases to exist, as when a state disappears through absorption in another state, through par- tition, or otherwise. Of voidability of treaties Hall says : "The principle which has been mentioned as being a sufficient test of the existence of obligatory force or of the voidability of a treaty at a given moment may be stated as follows : Neither party to a contract can make its binding effect dependent at his will upon condi- tions other than those contemplated at the moment when the contract was entered into; and, on the other hand, a contract ceases to be binding so soon as anything which formed an im- plied condition of its obligatory force at the time of its conclu- sion is essentially altered. If this be true, and it wall scarcely be contradicted, it is only necessary to determine under what implied conditions an international agreement is made. When these are found, the reasons for which a treaty may be de- at the end of two years from the signing of the preliminary or other articles of peace, which shall terminate the present war in which His Majesty is engaged, it is agreed that proper measures shall by concert be taken for bringing the subject of that article into amicable ti'eaty and discussion, so early before the expiration of the said term as that new arrangements on that head may by that time be perfected and ready to take place. But if it should unfortunately happen that His Majesty and the United States should not be able to agree on such new arrangements, in that case all the articles of this treaty, except the first ten, shall then cease and expire together." Treaty between United States and Great Britain, Nov. 19, 1794. § 79) TERMINATION OF TREATIES. 211 nounced or disregarded will also be found." ^° A treaty is also naturally voidable, though not necessarily void, if concluded in excess of powers of the negotiators, sub spe rati ; if concluded because of danger of personal violence to the negotiators, or through fraud; if its terms are inconsistent with the general principles of international law ; if the performance of the pro- visions of the treaty would destroy the state itself, or deprive it of its essential attributes ; or if the conditions under which the treaty is made become absolutely altered. The principle of rebus sic stantibus is held to be implied in all treaties, though in recent times it is clear that a change in conditions which would render a treaty voidable must be such as to be vital. A treaty may be annulled, or may come to an end, when vio- lated by a party to it, or when formally abrogated by one of the parties. ^^ The abrogation of a treaty by one party may not be acceptable to the other party and may be made the basis of claims. Treaties of commerce, alliance, navigation, etc., which relate exclusively to relations of peace, may be extinguished by the outbreak of war. Treaties which are of a permanent na- ture, such as treaties of boundary, etc., are considered as sus- pended during hostilities. In general, treaties made in con- templation of war may become operative upon the outbreak of hostilities, and can be annulled only by the method prescribed in the treaties themselves, or by a new treaty. The Spanish decree of April 23, 1898, declared that: "The state of war existing between Spain and the United States terminates the treaty of peace and friendship of the 27th October, 1795, the protocol of the 12th January, 1877, and all other agreements, compacts, and conventions that have been in force up to the present between the two countries." The United States de- clined to consider treaty provisions made with reference to the existence of war "as abrogated by war." ^^ The claim of the United States that all treaty stipulations were not abrogated 3 Hall, Int. Law (5th Ed.) p. 3.51. 31 "It has been adjudged that Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this counti-y and another country." La Abra Silver Mining Co. v. United States, 175 U. S. 423, 20 Sup. Ct. 16S, 44 L. Ed. 223. 3 2 Foreign Relations U. S., 1S98, p. 972. 212 TREATIES AND OTHER AGREEMENTS. (Cb. 7 seems to be sustained in article XXIX of the Treaty of Friend- ship and General Relations of July 3, 1902, which state that: "All treaties, agreements, conventions and contracts between the United States and Spain prior to the Treaty of Paris shall be expressly abrogated and annulled, with the exception of the treaty signed the seventeenth of February, 1834, between the two countries, for the settlement of claims between the United States of America and the government of His Catholic Majes- ty, which is continued in force by the present convention." Among writers upon international law there is much differ- ence of opinion in regard to the effect of war upon treaties be- tween the belligerents. As certain relations between the bel- ligerents are suspended, the treaty stipulations in accord with which such relations were maintained must necessarily cease to be operative. Better opinion now seems to hold that treaty stipulations which do not relate in any way to the war are merely suspended during war, and again become operative at its close, or so soon thereafter as is practicable. The copy- right convention between the United States and Spain of July 10. 1S95, was regarded as suspended during the war of 189S, and as revived by the ratification of peace, April 11, 1899. CONTINUATION OF TREATIES. 80. Treaties may be continued in efPect by renewal, by recon- firmation, or other-roise, w^hen tbere is ample evidence that tbe parties intend that the treaty shall remain operative. Certain treaties and conventions are continued in accord with their own stipulations, unless denounced ; others ter- minate at a specified time, unless renewed. Treaties of the first class may thus be renewed without action, while treaties of the second class require action for renewal. Treaties and conventions of this second class frequently relate to matters of temporary nature, as the adjustment of claims, boundaries, disputes, etc., or the establishment of modi vivendi. Treaties terminated or suspended by war are usually renewed in a formal manner. Treaties are sometimes regarded as tacitly § 80) CONTINUATION OF TREATIES. 213 renewed, when the parties continue to observe their provisions, even after the time of expiration. Sometimes the provisions of a previous treaty are recon- firmed, as in the treaty between France and Spain, October 1, 1800, relating to the recession of Louisiana : "The obHgations contained in the present treaty in nothing annul those which are expressed in the treaty of alliance signed at St. Ildefonso, on the 2d Fructidor, year 4 (18th of August, 1796) ; on the contrary, they unite with new ties the interests of the two pow- ers, and confirm the stipulations of the treaty of alliance in all the cases to which they can be applied." Treaties and conventions may be tacitly considered as bind- ing, though they may have expired by limitation. The Hague Declaration as to the Launching of Projectiles and Explosives from Balloons expired July 39, 1904, during the Russo-Japa- nese war. Both Russia and Japan continued to observe the treaty throughout the war. Part IV INTERNATIONAL DIFFERENCES WiLS.lNX.U (215)» § 81) AMICABLE SETTLEMENT OF DIFFERENCES. 217 CHAPTER VIII. AMICABLE MEANS OF SETTLEMENT OF INTERNATIONAL DIFFERENCES. 81. Nature of International Differences. 82. Negotiation. 83. Good Offices and Mediation. 84. Commissions of Inquiry. 85. Arbitration, 86. Award. NATURE OF INTERNATIONAI, DIFFERENCES. 81. In general, international differences are either legal or political in nature. Legal differences between states may arise in consequence of views as to the construction of treaties or other agreements, or through conflicts involving principles of international law. Political differences usually involve conflict of public inter- ests or national policy. It is not in practice always possible to separate the legal and political, and it is usually possible to find a legal ground upon which to advance a political claim, if a cause for disagreement is sought by a state. In general, however, legal differences are more easily settled by amicable or judicial methods, while political differences often lead to some use of force. The amicable means of settlement of international dift'er- ences include negotiation, good oflices, commissions of inquiry, arbitration, and congresses and conferences. The non-am- icable means of redress short of war include breaking of diplo- matic relations, retorsion, reprisal, of which embargo is a form, non-intercourse, display or restricted use of force, in- cluding pacific blockade, and intervention. •-'18 AMICABLE SETTLEMENT OF DIFFERENCES. (Ch. 8 NEGOTIATION. 82. Negotiation through, the regular interstate agents is the customary method of settling differences bet^veen states. The procedure in case of negotiation is ordinarily as fol- lows : One state presents its claim ; the other replies ; if there is then disagreement, a conference or an exchange of com- munications ensues, and agreement is reached. In some in- stances claims, particularly of a financial nature, have been the subject of diplomatic negotiation for many years. The "Mora claim," made by the United States against Spain in behalf of a naturalized citizen whose property had been confiscated in Havana in 1870, was the subject of much negotiation for twen- ty-five years, until settled by the payment of $1,500,000.^ GOOD OFFICES AND MEDIATION. 83. The part of a state tendering good offices or mediation "consists in reconciling the opposing claims and ap- peasing the feelings of resentment Tvhich may have arisen betv/een the states at variance." 2 At the Second Hague Conference in 1907, the states of the world agreed, by a convention generally signed, "in case of serious disagreement or dispute, before an appeal to arms, * * * to have recourse so far as circumstances allow to good offices or mediation of one or more friendly powers." ^ Third powers have the right to offer mediation, and it shall be re- garded as a friendly act. The functions of a mediator end when either party declines mediation, and mediation is in all cases in the nature of advice, and the parties at difference are not bound to accept it or to suspend preparations for or opera- tions of war through the acceptance of mediation.* 1 Foreign Relations U. S. 1895, p. 1171. 2 Ck)nvention for Pacific Settlement of International Disputes, The Hague, 1907, art. 4, Appendix, p. 520. 8 Id. art. 2, Appendix, p. 520. * Id. title II, contains general provisions in regard to good offices and mediation. § 83) GOOD OFFICES AND MEDIATION. 219 Since 1850 mediation or good offices have been tendered by the United States in many instances of disputes between South American states and the proffer has often been accepted. Simi- larly states have tendered good offices in most cases where the relations of states have become seriously strained in recent years. On June 8, 1905, President Roosevelt tendered his good ■offices to the Russian and Japanese governments with a view to terminating the war between those two states. Identical dis- patches were sent to the two governments as follows : "The President feels that the time has come when, in the in- terest of all mankind, he must endeavor to see if it is not pos- sible to bring to an end the terrible and lamentable conflict now being waged. With both Russia and Japan the United States has inherited ties of friendship and good will. It hopes for the prosperity and welfare of each, and it feels that the prog- ress of the world is set back by the war between these two great nations. The President accordingly urges the Russian and Japanese governments, not only for their own sakes, but in the interest of the whole civilized world, to open direct ne- gotiations for peace with one another. The President suggests that these peace negotiations be conducted directly and ex- clusively between the belligerents — in other words, that there may be a meeting of Russian and Japanese plenipotentiaries or delegates without any intermediary, in order to see if it is not possible for these representatives of the two powers to agree to terms of peace. The President earnestly asks that the Rus- sian government do now agree to such meeting, and is asking the Japanese government likewise to agree. While the Presi- dent does not feel that any intermediary should be called in in respect to the peace negotiations themselves, he is entirely willing to do what he properly can, if the two powers con- cerned feel that his services will be of aid in arranging the preliminaries as to the time and place of meeting; but if even these preliminaries can be arranged directly between the two powers, or in any other way, the President will be glad, as his sole purpose is to bring about a meeting which the whole civil- ized world will pray may result in peace." The good offices of the President were accepted, and the 220 AMICABLE SETTLEMENT OF DIFFERENCES. (Ch. 8 representatives of Russia and Japan met in the United States and concluded a treaty of peace at Portsmouth, N. H., Septem- ber 5, 1905. COMMISSIONS OF INQUIRY. 84. The Hagne Conference of 1899 provided for commissions of inquiry to facilitate the solution of disputes by elu- cidating the facts by means of an impartial and con- scientious investigation in cases of diiferences of an in- ternational nature involving neither honor nor vital interests and arising from, difference of opinion on points of fact. The provisions of the First Hague Conference were elab- orated by the Second Hague Conference, and the procedure was more fully prescribed. The six articles of the First Hague Convention of 1899 were superseded by twenty-eight in the Second Hague Convention of 1907.^ The commission of in- quiry is constituted by agreement of the parties at variance ; but its report is to be limited to a statement of facts and is not in the character of an award. The International Commission of Inquiry into the North Sea Incident (Dogger Bank Affair), constituted by agreement be- tween Great Britain and Russia, was made up of five naval officers, one each from the British, Russian, French, and Amer- ican navies, and a fifth chosen by the four. By the declara- tion of reference, signed at St. Petersburg, November 25, 190-i^ "the Commission shall inquire into and report on all the cir- cumstances relative to the North Sea incident, and particu- larly on the question as to where the responsibility lies, and the degree of blame attaching to the subjects of the two high con- tracting parties, or to the subjects of other countries in the event of their responsibility being established by the inquiry."' The Commission met in Paris on January 9, 1905, and rendered its report February 25, 1905. The Commission inquired into the location of responsibility and degree of blame in the firing by the Russian fleet upon the British trawlers in the North Sea. In article XI of the report "the majority of the commis- sioners express the opinion on this subject that the responsibil- 6 Id. title III. § 85) ARBITRATION. 221 ity for this action and the results of the fire to which the fish- ing- fleet was exposed are to be attributed to Admiral Rojdest- vensky." The North Sea incident was closed by the payment of £65,000 by Russia to Great Britain on March 9, 1905, as indemnity and compensation to the British fishermen.® Thus at a period of strained international relations the value of this provision for a commission of inquiry was established. ARBITRATION. 85. "International arbitration has for its object tbe settle- ment of disputes between states by judges of their ojviL choice and on the basis of respect for la^xr. "Recourse to arbitration implies an engagement to submit in good faith to the awrard." ' Historical. (a) The Greeks seem to have been accustomed to the idea of arbitration in cases relating to commerce, boundaries, and other territorial questions. Rome preferred to act as arbitrator among subject peoples. With the growth of the power of the church in the Middle Ages, the high church officials were often called upon to act as arbitrators ; but from the fourteenth to the nineteenth century arbitrations became less frequent, and the idea had little place in the political thinking of the days of Napoleon. Among the Greeks the decision of the arbitrators carried weight, sometimes because coming from the Amphictyonic Council, sometimes because rendered by a tribunal upon which the disputants had agreed. The decision by Rome carried weight, because Rome possessed the power to enforce her de- cision. The decision by an authority of the church of the Mid- dle Ages carried the weight of the authority which claimed to be highest in the world, and the dread of excommunication often deterred a dissatisfied party from questioning the award. In the centuries following the Middle Ages, with the growth of the idea of the equality and sovereignty of states, the idea 6 See Foreign Relations U. S. 1004, pp. 342, 796; Id. 19.05, p. 473; British Parliamentary Papers, Russia No. 2 (1905) ; Id. No. 3 a905). 7 Convention for Pacific Settlement of International Disputes, The H-ague, 1907, art. XXXVII, Appendix, p. 524. 222 AMICABLE SETTLEMENT OK DIFEEUENCES. (Cll. 8 of arbitration among states naturally received little considera- tion, and those who proposed it were long regarded as the- orists. In the nineteenth century the resort to arbitration as a means of settling international differences seems at first to have been a matter of convenience or of expediency. Gradually the val- ue of such a practice seems to have been recognized. Dur- ing the nineteenth century provision for arbitration was more and more frequent in treaty stipulation. In the treaty of Guad- alupe Hidalgo of 1848 between the United States and Mexico an article contains an agreement for arbitration "with respect to the interpretation of any stipulation of this treaty, or with respect to any other particular concerning the political or com- mercial relations of the two nations." ^ With the increasing cost of war and the greater risks, it has secured support as a policy, and it was formally proposed as a subject for discussion for the First Peace Conference at The Hague, 1899, "with the object of preventing armed conflicts between nations." The results of this discussion of the subject of international arbi- tration at The Hague in 1899 have been far reaching and the progress of the movement for international arbitration has been very great. 8 "Article XXI. If unhappily any disagreement should hereafter arise between the governments of the two republics, whether with respect to the interpretation of any stipulation in this treaty, or with respect to any other particular concerning the political or commercial relations of the two nations, the said governments, in the name of those nations, do promise to each other, that they will endeavor, in the most sincere and earnest manner, to settle the differences so aris- ing, and to preserve the state of peace and friendship in which the two countries are now placing themselves ; using, for this end, mutual representations and pacific negotiations. And if. by these means, they should not be enabled to come to an agreement, a resort shall not, on this accoimt, be had to reprisals, aggi-ession or hostility of any kind, by the one republic against the other, until the government of that which deems itself aggrieved shall have maturely considered, in the spirit of peace and good neighborship, whether it would not be better that such difference should be settled by the arbitration of commissioners appointed on each side, or by that of a friendly nation. And should such course be proposed by either part>', it shall be ac- ceded to by the other, unless deemed by it altogether incompatible with the nature of the difference, or the circumstances of the case." § 85) ARBITRATION. 223 Convention of 1907. (b) The forty-three articles especially relating to interna- tional arbitration in the Hague Convention for the Pacific Set- tlement of International Disputes of 1899 were elaborated and expanded to fifty-four in the corresponding Hague Convention of 1907. The aim of this convention, which replaces that of 1899, is to make arbitration as widely applicable as possible. It is recognized by this Convention that arbitration is par- ticularly applicable to international questions of a legal nature, especially to differences arising in regard to the interpretation of treaties. Its scope is made comprehensive, and powers may by special agreements make arbitration compulsory for any or all cases. A Permanent Court to sit at The Hague, competent for all cases, is established. Each contracting power is entitled to se- lect four persons "of known competency in questions of inter- national law" as members of the court. Two or more powers may select "in common one or more members." Contracting powers wishing to have recourse to the court may agree upon the arbitrators, or, failing this, each party may appoint two arbitrators, and these may together agree upon an umpire. If they fail to agree, the two powers may ask a third power to name an umpire, or each power may select a power to repre- sent it in the choice of an umpire. If within two months these powers cannot agree, then each power names two candidates, and which shall serve as umpire is determined by lot. The members of the tribunal thus established enjoy diplo- matic immunities. The procedure, unless other rules have been agreed upon, is to clearly define the controversy and other necessary details in a "compromis." This compromis, if made by mutual agree- ment, is signed by the parties. If the parties wish, the Perma- nent Court may settle the compromis. If an agreement upon a compromis cannot be reached by the parties, one of them may request the court to formulate the compromis in cases provided for by treaty. The procedure generally consists of pleadings, or the presentation of the cases, counter cases, and replies, and of discussions, or the oral development of the arguments be- 22i AMICABLE SETTLEMENT OF DIFFERENCES. (Ch. 8 fore the tribunal. Provision is made for the utmost freedom in obtaining the most adequate information upon the case. "The tribunal considers its decisions in private and the pro- ceedings remain secret." A majority decides. Arbitration by Summary Procedure. (c) A new provision is made in the Convention of 1907 for arbitration by summary procedure. Under this system, in dis- putes admitting this method, each disputant chooses one arbitra- tor, these agree upon an umpire, or, failing to agree, each party names two candidates, not being members appointed by them or their nationals, and from these an umpire is chosen by lot. Each party is represented before the tribunal by an agent. Proceedings are in writing. Each party is entitled to ask ques- tions and to call experts. The tribunal may demand oral ex- planations from agents, experts, or witnesses. The umpire presides over the tribunal, and decision is by majority of votes.® By article XL (article XIX of the Convention of 1899) pro- vision is made for special treaties between states extending compulsory arbitration to all cases which they may consider possible. The United States has concluded a large number of treaties since 1907, including the following articles: "Article I. Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two contracting parties, and which it may not have been possi- ble to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Conven- tion of July 29, 1899, provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two contracting states, and do not concern the interests of third parties. "Article II. In each individual case the high contracting par- ties, before appealing to the Permanent Court of Arbitration, shall conclude special agreement defining clearly the matter in dispute, the scope of the powers of the arbitrators, and the periods to be fixed for the formation of the arbitral tribunal, 9 Convention for Pacific Settlement of International Disputes, The Hague, 1907, title IV, §§ XXXVII-XO. § 85) ARBITRATION. 225 and the several stages of the procedure. It is understood that on the part of the United States such special agreements will be made by the President of the United States by and with the advice and consent of the Senate thereof." Grotius in 1635 favored compulsory arbitration, and set forth various arguments, particularly emphasizing the reli- gious. He said : "And both for this and for other reasons it would be useful, and in fact almost necessary, that congresses of the Christian powers should be held where controversies arising among some of them may be adjusted by those who have no interest in the controversy and where measures may be taken to compel the parties to accept a peaceful settlement on equitable terms." ^° Many plans were proposed in the cen- turies after Grotius, but the working out of the system of compulsory arbitration in detail seems to be left for the twentieth century. Court of Arbitral Justice. (d) At the Second Hague Convention of 1907 it was pro- posed to establish a Court of Arbitral Justice, which should be "competent to deal with all cases submitted to it, in virtue ei- ther of a general undertaking to have recourse to arbitration or of a special agreement." It was the plan to constitute an international court whose judges should represent the differ- ent legal systems of the world, a court which should be con- tinuously in session, free and easy of access, and essentially judicial in nature. It was hoped that its decisions would be based on legal grounds, rather than upon the mixed motives which generally influence decisions by arbitrations. It was not found possible to agree upon the method of appointment of judges. Secretary Knox, in an identic note of October 18, 1909, suggested to the powers the propriety of investing the International Prize Court with the functions of a court of arbitral justice, maintaining that: "The proposal of the United States does not involve the modification either of the letter or spirit of the draft conven- tion, nor would it require a change in wording of any of its articles. It would, however, secure the establishment of the 10 Grotius, De Jure Belli ac Pacis, lib. II, cap. XXIII, VIII, 4. Wils.Int.L. — 15 22G AMKWBLE SETTI.KMi:XT OF DIFFIDENCES (Cll. 8 Court of Arbitral Justice as a chamber of the world's first in- ternational judiciary, and thus complete through diplomatic channels the work of the Second Hague Conference by giving full eftect to its first recommendation. "In proposing this solution of the difficulty the United States is influenced by daily practice and procedure in its national courts of justice, where one and the same judge administers law and equity, admiralty and prize, which, under its system of procedure, are different systems of law." ^^ The establishment of this court, which aims to insure "con- tinuity in the jurisprudence of arbitration," may be a step to- ward the establishment of an international court of justice, the decisions of which would be judicial, rather than arbitral. Conclusion. (e) The resort to arbitration as a means of settling interna- tional differences has become frequent in recent years. La Fontaine enumerates 177 cases from 1794 to the end of 1900. The decisions in these cases, prior to the adoption of the Hague Conventions, were almost invariably accepted.^^ With tlw growing sentiment favorable to arbitration, resort to this method of settling disputes is becoming more frequent, and it may be safe to say that with the present provisions for an im- partial court the decisions will require no further sanction to render them at once effective. Since the United States and. Mexico presented the first case, that of the Pius Fund, to the Hague Court in 1902, doubts as to the future of the court, which had prevailed in some quarters, have been dispelled, and cases of the utmost gravity have been submitted to its arbitra- ment.^* 114 A. J. I. Doc. p. Ill; Draft Convention of Court of Arbitral Justice, Appendix, p. 568. 12 IV Kevue de Droit Int. et de Legislation ComparSe, 2d Series, p. 349 et seq. 1 3 For cases and history of arbitration, see Moore, History and Digest of ttie International Arbitrations to Whicli the United States has been a Party, 6 vols. § 86) AllBITRATION. 227 SAME— A^VARD. 86. Tlie Hague Convention of 1907 provides that "the award, duly pronounced and notified to agents of the pai'ties, settles the dispute definitively and •without appeal," unless the parties reserve in the "compromis" the right w^ithin a fixed time to demand revision of the aw^ard.i^ There were former!}^ many opinions as to the reasons which would justify the setting aside of an arbitral award. The Hague Convention on the Pacific Settlement of International Disputes, 1907, tries to make the award binding. The award is to be signed by the president and registrar of the tribunal, to give the reasons upon which it is based, and to be "read out" to the agents and counsel of the parties. In case of dispute upon the terms of the award, it is to be referred to the tribunal which pronounced it. A "compromis," agreed upon by the parties, may provide for revision of the decision on the ground of new evidence. The award is not necessarily binding on third parties. The first award rendered by the Permanent Court of Arbi- tration at The Hague was in regard to the Pius Fund of the Californias. The case was submitted to the tribunal by the United States and Mexico under the protocol of May 22, 1902. The award pronouncing that Mexico should pay to the United States "the sum of $1,420,687.67 Mexican" and "the annuity of $43,050.99 Mexican" was given on October 22, 1902. ^'^ Awards made by arbitrators after the parties have agreed to- abide by the decision are final, ^"^ provided the decision is not based on fraud. ^^ The award made by the umpire in the mixed commission under the convention of July 4, 1868,. between the United States and Mexico in favor of Benjamin Weil, a naturalized citizen of the United States, for cot- ton seized by Mexican troops, and for seizure of property 14 Convention for the Pacific Settlement of International Disputes^ Tbe Hague, 1907, articles LXXX-LXXXV, Appendix, p. 531. 15 The Pius Fund of the Californias, Foreign Relations U. S. 1902,. Appendix II. 10 La Xinfa (1S9G) 21 C. C. A. 434, 75 Fed. 513. 17 2 Moore, International Arbitrations, 1659. 228 AMICABLE SETTLEMENT OF DIFFERENCES. (Ch. 8 of La Abra Silver Mining- Company was considered by Mexico to be open to suspicion of perjury and fraud. Mex- ico paid installments under the award. The United States government withheld certain of these payments from distribu- tion to the claimants. One of the claimants instituted a suit to compel distribution of the installments. The Supreme Court said : "The presentation by a citizen of a fraudu- lent claim or false testimony for reference to the commis- sion was an imposition on his own government; and, if that government afterwards discovered that it had in this way been made an instrument of wrong towards a friendly power, it would be not only its right, but its duty, to repudiate the act and make reparation as far as possible for the consequences of its neglect, if any there had been. International arbitration must always proceed on the highest principles of national hon- or and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the government from which they come, and it is not to be presumed that any government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding." ^^ This award, after further investiga- tion and litigation, was found to be based upon fraudulent evidence,^ ^ and the United States not only returned to Mexico the undistributed balances of the installments withheld,'" but Congress in 1902 appropriated $412,570.70 to repay Mexico for the installments already received and distributed by the United States.^^ An award made without due regard to the limitations set forth in the agreement between the parties may be set aside on the ground that an arbitrator cannot bind the governments concerned in respect to matters not submitted for decision.^^ 18 Freliiighuysen v. Key, 110 U. S. 63, 3 Sup. Ct. 462, 28 L. Ed. 71. 19 La Abra Silver Mining Co. v. United States, 175 U. S. 423, 2i) Sup. Ct. 168, 44 L. Ed. 223. 20 Foreign Relations U. S. 1900, pp. 781-784. 2132 Stat. 5. 2 2 North American Commercial Co. v. United States, 171 U. S. 110, 18 Sup. Ct. 817, 43 L. Ed. 98. § 88) NON-AMICABLE REDRESS SHORT OF WAR. 229 CHAPTER IX. NON-AMICABLE MEASURES OF REDRESS SHORT OF WAR. 87. Non-Amicable Measures of Redress, 88. Breaking of Diplomatic Relations. 89. Retorsion. 90. Reprisals. 91. Embargo. 92. Non-Intercourse. 93. Display or Restricted Use of Force. 94. Pacific Blockade. NON-AMICABLE MEASURES OF REDRESS SHORT OF W^AR. 87. The measures, short of war, usually resorted to for se- curing redress, are: (a) Breaking of diplomatic relations. (b) Retorsion. (c) Reprisal. (d) Embargo. (e) Non-intercourse. (f) Display or restricted use of force. (g) Pacific blockade. SAME— BREAKING OF DIPLOMATIC RELATIONS. 88. The breaking of diplomatic relations is an evidence of strained relations betiveen states, and is often the step preceding \irar. When one state has a difference with another, a common form of pubHc protest is by severance of diplomatic relations. This may be by the delivery of his passport to the agent of the state against which the grievance lies, or by the recall or departure of the diplomatic agent of the injured state from the offending state. In the claims lodged by one state against an- other it is not always easy to distinguish the offending state from the offender; but the rupture of diplomatic relations by either party is an evidence that the relations between the states 230 NON-AMICABLE KEDKESS SHORT OF WAR. (Ch. 9 are no longer entirely friendly, and that the party breaking these relations desires to emphasize the fact that it considers its rights infringed, denied, or imperiled. On April 20, 1898, the Spanish Minister to the United States sent the following communication to the Secretary of State : "The resolution adopted by the Congress of the United States of America, and approved to-day by the President, is of such a nature that my continuance in Washington becomes im- possible and obliges me to request of you the delivery of my passports. "The protection of Spanish interests will be intrusted to the French Ambassador and to the Austro-Hungarian Minister." ^ On February 6, 1904, the Japanese Minister addressed a note to the Russian Minister of Foreign Afifairs, which, after giv- ing a resume of the Japanese contentions, states that "the Im- perial Government have no other alternative than to terminate present futile negotiations. In adopting that course the Im- perial Government reserve to themselves the right to take such independent action as they may deem best to consolidate and defend their menaced position, as well as to protect their estab- lished rights and legitimate interests." ^ After considerable negotiation in regard to the killing of certain Italians in New Orleans in 1891, the Italian government considered that the United States was not willing to grant sufficient satisfaction. Baron Fava, the Italian Minister to the United States, in a communication to the Secretary of State March 31, 1891, said: "Under these circumstances, the gov- ernment of His Majesty, considering that the legitimate action of the King's minister at Washington becomes inefficacious, has ordered me to take my departure on leave." ^ SAME-RETORSION. 89. Retorsion is a species of retaliation in kind. It usually consists in treating the subjects of the state g^iving cause for retaliation in a manner analogous, if not identical, w^itli that accorded to the subjects of the state resorting to retorsion. 1 Foreign Relations U. S. 1898, p. 765. s id. 1891, p. 675. 2 Id. 1904, p. 412, full text of note. § 90) REPRISALS. 231 Certain acts which may be entirely within the legal compe- tence of a state may place the subjects of another state under disabilities.* In such cases protest is sometimes made by the other state by resort to identical or similar measures. The act of a state may be unfriendly, discourteous, or an unfair dis- crimination. While an act at which retorsion is aimed may not be illegal, yet it may be such as to affect a state or its citizens in such manner as to require remedy. Just how far retorsion will be applied will be a matter of policy rather than law. A state may restrict the action or privileges of certain for- eigners sojourning or entering within its borders. The state whose nationals have been restrained may place similar re- strictions on the action of the nationals of the first state, who in turn come within its borders. A state may place restrictions upon commerce and trade, which may be met with correspond- ing restrictions by other states. How far such restrictions may go is not a matter of law, but of political policy. The use of various means of retorsion has in recent years become com- mon, particularly in commercial relations through tariffs or discriminating duties. When heavy duties have been placed on articles which are especially produced by one state, that state may resort to imposition of special duties or special restric- tions upon articles produced by the state first levying heavy duties. This may lead the first state to impose still further restrictions, and the commercial relations between the two states may be interrupted or practically at an end. Since the influence of those engaged in commerce and trade has in modern times had much weight with those in political power, retorsion, or the fear of retorsion, has frequently led to the repeal of objectionable legislation or prevented action which, while legal according to domestic law, would be unfair, would be discourteous, or would work undue hardship, SAME— REPRISALS. 90. Reprisals consist in tlie adoption of measures of retalia- tion in order to obtain redress for action committed in violation of international right. * Heilborn, Das System des Volkerrechts, 352. 232 NON-AMICABLE REDRESS SHORT OF WAR. (Ch. 9 Retorsion is usually resorted to as a matter of political ex- pediency, when by acts which may not be internationally illegal a state has conducted itself in an unfair manner toward an- other state or its citizens. Reprisals, on the other hand, at- tempt to secure remedy in case of international delinquency or injustice either toward a state or its citizens. Acts of re- prisal may be of the same character as acts of war ; but, as fney are aimed to secure redress for a given act, they are not necessarily regarded as hostile. Reprisals may involve the seizure and confiscation of private property, and in extreme cases personal restraint, or compulsion commensurate with the injury done and sufficient to obtain reparation. Suspension of judicial, commercial, or other rights has been common. In early days letters of marque and reprisal were issued to private persons, in order that they might avenge supposed wrongs. The modern tendency has been to restrict the measures of re- prisal more to the field of commercial intercourse. The range of action, however, still varies. In 1887 the United States Congress passed an act empower- ing the President, in case the rights of United States fishermen were denied or abridged in Canadian waters, to deny Canadian vessels entrance to the waters of the United States, and also to deny entry to any or all Canadian products.^ France in 1901 seized the island of Mitylene in order to secure the recognition by Turkey of certain financial and other claims. In December, 1908, the Netherlands ship of war Gelderland seized the Venezuelan coast guard ship Alix ofif the Venezuelan coast and took her to the near by Dutch port of Willemstad. SAME— EMBARGO. 91. Embargo is a special form of reprisal, and consists in gen- eral in tlie sequestration of the public or private prop- erty of an offending state. It may sometimes be ap- plied by a state to its o-nrn vessels. Embargo was formerly a common method of redress. If war followed before the embargo was raised, the detained 6 24 Stat. 475 (U. S. Comp. St. 1901, p. 2785). § 93) DISPLAY OK RESTRICTED USE OF FORCE, 233 ships of the offending state were seized as prize. Otherwise they were released when the embargo was raised. The United States resorted to this means of redress in 1794, 1797, 1807, 1808, and 1812. An embargo, sometimes called civil or pacific, may by domestic law regulate the movements of the vessels belonging to a state, in order to prevent the seizure by an- other state, or in order to put other pressure upon an offending state. With the growth of international commerce, it has now become common to allow innocent vessels of foreign states, even of enemy states, as large a degree of freedom as possi- ble, even a certain number of "days of grace" for loadmg and departure on the outbreak of war.« SAME— NON-INTERCOURSE. 92. Non^intercourse laws may, for the purpose of placing stress upon a state wliicli is regarded as an ofPender, prohibit trade or other relations with its nationals. Non-intercourse acts have often been associated with em- bargo acts, but are usually more general in character. The United States passed several non-intercourse acts in the late years of the eighteenth and in the early nineteenth century. Commercial intercourse with France was suspended by an act of Congress of Jwne 13, 1798. Other acts of similar nature followed. The non-intercourse act of March 1, 1809, aimed at Great Britain, was broad in its provisions, and its enforce- ment created much friction. The irritation caused by embargo and non-intercourse acts is so great that these are now com- monly regarded as impolitic methods of obtaining redress. DISPLAY OR RESTRICTED USE OF FORCE. 93 The display of force as a form of constraint to insure ob- servance of rights is sometimes resorted to where the course of justice is uncertain or the political condi- tions are disturbed. The force may be used to a lim- ited degree without resorting to war. 6 Post, p. 289. 234 NON-AMICABLE REDRESS SHORT OF WAR. (Ch. 9 The display of force carries with it the intimation that the state making; the display may use the force if its rights are not respected. In the report of the Secretary of State of the United States, December 19, 1895, in regard to disturbed con- ditions in the Turkish Empire it is said that: "The efforts of the minister have had the moral support of the presence of naval vessels of the United States on the Syrian and Adanan coasts from time to time as occasion required, and at the pres- ent time the San Francisco and A'larblehead are about to be joined by the Minneapolis, which has lately been ordered to the eastern waters of the Mediterranean." ^ In March, 1900, the diplomatic representatives in China, fearing a Boxer outbreak, asked their respective governments to make a naval demonstration in Chinese waters.^ A ship was detailed by the United States, according to telegram, "for independent protection of American citizens and interests in China." The display of force was not sufficient. The lega- tions at Pekin were besieged and cut off from communication. Forces of the various nations were dispatched to their rescue, though there was no war.^ In the award of the Venezuelan Arbitration in 1903, preferential treatment was given to the powers which had resorted to hostile measures to enforce their claims.^" In many cases the display of force is merely to emphasize the urgency of the demand. Its use should be simply to pre- serve rights or to secure those already possessed. When this end is attained, all measures of redress should terminate. In the case of the display of force in 1902 in order to enforce claims against Venezuela, the powers concerned felt it neces- sary to pass beyond the measures short of war to actual war, though the hostilities were confined to a single object. The range of redress may thus pass from the simple show of force to the border line of war, or to actual war. 7 Foreign Relations U. S. 1895, p. 1257. 8 Id. 1900, p. 102. 9 Id. 1900, p. 102 et seq. 10 Penfield's Report, Venezuelan Arbitration, 1903, p. 110. § 94) DISPLAY OR RESTRICTED USE OF FORCE. 235 SAME-PACIFIC BLOCKADE. tute a blockade, without technically destroying the pa- cific relations of the parties affected. Pacific blockade ordinarily takes the form of dosing by force of one or more ports of a country m "■'d" '» b"ng the country to terms. Strictly speakmg, blockade is a war meas ure and modern tendency has been in the direction of hmitmg blockade to the time of war. This measure of enforcing demands by one <>' •™;^ ™"°"^ was first resorted to in 182T, when France, Great Butam and Russia blockaded all the coasts of Greece »'« "=. J"rk,sh armies were encamped. The three powers .■"^'"'^'"^f *a this was a pacific measure; but ,t resulted m the battle of Navarino, and the destruction of the Turkish navy. The so-called "pacific blockades" «'f' ;^'>'=c,3. § 103) OBLIGATIONS OF BELLIGERENTS. 255 the prize is still within its jurisdiction, the means at its disposal to release the prize, with its officers and crew, and to intern the prize crew. "If the prize is not in the jurisdiction of the neutral power, the captor government, on the demand of that power, must lib- erate the prize, with its officers and crew. "Article IV. A prize court cannot be set up by a belligerent on neutral territory or on a vessel in neutral waters. "Article V. Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adver- saries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea." The Hague Convention of 1907 Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land provides that : "Article I. The territory of neutral powers is inviolable. "Article II. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the ter- ritory of a neutral power. "Article III. Belligerents are likewise forbidden to: "(a) Erect on the territory of a neutral power a wireless te- legraphy station or other apparatus for the purpose of com- municating with belligerent forces on land or sea ; "(b) Use any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes, and which has not been opened for the service of public messages. "Article IV. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral power to assist the belligerents." Formerly some of these acts were sometimes allowed. Later the burden of prevention of such acts was thrown upon the neutral. The present tendency is to throw the obligation of refraining from such acts upon the belligerent. J56 RIGHTS AND OBLIGATIONS DUUING WAR. (Cll. 12 NEUTRAL DUTY OF ABSTENTION. 104. In general, the neutral state is under obligation to re- frain from all acts wrhicli iwoiild involve direct or in- direct participation in the hostilities. Such acts include: (a) Furnishing military assistance. (b) State loans. While the belligerent is under oblig-ation to respect the neu- trality of states taking no part in the war, such states are un- der obligation to refrain from all acts which would involve participation. A state cannot be at peace, and at the same time be engaged in the war, or undertake acts in furtherance of the hostilities. (a) Formerly it was common, under treaty stipulations or other agreements, for a neutral to furnish troops or other military assistance to a belligerent. This practice has been disapproved by late writers, and has been abandoned in prac- tice and prohibited by the Hague Convention of 1907.^ Similiarly neutral states have at the outbreak of war sold arms or war material from the public supply. Sale of ord- nance stores was made by the United States in 1870 to per- sons who were said to be agents of the French government. A committee of the United States Senate held these sales to be lawful, saying: "If they had been such agents, and if that fact had been known to our government, or if, instead of sending agents, Louis Napoleon or Frederick William had personally appeared at the War Department to purchase arms, it would have been lawful for us to sell to either of them, in pursuance of a national policy adopted by us prior to the com- mencement of hostilities." ^ Such a position is now generally opposed, and the Hague Convention of 1907 declares that: "The supply, in any manner, directly, or indirectly, by a neu- tral power to a belligerent power, of war ships, ammunition, or war material of any kind whatever, is forbidden." * This 2 Hague Convention, 1907, Rights and Duties of Neutral Powers and Persons in Case of War on Land, art. v, Appendix, p. 546. 3 7 ]\roore, 97.'^>. * Rights and Duties of Neutral Powers in Naval War, art. VI, Ap- pendix. )). TtCA. § 104) NEUTRAL DUTY OF ABSTENTION. 257 does not imply any obligation of the neutral to interfere with the ordinary traffic of its nationals in war supplies. (b) The former practice of making or guaranteeing loans by neutral states in aid of belligerents is now generally re- garded as contrary to the principles of neutrality. The mak- ing of loans by private citizens is not prohibited.'' In 1904: the United States decided it undesirable to become remotely connected with an attempt to raise subscriptions through men enlisted in the navy.® By the Hague Convention of 1907 Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (article 18) it was declared that "supplies furnished or loans made to one of tlie belligerents, provided that the person who furnishes the supplies or who makes the loans lives neither in the territory of the other party nor in the ter- ritory occupied by him, and that the supplies do not come from 6 Appendix, art. XVIII, p. 548. 6 "Mr. Hay to Mr. Takahira: "Department of State, Washington, May 5, 1904. "My D<^ar Mr. Minister: In a communication dated the 14th ultimo the Secretary of the Navy inclosed a letter from the commandant of the Mare Island Navy Yard, transmitting copies of circulars received in an envelope from the consulate general of Japan at New York City, addressed 'to the Japanese Serving in the United States Navy,' soliciting subscriptions to Japanese bonds, contributions to the relief fund for Japanese soldiers and sailors, and in aid of the Red Cross Society of Japan. In view of the President's proclamation of neutral- ity, the Secretary of the Navy asked whether the circulars should be forwarded. "While Japanese in the United States doubtless have a right to subscribe to Japanese bonds, or to contribute to relief and Red Cross Society funds of Japan, yet it is undesirable that such contributions should be sought through the naval official channels of this govern- ment. "Pursuant to these views, the commandant of the Mare Island Navy Yard has been instructed not to forward to the Japanese serv- ing in the United States any circulars of the character above de- scribed. "I now bring the matter to your attention, with the request that 3'ou will inform the consular officers of Japan in the United States of the attitude of this government in the matter. "I am, etc., John Hay." Foreign Relations U. S. 1904, p. 427. TVlLS.lNT.L. — 17 258 RIGHTS AND OBLIGATIONS DURING WAR. (Ch. 12 these territories," should not be considered acts which would deprive the neutral person of the right to be treated as a neu- tral. NEUTRAL DUTY OF PREVENTION. 105. The neutral state is under obligation to use "the means at its disposal" to prevent certain acts, both on the part of its oxp^n nationals and on the part of the bel- ligerents. The degree of care which a neutral should use to prevent acts which would be in violation of neutrality cannot always be determined. The interpretation of the term "due diligence" has given rise to much difference of opinion.'^ The interpre- tation adopted in the award of the Geneva Convention of 1871 was that : "The due diligence referred to in the first and third of the said rules ought to be exercised by neutral governments in exact proportion to the risks to which either of the bellig- erents may be exposed from a failure to fulfil the obligations of neutrality on their part." A neutral state is under obligation not to allow its territory to be violated and not to allow it to be used for belligerent purposes, as by the establishing of a wireless telegraph station or the use of one established by the belligerent before the war for military purposes.^ "A neutral government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a power with which that government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war." " In general, a neutral state is bound to exercise due care, "such surveillance as the means at its disposal allow," to prevent the violation of 7 7 Moore, pp. 1053-1076. See, also, 1 Moore, Int. Arbitrations, 572 et seq. ; 4 Id., 4057 et seq. 8 Hague Convention, 1907, Rights and Duties of Neutral Powers and Persons in Case of War on Land, arts. I-III, Appendix, p. 546. » Id., Rights and Duties of Neutral Powers in Naval War, art. VIII, Appendix, p. 564. § 105) NEUTRAL DUTT OF PREVENTIOK. 259 its neutrality, and the use of such means of prevention cannot be considered an unfriendly act.^" There have been many claims made as to what acts a neu- tral was bound to prevent. Before the nineteenth century, the neutral state had not many rights, and it had not many duties. Belligerents made captures in neutral waters during the wars at the end of the eighteenth century. In 1814, dur- ing the war between the United States and Great Britain, the American privateer General Armstrong was after resistance captured by the British in the Portuguese harbor of Fayal. The United States made claims against Portugal. At length, in 1852, Louis Napoleon, as arbitrator, decided that, although the attack by the British constituted violation of neutrality, the American vessel should not have resisted, but should have demanded Portuguese protection.^ ^ The attacks by one belligerent upon the vessels of the other in Korean and Chinese harbors during the Russo-Japanese war have given rise to much discussion. Korea, like Manchu- ria, is generally regarded as having been through exceptional circumstances within the area of hostilities, though neither, strictly speaking, was under the sovereignty of the belligerent at the time of the war. The capture of the Russian destroyer Ryeshitelni by Japanese destroyers in the Chinese harbor of Chifu is not on the same basis. Japan had agreed to respect the neutrality of China. The accounts of the case vary ; but the general opinion seems to be that the action of the Japanese was in excess of proper belligerent rights, and that it consti- tuted a violation of neutrality.'^* 10 Id. arts. XV-XVI, Appendix, p. 565. 112 Moore, Int. Arbitrations, 1071. 12 The Japanese government issued a note justifying this action, which said: "The Japanese government has no intention of disre- garding the neutrality of China so long as it is respected by Russia; but they cannot consent that Russian vs^arships, as the result of bro- ken engagement and violated neutrality, shall, unchallenged, find In the harbors of China a safe refuge from capture or destruction." Takaha.shi says that: "He firmly believes that the peculiar disposition of Chefoo amply justified the conduct of the Japanese, where the naval operations made it entirely impossible to deal with the Ryeshi- telni in the same way as with the Mandjur at Shanghai, and that a belligerent is entitled by virtue of jus angaria to resort to a decisive 260 RIGHTS AND OBLIGATIONS DURING WAR. (Ch. 12 In 1862 the Alabama, which had been fitted out in England, left Liverpool, ready to receive warlike equipment, but not equipped. The Alabama received her equipment and crew for the most part outside of British jurisdiction. The case of the Florida, Georgia, and Shenandoah were similar. The spoliations upon commerce led the United States to claim that, in permitting these vessels to fit out in and depart from British jurisdiction. Great Britain had been remiss in the performance of neutral duties. The claims were at length under the Treaty of Washington submitted to an arbitration tribunal, which met at Geneva, December 15, 1871. The tri- bunal awarded to the United States $15,500,000. It was held that Great Britain had not displayed "due diligence" in pre- venting the fitting out of these vessels, and that "due dili- gence" would be in "exact proportion to the risks to which either of the belligerents may be exposed from failure to fulfill the obligations of neutrality on their part." This inter- pretation has been regarded as putting a heavy burden upon neutrals, and it seems that "due diligence" should be deter- mined from conditions as appearing to the neutral, rather than from risks to the belligerents, of which a neutral can scarcely be cognizant.^ ^ measure with such an impotent neutral state as Cliina." Int. Law Applied to tlie Russo-.Japanese War, p. 444. "Ttie occurrence reflects no credit upon a power whicli up to ttiat time bad been careful to keep its conduct correct according to tbe standards of international law."' Lawrence, War and Neutrality in the Far East (2d Ed.) p. 293. "So far as tbe Ryesbitelni incident is a question between tbe bel- ligerents, it is difficult, on anj' construction of tbe case of tbe Gen- eral Armstrong, to defend tbe action of Japan, wbicb was clearly tbe aggressor." Smith & Sibley, Int. Law during Russo-Japanese War, p. 122. "The Japanese government refused to offer any apology, disavowal, or restitution for tbis gross violation of Chinese neutrality, and it must be admitted that her conduct in this matter, althougb altogether exceptional, constitutes a blot upon a record wbicb was otherwise remarkably clean and spotless from tbe standpoint of international law." Hersbey, Int. Law and Diplomacy of tbe Russo-Japanese War, p. 263. 13 Cusbing, Treaty of Wasbiugton; Bernard, Neutrality of Great Britain during the American Civil War ; 1 Moore, Int. Arbitrations, 315. § 105) NEUTRAL DUTY OF PREVENTION. 261 There is a point where it may be difficult to distinguish between a legitimate business transaction on the part of in- dividuals and an undertaking which it is the duty of the neu- tral to prevent. The Hague Convention of 1907 holds the neutral under obligation to use "the means at its disposal" to prevent violations of its neutrality by its own nationals or by belligerents, which seems a reasonable basis for estimating neutral liability and is comparable with the standards of lia- bility under municipal law. A neutral state is not bound to prevent the export of or commerce in arms or war material in the ordinary course of trade. A neutral is, however, under obligations to prevent within neutral jurisdiction the recruiting or enlistment of men for belligerent service, though it is not responsible in case where persons go separately to enlist in the belligerent service. Formerly the passage of troops through belligerent territory was generally allowed. Later it was allowed under treaty stipulations. In 1815 the allied armies passed through the territory of Switzerland ; but Switzerland was practically un- der duress, and the same government refused a similar per- mission in 1870 to certain Alsatians. In the Franco-German war of 1870, the German government endeavored to induce the Belgian government to permit the passage through Belgian territory of wounded Prussians and French. This was refer- red to the French government, who replied that it would con- sider such act as a violation of neutrality. The permission was refused, and the Belgian government disarmed, and de- tained as prisoners, all soldiers of either army that were driven into their territory. By the Hague Convention of 1907, the "belligerents are forbidden to dispatch troops or convoys of either munitions of war or supplies across the territory of a neutral power," and the neutrals are called upon to prevent such action.^* In general, a neutral is under obligation "to employ the means at its disposal" to prevent (a) the commission of hos- tilities within its jurisdiction; (b) the using of its territory as 14 Hague Convention, 1907, Rights and Duties of Neutral Powers and Persons in case of War on Land, arts. II-V, Appendix, p. 546. 262 RIGHTS AND OBLIGATIONS DUIIING WAR. (Cll. 12 a base ; (c) the fitting- out of hostile expeditions within its jurisdiction ; and (d) the equipping- of vessels for such ex- peditions. NEUTRAL OBIilGATION OF TOLERATION. 106. Tlie neutral state is under obligation to tolerate in time of war interference Tvhich Tirould not be allowed in time of peace. Because of the mere existence of war, which is itself re- garded as legitimate, a neutral state is under obligation to tolerate certain acts by the states engaged in war which in time of peace would not be allowed. The belligerent claims the right to put his opponent beyond the power of resistance, and in the prosecution of this end claims the right to prevent au}^ action by neutrals which would hinder the attainment of his object, either by making it possible for his opponent to resist longer or more effectively. Such acts of interference as the neutral tolerates are commonly classed under the fol- lowing heads : Visit and Search of Neutral Private Vessels. (a) The form of interference which is most common is that of visit and search of neutral private vessels on the high seas or within belligerent jurisdiction. In time of peace a private vessel upon the high seas would be under the jurisdiction of the state whose flag it is entitled to carry. In time of war the belligerents may investigate, in order to learn what the relation of the vessel may be to the war. Contraband. (b) Certain goods, which in time of peace are articles which a merchant vessel may carry freely, may from their usefulness in war be liable to seizure. Blockade. (c) Ports open to commerce in time of peace may for mili- tary ends be closed in time of war. Unneutral Service. (d) Acts which are allowed in time of peace may become liable to penalty if performed in time of war. § 107) NEUTRAL DUTY OF REGULATION. 263 Exercise of Military Authority. (e) The exercise of military authority over neutral persons and property may be in the belligerent's own territory, or in the time of military occupation in the territory of his opponent, or it may be upon the high seas. NEUTRAIi DUTY OF REGUIiATION. 107. A neutral state may during \5rar regulate tlie conduct of persons subject to its jurisdiction and the conduct of belligerents within its jurisdiction. Neutrality laws usually prescribe in detail the course of con- duct which a neutral state proposes to require from those within its jurisdiction during war. These laws are municipal in character, but become obligatory in an international sense when made part of a public neutrality proclamation. Such laws are quite full, in the United States usually called the "Neutrality Act," ^^ and in Great Britain usually called the "Foreign Enlistment Act." ^® Such laws usually prohibit certain acts under penalty, to be inflicted by domestic au- thority, and withdraw protection in case force is used by the belligerent to prevent certain actions. ^^ 15 Rev. St. §§ 52S1-5291 (U. S. Comp. St. 1901, pp. 3599-3602). 16 St. 33 & 34 Vict. c. 90. 17 "Every person, who, witliiu the territory or jurisdiction of the United States, begins or sets on foot, or provides, or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor and shall be fined not exceeding three thousand dollars and impris- oned not more than three years." Rev. St. § 52S6 (U. S. Comp. St. 1901, p. 3601). The British Foreign Enlistment Act of 1870 was passed in pursu- ance of the report of a royal commission appointed for that purpose. Section 1 defines and punishes by fine and imprisonment illegal enlistment. Section 2 refers to military or naval expeditions. Section 3 prohibits the augmentation without license of the war- lilje force of any ship, etc. Section 5: "Any person, who, within Her Majesty's dominions, and without the license of Her Majesty, (1) builds, agrees to build or 264 RIGHTS AND OBLIGATIONS DURING WAR. (Cll. 12 Neutrality proclamations generally contain the regulations which the neutral state proposes to enforce during war. Some- times these regard both the relations of those subject to the jurisdiction of the neutral state and bclli.c^erents, who would ordinarily be granted exemption from its jurisdiction. These proclamations usually prescribe the conditions under which vessels may enter, sojourn, coal, etc., within neutral jurisdic- tion, and regulate such other matters as the state may deem expedient. The Hague Conventions of 1907 regard it as "desirable that the powers should issue detailed enactments to regulate the results of the attitude of neutrality when adopted by them," and consider that it is "for neutral powers an admitted duty to apply these rules impartially to the several belligerents." Regulations as to Internment of Belligerent Troops. In general the troops of a belligerent may not enter the land area of a neutral. ^^ "Art. XI. A neutral power, which receives on its territory troops belonging to the belligerent armies, shall intern them, as far as possible, at a distance from the theater of war. "It may keep them in camps, and even confine them in for- tresses or in places set apart for this purpose. causes to be built, (2) issues or delivers a comiuission to, (.3) equips, or (4) dispatches, or causes or allows to be dispatched, any ship with intent or knowledge or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war with any state with which Her Majesty is at peace, is declared thereby to offend against the law of Great Brit- ain." (An exception is made in the case of a person who builds or equips a vessel in pursuance of a contract made before the outbreak of war provided he complies with certain conditions prescribed in the act.) Section 23 empowers the Secretary of State to seize and search and detain a suspected ship until condemned or released by process of law. Section 24 makes it the duty of the local authority to detain a sus- pected ship, and communicate at once the fact of such detention to the proper authority. For provisions of other states, vide Pitt-Cobbett, Cas. Int. Law (2d Ed.) pp. 288-201. 18 Hague Convention, 1907, Rights and Duties of Neutral Powers and Per.sons in Case of War on Land, Art. II, Appendix, p. 546. § 107) NEUTRAL DUTY OF REGULATION. 2G5 "It shall decide whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission." "Art. XIII. A neutral power which receives escaped prison- ers of war shall leave them at liberty. If it allows them to remain in its territory, it may assign them a place of residence. "The same rule applies to prisoners of war brought by troops taking refuge in the territory of a neutral power." ^" Sick and wounded, brought into a neutral state, must not again take part in the war. A neutral state may, however, allow the passage of hospital trains through its territory.^" Regulations as to Sojourn of Belligerent Vessels in Neutral Ports. "In absence of special provisions to the contrary in the legis- lation of a neutral power, belligerent war ships are not per- mitted to remain in the ports, roadsteads, or territorial waters of the said power for more than twenty-four hours, except in the cases covered by the present convention." ^^ The twenty- four hour rule had received increasing sanction, particularly since the middle of the nineteenth century, so that it may be said to have been generally accepted, even before the Hague Conference of 1907. This conference defined its application. The neutral must notify belligerent war vessels in its ports at the outbreak of war to depart within the specified time, which is twenty-four hours, unless otherwise proclaimed by the neutral. This stay may be prolonged on account of stress of weather or need of repairs to make the vessel seaworthy. The neutral may determine what repairs are necessary for this purpose. Twenty-four hours are usually allowed between the departure of ships belonging to one belligerent and ships be- longing to the other. While some neutral states had from time to time, even in the eighteenth century, prescribed the number of belligerent war ships which might enter their ports, a general regulation of the number was made at the Hague 10 Id. arts. XT, XIII, Appendix, p. 547. 20 Id. art. XIV, Appendix, p. 547. 21 Hap;i7e Convention, 1007. Ri^lits and Duties of Neutral Powers tn Naval War, art. XII, Appendix, p. 5G4. 266 RIGHTS AND OBLIGATIONS DURING WAR. (Cll. 12 Conference of 1907, and in the absence of provisions to the contrary no belligerent may have more than three war ships in a neutral port or roadstead at the same time. Supplying Pood and fuel. While belligerent ships of war may not use a neutral water as a base "for replenishing or increasing their supplies of war material or their armament, or for completing their crews," they are permitted to take on supplies of food to bring these up to the peace standard. The amount of fuel which may be supplied in a neutral port and the frequency of the supply has been much discussed since the introduction of artificial means of propelling war ships. There was no agree- ment upon this subject at the time of the Geneva Arbitration, and neutrality proclamations since that time sometimes make no mention of the matter and sometimes strictly limit the supply. The French practice has generally been very liberal, while the British has tended toward greater stringency. In 1904 Great Britain interpreted her regulations as prohibiting the use of British ports for coaling for the purpose of pro- ceeding to the seat of war, or to any position on the line of route for the purpose of intercepting neutral ships on suspicion of carrying contraband, and allowed coal only for the nearest home port, or some "nearer named neutral destination." The Hague Convention of 1907 states : "Article XIX. Belligerent war ships may only revictual in neutral ports or roadsteads to bring up their supplies to the peace standard. "Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port in their own country. They may, on the other hand, fill up their bunkers, built to carry fuel, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied. "If, in accordance with the law of the. neutral power, the ships are not supplied with coal within twenty-four hours of their arrival, the permissible duration of their stay is extended by twenty-four hours. "Article XX. Belligerent war ships which have shipped fuel in a port belonging to a neutral power may not within § 107) NEUTRAL DUTY OF REGULATION, 267 the succeeding three months replenish their supply in a port of the same power." -' Entrance of Price into Neutral Ports. The practice in regard to the entrance of war vessels with prize was formerly generally allowed, but neutrality procla- mations of recent years have more and more generally pro- hibited or restricted this action. The entrance of prize under a prize master has been similarly prohibited. Formerly the prize might be left in a neutral port pending adjudication by a prize court. In some instances the courts were even estab- lished within neutral jurisdiction. The tendency has been away from such practice, until it was again proposed in the Hague Conference of 1907 in the following form: "Article XXIII. A neutral power may allow prizes to enter its ports and roadsteads, whether or not under convoy, when they are brought there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports. "If the prize is convoyed by a war ship, the prize crew may go on board the convoying ship. "If the prize is not under convoy, the prize crew are left at liberty." The United States, while adhering to the remainder of this Convention, subject to interpretation of Article III, reserved and excluded Article XXIII. ^^ The preceding articles of this convention show the generally accepted rules : "Article XXL A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions. "It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral power must order it to leave at once; should it fail to obey, the neutral power must employ the means at its disposal to release it, with its officers and crew, and to intern the prize crew. "Article XXII. A neutral power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in article XXI." 2 2 Id. Appendix, p. 566. ^^ Id- Appendix, p. .567. 268 RIGHTS AND OBLIGATIONS DURING WAR. CCh. 12 Internment of Vessels. Speaking- of asylum to naval forces, Hall, representing the view of the latter half of the nineteenth century, says: "Ma- rine warfare so far differs from hostilities on land that the forces of a belligerent may enter neutral territory without be- ing under stress from their enemy. Partly as a consequence of the habit of freely admitting foreign public ships of war belonging to friendly powers to the ports of a state as a mat- ter of courtesy, partly because of the inevitable conditions of navigation, it is not the custom to apply the same rigor of precaution to naval as to military forces. A vessel of war may enter and stay in a neutral harbor without special rea- sons; she is not disarmed on taking refuge after defeat; she may obtain such repair as will enable her to continue her voy- age in safety; she may take in such provisions as she needs, and, if a steamer, she may fill up with enough coal to enable her to reach the nearest port of her own country; nor is there anything to prevent her from enjoying the security of neutral waters for so long as may seem good to her. To disable a vessel, or to render her permanently immovable, is to assist her enemy; to put her in a condition to undertake offensive operations is to aid her country in its war. The principle is obvious; its application is susceptible of much variation; and in the treatment of ships, as in all other matters in which the ne'utral holds his delicate scale between two belligerents, a tendency toward the enforcement of a harsher rule becomes more defined with each successive war." ^* With the opening of the twentieth century the tendency toward internment of belligerent vessels seeking refuge from an enemy in a neutral port became evident. The Russian vessel ]\Iandjur entered the port of Shanghai in February, 1901, and after considerable international correspondence was interned. Essential parts of the machinery were removed and the vessel was disarmed. The crew was also practically interned. Similar treatment was accorded the Russian vessels Askold and Grosvoi in the same port in August, to the Tsarevitch in Kiachow by the German authorities, to the Diana by the French at Saigon in Septem- ber, to the Lena by the United States at San Francisco in 24 Int. Law (5th Ed.) p. 026. § 107) NEUTRAL DUTY OF REGULATION. 269 September, and in June, 1905, to the fleet of Admiral En- guist at Manila. The same principle was recognized by China. Thus Russia and Japan acknowledge the principle which Great Britain, France, the United States, and China put in practice. The Hague Convention of 1907 incorporated this principle into a regulation as follows : "Article XXIV. If, notwithstanding the notification of the neutral power, a belligerent ship of war does not leave a port where it is not entitled to remain, the neutral power is entitled to take such measures as it considers necessary to render the ship incapable of taking the sea during the war, and the com- manding officer of the ship must facilitate the execution of such measures. "When a belligerent ship is detained by a neutral power, the officers and crew are likewise detained. "The officers and crew thus detained may be left in the ship or kept either on another vessel or on land, and may be sub- jected to the measures of restriction which it may appear necessary to impose upon them. A sufficient number of men for looking after the vessel must, however, be always left on board. "The officers may be left at liberty on giving their word not to quit the neutral territory without permission." ^^ Other Regulations. A neutral may make such further regulations of an impar- tial nature as may be deemed expedient. While a neutral power is not called upon to regulate the use of public or pri- vate telegraph, yet it may regulate such use in an impartial manner. ^*^ The Hague Convention of 1907 provides that : "The contracting powers shall communicate to each other in 2 5 Rights and Duties of Neutral Powers in Naval War, Appendix, p. 566. 26 "Article VIII. A neutral power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to com- panies or private individuals. "Article IX. Every measure of restriction or prohibition taken by a neutral power in regard to the matters referred to in articles VII and VIII must be impartially applied by it to both belligerents. "A neutral power must see to the same obligation being observed 270 RIGHTS AND OBLIGATIONS DUUING WAR. (Cll. 12 due course all laws, proclamations, and other enactments regu- lating in their respective countries the status of belligerent war ships in their ports and waters, by means of a communica- tion addressed to the government of the Netherlands, and forwarded immediately by that government to the other con- tracting powers." ^^ CIVIL RIGHTS AND REMEDIES DURING AVAR. 108. As betw^een tlie hostile parties, trar in general suspends civil rights and remedies. Contracts. War, in general, suspends existing contracts and terminates the capacity to make new contracts.^ ^ Naturally, also, it makes the performance of certain contracts physically im- possible. Agency. Agency is similarly conditioned by war. Insurance. In case of insurance, while the policies may be extinguished by war, the insured is generally entitled at the close of the war to equitable value of the policy.^® by companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus." Hague Convention, 1907, Rights and Duties of Neutral Powers and Persons in Case of War on Land, Appendix, p. 547. 2 7 Rights and Duties of Neutral Powers in War on Land, art. XXVII. 2 8 Scholefield v. Eichelberger, 7 Pet. 586, 8 L. Ed. 793. 2 9 Mr. Justice Bradley said, in the case of N. Y. Life Ins. Co. v. Statham, 93 U. S. 24, 23 L. Ed. 789: "We are of the opinion, therefore, first, that, as the companies elected to insist upon the condition in these cases, the policies in ques- tion must be regarded as extinguished by the nonpayment of the pre- miums, though caused by the existence of the war, and that an action will not lie for the amount insured thereon. "Secondly, that, such failure being caused by a public war, with- out the fault of the assured, they are entitled ex aequo et bono to re- cover the equitable value of the policies, with interest from the close of the war." Fire insurance. Semmes v. Hartford Ins. Co., 13 Wall. 158, 20 L. Ed. 490. See Wambaugh, Cas-es on Insurance, 651, note. § 108) CIVIL RIGHTS AND REMEDIES DURING WAR. 271 Interest on Obligations. Interest on obligations is usually suspended during war, if the parties are themselves in the jurisdiction of the hostile belligerents, and the creditor is not represented by an agent within the jurisdiction of the debtor.'" Partnership. Partnerships, where one partner is within the jurisdiction of one belligerent and the other within the jurisdiction of the other belligerent, are in general dissolved. ^^ Intercourse and Trade. Rights of intercourse and trade are in general suspended, and when trade or intercourse is carried on it is liable to the risks of war, without remedy, and sometimes is specially pe- nalized. Non-Intercourse Acts. Penalties for entering upon trade or other commercial re- lations with an enemy are sometimes prescribed in non-inter- course acts. Such an act in regard to dealing in Russian se- curities was passed during the Crimean War by Great Brit- ain,^ ^ and general acts were passed by the United States Congress in 1861.^^ 3 Ward v. Smith, 7 Wall. 447, 19 L. Ed. 207. 31 "In a foreign or international war, from the time it is declared or recognized, all the people in the territory and subject to the do- minion of each belligerent, without regard to their feelings, disposi- tions, or natural relations, become in legal contemplation, and so continue to the close of hostilities, the enemies of all the people resi- dent in the territory of the other belligerent; and all negotiation, trading, intercourse, or communication between them, unless licensed by the government, is unlawful. Such a war, as between the citizens or subjects of the respective belligerents, ipso facto dissolves all com- mercial partnerships and all contracts wholly executory and requir- ing for their continued existence commercial intercourse or communi- cation ; and while it does not abrogate, yet it suspends, all other ex- isting contracts and obligations and the remedies thereon, and ren- ders all contracts, with rare exceptions, entered into pending hostil- ities, illegal and void." Small's Administrator v. Lumpkin's Execu- trix, 28 Grat. (Va.) 832. 3 2 St. 17 & 18 Vict. c. 123. 8 3 12 Stat. 255, 404. 272 RIGHTS AND OBLIGATIONS DUKING WAR. (Cll. 12 Remedies. The courts of one l)clligerent are in general closed to per- sons domiciled within the jurisdiction of the other belliger- cnt.3* ••i* The Prize Cases. 2 Black, G71, 17 L. Ed. 459. "It is certainly true that, as to individuals, their right to sue in the courts of a belligerent, or to hold or enforce civil rights, depends, not on their birth and native allegiance, but on the character which they hold at the time when those rights are sought to be enforced. A neutral, or a citizen of the United States, who is domiciled in the enemy's country, not only in respect to his property, but also as to his capacity to sne, is deemed as much an alien enemy as a person actually born under the allegiance and residing within the dominions of the hostile nation. This, indeed, has long been settled as the general law of nations, and enforced in the tribunals of prize, and has been latterly recognized and confirmed in the municipal courts of other nations. And the same principle has been applied to a house of trade established in a hostile country, although the parties might happen to have a neutral domicile ; the property of the house being, for such purpose, considered as affected with the hostile character of the country in which it is employed." Mr. Justice Story, in case of Society for Propagation of the Gospel v. Wheeler, 2 Gall. 127, Fed. Cas. No. 13,156. § 110) PERSONS DURING WAR. 273 CHAPTER XIII. PERSONS DURING WAR. 109. Persons within Belligerent Jurisdiction. 110. Combatants and Noncombatants. 111. Neutral Individuals. PERSONS AVITHIN BELLIGERENT JURISDICTION. 109. Persons w^ithin belligerent jurisdiction are in general regarded as having enemy cliaracter, and, if not na- tionals of the enemy state, as liable to the consequences of association ivith the enemy. The simple fact of being within belhgerent jurisdiction makes a person, whatever his allegiance and whatever his con- duct, liable to the hardships of war.^ He may be restrained in his liberty, and is liable to injury consequent upon the legitimate conduct of hostilities ; i. e., in the time of siege he might be detained within the lines and become liable to the consequences of such detention, though it is customary to allow noncombatants to withdraw. A neutral person, domiciled within belligerent jurisdiction, is liable to an equable portion of the war taxes and other bur- dens. His ships upon the high seas may be treated as enemy merchant ships. COMBATANTS AND NONCOMBATANTS. 110. The status of persons may be determined by their con- duct, usually as combatant or noncombatant. In early practice a state at war regarded and treated all per- sons, wherever found, owning allegiance to an enemy state, as properly subject to hostile measures, such as the deprivation of liberty or more severe treatment. 1 General orders 100, U. S. War Dept. April 24, 1863, No. 21. See Appendix, p. 491. WiLS.lNT.L..— IS 274 PERSONS DURING WAR. (Ch. lo At the present time the fact of allegiance is to a large ex- tent ignored in the time of hostilities, and the question of war status is mainly determined by conduct. Combatant status is extended to those who under govern- ment sanction engaged either directly or indirectly in the oper- ations of war, and under exceptional cases to those who with- out government authorization defend themselves from bellig- erent attack. The following is the provision of the Hague Convention of 1907 Respecting the Laws and Customs of War on Land : "Chapter L — The Qualifications of Belligerents. "Article L The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions : "1. To be commanded by a person responsible for his sub- ordinates ; "2. To have a fixed distinctive emblem recognizable at a distance ; "3. To carry arms openly; and "4. To conduct their operations in accordance with the laws and customs of war. "In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the de- nomination 'army.' "Article IL The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontane- ously take up arms to resist the invading troops without hav- ing had time to organize themselves in accordance with article I, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war. "Article IIL The armed forces of the belligerent parties may consist of combatants and noncombatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war." Similarly those regularly commissioned for maritime war- fare are combatants. As, under article II above, resistance to attack on land may be allowed, so on the sea the officers and crew of a merchant vessel who by force defend themselves from attack are re- § 110) co:mbatants and noncombatants. 275 garded as combatants, and if captured may be treated as pris- oners of war. The status of combatants is not extended to those who without state authorization engage in offensive hostihties, as in case a merchant vessel of one belhgerent attacks another merchant vessel, or when private persons engage in offensive hostilities on land. The treatment of such persons may be according to the nature of the act. If the act is piratical, the usual penalty has been hanging. In time of war the strained feeling due to hostilities is usually taken into consideration. Spies were formerly liable to summary treatment, but at present their status is well defined. "Chapter II. — Spies. "Article XXIX. A person can only be considered a spy when, acting clandestinely or on false pretenses, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hos- tile party. "Thus, soldiers not wearing a disguise, who have penetrated into the zone of operations of the hostile army, for the pur- pose of obtaining information, are not considered spies. Sim- ilarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, intrusted with the delivery of dispatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying dispatches and, generally, of maintaining communications between the dif- ferent parts of an army or a territory. "Article XXX. A spy taken in the act shall not be punished without previous trial. "Article XXXI. A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage." ^ Noncombatant status is in general extended to those who take no direct part in the war. Such status is usually conced- 2 Hague Convention, 1907, Laws and Customs of War on Land, Ap- pendix, p. 542. 276 PERSONS DURING WAR. (Ch, 13 cd to women, children, clergy, scientists, discoverers, profes- sional men, ordinary laborers, etc., who do not participate in the hostilities, regardless of allegiance.' The United States, so early as July 6, 1708, authorized the President, in event of war, to regulate the sojourn of subjects of a hostile state remaining within United States jurisdiction after the outbreak of war.* Treaties have also provided for such contingencies.^ 3 "When persous are allowed to remain, either for a specified time after the commencement of war, or during good behavior, they are exonerated from the disabilities of enemies for such time as they in fact stay, and they are placed in the sam<^ position as other for- eigners, except that they cannot carry on a direct trade in their own or other enemy vessels with the enemy country." Hall, Int. Law (5th Ed.) 395. See, also, 1 Kent, Comm. p. 56 ; 1 Halleck, Int. Law (4th Ed.) 430, 461, 465 ; 2 Id. 4S4, 506. 4 1 Stat. 577. 5 "If by any fatiility which cannot be expected, and which may God avert, the two contracting parties should be engaged in a war with each other, they have agreed, and do agree, now for then, that there shall be allowed the term of six months to the merchants resid- ing on the coasts and in the ports of each other, and the term of one year to those who dwell in the interior, to arrange their business and transport their effects wherever they please, with the safe conduct necessary to protect them and their property, until they arrive at the ports designated for their embarkation. And all women and chil- dren, scholars of every faculty, cultivators of the earth, artisans, me- chanics, manufacturers and fishermen, unarmed and inhabiting the unfortified towns, villages or places, and, in general, all others whose occupations are for the common subsistence 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 belligerent, in whose power, by the events of war, they may happen to fall; but if it be necessary that anything should be taken from them for the use of such belligerent, the same shall be paid for at a reasonable price. "And it is declared that neither the pretense that war dissolves treaties, nor any other whatever, shall be considered as annulling or suspending this article ; but, on the contrary, that the state of war is precisely that for which it is provided, and during which its pro- visions are to be sacredly observed, as the most acknowledged obliga- tions in the law of nations." Article 21, Treaty between United States and Italy, Feb. 26, 1871. § 111) NEUTRAL INDIVIDUALS DURING WAR. 277 NEUTRAX INDIVIDUALS DURING AVAR. 111. A neutral state is not, in general, responsible for the conduct of its nationals during virar; but tbe individ- ual may be liable under domestic law to the state to whicb be ow^es jurisdiction and under international law to tbe belligerent. Neutral persons are those who are nationals of states not taking- part in the war. They are liable for acts which they commit against a belligerent, especially if they engage in mil- itary operations. Liability does not extend, in general, to aid by loans or indirect aid in civil or administrative services." While the neutral power is not obliged to prevent its nation- als from engaging in contraband trade, from attempting to violate a blockade, or from unneutral service, yet it has no claim against a belligerent which inflicts the ordinary penal- ties for such offenses on its nationals. A neutral state may, however, protest against any excep- tionally severe treatment of its nationals, or against any policy which might involve such penalties. There was a general pro- test against the declaration of the Russian authority in the Far East in 1904 to the effect that correspondents using wire- less telegraphy for communicating war news to the enemy would be treated as spies, ^ and this protest was heeded. 6 Hague Convention, 1907, Rights and Duties of Neutral Powers and Persons in Case of War on Land, c. Ill, Neutral Persons, Ap- pendix, p. 548. T Foreign Relations U. S. 1904, p. 729. 278 PROPERTY ON LAND. (Ch. 14 CHAPTER XIV. PROPERTY ON LAND. 112. Public Property During War — Immovable Public Property. 113. Movable Public Pi'operty. 114. Property of Municipalities and Institutions. 115. Immovable Private Property. 116. Movable Property of Military Use. 117. Private Property In Enemy Jurisdiction. 118. Booty. PUBLIC PROPERTY DURING "WAR— IMMOVABLE PUB- LIC PROPERTY. 112. (a) Immovable public property, destined for nse in -war, is liable to sucb treatment as tbe enemy may deter- mine. Cb) Immovable public property, \(rhicb is not destined for use in war, but ivbicli may be productive of national in- come and is ivitbin tbe jurisdiction or under the mili- tary autbority of an enemy state, may be administered by tbat state according to tbe principles of usufruct. (c) Immovable public property similarly situated, ivhicb is not of use for ivar, but devoted to educational, reli- gious, and like purposes, is exempt. (a) Immovable public property, destined for military uses, as forts, dry docks, or aresenals, may become of special dan- ger to the enemy, and therefore may be treated in such manner as the enemy may deem best suited to render it in- nocuous, or it may be used by the enemy against its original owner. A fortification might be destroyed, or might be oc- cupied and used by the enemy for his own ends. (b) Real estate, public buildings, forests, etc., belonging to one belligerent state, while within the power of the other bel- ligerent, may be administered for his benefit. Formerly such property was regarded as hostile, and liable to destruction or other severe treatment. The title to such property is not now regarded as transferred with the physical control. The title must be confirmed by conquest or other method, and meantime § 113) PUBLIC PROPERTY DURING WAR. 279 the occupying state has merely the right of occupancy and use of products of the property.^ The occupying state may collect and use the rents of public real property falling due, and a re- ceipt for rent paid under such conditions is valid. An invader may use public buildings for public purposes. These build- ings are liable to the ordinary wear and tear of such use. Furniture is considered a part of the building, and may not be removed. Likewise, if crops belonging to the state or trees in the public forests come to maturity or the time for cutting, they may be used by the invading state. If such property is sold to a party, that party would not have rights if he had not taken the property within his possession during the period of occupancy, as the original government, after its restoration, might prevent its appropriation. (c) Immovable property, not of use for war, as educational institutions, churches, etc., though belonging to the state, is exempt, and should be restored at the end of the war in its original condition. The rents or profits of property permanently set aside for the maintenance of hospitals, educational institutions, or for scientific or artistic purposes, are not liable to seizure, even though the property from which they are derived may be with- in the power of the enemy. SAME— MOVABLE PUBLIC PROPERTY. 113. (a) Movable public property of one belligerent, \irhicli may be of use for xrar, is liable to seizure by tbe otber belligerent, (b) Movable public property, ivbich. is not of use for war, is exempt. (a) Custom has, in general, applied the principle that all public property, which is susceptible of use by the belligerent seizing it for warlike purposes, or which can be of similar use to his enemy, directly or indirectly, can be appropriated. There is no question in regard to the following classes of property : Munitions of war, vessels of war, means of trans- 1 2 Halleck, Int. Law (4th Ed.) 73 ; Hague Convention, 1907, Laws and Customs of War on Land, art. 55, Appendix, p. 544. 280 PROPERTY ON LAND, (Cll. 14 port, state treasure, consisting- of moneys and checks payable to bearer, taxes, customs, etc. In general, taxes must be ap- plied to administrative expenses, or to the payment of debts for which specifically hypothecated; the overplus only being applied by the belligerent to his own use. In regard to cer- tain other movable or personal property, such as checks requir- ing- indorsement, and contract debts in other forms, which may require payment to be enforced judicially, or the seizure of which may not operate to relieve the debtor making payment of his obligation, there is some question as to the right of seiz- ure.- Article 53 of the Hague Convention Respecting the Laws and Customs of War on Land provides that "an army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the state." Professor Westlake says of this important and pos- sibly doubtful clause that it "is so worded as to exempt from seizure both, first, cash, funds, and realizable securities of which the state is only custodian, such as savings bank funds, and, secondly, debts due to the state not falling under the de- scription of realizable securities. The first exemption speaks for itself. In the second exemption the original French is 'valeurs exigibles,' which Professor Ilolland translates 'real- izable securities,' and which has been translated officially into German as 'eintreibbare forderungen.' Professor Holland describes it as purposely ambiguous, and there are grave dif- ferences of opinion as to what the rule on the matter ought to be. There is no doubt that, if the occupation should be rip- ened into conquest, all the debts due to the extinguished state will belong by the laws of state succession to the conqueror and may be sued for by him. There is also no doubt that docu- ments payable to bearer may be seized by an occupant as part of the state treasure, so that he thereby becomes, not only their actual, but their lawful, bearer, and can sue on them as soon as due, whether or not his occupation of the place where they were seized has continued in the meantime or not. But the occupant who is not a conqueror does not represent the person of the enemy state, and therefore, as it seems to us, can supply nothing which remains to be done by the enemy 2 Hall, Int. Law (5th Ed.) 420. § 115) IMMOVABLE PRIVATE PROPERTY. 281 State in order to complete the right to judgment on a debt. If he has seized a document payable to order, he cannot indorse it; if the debt is claimed by any other kind of title, he may have seized the evidence necessary for proving it, but he can- not put himself forward as plaintiff, or use his physical power in the locality to enforce payment. This, however, is not the modern German view. By an ordinance of November 26, 1870, the Germans required persons who owed payments for timber from the state forests, in what they had established as 'the general government of Alsace,' to make those payments to their cashiers in the district." ^ (b) Public archives, contents of museums, scientific appa- ratus, vessels engaged in exploration or scientific research, etc., are exempt.* PROPERTY OF MUNICIPALITIES AND INSTITUTIONS. 114. "Tlic property of the communes, that of institutions dedicated to religion, charity, and education, the arts and sciences, even when state property, shall be treated as private property. All seizure of, destruction, or willful damage done to institutions of this character, historic monuments, and w^orks of art and science, is forbidden, and should be made the subject of legal proceedings." 6 IMMOVABLE PRIVATE PROPERTY. 115. Immovable private property is in general exempt, thoughi subject to the necessities of war. In early practice immovable private property of one belliger- ent within the power of the other belligerent was appropriated, later it was administered for the benefit of the belligerent hav- ing power over it, and in modern times the real property of private citizens has been exempt from appropriation, unless because of a necessity of war. Private property, as buildings, 8 Westlake, Int. Law, pt. 2, p. 103. 4 See, also, under military occupation, post, p. 334. B Hague Convention, 1007, Laws and Customs of War on Land, art. 56. Appendix, p. 544. 282 PROPERTY ON LAND. (Ch. 14 would be liable to the consequences of actual belligerent op- erations; i. e., if a building should be in the line of fire, it might be destroyed. Private property, as a building, may be appropriated for the use of forces in case of necessity, and in which case indemnity would be paid for its use. MOVABLE PROPERTY OF MILITARY USE. 116. Movable or personal property is under regulations sub- ject to seizure. (a) CONTRIBUTIONS— Contributions consist in moneys lev- ied by the authority of commander in cbief in excess of the taxes. (b) REQUISITIONS— RecLuisitions consist in the enforced delivery in kind of articles needed by the enemy for consumption or temporary use. (c) FORAGING — When from lack of time or other reason requisitions are not available, supplies in kind may be taken directly by the forces from the fields or other places by foraging. (a) Plunder and pillage are now abolished, and the regu- lated seizure of private property ma)^ be said to have taken the place of these ancient seizures and subsequent confiscations. "No contribution shall be collected, except under a written order, and on the responsibility of a commander in chief. "The collection of the said contribution shall only be effect- ed as far as possible in accordance with the rules of assess- ment and incidence of the taxes in force. "For every contribution a receipt shall be given to the con- tributors." ® (b) Requisitions consist in food, clothes, forage, wagons, horses, lodging, labor, railroad material, boats, and other means of transport, all of which are levied under what is rec- ognized as military necessity. These may be made by the com- mander of any detached portion of the army under a higher authority, which latter regulates the articles to be requisi- tioned. "Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the « Id. art. 51, Appendix, p. 544. § 117) PRIVATE PROPERTY IN ExNEMT JURISDICTION. 283 army of occupation. They shall be in proportion to the re- sources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military op- erations against their own country. "Such requisitions and services shall only be demanded on authority of the commander in the locality occupied. The requisitions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given, and the payment of the amount due shall be made as soon as possible." ^ Requisitions may be made by naval forces for provisions or supplies of which they are in immediate need. After due no- tice such requisitions may be enforced by bombardment, sub- ject to the restrictions of the Hague Convention of 1907. "These requisitions shall be in proportion to the resources of the place. They shall only be demanded in the name of the commander of the said naval force, and they shall, as far as possible, be paid for in cash; if not, they shall be evidenced by receipts." * (c) Sometimes it is not possible to find the owner of prop- erty; e. g., grain in the field, wood in the forest, etc., or other supplies in order to make requisition. When seizure of such property is made for the immediate use of the military forces, it is of the nature of foraging, and is restorted to in lieu of making requisitions. PRIVATE PROPERTY IN ENEMY JURISDICTION. 117. The personal or movable property of citizens of either belligerent state found in the territorial jurisdiction of the other, also debts due to citizens of the enemy state, are no longer regarded confiscable, unless under special authorization. In regard to debts due by a state to citizens of an enemy state, the rule is now well established that they are not con- fiscable, nor is the interest due upon such debt sequestrated. This rule is now so well established and acknowledged by all the authorities that, in order to avoid such payments, tlie 1 1d. art. 52, Appendix, p. 544. 8 Bombardment by Naval Forces, post, p. 323. 284 PROPERTY ON LAND. (Ch. 14 agreement must incorporate, as an express reservation, the right to sequestrate; since, in the absence of such reservation. a state is assumed to have contemplated payment, notwith- standing the existence of war.^ The United States Supreme Court in 1814 held, in reversing the decision of the lower court, that the effect of a declaration of war, or of the existence of war, alone did not confer upon the courts the power to confiscate enemy property without some expression of the will of the state itself to that effect, al- though it was admitted that the existence of war carried with it the right to effect such confiscation.^" Many treaties also definitely provide for the exemption of private property of one belligerent in the territory of the other.^^ BOOTY. 118. Booty is the term nsnally applied to property captured on land, and title thereto vests in the state. In some countries the property captured as booty is sold, and the proceeds used in whole or in part as a compensation to the captors. Great Britain, in certain cases, rewards such serv- ices. The United States appropriates all property captured by its armies on land. » Ware v. Hylton, 3 Dall. 199, 1 L. Ed. 568. 10 Brown v. United States, 8 Crancli, 110, 3 L. Ed. .504. 11 Treaty between United States and Italy, Feb. 26, 1871, art. 21. § 119) PROPERTY ON THE WATER, 285 CHAPTER XV. PROPERTY ON THE WATER. 119. Public Property of Belligerents on the Water — Vessels. 120. Goods. 121. Private Property of Belligerents on the Water — Vessela 122. Vessels Exempt by Service. 123. Vessels Exempt by Occupation. 124. Vessels Exempt, by Delai de Faveur. 125. Goods in General. 126. Means of Telegraphic Communication. PUBLIC PROPERTY OF BELLIGERENTS ON THE .W^A- TER— VESSELS. 119. Public vessels of a belligerent outside of neutral juris- diction are liable to capture, unless specially exempt. The follouring vessels, TP^ben innocently employed, are ex- empt: (1) Cartel sbips commissioned for the exchange of prisoners. (2) Vessels charged ivith religious, scientific, and philan- thropic missions. (3) Duly authorized hospital ships. War on land is in the main aimed at the submission of the enemy army. War on the sea aims, not merely at the defeat of the enemy navy, but also at the destruction of the enemy's commerce and means of communication and the weakening or destruction of the enemy's means of defense and support. Much greater freedom is allowed in the treatment of enemy property on the water than on land. Where in land warfare attack is mainly on armed enemy individuals, on the sea at- tack is mainly upon vessels. The public vessels of the enemy are special objects of at- tack in warfare on the sea. All such vessels as are not spe- cifically engaged in nonmilitary occupations, which serve both belligerents alike or serve the world at large, are liable to capture. The number of such vessels would be comparatively small and includes : 286 PROPERTY ON THE WATER. (Ch. 15 (1) Cartel ships serving both bcllij^ercnts alike. (2) Vessels engaged in work for the good of humanity in general. C3) Hospital ships. ^ The Japanese, in the war with China, in 1893, and in the war with Russia, in 1904, also exempted "lighthouse vessels and tenders." SAMB— GOODS. 120. Public goods of a belligerent are liable to capture out- side of neutral jurisdiction. Goods belonging to an enemy state would in general be li- able to capture on the sea, if not under a neutral flag. Prob- ably exemptions analogous to those in case of land warfare would hold in case of works of art, archives, historical and scientific collections, and the like. PRIVATE PROPERTY OF BELLIGERENTS ON THE WA- TER—VESSELS. 121. Private vessels of the belligerent outside of neutral ju- risdiction are liable to captTire unless specially exempt. There have been attempts to bring about the general ex- emption from capture of all innocently employed private ves- sels. In 1783 Franklin sent an article to Oswald, which he rather wished than expected would be adopted in the treaty with Great Britain, to the effect that "all merchants or traders, with their unarmed vessels employed in commerce, exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of human life more easy to obtain and more general, shall be allowed to pass free- ly, unmolested." ^ The treaty between the United States and Prussia of 1785 contained the following: "All merchant and trading vessels employed in exchanging the products of differ- 1 Hague Convention, 1907, Naval War and Geneva Convention, art. 1, Appendix, p. 549. 2 9 Sparks. Works of Franklin, p. 409. § 122) PRIVATE PROPERTY OF BELLIGERENTS. 287 ent places, and thereby rendering the necessaries, conven- iences, and comforts of human Hfe more easy to be obtained and more general, shall be allowed to pass free and unmo- lested; and neither of the contracting powers shall grant or issue any commission to any private armed vessels, empower- ing them to take or destroy such trading vessels or interrupt such commerce." The treaty between Italy and the United States of February 26, 1871, now in force, provides in article 13: "The high contracting parties agree that in the unfor- tunate event of a war between them the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas or elsewhere by the armed vessels or by the military forces of either party; it being understood that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either party." The question received much attention at the time of the Declaration of Paris in 1856 and again at the Hague Confer- ences of 1899 and 1907; but exemption of private vessels from capture is not yet secured. SAME— VESSELS EXEMPT BY SERVICE. 122. Certain private -vessels of belligerents are exempt from capture because of the nature of tbeir service: (a) Cartel ships. (b) Hospital ships. (c) Ships engaged in religious, scientific, or philanthropic ivork. (a) Cartel vessels belonging to private citizens of the bel- ligerents engaged in the exchange of prisoners are exempt from capture while employed according to the cartel agree- ment, by which they serve both belligerents alike. (b) Hospital ships serve those in need of their assistance without distinction as to nationality, and hence it is of mutual advantage that they be exempt from capture.^ 3 Hague Convention, 1907, Naval War and Geneva Convention, arts. 2-4, Appendix, p. 549. 288 PROPEliTY ON THE WATER. (Cll. 15 (c) The vessels charged with religious, scientific, or philan- thropic missions serve humanity in general, and are therefore exempt.* SAME— VESSELS EXEMPT BY OCCUPATION. 123. Certain private vessels of belligerents are exempt from capture because of tbe nature of their occupations: (a) Coast fisliing vessels innocently employed. (b) Small vessels employed in local trade. (a) After an extended review of the authorities, Mr. Justice Gray, delivering the opinion of the United States Supreme Court in 1900, said : "This review of the precedents and au- thorities on the subject appears to us abundantly to demon- strate that at the present day, by the general consent of the civilized nations of the world, and independently of any ex- press treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual con- venience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. "The exemption, of course, does not apply to coast fisher- men or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way." ** This exemption does not apply to deep-sea fishing vessels.^ (b) Small boats, employed in local trade, with their appli- * ITa.taie Convention, 1907, Right of Capture in Naval War, art. 4, Scott. Penr-0 ('niiferencps. p. 2.S.3. 5 The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. o20; Hague Convention, 1907, Right of Capture in Naval War, art. 8, Scott, Peace Conferences, p. 283. 6 The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed 320. § 124) PRIVATE PROPERTY OF BELLIGERENTS. 289 ances, rigging, tackle, and cargo, are exempt from capture so long as they are innocently employed.'^ The exemption of coast fishing vessels and small boats en- gaged in local trade, secured by the Hague Convention of 1907, was, according to the report of the American delegation, "to give to the better practice the sanction of conventional obligation and to include small nonsea-going vessels, exclu- sively engaged in the coast trade, within its beneficial opera- tion." SAME— VESSELS EXEMPT BY DELAI DE FAVEUR. 124. Private vessels of one belligerent, not intended for con- version into -war ships, xsrithin or bound for tbe ports of tbe other belligerent at the outbreak of -war, are usually allo^ved a certain number of days (days of grace, delai de faveur) before becoming liable to cap- ture, and in case such vessels are unable to leave port at the expiration of the period they may be interned, and are restored at the end of the ^var. The idea of allowing a degree of favor to enemy private vessels in port at the outbreak of war is not new. Molloy, in the seventeenth century, wrote : "If the ships of any nation happen to arrive in any of the king of England's ports, and afterwards, and before their departure, a war breaks out, they may be secured, privileged without harm of body or goods ; but under this limitation, till it be known to the king how the prince or republick of those whose subjects the parties are have used and treated those of our nation in their ports. But if any should be so bold as to visit our ports after a war is begun, they are to be dealt with as enemies." * Later practice has not been uniform.^ Proclamations of 7 Hague Conveutiou, 1907, Right of Capture in Naval War, art. 3, Scott, Peace Conferences, p. 283. 8 De Jure Maritime, bk. T, c. 1, XVII. » French Declaration, March 27, 1854, six weeks ; British Declara- tion, March 29, 1854, six weeks; Spanish Decree, April 23, 1S9S, five days ; United States Proclamation, April 25, 1898, thirty days ; Jap- anese Ordinance, Feb. 9, 1904, seven days; Russian Rules, Feb. 14, 1904 (except in Far East), forty-eight hours. WiLS.lNT.L.— 19 290 PROPERTY OX THE WATER. (Ch. 15 belligerents have allowed varying periods, though it is gener- ally recognized that some period should be allowed to inno- cent private vessels/** but not to private vessels adapted for conversion into war vessels or under subsidy for war pur- poses.^^ The treatment of enemy merchant ships at the outbreak of hostilities was considered at the Hague Conference in 1907 and a convention was signed. ^^ This convention states that it is desirable that a reasonable number of days of grace should be allowed for merchant vessels in an enemy port or bound for an enemy port at the outbreak of hostilities. The num- ber of days is not determined. Such vessels kept in an enemy port by force majeure may be interned without compensation or appropriated on payment of compensation. Vessels which have left port before the outbreak of war and are encountered on the High seas while still ignorant of the commencement of war are entitled to similar treatment.^^ They may be detained till the end of the war without com- pensation or appropriated subject to payment of compensation. The crew, passengers, and ship's papers must be placed in safety. These exemptions do not apply in case the vessel has touch- ed at a port after the outbreak of hostilities. GOODS IN GENERAL. 125. In general, w^lien on the sea and unless under a neutral flag, the private goods of one belligerent are liable to capture by the other belligerent. The modifications in the severity of treatment of property on land have not extended to property at sea,^* but the atti- tude toward property at sea in time of war has depended 10 The Buena Ventura, 175 U. S. 384, 20 Sup. Ct. 148, 44 L. Ed. 206. 11 The Panama, 176 U. S. 535, 20 Sup. Ct. 4S0, 44 L. Ed. 577. 12 Convention Relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities. 13 Id. arts. 1-3. 14 Bentwich, War and Private Property, pp. 79-96. § 125) GOODS IN GENERAL. 291 rather upon policy than upon law. The United States has consistently favored the exemption of merchant vessels and their cargoes from capture. Franklin, in 1783, said of the principle of exemption from capture of private property at sea in time of war: "I rather wish than expect it will be adopted." ^^ President Monroe, in his message of December 2, 1823, and President Pierce, in his message of December 4, 1854, advocate agreements for the abolition of the right to capture private property at sea, and in 1856 President Pierce proposed as a condition under which the United States would ratify the Declaration of Paris, by which "privateering is and remains abolished," the addition of the clause: "The private property of subjects and citizens of a belligerent on the high seas shall be exempt from seizure by public armed vessels of the other belligerent except it be contraband." The Congress of the United States resolved on April 28, 1904: "That it is the sense of the Congress of the United States that it is de- sirable, in the interest of uniformity of action by the maritime states of the world in time of war that the President endeavor to bring about an understanding among the principal maritime powers with a view of incorporating into the permanent law of civilized nations the principle of the exemption of all pri- vate property at sea, not contraband of war, from capture or destruction by belligerents." The American delegation at the Hague Conference of 1907 endeavored to secure the exemp- tion of innocent private property at sea during war. Professor Westlake, after referring to the fact that the United States and some other states have advocated the policy of exemption of enemy property at sea, says : "On principle we must say that the capture at sea of enemy property as such is a military measure, an operation of war, and that its de- fense is therefore independent of the mediaeval doctrine of the solidarity of sovereigns and states with their subjects, on which the civil courts maintain the doctrines of noninter- course and even perhaps of confiscation. Its justification must lie in its effect on the fortunes of a war. To appreciate that efifect, it is not sufficient to consider the damage done to the pecuniary resources of a belligerent power by seizing and ap- 18 Franklin labored for this in 1781. 9 Works (Sparks' Ed.) p. 469. 292 PROPERTY ON THE WATER. (Ch. 15 propriating- the property of those from whom it can levy taxes and cutting off their opportunities of trade. It must also be remembered that the capture of enemy ships has always car- ried with it the right to detain their crews as prisoners. In- deed the doctrine of 'courir sus aux ennemis' was from the first as much directed against persons as against things. Hence the existing practice deprives the enemy of important resources, both of ships which might be available as transport.'! or for purposes of supply, and of men who might render serv- ice on board ships so employed or in the fighting navy, and, indeed, would in general be legally compellable to do so." ^* In Atlay's edition of Wheaton's International Law, in 1904, the position against the exemption from capture of private property at sea is stated as follows : "The indiscriminate sei- zure of private property on land would cause the most terrible hardship, without conferring any corresponding advantage on the invader. It cannot be effected without in some measure relaxing military discipline, and is sure to be accompanied by violence and outrage. On the other hand, the capture of merchant vessels is usually a bloodless act; most merchant vessels being incapable of resisting a ship of war. Again, property on land consists of endless varieties, much of it be- ing absolutely useless for any hostile purpose, while property at sea is almost always purely merchandise, and thus is part of the enemy's strength. It is, moreover, embarked vohui- tarily, and with a knowledge of the risk incurred, and its loss can be covered by insurance. An invader on land can levy contributions or a war indemnity from a vanquished country. He can occupy part of its territory and appropriate its rates and taxes; and by these and other methods he can enfeeble the enemy and terminate the war. But in a maritime war a belligerent has none of these resources, and his main instru- ment of coercion is crippling the enemy's commerce. If war at sea were to be restricted to the naval forces, a country pos- sessing a powerful fleet would have very little advantage over a country with a small fleet or with none at all. If the enemy kept his ships of war in port, a powerful fleet, being unable to operate against commerce, would have little or no occupation. 16 Westlake, Int. Law, pt. II, \Yar, p. 130. § 125) GOODS IN GENERAL. 293 The United States proposed to add to the Declaration of Paris a clai:se exempting all private property on the high seas from seizure by public armed vessels of the other belligerent, ex- cept it be contraband; but this proposal was not acceded to. Nor does it seem likely, for the reasons stated above, that maritime nations will forego their rights in this respect. "On the other hand, the enormous extension of railways, the increase of the practice of marine insurance, and the de- pendence of the greatest naval power in the world upon, an ocean-borne food supply, have deprived many of the older arguments in favor of the retention of the claim to capture private property at sea of their force, while at the same time it has inclined many persons in Great Britain, more especially those interested in shipping, to look favorably on a proposed abandonment of the claim." ^' Property subject to capture at sea occupies an entirely dif- ferent position from that of property on land. In enforcing requisitions of private property on land, it is usual to limit the property taken to such as will be useful to the captor for the purposes of war. In taking this property the noncombatant population is deprived of material necessary for the support of themselves or their animals. On the other hand, the reasons urged in support of the right to take property at sea are that only the material interests suffer, and no personal suffering is inflicted. Again, such property is shipped by the owners with the intention and idea of deriving a profit from the enter- prise. The risks of war are appreciated and understood, and can be provided for by means of insurance. It is in the cus- tody of men trained and paid for the purpose; and the sea, upon which it is sent, is res omnium, the common field of war as well as of commerce. The objections, therefore, that exist to the capture of private property on land, do not apply with like force to property at sea, yet the effect of captures at sea in deranging the trade of the enemy is very much greater than that consequent upon the enforcing of requisitions, and often leads to urgent demands on the part of influential merchants for an early termination of the war. The effect of the old general rule of capture of all enemy IT Wheaton. Int. Law (Atlay's Ed.) § P>5'th. 294 PROPERTY ON THE WATER. (Ch. 15 property was modified by the Declaration of Paris, to the ex- tent that "the neutral flag- covers enemy's goods, with the ex- ception of contraband of war." ^^ There are divergent opinions upon what determines the enemy character of goods. The English courts have decided that the liability to capture extends, not merely to the goods of those who owe allegiance to the belligerent state, but also to those who have commercial domicile in the belligerent state, ^^ while the property of those who are domiciled in a neutral state is exempt.^" The European continental opinion is divided. Certain states regard the domicile of the owner as the test of the liability of the property to capture, as in the English precedents ; while other states follow the French doctrine, that the nationality of the owner, and not the domicile, determines the liability of the property to capture.-^ Japan has followed a modified form of the rule of domicile. The United States has generally followed the law of domicile as determining enemy character. Long discussions at the London Naval Conference in 1908-09 did not result in agreement upon the basis which should de- cide character of property, beyond the rule that (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." The report of the conference says: "But it cannot be concealed that article 58 solves no more than a part of the problem, and that the easier part. It is the neutral or enemy character of the owner which determines the char- acter of the goods ; but what is to determine the neutral or enemy charapter of the owner? On this point nothing is said, because it was found impossible to arrive at an agreement." "- The English courts have decided that the enemy character of goods is determined by the domicile of the owner, though a man's business may have domicile in more than one state, and ^'if he acts as a merchant of both he must be liable to be con- is Declaration of Paris, 1856. Appendix, p. 487. 19 Ttie Harmony, 2 C. Rob. 322, 20 4 C. Rob. 255, note. 21 1 Pistoye et Duverdy, Traite des Prises Maritimes, p. 321. 22 British Pari. Papers, Misc. No. 4 (1909) p. 61. § 125) GOODS IN GENERAL. 295 sidered as a subject of both, with regard to the transactions originating respectively in those countries." "^ To the extent to which the property is identified with the enemy, to that ex- tent it would be treated as enemy property. Some other states consider that the nationality of the owner is the sole criterion in determining the character of goods. Complications due to the changes in methods of business, by the introduction of partnerships and other forms of busi- ness organization, are not provided for in early precedents. The London Naval Conference in 1908-09 considered the propriety of determining the neutral or enemy character of goods belonging to a country "according as the company had its headquarters in a neutral or enemy country." No decision was reached, however. Some have maintained that the products of an enemy soil should be considered as enemy property, though the owner may be a neutral. The United States Supreme Court, follow- ing the British doctrine, announced that: "The opinion that the ownership of the soil does, in some degree, connect the owner with the property, so far as respects that soil, is an opinion which certainly prevails very extensively. It is not an unreasonable opinion. Personal property may follow the person anywhere ; and its character, if found on the ocean, may depend on the domicile of the owner. But land is fixed. Wherever the owner of the country may reside, that land is hostile or friendly according to the condition of the country in which it is placed. It is no extravagant perversion to say that the proprietor, so far as respects his interest in this land, partakes of this character, and that the produce, while the owner remains unchanged, is subject to the sarne disabili- ties." ^* France and some of the other European states do not admit this position. 2 3 The Jonge Klassina, .5 C. Rob. 302. 2 4 Bentzon v. Boyle, 9 Cranch, 191, 3 L. Ed. 701 ; Scott, 598; Vrouw Anua Cathariua, 5 C. Rob. 167. The Japanese doctrine is similar. 29G PROPERTY ON THE WATER. (Cb. 15 MEANS OF TELEGRAPHIC COMMUNICATION. 126. Means of telegraphic communication wholly -w^ithin the jurisdiction of either belligerent may be seized, inter- rupted, or destroyed by the other belligerent. Means of telegraphic communication bet\ireen either bel- ligerent and a neutral may, outside of neutral juris- diction, be seized, interrupted, or destroyed by the oth- er belligerent as a military necessity, subject to liabil- ity for damages. Coniniunication by Wires. Before the invention of wireless telegraphy, it had become fairly well established that telegraph lines, whether on land or submarine, connecting belligerent points, were, when be- yond neutral jurisdiction, liable to such treatment as military expediency might suggest. Submarine cables, connecting belligerent with neutral points, were liable to such treatment outside of neutral jurisdiction as the necessities of war might require, though at the close of the war damages might be assessed.-^ The Hague Conven- tion, 1907, Laws and Customs of War on Land (article 54), provides : "Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed ex- cept in the case of absolute necessity. They must likewise be restored, and compensation fixed when peace is made." -* Communication zvithout Wires. Radio-telegraphy has for many purposes ot war supplanted telegraphy by wires. The difference in range and nature of service of wireless telegraphy has brought about agreements among the states as to its use.-'^ The principles which should regulate the control of radio-telegraph in time of war are not yet fully established.^^ Certain regulations were adopted 2 5 Wilson, Submarine Telegraphic Cables, Lectures U. S. Naval War College, 1901; Scholz, Krieg and Seekabel ; Jouhannaud, Les cables sous-marins, 2 Appendix, p. 544. 2 7 Berlin Agreement, 1903; International Wireless Telegraph Con- vention, Boi-lin, Nov. 3, 190G. 2 8 Scholz, Drahtlose Telegraphie und Neutralitilt; Thonier, De la Notion de Contrebande de Guerre, 334; Rolland, La Telegraphie § 126) MEANS OF TELEGRAPHIC COMMUNICATION. 297 by the Hague Conference in 1907. By these belhgerents are forbidden to — "(a) Erect on the territory of a neutral power a wireless telegraphy station or other apparatus for the purpose of com- municating with belligerent forces on land or sea ; "(b) Use any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes, and which has not been opened for the service of public messages." ^® The neutral is not, however, called upon to restrict the use of apparatus belonging to it, or to companies or private in- dividuals,^" though impartiality must be shown to both bellig- erents.^^ In case of war on the sea, belligerents are likewise forbidden "to erect wireless telegraphy stations or any ap- paratus for the purpose of communicating with the belligerent forces on land or sea." ^~ The Institute of International Law in 1906 adopted regula- tions which the members regarded as embodying the principles which should prevail in regard to wireless telegraphy. While enunciating the principle that the air is free, the Institute ad- mitted that a state is entitled, both in time of peace and in time of war, to exercise such aerial jurisdiction as is necessary to its well-being. A neutral state may also become responsible to the extent of its ability for the regulation of the use for war purposes of its aerial domain. ^^ "From practice, as shown in various states, from the opin- ions of the courts and of writers, from the votes of confer- ences and from international agreements, it is evident that the state within whose jurisdiction a wireless telegraph appara- tus is or passes is and will be authorized to exercise a degree sans Fil et le Droit des Gens, 13 R. G. D. I. P. 86 ; Melli, Die Draht- lose Telegraphie im Internen Reclit und Volkerreclit ; Int. Law Sit- uations, U. S. Naval War College, 1907, 138. 2 9 Article III, Rights and Duties of Neutral Powers and Persons in Case of War on Land. 30 Id. art. VIII. 31 Id. art. IX. 32 Hasiue Convention, 1907, Rights and Duties of Neutral Powers in Naval War, art. 5. 3 3 For Regulations of Institute, see ante, p. 122. 298 PROPERTY ON THE WATER. (Ch. 15 of control over its use. The responsibility resting upon such state will be large. "In order to avoid possible complications in time of war, it will be expedient in time of war for states, whether neutral or belligerent, to exercise control over wireless telegraphy as circumstances seem to require." ^* It is admitted that a belligerent may prohibit or regulate the use of radio-telegraphy within the area of hostilities, that a neutral state must use reasonable care that its territory be not abused for military purposes, that it can make regulations accordingly, and that confiscation of wireless apparatus, and in some cases of a vessel upon which the apparatus is, may re- sult from the unneutral use of wireless telegraphy. 8 4 Int. Law Situations, U. S. Naval War College, 1907, p. 175. § 127) MARITIME CAPTURE. 299 CHAPTER XVI. MARITIME CAPTURE. 127. Maritime Capture. 128. Title to Prize. 129. Treatment of Prize — Conducting to Port. 130. Release. 131. Appropriation and Destruction. 132. Prize Money and Bounty. 133. Privateers. 134. Volunteer, Auxiliary, or Subsidized Vessels. MARITIME CAPTURE. 127. To constitute capture, there must be some act sho'oring inteution to take possession upon the part of the cap- tor and submission on the part of the captured. To constitute a capture at sea, there must be evidence of the animus capiendi and of submission.^ The act of taking physical possession is not absolutely necessary, because the surrender of the master and crew or vessel is complete when the flag" is lowered, and the conditions may be such as to ren- der actual taking of possession impracticable,^ and yet the con- tinuance of hostilities under the circumstances may be un- called for. The most usual method of showing intention to take possession is to place on board the vessel a prize crew sufficient to prevent an attempt at rescue. The captor acquired property in the things captured, accord- ing to the ancient practice, when things seized by him were brought into his camp, fortress, port, or fleet. Later the ar- bitrary rule was laid down that possession for twenty-four 1 The Mary, 2 Wheat. 123, 4 L. Ed. 200 ; The Alexander, 8 Cranch, 1G9, 3 L. Ed. 524; The Grotius, 9 Cranch, 368, 3 L. Ed. 762. 2 "If by reason of rough weather or other circumstances this is im- practicable,' the commander should require the vessel to lower her flag, and to steer according to his orders." British Manual Naval Prize Law, No. 238. Edward and Mary, 3 Rob. 305. 300 MARITIME CAPTURE, (Cll. IG hours was sufficient to transfer title to the property.^ This rule was published in an edict by France in 158-1, and became a very general rule of practice for the greater number of civ- ilized nations. Present practice seems to regard effective pos- session as a satisfactory and equitable evidence of capture.* If a vessel is recaptured before condemnation, it may be re- stored on payment of salvage; ^ but, if recaptured after being brought within the effective possession of the captor's forces, it is usually held to belong to the recaptors. When a vessel is recaptured by its original crew, salvage may be awarded to them.* TITLE TO PRIZE. 128. Tlie property in a vessel and cargo that is captured, if subsequently condemned, vests in tlie state as soon as the seizure is effective. It is the modern custom to have all prizes sent into port for adjudication before disposition; the object being the protec- tion of neutrals by determining judicially whether the captured vessel and cargo are entirely enemy property. It is also the practice of some states to relinquish their interest in prizes that consist of vessels belonging to private individuals to the captors ; but the relinquishment does not become effective un- til after adjudication by proper tribunals.^ TREATMENT OF PRIZE— CONDUCTING TO PORT. 129. (a) Captors should care for the persons and property of vessels taken as prize, (b) The prize should in general be sent to the nearest home port nrhere a prize court is sitting. (a) The officer in charge of a prize is under obligation to care for the persons on the vessel, in order that they may re- 3 The Adeline, 9 Cranch, 244, 3 L. Ed. 719. * The Astrea, 1 Wheat. 125, 4 L. Ed. 52. B Rev. St. § 4G52 (U. S. Comp. St. 1001, p. 3139). 6 The Two Friends, 1 Rob. 271. 7 United States v. Dewej-, 188 U. S. 254, 23 Sup. Ct. 415, 47 L. Ed. 463. § 129) TREATMENT OF PRIZE. 301 ceive proper treatment.^ They are not, as formerly, regarded as enemies. Special provision is made for their treatment by the Hague Convention of 1907 with Regard to the Exercise of the Right of Capture in Naval War: "Article V. When an enemy merchant ship is captured by a belligerent, such of its crew as are nationals of a neutral state are not made prisoners of war. "The same rule applies in the case of the captain and of- ficers likewise nationals of a neutral state, if they promise formally in writing not to serve on an enemy ship while the war lasts. "Article VI. The captain, officers, and members of the crew, when nationals of the enemy state, are not made prisoners of war, on condition that they make a formal promise in writing not to undertake, while hostilities last, any service connected with the operations of the war, "Article VII. The names of the persons retaining their liberty under the conditions laid down in article V, paragraph 2, and in article VI, are notified by the belligerent captor to the other belligerent. The latter is forbidden knowingly to employ the said persons. "Article VIII. The provisions of the three preceding ar- ticles do not apply to ships taking part in the hostilities." ^ Special care is enjoined in all regulations, in order that the property may be brought in intact and without injury.^** (b) The general rule is, as stated by the United States : "Prizes should be sent in for adjudication, unless otherwise 8 British Manual of Naval Prize Daw, No. 249. Articles for Gov- ernment of U. S. Navy, No. 17: "If any person in the navy strips off the clothes of, or pillages, or in any manner maltreats, any per- son taken on board a prize, he shall suffer such punishment as a court-martial may adjudge." 8 Scott, Peace Conferences, p. 284. 10 British Manual Naval Prize Law, No. 247: "When any ship or vessel shall be captured or detained, her hatches are to be securely fastened and sealed, and her lading and furniture, and, in general, everything on board, are to be carefully secured from embezzlement; the ofBcer placed in charge of her shall prevent anything from being taken out of her until she shall have been tried, and sentence shall have been passed on her in a Court of Prize." Articles for Govern- ment of U. S. Navy, No. 16. .^02 MARITIME CAPTURE. (Ch. 1(> directed, to the nearest home port in which a prize court may be sitting." ^^ In general, a vessel with prize is admitted to a neutral port only in case of unseaworthiness, stress of weath- er, or want of fuel or provisions, and must leave when the cir- cumstances justifying its entry are at an end. The Hague Convention of 1907 makes provision for the sequestration of prize in a neutral port pending decision of the prize court. The United States, however, adhered to this convention un- der reservation of this article. ^^ SAME— RELEASE. 130. (a) Sometimes prize is released on payment of ransom, -which consists in the repurchase by the original ow^ner from the captor of the property right acquired in the prize. (b) Sometimes prize is released on bail, or by consent of the authorities of the state making the capture. (a) Release on payment of ransom is a repurchase of the right which, at the time, the captors have to the property.^' 11 General Order 492, No. IG, U. S. Navy Departraeut, June 20, 1S9S; Rev. St. § 4617 (U. S. Comp. St. 1901, p. 3127). 12 "Article XXI. A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions. "It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral power must order it to leave at once ; should it fail to obey, the neutral power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew. "Article XXII. A neutral power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in article XXI. "Article XXIII. A neutral power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports. "If the prize is convoyed by a war ship, the prize crew may go on board the convoying ship. "If the prize is not under convoy, the prize crew are left at lib- erty." Rights and Duties of Neutral Powers in Naval War, Appendix, p. 5GG. 13 Maissonaire v. Keating, 2 Gall. 325, Fed. Cas. No. 8,978; Miller V. Resolution, 2 Dall. 15, 1 L. Ed. 2G3. § 130) TREATMENT OF PRIZE. 303 The contract is embodied in a "ransom bill," made out in du- plicate, one copy of which is retained by the commander of the ransomed vessel, and serves as a safe conduct, protecting the vessel from recapture by the bellig-erent or his allies, pro- vided he does not voluntarily depart from the terms of the agreement, as to the port for which he is to sail, as to the course to be pursued, or as to the time agreed upon for making the voyage. Protection is not forfeited in case the vessel is driven from her course by stress of weather. The captor re- tains the other copy of the ransom bill. He may take from the captured vessel a hostage for the payment of the ransom. The ransom bill is discharged if the vessel of the captor, with the hostage and bill on board, be captured by the enemy. If the ransom bill and hostage are transmitted to a place of safe- ty, the ransom is to be paid, even though the captor's vessel be afterward captured. In certain countries the captor is au- thorized to sue directly upon the bill, if the ransom is not paid. In England payment is compelled by or through an action brought by the imprisoned hostage for his freedom. Some states do not favor the practice, others permit it under re- strictions, and others place no formal restrictions upon it, though it is not now common.^* (b) Sometimes prizes are released on bail after a hearing,^ ^ or released pending a decree of the court, particularly if goods which are perishable or rapidly deteriorating are involved. ^^ Release is prompt in case of illegal capture, as when captures are made within neutral jurisdiction or after conclusion of peace. ^^ 1* Power to regulate in King and Council in Great Britain. St. 27 & 28 Vict. c. 25, § 45. The Hoop, 1 Rob. 201 ; Woolsey, Int. Law, p. 449. 15 Tlie George, 2 Wheat. 278, 4 L. Ed. 239. 16 The Alliance, Fed. Cas. No. 244; St. 27 & 28 Vict. c. 2.j, § 26. 17 The Santissima Trinidad, 7 Wheat. 283, 5 L. Ed. 454. 304 MARITIME CAPTURE. (Ch. 16 SAME— APPROPRIATION AND DESTRUCTION. 131. (a) Military necessity Meill justify the captor in appro- priating or in selling prize after appraisal. (b) The destruction of enemy vessels has been allow^ed in case of military necessity, as unseawrorthiness, the pres- ence of infectious disease, the lack of a prize crew, or the imminent danger of recapture. (c) As a general rule, neutral vessels ^trhich have been cap- tured may not be destroyed before adjudication. (d) As an exception, a neutral vessel \srhich w^ould be liable to condemnation may be destroyed ivhen taking her into port for adjudication "xtrould involve danger to the safety of the xp^arship or to the success of the opera- tions in Tirhich she is at the time engaged." (e) As an exception, the captor may demand the handing over, or proceed himself to the destruction, of any goods liable to condemnation found on board a vessel not her- self liable to condemnation, provided the circumstances are such as would involve danger to the safety of the war ship or to the success of the operations in w^hich she is at the time engaged. (a) The Instructions Issued by the Navy Department of the United States in the Spanish-American War, 1898, stated that : "The title to property seized as prize changes only by the decision rendered by the prize court. But if the vessel itself, or its cargo, is needed for immediate public use, it may be con- verted to such use ; a careful inventory and appraisal being made by impartial persons and certified to the prize court. "If there are controlling reasons why vessels may not be sent in for adjudication, as unseaworthiness, the existence of infectious disease, or the lack of a prize crew, they may be appraised and sold." ^* Provision for appropriation is also made in the legislation.^' The United States provides that: "Whenever any captured vessel, arms, munitions, or other material are taken for the use of the United States before it comes into the custody of the prize court, it shall be surveyed, appraised, and inventoried, by persons as competent and im- 18 Geiwral Orders 492, .Tune 20, 1S98, No. 24. 19 St. 27 & 28 Vict. c. 25, § 38. § 131) TREATMENT OF PRIZE. 305 partial as can be obtained, and the survey, appraisement, and inventory shall be sent to the court in which proceedings are to be had." -° These provisions make no distinction between enemy and neutral vessels. (b) The regulations of various states have permitted the de- struction of enemy private vessels in time of war under cer- tain circumstances, usually in cases of unseaworthiness, lack of prize crew, too great distance from prize court, presence of infectious disease, or immediate danger of attack from the enemy.-^ Such regulations also usually enjoin that the crew of the destroyed vessel should be put in a place of safety. It may not be easy to carry out this regulation when the destroy- ing vessel is itself in immediate danger of attack. To take the crew of a merchant vessel on board at such a time would scarcely be to put them in a safe position. Opinion seems however, to be in favor of allowing the destruction of enemy vessels under stress of circumstances. The Institute of Inter- national Law at its session in 1887 drew up rules in regard to this matter.^2 20 Rev. St. § 4G24 (U. S. Comp. St. 1901, p. 3130). 21 "303. In either of the following cases: "(1) If the surveying officers report the vessel not to be in a con- dition to be sent in to any port for adjudication ; or, "(2) if the commander is unable to spare a prize crew to navigate the vessel to a port of adjudication." British Manual Naval Prize Law. 2 2 "Sec. 50. II sera permis au capteur de brftler ou de couler bas le navire ennemi saisi, apros avoir fait passer sur le navire de guerre les personnes qui se trouvaient a bord et decharge autant que pos- sible la cargaison, et apres que le commandant du navire capteur aura pris a sa charge les papiers de bord et les objets importants pour I'enquete judicaire et pour les reclamations des proprietaires de la cargaison en dommanges et iuterets dans les cas suivants. "(1) Lorsqu'il n'est pas possible de tenir le navire a, flot, a cause de son mauvais etat, la mer etant houleuse ; "(2) Lorsque le navire marche si mal qu'il ne i^eut pas suivre le navire de guerre et pourrait facilement etre repris par I'ennemi ; "(3) Lorsque I'approche d'une force ennemie superieure fait crain- dre la reprise du navire saisi ; "(4) Lorsque le navire de guerre ne peut mettre sur le navire saisi WiLS.lNT.L.— 20 306 MARITIME CAPTURE. (Ch. 16 (c) Recent regulations in regard to destruction of prize have made no distinction between enemy and neutral vessels.^* Action by Russian commanders in the Russo-Japanese War, 1904, particularly the sinking of the British steamer. Knight Commander, though in accord with Russian regulations, kd iin equipage siiffisant sans trop diminiier celui qui est n6cessaire 3, sa propre sQrete ; "(5) Lorsque le port oH il serait possible de conduire le navire saisi est trop 61oigne. "Sec. 51. II sera dresse proees-verbal de la destruction du navire saisi et des motifs qui I'ont amenee; se proees-verbal sera transmis k I'autoritg superieure militaire et au tribunal d'instruction le plus proche, lequel examinera et, au beeoin, completera les actes y relatifs et les transmettra au tribunal des prises." 9 Auuuaire de I'lnstitut de Droit Internatioual, 228. 23 "28. If there are controlling reasons why vessels may not be sent in for adjudication, as unseaworthiness, the existence of infec- tious disease, or the lack of a prize crew, they may be appraised and sold ; and if this cannot be done they may be destroyed. The im- minent danger of recapture would justify destruction, if there was no doubt that the vessel was good prize. But, in all such cases, all the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered." General Order 492, U. S. Navy Dept., June 20, 1898. "Article XCI. In the following cases, and when it is unavoidable, the captain of the man of war may destroy a captured vessel, or dis- pose of her according to the exigency of the occasion. But before so destroying or disposing of her he shall transship all persons on board and, as far as possible, the cargo also, and shall preserve the ship's papers and all other documents required for judicial examination: "1. When the captured vessel is in very bad condition and can- not be navigated on account of the heavy sea. "2. When there is apprehension that the vessel may be recaptured by the enemy. "3. When the man of war cannot man the prize without so reduc- ing her own complement as to endanger her safety." Japanese Regulations Governing Captures at Sea, March 7, 1904. "21. In extraordinary cases, when the preservation of a detained vessel proves impossible in consequence of its bad condition or ex- tremely small value (sic), the danger of its recapture by the enemy, or the considerable distance or blockade of the ports, as well as of danger threatening the detaining vessel or the success of its opera- tions, the naval commander is permitted, on his personal responsibil- ity, to burn or sink the detained vessel after having first taken all the people off it, and as far as possible the cargo on board, and also § 131) TREATMENT OF PRIZE. 307 to vigorous protests from neutrals.-* On August 5, 1905, Russia issued supplementary instructions restricting the de- struction of neutral merchant vessels.^^ In case of destruc- tion of a neutral vessel before condemnation, it was uniformly held that the captor was liable, not merely for costs, but also for damages.^® The general tendency among neutrals to close their ports to belligerents with prize makes the problem of dis- position of prize after capture much more difficult. Opinion upon destruction was so divided that the Hague Conference of 1907 was not able to reach a conclusion upon the matter. The subject of destruction of neutral vessels prior to con- demnation was made one of the subjects for the International Naval Conference of 1908-09. The ten naval powers repre- sented at this conference were divided in opinion — some favor- ing great freedom in destruction; others favoring absolute prohibition of destruction before condemnation. All at length favored the enunciation of the general rule prohibiting destruc- tion which appears as article 48 of the Declaration of London, February 26, 1909 : "A captured neutral vessel is not to be destroyed by the cap- tor, but must be taken into such port as is proper, in order to after having taken measures for preserving the documents and other objects on board, and which might prove essential in elucidating mat- ters when the case is examined according to the method prescribed for pri2;e cases." Russian Prize Regulations, March 25, 1895. 24 British Parliamentary Papers, Russia, No. 1 (1905) ; Foreign Relations U. S. 1904, p. 734. 2 5 "Russian vessels were not to sink neutral merchantmen with contraband on board in the future, except in case of direct necessity, but in case of emergency to send prizes into neutral ports." Cases of destruction have received much attention. See Lawrence, War and Neutrality in the Far East, p. 250; Smith & Sibley, Int. Law during Russo-Japanese War, pp. 186, 465 ; Hershey, Int. Law and Diplomacy during Russo-Japanese War, pp. 136, 142, 156; Tak- ahashi. Int. Law during Russo-Japanese War, p. 310. 26 "The general rule, therefore, is that If a ship under neutral colors be not brought to a competent court for adjudication the claim- ants are, as against the captor, entitled to costs and damages. In- deed, if the captor doubt his power to bring a neutral ve.«sel to ad- judication, it is his duty to release her." The Leucade, Spinks, 217. See, also, The Acteon, 2 Dod. 48; The Felicity, 2 Dod. 381, 308 MARITIME CAPTURE. (Ch. 16 determine there the rights as regards the vahdity of the cap- ture." '^ (d) It was, however, found that in practice exceptions were made to the general prohihition of prize destruction. It was admitted that when a neutral vessel, which would certainly be condemned, involved "danger to the ship of war or to the success of the operations in which she was at the time en- gaged," the neutral vessel might be destroyed. The provision of the Declaration of London was as follows : "Article 49. As an exception, a neutral vessel which has been captured by a belligerent ship, and which would be liable to condemnation, may be destroyed if the observance of ar- ticle 48 would involve danger to the safety of the ship of war or to the success of the operations in which she is at the time engaged." The crew and persons on board and the ship's papers must be placed in safety. The destruction of neutral prizes is more fully discussed under section 185, page 412. (e) Article 54 of the Declaration of London provides that : "The captor has the right to require the giving up, or to proceed to destroy, goods liable to condemnation found on board a vessel which herself is not liable to condemnation, pro- vided that the circumstances are such as, according to article 49, justify the destruction of a vessel liable to condemnation. The captor enters the goods delivered or destroyed in the log book of the vessel stopped, and must procure from the master duly certified copies of all relevant papers. When the giving up or destruction has been completed, and the formalities ful- filled, the master must be allowed to continue his voyage." The captor is liable to damages if he has not full justifica- tion for his action, as under the provisions for destruction of vessels.^* 2 7 Declaration of London, February 26, 1909, art. 48, Appendix, p. 581. See, also, British Parliamentary Papers, Miscellaneous No. 4 ajid No. 5 (1909). 28 Id. c. IV, p. 582. 132) PRIZE MONEY AND BOUNTY. 309 PRIZE MONEY AND BOUNTY. 132. (a) The proceeds of prize capture after condemnation are sometimes distributed among the captors. (b) The distribution may be according to statutory regula- tion, or in absence of such regulation according to precedent or general principles. (c) Bounty is sometimes alloxired w^hen vessels are sun^ or de- stroyed before adjudication. (a) The policy in regard to distribution of the proceeds of prize capture among those participating in the capture has varied, but since the seventeenth century has been generally allovi^ed and regarded as a stimulus for those engaged in war.^* It is still allowed by most states,^** but v^as abolished in the United States after the Spanish-American War.'^ By those who regard the object of naval war as the destruction of the enemy's naval strength, the diversion of attention to capture for the sake of prize money is considered contrary to good military policy. (b) The distribution of prize money is usually determined by municipal regulation, and as a general principle, in absence of regulations, vessels participate in the proceeds of prize in proportion to their participation in the capture. Those vessels within "signal distance," in condition "to render effective aid if required," are usually entitled to share. The question as to what constitutes "signal distance" has always given rise to dif- ficulties,^^ which may be multiplied by the introduction of radio-telegraph. How far different vessels and land forces, and in what proportion different grades of officers and mem- 28 4 Dods. p. 316, note. 30 Determined in Great Britain according to Royal Proclamation, August 3, 1886. 31 "All provisions of law authorizing the distribution among cap- tors of the whole or any portion of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed." Act March 3, 1899, 30 Stat. 1007 (U. S. Comp. St. 1901, p. 1072). 82 The Mangrove, 188 U. S. 720, 23 Sup. Ct. 343, 47 L. Ed. 6G4. r>lO maritime: capture. (Ch. 10 bers of the crew, are entitled to participate, are questions which have received much consideration.''^ (c) "When captors take a lawful prize, they have alterna- tive duties — to save it, if practicable; to destroy it, if it be impracticable to save it. The first duty insures prize money and other elements of the right existing; the second duty in- volves the sacrifice of prize money, and the pecuniary reward is in the form of bounty." ^* PRIVATEERS. 133. A private armed vessel, ovrned and officered by private persons, acting under a commission from the state, ivas called a "privateer." The practice of commissioning private vessels for service in war seems to have prevailed in the beginning of the fif- teenth century. The term "privateer" seems to have been used in the time of Charles II of England to designate a private vessel em- ployed by the admiralty to prey upon an enemy. Fifty years later, in the early eighteenth century, they were not much re- garded, "because the manner of such warring is new and not very honorable ; but the diligence of our enemies in this pirat- ical way obliges us to be also diligent for the preservation of our commerce." ^° 3 3 Dewey v. United States, 178 U. S. 510, 20 Sup. Ct. 981, 44 L. FM. 1170 ; United States v. Dewey, 188 U. S. 254, 23 Sup. Ct. 415, 47 L. Ed. 463. Britisti Royal Proclamation of August 3, 1886, allowed, with many possibilities of modification: Flag officer or officers, one-thirtieth, Captains or commanding officers, one-tenth of remainder. Remainder of ship's company divided into eleven classes, members of the lowest class, as signal boy, to receive one share and the high- est class, as staff captain, to receive forty-five shares. Prize Act U. S. 1864, § 10, provided that admiral should receive one-twentieth. 34 The Santo Domingo (D. C.) 119 Fed. 386 ; United States v. Tay- lor, ISS U. S. 283, 23 Sup. Ct. 412, 47 L. Ed. 477. 3 5 Sea Laws, p. 472. § 133) PKIVATEERS. 311 Sweden in 1675 made a treaty with the United Provinces mutually forbidding privateering. The United States made a similar treaty with Prussia in 1785. Article XXIII: "If war should arise between the two contracting parties, * * * neither of the contracting powers shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such com- merce." On the renewal of the treaty in 1799 this clause was omitted. Franklin, who negotiated the treaty of 1785, strove earnestly for the abolition of privateering and for the exemp- tion of private property from capture. There were many laws and treaties forbidding resort to privateering, but it did not disappear. In 1856 the Declaration of Paris provided: "Privateering is and remains abolished." The United States was willing to adhere to this Declaration, provided there was added a clause "that the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent, unless it be contraband." This clause was not added. The United States, Spain, Mexico, and China were among the im- portant states which did not adhere to the Declaration.^^ The United States did, however, declare at the outbreak of the Spanish-American War in 1898 that the government would not resort to privateering.^^ Spain declared on the 23d of April, 1898, that she retained her right to issue letters of marque, yet that she would "organize for the present a service of auxiliary cruisers of the navy, composed of ships of the Spanish mercantile navy, which will co-operate with the latter for the purposes of cruising, and which will be subject to the 3 6 Spain defluitely adhered to the Declaration of Paris January 18, 190S, and Mexico on February 13, 1909. 3 7 "Whereas, by an act of Congress approved April 25, 1898, it is declared that war exists and that war has existed since the 21st day of April, A. D. 1S9S, including said day, between the United States of America and the kingdom of Spain ; and "Whereas, it being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice, it has already been announced that the policy of this government will be not to resort to privateer- ing, but to adhere to the rules of the Declaration of Paris." Foreign Relations U. S. 1898, p. 772, 312 MARITIME CAPTURE. (CL. IG statutes and jurisdiction of the navy." Spain did not use privateers during the war. It may be said that at present there seems to be Httle tendency to return to privateering. The vokmteer and auxiliary navy make it possible for a state to utilize its resources in an efficient and reg^ulated manner. VOLUNTEER, AUXILIARY, OR SUBSIDIZED VESSELS. 134. 'Wliile privateering is abolished, the private vessels of a state have by various plans been brought into public service in time of ^var as volunteer, auxiliary, or sub- sidized vessels.^s As a general proposition it may be maintained that a state should be allowed to use its resources to protect itself in time of war and to preserve its existence. On land a militia is re- garded as a perfectly legitimate aid to the regular army, and in extreme cases the levies en masse are recognized as legiti- mate hostile forces. It is not reasonable to suppose that the resources of the belligerent on the sea will not be summoned to aid in the preservation of state existence. These resources are liable to attack. They will, so far as possible, be called into service. Horses, wagons, railroads, cars, telegraphs, etc., are called into service on land; corresponding agencies will be called into service on the sea. The owners of German vessels were invited by Prussia, during the Franco-Prussian War of 1870, to fit them out for attack upon French ships of war, for which service large pre- miums were offered.^® The crews of these vessels were to be furnished by the owners of the vessels, but were to be under naval discipline. The officers were to be in the same uniform as the regular naval officers, and furnished with temporary commissions. The French government protested against this 3 8 There seems to be, however, no valid objection to the employ- ment in war of vessels of the mercantile marine, provided that they shall have been duly incorporated into the belligerent navy, that their officers hold naval commissions, and that they are under naval orders and discipline. Report Royal Commission on Supply of Food and Raw Material in Time of War, 1905, vol. I, p. 22; The Panama, 176 U. S. 535, 20 Sup. Ct. 480, 44 L. Ed. 577. 3 9 Royal Prussian Decree, July 24, 1870. § 134) VOLUNTEER, AUXILIARY, ETC., VESSELS. 313 volunteer navy as being a violation of the treaty of Paris, which abolished privateers; but the English government found that there were substantial differences between the pro- posed vessels and those against which the Declaration of Paris was directed.*" The objection to the continuance of privateering was large- ly due to the lack of government control over those engaged in the practice. This control is easily exercised over those aiding in military operations on land, because a representa- tive of the government is usually at hand to direct the move- ments. An equal degree of control may be exercised in the case of volunteer, auxiliary, and subsidized vessels maintained by a government, officered and manned by the paid servants of that government, and operated under its direction. The use of such vessels is a matter of great importance, and there seems to be no reasonable objection to their employment for any and all purposes of naval warfare, provided that the proper degree of government control is maintained. Several states have volunteer, auxiliary, or subsidized ves- sels at the present time. The conditions under which these vessels are bound to the respective states vary, and the obli- gations resting on the vessels also vary. Russia, fearing a possible conflict in consequence of the situation in the East in 1877-78, considering that her regular fleet would not be adequate and that her merchant marine did not possess vessels easily convertible into vessels suit- able for warlike purposes, readily adopted the plan of incor- porating into the naval force certain vessels purchased by a private association of patriotic citizens. These vessels were to be under the control of the naval authorities and to be offi- cered by naval commanders. The captain and at least one other oflicer on each ship is a regular imperial commissioned officer. These vessels are equipped so as to be convertible at once into vessels for warlike use. In time of peace these vessels are principally engaged in public service, though they fly the merchant flag and are privately owned. France has a direct arrangement with certain companies 40 6 British State Papers, 692. 314 MAUITIME CAPTURE. (Cll. 16 whereby vessels are constructed on plans approved by the admiralty which make possible the conversion of these ves- sels into vessels for warlike use. The vessels are commanded by officers of the navy. At the opening of hostilities they may be incorporated in the war fleet. Great Britain in 1887 concluded agreements with several important steamship companies. In return for an annual sub- sidy, these companies agree in time of war to turn over certain last vessels at an appraised valuation and to build ships on plans approved by the admiralty. As the law officers of the British crown were consulted in regard to the legality of the plans of Prussia for a volunteer navy in 1870, it may be sup- posed that the agreement made in 1887 by the British govern- ment does not fail to meet the requirements of legality. By the act of May 10, 1892, after provisions in regard to registration, tonnage, speed, ownership, etc., it is provided in section 4 as follows : "That any steamship so registered under the provisions of this act may be taken and used by the United States as cruisers or transports upon payment to the owners of the fair actual value of the same at the time of the taking, and if there shall be a disagreement as to the fair actual value at the time of taking between the United States and the owners, then the same shall be determined by two impartial appraisers, one to be appointed by each of said parties, who, in case of disagree- ment, shall select a third, the award of any two of the three so chosen to be final and conclusive." *^ The question of commissioning and regulating the activities of volunteer vessels was raised and discussed in consequence of the action in 1901 of the Smolensk and the Peterburg of the Russian volunteer fleet. ^^ The Hague Conference of 1907 considered the question of the conversion of merchant ships into war ships and adopted a convention upon this subject: 41 27 Stat. 27 (U. S. Comp. St. 1901, p. 2806). 4 2 Int. Law Topics and Discussions, 1906, U. S. Naval War Col- lege, 105; Hersliey, Int. Law and Diplomacy, Russo-Japanese War. 136; Lawrence. War and Neutrality in Far East (2d Ed.) 204; Smitli & Sibley, Int. Law during Russo-Japanese War, 40. § 134) VOLUNTKER AUXILIARY, ETC., VESSELS. 315 "Article I. A merchant ship converted into a war ship can- not have the rights and duties accruing- to such vessels, unless it is placed under the direct authority, immediate control, and responsibility of the power whose flag it flies. "Article II. Merchant ships converted into war ships must bear the external marks which distinguish the war ships of their nationality. "Article III. The commander must be in the service of the state and duly commissioned by the competent authorities. His name must figure on the list of the officers of the fighting fleet. "Article IV. The crew must be subject to military disci- pline. "Article V. Every merchant ship converted irrto a war ship must observe in its operations the laws and customs of wars. "Article VI. A belligerent who converts a merchant ship into a war ship must, as soon as possible, announce such conversion in the list of war ships." This convention embodies and makes more definite the principles which have been generally followed in practice since 1870, when Germany made her propositions in regard to a voluntary naval force. It regulates somewhat more care- fully the use of such vessels after they are enrolled in the public forces. Many questions arose at the Hague Confer- ence of 1907 which made impossible the formulation of gen- erally acceptable rules on all points in regard to the conver- sion of merchant ships into war ships. Some of the delegates were absolutely opposed to conversion except in a home port. While some of the delegates were generally opposed to con- version on the high seas, they wished to make exceptions in favor of merchant vessels which had left national ports be- fore the outbreak of hostilities, and in favor of the conver- sion of merchant vessels captured from the enemy on the high sea and adapted to warlike use. Some thought that the abo- lition of capture of private property at sea would lead a bel- ligerent to change a ship from a war status to a merchant status, if in danger of capture, in order to bring it under the exemption. Great freedom of conversion and reconversion 316 MARITIME CAPTURE. (Ch. 16 was favored by a few of the delegates. The need that the character of a vessel be clear to a neutral was generally main- tained. Upon the question justly regarded as the most difficult, "the question whether the conversion of a merchant ship into a war ship may take place upon the high seas," the contracting powers have been unable to come to an agreement. As the preamble of the seventh convention states, "the question of the place where such conversion is effected remains outside of the scope of this agreement" and is in no way affected by its rules. Thus it is evident that, while provision is made for the abolition of the evils of privateering, there remains for a later conference the agreement upon such difficult questions as those of conditions under which a converted vessel may be reconverted into a war vessel and the place where conversion and reconversion may be allowed.*^ The questions of conversion and reconversion were again considered in the International Naval Conference' of 1908-09, but it was not possible to reach a solution which would com- mand general support. 43 Wilson, Conversion of Merchant Ships into War Ships, 2 A. J. 1. 271. I 135) RULES OF WAR. 317 CHAPTER XVII. RULES OF WAR. 135. Regulation of Belligerent Action. 136. Prohibited Means. 137. Prohibited Methods. 138. Special Regulations— Bombardment. 139. Submarine Mines and Torpedoes. 140. Discharge of Projectiles and Explosives from Balloons. 141. Spies. REGULATION OF BELLIGERENT ACTION. 135. In modern times the range of permissible belligerent ac- tion has been gradually defined by domestic regula- tions, by special conventions, and by general conven- tions. In early times there was little or no restriction upon what •one belligerent might do to his opponent. It is now customary for states to issue regulations to their forces for the conduct of hostilities, as was done by both par- ties to the Russo-Japanese War of 1904. A Japanese regula- tion in regard to procedure in capturing vessels (article XLII) states that : "The boarding officer, before he leaves the vessel, shall ask the master whether he has any complaint regardmg the procedure of visiting or searching, or any other points, and if the master makes any complaints he shall request him to produce them in writing." There are also treaties between different states in which certain articles are inserted with special reference to the reg- ulation of hostilities.^ At the Hague Peace Conferences of 1899 and 1907, and at the International Naval Conference at London in 1908-09, general conventions for the regulation of hostilities were agreed upon and to these many states have ad- hered. There are thus at the present time generally recognized rules for the conduct of hostilities.^ 1 Treaty between United States and Italy, 1871. 2 See Conventions in Appendices. 318 RULES OF WAR. (Cb. 17 Gradually there arose a feeling, stimulated by the influence of the age of chivalry, that even the conduct of war should be regulated. Provisions of treaties were drawn with view that they should become effective on the outbreak of war. States made declarations in regard to the course which they would pursue under given circumstances. The necessity of fixed rules was particularly evident during the early years of the Civil War in the United States. Vast armies were gath- ered. Many leaders were naturally unacquainted with the laws and customs of war, and the decisions in different parts of the great area of operations were often conflicting. After two years of warfare the Secretary of War requested Profes- sor Francis Lieber to prepare a code of rules for the use of the armies. There were not at that time conventional agree- ments as to the rules of warfare. Dr. Lieber prepared a body of rules numbering one hundred and fifty-seven. These ar- ticles were submitted to a board of officers, and on April 24, 1863, issued as General Order No. 100.^ These rules were particularly aimed to cover a condition of civil war. They were, however, so equitable in spirit that they have been wide- ly accepted as the standard statement of what the rules of war upon land should be. The rules published under General Or- der No. 100, in 1863, as "Instructions for the Government of Armies of the United States in the Field," were issued with- out change for the government of the army of the United States in the Spanish-American War of 1898. These rules strongly influenced the form of later codes. Count von Moltke, on December 11, 1880, writing on the proposed Oxford Manual of Laws of War, said : "Perpetual peace is a dream, and it is not even a beautiful dream. War is an element in the order of the world ordained by God. In it the noblest virtues of mankind are developed — courage and the abnegation of self, faithfulness to duty, and the spirit of sacrifice. The soldier gives his life. Without war the world would stagnate, and lose itself in materialism. * * * I am of opinion that in war, where everything must be individual, the only articles which will prove efficacious are those which are addressed specifically to commanders. Such 3 Appendix, p. 4S8. § 136) PROHIBITED MEANS. 319 are the rules of the manual relating to the wounded, the sick, the surgeons, and medical appliances." In his reply to Count von Moltke's letter, Professor Blunt- schli says : "The administration of the law of war ought therefore to be intrusted primarily to the state which wields the public power in the place where an offense is committed. No state will lightly, and without unpleasantness and danger, expose itself to a just charge of having neglected its international du- ties. It will not do so even when it knows that it runs no risk of war on the part of neutral states. Every state, even the most powerful, will gain sensibly in honor with God and man if it is found to be faithful and sincere in respect and obedi- ence to the law of nations. "Should we be deceiving ourselves if we admitted that a belief in the law of nations, as in a sacred and necessary au- thority, ought to facilitate the enforcement of discipline in the army and help to prevent many faults and many harmful ex- cesses? I, for my part, am convinced that the error, which has been handed down to us from antiquity, according to which all law is suspended during war, and everything is al- lowable against the enemy nation — that this abominable error can but increase the unavoidable sufferings and evils of war without necessity, and without utility from the point of view of that energetic way of making war which I also think is the right way." * Within twenty years from the date of Count von Moltke's letter the states of the world had at the Hague Conference agreed upon rules for warfare far more detailed than those proposed in the Oxford Manual. PROHIBITED MEANS. 136. In general the prohibited means of injuring the enemy include — (a) Such instruments or 'weapons as cause unnecessary suf- fering. Cb) Such as constitute hidden peril or are uncertain in their effect. * Holland, Letters on War and Neutrality, pp. 25-29. 320 RULES OF WAR. (Ch. 17 While in early days it was a maxim that "all was fair in war," this has long since ceased to be the case, and the use of certain instruments or means of injuring the enemy is posi- tively prohibited. Means of warfare which are new or mys- terious have often been prohibited or looked upon with dis- favor for a period.^ Maine says : "One of the most curious passages of the history of armament is the strong detestation which certain inventions of warlike implements have in all centuries provoked, and the repeated attempts to throw them out of use by denying quarter to the soldiers who use them. The most unpopular and detested of weapons was once the crossbow, which was really a very ingenious scientific inven- tion. The crossbow had an anathema put on it, in 1139, by the Lateran Council, which anathematized artem illam morti- fera et Deo odibilem. The anathema was not without effect. Many princes ceased to give the crossbow to their soldiers, and it is said that our Richard I revived its use with the result that his death by a crossbow bolt was regarded by a great part of Europe as a judgment. It seems quite certain that the condemnation of the weapon by the Lateran Council had much to do with the continued English employment of the older weapon, the longbow, and thus the English successes in the war with France. But both crossbow and longbow were before long driven out of employment by the musket, which is in reality a smaller and much improved form of the cannon that at an earlier date were used against fortified walls. During two or three centuries all musketeers were most se- verely, and as we should now think most unjustly, treated. The Chevalier Bayard thanked God in his last days that he had ordered all musketeers who fell into his hands to be slain without mercy. He states expressly that he held the introduc- tion of firearms to be an unfair innovation on the rules of lawful war. Red-hot shot was also at first objected to, but it was long doubtful whether infantry soldiers carrying the musket were entitled to quarter. Marshal Mont Luc, who has left Memoirs behind him, expressly declares that it was the usage of his day that no musketeer should be spared." * 6 Nys, Les Origines du Droit Int. p. 192. « Maine, Int. Law, p. 1S3. § 136) PROHIBITED MEANS. 321 (a) The use of poisoned weapons is generally prohibited. The use of arms or projectiles which cause unnecessary suf- fering is also prohibited. Such projectiles as copper bullets, or explosive or expanding bullets, are of this class. Barbed bayonets, lances with detachable heads, etc., are regarded as instruments causing unnecessary suffering.'^ (b) The use of poison, the launching of projectiles from balloons, and the use of certain submarine mines and tor- pedoes is contrary to conventional agreements.^ A declaration which has been signed by all the states rep- resented at the First Hague Peace Conference except the United States is to the effect that "the contracting powers agree to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases." Captain (Admiral) Mahan explains the opposition to the dec- laration by the United States representatives as follows : "As a certain disposition has been observed to attach odium to the view adopted by this commission in this matter, it seems proper to state, fully and explicitly, for the information of the government, that on the first occasion of the subject aris- ing in subcommittee, and subsequently at various times in full committee and before the conference, the United States naval delegate did not cast his vote silently, but gave the reasons, which at his demand were inserted in the reports of the day's proceedings. These reasons were, briefly: (1) That no shell emitting such gases is as yet in practical use, or has undergone adequate experiment, consequently a vote taken now would be taken in ignorance of the facts as to whether the results would be of a decisive character, or whether injury in excess of that necessary to attain the end of warfare — the immediate dis- abling of the enemy — would be inflicted. (2) That the re- proach of cruelty and perfidy, addressed against these sup- posed shells, was equally uttered formerly against firearms and torpedoes, both of which are now employed without scruple. Until we knew the effects of such asphyxiating 1 Laws aud Customs of War on Land, article XXIIT, Appendix, p. 541. 8 Id. ; Discharge of Projectiles and Explosives from Balloons, post, p. 326; Submarine Contact Mines, post, p. 324. WiLS.lNT.L.— 21 322 RULES OF WAR. (Cll. 17 shells, there was no saying whether they would be more or less merciful than missiles now permitted. (3) That it was illogical and not demonstrably humane to be tender about asphyxiating men with gas, when all were prepared to admit that it was allowable to blow the bottom out of an ironclad at midnight, throwing 400 or 500 into the sea, to be choked by water, with scarcely the remotest chance to escape. If, and when, a shell emitting asphyxiating gases alone has been suc- cessfully produced, then, and not before, men will be able to vote intelligently on the subject." • PROHIBITED METHODS. 137. In general, tlie prohibited methods of injuring the enemy include — (a) Acts involving perfidy or treachery. (b) Acts causing suflFering or damage disproportionate to the military ends secured. (a) Acts involving perfidy or treachery are in general for- bidden, though ruses of war and deceit not involving perfidy are allowed.^" It is forbidden to kill or wound individuals of the enemy's forces by treachery, to misuse the flag of truce or the Red Cross flag, or to make false use of the national flag or military insignia of the enemy in war on land, though the use of enemy or of false colors in maritime warfare is not prohibited. The prohibition of the use of false colors at sea has been strongly urged. ^^ (b) Many acts formerly allowed are now prohibited as causing suffering or damage disproportionate to the military ends secured. Such acts include refusal of quarter, killing of enemy who has surrendered, unnecessary destruction of enemy property, pillage, confiscation of private property, or bombard- ment of undefended places, except in maritime war, when rea- sonable requisitions are refused. The belligerent is forbidden » Holls, Peace Conference at The Hague, p. 494. »o Laws and Customs of War on Land, articles XXIII, XXIV, Appendix, p. 541. 11 Int. Law Topics and Discussions, U. S. Naval War College, 1906, pp. 7-20. § 138) SPECIAL REGULATIONS. 323 to compel nationals of the enemy to take part in war against their own state, to furnish information in regard to the means of defense, or to swear allegiance to a hostile state. The belligerent is also bound to respect the personal rights of the nationals of the enemy state as to family honor, property, religion, etc. These prohibitions are quite fully set forth in the Has:ue Conventions of 1907. SPECIAL REGULATIONS— BOMBARDMENT. 138. (a) Bombardment of undefended tow^ns or buildings by land forces is probibited. (b) Bombardment of undefended toxvns or buildings by naval forces, except i^ben reasonable requisitions for neces- sary supplies are refused, is prohibited. (c) In all cases of bombardment, xcrbether of defended or un- defended places, due care should be taken to restrict tbe action to military ends. (a) The rules for land warfare prescribe that "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended, is prohib- ited." 12 (b) Similarly the bombardment of undefended towns and buildings by naval forces is forbidden. The presence of sub- marine contacfmines off the harbor is not regarded as sufficient cause for bombardment. The destruction of military re- sources by bombardment, if they cannot otherwise be reached, is permitted. The refusal of money contributions is not a sufficient cause for bombardment, though the failure to comply with a request for a reasonable amount of supplies necessary at the time may be a cause for bombardment by naval forces. ^^ (c) Nonmilitary buildings, etc., are liable to the damages incident to bombardment. The action is, however, carefully regulated by convention : "Article V. In bombardments by naval forces all the nec- essary measures must be taken by the commander to spare 12 Hague Convention, Laws and Customs of War on Land, article XXV, Appendix, p. 541. 13 See Hague Conventions, 1907, Bombardment by Naval Forces in Time of War, Scott, Peace Conferences, p. 2G1. 324 RULES OP WAR. (Cll. 17 as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not used at the same time for military purposes. "It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large fixed rectangular panels divided diagonally into two colored triangular portions, the upper portion black, the lower portion white." "Article VI. If the military situation permits, the com- mander of the attacking naval force, b'^fore commencing the bombardment, must do his utmost to warn the authorities." ^* SAMB— SUBMARINE MINES AND TORPEDOES. 139. By the Hague Convention of 1907, it is forbidden: "(a) To lay unandiored automatic contact mines, except 'wlien they are so constructed as to become harmless one hour at most after the person ^vho laid them ceases to control them. "(b) To lay anchored automatic contact mines ivhich do not become harmless as soon as they have broken loose from their moorings. "(c) To use torpedoes Tcrhich do not become harmless xrhen they have missed their mark." There was much discussion as to the propriety of the use of torpedoes when that method of warfare was first introduced. As soon, however, as it was assured that the belligerent could control the action of the torpedo to a reasonable degree, the opposition disappeared. There has been a like opposition to the use of submarine mines. The subject of the use of submarine mines was con- sidered at the Hague Conference in 1899, and again in 1907. The Second Conference reached the conclusion embodied in the Convention Relative to the Laying of Automatic Contact Submarine Mines, prohibiting the laying of such mines except under condition that by construction they would, if unan- chored, become harmless one hour after they ceased to be un- 14 Id. p. 2G3, § 139) SPECIAL REGULATIONS. ^5 cler control, or would, if anchored, become harmless on break- ing- adrift. The laying of such mines was also prohibited when the sole purpose was to intercept commercial shipping. The convention also prohibited the use of torpedoes "which do not become harmless when they have missed the mark." The aim of this convention is to remove the dangers from peaceful navigation without unduly limiting belligerent opera- tions. Neutral powers are also permitted to lay mines during war under restrictions. Provision is made for the removal of mines at the close of war. A large degree of freedom in mat- ter of construction is allowed for a time, because states not having mines of the pattern contemplated in the convention are merely "to convert the material of their mines as soon as possible, so as to bring it into conformity with the foregoing requirements." ^^ This convention has been widely criticised and was not wholly satisfactory to those who signed. Westlake says of the use of floating mines : "There is no certainty that floating mines, even if anchored at first, will not get loose, nor even much probability that a large percentage will not get loose. Thus the employment by a belligerent, even in his own ter- ritorial waters, or in those of his enemy, which merchantmen may be expected to avoid during war, of contact mines which do not become innocuous as soon as they get loose, is a cause, lying well within the limits of human foresight, of slaughter and damage to peaceable neutrals engaged in their lawful oc- cupations in waters where they have a perfect right to be. During all the two years which have elapsed since the close of the Russo-Japanese War, the seas of the Far East have continued to be the scene of disasters which the employment of such mines in that contest has caused to peaceful shipping and fishermen. Now the right of a state in the waters subject to its sovereignty can certainly not rank higher than that of a private owner in the land or water which is his property. Still less, if possible, can the right of a state in the open sea, which is free to the use of all, rank higher than that of prop- erty. But no principle is more firmly established in the science of law than that which says to an owner, 'sic utere tuo ut 15 Id. p. 255, Hague Convention, 1907, Submarine Contact Mines. 326 RULES OP WAR. (Cb. 17 alienum non laedas.' The right of sovereignty, therefore, does not extend to employing anywhere what may be foreseen to be engines of slaughter and damage to unoffending foreigners. The foreign government whose subjects suffer from such en- gines does not need to inquire whether their use is prohibited by any positive rule of international law, whether resting on recognized custom or an agreement. They are indefensible in themselves, and the foreign government concerned will be justified, not only in taking up the cause of its injured sub- jects, but it will not have exceeded its rights if it interferes in order to stop the offending methods of war." ^" The belligerent action during the Russo-Japanese War em- phasized the need of control of the use of submarine mines. . The Chinese delegate at the Second Hague Convention re- ported that it was estimated that five hundred or six hundred Chinese had lost their lives by the sinking of many small Chinese vessels which had, in spite of all precautions and while innocently employed, run upon mines that were adrift.^'' The Hague Convention Relative to the Laying of Auto- matic Contact Submarine INIines, of 1907, provides only in part for the regulation of this means of warfare. Many states are in favor of additional restrictions, particularly in order that neutral interests may be more effectively protected. SAME— DISCHARGE OF PROJECTILES AND EXPLOSIVES FROM BALLOONS. 140. The Second Hague Peace Conference prohibited "for a period extending to the close of the Third Conference, the discharge of projectiles and explosives from bal- loons or by other ne^ir methods of a similar nature." This declaration in regard to the use of balloons and other new methods of warfare of similar nature is a renewal of the declaration to the same effect adopted by the First Peace Conference in 1899, to continue for a period of five years from July 29, 1899. The term, therefore, expired during the ic Westlake, Int. Law. pt. II, War. p. 322. i" 3 La Dcnixieme Conference, p. 663. § 141) sriES. 327 Russo-Japanese War on July 29, 1904; but neither party to that war used balloons for such purposes. The present decla- ration is to continue effective to the close of the Third Peace Conference,^® which the Second Peace Conference recom- mended should be assembled after a period corresponding to that between the First and Second Conferences. The declaration in regard to the use of balloons is, of course, binding only upon the signatory powers, and several of the more important states of the world do not seem inclined to bind themselves, even till the close of the Third Peace Con- ference, and have refrained from signing. SPIES. 141. A spy is a person 'who, acting clandestinely or under false pretenses, obtains or endeavors to obtain informa- tion in tbe zone of operations of a belligerent, ^^tb tbe intention of communicating it to the enemy.is The aim of this regulation is to define the class who, be- cause acting in a manner especially dangerous to a belligerent, are liable to special treatment. This may be death by hanging. No penalty shall be inflicted without previous trial, nor if the spy is captured after rejoining his army. To act as a spy is not necessarily regarded as dishonorable, but is to act at risk of extreme penalty. Those who obtain information openly in their proper persons as soldiers in proper uniform, persons in balloons, or a bearer of a flag of truce, who reports what he observes without effort to spy, are not liable to treatment as spies. Treatment as spies was threatened by Prussian officers to those obtaining information by means of balloons in the Franco-Prussian War in 1870, and by the Russian Admiral Alexeiff in the Russo-Japanese War in 1904 to those "com- municating war news to the enemy by means of improved ap- paratus for which provision has not yet been made in existing 18 Hague Declaration, 1907, Discharging Projectiles from Balloons. 19 Hague Convention, 1907, Laws and Customs of War on Land, articles XXIX-XXXI, Appendix, p. 542. 328 RULES OF WAR. (Ch. 17 conventions." While certain balloonists captured in 1870 were severely treated, they were not condemned as spies. The posi- tion assumed in the Russian declaration of 1904 was generally opposed, and no one was treated as a spy under its provisions. It may be said that there is lacking in such cases the essential element of clandestine conduct. § 142) MILITARY OCCUPATION AND GOVERNMENT. 320 CHAPTER XVIII. MILITARY OCCUPATION AND GOVERNMENT. 142. Military Occupation. 143. Military Government. 144. Exercise of Military Authority in Occupied Territory. 145. Martial Law. 146. Military Law, Courts-Martial, etc. 147. Cessation of Military Control. HOSTILE MILITARY OCCUPATION. 142. Tlie effective holding by a hostile military force of & territory of the enemy constitutes hostile military oc- cupation. Military occupation should be distinguished from conquest and from military control. "The term 'conquest,' as it is ordinarily used, is applicable to conquered territory the moment it is taken from the enemy ;. but, in its more limited and technical meaning, it includes only the real property to which the conqueror has acquired a com- plete title. Until the ownership of such property so taken is confirmed or made complete, it is held by the right of mili- tary occupation (occupatio bellica), which, by the usage of nations and the laws of war, differs from, and falls short of,, the right of complete conquest (debellatio, ultima victoria)." ^ Military control implies simply the exercise of authority by the military force rather than by civil officials. Military control may, and often does, continue after an occupied territory has been ceded to the enemy which occupied it, as in the case of Porto Rico after the treaty of peace between Spain and the United States in 1898.^ Military occupation is an incident of war, and as such is not political in its effects. •'' It does not transfer sovereignty, but 1 2 Halleck, Int. Law (4th Ed.) p. 465. 2 Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074. 3 See Magoon, The Law of Civil Government under Military Oc- cupation; 1 Moore. Int. Law Digest, § 21 ; 7 Id., §§ 1143-1155; 2 Hal- leck, Int. Law, c. XXXIII. t^30 MILITARY OCCUPATION AND GOVERNMENT. (Cll. 18 gives to the invading force the right to exercise control for the period of occupation.* The nature and extent of this con- trol will be determined by circumstances, as by the proximity of the occupied territory to the seat of hostilities. Formerly no distinction was made between occupation and conquest. Karly writers regarded effective occupation as equivalent to the acquisition of title to a region, and did not consider a treaty or other sanction as essential. Pufendorf discusses this matter fully, and argues that the sovereignty must be estab- lished by other means than simple exercise of force, which is simply a physical fact, which may or may not have a political significance.-'^ Writers of the eighteenth century began to dif- ferentiate conquest and occupation. They maintained that the inhabitants of the occupied territory should not be treated as enemies, but as subjects for the time being." In 1815 a judg- ment of the Supreme Court of the United States affirmed that, "although acquisitions made during war are not consid- ered as permanent until confirmed by treaty, yet to every com- mercial and belligerent purpose they are considered as a part of the domain of the conqueror, so long as he retains the pos- session and government of them." ' According to a decision of the same court in 1901, during military occupation military authority supersedes civil authority to the extent deemed nec- ecessary and in accord with the laws of war.^ According to the Hague Convention of 1907 : "Territory is considered occupied when it is actually placed under the au- thority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." ^ Military occupation is therefore a question of fact, because one or the other state must be competent to exercise authority. 4 Downes v. Bidwell, 182 U. S. 345, 21 Sup. Ct. 770, 45 L. Ed. 1088. 5 Pufendorf, De Jure Natural, bk. VII, c. VII, 3fE. 6 Wolf, Institutiones Juris Natural et Gentium, MCCIV; Vattel, Le Droit de Gens, § 197ff. 7 Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 3 L. Ed. 701. 8 Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074. 9 Hague Convention, 1907, Laws and Customs of War on Laud, art. XLII, Appendix, p. 543. § 143) MILITARY GOVERNMENT. 331 If the hostile army is in control, it is within the authority of that belHgerent to govern the region over v^hich it has in fact the power.^" As the military occupation is a fact, the beginning and end- ing of military occupation is determined by the presence or absence of an effective military force in a hostile territory, or by a treaty which fixes the status of the occupied territory. When military force is withdrawn, the occupation ceases, and the national government assumes sway. When a treaty trans- fers an occupied territory to the sovereign of the occupying forces, military occupation ceases, though the military forces may remain, and military control may continue. MILITARY GOVERNMENT. 143. Tlie organization througli ivhicli the authority is exer- cised in a region under military occupation constitutes the military government. "Military government — that is, the administration of the affairs of civil government exercised by a belligerent in terri- tory of an enemy occupied by him — is not considered in mod- ern times as doing away with all laws and substituting therefor the will of a military commander. Such government is con- sidered as a new means or instrument for the execution of such laws, natural and enacted, international and domestic, as are necessary to preserve the peace and order of the com- munity, protect rights, and promote the war to which it is an incident. "Under any government, if for any reason the usual and ordinary means of enforcing the laws and accomplishing the purposes of government are found inadequate to meet an existing emergency, resort may be had to martial rule, in order to enforce the law and accomplish the purposes of govern- ment. Martial rule is intended to effectuate some law, not to abrogate all law. To illustrate : Private property may be taken or injured for public purposes. Ordinarily this is ac- complished by the slow process of condemnation. Under 10 United States v. Rice, 4 Wheat. 246, 4 L. Ed. 562. 332 MILITARY OCCUPATION AND GOVERNMENT. (Cb. 18 martial rule the process is accelerated. If the necessity ap- parently exists, as in the presence of a conflagration, a build- ing may be summarily destroyed, or trespass committed with- out liability. Again, a man's life may be taken if he is guilty of treason. Under the ordinary administration of the law the most notoriously guilty Individual, captured red-handed, must be proceeded against by the slow process of the court. Under martial rule he is incontinently executed. It is the procedure which is dispensed with, not the law. "\\'hile a military government continues as an instrument of warfare, used to promote the objects of the invasion by weakening the enemy or strengthening the invader, its pow- ers are practically boundless." ^^ The military authorities, in the exercise of their govern- mental functions, may in general perform such administra- tive functions under the laws of war as are by them deemed expedient. Legislative and other powers are, however, limited to strict necessity.^^ Halleck says : "The government established over an ene- my's territory during its military occupation may exercise all the powers given by the laws of war to the conqueror over the conquered, and is subject to all the restrictions which that code imposes. It is of little consequence whether such gov- ernment be called a military or a civil government. Its char- acter is the same, and the source of its authority the same. In either case it is a government imposed by the laws of war, and so far as it concerns the inhabitants of such territory, or the rest of the world, those laws alone determine the legality or illegality of its acts. But the conquering state may, of its own will, whether expressed in its constitution, or in its laws, impose restrictions additional to those established by the usage of nations, conferring upon the inhabitants of the territory so occupied privileges and rights to which they are not strictly en- titled by the laws of war; and, if such government of military occupation violate these additional restrictions so imposed, it is 11 Magoou, The Law of Civil Governmeut under Military Occupa- tion, p. 14 ; United States v. Diekelnian. 92 U. S. 520, 23 L. Ed. 742. 12 Dooley v. United States, 182 U. S. 234, 21 Sup. Ct. 7G2, 45 L. Ed. 1074. § 143) MILITARY GOVERNMENT. 333 accountable to the power which established it, but not to the rest of the world." ^' The Hague Convention of 1907 provides that: "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless ab- solutely prevented, the laws in force in the country." ^* Professor Westlake says that the above provision of the Hague Convention "indicates that the law to be enforced by the occupant consists, first, of the territorial law in general, as that which stands to the public order and social and commer- cial hfe of the district in a relation of mutual adaptation, so that any needless displacement of it would defeat the object which the invader is enjoined to have in view, and, secondly, of such variations of the territorial law as may be required by real necessity and are not expressly prohibited by any of the further rules which will come before us. Such variations will naturally be greatest in what concerns the relation of the com- munities and individuals within the district to the invading army and its followers; it being necessary for the protection of the latter, and for the unhindered prosecution of the war by them, that acts committed to their detriment shall not only lose what justification the territorial law might give them as committed against enemies, but shall be repressed more se- verely than the territorial law would repress acts committed against fellow subjects. Indeed, the entire relation between the invaders and the invaded, so far as it may fall within the criminal department, whether by the intrinsic nature of the acts done or in consequence of the regulations made by the invaders, may be considered as taken out of the territorial law and referred to what is called martial law." ^^ An executive order of the President of the United States to the Secretary of War, May 19, 1898, during the Spanish- American War gives a statement of the point of view of the 13 2 Halleck, Int. Law (4th Ed.) p. 466. 1* Hague Convention, 1907, Laws and Customs of War on Land, art. XLIII, Appendix, p. 543. 15 Westlake, Int. Law, p. 42; War, p. 86. 834 MILITARY OCCUPATION AND GOVERNMENT. (CL. IS United States. "The first effect of the mihtary occupation of the enemy's territory is the severance of the former poHtical relations of the inhabitants and the estabHshment of a new political power. Under this changed condition of thing's the inhabitants, so long as they perform their duties, are entitled to security in their persons and property and in all their pri- vate rights and relations. It is my desire that the people of the Philippines should be acquainted with the purpose of the United States to discharge to the fullest extent its obligations in this regard. It will therefore be the duty of the commander of the expedition, immediately upon his arrival in the islands, to publish a proclamation declaring that we come, not to make war upon the people of the Philippines, nor upon any party or faction among them, but to protect them in their homes, in their employments, and in their personal and religious rights. All persons who, either by active aid or by honest submission, co-operate with the United States m its efforts to give effect to this beneficent purpose, will receive the reward of its support and protection. Our occupation should be as free from se- verity as possible." ^* EXERCISE OF MILITARY AUTHORITY IN OCCUPIED TERRITORY. 144. In th.e exercise of military authority in an occupied ter- ritory the occupant in general — (a) Is under obligation to insure so far as possible the se- curity of the occupied territory. (b) Is forbidden to violate the personal rights of the inhab- itants. (c) Is permitted to exercise restraint over persons and to use property to the extent necessary and alloxtred by the lavirs of war. The Hague Convention, 1907, Respecting the Laws and Customs of War on Land, which is a revision of the conven- tion of 1899 upon the same subject, contains specific regula- tions in section III in regard to exercise of military authority. (a) This convention provides that the occupant shall so far as possible secure public order, respect the laws, and carry on 16 10 Messages and Papers of Presidents, p. 209. § 144) EXERCISE OF MILITARY AUTHORITY. 335 the administration of the occupied territory. ^^ Being in con- trol, the occupant would for his own sake maintain public order. Not all laws would flourish during a period of mili- tary occupancy. Laws relating to political relations would in general be suspended during occupancy, because the political power which would enforce these laws is for the time in abey- ance. Local laws regulating private relations are continued, unless regarded as detrimental to the occupant. Ordinary laws of trade, local taxes, registration of marriages, births, and deaths, and other laws not affecting the military occupant, are usually operative. (b) By this convention the occupant is forbidden to compel the inhabitants of the territory to swear allegiance to the hos- tile power or to furnish military information. He is forbidden to violate personal or property rights of individuals. This prohibition extends to religious convictions and to the con- fiscation or pillage of private property. He is also under ob- ligations to treat the property of municipalities and of insti- tutions devoted to the welfare of humanity as private prop- erty.^^ Article 44 of the convention, providing that "any compulsion on the population of occupied territory to furnish information about the army of the other belligerent or about his means of defense is forbidden," has been a subject of dis- cussion, owing to the difference of interpretation. Some maintained that under this article inhabitants of an occupied country might be forced to act as guides for the enemy. Ar- ticle 23 forbids, however, a belligerent "to compel the nationals of the adverse party to take part in the operations of war directed against their country." ^^ (c) The occupant is permitted to levy contributions or make requisitions upon the inhabitants in case of need. In such cases receipts must be given. He may take possession of pub- lic property, which may be used for military operations, and as administrator enjoy the use of other public property, but must preserve the capital.^" In article 53 the army of occu- 17 Articles XLIII, XLVIII, Appendix, p. .54.3. 18 Articles XLIV-XLVI, L, LVI, Appendix, pp. 543, 544. 18 See Lemonon, La Second Conference de la Paix, p. 35Sff ; Ger- man Weissbuch, No. 527 (1907) p. 7. 20 Id. arts. XLIX, LI-LV, Appendix, p. 544, 336 MILITARY OCCUPATION AND GOVERNMENT. (Cll. 18 pation is permitted to take possession of valeurs exigibles, "realizable securities," belonging to the state, which is re- garded as including obligations already payable or such as may become payable during the period of occupation. This expression has been differently translated, and Professor Hol- land regards it as intentionally ambiguous.^ ^ Hall, quoting with approval Heffter and Phillimore, says: "According to them, incorporeal things can only be occupied by actual pos- session of the subject to which they adhere. When territory is occupied, there are incorporeal rights, such as servitudes, which go with it, because they are inherent in the land. But the seizure of instruments or documents representing debts has not an analogous effect. They are not the subject to which the incorporeal right adheres. They are merely the evidence that the right exists, 'or, so to speak, the title deeds of the obligee.' The right itself arises out of the purely per- sonal relations between the creditor and the debtor; it inheres in the creditor. It is only, consequently, when a belligerent is entitled to stand in the place of his enemy for all purposes — that is to say, it is only when complete conquest has been made, and the identity of the conquered state has been lost in that of the victor — that the latter can stand in its place as a creditor, and gather in the debts which are owing to it." ^^ "Submarine cables, connecting an occupied territory with a neutral territory, shall not be seized or destroyed, except in the case of absolute necessity. They must likewise be re- stored, and compensation fixed, when peace is made." *' An illustration of the application of the principles for the exercise of military authority in an occupied territory is shown in the executive order of President McKinley to the Secre- tary of War on May 19, 1898, relating to the occupation of the Philippines by United States forces. A portion of the or- der particularly applicable is as follows : "Though the powers' of the military occupant are absolute and supreme, and immediately operate upon the political con- 21 Holland, Laws and Customs of War on Land, p. 78. 22 Hall, Int. Law (5th Ed.) p. 42L See, also, Heffter, § 134; Calvo, % 1977; 2 Rivier, Principes, 307. 2 3 Article LIV, Appendix, p. 544. § 144) EXERCISE OP MILITARY AUTHORITY. 337 dition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion. The judges and the other officials connected with the admin- istration of justice may, if they accept the authority of the United States, continue to administer the ordinary law of the land as between man and man under the supervision of the American commander in chief. The native constabulary will, so far as may be practicable, be preserved. The freedom of the people to pursue their accustomed occupations will be abridged only wdien it may be necessary to do so. "While the rule of conduct of the American commander in chief will be such as has just been defined, it will be his duty to adopt measures of a different kind if, unfortunately, the course of the people should render such measures indispen- sable to the maintenance of law and order. He will then possess the power to replace or expel the native officials in part or altogether, to substitute new courts of his own consti- tution for those that now exist, or to create such new or sup- plementary tribunals as may be necessary. In the exercise of these high powers the commander must be guided by his judg- ment and his experience and a high sense of justice. "One of the most important and most practical problems with which the commander of the expedition will have to deal is that of the treatment of property and the collection and ad- ministration of the revenues. It is conceded that all public funds and securities belonging to the government of the country in its own right and all arms and supplies and other 'movable property of such government may be seized by the military occupant and converted to the use of this government. The real property of the state he may hold and administer, at the same time enjoying the revenues thereof; but he is not to WiLS.lNT.L.— 22 338 MILITARY OCCUPATION AND GOVERNMENT. (Ch. 18 destroy it, save in the case of military necessity. All public means of transportation, such as telegraph lines, cables, rail- ways, and boats belonging to the state may be appropriated to his use ; but, unless in case of military necessity, they are not to be destroyed. All churches and buildings devoted to re- ligious worship and to the arts and sciences, all schoolhouses, are, so far as possible, to be protected, and all destruction or intentional defacement of such places, of historical monu- ments or archives, or of works of science or art, is prohibited, save when required by urgent military necessity. "Private property, whether belonging to individuals or cor- porations, is to be respected, and can be confiscated only as hereafter indicated. Means of transportation, such as tele- graph lines and cables, railways, and boats, may, although they belong to private individuals or corporations, be seized by the military occupant ; but, unless destroyed under military necessity, are not to be retained. "While it is held to be the right of a conqueror to levy con- tributions upon the enemy in their seaports, towns, or prov- inces which may be in his military possession by conquest, and to apply the proceeds to defray the expenses of the war, this right is to be exercised within such limitations that it may not savor of confiscation. As the result of military occupation the taxes and duties payable by the inhabitants to the former government become payable to the military occupant, unless he sees fit to substitute for them other rates or modes of con- tribution to the expenses of the government. The moneys so collected are to be used for the purpose of paying the expenses of government under the military occupation, such as the sal- aries of the judges and the police, and for the payment of the expenses of the army. "Private property taken for the use of the army is to be paid for when possible in cash at a fair valuation, and when payment in cash is not possible receipts are to be given." ^* 24 10 Messages and Papers of Presidents, p, 209. § 145) MARTIAL LAW. 339 MARTIAIi LAW. 145. Martial lax? is the law in accordance Tvitli xcliicli mili- tary authority is exercised. Martial law becomes operative when a hostile territory is occupied by the enemy. It does not suspend or supersede local laws, except so far as necessary.^^ Martial law is not a jus- tification for oppression or other arbitrary action, and a com- mander thus exercising his authority is liable to penalty.-® "What is called 'declaration of martial law' is the mere announcement of a fact; it does not and cannot create that fact. The exigencies which, in any particular place, justify the taking of human life without the interposition of the civil tribunals, and without the authority of the civil law, may jus- tify the suspension of the power of such tribunals and the sub- stitution of martial law. The law of war, or at least many of its rules, are merely the results of a paramount necessi- ty." ^^ Martial law may be proclaimed in the time of peace, when for any reason the regular course of administration is so disturbed as to make it necessary, as in time of great dis- aster by fire, or earthquake. General Davis says : "Martial law, or, to speak more cor- rectly, military rule, or the law of hostile occupation, is a term applied to the government of an occupied territory by the com- manding general of the invading force. INIartial law also prevails in the immediate theater of operations of an army in the field. The reason in both cases is the same. The ordinary agencies of government, including the machinery provided for the prevention and punishment of crime, are suspended by the fact of war. This suspension takes place at a time when so- ciety is violently disturbed, when the usual restraints of law are at a minimum of efficiency, and when the need of such re- straints is the greatest possible. This state of affairs is the direct result of the invasion, or occupation, of the disturbed territory by an enemy. The only organized power capable of 2 5 Dow V. Johnson, 100 U. S. 158, 25 L. Ed. 632. 26 Luther v. Borden, 7 How. 1, 12 L. Ed. 581. 2T 1 Halleck, Int. Law (4th Ed.) p. 599. 340 MILITARY OCCUPATION AND GOVERNMENT. (Ch. 18 restoring and maintaining order is that of the inva(Hng force, which is vested in its commanding general. Upon him, there- fore, international law places the responsibility of preserving order, punishing crime, and protecting life and property with- in the limits of his command. His power in the premises is equal to his responsibility. In cases of extreme urgency, such as arise after a great battle, or the capture of a besieged place or a defended town, he may suspend all law, and may punish crimes summarily, or by tribunals of his own constitution." ^^ MILITARY liAW^, COURTS-MARTIAL, AND MILITARY COMMISSIONS. 146. Military law, courts-martial, and military commissions are particularly concerned 'nritli offenses against mili- tary discipline or good order. Military law may and does exist in time of peace and in time of war. Military law is the law for the government of military forces. As such forces are called upon to perform duties in behalf of the state, a soldier may sometimes, under orders, act in a manner which might render an ordinary civil- ian liable before a civil court, but which would be the proper action under military law. It would be manifestly inexpedient to allow local authorities to assume jurisdiction over offenses which might take place within the limits of a military post. Indeed, for offenses against certain military regulations there might be no provision in the local law. Offenses against military law are tried as the law may pre- scribe, but usually by courts-martial instituted for the purpose. The sentence of such a court must also be in accord with law, and when proceedings of such a court have been regular and sentence proper the civil courts decline to take jurisdiction,'^ and in general civil courts will review the findings of a court- martial only to ascertain whether the court acted within its proper competence.^'' 2 8 Davis, Elements of Int. Law (3d Ed.) p. 333. 2 9 Dynes v. Hoover, 20 How. 65, 15 L. Ed. 838. 3 Carter v. McClaughry, 183 U. S. 3G5, 22 Sup. Ct. ISl, 46 L. Ed. 236. See discussion of jurisdiction of court-martial in Case of Wal- § 147) CESSATION OF OCCUPATION AND CONTROL. 341 Offenses not provided for in the military law may be brought before a military commission, which may recommend to the commanding- officer a suitable punishment. Such com- missions are usually appointed for special cases. "In the war between the United States and the Republic of Mexico, it was found that no provisions had been made in the United States Rules and Articles of War for numerous cases, civil and crim- inal, between the citizens of the United States and between such citizens and foreigners, in Mexican territory occupied by the troops of, but without the jurisdiction of any court of, the United States. All such cases, of a criminal character, arising in the territory of Mexico occupied by the 'main army' under General Scott, were referred by him to 'military commissions,' which were special tribunals constituted and appointed for that purpose. In California they were usually left to be decided by the ordinary tribunals of the country, although special tribu- nals were there organized, in a few special cases, by the gov- ernment of military occupation." ^^ CESSATION OF HOSTILE MILITARY OCCUPATION AND OF MILITARY CONTROL. 147. Hostile military occupation ceases xrlien tlie effective mil- itary force is ivitlidraivii from a bostile territory, or on tlie conclusion of peace. Military control ceases Ttrlien and to the extent that the regrular civil government is restored. Military occupation in the strict sense is a term applicable only in time of war, and is the effective holding by force of an enemy territory. This would cease in fact when the force is withdrawn, and would cease from a legal point of view when by treaty of peace the war is at an end. The term "military occupation" is also used in a loose sense to designate exercise of authority through the military forces after peace is restored and before a regular government is es- tablished. The object of the continued maintenance of a mili- ler, Foreign Relations U. S. 1895, p. 304, and indez "Arrest of J. L. Waller." 312 Halleck, Int. Law (4tli Ed.) p. 474. 342 MILITARY OCCUPATION AND GOVERNMENT. (Ch. 18 tary force in a territory after the close of war is in general not such as to bring it within the scope of international law of war. As Magoon says of Porto Rico and of Cuba after the Spanish-American War : "Upon the ratifications of the treaty of peace being ex- changed, the sovereignty and jurisdiction of the United States permanently attached to Porto Rico, and the island became territory appertaining to the United States. The United States is in undisputed possession of the island, and therefore the military government of Porto Rico has ceased to occupy the place of the suspended or expelled sovereignty of Spain, and has become an instrument of the new sovereignty. It has become the representative of sovereignty, instead of a substitute. Since hostilities have ceased in Porto Rico, it fol- lows that the military government is not authorized to adopt measures seeking to promote the success of military opera- tions, nor to justify its action on that ground. "As to Porto Rico the war has ended, and the purposes of the military operations therein have been accomplished ; that is to say, a complete conquest has been effected and a peace secured. Therefore in that island the United States is no longer a belligerent, and it follows that the existing govern- ment therein no longer exercises its powers by virtue of belr- ligerent right." ^- "The conditions existing in Cuba differ materially from those prevailing in Porto Rico, as do also the powers of the military government. "The sovereignty of Spain has been withdrawn from Cuba, but the sovereignty of the United States has not attached thereto, and the sovereignty, declared by Congress to be pos- sessed by the people of the island, remains dormant. Under these conditions the military government of Cuba continues to be a substitute for sovereignty, as though the question of sovereignty were still pending the outcome of a war. It ap- pears to the writer that under this condition the military gov- ernment of Cuba may exercise such powers of sovereignty as are necessary for the successful conduct of the internal af- »2 Magoou, Law of Civil Government under Military Occupation, p. 19. § 14:7) CESSATION OF OCCUPATION AND CONTROL. 343 fairs of government, subject to the restraints imposed by the ideas and theories of government prevaiUng under the sover- eignty by which it was created and the orders of the superior officials and authorities of the sovereignty by which said mili- tary government is sustained." ^^ Military control may be necessary in the time of an insur- rection or other disturbance, when the ordinary operations of g;overnmental organs are impossible. "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice ac- cording to law, then, on the theater of active military opera- tions, where war really prevails, there is necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and of society ; and, as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration ; for, if this government is continued after the courts are reinstated, it is a gross usurpa- tion of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war." 3* S3 Id. p. 31. S4 Ex parte Milligan, 4 Wall. 2, 18 L. Ed. 281. 344 PRISONERS, DISABLED, AND SHIPWRECKED. (Ch. 19 CHAPTER XIX. PRISONERS, DISABLED, AND SHIPWRECKED. 148. Prisoners of War. 149. Treatment of Prisoners of War. 150. Release of Prisoners. 151. Siclj, Wounded, and Shipwrecked. PRISONERS OF V/AR. 148. Persons whoni a belligerent may kill, capture, or deprive of liberty for military reasons are entitled to be treat- ed as prisoners of virar. In early times any inhabitant of a territory of the enemy might be made captive and be put to death. Gradually those of the inhabitants who from various reasons could not par- ticipate directly in the hostilities were made exempt. Toward the end of the fourteenth century publicists advocated a gen- eral recognition of exemption of children and old people. The stimulus to the capture of such persons was removed, so far as certain states were concerned, by agreements that such persons should not be the subject for ransom. To these ex- emptions on account of age, exemptions by reason of sex and of profession were added ; and women, priests, and certain other persons engaged in professional work not related to the war were also included among those exempt from capture.^ Lieber says in 1863 : "22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in per- son, property, and honor as much as the exigencies of war will admit. 1 Nys. Les Origines du Droit International, p. 237fC. § 149) TREATMENT OF PRISONERS OF WAR. 345 "23. Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling de- mands of a vigorous war. "24. The almost universal rule in remote times was, and continues to be with barbarous armies, that the private indi- vidual of the hostile country is destined to suffer every priva- tion of liberty and protection and every disruption of family ties. Protection was, and still is with uncivilized people, the exception. "25. In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule ; privation and disturbance of private relations are the exceptions." ^ Those liable to be made prisoners of war at the present time include (1) the regular armed forces of a belligerent, as mem- bers of the army and navy; (2) those who lawfully resist at- tack, as levies en masse ; (3) those who are permitted to ac- company the armed forces without forming a part of those forces, as newspaper correspondents, sutlers, contractors, etc. ; (4) in exceptional cases persons who may be of special service to the enemy.^ TREATMENT OF PRISONERS OF VTAR. 149. (1) Prisoners of wslt are in. the poiirer of the hostile gov- ernment and entitled to humane treatment, xchich in- cludes respect for person, private property not of a military character, and private rights, and reasonahle maintenance in accordance ivith rank. (2) They may be interned, may be given fit opportunity to engage in remunerative labor, or may be paroled. (3) In order to secure the treatment accorded to prisoners of -war, captured persons are under obligation to ob- serve regulations, to give on request to the proper au- thority their true name and rank, and to observe the conditions of parole. 2 Appendix, arts. 22-2.1, p. 491. 8 Hague Convention, irn^T, Laws and Customs of War on Land, Ap- pendix, pp. r)37-r>40. 346 PRISONKRS, DISABLKD, AND SHIPWRECKED. (Cb. 19 (4) Prisoners of iirar, if taken trying to escape, are liable to disciplinary punisliment for attempting to escape; but if tlie attempt is successful, and tbey are subse- quently recaptiired, tbey are not to be punisbed for the previous act. In early warfare any inhabitant of an enemy territory might be made a captive, might be put to death, might be enslaved, or might be ransomed. Each of tiicse methods of treatment marks a stage in the development of warfare. Captives, be- ing an impediment in the movement of an army, unless kept for sake of ransom, were often slain. Captives in large num- bers were put to death during the fifteenth century. The cap- tives made by armies even up to the seventeenth century were liable to be sent into slavery. The captives were re- garded as property of the persons capturing them, and so late as 1863 Dr. Licber felt called upon to state: "A prisoner of war, being a public enemy, is the prisoner of tl>e government, and not of the captor." * It was not till about the time of Grotius that the more liberal treatment of prisoners of war became common. There had been from time to time, in very early days, limitations upon the exercise of capture in time of war. Even in the First and Second Punic Wars, exchange of prisoners and special consideration to certain private per- sons is recorded.^ Sallust denounces the putting to death of the inhabitants of a certain Numidian town by Marius as con- trary to the rules of war." The fairness of treatment at one period might be followed by barbarities in the next, and these might extend to the entire population. In the mediaeval period there was great difference in practice. Toward the end of the seventeenth century the subject of capture in war was con- sidered by various publicists, and the principles were de- veloped. So late as 1785 the United States and Prussia provide by treaty "to prevent the destruction of prisoners of war." This treaty sets forth many principles which have subsequently been generally adopted.'"' 4 Appendix, art. 74, p. 498. e Jugurtha, c. 91. 5 Livy. XXII. T "And to prevent the drstrur-tion of prisoners of war, by sending them into distant and Inclement countries, or by crowding them into § 149) TREATMENT OP PRISONERS OF WAR, 347 The Ilag-ue Convention of 1907 provides with fullness for the treatment of prisoners of war.® It provides that prisoners of war shall be in the power of the government, that they shall be humanely treated, the standard of their maintenance close and noxious places, the two contracting parlies solemnly pledge themselves to each other and to the world that thoy will not adopt any siich practice ; that neither will send the prisoners whom they make take from the other int(> the East Indies, or any other parts of Asia or Africa, but that they shall be placed in some part of their dominions in Europe or America, in wholesome situations ; that they shall not be confined in dungeons, pi'ison ships, nor prisons, nor bo ])ut into irons, nor hound, nor otherwise restrained in the use of their limbs; that the officers shall be enlarged on their paroles within convenient districts, and have comfortable quarters, and the common men be disposed in cantonments open and extensive enough for air and exercise, and lodged in barracks as roomy and good as are pro- vided by the party in whose power they are for their own troops ; that the officers shall also bo daily furnished by the party in whose power they are with as many rations, and of the same articles and quality as are allowed by them, either in kind Oi- by commutation, to officers of equal rank in their own army ; and all others shall be daily furnished by them with such ration as they allow to a common soldier in their own service; the value whereof shall be paid by the other party on a mutual adjustment of accounts for the subsistence of prisoners at the close of the war ; and the said accounts shall not be mingled with, or set off against any others, nor the balances due on them be withheld as a satisfaction or reprisal for any other article or for any other cause, real or pretended, whatever; that each party shall be allowed to keep a commissary of prisoners of their own appointment, with every separate cantonment of pris- oners in possession of the other, which commissary shall s.ee the pris- oners as often as he pleases, shall be allowed to receive aiid dis- tribute whatever comforts may be sent to them by theiir friends, and shall be free to make his reports in open letters to those who employ him ; but if any officer shall break his parole, or any other prisoner shall escape from the limits of his cantonment, after they shall have been designated to him, sucli individual officer or other prisoner shall forfeit so much of the benefit of this article as provides for his en- largement on parole or cantonment. And it is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this and the next pre- ceding article; but, on the contrary, that the state of war is pre- cisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law of nature or nations." Article 24, Treaty of Sept. 10, 1785. 8 Laws and Customs of War on Land, c. 2, Appendix, p. .'>.':,s. 348 PRISONDRS, DISABLED, AND SHIPWRECKED. (Ch. 19 being determined by that of similar troops in the captor's forces. They are to be allowed to work, to have so much freedom as consistent with military necessity. Provision is made for gathering and furnishing information in regard to those in captivity and for preserving their property and other legal rights and for parole. By the Hague Convention of 1907 prisoners of war are li- able to necessary discipline in order that rules and regulations may be observed. It recognizes that it is natural that a pris- oner of war not under parole should attempt to escape and provides that, "Escaped prisoners, who are retaken before being able to rejoin their own army, or before leaving the territory occu- pied by the army which captured them, are liable to disciplin- ary punishment. ''Prisoners . who, after succeeding in escaping, are again taken prisoners, are not liable to any punishment on account of the previous flight." • RELEASE OF PRISONERS. 150. Prisoners may be released conditionally or fully. (a) Prisoners may be released conditionally on parole, a verbal agreement, entered into by an individual of the enemy for himself, by xirhicb he pledges his honor that he T^ill do or refrain from doing certain things in con- sideration of certain privileges or advantages. An of- ficer may sometimes make such an agreement in behalf of his command. (b) Prisoners of vrar are sometimes fully released on pay- ment of ransom, in compensation for their discharge from custody. (c) Or prisoners may be fully released by exchange, vrhich consists in the mutual turning over by each govern- ment of a certain number of prisoners in accord with a special agreement, called a "cartel." (d) Prisoners are at liberty virhen coming upon neutral soil, and ivhen brought into neutral ivaters on a ship taken as prize, unless under stress. • Laws and Customs of War on Land, art. VIII, Appendix, p. TiSD. § 150) RELEASE OF PRISONERS. 349 (e) Prisoners are also at liberty on coming xrithin the terri- tory of tlieir oxrn state, if not under parole or other obligation. (f) Prisoners are generally released under specific agree- ment at the close of -war. (a) "Prisoners of war may be set at liberty on parole if the laws of their country allow, and, in such cases, they are bound, on their personal honor, scrupulously to fulfill, both towards their own government and the government by whom they were made prisoners, the engagements they have contracted. "In such cases their own government is bound neither to require of nor accept from them any service incompatible with the parole given. "A prisoner of war cannot be compelled to accept his liberty on parole. Similarly the hostile government is not obliged to accede to the request of the prisoner to be set at liberty on parole. "Prisoners of war, liberated on parole and recaptured bear- ing arms against the government to whom they had pledged their honor, or against the allies of that government, forfeit their right to be treated as prisoners of war, and can be brought before the courts." ^** A neutral power, which has interned within its territory troops belonging to the belligerent armies, may decide wheth- er officers may be allowed liberty on their parole not to leave neutral territory without permission. ^^ (b) The release of prisoners of war on payment of ransom was quite common during the Middle Ages, but is now prac tically obsolete, although, in the instructions for the govern- ment of the armies of the United States in the field provision is made as follows : "The surplus number of prisoners of war remaining after an exchange has taken place is sometimes re- leased, either for the payment of a stipulated sum of money, 10 Id. arts. X-XII, Appendix, p. .")39. For full treatment, see, also, Ariga, La Guerre Russo-Japonaise, 114. Takahashi, Int. Law applied to Russo-Japanese War, 107-147. 11 Rights and Duties of Neutral Powers, art. XI, Appendix, p. 547. 350 PRISONERS, DISABLED, AND SHIPWRECKED. (Ch. 19 or, in urgent cases, of provision, clothing, or other necessaries. Such arrangement, however, requires the sanction of the high- est authority." ^- (c) No belligerent is compelled to exchange prisoners of war. Each has a perfect right to keep all prisoners of war until the close of hostilities. Agreements to exchange are based purely upon mutual convenience. If entered into, the cartel sets forth all of the terms of the agreement as to time, place, and method to be pursued. These agreements are strict- ly construed, violation of the terms by one party releases the other party from obligation, and the basis of exchange is clearly set forth. Strict equivalents must be given, such as private for private, rank for rank, etc. If, after all of the prisoners have been exchanged upon the agreed basis, there is a surplus, credit may be given or payment made for this surplus. Prisoners who have been exchanged, like those who have escaped from confinement, are restored to their belliger- ent rights.^-' (d) The belligerent is responsible for guarding prisoners of war. The retention of a portion of the enemy's forces is an incident of the war. These prisoners may be released by cap- ture by the forces of the state to which they belong. Such ac- tion is not lawful upon neutralJand area. If belligerents were allowed to bring upon neutral land and retain prisoners of war, such prisoners would be placed beyond the possibility of release by the forces to which they belonged, and would be even more secure for the captor than in his own territory. Such a result would not be reasonable, nor in accord with neutrality, and prisoners coming on neutral territory are, ipso facto, at liberty. Similarly, if prisoners of war are not ef- fectively guarded, and consequently escape to neutral terri- tory, they are free. The Hague Convention of 1907 says : "A neutral power which receives escaped prisoners of war shall leave them at liberty. If it allows them to remain in its territory, it may assign them a place of residence. 12 General Order 100, U. S. Army. April 24, 180^, art. 108, Appen- dix, p. 502; 2 Halleck, Int. I^w, 304. 13 Id. § 7, Appendix, p. 503. § 150) RELEASE OF PRISONERS. 351 "The same rule applies to prisoners of war brought by troops taking refuge in the territory of a neutral power." ^* There has been great variation of practice in the treatment of captured vessels brought into neutral ports; but the gen- eral trend in recent years, as shown in neutrality proclama- tions and practice, is toward a strict regulation of the entrance of vessels with prize, and in most instances states have prohib- ited entrance except in case of stress. The Hague Conven- tion of 1907 enumerates the rule that: "A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or pro- visions. "It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral power must order it to leave at once ; should it fail to obey, the neutral power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew." This provision is somewhat modified by the provision in re- gard to sequestration, which has not been accepted by the United States and some of the other powers. ^^ (e) As captivity continues only during effective holding, a prisoner of war is usually at liberty on entering the jurisdic- tion of his own state, or coming within the area of military occupation of his own forces. The prisoner on parole is still regarded as under the control of the state which made him a prisoner, for he is not under obligation to accept liberty on parole, but is under observation to observe it when once ac- cepted, and his state should neither "require of nor accept from him any service" incompatible with the parole given. ^*' (f) The Hague Convention of 1907 provides that, "after the conclusion of peace, the repatriation of prisoners of war shall be carried out as quickly as possible." ^"^ 14 Rights and Duties of Neutral Powers, art. XIII, Appendix, p. 547. 15 Rights and Duties of Neutral Powers in Naval War, arts. XXI- XXIII, Appendix, p. 566. 16 Laws and Customs of War on Land, art. X, Appendix, p. 539. 17 Id. art. XX. 352 PRISONERS, DISABLED, AND SHIPWRECKED. (Ch. 19 The treaty of peace between Spain and the United States in 1898 even provided in article V that : ''The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces. The arms of the soldiers in question shall be restored to them. "Spain will, upon the exchange of the ratifications of the present treaty, proceed to evacuate the Philippines, as well as the island of Guam, on terms similar to those agreed upon by the commissioners appointed to arrange for the evacuation of Porto Rico and other islands in the West Indies, under the protocol of August 12, 1898, which is to continue in force till its provisions are completely executed. "The time within which the evacuation of the Philippine Islands and Guam shall be completed shall be fixed by the two governments. Stands of colors, uncaptured war vessels, small arms, guns of all calibers, with their carriages and accessories, powder, ammunition, live stock, and materials and supplies of all kinds, belonging to the land and naval forces of Spain in the Philippines and Guam, remain the property of Spain. Pieces of heavy ordinance, exclusive of field artillery, in the fortifications and coast defenses, shall remain in their em- placements for the term of six months, to be reckoned from the exchange of ratifications of the treaty; and the United States may, in the meantime, purchase such material from Spain, if a satisfactory agreement between the two govern- ments on the subject shall be reached. "Article VI. Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons detained or imprisoned for political ofifenses, in connection with the in- surrections in Cuba and the Philippines and the war with the United States. "Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will un- dertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines. "The government of the United States will at its own cost return to Spain, and the government of Spain will at its own § 151) SICK, WOUNDED, AND SHIPWRECKED. 353 cost return to the United States, Cuba, Porto Rico, and the Phihppines, according to the situation of their respective homes, prisoners released or caused to be released by them, re- spectively, under this article." SICK, WOUNDED, AND SHIPWRECKED. 151. There are special regulations for the care of the sick and vp^ounded of armies, and of the sick, -nronnded, and ship- ivrecked of naval forces in time of -wav. Persons whose business was to care for the sick and wound- ed seem to have been attached to some armies during the six- teenth century, and the practice became more and more com- mon from that time. Such persons were at first exempt, be- cause noncombatants, and in order that their army might be in better condition were to give attention, particularly to their own forces. It was not till the latter half of the eighteenth century that the idea of humanity, based on the liberal theories of the period, led to the doctrine that there should be no dis- tinction in the treatment of wounded in battle.^* At about the same time immunities began to be generally extended to mil- itary hospitals, and the wounded and sick were not regarded as prisoners of war. The wars of the first sixty years of the nineteenth century showed great diversity in practice in treat- ment of the question. Some of these v\Aars, particularly the Crimean War, from 1854 to 1856, showed the need of estab- lished rules. During the American Civil War regulations were adopted by the United States as follows : "53. The enemy's chaplains, officers of the medical staff, apothecaries, hospital nurses, and servants, if they fall into the hands of the American army, are not prisoners of war, un- less the commander has reasons to retain them. In this latter case, or if, at their own desire, they are allowed to remain with their captured companions, they are treated as prisoners of war, and may be exchanged if the commander sees fit." "79. Every captured wounded enemy shall be medically treated, according to the ability of the medical staff." 1 8 Bogaiewsky, Les Secours aux Militaires Malades et Blesses avaut le XIX« Siecle, 10 R. G. D. I. P. p. 217. WiLS.lNT.L.— 23 354 PRISONERS, DISABLED, AND SHIPWRECKED. (Ch. 19 "115. It is customary to desij^nate by certain flags (usually yellow) the hospitals in places which are shelled, so that the besieging enemy may avoid firing on them. The same has been done in battles, when hospitals are situated within the field of the engagement. ''116. Honorable belligerents often request that the hospitals within the territory of the enemy may be designated, so that they may be spared. "An honorable belligerent allows himself to be guided by flags or signals of protection as much as the contingencies and the necessities of the fight will permit." ^° Largely through the eflforts of Gustave Moynier ^° and Jean Henri IXinant-^ of Switzerland, representatives of twelve states gathered on the invitation of the Swiss government and formulated the Geneva Convention for the Amelioration of the Condition of Soldiers Wounded in Armies in the Field, 1864. This convention formulated the best ideas of the time. From the provision that the hospital flag should "bear a red cross on a white ground" the reverse of the Swiss flag, the convention was frequently called the Red Cross Convention. At another conference, held at Geneva in 1868, fifteen further articles were adopted, five being in amplification of the con- vention of 1861, and the remaining articles with view to adap- tation of the provisions to naval warfare. These last articles were embodied in The Hague Convention of 1899 for the Adaptation of the Principles of the Geneva Convention of 1861 to Maritime Warfare. A new convention was concluded at Geneva in 1906 which, while embodying the principles of the convention of 186-1, brought its provisions more nearly into accord with present conditions. The delegates of thirty- five powers signed the convention of 1906. ^^ The adoption of this convention of 1906 made it necessary to revise the convention of 1899, and at the Hague Conference 19 Appendix, pp. 496, 498, 502, 503. 2 Moynier, In recognition of his humanitarian services, was made honary president of the Geneva Convention of 1906. 21 Dunant was in 1901 awarded the Nobel prize for his efforts to mitigate the severity of war. Dunant's booli. Le Souvenir de Sol- ferino, 1862, called attention to the sufferings in modem warfare. 2 2 The Geneva Convention of 1906, Appendix, p. 508. § 151) SICK, WOUNDED, AND SHIPWRECKED. 355 of 1907, a Convention for the Adaptation of the Principles of the Geneva Convention of 1906 was concluded. The fourteen articles of the convention of 1899 were extended to twenty- eight and considerably elaborated. The convention of 1906 provides for the care of the sick and wounded of an army, for the sanitary formations and estab- lishments, for the personnel and materiel, and for a distinctive emblem, the Red Cross. The convention of 1907, adapting the convention of 1906 to naval warfare, specifies how the status of hospital ships shall be made known in order that they may be exempt, how they shall be painted in order to be easily distinguished, what other means shall be taken to make themselves known, and for the degree of control to be exercised over hospital ships by belligerents, the degree of immunity which shall be accorded to them, and their obligations and duties. No distinction is to be made in the treatment of the sick or wounded of different belligerents. "The shipwrecked, wounded, or sick of one belligerent who fall into the power of the other belligerent are prisoners of war." "Art. 12. Any ship of war belonging to a belligerent may demand the surrender of the wounded, sick, or shipwrecked who are on board military hospital ships, hospital ships be- longing to rehef societies or to private individuals, merchant ships, yachts, and boats, whatever the nationality of such ves- sels. "Art. 13. If wounded, sick, or shipwrecked persons are taken on board a neutral war ship, precaution must be taken, so far as possible, that they do not again take part in the op- erations of the war." ^^ After an engagement the belligerents are also to take such measures as possible to recover and protect those shipwrecked, wounded, or sick, and are to inform each other so far as pos- sible in regard to admissions to hospitals, deaths, etc. Article 12 would apply to the questions raised in the case of the Deerhound, a neutral yacht which took on board and 23 The Convention for Adaptation of the Principles of the Geneva Convention to Maritime Warfare, Appendix, p. 549. 356 PRISONERS, DISABLED, AND SHIPWRECKED. (Ch. 19 declined to deliver to the United States commander the cap- tain and some of the crew of the Confederate cruiser Alaba- ma, on June 19, 1.S6I, after her defeat. This article seems reasonable, as such ships as the Deerhound are not to harbor those who may, if not received on board neutral vessels, be made prisoners of war. Article 13 would be analogous to the entrance of belligerent troops upon neutral land area, and would imply that they should be practically interned. This is in accord with the ac- tion in the Chemulpo affair in 1904, when, after the defeat of certain Russian vessels by the Japanese, neutral war vessels took on board wounded, sick, and shipwrecked Russians, and sent them to neutral ports under parole that they would not again take part in the war.^* 2* Takahashi, Russo-Japanese War, p. 462. § 163) NON-HOSTILE RELATIONS. 357 CHAPTER XX. NON-HOSTILE RELATIONS BETWEEN BELLIGERENTS. 152. Non-Hostile Relations between Belligerent Forces. 153. Flags of Truce. 154. Capitulations. 155. Armistices. 156. Operation of Armistices. 157. Cartels. 158. Safe-conducts and Passports. 159. Safeguards. 160. Licenses to Trade. NOX-HOSTILE REI duration. An indefinite armistice makes it possible for a belligerent to resume hostilities at any time, subject to the conditions agreed upon in the terms. (b) A general armistice suspends all military operations be- tween the belligerents. A local armistice suspends hostilities wnthin a given area or between specified forces.* The terms "suspension of arms" and "truce" are also used to describe such agreements. The armistice signed by the Russian and Japanese plenipo- tentiaries preliminary to the coming into operation of the Treaty of Portsmouth in 1905 was as follows: "1. A certain distance (zone of demarcation) shall be fixed between the fronts of the armies of the two powers in Man* churia, as well as in the region of the Tomanko. "2. The naval forces of one of the belligerents shall no? Dombard territory belonging to or occupied by the other. "3. Maritime captures will not be suspended by the armis- tice. "4. During the term of the armistice reinforcements shall not be dispatched to the theater of war. Those which are en route shall not be dispatched to the north of Moukden on the part of Japan and to the south of Harbin on the part of Rus- sia. "5. The commanders of the armies and fleets of the two powers shall determine on common accord the conditions of the armistice in conformity with the provisions above enu- merated. "6. The two governments shall give orders to their com- manders immediately after the signature of the Treaty of Peace in order to put this protocol into execution." * 4 Laws and Customs of War on Land, c. V, Appendix, p. 542. 5 TaUahashi, Russo-Japanese War, p. 219. § 156) OPERATION OF ARMISTICES. 361 OPERATIOX OF ARMISTICES. 156. The suspension of hostilities commences on notification of the existence of the armistice, or at the time fixed in the agreement, and continues in accord v^ith its terms for the time specified, unless denounced for good cause. In case of an armistice or truce, hostilities are suspended immediately on notification, or at a fixed time. When the armistice or truce is general, and extends over a large area of hostile operations, the custom is to fix different dates for the different localities, so as to permit time for re- ceipt of the news at these places. A subordinate officer is bound only in case of notification from a superior authority, not by a statement of the enemy. In the protocol of August 12, 1898, preliminary to the treaty of peace between the United States and Spain, it was stipulated that : ''Article VI. Upon the conclusion and signing of this pro- tocol, hostilities between the two countries shall be suspended, and notice to that effect shall be given as soon as possible by each government to the commanders of its military and naval forces." In a proclamation of President McKinley of the same date he said : "Whereas, it is in said protocol agreed that upon its conclu- sion and signature hostilities between the two countries shall be suspended, and that notice to that effect shall be given as soon as possible by each government to the commanders of its military and naval forces : "Now, therefore, I, William McKinley, President of the United States, do, in accordance with the stipulations of the protocol, declare and proclaim on the part of the United States a suspension of hostilities, and do hereby command that orders be immediately given through the proper channels to the commanders of the military and naval forces of the- United States to abstain from all acts inconsistent with this proclamation." * « 30 Stat. 17S0. 362 NON-HOSTILE RELATIONS. (Ch. 20 The usual effect of an armistice or truce is to suspend all hostile operations of an active nature, with the implied under- standing that conditions shall remain as at the commencement of the armistice, and all acts during the armistice tending to strengthen a belligerent, which his enemy would be in a posi- tion to prevent, were it not for the truce, are prohibited. Op- erations which could be carried on irrespective of the armis- tice, in general, are permissible. "It rests with the contracting parties to settle, in the terms of the armistice, what communications may be held in the theater of war with the inhabitants, and between the inhabit- ants of one belligerent state and those of the other. "Any serious violation of the armistice by one of the par- ties gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately. "A violation of the terms of the armistice by private per- sons acting on their own initiative only entitles the injured party to demand the punishment of the offenders, or, if nec- essary, compensation for the losses sustained." ^ In case an armistice is not denounced, and there is no time specified for its termination, hostilities may be resumed after warning agreed upon between the belligerents. If a time for its termination is fixed in the agreement, hostilities may be resumed after that time. CARTELS. 157. Cartels are agreements betTreen belligerents for the pur- pose of regulating permitted intercourse in time of war, particularly the exchange and treatnxent of pris- oners. Conventional agreements of the nature of cartels seem to have been in use as early as the middle of the sixteenth cen- tury and to have been in common use during the Thirty Years War, 1618-1648. These agreements sometimes fixed the ratio of exchange of prisoners and the amount of money to be paid for each prisoner in excess of the even exchange number. In T Laws and Customs of War on Laud, arts. XXXIX-XLI, Appen- dix, p. 543. § 157) CARTELS. 363 a treaty between the United States and Prussia in 1785, very liberal rules for the treatment, care, and parole of prisoners of war were made. In many respects the most advanced reg- ulations of the present day are not more humane. There is a provision "that each party shall be allowed to keep a com- missary of prisoners of their own appointment, with every separate cantonment of prisoners in possession of the other, .which commissary shall see the prisoners as often as he pleas- es, shall be allowed to receive and distribute whatever com- forts may be sent to them by their friends, and shall be free to make his reports in open letters to those who employ him." That this and other similarly enlightened provisions might not fail, the treaty further specifies in article 24 : "And it is de- clared that neither the pretense that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this and the next preceding article ; but, on the contrary, that the state of war is precisely that for which they are provided, and during which they are to be as sacredly ob- served as the most acknowledged articles in the law of nature or nations." Both belligerents are bound to observe the terms of the cartel, and they "are of such force under the law of nations that even the sovereign cannot annul them." ® In case vessels are concerned in the performance of a cartel contract, such vessels are exempt from capture and entitled to protection of both belligerents so long as strictly engaged in the exchange. Any departure from the strict line of serv- ice under the engagement may make the vessel liable under the ordinary laws of war. Such vessels are not to be armed or prepared for carrying on hostilities, though they may carry a gun for saluting purposes. 8 United States v. Wright, 28 Fed. Cas. 796. 364 NON-HOSTILB RELATIONS. (Ch. 20 SAFE-CONDUCTS AND PASSPORTS. 158. A safe-conduct is a form of pass issued by a command- ing officer in a region, autliorizing an enemy subject to travel under specified conditions as to time and place in that region. Safe-conducts are also issued to permit the carriage of goods to a specified place. General permission to travel in the area belonging to or oc- cupied by a belligerent is sometimes issued by the gov- ernment in the form of a passport. The safe-conduct is issued by the commanding officer in the region. The passport is granted by the government. They are ahke not transferable, and liable to be withdrawn if not properly used or for military reasons. SAFEGUARDS. 159. A safeguard is a protection granted either to x>ersons or property within the limits of the command, and con- sists either in a ivritten order or a guard of soldiers. When a safeguard is in the form of a written order, it may be given to the enemy subject or may be posted upon the prop- erty. Property thus protected usually is semi-public in char- acter, as museums, libraries, etc. Safeguard in the form of a detail of one or more soldiers may also be given. In such case this guard is inviolable, and if they fall into the power of the enemy must be treated with consideration and be sent back to their command. The term "safeguard," or "safe-conduct," is sometimes used to describe the copy of a ransom bill retained by the mas- ter of a vessel who has purchased his release from capture, as this serves to protect him from capture by vessels of the bellig- erent from which he has purchased his release, provided he ob- serves the conditions under which he has been released. § 160) LICENSES TO TRADB. 365 LICENSES TO TRADE. 160. Iiicenes to trade are ^vritten permissions, authorizing a person in time of ivar to carry on trade witli a partic- ular place or in specified articles. The arrangements in regard to licenses to trade, as of safe- conducts and passports, are, in general, matters of municipal rather than international law; but, like cartels, their provi- sions must be strictly observed in order to retain the privileges which they confer, though failure to observe the terms of the license in consequence of stress of weather or other necessity will receive consideration.® The sailing under the license of an enemy may subject a vessel to capture and condemnation by its own state.^" During the Spanish-American War in 1898 the counsel of the Equitable Life Assurance Society of the United States de- sired of the State Department authority to apply to the Span- ish government for "a license that will enable it to protect its real estate and other assets in Spain." In reply Mr. Moore said: "In this relation, the Department desires to refer to article XIII of the treaty between the United States and Spain, con- cluded at San Lorenzo el Real, October 22, 1795. "The provisions of the article are as follows : " 'For the better promoting of commerce on both sides, it is agreed that, if a war shall break out between the said two nations, one year after the proclamation of the war shall be allowed to the merchants in the cities and towns where they shall live for collecting and transporting their goods and mer- chandises ; and if anything be taken from them, or any in- jury be done them, within that term, by either party, or the people or subjects of either, full satisfaction shall be made for the same by the government.' " ^^ 9 The Sea Lion, 5 Wall. 630, 18 L. Ed. 618; Coppell v. Hall, 7 Wail. 542, 19 L. Ed. 244 ; Siffkin v. Glover, 4 Taunt. 717. 10 The Hiram, 8 Cranch, 444, 3 L. Ed. 619; The Aurora, 8 Cranch, 203, 3 L. Ed. 536 ; The Julia, 8 Cranch, 181, 3 L. Ed. 528 ; The Cale- donian, 4 Wheat. 100, 4 L. Ed. 523. For further cases, see footnotes 2 Hallecli, Int. Law (4th Ed.) 381-388. 1 1 7 Jloore, 255. :}66 TBRMINATIOX OF WAR. (Ch. 21 CHAPTER XXI. TERMINATION OF WAR. 161. Methods of Termiuation. 162. Conquest. 163. Effect of Conquest. 164. Cessation of Hostilities. 165. Effect of Cessation of Hostilities. 166. Treaty of Peace. 167. Scope of a Treaty of Peace. 168. Effect of a Treaty of I'eace. 169. Proclamation. 170. Postliminium. 171. Amnesty. IMTETHODS OF TERMINATION. 161. 'War may be terminated: (a) By conquest. (b) By cessation of hostilities. (c) By a treaty of peace. (d) In case of a civil -war, by proclamation. CONQUEST. 162. IVben irar is terminated by conquest, there may be in~ volved the complete submission of one belligerent to the other. The complete submission of one belligerent to the other was in early times regarded as the natural consequence of war. The Roman idea of debellatio involved the submission of the enemy. Gradually there has grown up a distinction be- tween conquest and military occupation. Military occupation may be simply an incident of the conduct of military opera- tions, or merely an attempt to put pressure upon the enemy for the purpose of hastening the end of the war, but with no purpose of obtaining dominion over the territory. Halleck says; "By the term 'conquest' we understand the forcible ac- § 162) CONQUEST. 367 quisition of territory admitted to belong to the enemy. It ex- presses, not a right, but a fact, from which rights are derived. Until the fact of conquest occurs, there can be no rig-hts of conquest." ^ If actual possession is practically undisputed for a consid- erable time, is generally recognized by other states, or is of such a nature as to manifest on the part of the conqueror an ability to hold and on the part of the conquered complete sub- mission, it is enough. There must be ability and evident disposition on the part of the conqueror to retain his conquest. The actual possession for a considerable time is not conclu- sive evidence of conquest, for this may merely constitute mil- itary occupation. The possession accompanied by a disposi- tion to submit is strong evidence of valid conquest. If the con- quest is generally recognized by other states, there is presump- tion that it is valid. When, however, the conqueror receives the unconditional surrender of the other belligerent, the war is at an end. The enemy is considered conquered when he submits to the will of his opponent. It is not necessary that he should have no further resources or ability to continue the contest. It is of importance to know when belligerent rela- tions are succeeded by peaceful relations, for the status of oth- er than the belligerent parties is affected in many ways. In modern times it has not been common to allow the uncertainty as to the termination of the war to continue, and the success- ful belligerent is usually in position to determine when the war shall be declared at an end, or shall be ended by agree- ment. Lawrence briefly says of conquest : "This is the retention of territory taken from an enemy in war, and the exercise therein of all the powers of sovereignty, with the intention of continu- ing to do so permanently, which intention is usually set forth in a proclamation or some other legal document. Good ex- amples are to be found in the annexations of the Transvaal and the Orange Free State by Great Britain in 1900. Con- quest in the jural sense differs from cession by forced gift, in that there is no formal international transaction which marks 1 2 Hal leek, Int. Law (4th Ed.) p. 491. 368 TERMINATION OF WAR. (Ch. 21 the exact time of the commencement of the new title, and from conquest in the mihtary sense, in that it involves permanent rule over the territory. When a conquest in the military sense of part of a state's territory is confirmed by treaty of peace, the title to the conquered part is one of cession, not of con- quest in the legal sense." ^ At the International American Conference of sixteen Amer- ican states in 1889-90, a resolution was adopted on April 18, 1890, with only one abstention as follows : "Resolved, by the International American Conference, that it earnestly recommends to the governments therein represent- ed the adoption of the following declarations : "First. That the principle of conquest shall not, during the continuance of the treaty of arbitration, be recognized as ad- missible under American public law. "Second. That all cessions Of territory made during the con- tinuance of the treaty of arbitration shall be void, if made un- der threats of war or in the presence of an armed force. "Third. Any nation from which such cessions shall be ex- acted may demand that the validity of the cessions so made shall be submitted to arbitration. "Fourth. Any renunciation of the right to arbitration, made under the conditions named in the second section, shall be null and void." * THE EFFECT OF CONQUEST. 163. The efPects of conquest are, in general: (a) To transfer to the conqneror the rights and obligations that belonged to the conquered territory. (b) To render valid acts of the conqueror froni the date of military occupation of the territory. Grotius says that "it is not customary to take landed prop- erty, except under public authority, after an army has been brought in and strongholds have been established." * The continental doctrine has been that possession by force 2 Handbook of Public International Law (Tth Ed.) p. 53. 3 2 Reports of Committees and Discussions Thereon, Int. American Conference, p. 1147. * Grotius, De Jure Belli ac Pacis, lib. Ill, 11. § 163) THK EFFECT OF CONQUEST. 369 was simply a fact, which would be confirmed as a right only by a tacit or explicit abandonment by the former sovereign, or by the complete subjugation of that sovereign. Great Britain has regarded an enemy territory which is ef- fectively occupied as ipso facto British territory. The United States has followed the British doctrine. In IMagoon's Re- ports in 1902 it is said : "When Spain elected to go to war rather than withdraw from Cuba, she subjected the sovereign- ty and dominion of her entire realm to the hazard of that war, and by the laws of war and of nations she made it lawful for her adversary to invade any part of her domain and displace her sovereignty, exclude her jurisdiction, and destroy her dominion; in others words, effect a complete conquest. So much of her domain as became so situated was without the jurisdiction of Spain and within the possession of the United States. As to the United States, such territory was the same as land newly discovered and occupied by citizens of the Unit- ed States, with this difference : The occupier was a military force of the United States sent there by the nation itself, in- stead of a private citizen and pioneer adventurer." ^ If the whole state is completely conquered, there is no au- thority with which to make any treaty, and the rights and ob- ligations belonging to the territory pass to the conqueror. The conquering state would not necessarily obtain the rights be- longing to the sovereign of the conquered in his relations to other states, nor assume his obligations ; e. g., rights and du- ties based on alliances. The rights and duties based on inter- nal sovereignty would in general pass to the conqueror. The conqueror would be under no obligation to give to the inhabit- ants of the conquered territory rights which were not ex- tended to his own citizens, and he might even restrict the rights of, and impose additional burdens upon, the inhabitants of the conquered territory. "Their condition should remain as eligible as is compatible with the objects of the conquest." " 5 Magoon, The Law of Civil Government under Military Occupa- tion, p. 51. 6 "Conquest gives a title, which the courts of the conqueror can- not deny, whatever may be the speculative opinions of individuals respecting the original justice of the claim, which has been success- WlLS.lNT.L,.— 24 370 TKHMINATIOX OF WAR. (Cll. 21 If a portion of a state is acquired by conquest, the basis of acquisition is usually fixed by treaty; if not thus determined, the public property and general rights of territorial jurisdic- tion pass to the conqueror. The nonpolitical rights of the in- habitants remain, unless changed by the conqueror/ In the case of Count Platen Hallcmund, who was tried by the courts of Prussia in 1866 for treason, the opinion was given that the mere forcible conquest of a country did not, of itself, create the relation of sovereign and subject between the conqueror and the conquered ; that in order to create such a relation there must be an express or tacit submission to the new gov- ernment.* This might be by formal action or by simple reten- tion of domicile in the conquered territory. The jurisdiction of a state is suspended in the territory oc- cupied by an enemy. Acts done during the period of military occupancy rest for their authority upon the occupant. In case the occupancy is converted into complete dominion through conquest, the authority of the conquered state is regarded as as at an end from the date of effective occupancy by the con- fully asserted. But, although this title is acquired and maintained by force, humanity, acting on public opinion, has prescribed rules and limits by which it may be governed. Thus it is a rule that the captured shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually they are incorporated with the victorious na- tion, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other, the distinction between them is gradually lost, and they become one people. Where this incorporation is practicable, hu- manity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired, that the new sub- jects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of their being separated from .their ancient connections and united by force to strangers. When the conquest is complete, and the conquered in- habitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes those restraints upon him, and he cannot neglect them without injury to his name and hazard of his power." Johnson v. Mcintosh, 8 Wheat. 543, 5 L. Ed. G81. 7 United States v. Moreno. 1 Wall. 400, 17 L. Ed. 633. 8 1 Halleck, Int. Law (4th Ed.) 510. § 163) THE EFFECT OF CONQUEST. 371 queror, and acts subsequent to that time derive validity from his sanction. In 1833, in the case of United States v. Pcrche- man, Mr. Chief Justice Marshall said: "It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the coun- try. The modern usage of nations, which has become law, would be violated, that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their alle- giance ; their relation to their ancient sovereign is dissolved ; but their relations to each other, and their rights of property, remain undisturbed." ^ Later the United States court said in regard to the effect of conquest on property rights : "By the law of nations, the inhabitants, citizens, or subjects of a conquered or ceded country, territory, or province retain all the rights of property which have not been taken from them by the orders of the conqueror, or the laws of the sov- ereign who acquired it by cession, and remain under their former laws until they shall be changed." ^° In the case of United States et al. v. Huckabee the Supreme Court set forth quite fully the attitude of the United States : "All captures in war vest primarily in the sovereign ; but in respect to real property Chancellor Kent says the acquisi- tion by the conqueror is not fully consummated until confirm- ed by a treaty of peace or by the entire submission or destruc- tion of the state to which it belonged, which latter rule con- trols the question in the case before the court, as, the confed- eration having been utterly destroyed, no treaty of peace was or could be made, as a treaty requires at least two contracting parties. Power to acquire territory, either by conquest or treaty, is vested by the Constitution in the United States. Conquered territory, however, is usually held as a mere mil- itary occupation until the fate of the nation from which it is conquered is determined ; but if the nation is entirely subdued, 9 7 Pet. 51, 8 L. Ed. 604. 10 Mitchell V. United States, 9 Pet. 715, 9 L. Ed. 283. 372 TERMINATION OF WAR. (Ch. 21 or ill case it be destroyed and ceases to exist, the right of oc- cupation becomes permanent and the title vests absolutely in the conqueror. Complete conquest, by whatever mode it may be perfected, carries with it all the rights of the former gov- ernment ; or, in other words, the conqueror, by the completion of his conquest, becomes the absolute owner of the property conquered from the enemy nation or state. His rights are no longer limited to mere occupation of what he has taken into his actual possession, but they extend to all the property and rights of the conquered state, including even debts as well as personal and real property." ^^ Hall summarizes the effects of conquest by saying: "The effects of conquest are : "1. To validate acts done in excess of the rights of a mil- itary occupant between the time that the intention to conquer has been signified and that at which conquest is proved to be completed. "2. To confer upon the conquering state property in the conquered territory, and to invest it with the rights and affect it with the obligations which have been mentioned as accom- panying a territory upon its absorption into a foreign state. "3. To invest the conquering state with sovereignty over all subjects of a wholly conquered state, and over such subjects of a partially conquered state as are identified with the con- quered territory at the time when the conquest is definitively effected, so that they become subjects of the state and are naturalized for external purposes, without necessarily acquir- ing the full status of subject or citizen for internal purposes. The persons who are so identified with conquered territory that their nationality is changed by the fact of conquest are, of course, mainly those who are native of and established upon it at the moment of conquest. To these must be added per- sons native of another part of the dismembered state, who are established on the conquered territory and continue their residence there. Correlatively persons native of the conquered territory, but established in another part of the state to which it formerly belonged, ought to be considered to be subjects of the latter." ^^ 11 IG Wall. 414, 21 L. Ed. 457. 12 Hall. Int. Law (5th Ed.) p. 570. § 164) CESSATION OF HOSTILITIES. 373 CESSATION OF HOSTILITIES. 164. Certain xcrars have come to an end by the simple cessa- tion of hostilities. When war comes to an end by a simple cessation of hostili- ties, not only the subjects of the belligerent states, but also those of neutral states, are in doubt as to the extent of their rights and their status. Instances of this mode of terminating a war occurred in 1716, when Sweden and Poland were en- gaged in war, and simply ceased hostilities ; in 1720, when France and Spain ceased hostilities; and in 1801, in the war of Russia against Persia. The wars waged by Spain with her South American colonies, ceased in 1826 some time before the independence of the different states was acknowledged. The independence of Venezuela was not fully recognized by Spain till twenty-five years after the cessation of active hos- tilities. The uncertainties resulting from such methods of terminat- ing war have led in recent times to the general practice of making known by announcement the return of peace, even in cases of civil war. Such proclamations were made at the close of the Civil War in the United States in 1865 from time to time as hostilities ceased in different areas.^^ In the case of The Protector the United States Supreme Court said in 1871 in regard to the duration of the American Civil War : "Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts of the country so remote from each other, both at the commencement and the close of the late Civil War, that it would be difficult, if not impossible, to say on what precise day it began or terminated. It is necessary, therefore, to refer to some public act of the political departments of the govern- ment to fix the dates ; and, for obvious reasons, those of the executive department, which may be, and in fact was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. "The proclamation of intended blockade by the President may, therefore, be assumed as marking the first of these dates, 13 6 Messages and Papers of the Presidents, p. 308 ff. 374 TERMINATION OF WAR. (Ch. 21 and the proclamation that the war had closed as marking the second. But the war did not begin or close at the same time in all the states. There were two proclamations of intended blockade— the first, of the 19th of April, 1861 (13 Stat. 1258), embracing- the states of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas ; the second, of the 27th of April, 1861 (12 Stat. 1259), embracing the states of Virginia and North Carolina; and there were two proclama- tions declaring that the war had closed — one issued on the 2d of April, 1866 (14 Stat. 811), embracing the states of Vir- ginia, North Carolina, South Carolina, Georgia, Florida, Mis- sissippi, Tennessee, Alabama, Louisiana, and Arkansas ; and the other, issued on the 20th of August, 1866 (14 Stat. 814), embracing the state of Texas. "In the absence of more certain criteria, of equally general application, we must take the dates of these proclamations as ascertaining the commencement and the close of the war in the states mentioned in them." ^* EFFECT OF CESSATION OF HOSTILITIES. 165. Tlie e&ect of the tenuination of war by the cessation of hostilities is usually to introduce the principle of nti possidetis. While it may be difficult to determine at what period hostili- ties actually cease, yet, if that period is determined, it is cus- tomary to regard conditions prevailing at that time as the normal conditions, and to regard the territory and property held by either belligerent at the time of cessation as vested in the holder, uti possidetis. "Unless the parties stipulate otherwise, the effect of a treaty of peace is that everything remains in such condition as it was at the time peace was concluded. Thus, all movable state property, as munitions, provisions, arms, money, horses, means of transport, and the like, seized by an invading belligerent, remain his property, as likewise do the fruits of immovable property seized by him. Thus, further, if nothing is stipulat- ed regarding conquered territory, it remains in the hands of 14 The Protector, 12 Wall. 700, 20 L. Ed. 463. § 166) TREATY OF PEACE. 375 the possessor, who can annex it. But it is nowadays usual, although not at all legally necessar}-, for the conqueror, de- sirous of retaining conquered territory, to stipulate cession of such territory in the treaty of peace." ^^ TREATY OF PEACE. 1G6. In modern times, ^xra.v most frequently comes to an end by a treaty of peace. Treaties of peace are now usually preceded by preliminary agreements- embodying the bases for treaty negotiations. This agreement usually provides for the suspension of hostilities during negotiations, in order that the bases agreed upon may not be changed from day to day by the issue of the war. In the Spanish-American War of 1898 the protocol of August 12, 1898, containing the agreement to appoint commissioners to treat of peace upon certain conditions, also contained an agree- ment to suspend hostilities from that date. Proclamations suspending hostilities were immediately issued.^® The treaty of peace was not concluded till December 10, 1898. In the Russo-Japanese War negotiations looking toward peace were begun at Portsmouth, N. H., August 9, 1905. The envoys came to terms on August 29th, and a protocol suspending hos- tilities was issued September Ist.^'' The treaty of peace was signed on September 5th. The preliminary agreements preparatory to a treaty of peace are frequently made through the friendly offices of a third power. The ambassador of France acted for Spain in 1898 ; the President of the United States was instrumental in bring- ing the representatives of Russia and Japan together in 1905. According to article 3 of the Hague Convention of 1907 on the Pacific Settlement of International Disputes : "Powers strangers to the dispute have the right to ofifer good offices or mediation even during the course of hostilities. "The exercise of this right can never be regarded by either of the parties in dispute as an unfriendly act." 15 2 Oppenheim, Int. Law, § 273. 16 Foreign Relations U. S., 1898, 828. 17 Takahasbi, Int. Law dnring Russo-Japanese War, 219. 376 TEHMINATION OF WAR. (Cb. 21 SCOPE OF A TREATY OF PEACE. 167. A treaty of peace— (a) In general, puts an end to hostile relations bet^reen the belligerents. (b) Usually provides for the settlement of the differences leading to 'war. (c) Usually specifies the conditions of release of prisoners of •war. (d) Usually provides for claims of or against nationals of either party arising during or in consequence of the ■war. (e) May reviemr or confirm former treaties, provide for ces- sion of territory, establishment of new boundaries, etc. (a) Treaties at the close of a war are often extended to cover many other matters than those which would be included in a treaty of peace in the strict sense. A treaty of peace is primarily a treaty to put an end to the hostile relations of the belligerents. Treaties of peace and amity often mark the con- clusion of a war and cover many topics not involved in the simple conclusion of war, as the treaty of peace and amity be- tween the United States and Great Britain in 1814 included an article upon the abolition of the slave trade. (b) Treaties of peace usually provide for the settlement of the difficulties which have led to the war.^* The treaty of 1814 between the United States and Great Britain did not, however, mention these difficulties. (c) By the sixth article of the Spanish-American treaty of December 10, 1898, the United States and Spain reciprocally agree to return at state expense prisoners to their home coun- tries. Russia and Japan mutually agreed in 1905 to turn over prisoners into the hands of commissioners duly appointed by each state. (d) The provision of treaties of peace in regard to claims is illustrated in the Spanish-American Treaty of December 10, 1898: 18 The second article of the Russo-Japanese Treaty of September 5, 1905, acknowledges Japan's position in the Far East. Id. p. 774. By the first article of the Spanish-American Ti-eaty of December 10, 1898, Spain relinquishes all claim to the sovereignty of Cuba. 30 Stat. 1755. § 168) EFFECT OF A TREATY OF PEACE. 377 "Article VII. The United States and Spain mutually re- linquish all claims for indemnity, national and individual, of every kind, of either government, or of its citizens or subjects, against the other government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. "The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article." (e) European treaties of peace since the seventeenth century contain many instances of the renewal or confirmation of for- mer treaties. The Treaty of Utrecht, 1714, has often been confirmed. Sometimes a clause makes a general renewal of all treaties existing between the states at the outbreak of the war. Other matters are included as the conditions may make expedient, as the Spanish-American Treaty of December 10, 1898, contained an article providing that for the cession of the Philippine Islands : "The United States Avill pay to Spain the sum of twenty mil- lion dollars ($20,000,000) within three months after the ex- change of the ratifications of the present treaty." EFFECT OF A TREATY OF PEACE. 168. "While the final effects of a treaty of peace may be de- termined by the scope of its provisions, the immediate effects are to put an end to hostile relations betTtreen the belligerents and to put an end to the status of neutral- ity on the part of other states. Sometimes a treaty provides for the restoration of the sta- tus quo ante bellum ; sometimes it follows the doctrine of uti possidetis ; sometimes it establishes one doctrine in certain cases and the other in other cases. In absence of provisions in the treaty of peace, the doctrine of uti possidetis is usually fol- lowed, and each belligerent retains what he has in his posses- sion. In case the principle of restoration of the status quo ante bellum is adopted, lawful prize and booty would not or- dinarily be restored. This principle was largely followed in the treaty of peace between the United States and Great Bri- tain in 1814. 378 TERMINATION OF WAR. (Ch. 21 Some treaties may revive ipso facto on the conclusion of a treaty of peace. Certain private rights which have been sus- pended during the war revive. War does not necessarily ter- minate contracts, but suspends the judicial enforcement of some contracts.^* Some contracts are generally dissolved, as partnership, and do not revive by a treaty of peace. The gen- eral principle was stated in 1823 by the United States Supreme Court as follows : "We think, therefore, that treaties stipulating for perma- nent rights and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts ; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation at the return of peace." ^° In general a treaty determines transfer of sovereignty. From the treaty of peace between the United States and Spain after the Spanish-American War in 1898, it is evident that the United States did not consider that it had by the simple fact of effective military occupation obtained the sovereignty over or gained title to Spanish territory. Article II of that treaty states that "Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sov- ereignty in the West Indies, and the island of Guam in the ^Marianas or Ladrones," though the forces of the United States were at the time occupying Porto Rico. It is evident that the United States and Spain, after the war of 1898, considered it necessary to agree to abrogate and annul the treaties existing prior to the war. Provision to this effect is made in article XXIX of the Treaty of Friend- ship and General Relations of July 3, 1902, as follows : "All treaties, agreements, conventions and contracts between the United States and Spain prior to the Treaty of Paris shall be expressly abrogated and annulled, with the exception of the treaty signed the seventeenth of February, 1834, between the two countries, for the settlement of claims between the United 19 Semmes v. City Fire Ins. Co. 13 Wall. 158, 20 L. Ed. 490. 20 Society for Propagation of tlie Gospel v. New Haven, 8 Wheat. 464, 5 L. Ed. 662. § 170 POSTLIMINIUM. 379 States of America and the government of His Catholic Maj- esty, which is continued in force by the present convention." As neutrality can exist only during war, the restoration of peace puts an end to that relationship. The rights and obliga- tions of neutrality are at an end. PROCLAMATION. 169. The termination of a civil -war is usually by some act of the political department. The surrender of the main armies of the party opposing the established state does not necessarily terminate a civil war, for hostilities may be renewed in other regions and by other groups. There is usually no responsible authority which can control those who may engage in military uprisings in differ- ent sections. There is also no political authority in the in- surgent party competent to make a binding treaty. When, however, the political department of an established state is satisfied that the war is at an end, and issues a proclamation to that effect, this action is binding upon the courts, and is sufficient evidence of the termination of hostilities. War may close at different times in different regions by proclamations to that effect, as in the case of the American Civil War.^^ POSTLIMINIUM. 170. The term "postliminium" is used to indicate the return to the original soverignty of that ivhich has been for a time under control of an enemy. The term "postliminium," derived from the Roman law idea that a person, who had been captured and taken beyond (post) the boundary (limen), on- return recovered his former status, served a convenient purpose. By an analogy it was applied to the return to former status when a territory which 21 The Protector, 12 Wall. 700, 20 L. Ed. 463; Brown v. Hiatt, 15 Wall. 177, 21 L. Ed. 128; Adger v. Alston, 15 Wall. 555, 21 L. Ed. 234; Batesville Institute v. Kauffraan, 18 Wall. 15J, 21 L. Ed. 775. 380 TERMINATION OF WAR. (Ch. 21 had been occupied by an enemy came again under the former sovereignty. The doctrine was applied in various directions in municipal law. In international law it was considered as applicable to ter- ritory which had for a time been in the power of the enemy as well as to persons. It is now held that sovereignty does not pass to the military occu[)ant, but that its exercise is for the time suspended. Acts of the occupant which are legitimate under the rules of international law of war are valid when the occupancy is at an end. The occupant may carry on the ordi- nary administrative functions, and his acts are as valid as those of the sovereign. The occupant has right to the use of the ordinary revenue under the law. Receipts which the occu- pant gives for services rendered or taxes paid are valid. If the occupant has performed acts which are not legal under the law of military occupation, these acts are invalid. If he has sold the public domain, he has gone beyond his legitimate authority, and the title will not hold against the state when it is restored to power. The occupant would have a right to the income from the public domain during his occupancy. If private property is seized and sold, the title is not valid, when the occupant is driven out, retires, or when peace is restored, because the confiscation of private property is forbidden un- der the laws of war. Such property reverts to the original owners, when the authority of the legitimate sovereign is re- stored, and the purchaser has no redress. The analogy to the old idea of postliminium is by some writers not considered sufficiently close to warrant the use of the word, and they maintain that it obscures the meaning of rules which are in themselves simple and based on the fact that military occupation suspends the operation of sovereignty, but does not establish a new sovereignty, which may act with- out regard to previously existing rights, or in disregard of the laws of war.-^ 22Bonfils, Droit Int No. 1710; 3 Nys, Droit int. 738; Ullmann, Volkerrecht, § 169. 171) V AMNESTY. 381 AMNESTY. 171. Clauses are frequently included in treaties of peace by ^vhich. immunity is granted for offenses in nature of the violation of the rules of war. Amnesty is a kind of act of oblivion. Even if such a clause is not included in the treaty, it is generally understood that acts in the line of hostilities will not be penalized. Amnesty does not give immunity for ordinary crimes which have no direct connection with the war; i. e., foraging might be al- lowed in time of war for war purposes, but similar action might be liable to penalty if not for war purposes. Unless specially incorporated in the treaty, treason against the state would not be included in a general amnesty. Amnesty does not give any relief from penalty already suffered, whether in person or property.-^ During and after the Civil War in the United States, sev- eral proclamations of amnesty were issued. The earlier proc- lamations did not confer amnesty upon all, but made excep- tion of certain classes. The proclamation of December 25, 1868, was general in its nature ; President Johnson saying that "I, by virtue of the power vested in me by the Constitution, and in the name of the sovereign people of the United States, do hereby proclaim and declare, unconditionally and without reservation, to all and to every person who, directly or indi- rectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late Civil War, with restoration of all rights, privileges, and im- munities under the Constitution and the laws which have been made in pursuance thereof." ^* 2 3 United States v. Dunnington, 146 U. S. 338, 13 Sup. Ct 79, 36 L. Ed. 996. 24 6 Messages and Papers of the Presidents, p. 708. Part VI RELATIONS OF NEUTRALS WrLS.lNT.L. (383)« § 172) NATURE OF NEUTRALITY. 385 CHAPTER XXII. NATURE OF NEUTRALITY. 172. Neutrality Defiued. 173. Development. 174. Neutralization. 175. Declaration. 176. Divisions. NEUTRALITY DEFINED. 172. Nentrality is, in general, abstention by a state Trbicb is not party to a w^ar from all participation in the ^srar, and may extend to tlie obligation to prevent, tolerate, or regulate certain acts upon tbe part of the bellig- erents. Impartiality in the treatment of belligerents is not neces- sarily neutrality in the modern sense, for it would be possible for a state to grant a like privilege to both belligerents, when this privilege might be of no service to one belligerent and of greatest service to the other as in the use of ports. Modern neutrality proclamations, which sometimes prescribe that both "impartiality and neutrality" shall be observed toward the bel- ligerents, define the "impartiality" as like treatment and "neu- trality" as nonparticipation in the hostilities. Recent British proclamations provide for the observance of "a strict and im- partial neutrality." Other proclamations contain similar pro- visions. The idea of the elements of neutrality in the modern sense was stated in the proclamation of President Washington of December 3, 1793, when he said : "The duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and im- partial toward the belligerent powers." ^ Conduct that shall be at the same time "friendly and impartial" is now regarded as obligatory upon a neutral state. The line of demarcation 1 1 Richardson, Messages and Papers of the Presidents, 156. WiLS.lNT.L.— 25 386 NATURE OP NEUTRALITY. (Ch. 22 in neutral duties of abstention, prevention, toleration, and regulation in practice often becomes indistinct, and accurate classification may not always be possible. DEVELOPMENT. 173. In early times neutrality xf^aa not recognized. The idea is largely a product of the nineteenth century. The practice in regard to neutrality necessarily has become more defined as states have become more closely re- lated. The Development of the Idea of Neutrality. The Greek and Latin languages have no words which clearly express the meaning of the words "neutral" and "neutrality." The Romans made use of the words, "amici," "medii." "pa- cati," and "socii" to convey some of the ideas now conveyed by the word "neutrality." Grotius in 1G25 made use of the expression, "De his qui in bello medii sunt," as a title for his brief chapter upon the subject of their rights, in which he said: "It is the duty of those who stand apart from a war to do nothing which may strengthen the side whose cause is un- just, or which may hinder the movements of him who is carry- ing on a just war, and, in a doubtful case, to act alike to both sides, in permitting transit, in supplying provisions to the re- spective armies, and in not assisting persons besieged." ^ In the seventeenth century there were frequent attempts to establish grades of neutrality as natural, strict, perfect, im- perfect, qualified, conditional, conventional, etc.^ Bynkershoek, in 1737, said : "I call those 'non-enemies' who are of neither party in a war. If I am neutral, I cannot advantage one party lest I injure the other." * Vattel says in 1758 : "Neutral nations, during a war, are those who take no one's part, remaining friends common to both parties, and not favoring the armies of one of them to the prejudice of the other." ^ This definition, and the ex- planations which Vattel gives of its meaning, shows a less 2 Grotius, De Jure Belli ac Pacis, lib. 3, C. 8 Pufendorf, Le Droit de la Nature et des Gens, liv. VIII, c. VI. 4 Qufsstiones Juris Publici, I, IX, "qui neutrarum partium sunt." - Droit des Gens, III, 103. § 173 DEVELOPMENT. 387 clear conception of the idea of neutrality than that set forth by Bynkershoek more than twenty years earlier. The idea of Vattel, of impartiality rather than strict neutrality, generally prevailed during the eighteenth century. Toward the end of that century the distinction between a "strict or perfect neutrality" and an "imperfect neutrality" began to be made among those writing upon the law of nations. \\"heaton in 1S36 says : "There are two species of neutral- ity recognized by international law. These are : (1) Natural or perfect, neutrality; and (2) imperfect, qualified, or conven- tional neutrality. "First. Natural, or perfect, neutrality is that which every sovereign state has a right, independent of positive compact, to observe in respect to the wars in which other states may be engaged. * * * "Second. Imperfect, qualified, or conventional neutrality is that which is modified by special compact." ® Kleen in 1898 says that, when neutral, a state keeps out of the hostilities and refrains from any participation or interfer- ence in the contention, while maintaining strict impartiality.''' It is, however, now generally recognized that neutrality may in practice involve more than refraining from participation or interference, and the maintenance of strict impartiality. Neu- trality places certain positive obligations upon the state. The failure to perform these obligations may have great effect up- on the results of the war. By the Hague Convention Concern- ing Laws and Customs of War on Land of 1899, and by that of 1907 Respecting the Rights and Duties of Neutral Powers, a neutral state whith receives on its territory troops belonging to the belligerent armies is under obligation to intern them as far as possible from the seat of war. In naval war a neutral state is likewise bound to exercise such care as the means at its disposal allow to prevent violation of its neutrality by bel- ligerents. This may even involve the use of force by the 6 Elements of International Law, §§ 413-415. 7 "La neutralite est la situation juridiqne dans laquelle un 6tat pacifique est, autant que possible, laisse en dehors des hostilites qui ont lieu entre des etats bellig6rants, et s'abstient hii-mgme de toute participation ou ingerence dans leur differend, en observant vis-^-vis d'eux une stricte impartial ite." 1 La Neutralite, p. 73. 388 NATURE OF NEUTRALITY. (Cll. 22 neutral against a belligerent not observing the recognized principles of international law. Development of Practice in Regard to Neutral Relations. As war in early times was usually regarded as a state of afifairs without law, there was in practice no respect for those who were not parties to the war. Rights of third parties could hardly develop till the rights of the parties to the war were somewhat defined. Belligerents were gradually compelled in practice to respect certain rights of commerce. Some of these rights were formulated in the Consolato del Mare, a maritime code of uncertain origin, probably of the thirteenth century, which provided for the freedom of neutral property on the sea. The rules of this code were, however, frequently disregarded in the wars before the end of the eighteenth century, and at this period there was great diversity in practice. There also grew up a difference in practice in regard to neutral rights and duties on land and on the sea. Toward the end of the eigh- teenth century it was regarded as permissible for a neutral to allow its troops to serve a foreign power and to allow its ports to be used for war purposes. By the Armed Neutrality of 1780 the states of Northern Europe, under the lead of Russia, set forth, among other prin- ciples, that free ships make free goods, except contraband of war, which was reaffirmed by the Armed Neutrality of 1800. There was also a declaration against paper blockades. Free- dom of commerce began to he provided for in treaties also. Article 23 of the treaty between the United States and France in 1778 provided that free ships should make free goods. The principle was incorporated in other United States treaties of the period.® The question received much attention both from American and foreign publicists. In U'.'o the disregard of belligerents for neutral territory re- ceived a marked illustration in the conduct of M. Genet, the 8 "If one of the contracting parties should be engaged in war with any other power, the free intercourse and commerce of the subjects or citizens of the party 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 § 173) DEVELOPMENT. 389 French minister to the United States. He issued letters of marque to American merchantmen, in order that they might cruise against British ships. He also proceeded to set up prize courts in connection with the French consulates. The action led to vigorous protests on the part of the United States,^ and later to the so-called neutrality act of June 5, 1794/° which was subsequently renewed, and, with the act of April 20, 1818, became the basis of the neutrality practice of the United States.^ ^ This act was summarized in President Roosevelt's neutrality proclamation of February 11, 1901, in which he declares : "That by the act passed on the 20th day of April, A. D. 1818, commonly known as the 'neutrality law,' the following acts are forbidden to be done, under severe penalties, within the territory and jurisdiction of the United States, to wit: "1. Accepting and exercising a commission to serve either of the said belligerents by land or by sea against the other belligerent. "2. Enlisting or entering into the service of either of the said belligerents as a soldier, or as a marine, or seaman, on board of any vessel of war, letter of marque, or privateer. "3. Hiring or retaining another person to enlist or enter himself in the service of either of the said belligerents as a soldier, or as a marine, or seaman on board of any vessel of war, letter of marque, or privateer. "4. Hiring another person to go beyond the limits or juris- diction of the United States with intent to be enlisted as afore- said. "5. Hiring another person to go beyond the limits of the United States with intent to be entered into service as afore- said. 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 belong to an enemy of the other; and the same freedom shall be extended to persons who shall be on hoard a free vessel, although they should be enemies to the other party, unless they be soldiers in actual service of such enemy." Article 12, Treaty between United States and Prussia, 1785. » 1 American State Papers, Foreign Relations, 69, 140, 147, 160. 10 1 Stat. p. 381, e. 50. 11 Rev. St. §§ 52S1-5291 (U. S. Comp. St. 1901, pp. 3599-3602). 390 NATUIU: OF NEUTRALITY. (Ch. 22 "6. Retaining another person to go beyond the limits of the United States with intent to be enhsted as aforesaid. "7. Retaining- another person to go beyond the limits of the United States with intent to be entered into service as afore- said. (But the said act is not to be construed to extend to a citizen or subject of either belligerent who, being transiently within the United States, shall, on board of any vessel of war, which, at the time of its arrival within the United States, was fitted and equipped as such vessel of war, enlist or enter him- self, or hire or retain another subject or citizen of the same belligerent, who is transiently within the United States, to enlist or enter himself, to serve such belligerent on board such vessel of war, if the United States shall then be at peace with such belligerent.) "8. Fitting out and arming, or attempting to fit out and arm, or procuring to be fitted out and armed, or knowingly being concerned in the furnishing, fitting out, or arming of. any ship or vessel with intent that such ship or vessel shall be employed in the service of either of the said belligerents. "9. Issuing or delivering a commission within the territory or jurisdiction of the United States for any ship or vessel to the intent that she may be employed as aforesaid. "10. Increasing or augmenting, or procuring to be increased or augmented, or knowingly being concerned in increasing or augmenting', the force of any ship of war, cruiser, or other armed vessel, which at the time of her arrival within the United States was a ship of war, cruiser, or armed vessel in the service of either of the said belligerents, or belonging to the subjects of either, by adding to the number of guns, of such vessels, or by changing those on board of her for guns of a larger caliber, or by the addition thereto of any equip- ment solely applicable to war. . "11. Beginning or setting on foot, or providing or preparing the means for, any military expedition or enterprise to be carried on from the territory or jurisdiction of the United States against the territories or dominions of either of the said belligerents." ^^ 12 Foreign Relations U. S., 1904, p. 32. §174 NEUTRALIZATION. 391 The acts were approved as the embodiment of good practice, particularly in Great Britain. In 1819 the British Parliament passed an act embodying similar principles.^^ This act re- mained in force till the passage of the British Foreign Enlist- ment Act of 1870/* which enlarges the range of prohibited actions. Thus in early times the only relations which were regarded as possible were either of peace or of war. Later there were grades of impartiality. There then developed a doctrine of general abstention of the neutral state from participation, ei- ther directly or indirectly, in the hostilities. Since the middle of the nineteenth century there has been a growing recognition of the positive obligation of the neutral state to prevent or prohibit certain acts within its territorial jurisdiction, such as use of its territory as a military base. With the development of neutrality there has also gone an increasing recognition of the right of the belligerent to carry on hostilities and the obligation of the neutral to submit to reasonable constraint because of the existence of hostilities. This duty of toleration is most frequently seen in the exercise of the right of visit and search. The neutral rights and obligations as at present developed, therefore, involve the abstention from, the prevention of, and the toleration of certain acts. Some of these are made sub- jects of international agreement in the Hague Conventions of 1907, thus showing in practice the full recognition of the status of neutrality. NEUTRALIZATION. 174. By conventions, tlie subjects of an agreement are some- times given a full or a qualified neutral status. (a) States or portions of states are sometimes neutralized. Such states are bound to refrain from offensive hostilities, but are usually permitted to keep an army for defense. The de- 13 St. .59 Geo. Ill, c. 69. 14 St. 33 & 34 Vict. c. 90. In Regina v. Jameson [1896] 2 Q. B. 42.5, this act was held to be operative as to a British subject who violated it bv furnishing assistance from a place outside British dominion. 392 NATUKE OF NEUTRALITY. (Ch. 22 gree of restraint upon the action of the state varies according to the convention. Provision was made for the perpetual neutrahzation of Switzerland at the Congress of Vienna, on March 20, 1S15. and the Confederation agreed to its terms on May 27th of the san^e year.^' The neutralization of Belgium was provided for in the Treaty of London, November 15, 1831. The neutrality of the islands of Corfu and Paxo was provided for in the Treaty of London of Alarch 29, 1864. (b) The neutralization of commercial routes which are in the main lines of the world's commerce is considered ex- pedient. It has been proposed that certain routes commonly traversed by commerce upon the high seas should be neutral- ized. The Suez Canal is neutralized by the Convention of Constantinople of October 29, 1888,^® to which nine states are parties. The Panama Canal is to a certain extent neutralized by a convention between the United States and Great Britain of November 18, 1901." 15 1 Hertslet, 64. ic Parliamentary Papers, Commercial, No. 2 (18S9) ; Id. France, No. 1, 1904, p. 9 ; Holland, Studies in Int. Law, p. 269. 17 "Article III. The United States adopts, as the basis of the neu- tralization of such ship canal, the following rules, substantially as embodied in the Convention of Constantinople, signed the 28th Oc- tober, ISSS, for the free navigation of the Suez Canal, that is to say: "1. The canal shall be free and open to the vessels of commerce and of war of all nations observing these rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable. "2. The canal shall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it. The United States, however, shall be at liberty to maintain such military police along the canal as may be necessary to protect it against law- lessness and disorder. "3. Vessels of war of a belligerent shall not revictual nor take an.v stores in the canal except so far as may be strictly necessary ; and the transit of such vessels through the canal shall be effected with the least possible delay in accordance with the regulations in force, and with only such intermission as may result from the necessities of the service. "Prizes shall be in all respects subject to the same rules as vessels of war of the belligerents. § 175) DECLARATION OF NEUTRALITY. 393 (c) The conventions based upon the Geneva Convention of August 22, 1864, have for their object the exemption from the consequences of war of the materiel and personnel en- gaged in care of the sick, wounded, or shipwrecked in war.^® DECLARATION OF NEUTRALITY. 175. 'While tlie practice is not uniform, it is customary for a neutral state to issue a declaration making knotvn the position it will assume during the hostilities. Sometimes such proclamations are brief and general; oth- ers may enter into details in regard to the attitude of the state and the conduct of public and private persons. The German declaration of February 13, 1904, was brief and general. ^^ "4. No belligerent shall embark or disembark troops, munitions of war, or warlike materials in the canal, except in case of accidental hindrance of the transit, and in such case the transit shall be re- sumed with all possible despatch. "5. The provisions of this article shall apply to waters adjacent to the canal, within three marine miles of either end. Vessels of war of a belligerent shall not remain in such waters longer than twenty-four hours at any one time, except in case of distress, and in such case, shall depart as soon as possible; but a vessel of war of one belligerent shall not depart within twenty-four hours from the departure of a vessel of war of the other belligerent. "6. The plant, establishments, buildings, and all work necessary to the construction, maintenance, and operation of the canal shall be deemed to be part thereof, for the purposes of this treaty, and in time of war, as in time of peace, shall enjoy complete immunity from attack or injury by belligerents, and from acts calculated to impair their usefulness as part of the canal." 18 Geneva Convention of July 6, 1900, Appendix, p, 50S; Convention for Adaptation to Naval War of Principles of Geneva Convention, The Hague, 1907, Appendix, p. 549. 19 "German Empire— Proclamation. According to official declara- tions which have been made here by the Imperial Russian Govern- ment and the Imperial Japanese Government, a state of war now ex- ists between Russia and Japan. This is hereby proclaimed, with the further announcement that it is the duty of every one within the territory of the Empire and in the German protectorates, as well as of Germans in foreign lands, to refrain from all acts contrary to the neutrality of Germany. "Berlin, February 13, 1904. "The Imi^erial Chancellor, Count von Biilow." 394 NATUUE OF NEUTRALITY. (Ch. 22 The Brazilian regulations of May 5, 1898, were detailed. The Brazilian regulations contained the general provision that "in- dividuals residing" in Brazil, citizens or foreigners, must abstain from all participation and aid in favor of either of the bellig- erents, and may not do any act which might be considered as hostile to either one of the two parties, and, therefore, con- trary to the obligations of neutrality," and among the special provisions were those relating to privateers, enlistment, ex- portation of war material, use of telegraph, twenty-four hour sojourn of belligerent ships, entrance of prizes, coaling, pro- visioning, and fitting of belligerent ships of war, sailing of merchant ships, etc.-" The United States took an advanced step in 1904 in regu- lating by proclamation the conduct of national civil, military, and naval officials as regards their relations to belligerents.^^ 20 Foreign Relations U. S., 1898, p. S4G. 21 "Executive order: "White House, Marcli 10. 1904. "All officials of the government, civil, military-, and naval, are here- by directed not only to observe the President's proclamation of neu- trality in the pending war between Russia and Japan, but also to ab- stain from either action or speech which can legitimately cause ir- ritation to either of the combatants. The government of the United States represents the people of the United States, not only in the sincerity with which it is endeavoring to keep the scales of neutrality exact and even, but in the sincerity with which it deplores the break- ing out of the present war, and hopes that it will end at the earliest possible moment and with the smallest possible loss to those engaged. Such a war inevitably increases and inflames the susceptibilities of the combatants to anything in the nature of an injury or slight by outsiders. Too often combatants make conflicting claims as to the duties and obligations of neutrals, so that even when discharging these duties and obligations with scrupulous care it is difficult to avoid giving offense to one or the other party. To such unavoidable causes of offense, due to the performance of national duty, there must not be added any avoidable causes. It is always unfortunate to bring Old World antipathies and jealousies into our life, or by speech or conduct to excite auger and resentment toward our na- tion in friendly foreign lands; but in a government employe, whose official position makes him in some sense the representative of the people, the mischief of such actions is greatly increased. A strong and self-confident nation should be peculiarly careful, not only of the rights, but of the susceptibilities, of its neighbors; and nowadays I 176) DIVISION OF SUBJECT. 395 DIVISION OF SUBJECT. 176. Relations existing betinreen neutrals and belligerents naturally fall under two beads: (a) The relations existing betw^een tbe belligerents and neu- tral states, as sucb. (b) The relations existing betvreen the belligerents and in- dividuals. The Relations between BelH_^erents and Neutral States. (a) The relations between the belligerents and neutral states are based upon the respect for the sovereign rights of the states. Established usage may determine what course should be pursued under certain circumstances. In recent years, particularly since the First Peace Conference at The Hague in 1899, treaties and general international agreements have been entered upon to establish uniformity of practice in time of war. Relations between Belligerents and Neutral Individuals. (b) Between belligerents and neutral individuals there exist no mutual obligations. The neutral individual owes no obliga- tion to the belligerent, and under ordinary circumstances the belligerent exercises no jurisdiction over the neutral individual. In general, the neutral individual may engage in commerce in time of war as in time of peace. There are conditions under which the individual may act in such manner as to constitute a material interference with the conduct of the hostilities. The belligerent then claims the right to exercise such authority as will prevent or deter the neutral from thus acting. The bellig- erent also claims the right to exercise reasonable care to deter- mine whether such action is contemplated as by visit and search. all the nations of the world are neighbors one to the other. Courtesy, moderation, and self-restraint should mark international, no less than private, intercourse. "All the ofBcials of the government, civil, military, and naval, are expected so to carry themselves both in act and in deed as to give no cause of just offense to the people of any foreign and friendly power — and with all mankind we are now in friendship. "Theodore Roosevelt" Foreign Relations U. S., 1904, p. 185. 396 NATURE OF NEUTRALITY. (Ch, 22 The action of the neutral individual may sometimes be of such character as to show that the neutral state has not taken rea- sonable precautions against allowing- neutral territory to be used as a base for hostile purposes. It is customary for the neutral state to tolerate interference with the acts of neutral individuals in the time of war which would not be allowed in time of peace, and also to take precautionary measures and as- sume obligations in regard to acts of its nationals which it would not take or assume in time of peace. The most fre- quent relationships into which belligerents and neutral individ- uals come involve . (1) Ordinary commerce. (2) Visit and search. (3) Contraband. (4) Blockade. (5) Continuous voyage. (6) Unneutral service. (7) Convoy. (8) Prize. § 178; VISIT AND SEARCH. 397 CHAPTER XXIII. VISIT AND SEARCH. 177. Visit and Search. 178. The Exercise of the Right. 179. Method of Visit and Search. ISO. Exemption from and Limitation of Right. 181. Convoy. 182. Grounds of Capture. 183. Transfer of Property. 184. Treatment of Captured Vessels. 185. Destruction or Approipriation of Property at Sea. VISIT AND SEARCH IN V/AR. 177. In time of -wrar, visit and searcli is a right in accord x^th, 'orliicli a belligerent vessel may stop, visit, and searcli a neutral vessel, in order to learn xtrliether it is in any way connected 'with the hostilities. By visit and search the belligerent usually endeavors to as- certain the nationality of the vessel, whether neutral or bel- ligerent; the nature of the cargo, whether contraband or in- nocent ; the destination, whether enemy or neutral ; and the nature of the service, whether neutral or unneutral.^ In order to ascertain the identity or nationality of a vessel which would not be liable to visit and search, a belligerent sometimes exercises what is called the "right of approach." THE EXERCISE OF THE RIGHT OF VISIT AND SEARCH. 178. The right of visit and search in general may be exer- cised— (a) By regularly commissioned vrar vessels of the bellig- erents. (b) Over private vessels of neutrals. (c) At any point outside of neutral jurisdiction. (d) During the period of the war. 1 The right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be 398 VISIT AND SEARCH. (Ch. 2S (a) Before the Declaration of Paris of 185G, by which "pri- vateering is and remains abolished," there was abuse by privateers of the right of visit and search, even though the privateers were commissioned. There was no objection to the exercise of this right by the regular naval forces of the bel- ligerents. The neutral has, however, a right to demand that there shall be no interference with his commerce in time of war by vessels of the belligerents for whose acts the belligerent does not assume full responsibility. The Hague Convention of 1907, therefore, provided that "a merchant ship converted into a warship cannot have the rights and duties accruing to such vessels unless it is placed under the direct authority, immediate control, and responsibility of the power whose flag it flies." ^ The command of such vessels must be in regularly commis- sioned officers of the state. (b) As persons residing within neutral jurisdiction are per- mitted to carry on commerce in the time of war as in the time of peace, the belligerent as a measure of reasonable protection must assure himself or be assured that the neutral is not acting in such a manner as to injure him or to aid the other bellig- erent. The method of gaining this assurance is commonly by visit to a neutral private vessel, and, if there is then doubt, by search of the vessel. It has been proposed that vessels cer- tificated as innocent by neutral officials authorized for this purpose be exempted from search." Before the Declaration of London, 1909, neutral private vessels under convoy were by some states allowed exemption, but Great Britain had not until that time admitted this as a right. the destinations, is an incontestable right of the lawfully commis- sioned cruisers of a belligerent nation. 1 C. Rob. 340. 2 Conversion of Merchant Ships into War Ships, ante, p. 314. 3 Earl Grey to Sir Edward Fry, First British Plenipotentiary to Second Hague Peace Conference, June 12, 1907: "29. His Majesty's government would further be glad to see the right of search limited in every practicable way; e. g., by the adoption of a system of con- sular certificates declaring the absence of contraband from the cargo, and by the exemption of passenger and mail steamers upon defined routes, etc." Correspondence Respecting Second Peace Conference, Parliamentary Papers, Misc. No. 1 (1908) p. 17. § 179) METHOD OF VISIT AND SEARCH. 399 Public vessels of neutrals, bound by good faith to act as neutrals, are exempt from visit and search, though there has been some question as to the extension of exemption to such public vessels as may be engaged in occupations of a commer- cial nature; e. g., the postal service. It is maintained that, if such vessels are commanded by a regularly commissioned offi- cer of the navy, his word should be sufficient assurance of the character of the vessel.* (c) The right of search may in general be exercised at any point within the jurisdiction of either belligerent, on the high seas, and at any point outside of neutral jurisdiction. Restric- tions upon the exercise of war rights are sometimes provided in treaties.^ (d) The right of visit and search continues during the pe- riod of the war. An armistice or suspension of hostilities binds the belligerent forces, but does not put obligations upon neutrals; therefore the belligerent for his own protection would naturally continue the exercise of visit and search until peace is assured. The armistice agreed upon between Russia and Japan September 1, 1905, regulating the action of their forces, specifically stated that "maritime captures will not be suspended by the armistice." METHOD OF VISIT AND SEARCH. 179. .'Where treaty provisions in regard to the exercise of the right of visit and search do not exist, the right should be exercised Twith consideration for the general rights of the neutral. The treaty between the United States and Italy of February 26, 1871, provides that "in order to prevent all kinds of dis- order in the visiting and examination of the ships and cargoes 4 Perels, Offentliche Seerecht, § 52, IV. 5 "The canal shall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it. The United States, however, shall be at liberty to maintain such military police along the canal as may be necessary to protect it against law- lessness and disorder." Article III, Treaty between Great Britain and United States, Nov. 18, 1901, Traus-Is.thmian Canal. 400 VISIT AND SEARCH. (Cll. 23 of both the contracting parties on the high seas, they have agreed mutually that, whenever a vessel of war shall meet with a vessel not of war of the other contracting party, the first shall remain at a convenient distance, and may send its boat with two or three men only, in order to execute the said examination of the papers, concerning the ownership and cargo of the vessel, without causing the least extortion, vio- lence, or ill treatment, and it is expressly agreed that the un- armed party shall in no case be required to go on board the examining vessel for the purpose of exhibiting his papers, or for any other purpose whatever." "^ The method prescribed for the United States naval forces in the Spanish-American War, in 1898, was as follows : "The right should be exercised with tact and consideration, and in strict conformity with treaty provisions, wherever they exist. The following directions are given, subject to any special treaty stipulations : After firing a blank charge, and causing the vessel to lie to, the cruiser should send a small boat, no lar- ger than a whale boat, with an officer to conduct the search. There may be arms in the boat, but the men should not wear them on their persons. The officer, wearing only his side arms, and accompanied on board by not more than two men of his boat's crew, unarmed, should first examine the vessel's papers to ascertain her nationality and her ports of departure and destination. If she is neutral, and trading between neutral ports, the examination goes no further. If she is neutral, and bound to an enemy's port not blockaded, the papers which indicate the character of her cargo should be examined. If these show contraband of war, the vessel should be seized ; if not, she should be set free, unless, by reason of strong grounds of suspicion, a further search should seem to be requisite." ^ The Japanese Regulations Governing Captures at Sea, pub- lished in 1904, provide that "the boarding officer, before he leaves the vessel, shall ask the master whether he has any com- plaint regarding the procedure of visiting or searching, or any other points, and if the master makes any complaints he 6 Article 18, 17 Stat. 854. 7 General Order 492, U. S. Navy Dept. June 20, 1898. No. 13. § 180) EXEMPTION FROM VISIT AND SEARCH, ETO. 401 sliall request him to produce tlicm in writing." * If the firing of the blank charge is not sufficient to cause a vessel to lie to, a shot may be fired across the bows; and, if this is not sufficient, the warship may use necessary force. EXEMPTION FROM AND LIMITATION OF VISIT AND SEARCH. 180. (a) Public vessels of the neutral are exempt from, visit and search. (h) And neutral vessels under convoy of public vessels are generally exempt on proper assurances from the com- mander of the convoy. (c) Neutral mail ships are searched only in case of necessity. (a) Public vessels of the neutral, as representing the sov- ereignty, are exempt from visit and search. The word of the commander must be accepted as to the character of the vessel. Within the theater of actual hostile operations the movements of a neutral public vessel may necessarily be controlled, or the vessel may be approached in order to ascertain its identity. (b) The exemption from visit and search of neutral mer- chant vessels under convoy of a neutral warship is generally granted upon proper assurance. "The verbal declaration of the commander 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 contraband goods on board, shall be sufficient." ^ In case of grave suspicion, however, visit and search of a convoyed ves- sel is permissible. Up to 1908, Great Britain was unwilling to concede the right of exemption to vessels under convoy.^" 8 Article LXII. 9 Treaty between United States and Italy, Feb. 2G. 1871, Art. XIX, 17 Stat. 854. 10 Hall presented the English view as follows: "It is argued that the commander of a vessel of war in charge of a convoy represents his government, that his affirmation pledges the faith of his nation, and that the belligerent has a stronger guarantee in being assured by him that the vessels in company are not engaged In any illicit traffic than in examining for himself papex'S which may be fraudu- lent. But unless the neutral state is to exercise a minuteness of su- pervision over every ship issuing from her ports, which would WiLS.lNT.L.— 26 402 VISIT AND SEARCH. (Ch. 23 (c) Claims have been made that mail vessels should be ex- empt. The parties to The Hague Convention of 190?, while exempting the mails, were able to agree only that "the ship, however, may not be searched, except when absolutely neces- sary, and then only with as much consideration and expedition a3 possible." ^^ CONVOY. 181. Neutral vessels sailing under the escort of a neutral war- ship are in general exempt from visit and search, though the commander of the w^arship is under ohliga- tion to furnish necessary information in regard to the vessels under his escort. The so-called right of convoy is one which has been claimed for many years. Sweden claimed in the middle of the seven- teenth century that neutral vessels under escort of a neutral warship were exempt from visit and search. From time to time during the following century the right was asserted, but it was not till toward the close of the eighteenth century that it received much consideration. After 1775 the right was fre- quently recognized in practice and acknowledged in treaties. While the Armed Neutrality of 1780 did not press the right of convoy, the Armed Neutrality of 1800 was largely due to the action of a British squadron in capturing a Danish war- ship which was convoying six merchant vessels. Great Britain probably be impossible, and which it is not proposed to exact from her, the affirmation of the officer commanding the convoy can mean no more than that the ostensible papers of the vessels belonging to it do not show on their face any improper destination or object. As- suming that the officials at the ports of the neutral country are always able and willing to prevent any vessel laden with contraband from joining a convoy, the officer in command must still be unable to affirm of the vessels under his charge that no single one is engaged in carrying enemy's dispatches or military passengers of importance, that none have an ultimate intention of breaking a blockade, or, if the belligerent nation acts on the doctrine that enemy's goods in a neutral vessel can be seized, that none of the property in course of transport in fact belongs to the enemy." Int. Law (5th Ed.) 724. At the International Naval Conference at London, 1908-09, Great Britain admitted the right of convoy. 11 Right of Capture in Naval War, art. II, Scott, Hague Conferen- ces, p. 283. § 181 CONVOY. 403 refused to recognize the right of convoy, even after the prin- ciple was generally accepted by the other nations. Great Brit- ain at last admitted the right at the International Naval Con- ference in 1908-09. While the right was generally admitted, its exercise was guarded by making the commander of the convoying warship responsible. In theory he was to furnish to the commander of the belligerent warship the information which that commander would obtain by a visit and search of the vessels under his escort. It was frequently prescribed in treaties that the verbal declarations of the commander of the convoy, ''on his word of honor, that the vessels under his protection belong to the na- tion whose flag he carries, and, when bound to an enemy's port, that they have no contraband goods on board, shall be sufficient." The Declaration of London, 1909, made the regulations in regard to convoy more definite, with the view to guarding the proper rights of neutrals without interfering with the rights of belligerents. While declaring that neutral vessels under national convoy are exempt from search, it makes it obligatory upon the commander of the convoy to furnish in writing the information which the commander of a belligerent warship might gain by a visit. Provision is also made for cases where the commander of the belligerent warship thinks the com- mander of the convoy may have been deceived. The belliger- ent commander may make known his suspicions to the convoy- ing officer. "In such case it is for the commander of the con- voy alone to investigate the matter. He must record the re- sult of such investigation in a report, of which a copy is hand- ed to the officer of the warship. If, in the opinion of the com- mander of the convoy, the facts shown in the report justify the capture of one or more vessels, the protection of the con- voy must be withdrawn from such vessels." ^^ 12 Appendix, p. 583, articles 61 and 62. 404 VISIT AND SEARCH. (Ch. 23 GROUNDS OF CAPTURE. 182. The grounds for seizure of neutral private vessels are that the vessel or cargo is liable to confiscation, or that there is reasonable suspicion that the vessel is liable to confiscation. Such grounds exist: (a) In case of absence or irregularity of the ship's papers. (b) When the neutral vessel or its convoy resists search. (c) When the vessel is under enemy convoy. (d) If the vessel breaks or attempts to break a blockade. (e) If the vessel is itself contraband or is carrying contra- band. (f) If the vessel is engaged in unneutral service. It is for the prize court to pronounce on the validity of the capture and to determine the penalty. If the commander mak- ing the capture has good reason to doubt the innocence of a vessel which he overhauls, he should send her to the prize court for adjudication. The grounds that would justify cap- ture would not always be sufficient to condemn the neutral vessel or cargo. The prize court may pass upon evidence which the officer making the capture may not have, or may not feel it expedient to consider. His functions are administra- tive, and the judicial functions are properly left to the prize court. ^^ (a) The papers usually on board a neutral merchant vessel are (1) the register; (2) the crew list; (3) the log book; (4) the bill of health ; (5) the charter party ; (6) invoices ; (7) bills of lading. Not all states require the same papers, how- ever. The object of the officer visiting the vessel is to find out whether she is liable to capture. His object is in so far defeated as the papers are imperfect. The absence, destruc- tion, defacement, evident falsification, or irregularity of any of the ship's papers is ground for capture, though the prize court may not consider this a sufficient ground for condemna- tion, 13 Prize courts deny damages or costs, as against captors, in cases of seizure made upon "probable cause" ; that is to say, where there were circumstances sufficient to warrant suspicion, though not to warrant condemnation. The Thompson, 3 Wall. 155, 18 L. Ed. 55. § 182) GROUNDS OF CAPTURE. 405 (b) When the neutral vessel itself, or its convoy, resists visit and search, the rig'ht of the belligerent is thwarted, and the vessel is liable to capture and condemnation. Simple at- tempt to escape by means of flight is not regarded as resist- ance, though the vessel may be brought to by the use of force. Refusal to admit the boarding officer, or refusal of the master to accompany the boarding officer, or to open at his request locked boxes, etc., is regarded as constituting resistance. The British decisions also regard resistance by the convoying ves- sel as resistance by the convoyed vessel, which makes the con- voyed vessel liable to capture.^* (c) There has been a difference of opinion in regard to the treatment of a neutral merchant vessel under enemy convoy. It seems reasonable that this should be regarded as an attempt to avoid search by force, and may be construed as resistance. Writers in general, except Wheaton, so regard it, and consider the vessel thus escorted as liable to capture. ^^ A belligerent vessel, overhauling a neutral merchant vessel guilty of (d) breach of blockade, (e) carriage of contraband, or (f) unneutral service, should send the vessel to a prize court. 14 The Maria, 1 C. Rob. 340; Declaration of London, 1909, art. G3, Appendix, p. 584. 15 "Thie mere circumstance of sailing in company with a belligerent convoy had no such effect [defeat of the belligerent right of search]. Being an enemy, the belligerent had a right to i*esist. The masters of the vessels under his convoy could not be involved in the con- sequences of that resistance, because they were neutral, and had not actually participated in the resistance. They could no more be involved in the consequences of a resistance by the belligerent, which is his own lawful act, than is the neutral shipper of goods on boai'd a belligerent vessel for the resistance of the master of that vessel, or the owner of neutral goods found in a belligerent fortress for the consequences of its resistance." Wheaton, Int. Law, § 533. 406 VISIT AND SEARCH. (Ch. 23 TRANSFER OF BELIilGERENT PROPERTY IN ANTICI- PATION OF OR DURING ^WAR. 183. ?ar, are not liable to capture under enemy's flag," may be involved in such manner as to make great caution necessary in destroy- ing vessels of the enemy before adjudication. Much greater care should be taken before destroying a neutral vessel itself. Where a vessel is destroyed, as was said in the British case of The Leucade, "the claimants are, as against the captor, en- titled to costs and damages." '^ By treaty provisions in some instances more severe penalties are prescribed. The question of destruction of vessels before adjudication was brought into prominence in the Russo-Japanese War in 1904, and vigorous protests were made against Russian action in destroying neu- tral vessels.^ ° There is much difference of opinion among 2 8 Spinks, 217. 2 9 British Parliamentary Papers, Russia, No. 1 (190.5) ; Foreign Relations U. S., 1904, p. 734; Hershey, Int. Law and Diplomacy dur- ing Russo-Japanese War, p. 136; Lawrence, War and Neutrality in the Far East, p. 250 ; Smith & Sibley, Int. Law during Russo-Japan- ese War, pp. 186, 465; Takahashi, Int. Law during Russo-Japanese War, p. 310 ; Int. Law Situations, U. S. Naval War College, 1905, p. 62. The Russian regulations in regard to destruction were: "40. In the following and other similar extraordinary cases the commander of the imperial cruiser has the right to burn or sink a detained vessel after having previously taken therefrom the crew, and, as far as possible, all or part of the cargo thereon, as well as all documents and objects that may be essential in elucidating the matter in the prize court: "(1) When it is impossible to preserve the detained vessel on ac- count of its bad condition. "(2) T\Tien the danger is imminent that the vessel will be recaptur- ed by the enemy. "(3) When the detained vessel is of extremely little value, and its conduct into port requires too much waste of time and coal. "(4) When the conducting of the vessel into port appears difficult, owing to the remoteness of the port or a blockade thereof. "(5) When the conducting of the detained vessel might interfere 414 VISIT AXD SEARCH. (Oil. 23 writers as to the propriety of the destruction of prize before adjudication.^" This difference of opinion was also evident at the Hague Conference in 1907. The Declaration of London in 1907 provided: "Article 48. A captured neutral vessel may not be destroy- ed by the captor, but must be taken into such port as is proper in order to determine there the rights as regards the validity of the capture." (b) The same Declaration provided that : "Article 49. As an exception, a neutral vessel, captured by a belligerent ship, and which would be liable to condemnation, may be destroyed if the observance of article 48 would involve danger to the safety of the ship of war or to the success of the operations in which she is at the time engaged." To guard against arbitrary destruction of neutral vessels, the Declaration of London also provides that the one who has carried out the destruction must prove the existence of "exceptional necessity" before the question of whether the vessel would be good prize is opened. If he cannot prove "ex- ceptional necessity" he must compensate the parties interested with the success of the naval war operations of the imperial cruiser or threaten it with danger. "The officer prepares a memorandum imder his signature and that of all the officers concerning the circumstances which have led him to destroy the detained vessel, which memorandum he transmits to the authorities at the earliest possible moment. "Note. — Although article 21 of the Regulations on Maritime Prizes of 1S95 permits a detained vessel to be burned or sunk 'on the per- sonal responsibility of the commander,' nevertheless the latter by no means assumes such responsibility when the detained vessel is actual- ly subject to confiscation as a prize, and the extraordinary circum- stances in which the imperial vessel finds itself absolutely demand the destruction of the detained vessel. "41. If the detained vessel subject to destruction on the basis or the foregoing article is found to be better than the imperial vessel, owing to its condition or its seagoing qualities, the commander has the right to substitute the prize for his own vessel and burn or sink the latter." Foreign Relations U. S.. 1904. p. 7u2. To these a supplementary order was added on August 5, 1905: "Russian vessels were not to sink neutral merchantmen with con- traband on board in the future, except in case of direst necessity, but in cases of emergency to send prizes into neutral ports." 80 Kleen. 2 La Neutralite. 531. § 185 DESTRUCTION, ETC., OF PKOPERTY AT SEA. 415 without further proceeding-s, as the question of vahdity of the prize is not, in case of destruction, before the court, unless "exceptional necessity" is first proven. Even if "exceptional necessity" is proven, the entire ques- tion of validity of the capture is still to be settled in the usual manner. If the capture is declared good, no compensation is due the parties interested; if the capture is declared void, the parties interested have full right to compensation. If innocent neutral goods have been destroyed with a neu- tral vessel, the owner is entitled to compensation. (c) Laws and regulations provide for the appropriation be- fore adjudication of vessels captured as prize after they have been properly appraised. ^^ In accordance with article 40 of the Declaration of London : "The confiscation of the vessel carrying contraband is al- lowed if the contraband forms, either by value, by weight, by volume, or by freight, more than half the cargo." In accordance with article 44 : "A vessel stopped because carrying contraband, and not li- able to condemnation on account of the proportion of contra- band, may, according to circumstances, be allowed to continue her voyage if the master is ready to deliver the contraband to the belligerent ship. "The delivery of the contraband is to be entered by the captor on the log book of the vessel stopped, and the master of the vessel must furnish the captor duly certified copies of all relevant papers. "The captor is at liberty to destroy the contraband which is thus delivered to him." It might happen that the master of a merchant vessel would be unwilling to hand over the contraband on board, and that the commander of the belligerent war ship would not be in 31 Perels, Offentlicbe Seerecbt, § 55. Wlieuever any captured vessel, arms, munitions, or other material are taken for the use of the United States before it comes into the custody of the prize court, it shall be surveyed, appraised, and in- ventoried, by persons as competent and impartial as can be obtain- ed, and the survey, appraisement, and inventory shall be sent to the court in which proceedings are to be had. Rev. St. § 4G24 (U. S. Comp. St. 1901, p. 3130). 416 VISIT AND SEARCH. (Ch. 23 position to take the neutral vessel to port. If in such a case the belligerent can show the "exceptional necessity" which would justify the destruction of the vessel if it were liable to condemnation, he may demand the handing over of the goods liable to condemnation or proceed himself to their destruction. The same liabilities rest upon the belligerent captor as v^hen destroying a neutral vessel. He must first prove ''exceptional necessity," failing which he must pay compensation; and, hav- ing proved "exceptional necessity," he must then prove the lia- bility of the goods to condemnation, failing which he must pay compensation.^^ (d) Formerly belligerents, under the right of angary, com- pelled neutral merchant vessels which they had seized to ren- der service for them in transport of troops or otherwise. While this practice has been discontinued, neutral property has been seized for military use, with liability to full indemnity.^* 3 2 Appendix, p. 5S0. 33 Hall, Int. Law (5th Ed.) pp. 736-739; 3 Phillim. Int. Law, § 29; Blimtschli, § 795 bis. Mr. Hall recites a case of the enforcing of this right upon neutral property passing within neutral territory: "Some English vessels were seized by the German general in command at Rouen, and sunk in the Seine at Duclair, in order to prevent French gunboats from running up the river, and from barring the German corps operating upon its two banks from communication with each other. The German commanders appear to have endeavored in the first instance to make an agreement with the captains of the vessels to sink the latter after payment of their value, and after taking out their cargoes. The captains having refused to enter into any such agreement, their refusal was, by a strange perversion of ideas, 'con- sidered to be an infraction of neutralitj-,' and the vessels were sunk by the unnecessarily violent method of firing upon them while some, at least, of the members of the crews appear to have been on board. The English government did not dispute the right of the Germans to act in a general sense in the manner which they had adopted ; and, notwithstanding the objectionable details of their conduct, it con- fined itself to a demand that the i)ersons whose property had been destroj-ed should receive the compensation to which a dispatch of Count Bismarck had already admitted their right. Count Bismarck, on his side, in writing upon the matter, claimed that 'the measure in question, however exceptional in its nature, did not overstep the bounds of international warlike usage.' But he evidently felt that the violence of the methods adopted needed a special justification, for he went on to say: 'The report shows that a pressing danger § 185) DESTRUCTION, ETC., OF PROPERTY AT SEA. 417 The Hague Convention of 1907 provides for the use of neu- tral railway material in case of necessity, with liability to com- pensation.^* was at hand, and every other means of meeting it was wanting. The case was, therefore, one of necessity, which even in time of peace may render the employment or destruction of foreign prop- erty admissible under the reservation of indemnification.' " 3 4 "Article XIX. Railway material coming from the territory of neutral powers, whether it be the property of the said powers or of companies or private persons, and recognizable as such, shall not be requisitioned or utilized by a belligerent except where and to the ex- tent that it is absolutely necessary. It shall be sent back as soon as possible to the country of origin. "A neutral power may likewise, in case of necessity, retain and utilize to an equal extent material coming from the territory of the belligerent power. "Compensation shall be paid by one party or the other in propor- tion to the material used, and to the period of usage." Rights and Duties of Neutral Powers and Persons in Case of War on Land, Appendix, p. 548. Wils.Int.L. — 27 418 CONTRABAND. (Ch. 24 CHAPTER XXIV. CONTRABAND. 186. Contraband Defiiierl. 187. Contraband Classitiei 188. Liability to Seizure. 189. Penalty for Carriage. 190. Pre-emption. CONTRABAND DEFINED. 186. Contraband of ivar may be said to consist of those arti- cles which are of use for war, and -which, Ttrhen bonnd for a belligerent destination, are liable to capture and confiscation. It has been usual for each belHgerent to proclaim in public manner what articles will be regarded as liable to seizure, and these are regarded as contraband, "contra bandum." ^ As the idea of neutrality as at present understood was late in develop- ment, the word "contraband" was used in domestic law rather than international agreement. The term does not occur in early codes, like "II Consolato del ]\Iare," though the idea was fairly clear. Grotius does not in 1625 use the name "contra- band," though he describes the articles. There is mention of contraband in a treaty between England and Holland in that year. Other proclamations of the same period enumerate "prohibited articles of commerce." Thus there was an at- tempt of the belligerents to impose restrictions upon the action of other states. The practice led to great diversity in the lists of articles prohibited by the different states, and even by the same state at different times. The action of the Armed Neu- trality of 1780 tended to give an international sanction to a list of contraband. From this time the British and continental doctrines in regard to contraband are fairly distinct. The con- tinental doctrine has tended to limit the list broadly to muni- tions of war, while the British tendency has been toward a more inclusive classification. 1 3 Nys, Droit Int. p. 640. § 186) CONTRABAND DEFINED. 419 The term "contraband" was used in the Declaration of Paris in 1856, but was not defined. All states were agreed that, in order to render an article liable to capture as contraband, two conditions were essential: (1) That the article might be of use for war; and (2) that it should have an enemy destina- tion. Thus it was necessary that there should be something- in the nature of the article and in its destination which would make it of use for warlike purposes. All states were not agreed as to just what articles were of use for war, or as to just what might constitute a hostile destination, and varying opinions upon these points were given in the courts of dif- ferent states. This uncertainty gave rise to much friction be- tween belligerents and neutrals, and was often the cause of grave inconvenience, great disturbance in insurance rates, and loss of trade. It is to the interest of the neutral to have as few articles as possible proclaimed contraband, while the belligerent may de- sire to extend the list. It had been proposed that the states of the world abandon the principle of contraband altogether.^ The Conference at The Hague in 1907 was not able to reach 2 "With regard to contraband, many most difficult questions arose during the late war. These cases were sufficient to show that the rules with regard to contraband that were developed at the end of the eighteenth and the beginning of the nineteenth centuries are no longer satisfactory for the changed conditions under which both com- merce and war are now carried on. His ^Majesty's government recog- nize to the full the desirability of freeing neutral commerce to the utmost extent possible from interference by belligerent powers, and they are ready and willing for their part, in lieu of endeavoring to frame new and more satisfactory rules for the prevention of contra- band trade in the future, to abandon the principle of contraband of war altogether, thus allowing the oversea trade in neutral vessels between belligerents on the one hand and neutrals on the other to continue during war without any restriction, subject only to its ex- clusion by blockade from an enemy's port. They are convinced that not only the interest of Great Britain, but the common interest of all nations, will be found, on an unbiased examination of the subject, to be served by the adoption of the course suggested." Sir Edward Grey to Sir Edward Fry, First Plenipotentiary, British Parliamentary Papers, Second Peace Conference at The Hague, 1907, Miscellaneous No. 1 (190S), p. 25. 420 CONTRABAND. (Ch. 24 that conclusion, and the settlement of the question was post- poned to a subsequent international conference. The matter was again taken up for discussion at the In- ternational Naval Conference at London in 1908-09 and an agreement was reached by the ten naval powers participating in the conference. By this agreement, as set forth in the Dec- laration of London, division is made into (1) articles solely of use for war, as armor plates, which may without notice be treated as absolute contraband and become liable to capture if having for their destination a place within the jurisdiction of the enemy; (2) articles of use in war or peace as fuel, whicli may, without notice, as conditional contraband, be captured, if bound for the enemy's authorities or armed forces; and (3) articles not susceptible of use in v/ar, as agricultural machin- ery, which are always free from capture. Such an agreement, while not depriving the belligerents of the proper belligerent right to prevent the supply of war material to an enemy, re- moves from commerce the uncertainties which arose in conse- quence of the former possibility that either belligerent might arbitrarily declare a list of contraband or add to a list already declared. CLASSIFICATION OF CONTRABAND. 187. Neutral goods destined for a belligerent may be classi- fied as: (a) Absolute contraband, goods particularly of use for xrar. (b) Conditional contraband, goods of use in xnrar or in peace. (c) Free goods, goods of no use in war. The prohibition by one belligerent of the transportation of certain classes of goods to the other belligerent was an early practice. Examples of prohibitions are found as early as the time of Josephus. A proclamation of Edward II in 1315 enu- merates prohibited articles in detail. An English proclamation of December 30, 1625, the year of the issue of the great work of Grotius, "De Jure Belli ad Pacis," names as articles in which commerce with the enemy is prohibited "any manner of graine, or victualls, or any manner of provisions to serve to build, fur- nish, or arme any shipps of warr, or any kind of munition for warr, or materials for the same, being not of the nature of § 187) CLASSIFICATION OF CONTRABAND. 421 mere merchandize." The lists vary greatly in different periods and under different circumstances. The Anglo-American and Japanese practice has in general accorded with the classification of Grotius. He enumerates : "1. Those things which have their sole use in war, such as arms. "2. Those things which have no use in war, as articles of luxury. "3. Those things which have use both in war and out of war, as money, provisions, ships, and those things pertaining to ships." * This may be illustrated by the Japanese order of February 10, 1904: "The following articles are contraband of war in the Russo- Japanese War: "1. The following articles are contraband of war when they pass through, or are destined to, the enemy's territory, or to the enemy's army or navy : "Arms, ammunition, explosives, and materials (including also lead, saltpeter, sulphur, etc.), and machines for manufac- turing them, cement, uniforms and equipments for army and navy, armour plates, materials for building ships and their equipments, and all other articles to be used solely for hostile purposes. "2. The following articles are contraband of war in case they are destined to the enemy's army or navy, or in case they are destined to the enemy's territory, and from the landing place it can be inferred that they are intended for military use: "Provisions and drinks, clothing and materials for clothing, horses and harness, fodder, wheeled vehicles, coal and other kinds of fuel, timber, currency, gold and silver bullion, and materials for telegraph, telephone, and railroad lines. (The words 'clothing and materials for clothing' and 'other kinds of fuel' were added by Order No. 1 of the Navy Department, of the 38th year of Meiji.) "3. Of the articles mentioned in the above two clauses, if it is clear from their quality and quantity that they are intend- 3 De Jure Belli ac Pads, III, 1, 5. 422 CONTRABAND. (Ch. 24 ed for the vessel's own use, such articles shall not be consid- ered contraband of war." * The European continental practice has been to regard goods as contraband or noncontraband according to their nature. The rules of February 14, 1901, issued by Russia contain a full list of such articles: "6. The following articles are deemed to be contraband of war: "(1) Small arms of every kind, and guns, mounted or in sec- tions, as well as armor plates ; "(2) Ammunition for firearms, such as projectiles, shell fuses, bullets, priming, cartridges, cartridge cases, powder, saltpeter, sulphur ; "(3) Explosives and materials for causing explosions, such as torpedoes, dynamite, pyroxyline, various explosive substan- ces, wire conductors, and everything used to explode mines and torpedoes; "(4) Artillery, engineering, and camp equipment, such as gun carriages, ammunition wagons, boxes or packages of cart- ridges, field kitchens and forges, instrument wagons, pontoons, bridge trestles, barbed wire, harness, etc. ; "(5) Articles of military equipment and clothing, such as bandoliers, cartridge boxes, knapsacks, straps, cuirasses, in- trenching tools, drums, pots and pans, saddles, harness, com- pleted parts of military uniforms, tents, etc. ; "(6) Vessels bound for an enemy's port, even if under a neutral commercial flag, if it is apparent from their construc- tion, interior fittings, and other indications that they have been built for warlike purposes, and are proceeding to an enemy's port in order to be sold or handed over to the enemy ; "(7) Boilers and every kind of naval machinery, mounted or unmounted ; "(8) Every kind of fuel, such as coal, naphtha, alcohol, and other similar materials ; * Takahashi, Int. Law Russo-Japanese War, p. 491. For American and Spanish lists of contraband in 1S98, see Foreign Relations U. S., 1898, pp. 775, 782. The Spanish list accords with European practice, while the American list is divided into "abso- lutely contraband" and "conditionally contraband." § 187) CLASSIFICATION OF CONTRABAND. 423 "(9) Articles and materials for the installation of tele- graphs, telephones, or for the construction of railroads; "(10) Generally, everything intended for warfare by sea or land, as well as rice, provisions, and horses, beasts of burden, and other animals, which may be used for a warlike purpose, if they are transported on the account of, or are destined for, the enemy. "7. The following acts, forbidden to neutrals, are assimilat- ed to contraband of war : The transport of the enemy's troops, of his dispatches and correspondence, the supply of transports and w'ar ships to the enemy. Neutral vessels captured in the act of carrying contraband of this nature may, according to circumstances, be seized and even confiscated." Under this Russian classification many articles ordinarily regarded as conditional contraband in Anglo-American prac- tice were included in the list of absolute contraband. This ac- tion called forth official statements in opposition to such inter- ference with neutral commerce.^ 5 In 1901 there was an exchange of views on the subject of the declaration of Russia between the governments of Great Britain and the United States. Mr. Choate to Lord Lansdowne: "American Embassy, London, June 24, 1904. "My Lord: Referring to our recent interviews, In which you ex- pressed a desire to know the views of my government as to the order issued by the Russian government on the 28th of February last, 'mak- ing every kind of fuel, such as coal, naphtha, alcohol, and other similar materials, unconditionally contraband,' I am now able to state them as follows: "These articles enter into great consumption in the arts of peace, to which they are vitally necessary. They are usually treated not as 'absolutely contraband of war,' like articles that are intended pri- marily for military purposes in time of war, such as ordnance, arms, ammunition, etc., but rather as 'conditionally contraband'; that is to say, articles that may be used for or converted to the purposes of war or peace according to circumstances. They may rather be classed with provisions and foodstuffs of ordinarily innocent use, but which may become absolutely contraband of war when actually and espe- cially destined for the military and naval forces of the enemy. * * * The recognition in principle of the treatment of coal and other fuel and raw cotton as absolutely contraband of war might ultimately lead to a total inhibition of the sale by neutrals to the people of belligerent 424 CONTRABAND. (Ch. 24 Instead of the term "conditional contraband," other terms are used, such as "accidental contraband," "occasional contra- band," etc. The idea is the same, viz., that the conditions, rath- er than the nature of the thing itself, determine its liability to capture. states of all articles which could be finally converted to military uses. Such an extension of the principle, by treating coal and all other fuel and raw cotton as absolutely contraband of war simply because they are shipped by a neutral to a nonblockaded port of a belligerent, would not appear to be in accord with the reasonable and lawful rights of a neutral commerce. "I shall be glad to receive and transmit to my government the views of His Majesty's government on the same question as soon as your lordship shall have formulated them. "I have, etc., Joseph H. Choate." Lord Lansdowne replied: "Foreign Office, July 29, 1904. "Your Excellency: I have the honor to acknowledge the receipt of your note of the 24th ultimo, containing the views of the United States government with regard to the Russian regulations of the 2Sth February last, in which every kind of fuel, such as coal, naphtha, alcohol, and other similar materials is declared to be absolutely and unconditionally contraband of war. "I have the honor to inform your excellency, in reply to your re- quest to be furnished with the views of His Majesty's government on this subject, that the views of the United States government, as ex- pressed in your excellency's note, are generally in accord with those which have been held and acted upon from time to time by His Majesty's government. With reference, however, to the statement made in paragraph 7 as to the attitude of Great Britain in 1870 in re- gard to coal, I would observe that Her late Majesty's government re- fused in that year to permit vessels to sail with coal to the French fleet, not merely because they held that the character of the coal de- pended upon its destination, but because they held that steamers en- gaged to take out cargoes of coal to the French fleet in the North Sea would be in reality acting as storeships to that fleet. "It is, however, right that I should add that in the altered condi- tions of modern maritime warfare and the ever increasing importance of the part played therein by coal. His Majesty's government propose to submit the whole question to careful and exhaustive examination at an early date, with the question of determining whether and in what respects the British rules, as hitherto acted upon, are in need of revision. "In these circumstances His Majesty's government do not propose to make any formal protest at the present stage against the Russian § 187) CLASSIFICATION OF CONTRABAND, 425 From the discussions at the Hague Conference of 1907, and from the opinions of recent writers upon contraband, it was evident that the whole subject of classification of contraband was in a very unsatisfactory state. The International Naval Conference at London, 190S- 09, representing both the Anglo-American and continental declaration in so far as the question of coal is concerned. They have, however, ah'eady entered a protest against the treatment of foodstuffs as absolutely contraband, and they have pointed out that they ob- serve with great concern that rice and provisions will be treated as unconditionally contraband, a step which they regard as inconsistent with the law and practice of nations. "In that protest it was stated that His Majesty's government does not contest that in particular circumstances provisions may acquire a contraband character, as, for instance, if they should be consigned direct to the army or fleet of a belligerent, or to a port where such fleet may be lying, or if facts should exist raising the presumption that they are about to be employed in victualing the fleet or forces of the enemy. In such cases it is not denied that the other belligerent would be entitled to seize the provisions as contraband of war, on the ground that they would afford material assistance toward the carrying on of warlike operations. "They could not, however, admit that if such provisions were con- signed to the port of a belligerent (even though it should be a port of naval equipment) they must, on that ground alone, be of necessity regarded as contraband of war. "In the view of His Majesty's government the test appeared to be whether there are circumstances relating to any particular cargo to show that it is destined for military or naval use. "His Majesty's government further pointed out that the decision of the prize court of the captor in such matters, in order to be binding on neutral states, must be in accordance with recognized rules and prin- ciples of international law and procedure. "They therefore felt themselves bound to reserve their rights by protesting at once against the doctrine that it is for the belligerent to decide that certain articles or classes of articles are, as a matter of course and without reference to the considerations above referred to, to be dealt with as contraband of war regardless of the well-es- tablished rights of neutrals ; nor Avould they consider themselves bound to recognize as valid the decision of any prize court which violated these rights, or. was otherwise not in conformity with the recognized principles of international law. "I have, etc., Landsdowne." Foreign Relations U. S., 1904, p. 334. A communication had been sent by Secretary Hay on June 10, 1004, to the ambassadors of the United States in Europe, containing a full 426 CONTHABAXD. (Ch. 24 practice, gave much consideration to the siihject of classifica- tion of contraband.® The result of the deliberations as em- bodied in the Declaration of London, 1909, in effect divides goods into three classes : (1) Absolute contraband ; (2) con- ditional contraband ; and (3) free goods. (a) The formulated list of absolute contraband, when des- tined for a place within enemy jurisdiction, is that which was drawn up at the Second Hague Conference in 1907, and is stated as follows : "Article 22. The following articles and materials are, with- out notice, regarded as contraband, under the name of abso- lute contraband : "(1) Arms of all kinds, including arms for sporting pur- poses, and their unassembled distinctive parts. "(2) Projectiles, charges, and cartridges of all kinds, and their unassembled distinctive parts. "(3) Powder and explosives specially adapted for use m war. statement of the attitude of the United States in regard to neutral commerce in articles conditionally contraband of war. Foreign Rela- tions U. S., 1904, p. 3. Russia later, in response to requests, interpreted a part of article € as follows: "In consequence of doubts which have arisen as to the Interpreta- tion of article 6, section 10, of the Regulations Respecting Contra- band of War, it has been resolved by the Imperial Government that the articles capable of serving for a warlike object, and not specified in sections 1 to 9 of article 6, as well as rice and foodstuffs, shall be considered as contraband of war, if they are destined for^ "The government of the belligerent power; "For its administration; "For its army ; "For its navy ; "For its fortresses; "For its naval ports ; or "For its purveyors. "In cases where they are addressed to private individuals these articles shall not be considered as contraband of war. "In all cases horses and beasts of burden shall be considered as con- traband of war." British Parliamentary Papers, Russia, No. 1 (100.5), p. 27. 8 British Parliamentary Papers, Miscellaneous No. 5 (19UU), Pro- ceedings of the International Naval Conference. § 187) CLASSIFICATION OF CONTRABAND. 427 "(4) Gun carriages, caissons, limbers, military wagons, field forges, and their unassembled distinctive parts. "(5) Clothing and equipment of a distinctively military ■character. "(6) All kinds of harness of a distinctively military char- acter. "(7) Saddle, draught, and pack animals suitable for use in war. "(8) Articles of camp equipment and their unassembled dis- tinctive part. "(9) Armor plates. "(10) Warships and boats and their unassembled parts spe- cially distinctive as only suitable for use in a vessel of war. "(11) Implements and apparatus made exclusively for the manufacture of munitions of war, for the manufacture or re- pair of arms or of military material, for use on land or sea." '' It is also provided, in order to meet new conditions, that ad- ditions to the above list may be made in a regular manner : "Article 23. Articles and materials which are exclusively used for war may be added to the list of absolute contraband by means of a notified declaration. "The notification is addressed to the governments of other powers, or to their representatives accredited to the power which makes the declaration. A notification made after the ■opening of hostilities is addressed only to neutral powers." (b) A list of conditional contraband, liable to treatment as 'Contraband when destined for the enemy forces or authorities, was agreed upon as follows: "Article 24. The following articles and materials, sus- ceptible of use in war as well as for purposes of peace, are, without notice, regarded as contraband of war, under the name of 'conditional contraband': "(1) Foodstuffs. "(2) Forage and grain suitable for feeding animals. 7 There has been much difference of opinion as to the propriety of including "saddle, draught, and pack animals" in the list of abso- lute contraband. This was shown both at the Hague Conference in 1907 and at the Loudon Conference in 1908-09. The practice of dif- ferent states in regard to inclusion had also varied. 428 CONTRABAND. (Cll. 24 "(3) Clothing-, and fabrics for clothing, and boots and shoes, suitable for military use. "(4) Gold and silver in coin or bullion ; paper money. "(5) Vehicles of all kinds available for use in war, and their unassembled parts. "(6) Vessels, craft, and boats of all kinds, floating docks, parts of docks, as also their unassembled parts. "(7) Fixed railway material and rolling stock, and material for telegraphs, radio-telegraphs, and telephones. "(8) Balloons and flying machines and their unassembled distinctive parts, as also their accessories, articles and mate- rials distinctive as intended for use in connection with balloons and flying machines. "(9) Fuel; lubricants. "(10) Powder and explosives not specially adapted for use in war. "(11) Barbed wire, as also implements for placing and cut- ting the same. "(12) Horseshoes and horseshoeing materials. "(13) Harness and saddlery materials. "(14) Binocular" glasses, telescopes, chronometers, and all kinds of nautical instruments." Provision for addition to the list was also made : "Article 25. Articles and materials susceptible of use in war, as well as for purposes of peace, and other than those enumerated in articles 22 and 24, may be added to the list of conditional contraband by means of a declaration, which must be notified in the manner provided for in the second paragraph of article 23." A state might also waive its right to treat certain articles as contraband under article 26, if it makes known its inten- tion by a notified declaration in accord with the second para- graph of article 23. (c) The declaration also provides in article 27 that articles which are not susceptible of use in war may not be declared contraband. It further enumerates a specific free list : "Article 28. The following are not to be declared contra- band of war: "(1) Raw cotton, wool, silk, jute, flax, hemp, and other raw materials of the textile industries, and yarns of the same. § 187) CLASSIFICATION OF COKTRAKAND. 429 "(2) Nuts and oil seeds ; copra. "(3) Rubber, resins, gums, and lacs ; hops. "(4) Raw hides and horns, bones, and ivory. "(5) Natural and artificial manures, including nitrates and phosphates 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 materials prepared for its manufacture. "(10) Soap, paint and colours, including articles exclusively used in their manufacture, and varnishes. "(11) Bleaching powder, soda ash, caustic soda, salt cake, ammonia, sulphate of ammonia, and sulphate of copper. "(12) Agricultural, mining, textile, and printing machinery. "(13) Precious stones, 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; of- fice furniture and accessories. "Article 29. Neither are the following to be regarded as contraband of war : "(1) Articles and materials serving exclusively for the care of the sick and wounded. They can, nevertheless, in case of urgent military necessity and subject to the payment of com- pensation, be requisitioned, if their destination is that speci- fied in article 30. "(2) Articles and materials intended for the use of the ves- sel in which they are found, as well as those intended for the use of her crew and passengers during the voyage." * While previously states have enumerated in treaties what articles they would regard as contraband in case of war be- tween them, the Declaration of London of February 26, 1909, is the first agreement among any considerable number of states upon a full classification. It may be assumed that ten naval 8 For full report of proceedings of London Naval (Conference, see British Parliamentary Papers, Miscellaneous, Nos. 4 and 5 (1901)). 430 CONTRABAND. (Ch. 24 powers would in reaching such an agreement give due weight to their interests both as possible belligerents and as possible neutrals. The placing in a specific free list of certain articles, such as raw cotton, of which a small amount might be used in the manufacture of explosives or for other uses in war, re- moves the source of great possible disturbances to legitimate trade. LIABILITY OF CONTRABAND TO SEIZURE. 188. Outside of neutral waters — (a) Absolute contraband is liable to seizure, if destined to belligerent territory or to belligerent use. (b) Conditional contraband is liable to seizure, if destined for the military or naval forces of the enemy, or to the authorities of an enemy state, and on board a vessel bound for such destination. Any act of war, like the seizure of contraband, would be prohibited in neutral waters. Outside of neutral waters, con- traband having an enemy destination is liable to seizure under the neutral flag, which would in ordinary conditions be an evi- dence of neutral jurisdiction. It was considered that the sale and carriage of war material between neutrals, even in the time of war, was an entirely innocent transaction. That desti- nation was an essential fact in making goods of the nature of contraband liable to seizure was early recognized in practice, treaties, proclamations, etc. A provision in regard to hostile destination was inserted in a treaty between Great Britain and France in 1303, and earlier records show that the destination was as important as the nature of the goods. As was said in a decision of the United States Supreme Court in 1816 in re- gard to a cargo of provisions : "By the modern law of na- tions provisions are not, in general, deemed contraband ; but they may become so, although the property of a neutral, on account of the particular situation of the war or on account of their destination. If destined for the ordinary use of life in the enemy's country, they are not, in general, contraband ; but it is otherwise if destined for military use. Hence, if des- tined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband." " 8 The Commercen, 1 Wheat. 382, 4 L. E 'When the cargo, reckoned either by value, \ireight, volume, or freight, forms more than half, the ves- sel may be condemned. (2) W^hen a vessel carrying contraband is released, she may be condemned to pay costs of prize court pro- ceedings incurred by captor. "British Parliamentary Papers, Miscellaneous, No. 4 (lOOU), p. 48. i» Id., Africa, No. 1 (1900). § 189 PENALTY FOR CARRYING CONTRABAND. 433 (3) Other goods on board belonging to tlie owner of the contraband may be condemned. (4) When a vessel carrying contraband is nnaxsrare of the existence of hostilities, or has not since the out- break of hostilities had opportunity to discharge contraband, the contraband is liable to condemna- tion only on payment of compensation. (5) When the proportion of contraband on a vessel is less than one-half her cargo, she may, xirhen cir- cumstances permit, be allo^ved to continue her voy- age, if the master is w^illing to hand over the con- traband to the belligerent virar ship. The carriage of contraband is not forbidden by international law. Belligerents are, however, permitted by international law to inflict penalties upon neutrals who engage in such com- merce as has been prohibited. The liability to capture begins when a vessel carrying con- traband leaves neutral waters, and continues till the contra- band is delivered. Liability is sometimes held to continue to the completion of the return voyage, in case of fraud on the outward voyage.^* Formerly contraband trade was penalized by forfeiture of the vessel and cargo. ^^ The carrier is now generally allowed to prove his innocence. (a) Anglo-American doctrine was to the effect that : (1) The penalty which in general deters neutral carriers is the loss of freight and the liability to detention.^'' (2) When the vessel and contraband cargo belong to the same person, the ship and cargo are joined in the transaction, the owner cannot plead ignorance, and both ship and cargo are liable to condemnation. (3) "Where the owner of the cargo has any interest in the ship, the whole of his property will be involved in the same sentence of condemnation ; for, where a man is concerned in an illegal transaction, the whole of his property embarked in that transaction is liable to confiscation." " 1* The Lucy, 37 Ct. CI. 97. 15 The Med Guds Hielpe, Pratt, Contraband of War, p. 101a. 16 The Ringende Jacob, 1 C. Rob. 89. 17 The Jange Tobias, 1 C. Rob. 329. WiLS.lNT.L.— 28 434 CONTRABAND. (Ch. 24 (4) The principle which applies to the situation when the owner of the contraband cargo is also owner of the vessel ap- plies when the owner of the contraband cargo is also owner of noncontraband cargo. The noncontraband cargo is liable to be condemned. It is difficult to reconcile the principle that, "to escape from the contagion of contraband, the innocent ar- ticles must be property of a different owner," ^^ with the Dec- laration of Paris, of 1856. (5) The penalty for fraudulent or other irregular acts in connection with the carriage of contraband may extend to the condemnation of the vessel,^* or to lesser punishment of fine.-'* (b) The Declaration of London, of 1909, while making cer- tain new rules, and reconciling certain differences among mari- time states, also revived certain earlier practices, which were found to be consistent with the best interests of belligerents and neutrals. (1) As a general principle the neutral carrier of contraband is liable to the delay and inconvenience in bringing the con- traband cargo before a prize court, and Hable to the loss of freight upon the contraband. Experience has shown that, while this may be a sufficient penalty in cases where the con- traband carried is of relatively small amount and shipped in the regular course of trade, there may be cases where the car- rier of the contraband should be more severely penalized, par- ticularly in cases where the carriage of contraband is not simply an incident in the undertaking, but the main object of a voyage. Opinions differed as to the method of determining what should constitute sufficient evidence to render the car- rier liable to a severe penalty. The report of the London Naval Conference says : "It was decided that the contraband must bear a certain proportion to the total cargo. But the question divides itself into two parts : (1) What shall be the proportion? The solution adopted is the mean between those proposed, which varied from a quarter to three quarters. (3) How shall this proportion be reckoned ? Must the contraband 18 The Staadt Embden, 1 C. Rob. 26. i»The Franklin, 3 C. Rob. 217. 20 The Peterhoff, 5 Wall. 28, 18 L. Ed. 5G4. § 189) PENALTY FOR CARRYING CONTRABAND. 435 form more than half the cargo in volume, weight, value, or freight? The adoption of a single fixed standard gives rise to theoretical objections, and also to practices intended to avoid condemnation of the vessel, in spite of the importance of the cargo. If the standard of volume or weight is adopted, the master will ship innocent goods occupying space, or of weight, sufficient to exceed the contraband. A similar remark may be made as regards the standard of value of freight. The consequence is that, in order to justify condemnation, it is enough that the contraband should form more than half the cargo by any one of the above standards. This may seem harsh ; but, on the one hand, any other system would make fraudulent calculations easy, and, on the other, the condemna- tion of the vessel may be said to be justified when the car- riage of contraband formed an important part of her venture — a statement which applies to all the cases specified." "^ (2) It was recognized that it might be unjust to condemn a vessel carrying an amount of contraband more than one- half its cargo, and to allow a vessel carrying an amount just below one-half its cargo to go free. "A kind of fine was pro- posed which should bear a relation to the value of the con- traband articles. Objections of various sorts were brought forward against this proposal, although the principle of the infliction of some kind of pecuniary loss for the carriage of contraband seemed justified. The same object was attained in another way by providing that the costs and expenses incurred by the captor in respect of the proceedings in the national prize court and of the custody of the vessel and of her cargo during the proceedings are to be paid by the vessel. The ex- penses of the custody of the vessel include in this case the keep of the captured vessel's crew. It should be added that the loss to a vessel by being taken to a prize port and kept there is the most serious deterrent as regards the carriage of con- traband." " (3) The generally approved rule: "Article 42. Goods which belong to the owner of the contraband and which are 21 British Parliamentary Papers, Miscellaneous, No. 4 (1909), p. 51. 22 Id. 436 CONTRABAND. (Ch. 24 on board the same vessel are liable to condemnation" — was reaffirmed. (4) Such penalties should not extend to vessels which are not in intent engaged in carrying" contraband, as to vessels which are at sea unaware of the opening of hostilities, or to vessels which have had no opportunity to discharge contraband which they may have on board. At the same time it would not be reasonable to expect the captor to permit such a cargo to go on to his enemy. The provision is therefore made that in such cases the contraband may be condemned subject to pay- ment of compensation (article 43). The innocent shipper and the innocent carrier are thus secured in their rights, while the belligerent rights of the captor are not denied. (5) Under certain circumstances it might be of advantage to both the neutral carrier of contraband and the belligerent war ship if contraband cargo might be turned over to the bel- ligerent war ship without the necessity of bringing it before a prize court. This might clearly be the case if the contraband on board a large neutral vessel were small in amount. To meet cases where the surrender of the contraband would be advantageous the following article was adopted : "Article 44. A vessel, stopped because carrying contra- band, and not liable to condemnation on account of the propor- tion of contraband, may, according to circumstances, be al- lowed to continue her voyage if the master is ready to deliver the contraband to the belligerent ship. "The delivery of the contraband is to be entered by the captor on the log book of the vessel stopped, and the master of the vessel must give the captor duly certified copies of all rekvant papers. "The captor is at liberty to destroy the contraband which is thus delivered to him." This is not a new principle. It is contained in numerous treaties. A treaty between the United States and Sweden in 1783 (article 13) provided for the immediate release of a ves- sel when "the master agrees, consents, and ofifers" to deliver the contraband to the belligerent commander. Provisions somewhat similar occur in the treaty with Prussia, 1799 (ar- § 190) PRE-EMPTION. 437 tide XIII) ; Brazil, 1828 (article 18) ; Columbia, 1846 (article 19) ; Bolivia, 1858 (article 19) ; Haiti, 1861 (article 23) ; and in other treaties. Some of these treaties provide that, if the cargo cannot be received on board the belligerent vessel, the neutral vessel must be sent to a prize court. As in any case the goods, v^hether sent in or destroyed, may be made the sub- ject of prize court proceedings, it would seem in fact to make little difference what disposition the belligerent might make of them after they were handed over to him. The belligerent may therefore take the articles to port, use the articles, or, if their preservation unduly hampers his movements, he may destroy them. The responsibilty of the neutral master ceases from the time when he has delivered the contraband to the belligerent commander. If the neutral master denies the con- traband nature of goods of which the surrender is requested by the belligerent, the neutral master may hand them over, and if the court finds the master's contention correct the master may obtain compensation, PRE-EMPTION. 190. Under the doctrine of pre-emption, goods of the nature of conditional contraband have sometimes been inter- cepted by a belligerent ^rhen bound for an enemy des- tination and paid for xpith a fair profit. "In strictness, every article which is either necessarily con- traband, or which has become so from the special circumstan- ces of the war, is liable to confiscation ; but it is usual for those nations who vary their list of contraband to subject the latter class to pre-emption only, which by the English prac- tice means purchase of the merchandise at its mercantile val- ue, together with a reasonable profit, usually calculated at ten per cent, on the amount. This mitigation of extreme belliger- ent privilege is also introduced in the case of products native to the exporting country, even when they are affected by an inseparable taint of contraband." -^ States not favorable to the doctrine of conditional contra- band have admitted the doctrine of pre-emption. The rules 2 3 Hall, Int. Law (5th Ed.) p. GG5, 438 CONTRABAND. (Ch. 24 of the Institute of International Law adopted in 1896 provided for pre-emption, while declaring- the abolition of conditional contraband.^* -* "§ 4. Sout et demeurent abolies les pretendues contrebaudes de- signees sous les noms soit de contrebande relative, conceniant des articles (usus ancipitis) susceptibles d'etre utilises par un belligerant daus un but militaire, mais dont I'usage est esseutielleruent pacifique, soit de contrebande accidentclle, quaud les dits articles ne serventsp<'- cialement aux buts militaires que dans une circoiistance particuliere. "§ 5. N§anmoins le belligerant a, S. son cboix et Sl charge d'une equitable indemnity, le droit de sSquestre ou de preemption quant aux objets qui, en cbemiu vers un port de sou adversaire, peuvent egale- ment servir a, I'usage de la guerre et H des usages pacifiques." XV Annua ire, 230. § 191) BLOCKADE. 439 CHAPTER XXV. BLOCKADE. 191. Blockade Defiued. 192. Places That may be Blockaded. 193. Establisliinent of a Blockade. 194. Notification. 195. Vessels in Blockaded Port. 19G. Maintenance. 197. Termination. 198. Violation. 199. Penalty for Violation. 200. Period of Inability for Violation. BLOCKADE DEFINED. 191. Slockade is a measure of ivar by 'nrliicli tlie forces of one belligerent obstruct communication ivitb a place or port of tlie enemy, and is, in general, applied to tbe prevention of communication by xirater. Blockade is a measure of war aimed at an enemy, though to a large degree afifecting neutrals. "Blockade is to close an enemy's port, bay, or coast with force." ^ The object of blockade is to cut off trade and other communication with the enemy. Blockade is not usually es- tablished with a view to the destruction or surrender of the place. The blockading forces are usually at such a distance from the place blockaded as not to imperil its physical safe- ty, and they are seeking rather to bring pressure upon the place by preventing access and egress than to injure the place or its inhabitants by shot and shell. Blockade is a war right, and exists in time of civil war as in the time of war between states. Pacific blockade, so called, as affecting third states, is not now regarded with favor. - Blockade by insurgents is not permitted, as the insurgents, 1 Japanese Regulations Governing Captures at Sea, Marcti 7, 1904, art. 21. 2 Ante, p. 235. 440 BLOCKADE. (Ch. 25 until recog-nized as belligerents, have no war rights upon the sea against foreign states, have no responsible prize courts, and no international status which will entitle them to exercise the right of blockade.^ Blockades are sometimes distinguished as commercial or as military or strategic. The commercial blockade is regarded as aimed to cut off intercourse between the coast and the world at large, while the military or strategic is aimed to cut off the military forces from communication by sea. Both are at present regarded as equally legitimate, though the abolition of commercial blockade has been advocated.* PLACES THAT MAY BE BLOCKADED. 192. Blockade is not confined to a seaport, bnt may extend to any avenue of communication ^rhoUy ivithin tlie jurisdiction of the enemy, such as a river, gulf, bay, etc., or a portion of the enemy coast. A blockade aims to cut off communication between the enemy and the outside world. It is legitimate to close any avenue of communication which is wholly within enemy juris- diction, as ports, bays, rivers, or coasts.^ There may be, however, waterways which furnish access to the enemy which are partly within neutral jurisdiction. It is generally held that straits connecting the open seas are not liable to blockade, even though both shores may be within 3 Letter of Secretary Hay to Secretary of Navy, Nov. 15, 1902 ; In re Prize Cases, 2 Black, (J35, 17 L. Ed. 459. 4 "To forbid all neutral commerce, when no immediate military end is to be served, and when the effect of the measure upon the ultimate issue of the war is so slight as usually to be almost inap- preciable, is to contradict in the plainest manner the elementary prin- ciple that neutrals have a right, as a general rule, to trade with the enemy. If this principle can be invaded, in order that a belligerent may be subjected to a mere incidental annoyance, it is for all prac- tical purposes nonexistent." Hall, Int. Law (5th Ed.) 682. 6 The blockade declared by President McKinley on April 22, 189S. extended to "the north coast of Cuba, including all ports on said coast between Cardenas and Bahia Honda, and the port of Cien- fuegos on the south coast of Cuba." Foreign Relations U. S. 1898, p. § 192) PLACES THAT MAY BE BLOCKADED. 441 enemy jurisdiction. A river flowing between a neutral and a belligerent state may not be closed by blockade, though, of course, a belligerent may invest the enemy towns along the river and exercise war rights within belligerent jurisdiction. ** When a river flows through neutral states and belligerent states, and its outlet is in a neutral state, its outlet may not be blockaded. When the outlet is, however, within belligerent jurisdiction, there is much diversity of opinion as to the right of blockade. Some claim that the neutral riparian states have the right to free navigation, even in time of war. Others claim that the belligerent has full right to blockade the mouth of any river, where both banks are enemy territory. Prac- tice has varied. The Danube was blockaded in 1854. France refrained from blockading the Ems in 1870, because it would injure Holland, a neutral. Russia closed the Danube to com- merce in 1877. Treaties have been made by which certain powers have agreed not to blockade certain rivers, as the con- vention in regard to the Rhine in 1831, and the treaty in re- gard to the Parana and Uruguay rivers in 1853. '^ It seems, from practice and from the fact of treaty agreement, tliat it is not contrary to the principles of international law to block- ade a river which, though traversing neutral territory, dis- charges within belligerent territory. Probably expediency would have a large influence. If the neutral interests along the river were large and the belligerent small, blockade would not be established hastily; while if the reverse were the case, probably the belligerent would feel justified in establishing a blockade.^ The status of canals in time of war is usually determined by treaty agreement. Blockade of the Suez and Panama canals is prohibited by treaty. 6 The Peterhoff, 5 Wall. 54, 18 L. Ed. 564. 7 "If it should happen (which God forbid) that war should break out between any of the states, republics or provinces of the River Plate or its confluents, the navigation of the Rivers Parana and Uruguay shall remain free to the merchant flag of all nations, excepting in what may relate to munitions of war, such as arms of all kinds, gun- powder, lead and cannon balls." Article VI, Treaty between United States and Argentine Republic, July 10, 1853. Other states are also parties to this treaty. 8 Fauchille, Du Blocus Maritime, p. 172. 442 BLOCKADE. (Cb. 25 The Declaration of London, 1009, enunciates the general principles : "Article I. A blockade must be limited to the ports and coasts belonging to or occupied by the enemy." "Article 18. The blockading forces must not bar access to ports or to the coasts of neutrals." ESTABLISHMENT OF A BLOCKADE. 193. Blockade may be established — (a) By the authority of the senior officer in the area of military operations as a step in the prosecution of those operations, a de facto blockade. (b) Or more frequently by formal proclamation by the gov- ernment, a public blockade. (a) It may be necessary for the senior officer in the area of hostilities to act without consulting the central government, particularly if he is at a great distance from or in a place where communication is not easy with his superiors. The senior officer is sometimes clothed with authority to establish a blockade. It is in general held that de facto blockades must, so soon as known to the central government, receive its sanc- tion. There is a difference of opinion in regard to blockades. The continental writers usually maintain that establishment by the central government is essential to bring the laws of blockade into operation. American, English, and Japanese opinion does not regard such action as necessary. "Blockades are divided by English and American (and Japanese) publicists, into two kinds: (1) A simple, or de facto, blockade ; and (2) a public, or governmental, blockade. This is by no means a mere nominal distinction, but one that leads to practical consequences of much importance. In cases of capture, the rules of evidence which are applicable to one kind of blockade are entirely inapplicable to the other; and what a neutral vessel might lawfully do in case of a simple blockade would be sufficient cause for condemnation in case of a governmental blockade. A simple, or de facto, blockade is constituted merely by the fact of an investment, and without any necessity of a public notification. As it arises solely from § 193) ESTABLISHMENT OF A BLOCKADE. 443 facts, it ceases when they terminate. Its existence must, there- fore, in all cases, be established by clear and decisive evi- dence. The burthen of proof is thrown upon the captors, and they are bound to show that there was an actual blockade at the time of the capture. If the blockading ships were absent from their stations at the time the alleged breach occurred, the captors must prove that it was accidental, and not such an absence as would dissolve the blockade. (b) "A public, or governmental, blockade is one where the investment is not only actually established, but where also a public notification of the fact is made to neutral powers by the government, or officers of state, declaring the blockade. Such notice to a neutral state is presumed to extend to all its sub- jects; and a blockade established by public edict is presumed to continue till a public notification of its expiration. Hence the burthen of proof is changed, and the captured party is now bound to repel the legal presumptions against him by un- equivocal evidence. It would, probably, not be sufficient for the neutral claimant to prove that the blockading squadron was absent, and there was no actual investment at the time the alleged breach took place. He must also prove that it was not an accidental and temporary absence, occasioned by storms, but that it arose from causes which, by their necessary and legal operation, raised the blockade." ^ 9 2 Halleek, Int. Law (4tli Ed.) p. 218. In the case of The Olinde Rodrigues, 174 U. S. 510, 19 Sup. Ct. 851, 43 L. Ed. 1065, the United States Supreme Court said: "This country has always recognized the essential difference be- tween a military and a commercial blockade. The one deals with the exclusion of trade, and the other involves the considei-ation of armed conflict with the belligerent. The necessity of a greater blockading force in the latter case than in the former is obvious. The difference is in kind, and in degree. "Our government was originally of opinion that commercial block- ades in respect of neutral powers ought to be done away with; but that view was not accepted, and during the period of the Civil War the largest commercial blockade ever known was established." 444 BLOCKADE. (Ch. 25 DECLARATION AND NOTIFICATION OF BLOCKADE. 194. In order to incur liability for its breach, a neutral must have knowrledge of the existence of a blockade. This kno^vledge may be communicated: (a) By public declaration and notification, announcing the conditions of the establishment of the blockade. (b) By notifying vessels ivhen they approach the place blockaded. It is universally held that, to be binding, a blockade must be known. There is, however, difference of opinion as to what constitutes knowledge which will render a neutral vessel liable to penalty. (a) The Declaration of London, 1909, makes provision as to what points must be specified in a declaration of blockade : "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 coast blockaded. "(3) The delay to be allowed to neutral vessels for de- parture." And also that the declaration of blockade must be officially notified : "Article 11. A declaration of blockade is notified — "(1) To neutral powers, by the blockading power, by means of a communication addressed to the governments themselves, or to their representatives accredited to it. "(2) To the local authorities, by the officer commanding the blockading force. These authorities will, on their part inform as soon as possible the foreign consuls who exercise their functions in the port or on the coast blockaded." The provisions of this article 11 make necessary two notifi- cations. Notification to the neutral states has been customary. Notification to the local authorities is necessary, in order that neutrals at the time within the blockaded area may have knowledge of the blockade and become liable in case of vio- lation. The responsibility for making known to the neutrals § 194) DECLARATION AND NOTIFICATION OF BLOCKADE. 445 the existence of the blockade is placed upon the local au- thorities of the blockaded belligerent. A neutral vessel com- ing out of a blockaded port cannot, in general, plead ignorance of the blockade if the local authorities have been notified be- fore she sailed. The blockading commander cannot hold a neutral vessel liable for information which he has not given ; e. g., if the commander has not specified how many days will be allowed for neutral vessels to leave port, it is assumed that he did not intend to place a limit upon such departure, and the vessels are allowed to pass free. If, however, the neglect to communicate the conditions of the blockade rests upon the local authorities, ignorance on the part of neutral vessels leaving the port will not affect the liability of vessels as re- gards the blockading force. The American, British, and Japanese practice had assumed that a neutral vessel, leaving port after its government had been officially notified, had knowledge of the blockade and was liable to penalty. The United States position was as follows: "Neutral vessels are entitled to notification of a blockade be- fore they can be made prize for its attempted violation. The character of this notification is not material. It may be actual, as by a vessel of the blockading force, or constructive, as by a proclamation of the government maintaining the blockade, or by common notoriety. If a neutral vessel can be shown to have had notice of the blockade in any way, she is good prize, and should be sent in for adjudication; but, should formal notice not have been given, the rule of constructive knowl- edge arising from notoriety should be construed in a manner liberal to the neutral." ^° The Declaration of London, 1909, announces: "Article 15. Failing proof to the contrary, knowledge of the blockade is presumed if the vessel left a neutral port sub- sequently to the notification of the blockade made in sufficient time to the power to which such port belongs." (b) In case of de facto blockades, and in cases where there is reasonable doubt as to the knowledge of the existence of the blockade on the part of the neutral vessel, the vessel is 10 General Order 492, Navy Department, June 20, 1898, No. 3, For- eign Relations U. S. 1S9S, p. 780. 446 BLOCKADE. (Ch. 25 entitled to notification by a vessel before the blockaded port.^^ Such notification should be entered on the ship's log, with the officer's official signature. The continental practice was to give public notification of the blockade to neutral states as an act of international cour- tesy, in order that undue hardship to neutral commerce may so far as possible be prevented, and also to notify a neutral vessel as it approaches the blockaded place. VESSELS IN THE BLOCKADED PORT. 195. Neutral vessels in a blockaded port iwhen a blockade is establisked are, by general usage, allovped to discharge and load cargo and to depart vrithin a specified time. Vessels within a neutral port at the establishment of a blockade were formerly presumed to be notified.^- The Dec- laration of London, 1909 (article 9), provides that, in order that neutral vessels in port at the establishment of a blockade may be liable to condemnation for breach of blockade on leav- ing the port, there must be in the notified declaration a state- 11 Id. Nos. 4, 5; Declaration of London, 1909, art. 16. "When the commanding officer of a squadron or a man of war de- clares a blockade, he shall take the following steps: "1. He shall report the declaration of the blockade to the minister of the navy. "2. He shall report the declaration of the blockade to every Japan- ese minister residing in the countries near the blockaded area, and shall request him to inform the government of the country and all the foreign ministers and consuls residing in the country to which he is accredited of the establishment of the blockade. "3. He shall communicate the declaration of the blockade to all the foreign consuls residing in neutral districts in the neighborhood of the blockaded area, and shall take any other measures necessary to make known the fact of the blockade. "4. He shall inform as far as possible, by means of a flag of truce, the proper officers and consuls of neutral countries residing within the blockaded area, of the declaration of the blockade." Article 24, Japanese Regulations Governing Captures at Sea, Marci» 7, 1904. The Johanna Maria, Spinks, 307. 12 In re Prize Cases, 2 Black, G35, 17 L. Ed. 459. § 196) maintp:na\ce of a blockade. 447 ment of the period within which neutral vessels may depart; otherwise (article 16) the}^ are free to depart at any time. The practice of allowing neutral vessels to withdraw from a blockaded port is comparatively modern. The period al- lowed has usually been tifteen days, but this has not been uniform. The United States proclamations in the Spanish- American War in 1898 stated that "neutral vessels lying in any of said ports at the time of the establishment of such blockade will be allowed thirty days to issue therefrom." ^^ It is now understood that neutral vessels should be allowed a reasonable time to depart from a blockaded port. The period thus allowed will depend upon the circumstances in each case. MAINTENANCE OF A BLOCKADE. 196. By the Declaration of Paris, of 1856, it was set forth that "blockades, in order to be binding, must be ef- fective; that is to say, maintained by a force suficient to prohibit access to the coast of the enemy." i* This definition of an effective blockade was generally ac- cepted in order to put an end to paper blockades of the earlier part of the nineteenth century. It is manifest, with the pres- ent development of means of communication, that strict main- tenance of such a blockade would be impossible.^ ^ The dec- laration has therefore been interpreted in a liberal spirit. On the contineait the interpretation has been more strict than else- 13 Foreign Relations U. S. 1898, pp. 769, 773. 14 "Art. 4. Les blocus pour Ctre obligatoires, doivent §tre effectifs, c'est a dire maintenus par une force suffisante pour interdire I'acces du littoral ennemi." 15 "A blockade to be effective need not be perfect. It is not neces- sary that the beleaguered port should be hermetically sealed. It is not enough to make the blockade ineffective that on some particu- larly stormy night a blockade ruimer slid through the blockading squadron. Nor is it enough that through some exceptional and rare negligence of the officers of one of the blockading vessels a blockade runner was allowed to pass when perfect vigilance could have ar- rested him. But if the blockade is not in the main effective — if it can be easily eluded — if escaping its toils is due not to casus or some rare and exceptional negligence, but to a general laxity or want of effi- ciency — then such blockade is not valid." Wharton, Commentaries American Law, § 233. 448 BLOCKADE. (Ch. 25 where. A decision of the United States Supreme Court in 1899 contains the following: "To be binding-, the blockade must be known, and the blockading force nnist be present ; but is there any rule of law determining that the presence of a particular force is es- sential in order to render a blockade effective? We do not think so. but, on the contrary, that the test is whether the blockade is practically effective, and that that is a question, though a mixed one, more of fact than of law. "The fourth maxim of the Declaration of Paris (April 16, 1856) was : 'Blockades, in order to be binding, must be ef- fective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.' Manifestly this broad definition was not intended to be literally applied. The object was to correct the abuse, in the early part of the cen- ttiry. of paper blockades, where extensive coasts were put under blockade by proclamation, without the presence of any force, or an inadequate force ; and the question of what might be sufficient force was necessarily left to be determined according to the particular circumstances. * * * "As we hold that an effective blockade is a blockade so effective as to make it dangerous in fact for vessels to attempt to enter the blockaded port, it follows that the question of effectiveness is not controlled by the number of the blockading force. In other words, the position cannot be maintained that one modern cruiser, though sufficient in fact, is not suffi- cient as matter of law." ^^ This decision of the United States Supreme Court seems to be most reasonable, and is in effect in full accord with the conclusions of the International Naval Conference of 1908-09, as shown in articles 2 and 3 of the Declaration of London and in the report upon these articles.^ ^ 16 The Olinde Rodrigues, 174 U. S. 510, 19 Sup. Ct. 851, 43 L. Ed. 1065. An English opinion states that: "In the eye of the law a blockade is effective if the enemies' ships are in such numbers and position as to render the running of the blockade a matter of danger, although some vessels may succeed in getting through." Geipel v. Smith, L. R. 7 Q. B. 404. 1 ~ British Parliamentary Papers, Miscellaneous No. 4 (1909) p. 36. § 197) TERMINATION OF A BLOCKADE. 449 Questions have been raised as to the meaning of the words "sufficient force." Shore batteries commanding the approach to the blockaded port, supported by a naval force, have been considered "sufficient." ^^ The sinking of vessels laden with stone or similar obstructions in a part of the harbor mouth or in a part of the outlets has been allowed as auxiliary to blockade.^* There was considerable discussion at the Hague Conference in 1907 as to the use of submarine mines for the purpose of blockade. No definite conclusion was reached be- yond that of article II of the Convention Relative to the Lay- ing of Submarine Automatic Contact Mines : "It is forbidden to lay automatic contact mines off the coast and ports of the enemy, with the sole object of intercepting commercial ship- ping." ^° This limitation would not usually be specially bur- densome, as the use of mines for the "sole object of inter- cepting commercial shipping" would not be common, and in- tent is difficult to prove. The United States announced in 1898 the simple proposition that "a blockade, to be effective and binding, must be main- tained by a force sufficient to render ingress to or egress from the port dangerous." ^^ TERMINATION OF A BLOCKADE. 197. A blockade ceases: (a) On. the conclnsion of peace. (b) When the blockading vessels voluntarily 'arithdraw. (c) When these vessels are driven a^vay by the enemy, how- ever short the time of absence. (d) W^hen it ceases to be effective, except because of stress of Tveather. (e) When the blockaded place comes into possession of the forces of the blockading belligerent. (a) As blockade is a measure of war, it comes to an end when peace is restored An armistice or suspension of hostili- 18 The Circassian, 2 Wall. 135, 17 L. Ed. 796. 19 U. S. Dip. Corresipondence 1862, pp. 36, 316; Foreign Relations U. S. 1884, pp. 66, 96; Id. 1886, p. 95; Id. 1894, Appendix I, p. 71. 20 Scott, Ha^e Conferences, p. 253. 21 Foreign Relations U. S. 1898, p. 780. WiLS.lNT.L.— 29 450 BLOCKADE. (Cll. 25 ties does not terminate a blockade, or even suspend it, as neutrals are not bound by the armistice, and might during the suspension commit those acts which the blockade exists to prevent. (b) When the blockading force voluntarily withdraws, the blockade is said to be raised, and it is customary for the block- ading belligerent to notify neutrals of this fact, as of the es- tablishment of a blockade. Such notification was made obliga- tory by article 13 of the Declaration of London. (c) When the blockading vessels are driven away by the enemy, the blockade is effectively broken, and can only be re- newed in the same manner as it was originally established. (d) As, in general, "a. blockade, to be binding, must be ef- fective," it comes to an end when it ceases to be effective. It is generally held that the temporary absence of the whole or a part of the blockading force *on account of the stress of weather does not put an end to the blockade, as the same stress would affect the vessels attempting to pass the blockade There was a difference of opinion as to the temporary ab- sence of blockading forces in pursuit of a vessel which has run the blockade. The English and American opinion was to the effect that temporary absence for blockading purposes does not raise the blockade, though a neutral vessel, entering or leaving at such time, does not incur penalty. The United States instructions issued to blockading vessels in 1898 state that : "A blockade, to be effective and binding, must be maintained by a force sufficient to render ingress to or egress from the port dangerous. If the blockading vessels be driven away by stress of weather, but return without delay to their stations, the continuity of the blockade is not thereby broken; but if they leave their stations voluntarily, except for purposes of the blockade, such as chasing a blockade runner, or are driven away by the enemy's force, the blockade is abandoned or bro- ken. As the suspension of a blockade is a serious matter, in- volving a new notification, commanding officers will exercise especial care not to give grounds for complaints on this score." ^^ 22 Id, § 198) VIOLATION OF BLOCKADE. ^ 451 The Declaration of London (article 4) is to the effect that the blockade would be regarded as raised, and must be again declared and notified, if the forces are withdrawn for any rea- son other than because of stress of weather. When, after the time specified in the proclamation, vessels, other than public vessels of a neutral or vessels in distress, are allowed to pass a blockade, it is generally held to be no longer effective.-^ (e) As blockade would no longer be necessary when the belligerent obtained possession of the blockaded place, it is considered that actual occupation of the place supersedes and puts an end to the blockade.^* VIOI.ATION OF BLOCKADE. 198. The actual passing or the attempt to pass a blockade is regarded as a violation of blockade. It is generally held that the actual unallowed passing of a blockade constitutes a violation. The doctrine of the French and Italian courts, and con- tinental opinion in general, is that an actual attempt to pass the line of blockading forces before the place blockaded is necessary, in order to create a breach of blockade. The American,-^ English,-^ and Japanese^ ^ courts have held 23 The Franciska, Spinks, 287; The Johanna Maria, Spinks, 307. 24 The Circassian, 2 Wall. 135, 17 L. Ed. 796 ; The Adula, 176 U. S. 361, 20 Sup. Ct. 432, 44 L. Ed. 505. 2 3 The Aclnla, 176 U. S. 361, 20 Sup. Ct. 432, 44 L. Ed. 505; Yeaton V. Frj-, b Cranch, 335, 3 L. Ed. 117 ; The Circassian, 2 Wall. 135, 17 L. Ed. 796. 2G The Frederick Molke, 1 C. Rob. 86; The Columbia, 1 C. Rob. 130 ; The Neptunus. 2 C. Rob. 110. 27 "Any vessel which has received notification of a blockade shall be considered to have violated the blockade inward in the following cases: "1. When such vessel has passed into the blockaded area, or has attempted to do so. "2. When such vessel, lying in the neighborhood of the blockaded area, is considered to be steering into the area, no matter what port of destination is mentioned in the ship's papers. "3. When such vessel has transported or attempted to transport 452 BLOCKADE. (Ch. 25 that the attempt to pass begins at the time when the vessel leaves neutral vvraters bound for the place blockaded. The Declaration of London, 1909 (article 17), attempted to reconcile the differences of opinion by prescribing the area within which neutral vessels might be captured for violation of blockade, viz. : "Within the radius of action of the ships of war assigned to maintain an effective blockade." Under this regulation a neutral vessel leaving a neutral port would not be liable for intent to break a blockade until she had come within the zone within which the blockading forces were operating. The determination of this zone will be considered more at length under section 200, pages 454-458. In the following cases it is generally held that there is no violation of blockade by egress : (1) When a vessel passes out under official permit ; (2) when a vessel which has inno- cently entered a port passes out in ballast, or without dis- charging or loading cargo ; (3) when a vessel in port at begin- ning of blockade passes out in ballast; or (4) when a vessel sails out with innocent cargo loaded before the blockade was declared. In the following cases ingress is not considered a violation: (1) When a vessel has official permission to enter; (2) when a vessel enters under stress of weather, because of lack of provisions, or from other absolute necessity ; or (3) when a vessel sails for a blockaded port, anticipating in good faith the termination of the blockade, and intending to go to another port in case the blockade continues. The permitted passing of blockade by public neutral vessels is not a violation of blockade. This may be forbidden, but is usually regulated,^* but regulations should always be impartial. cargo to a blockaded place, by transshipping to another vessel out- side of the blockaded area in order that the latter may pass the line of blockade. "4. When such vessel is bound for the blockaded port." Article XXIX, Japanese Regulations Governing Captures at Sea, March 7, 1904. 2 8 During the Spanish-American War of 1898 the following was accepted as appropriate procedure: "1. That a prerequisite of the entrance of a neutral vessel of war into a blockaded port, unles.s in a case of exceptional urgency, should be the consent of the government establishing the blockade, obtained through the usual diplomatic channels. "2. The approach of the blockaded port in such a manner that the § 199) PENALTY FOR THE VIOLATION OF BLOCKADE. 453 PENALTY FOR THE VIOLATION OF BLOCKADE. 199. The penalty for tlie violation of blockade may be the forfeiture of vessel and cargo, or, in certain oases, tbe forfeiture of tbe vessel only. The violation of a blockade is an offense against the block- ading state, and not usually against the law of the neutral state. The penalty is therefore liability of the vessel and cargo to capture and condemnation. The vessel, as the means of vio- lation, is always liable to penalty, and when vessel and cargo belong to same owner both are liable. The cargo may be proven innocent, and may be released. This may be the case when vessel and cargo belong to different owners, and the owner of the innocent cargo has no intent to violate the blockade.^® senior ofiicer of the blockading squadron would recognize with cer- tainty upon the appearance of a neutral vessel in the blockaded belt her identity with the war vessel of whose coming he had been notitied. "3. In such exceptional cases as prevent permission being previ- ously obtained through the usual diplomatic channels, the decision to rest with the senior officer present of the blockading squadron. "4. No special formalities in connection with the departure of neu- tral vessels of war from a blockaded port are requisite, other than may be necessary to identify the vessel leaving the port as a neutral, the arrangements concerning the same to be agreed upon between the commanding officer of the blockading squadron and the commanding officer of the vessel in the blockaded port." Foreign Relations U. S. 1898, p. 1168. 29 2 Halleck, Int. Law (4th Ed.) 237; Declaration of London, art. 21, Appendix, p. 575, 454 BLOCKADE. (Ch. 25 I/IABILITY FOR VIOLATION OF BLOCKADE. 200. (a) By American, English, and Japanese opinion; (1) In case of violation of blockade by egress, the vessel ivas generally held to be in delicto until she has completed her voyage. (2) A vessel bound for a blockaded port is regarded as in delicto from the time she leaves neutral xraters until she returns to her home port. (b) By continental European opinion neutral vessels jxrere held to be in delicto only -when attempting to pass the blockade and during continuous pursuit from the line of blockade by a blockading vessel until they reached a neutral port. (c) By the Declaration of London, 1909: "Article 17. The seizure of neutral vessels for violation of blockade may be made only xirithin the radius of ac- tion of the ships of war assigned to maintain an effec- tive blockade. "Article 20. A vessel which in violation of blockade has left a blockaded port or has attempted to enter the port is liable to capture so long as she is pursued by a ship of the blockading force. If the pursuit is aban- doned, or if the blockade is raised, her capture can no longer be effected." (a) (1) The English opinion,^" extending the liability to capture for violation of blockade throughout the voyage, seems to be based on a Dutch Ordinance of 1630.^^ This was re- garded at the time as augmenting unduly belligerent rights, and was abandoned by most other states.^ - (2) During the early period the American tendency was to follow the continental rather than the English opinion.^' In 1898, however, as in the Civil War, the United States gave clear enunciation to the English doctrine : "The liability of a blockade runner to capture and condemnation begins and terminates with her voyage. If there is good evidence that she sailed with intent to evade the blockade, she is good prize 80 The Frederick Molke, 1 C. Rob. S6 ; The Welvaart van Pillaw, 2 C. Rob. 128 ; The General Hamilton, 6 C. Rob. 61. 31 Robinson, Collectania Maritima, 165. 82 1 Kleen, La Neutralite, 63S. «8 American State Papers, 2 Foreign Relations (1797) 154. § 200) LIABILITY FOR VIOLATION OF BLOCKADE. 455 from the moment she appears upon the high seas. Similarly, if she has succeeded in escaping from a blockaded port, she is liable to capture at any time before she reaches her home port. But with the termination of the voyage the offense ends." ^* The Japanese regulations of 190rt embody the same prin- ciples, while the Russian regulations conform to the conti- nental opinion. ^^ It is also held that a vessel remote from and having no connection with the blockade may capture a vessel which has violated a blockade.^' The position taken by the United States, Great Britain, and Japan has received much unfavor- able criticism.^'' There is also considerable difference of opinion as to what constitutes a voyage and when the voyage is complete. In case of tramp steamers having neutral registry, there are many instances where the return to a home port is a rare oc- currence, and where voyages are not, as in earlier days, out to and back from a certain port. Before returning to the home port, such steamers may go to ports far more remote, and in some instances may not for a long period, if ever, re- turn to the so-called home port. (b) The continental doctrine works less hardship upon the neutral, and if the Declaration of Paris, that blockade, to be binding, must be effective, is to be fairly and strictly inter- 34 Foreign Relations U. S. 1S98, p. 781. 3 5 "Art. 11. Merchant vessels of neutral nationality are subject to confiscation as prizes in the following cases: * * * (2) When the vessels are caught violating a blockade, and it is not proven that the establishment of the blockade remained unknown to the masters." For the enforcement of this law the instructions provided: "37. Vessels subject to detention are the following: * * * (2) Neutral merchant vessels. * * * (c) If they are caught violating an actual and declared blockade." 86 "Any public vessel of the belligerent, whose rights had been vio- lated, may be the agent or minister to apprehend the offender, though, by dexterity or superior speed, the culpable actor may escape arrest at the time or place of the perpetration of the wrong." The Memphis, Blatchf. Prize Cas. 260, Fed. Cas. No. 9,413. 87 1 Kieen, La Neutrality, 638 ; 8 Pradier-Foder6, Droit Int. Pub- lic, § 3143; Gessner, Le Droit des Neutres sur Mer, 214; Fauchille, Du Blocus Maritime. 354, 456 BLOCKADE. (Ch. 25 preted, it may be maintained that the liability to capture for violation of blockade should be confined to the field of effective opeiations, which would include the limit of continuous pur- suit.^^ (c) The International Naval Conference at London, in 1909, found wide differences of opinion existing among the naval powers.^'' Finally, the following rule was adopted, becoming article 17 of the Declaration of London: "The seizure of neutral vessels for violation of blockade may be made only within the radius of action of the ships of war assigned to maintain an effective blockade." As to what constitutes a "radius of action," there is an ex- planation given in the official report. This is of such im- portance in its bearing on maritime hostilities that it is given in full : "When a government decides to undertake blockading op- erations against some part of the enemy coast, it details a cer- tain number of warships to take part in the blockade, and in- trusts the command to an officer, whose duty is to use them for the purpose of making the blockade effective. The com- mander of the naval force thus formed posts the ships at his disposal according to the line of the coast and the geographical position of the blockaded places, and instructs each ship as to the part which she has to play, and especially as to the zone which she is to watch. All the zones watched, taken together and so organized as to make the blockade effective, form the area of operations of the blockading naval force. "The area of operations so constituted is intimately con- nected with the effectiveness of the blockade, and also with the number of ships employed on it. "Cases may occur in which a single ship will be enough to keep a blockade effective, for instance, at the entrance of a port, or at the mouth of a river with a small estuary, so long as circumstances allow the blockading ship to stay near enough to the entrance. In that case the area of operations is itself 38 Gen. Davis says: "When the offense is one of egress, the penaltj' continues until the vessel reaches the territorial vraters of a neutral state." Elements of Int. Law, p. 476. 3 9 British Parliamentary Papers, Miscellaneous No. 4 (1909) p. 255ff. § 200) LIABILITT FOR VIOLATION OF BLOCKADE. 457 near the coast. But, on the other hand, if circumstances force her to remain far off, one ship may not be enough to secure effectiveness, and to maintain this she will then have to be supported by others. From this cause the area of operations becomes wider, and extends further from the coast. It may therefore vary with circumstances, and with the number of blockading- ships; but it will always be limited by the condi- tion that effectiveness must be assured. "It does not seem possible to fix the limits of the area of operations in definite figures, any more than to fix beforehand and definitely the number of ships necessary to assure the effectiveness of any blockade. These pomts must be settled according to circumstances in each particular case of a block- ade. This might, perhaps, be done at the time of making the declaration. "It is clear that a blockade will not be established in the same way on a defenseless coast as on one possessing all mod- ern means of defense. In the latter case there could be no question of enforcing a rule such as that which formerly re- quired that ships should be stationary and sufficiently close to the blockaded places. The position would be too dangerous for the ships of the blockading force, which, besides, now possess more powerful means of watching effectively a much wider zone than formerly. "The area of operations of a blockading naval force may be rather wide ; but as it depends on the number of ships con- tributing to the effectiveness of the blockade, and is always limited by the condition that it should be effective, it will never reach distant seas, where merchant vessels sail which are, perhaps, making for the blockaded ports, but whose desti- nation is contingent on the changes which circumstances may produce in the blockade during their voyage. To sum up, the idea of the area of operations joined with that of effectiveness, as we have tried to define it, that is to say, including the zone of operations of the blockading forces, allows the belligerent effectively to exercise the right of blockade which he admit- tedly possesses, and, on the other hand, saves neutrals from exposure to the drawbacks of blockade at a great distance, while it leaves them free to run the risk which they knowingly 458 BLOCKADE. (Cll. 25 incur by approaching points to which access is forbidden by the belHgerent." *° It was also provided that in effect this area of operations would be extended in case of pursuit of a vessel which had violated or attempted to violate the blockade: "Article 20. A vessel, which in violation of blockade has left a blockaded port, or has attempted to enter the port, 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 block- ade is raised, her capture can no longer be effected." *o Id., No. 5, p. 41. § 201 CONTINUOUS VOYAGE. 459 CHAPTER XXVI. CONTINUOUS VOYAGE. 201. Continuous Voyage. CONTINUOUS VOYAGE. 201. (a) By the doctrine of continuous voyage, as lield in its extreme form, the ultimate destination, regardless of any intermediate destination of vessels or goods, deter- mined their treatment on the seas outside of neutral jurisdiction, (b) By the Declaration of London, 1909 (article 30), the doctrine \iras restricted so as to apply to absolute con- traband only. (a) It was a common practice of the eighteenth century to limit the carrying trade between mother country and the de- pendencies to domestic vessels. Many states still impose re- strictions upon the coasting and domestic carrying trade. When, in the war of 1756, France opened to the Dutch the trade with her colonies previously confined to her own ves- sels, the English maintained that the Dutch vessels thus engaged were practically in the commercial navy of France, and liable to similar treatment. Dutch vessels were accord- ingly captured and condemned. There were, however, va- rious treaties prior to 1756 by the provisions of which one of the parties to the treaty was to be permitted in time of war to trade at ports belonging to the enemy of the other party. ^ Freedom of trade, which had been a matter of treaty agreement in early years, was claimed by the Armed Neu- trality of 1780 as a matter of general right. The British Orders in Council, restricting trade, a few years later, met with opposition. Questions arose as to what constituted a voyage, and as to when the cargo was deposited, and at wliat period a vessel was liable to capture. In the case of The William, Sir William Scott, in 1805, gave full con- 1 Int. Law Topics, U. S. Naval War College, 1905, p. 77. 460 CONTINUOUS VOYAGE, (Cll. 20 sideration to the cfuestion of the termination of a voyage, and says that, "if the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have ended." ^ The British doctrine of continuous voyage was gradually extended. As originally enunciated it was intended to apply to comparatively slow-moving sailing vessels. The aim of the rule was to prevent the giving of aid to a belligerent by a neutral. It is undoubtedly proper for one belligerent to take measures which will prevent a neutral from aiding his op- ponent in his warlike undertaking. Therefore it is generally held that he may capture and confiscate contraband having a belligerent destination or seize vessel and goods bound for a blockaded port. The question of destination becomes one of great importance. It is undeniable that neutral commerce in 2 What, with reference to this subject, is to be considered a direct voyage from one place to another? Nobody has ever supposed that a mere deviation from the straightest and a shortest course in which the voyage could be performed would change its destination and make it cease to be a direct one within the intendment of the instructions. Nothing can depend on the degree or the direction of the deviation, whether it be of more or fewer leagues, whether toward the coast of Africa or toward that of America. Neither will it be contended that the point from which the commencement of a voyage is to be reckoned changes as often as the ship stops in the course of it. Nor will it the more change because a party may choose arbitrarily, by the ship's papers or otherwise, to give the name of a distinct voyage to each stage of a ship's progress. The act of shifting the cargo from the ship to the shore and from the shore bacli again to the ship does not necessarily amount to the termination of one voyage and the commencement of another. It may be wholly unconnected with any purpose of importation into the place where it is done. Supposing the landing to be merely for the purpose of airing or drying the goods, or of repairing the ship, would any man think of describing the voyage as beginning at the place where it happened to become necessary to go through such a process? Again, let it be supposed that the party has a motive for desiring to make the voyage appear to begin at some other place than that of the original lading, and that he therefore lands the cargo purely and solely for the purpose of enabling himself to affirm that it was at such other place that the goods were taken on board, would this contrivance at all alter the truth of the fact? Would not the real voyage still be from the place of the original shipment, notwithstanding the attempt to give § 201) CONTINUOUS VOYAGE. 401 goods of whatever kind, if bona fide commerce between neu- tral ports, cannot be interrupted. The destination of the vessel is usually evident from the ship's papers, and should always be thus shown. If the port of ultimate destination and all intermediate ports of call are neutral, there can be no question that the destination is neutral. If any port, an intermediate or ultimate port, is belligerent, the destination is considered belligerent. As a general rule the destination of the cargo is held to follow the destination of the vessel. This might be said to be almost the sole rule for determining the destination of cargo before the American Civil War. At that time new positions began to be taken. These positions referred back to English practice in the war with France for support. The new doc- trine separates vessel and cargo, and considers that a vessel it the appearance of having begun from a different place? The truth may not always be discernible; but, when it is discovered, it is ac- cording to the truth, and not according to the fiction, that we are to give to the transaction its character and denomination. If the voy- age from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have ended. That those acts have been attended with trouble and expense cannot alter their quality or their effect. The trouble and expense may weigh as circumstances of evidence to show the pur- pose for which the acts were done; but, if the evasive purpose be admitted or proved, we can never be bound to accept, as a substitute for the observance of the law, the means, however operose, which have been employed to cover a breach of it. Between the actual im- portation by which a voyage is really ended, and the colorable im- portation which is to give it the appearance of being ended, there must necessarily be a great resemblance. The acts to be done must be almost entirely the same ; but there is this difference between them: The landing of the cargo, the entry at the custom house, and the payment of such duties as the law of the place requires, are neces- sary ingredients in a genuine importation. The true purpose of the owner cannot be effected without them. But in a fictitious importa- tion they are mere voluntary ceremonies, which have no natural con- nection whatever with the purpose of sending on the cargo to another market, and which, therefore, would never be resorted to by a person entertaining that purpose, except with a view of giving to the voyage, which he has resolved to continue, the appearance of being broken by an importation which he has resolved not really to make. The Wil- liam, 5 C. Rob. 387. 462 CONTINUOUS VOYAGE. (Cll. 20 may have a neutral destination, while the cargo may have a belHgerent destination, or that the cargo may be bound for a blockaded port, while the vessel upon which it is for the time being has a neutral destination. During the American Civil War the Supreme Court, refer- ring to the precedents in the opinions of Lord Stowell, gave further new interpretations to the principles and a decided ex- tension to the doctrine of continuous voyage. While Lord Stowell had applied the doctrine to vessels of one of the bellig- erents carrying on forbidden trade with the enemy, the United States courts extended the doctrine to neutral vessels and cargo sailing from neutral ports with intent to violate block- ade, even if a neutral port should be the immediate point toward which the vessel was bound with the intent of there interrupting the voyage. Under the ordinary rules of war of the time the vessel and cargo would be liable to capture when bound directly for the blockaded port. The new interpretation extended the liability to capture to the voyage between the port of departure and the neutral port of call, provided the intent to proceed to the blockaded port could be proven to exist during the earlier stage of the voyage. In the case of The Circassian, decided in 1864, it was af- firmed that : "A vessel sailing from a neutral port with intent to violate a blockade is liable to capture and condemnation as a prize from the time of sailing, though she intend to call at another neutral port, not reached at time of capture, before proceeding to her ulterior destination." ^ The case of The Springbok, decided in the United States Supreme Court in 1866, gave full extension to the doctrine of continuous voyage. This vessel sailed from London December 8, 1862, on a voyage ostensibly for Nassau. The vessel was captured before reaching that port, and brought into New York, where she was libeled as prize. The District Court con- demned the vessel and cargo as prize of war. The case was appealed to the Supreme Court, which reversed the decree as to the vessel, and affirmed the decree as to the cargo. The summary of the case shows that, when goods destined 8 2 Wall. 135, 17 L. Ed. 796. § 201) COXTINUOUS VOYAGE. 463 for a belligerent are in transit between neutral ports in a neutral ship, the ship is liable to seizure in order to secure the condemnation of the goods, but itself may not be condemned as prize. In regard to the cargo, Mr. Chief Justice Chase gave the opinion of the court that : "Upon the whole case we cannot doubt that the cargo was originally shipped with the intent to violate the blockade ; that the owners of the cargo intended that it should be transshipped at Nassau into some vessel more likely to succeed in reaching a blockaded port than the Springbok ; that the voyage from London to the blockaded port was, as to the cargo, both in law and in intent of the parties, one voyage ; and that the lia- bility to condemnation, if captured during any part of the voyage, attached to the cargo from the time of sailing." * The decisions of the United States courts relating to con- tinuous voyage of vessels or cargo have met with much ad- verse criticism.^ 4 5 Wall. 1, 18 L. Ed. 480. See, also, The Stephen Hart, 3 Wall. 559, 18 L. Ed. 220; The Peterhoff, 5 Wall. 28, 18 L. Ed. 564; The Ber- muda, 3 Wall. 514, 18 L. Ed. 200. 5 Wharton, In an editorial note (3 Digest of Int. Law of the United States, p. 405), says of the Springbok Case: "The decision cannot be accepted without discarding those rules as to neutral rights for which the United States made war in 1812, and which, except in The Spring- bok and cognate cases, the executive department of the United States government, when stating the law, has since then consistently vindi- cated. The first of these is that blockades must be of specific ports. The second is that there can be no confiscation of noncontraband goods owned by neutrals and in neutral ships, on the ground that it is probable that such goods may be, at one or more intermediate ports, transhipped or retranshipped, and then find their way to a port blockaded by the party seizing." Hall says of the decision: "By the American courts this idea of continuous voyage was seized upon and applied to cases of contra- band and blockade. Vessels were captured while on their voyage from one neutral port to another, and were then condemned as car- riers of contraband or for intent to break blockade. They were thus condemned, not for an act— for the act done was in itself innocent, and no previous act existed with which it could be connected, so as to form a noxious whole — but on mere suspicion of intention to do an act. Between the grounds upon which these and the English cases were decided there was, of course, no analogy. The American deci- 464 CONTINUOUS VOYAGE. (Ch. 26 The British Manual of Naval Prize Law (1888) states: "The ostensible destination of the vessel is sometimes a neu- tral port, while she is in reality intended, after touching, and even landing and colorably delivering over her cargo there, to proceed with the same cargo to an enemy port. In such a case the voyage is held to be 'continuous,' and the destination is held to be hostile throughout." ® The same manual also pro- vided that, "if the destination of the vessel be neutral, then the destination of the goods on board should be considered neutral, notwithstanding it may appear from the papers or oth- erwise that the goods themselves have an ulterior hostile des- tination, to be attained by transshipment, overland convey- ance, or otherwise." This section of the Naval Prize Law was brought to a test by the seizure during the South African War, in December, 1899, and January, 1900, of three German vessels, the Herzog, the General, and the Bundesrath. These vessels were carrying supplies to the neutral port of Lourengo Marquez on Delagoa Bay, which was connected by rail with the South African Republic. Great Britain asserted the right to visit and search these vessels. The German government protested "that, whatever there may have been on board the Bundesrath, there could have been no contraband of war, since, according to the recognized principles of international law, there cannot be contraband of war in trade between neu- tral ports," and called attention to the section of the Manual sions have been universally reprobated outside the United States, and would probably now find no defenders in their own country." Int. Law (5th Ed.) p. 669. A committee of the Institute of International Law said: "That the theory in question must be regarded as a serious inroad upon the rights of neutral nations, inasmuch as the fact of the des- tination of a neutral vessel to a neutral port would no longer suf- fice of itself to prevent the capture of goods noncontraband on board. "That, furthermore, the result would be that, as regards blockade, every neutral port to which a neutral vessel might be carrying a neutral cargo would become constructively a blockaded port, if there were the slightest gromid for suspecting that the cargo, after being unladen in such neutral port, was intended to be forwarded in some other vessel to some port actually blockaded." For this and other extended discussion, see 7 Moore, §§ 1256-1262. « No. 71. p. 22. § 201) CONTINUOUS VOYAGE. 465 of Naval Prize Law, to the effect that "the destination of the vessel is conclusive as to the destination of the goods on board." Lord Salisbury replied that: "In the opinion of Her Majesty's government the passage cited from the manual 'that the destination of the vessel is conclusive as to the destination of the goods on board,' has no application to such circumstances as had now arisen. "It cannot apply to contraband of war on board of a neu- tral vessel, if such contraband was at the time of seizure con- signed or intended to be delivered to an agent of the enemy at a neutral port, or, in fact, destined for the enemy's country. "The true view in regard to the latter category of goods is, as Her Majesty's government believe, correctly stated in para- graph 813 of Professor Bluntschli's 'Droit International Codi- fie' (French translation of 1874, second edition of the work of this eminent German jurist) : 'Si les navires ou mar- chandises ne sont eypedies a destination d'un port neutre que pour mieux venir en aide a I'ennemi, il y aura contrebande de guerre et la confiscation sera justifiee.' "Her Majesty's government are unable, therefore, to agree that there are grounds for ordering the release of the Bund- esrath without examination by the prize court as to whether she was carrying contraband of war belonging to or destined for the South African republics. But they fully recognize how desirable it is that this examination should be carried through at the earliest possible moment, and that all proper consideration should be shown for the owners and for inno- cent passengers and merchandise on board of her. Repeated and urgent instructions have been sent by telegraph for this purpose, and arrangements have been made for the speedy transmission of the mails." ^ After examination of these German vessels they were re- leased. The British government paid compensation for the delay. Atlay, stating his opinion in his edition of Hall's In- ternational Law, says that, if a similar case again arises, "I venture to think that the attitude of whatever British govern- ment may be in office will tend rather to the views expressed by Lord Salisbury than to those enunciated by Mr. Hall, and 7 Parliamentary Papers, Africa, No. 1 (1900). WiLS.lNT.L.— 30 466 CONTINUOUS VOYAGE, (Cll. 2G that the destination of the cargo, not merely the destination of the vessel, will be the criterion." * Another case where the second stage of transportation was by land rather than by water, as in the case of the Springbok, was the case of the Doehvyk, a Dutch vessel captured by the Italian cruiser Etna, August 8, 1896, during the war between Italy and Abyssinia. The Italian court condemned vessel and cargo. This decision has also met with much unfavorable criticism. The Institute of International Law in 1896 adopted a rule in regard to continuous voyage to the effect that enemy desti- nation could be presumed in spite of transport to an inter- mediate neutral port, provided there was ample evidence of final enemy destination.® The Japanese Regulations Governing Captures at Sea, March 7, 1907, provide: "Art. 17. In case of a ship, the des- tination of which is not the enemy's territory, whether she calls at that destination and discharges cargo or not, if there is reason to believe that the cargo in question is being con- veyed to the enemy's territory, her voyage shall be regarded as a continuous voyage, and her destination shall be held to have been, from the commencement, the enemy's territory." The same regulations provided that the destination of the ship is the destination of the cargo. The change in the means and methods of transportation has made new regulations necessary. With the increased oppor- tunity for easy and quick intercourse between the enemy and neutral ports has come a corresponding danger to the other belligerent. Against this danger he must have an increased ability to protect himself. It has sometimes been stated that the application of the doctrine of continuous voyage limits the freedom of neutral commerce. The trade in contraband is undertaken in time of war particularly because of the excep- tional profits. The profits of successful trade in contraband 8 Hall, Int. Law (5th Ed.) p. 671. 9 "La destination pour I'ennemi est presumee lorsque le transport va a, Tun de ses ports, on bien h un port ueutre qui, d'apres des preuves fividentes et de fait incontestable, n'est qu'une etape pour I'ennemi, comma but final de la meme operation commerclale." 15 Annuaire de I'lnstltut (1S9G), p. 231. § 201) CONTINUOUS VOYAGE. .467 articles at such a time are exceptional, because the possession of such articles by the one belligerent gives him an advantage over the other belligerent which he would not otherwise have. For this advantage he is willijng to pay a war price. The neu- tral furnishing him this advantage should not be permitted to act with impunity, nor is it reasonable that the other belligerent should be required to permit such action. The whole transac- tion would be contrary to the spirit of the laws of neutrality, and would simply serve to mask an unneutral act under the form of a legitimate transaction. There is no reason to re- gard a voyage as more legitimate because made more cir- cuitously. The number of stopping places does not necessarily change the ultimate destination of a vessel, nor the number of transshipments the destination of its cargo. The present tendency of opinion seems to be toward a recognition of a rea- sonable and clearly defined doctrine of continuous voyage. ■'This means that the vessel and cargo may be captured wher- ever such vessel and cargo may be found outside of neutral jurisdiction, in case there is ample evidence of destination to a blockaded port, and that the interposition of a neutral port of call does not, whatever acts may there be performed, change the destination. This also means the treatment of the cargo is to be determined by its actual destination at the time of visit. It makes no difference whether a cargo destined for the enemy is carried on a final stage of its journey by overland or oversea transportation, the destination of the cargo is the es- sential fact, not the means by which it may reach its destina- tion. Of course, the belligerent is always liable for any seizures which may be made of vessels and cargoes having innocent destinations, and for improper seizures damages must be paid. Ample evidence would therefore be necessary to jus- tify seizure." ^° (b) The question of the application of the doctrine of con- tinuous voyage was one upon which great diversity of opinion existed at the International Naval Conference in 1908-09. It was at length decided that the doctrine could not, without grave dangers to neutral rights, and only with questionable military advantages, be applied to conditional contraband, and 10 Int. Law Topics, U. S. Naval War College, 1905, p. 106, 468 CONTINUOUS VOYAGE. (Ch. 26 that with the limitation of the right of capture for breach of blockade to the "area of operations" it would be of little, if of any, service as applied to blockade. It was, however, definitely recognized as applicable to ab- solute contraband, and a positive rule was enunciated in this regard : "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 imma- terial whether the carriage of the goods is direct, or entails either transshipment or transport over land." ^* 1 1 Appendix, p. 579. § 202) UNNEUTRAL SERVICE. 469 CHAPTER XXVII. UNNEUTRAL SERVICE. 202. Unneutral Service Defined. 203. Scope. 204. Penalty. UNNEUTRAL SERVICE DEFINED. 202. A neutral, acting in snch manner as to identify Iiimself \pit!i the belligerent, is guilty of unneutral service, and liable to the penalties 'wbieb an enemy may receive under similar circumstances. For a long time it was common to attempt to bring- certain acts which a neutral should not as a neutral undertake under some phase of the doctrine of contraband. It was natural that this attempt should be made, as the idea of contraband was well developed before the modern idea of neutrality was clearly defined. Hall uses the term "Analogues of Contra- band," but admits that for such services as he thus denomi- nates the analogy to contraband is "always remote," and fur- ther says : "They are invariably something distinctly more, or something distinctly less, than the transport of contraband amounts to." ^ "Whatever the name, a considerable range of actions, in- volving neither the doctrine of contraband nor the doctrine of blockade, should have some distinguishing name. Various names have been from time to time given to some of these ac- tions, such as 'accidental contraband,' 'analogues of contra- band,' 'enemy service,' 'unneutral service,' etc. The terms in- volving the use of the word 'contraband' are admittedly inap- propriate and forced. The term 'enemy service' would be am- biguous, because often used in a sense not involving any of the actions here discussed. The phrase 'unneutral service' seems to be the least ambiguous and most distinctly descriptive. The decisions of the courts and the opinions of writers point clearly to the fact that it is the nature of the service which 1 Hall, Int. Law (5th Ed.) p. 673. 470 UNNEUTRAL SKKVICB. (Ch. 27 must be considered in certain cases, while the nature and des- tination of the goods in case of contraband, and the mihtary condition of the place in the case of blockade, determines the penalties." ^ SCOPE OF UNNEUTRAIi SERVICE. 203. Unneutral service in general includes the folloiving acts, ivlien undertaken by a neutral for a belligerent: (a) The carriage of enemy persons. (b) The transmission of intelligence in the interest of the enemy. (c) Aid by auxiliary coal, repair, supply, transport, or other vessels. (d) Other service directly in aid of, or under orders or con- trol of, the belligerent. (a) The carriage of enemy persons has been distinctly rec- ognized as an act differing from the carriage of contraband. In the case of The Orozembo, an American merchant vessel was chartered by a merchant at Lisbon, ostensibly to proceed in ballast to Macao, and thence to take a cargo to America. She was specially fitted up for the carriage of passengers. Three Dutch officers of rank, and two persons of the civil service in the government of Batavia, with some others, were received on board, and the vessel actually sailed for Batavia. The vessel was condemned by the English courts upon the facts, because it was assumed that a contract had been entered into with the Dutch government before the vessel left Rotter- dam. In the case of The Friendship, the vessel was con- demned upon the ground that she was employed as a trans- port ; the facts being that she was not allowed to take cargo, but shipped some eighty French sailors, who had been ship- wrecked, and the passage was paid for by the French govern- ment, thus rendering them, not ordinary passengers, but mem- bers of the French navy, being transported from the United States to France.^ 2 Wilson, Unneutral Service, Proceedings American Pol. Sci. Ass'n (1904) 73. The French equivalent of the term "unneutral service" is "assistance hostile." 3 The Orozembo, 6 C. Rob. 430 ; The Friendship, Id. 420 ; The Car- olina. 4 C. Rob. 2.56; Yangtsze Ins. Ass'n v. Indemnity Mutual Marine Ins. Co., [1908] 1 K. B. 910. § 203) SCOPE OF UNNEUTRAL SERVICE. 471 (b) The carriage of dispatches by a neutral in the service of a belHgerent differs from the ordinary carriage of contraband of war. In the case of the carriage of dispatches the vessel is employed in the service of the belligerent, and the loss of the dispatches or persons would inflict, as a rule, no punishment upon the carrier. In the case of contraband goods, on the other hand, there is no presumption of intended aid to the enemy, and the loss of the goods confiscated; — causing, as it does, a pecuniary loss — acts as a sufficient deterent. The transporting of diplomatic dispatches knowingly by a neutral does not entail a penalty, since it is not regarded as an unneu- tral act, and it is the policy of nations to maintain diplomatic relations undisturbed by wars. Under the Hague Convention of 1907 the ordinary postal correspondence is exempt from unnecessary interference, "whatever its official or private char- acter may be," unless proceeding to or from a blockaded port. The exemption does not extend to the vessel carrying the mail, though the vessel should be interfered with as little as possible.* The right of a belligerent to take noxious persons from an innocent neutral vessel arose in the celebrated case of the Trent. The facts in this case, briefly, are that in 1861 the Confederate government appointed Mr. Mason to England and Mr. Slidell to France, ostensibly as ministers, although not in reality such, because the Confederate government had not at that time been recognized, further than as a belligerent, and had no authority to maintain diplomatic relations. They took passage in the Trent — a regular steamer (British) carry- ing the mails — from Havana to Nassau, en route to Europe. A short distance out from Havana this vessel was overhauled by a United States vessel of war (the San Jacinto, Capt. Wilkes), and, after search, Messrs. Mason, Slidell, and their secretaries were taken from the British vessel, and carried to the United States, while the Trent was permitted to pursue her course. The dispatches of these gentlemen were concealed by them among the passengers, and were not discovered. There was nothing to connect the crew with the concealment of the dispatches. Immediately upon receipt in England of information of the action of Capt. Wilkes, demand was made 4 rjght of Capture in Naval War, arts. I, II, Scott, Hague Confer- ences, p. 282. 472 UNNEUTRAL SERVICE. (Ch. 27 for the release of the Confederate representatives and for a suitable apology on the part of the United States. The men were released by the United States, on the ground that the representatives should not have been taken from the vessel, but that the vessel should have been brought to port.'^ The British Manual of Naval Prize Law provides that the com- mander will not be justified in taking enemy persons from neutral vessels, but should send the vessel to port for adjudi- cation.* Similar provision is made in regard to dispatches.'^ A method of aiding the enemy by carriage or transmission of dispatches, which may be of greatest service, is by repeti- tion of messages or signals. The hostile character of this service was recognized by Sir William Scott in the case of The Atalanta in 1808. "If vv^ar intervenes, and the other bel- ligerent prevails to interrupt that communication (between mother country and colony), any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does in fact place himself in the service of the enemy state, and is justly to be considered in 5 7 Moore, § 1265, gives the main points at issue as shown by the correspondence. 6 Under the head, "Neutral Vessels Acting in the Service of the Enemy," the British Manual of Naval Prize Law states: "88. A commander should detain any neutral vessel which is being actually used as a transport for the carriage of soldiers or sailors by the enemy. "89. The vessel should be detained, although she may have on board only a small number of enemy officers, or even of civil officials sent out on the public service of the enemy, and at the public expense. "90. The carriage of ambassadors from the enemy to a neutral state, or from a neutral state to the enemy, is not forbidden to a neu- tral vessel, for the detention of which such carriage is therefore no cause. "91. It will be no excuse for carrying enemy military persons that the master is ignorant of their character. "92. It will be no excuse that he was compelled to carry such per- sons by duress of the enemy." 7 "104. The commander will not be justified in taking out of a ves- sel any enemy's dispatches he may have found on board, and then allowing the vessel to proceed. His duty is to detain the vessel and send ber in for adjudication, together with the dispatches on board." Id. p. 28. § 203) SCOPE OF UNNEUTRAL SERVICE. 473 that character. Nor let it be supposed that it is an act of light and casual importance. The consequence of such a service is indefinite, infinitely beyond the effect of any contraband that can be conveyed. The carrying of two or three cargoes of stores is necessarily an assistance of limited nature ; but in the transmission of dispatches may be conveyed the entire plan of the campaign, that may defeat all the projects of the other belligerent in that quarter of the world. * * * The prac- tice has been, accordingly, that it is in considerable quantities only that the ofifense of contraband is contemplated. The case of dispatches is very different. It is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences in the operations of the enemy. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature." * Acts by neutrals in the nature of service to the enemy were often recognized by the courts as a distinct category during the first half of the nineteenth century.® Dana, in a note to Wheaton, recognizes that such acts are of an entirely different character from the carriage of contraband. "Suppose a neu- tral vessel to transmit signals between two portions of a fleet engaged in hostile combined operations, and not in sight of each other. She is doubtless liable to condemnation. It is immaterial whether these squadrons are at sea, or in ports of their own country, or in neutral ports, or how far they are apart, or how important the signals actually transmitted may be to the general results of the war, or whether the neutral transmits them directly or through a repeating neutral vessel. The nature of the communication establishes its final destina- tion, and it is immaterial how far the delinquent carries it on its way. The reason of the condemnation is the nature of the service in which the neutral is engaged." ^° With the develop- ment of telegraphy, particularly of wireless telegraphy, the 8 6 C. Rob. 440. 9 Tbe Julia, 8 Cranch, 181, 3 L. Ed. 528; The Aurora, 8 Cranch, 203, 3 L. Ed. 536; The Hiram, 8 Cranch, 444, 3 L. Ed. 619; The Ariadue, 2 Wheat. 143, 4 L. Ed. 205. 10 Wheaton, Int. Law (8th Ed.) p. 228, note. 474 UNNEUTRAL SERVICE. (Cll. 27 recognition of the category of unneutral service has become even more essential. (c) In recent times a large range of action has opened to neutrals in aiding a belligerent through auxiliary coal, repair, supply, transport, and cable ships, and similar vessels. Such vessels are engaged in action, distinctly unlike the commercial undertaking of the carriage of contraband. As Hall says, it "is something distinctly more" than the transport of contra- band. It is common in modern proclamations to prohibit such service, and, if captured, vessels engaged in such service are regarded liable to treatment as enemy vessels. (d) Other service directly in aid of the enemy is prohibited. The Hague Convention of 1907 provides that : "A neutral cannot avail himself of his neutrality: "(a) If he commits hostile acts against a belligerent. "(b) If he commits acts in favor of a belligerent, particu- larly if he voluntarily enlists in the ranks of the armed force of one of the parties." ^^ It was formerly the opinion that pilotage of a belligerent fleet by a neutral might be regarded as unneutral service. It was provided at The Hague in 1907, however, that "a neutral power may allow belligerent warships to employ its licensed pilots." ^2 PENALTY FOR UNNEUTRAL SERVICE. 204. The penalty for unneutral service is in general tlie same as tliat to which an enemy Avould be liable under sim- ilar conditions. The neutral agent identifies himself with the belligerent. and is liable to the treatment which his assumed character in- volves. He may be made a prisoner of war,^'' and the means by which he acts is liable to seizure, confiscation, or other ^ 1 PviLdits and Duties of Neutral Powers aud Persons, art. XVII, Appendix, p. 548. 12 Neutral Powers in Naval War, art. XI, Appendix, p. 564. 13 While, in general, the officers and crews of captured neutral ves- sels are not made prisoners of war, this exemption "does not apply to ships taking part in the hostilities." Right of Capture in Naval War, c. Ill, Scott, Hague Conventions, p 283. § 204) PENALTY FOR UNNEUTRAL SERVICB. 475 treatment which would render it incapable of further unneu- tral service.^* The Russian Declaration of February 14, 1904, states that : "There are assimilated to contraband of war the following acts, forbidden to neutrals : The transport of enemy troops, the dispatches or correspondence of the enemy, the furnishing of transports or ships of war to the enemy. Neutral vessels guilty of forbidden acts of this character may be, according to circumstances, seized and confiscated." It is evident that a neutral repair vessel or a neutral collier, accompanying and serving a belligerent fleet, has so far for- feited its neutral character as to make it and its personnel liable to the treatment that would be accorded to a belligerent vessel serving in the same capacity. Professor Lawrence says of carrying contraband in contrast to unneutral service : "They are unlike in nature, unlike in proof, and unlike in penalty. To carry contraband is to engage in an ordinary trad- ing transaction, which is directed toward a belligerent com- munity simply because a better market is likely to be found there than elsewhere. To perform unneutral service is to interfere in the struggle by doing in aid of a belligerent acts which are in themselves not mercantile, but warlike. In order that a cargo of contraband may be condemned as a good prize, the captors must show that it was on the way to a belligerent destination. If, without subterfuge, it is bound to a neutral port, the voyage is innocent, whatever may be the nature of the goods. In the case of unneutral service, the destination of the captured vessel is immaterial. The nature of her mis- sion is the all-important point. She may be seized and con- fiscated when sailing between two neutral ports. The penalty of carrying contraband is the forfeiture of the forbidden goods ; the ship being retained as prize of war only under special circumstances. The penalty for unneutral service is first and foremost the confiscation of the vessel ; the goods on board being condemned when the owner is involved, or when fraud and concealment have been resorted to. "Nothing but confusion can arise from attempting to treat together offenses so widely divergent as the two now under consideration." ^^ 14 Dupuis, La Guerre Maritime, p. 2S2. le Principles of Int. Law, p. G33. 476 UNNEUTRAL SERVICE. (Cll. 27 The Declaration of London, 1909, recognized the distinction between unneutral service and the carriage of contraband, or violation of blockade, and made specific provision for penal- ties for certain cases of unneutral service. This Declaration (article 45) makes liable to the same treat- ment as for carriage of contraband : (1) A neutral vessel which specifically engages in the trans- port of individuals of the enemy's armed forces or in the trans- mission of intelligence in the interest of the enemy. (2) A neutral vessel which, with the knowledge of those in control, transports an enemy military detachment or persons who during the voyage directly assist the enemy operations. The Declaration (article 46) assimilates a neutral vessel to an enemy merchant vessel : (1) If she takes direct part in the hostilities. (2) If she is under control of the enemy authority. (3) If she is exclusively in the enemy employment. (4) If she is exclusively engaged in transport of enemy troops or transmission of enemy intelligence.^* i« Appendix, p. 581. § 205) PEiZK. 477 CHAPTER XXVIII. PRIZE. 205. Prize. 206. National Prize Court. 207. International Prize Court. PRIZE. 205. "Prize is generally used as a teclinical term to express a legal capture." i While in early days prize was regarded as belonging to the person who made the capture, in modern warfare prize is re- garded as belonging to the state.^ Capture should be estab- lished by some act indicative of the intention to take posses- sion.^ The right to capture naval stores as prize, even though at a naval station, has been maintained.* Non-seagoing boats propelled by poling, boats on remote inland waters, and boats without means of propulsion are not considered as liable to capture as prize of war.^ Private property on land is not the subject of maritime prize.® The domicile of the owner or of the house of trade is usually held to establish the liability to capture in states following the Anglo-Saxon jurisprudence and in some of the continental states, while other continental states adopt the principle of nationality of the owner as de- termining the liability of the property.'^ Property captured at sea, however, can never be converted till after adjudication, and must so far as possible be maintained in a condition equal 1 Miller v. The Resolution, 2 Dall. 1, 1 L. Ed. 263. 2 The Adventure, 8 Crauch, 221, 3 L. Ed. 542 ; The Siren v. United States, 7 Wall. 163, 19 L. Ed. 129. 3 The Grotius, 9 Cranch, 368, 3 L. Ed. 762. 4 United States v. Dewey, 188 U. S. 254, 23 Sup. Ct. 415, 47 L. Ed. 463. 5 The Cotton Plant v. United States, 10 Wall. 577, 19 L. Ed. 983; United States v. Dewey, 188 U. S. 254, 23 Sup. Ct. 415, 47 L. Ed. 463. 6 United States v. Alexander, 2 Wall. 404, 17 L. Ed. 915. T The Pedro, 175 U. S. 368, 20 Sup. Ct. 138, 44 L. Ed. 195. 478 PRIZE. (Ch. 28 to that of the time of capture.® The judgment of a national prize court was, prior to the Hague Convention of 19U7, re- garded as conclusive.' NATIONAL, PRIZE COURT. 206. The validity of maritime capture is determined in the first instance by the prize court of the belligerent cap- tor.io It has been repeatedly claimed that the prize court of a bel- ligerent administers international law. Sir William Scott, in 1799, said of the basis of his function as a prize court judge: "I trust it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me — namely, to consider myself as stationed here, not to de- liver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indiffer- ence that justice which the law of nations holds out without distinction to independent states, some happening to be neutral and some to be belligerent. 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. It is the duty of the person who sits here to de- termine this question exactly as he would determine the same question if sitting at Stockholm : to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances; and to impose no duties on Sweden, as a neutral country, which he would not admit to be- long to Great Britain and in the same character. If, there- fore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the uni- versal law upon the question — a question regarding one of the most important rights of belligerent nations relatively to neu- trals." ^^ This position has been repeatedly affirmed, both in British and other courts. 8 Lamar v. Browne, 92 U. S. 187, 23 L>. Ed. 650. 9 The Star, 3 Wheat. 78, 4 L. Ed. .",.38. 10 For general subject, see 7 Moore, §§ 1222-1248. 11 The Maria, 1 C. Rob. 340. § 206) NATIONAL PRIZE COURT. 470 The judges of national prize courts are appointed and the courts are constituted according to municipal law, and have no direct international status.^ ^ They are responsible to their own state for their action. The United States early and formally recognized the need of a properly constituted court for appeal, and on January 15, 1780, the American Congress — , "Resolved, that a court be established for the trial of all appeals from the courts of admiralty in these United States, in cases of capture, to consist of three judges, appointed and commissioned by Congress, either two of whom, in the absence of the other, to hold the said court for the dispatch of business. "That the said court appoint their own register. "That the trials therein be according to the usage of nations and not by jury." ^^ In the United States the District Courts act as prize courts, with appeal to the Supreme Court. National prize courts are differently constituted in different states. Continental states often allow certain administrative officers to act vipon prize. The prize court sitting at Vladivostok during the Russo- Japanese War, which supported the action of Admiral Jessen in sinking the British steamer. Knight Commander, was largely made up of administrative officials ; three of the six members being military officers. The decision of this court was followed by protests, and the case was appealed to a higher court; but the higher court was likewise a national court, and from the national court there was no appeal. Of course, the decision of the court might become a subject for diplomatic negotiation. The results of diplomatic negotiations are, however, often determined by political considerations, rather than by the principles of law. The procedure in prize courts is usually such as to give due weight to the facts, regardless of too minute technicalities. In many states the whole or a portion of the property con- 12 The British courts are based on the Naval Prize Act, 1Sn4 (St. 27 & 28 Vict. c. 25), and the Prize Court Act, 1894 (St. 57 & 5S Vict. c. 30). 1 3 3 Jour, of Cong. p. 425. 480 PRIZE. (Ch. 28 demned as prize is distributed as prize money among the captors, according to rank and degree of participation in the capture. The United States aboHshed this practice by an act of March 3. 1899, as follows: "All provisions of law authorizing the distribution among captors of the whole, or any portion, of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy here- after occurring in time of war, are hereby repealed." ^* INTERNATIONAIi PRIZE COURT. 207. Tlie Hague Conference of 1907 provided for tlie estab- lislinient of an international prize court, to ^vhich ap- peal from the decision of a national prize court could be taken. Even when national prize courts have been constituted after the best existing models, their decisions have sometimes been regarded as unjust. Cases are not lacking where the decisions of the highest prize courts of a state have not been sustained when referred to an international commission for considera- tion.^^ Such reference to an international commission had not been considered as in any way obligatory, but simply as a courtesy, which might or might not be conceded. Many cases, both in earlier and in recent wars, showed that, while the national prize courts might endeavor to administer justice impartially, there was often a belief that national bias made this impossible. There was also the feeling that, if national courts were administering international law impartially in cases of prize, there could be no valid objection to the refer- ence of such cases to an international tribunal, which would observe the same law in its decisions, and at the same time be free from the imputation of possible bias. Indeed, it was be- lieved that a decision rendered by an international prize court would meet approval more readily than the same decision ren- 14 30 Stat. 1007 (U. S. Comp. St. 1901, p. 1072). IB The Circassian, 4 Moore, Int. Arbitrations, pp. 3911-3923. § 207) INTERNATIONAL PRIZE COURT. 481 dered by a national prize court. The establishment of an in- ternational prize court was considered to be a step toward the removal of one of the causes of international differences, and in furtherance of peace. Recognizing- the advantages which might follow the estab- lishment of an international prize court, and hoping to remove so far as possible causes of international friction, the Hague Conference of 1907 agreed upon a Convention Relative to the Creation of an International Prize Court.^® In this convention the functions, competence, constitution, and procedure of the international prize court are set forth at length and in detail. In general, provision is made for appeal from the national prize court in case of default or delay of justice; for a final decision to which the contracting powers will submit in good faith ; for the appointment of judges of known proficiency in questions of international maritime law, fifteen of whom will constitute the court, and for the appoint- ment of a naval officer, who may sit with the court as assessor; and for the method by which the case shall be brought before the court, for its conduct, and for the rendering of the deci- sion.^'' The Convention Relative to the Creation of an International Prize Court contained a clause in article VII to the effect that, if no treaty covered the question of law at issue, the court should apply the rules of international law, and "if no gen- erally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity." Certain states were unwilling to become parties to this conven- tion while such wide diversity of opinion existed as to the rules of international law and the principles of justice and equity as applied to maritime capture as seemed to exist among the states which might most often as neutrals or bellig- erents come before the court. Great Britain, accordingly, in 1908 took the initiative in calling a conference of the naval powers to formulate "the rules which, in the absence of special treaty provisions applica- 16 Convention Relative to the Creation of an International Prize Court, Appendix, p 554. 17 Id., art. XVIII. WiLS.lNT.L. — 31 482 PRIZE. (Ch. 28 ble to a particular case, the court should observe in dealing with appeals brought before it for decision." In response to the invitation of Great Britain the representatives of ten pow- ers assembled in what is known as the International Naval Conference at London on December 4, 1908, and in the Pre- liminary Provisions of the Declaration of London of February 26, 1909, stated that "the signatory powers are agreed that the rules contained in the following chapters correspond in substance with the generally recognized principles of inter- national law." These rules cover the general field of warfare on the sea, containing chapters on blockade, contraband, un- neutral service, destruction of neutral prizes, transfer to a neu- tral flag, enemy character, resistance to search, convoy, and compensation.^^ The work of these international conferences at The Hague and elsewhere has been with the aim to establish uniform law among nations, whose relations are daily becoming closer, and whose highest prosperity depends upon the reign of justice. 18 Appendix, p. 574. APPENDICES WiLS.lNT.L. (483)* APPENDICES APPENDIX I. Fag* Declaration of Paris, April 16, 1856 44J7 APPENDIX II. Instructions for the Government of Armies of the United States in the Field, April 24, 1863 488 APPENDIX III. Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, July 6, 1906 508 APPENDIX IV. Hague Conventions of 1907. Final Act of the Second International Peace Conference.. 515 Convention for the Pacific Settlement of International Dis- putes 519 Convention Respecting the Daws and Customs of War on Lnnd 535 Convention Respecting the Rights and Duties of Neutral Pow- ers and Persons in Case of War on Land 546 Convention for the Adaptation to Naval War of the Prin- ciples of the Geneva Convention 549 Convention Relative to the Creation of an International Prize Court 554 Convention Concerning the Rights and Duties of Neutral Powers in Naval War 563 Draft Convention Relative to the Creation of a Court of Arbitral Justice 568 APPENDIX V. Declaration of Dondon, February 26, 1009 674 WiLs.lNT.L. (485)» APPENDIX I DECLARATION OF PARIS The Plenipotentiaries who signed the Treaty of Paris of the thir- tieth of March, one thousand eight hundred and fifty-six, assembled in conference. Con?idering: That maritime law in time of war has long been the subject of de- plorable disputes; That the uncertainty of the law and of the duties in such a matter give rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties, and even conflicts; that it is consequently advantageous to establish a uniform doctrine on so important a point; That the Plenipotentiaries assembled in Congress at Paris cannot better respond to the intentions by which their Governments are animated, than by seeking to introduce into international relations fixed principles, in this respect. The above-mentioned Plenipotentiaries, being duly authorized, re- solved to concert among themselves as to the means of attaining this object; and having come to an agreement, have adopted the following solemn declaration: 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, in order 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. The Governments of the undersigned Plenipotentiaries engage to bring the present Declaration to the knowledge of the States which have not taken part in the Congress of Paris, and to invite them to accede to it. Convinced that the maxims which they now proclaim cannot but be received with gratitude by the whole world, the undersigned Plen- ipotentiaries doubt not that the efforts of their Governments to ob- tain the general adoption thereof will be crowned with full success. The present declaration is not and shall not be binding, except between those Powers who have acceded, or shall accede, to it. Done at Paris, the sixteenth of April, one thousand eight hundred and fifty-six. WiLS.lNT.L. (487) APPENDIX II INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD GENERAL ORDERS, ) War Department, [■ Adjutant-General's Office, No. 100. ) Washington, April 24, 1863. The followiug "lustructions for the Government of Armies of the United States in the Field," prepared by Francis Lieber, LL. D., and revised by a Board of Officers, of which Major-General E. A. Hitchcock is president, having been approved by the President of the United States, he commands that they be published for the in- formation of all concerned. By ordee of the Secretary of War: E. D. TOWNSEND, Assistant Adjutant-General. SECTION I.— MARTIAL LAW— MILITARY JURISDICTION- MILITARY NECESSITY— RETALIATION. 1. A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the Martial Law of the invad- ing or occupying army, whether any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and conse- quence of occupation or conquest. The presence of a hostile army proclaims its Martial Law. 2. Martial Law does not cease during the hostile occupation, ex- cept by special proclamation, ordered by the commander-in-chief; or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same. 3. Martial Law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as mili- tary necessity requires this suspension, substitution, or dictation. The commander of the forces may proclaim that the administra- tion of all civil and penal law shall continue, either wholly or in WiLS.lNT.L. (488) AMERICAN INSTRUCTIONS FOR GOVERNMENT OF ARMIES. 489 part, as in times of peace, unless otherwise ordered by the military authority. 4. Martial Law is simply military authority exercised in accord- ance with the laws and usages of war. Military oppression is not Martial Law; it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity — virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed. 5. Martial Law should be less stringent in places and countries fully occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is al- lowed — even in the commander's own country — when face to face with the enemy, because of the absolute necessities of the case, and of the paramount duty to defend the country against invasion. To save the eoimtry is paramount to all other considerations. 6. All civil and penal law shall continue to take its usual coui*se in the enemy's places and territories under Martial Law, unless in- terrupted or stopped by order of the occupying military power; but all the functions of the hostile government — legislative, executive, or administrative — whether of a general, provincial, or local charac- ter, cease under Martial Law, or continue only with the sanction, or if deemed necessary, the participation of the occupier or invader. 7. Martial Law extends to property, and to persons, whether they are subjects of the enemy or aliens to that government. 8. Consuls, among American and European nations, are not dip- lomatic agents. Nevertheless, their offices and persons will be sub- jected to Martial Law in cases of urgent necessity only; their prop- erty and business are not exempted. Any delinquency they commit against the established military rule may be punished as in the case of any other inhabitant, and such punishment furnishes no reason- able ground for international complaint. 9. The functions of Ambassadors, Ministers, or other diplomatic agents, accredited by neutral powers to the hostile government, cease, so far as regards the displaced government; but the conquer- ing or occupying power usually recognizes them as temporarily ac- credited to itself. 10. Martial Law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations. 11. The law of war does not only disclaim all cruelty and bad faith concerning engagements concluded with the enemy during the war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace, and avowedly intended to remain in force in case of war between the conti-acting powers. 490 APPENDIX II. It disclaims all extortions and other transactions for individual gain; all acts of private revenge, or connivance at such acts. Offences to tlie contrary shall be severely punished, and especially so if committed by officers. 12. Whenever feasible, Martial Law is carried out in case of in- dividual offendei's by Military Courts; but sentences of death shall be executed only with the approval of the chief executive, provided the urgency of the case does not require a speedier execution, aud then only with the approval of the chief commander 13. Military jurisdiction is of two kinds: First, that which is con- ferred and defined by statute; second, that which is derived from the common law of war. Military offences under the statute law must be tried in the manner therein directed; but military offences which do not come within the statute must be tried and punished under the common law of war. The character of the courts which exercise these jurisdictions depends upon the local laws of each par- ticular country. In the armies of the United States the first is exercised by courts- martial; while cases which do not come within the "Rules and Ar- ticles of War," or the jurisdiction conferred by statute on courts- martial, are tried by military commissions. 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war. 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it al- lows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's coimtry affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or sup- posed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another, and to God. 16. Military necessity does not admit of cruelty, that is, the In- fliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort con- fessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes th.e return to peace unnecessarily difficult. AMERICAN INSTRUCTIONS FOR GOVERNMENT OP ARMIES. 491 17. War is not carried on by arms alone. It is lawful to starve the liostile belligei'ent, armed or unarmed, so that it leads to the speedier subjection of the enemy. IS. When the commander of a besieged place expels the non-com- batants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender. 19. Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and espe- cially the women and children, may be removed before the bom- bardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a ne- cessity. 20. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized ex- istence that men live in political, continuous societies, forming or- ganized units, called states or nations, whose constituents bear, en- joy, and suffer, advance and retrograde together, in peace and in war. 21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war. 22. Nevertheless, as civilization has advanced during the last cen- turies, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile coimtry itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit. 23. Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little dis- turbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war. 24. The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hos- tile country is destined to suffer every privation of liberty and pro- tection, and every disruption of family ties. Protection was, and still is with uncivilized people, the exception. 25. In modern regular wars of the Europeans, and their descend- ants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions. 26. Commanding generals may cause the magistrates and civil ofRcers of the hostile country to take the oath of temporary alle- giance or an oath of fidelity to their own victorious government or rulers, and they may expel every one who declines to do so. But whether they do so or not, the people and their civil officers owe 492 APPENDIX II. strict obedience to them as long as they hold sway over the district or country, at the peril of their lives. 27. The law of war can uo more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of se- curing himself against the repetition of barbarous outrage. 28. Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and. moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into the real occur- rence, and the character of the misdeeds that may demand retribu- tion. Unjust or inconsiderate retaliation removes the belligerents far- ther and farther from the mitigating rules of a regular war, and by rapid steps leads them nearer to the internecine wars of sav- ages. 29. Modern times are distinguished from earlier ages by the ex- istence, at one and the same time, of many nations and great gov- ernments related to one another in close intercourse. Peace is their normal condition; war is the exception. The ulti- mate object of all modern war is a renewed state of peace. The more vigorously wars are pursued, the better it is for human- ity. Sharp wars are brief. 30. Ever since the formation and co-existence of modern nations, and ever since wars have become great national wars, war has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limita- tions and restrictions on principles of justice, faith, and honor. SECTION II.— PUBLIC AND PRIVATE PROPERTY OF THE ENEMY— PROTECTION OF PERSONS, AND ESPECIALLY WOMEN ; OF RELIGION, THE ARTS AND SCIENCES— PUN- ISHMENT OF CRIMES AGAINST THE INHABITANTS OF HOSTILE COUNTRIES. 31. A victorious army appropriates all public money, seizes all pub- lic movable property until further direction by its government, and sequesters for its own benefit or that of its government all the reve- nues of real property belonging to the hostile government or nation. The title to such real property remains in abeyance during military occupation, and until the conquest is made complete. 32. A victorious army, by the martial powers inherent in the same, may suspend, change, or abolish, as far as the martial power extends, the relations which arise from the services due, according to the ex- AMERICAN INSTRUCTIONS FOR GOVERNMENT OF ARMIES. 493 isHng laws of the invaded country, from one citizen, subject, or native of the same to another. The commander of the army must leave it to the ultimate treaty of peace to settle the permanency of this change. 33. It is no longer considered lawful — on the contrary, it is held to be a serious breach of the law of war — to force the subjects of the enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the countiy, district, or place permanently as its own, and make it a portion of its own country. 34. As a general rule, the property belonging to churches, to hos- pitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character — such property is not to be considered public property in the sense of paragraph 31; but it may be taxed or used when the public service may require it. 35. Classical works of art, libraries, scientific collections, or pre- cious instruments, such as astronomical telescopes, as ■well as hos- pitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded. 36. If such works of art, libraries, collections, or instruments be- longing to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ul- timate ownership is to be settled by the ensuing treaty of peace. In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appro- priated, or wantonly destroyed or injured. 37. The United States acknowledge and protect, in hostile coun- tries occupied by them, religion and morality ; strictly private prop- erty ; the persons of the inhabitants, especially those of women ; and the sacredness of domestic relations. Offences to the contrary shall be rigorously punished. This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, land, boats or ships, and churches, for temporary and military uses. 38. Private property, unless forfeited by crimes or by offences of the owner, can be seized only by way of military necessity, for the support or other benefit of the army of the United States. If the owner has not fled, the commanding officer will cause re- ceipts to be given, which may serve the spoliated owner to obtain indemnity. .39. The salaries of civil officers of the hostile government who remain in the invaded territory, and continue the work of their 494 APPENDIX II. office, and can continue it according to the circumstances arising out of the war — sucli as judges, administrative or i>olice officers, officers of city or communal goverumeuts — are paid from the public revenue of the invaded territory, until the military government has reasou Tvholly or partially to discontinue it. Salaries or incomes connected with purely honorary titles are always stopped. 40. There exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land. 41. All municipal law of the ground on which the armies stand, or of the countries to which they belong, is silent and of no effect between armies in the field. 42. Slavery, complicating and confounding the ideas of property, (that is of a thing,) and of personality, (that is of humanity,) exists according to municipal law or local law only. The law of nature and nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that "so far as the law of nature is concerned, all men are equal." Fugitives escaping from a country in which they w-ere slaves, villains, or serfs, into another country, liave, for centuries past, been held free and ac- knowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions. 43. Therefore, in a war between the United States and a bellig- erent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immedi- ately entitled to the rights and privileges of a free man. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or state can have, by the law of post-liminy, no bellig- erent lien or claim of service. 44. All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such in- habitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the of- fence. A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior. 45. All captures and booty belong, according to the modern law of war. primarily to the government of the captor. Prize money, whether on sea or laud, can now only be claimed un- der local law. AMERICAN INSTRUCTIONS FOR GOVERNMENT OF ARMIES. 495 46. Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate. Offences to the contrary committed by commissioned officers will be punished with cashiering or such other punishment as the nature of the offence may require; if by soldiers, they shall be punished according to the nature of the offence. 47. Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred. SECTION III.— DESERTERS— PRISONERS OF WAR— HOSTA- GES— BOOTY ON THE BATTLE-FIELD. 48. Deserters from the American army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture, or being delivered up to the American army ; and if a deserter from the enemy, having taken serv- ice in the army of the United States, is captured by the enemy, and punished by them with death or otherwise, it is not a breach against the law and usages of war, requiring redress or retaliation. 49. A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or by capitulation. All soldiers, of whatever species of arms; all men who belong to the rising en masse of the hostile country ; all those who are at- tached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for; all dis- abled men or officers on the field or elsewhere, if captured; all ene- mies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war. 50. Moreover, citizens who accompany an army for whatever pur- pose, such as sutlers, editors, or reporters of journals, or contract- ors, if captured, may be made prisoners of war, and be detained as such. The monarch and members of the hostile reigning family, male or female, the chief, and chief officers of the hostile government, its diplomatic agents, and all persons who are of particular and singu- lar use and benefit to the hostile army or its government, are, if captured on belligerent ground, and if unprovided with a safe con- duct granted by the captor's government, prisoners of war. 51. If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the ap- 496 APPENDIX II. proach of a hostile army, rise under a duly autliorized levy, en masse to resist the invader, they are novs^ treated as public enemies, and if captured, are prisoners of war. ."•2. No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or bandit. If. however, the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection. 53. The enemy's chaplains, ofiicers of the medical staff, apothe- caries, hospital nurses and servants, if they fall into the hands of the American army, are not prisoners of Avar, unless the commander has reasons to retain them. In this latter case, or if, at their own desire, they are allowed to remain with their captured companions, they are treated as prisoners of war, and may be exchanged If the commander sees fit. 5i. A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents during the war, or in consequence of a war. Hostages are rare in the present age. 55. If a hostage is accepted, he is treated like a prisoner of war, according to rank and condition, as circumstances may admit. 56. A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the inten- tional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity. 57. So soon as a man is armed by a sovereign government, and takes the soldier's oath of 'fidelity, he is a belligerent; his killing, wounding, or other warlike acts, are no individual crimes or offen- ces. No belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies. 58. The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it w^ould be a case for the severest retalia- tion, if not redressed upon complaint. The United 'States cannot retaliate by enslavement; therefore death must be the retaliation for this crime against the law of na- tions. 59. A prisoner of war remains answerable for his crimes com- mitted against the captor's army or people, committed before he was captured, and for which he has not been punished by his own au- thorities. All prisoners of war are liable to the infliction of retaliatory measures. 60. It is against the usage of modern war to resolve, in hatred and revenge, to give no quarter. No body of troops has the right to declare that it will not give, and therefore will not expect, quarter; but a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cum- ber himself with prisoners. AMERICAN INSTRUCTIONS FOR GOVERNMENT OF ARMIES. 497 61. Troops that give no quarter have no right to kill enemies al- ready disabled on the ground, or prisoners captured by other troops. 62. All troops of the enemy known or discovered to give no quar- ter In general, or to any portion of the army, receive none. 63. Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their own, can expect no quarter. 04. If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to distribute them for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from the enemy. do. The use of the enemy's national standard, flag, or other em- blem of nationality, for the purpose of deceiving the enemy in bat- tle, is an act of perfidy by which they lose all claim to the protec- tion of the laws of war. 66. Quarter having been given to an enemy by American troops, under a misapprehension of his true character, he may, nevertheless, be ordered to suffer death if, within three days after the battle it be discovered that he belongs to a corps which gives no quarter. 67. The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treat- ment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and un- just assailant. 68. Modern wars are not internecine wars, in which the killing of the enemy is the object. The destruction of the enemy in modern war, and, indeed, modern war itself, are means to obtain that ob- ject of the belligerent which lies beyond the war. Unnecessary or revengeful destruction of life is not lawful. 69. Outposts, sentinels, or pickets are not to be fired upon, except to drive them in, or when a positive order, special or general, has been issued to that effect. 70. The use of poison in any manner, be it to poison wells, or food, or arms, is Avholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war. 71. Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the army of the United States, or is an enemy captured after having committed his misdeed. 72. Money and other valuables on the person of a prisoner, such as watches or jewelry, as well as extra clothing, are regarded by the American army as the private property of the prisoner, and the ap- propriation of such valuables or money is considered dishonorable, and is prohibited. Nevertheless, if large sums are found upon the persons of pris- oners, or in their possession, they shall be taken from them, and the WiLS.lNT.L.— 32 498 APPENDIX II. surplus, after providing for their own support, appropriated for the use of the army, under the direction of the commander, unless oth- erwise ordered by the government. Nor can prisoners claim, as private property, large sums found and captured in their train, al- though they had been placed in the private luggage of the prisuuers. 73. All officers, when captured, must surrender their side-arms to the captor. They may be restored to the prisoner in marked cases, by the commander, to signalize admiration of his distinguish- ed bravery, or approbation of his humane treatment of prisoners be- fore his capture. The captui-ed officer to whom they may be re- stored cannot wear them during captivity. 74. A prisoner of war being a pul)lic enemy, is the prisoner of the government, and not of the captor. No ransom can be paid by a prisoner of war to his individual captor, or to any officer in com- mand. The government alone releases captives, according to rules prescribed by itself. 75. Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The confinement and mode of treating a prisoner may be varied during his captivity according to the demands of safety. 76. Prisoners of war shall be fed upon plain and wholesome food whenever practicable, and treated with humanity. They may be required to work for the benefit of the captor's gov- ernment, according to their rank and condition. 77. A prisoner of war who escapes may be shot, or otherwise killed in his fiight; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of se- curity shall be used after an unsuccessful attempt at escape. If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously pun- ished, even with death; and capital punishment may also be inflict- ed upon prisoners of war discovered to have plotted rebellion against the authorities of the captors, whether in union with fellow-pris- oners or other persons. 78. If prisoners of war, having given no pledge nor made any promise on their honor, forcibly or otherwise escape, and are cap- tured again in battle, after having rejoined their own army, they shall not be punished for their escape, but shall be ti-eated as simple prisoners of war, although they will be subjected to stricter con- finement. 79. Eh'ery captured wounded enemy shall be medically treated, according to the ability of the medical staff. 80. Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any violence against pris- oners, in order to extort the desired information, or to punish them for having given false infox'mation. AMERICAN INSTRUCTIONS FOR GOVERNMENT OF ARMIES. 499 SECTION IV.— PARTISANS— ARMED ENEMIES NOT BELONG- ING TO THE HOSTILE ARMY— SCOUTS— ARMED PROWLERS— WAR-REBELS. 81. Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of maldug inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile armj-, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appear- ance of soldiers — such men, or squads of men, are not public ene- mies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway rob- bers or pirates. 83. Scouts or single soldiers, if disguised in the dress of the coun- try, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor are treated as spies, and suffer death. 84. Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army, for the purpose of robbing, killing, or of destroying bridges, roads or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war. 85. War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and wheth- er called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they, if discovered and secured before their conspiracy has matured to an actual ris- ing, or to armed violence. SECTION v.— SAFE-CONDUCT— SPIES— WAR-TRAITORS —CAPTURED MESSENGERS— ABUSE OF THE FLAG OF TRUCE. 86. All intercourse between the territories occupied by belligerent armies, whether by traflBc, by letter, by travel, or in any other way, ceases. This is the general rule, to be observed without special proclamation. 500 APPENDIX II. Exceptions to this rule, whether b.\ safe-conduct, or permission to trade on a small or large scale, or by exchanging mails, or by travel from one territory into the other, can take place only according to agreement approved by the government, or by the highest military authority. Contraventions of tliis rule are highly puni:?hal)le. S7. Ambassadors, and all other diplomatic agents of neutral pow- ers, accredited to the enemy, may receive safe conducts through the territories occupied by the l)elligerents, unless there are mili- tary reasons to the contrary, and unless they may reach the place of their destination conveniently by another route. It implies no international affront if the safe conduct is declined, such passes are usually given by the supreme authority of the state, and not by subordinate officers. 88. A spy is a person who secretly, in disguise or under false pre- tence, seeks information with the intention of communicating it to the enemy. The spy is piuiishable with death by hanging by the neck, wheth- er or not he succeeded in obtaining the information or in conveying it to the enemy. 89. If a citizen of the United States obtains information in a legit- imate manner, and betrays it to the enemy, be he a military or civil officer, or a private citizen, he shall suffer death. 90. A traitor under the law of war, or a war-traitor, is a person in a place or district under martial law who, unauthorized by the military commander, gives information of any kind to the enemy, or holds intercourse with him. 91. The war-traitor is always severely punished. If his offence consists in betraying to the enemy anything concerning the condi- tion, safety, operations or plans of the troops holding or occupying the place or district, his punishment is death. 92. If the citizen or subject of a country or place invaded or con- quered gives information to his own government, from which he is separated by the hostile army, or to the army of his government, he is a war-traitor, and death is the penalty of his offence. 93. All armies in the field stand in need of guides, and impress them if they cannot obtain them otherwise. 94. No person having been forced by the enemy to serve as guide is punishable for having done so. 95. If a citizen of a hostile and invaded district voluntarily serves as a guide to the enemy, or offers to do so, he is deemed a war- traitor, and shall suffer death. 96. A citizen serving voluntarily as a guide against his own coun- try commits treason, and will be dealt with according to the law of his country. 97. Guides, when it is clearly proved that they have misled in- tentionally, may be put to death. AMERICAN INSTRUCTIONS FOR GOVERNMENT OF ARMIBS. 501 98. All unaiitliorized or secret communication with the enemy Is considered treasonable by the law of war. Foreign residents in an invaded or occupied territory, or foreign visitors in the same, can claim no immunity from this law. They may communicate with foreign parts, or with the inhabitants of the hostile country, so far as the military authority permits, but no further. Instant expulsion from the occupied territory would he the very least punishment for the infraction of this rule. 99. A messenger carrying written dispatches or verbal messages from one portion of the army, or from a besieged place, to another portion of the same army, or its government, if armed, and in the uniform of his army, and if captured while doing so, in the territory occupied by the enemy, is treated by the captor as a prisoner of war. If not in uniform, nor a soldier, the circumstances connected, Avith his capture must determine the disposition that shall be made of him. 100. A messenger or agent who attempts to steal through the territory occupied by the enemy, to further, in any mannei*, the in- terests of the enemy, if captured, is not entitled to the privileges of the prisoner of war, and may be dealt with accoi'ding to the cir- cumstances of the case. 101. While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them. 102. The law of war, like the criminal law regarding other of- fences, makes no difference on account of the difference of sexes, concerning the spy, the war-traitor, or the war-rebel. 103. Spies, war-traitors, and war-rebels, are not exchanged accord- ing to the common law of war. The exchange of such persons would require a special cartel, authorized by the government, or, at a great distance from it, by the chief commander of the army in the held. 104. A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to pun- ishment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous. SECTION VI.— EXCHANGE OF PRISONERS— FLAGS OP TRUCE —FLAGS OP PROTECTION. 105. Exchanges of prisoners take place — number for numbei- — rank for rank — wounded for wounded — with added condition tor added condition— such, for instance, as not to serve for a certain period. 100. In exchanging prisoners of war, such numbers of persons of inferior rank may be substituted as an equivalent for one of supe- rior rank as may be agreed upon by cartel, which requires the sane- 502 APPENDIX II. tlon of the government, or of the commander of the army in the field. 107. A prisoner of war Is in honor bound truly to state to the captor hi.s rank; and he is not to assume a lower rank than belongs to him, in order to cause a more advantageous exchange; nor a higher rank, for the purpose of obtaining better treatment. Offenses to the contrary have been justly punished by the com- manders of released prisoners, and may be good cause for refusing to release such prisoners. 108. The surplus number of prisoners of war remaining after an exchange has taken place is sometimes released either for the pay- ment of a stipulated sum of money, or, in urgent cases of provision, clothing, or other necessaries. Such arrangement, however, requires the sanction of the highest authority. 109. The exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel has been concluded, it can not be demanded by either of them. No belligerent is obliged to ex- change prisoners of war. A cartel is voidable so soon as either party has violated it. 110. No exchange of prisoners shall be made except after complete •capture, and after an accurate account of them, and a list of the captured officers, has been taken. 111. The bearer of a flag of truce cannot insist upon being ad- mitted. He must always be admitted with great caution. Unnec- essary frequency is carefully to be avoided. 112. If the bearer of a flag of truce offer himself during an en- gagement, he can be admitted as a very rare exception only. It Is no breach of good faith to retain such a flag of truce, if admitted during the engagement. Firing is not required to cease on the ap- pearance of a flag of truce in battle. 113. If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of com- plaint whatever. 114. If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy. So sacred is the character of a flag of truce, and so necessary is its sacrodness, that while its abuse is an especially heinous offence, great caution is requisite, on the other hand, in convicting the bear- er of a flag of truce as a spy. 115. It is customary to designate by certain flags (usually yellow), the hospitals in places which are shelled, so that the besieging ene- my may avoid firing on them. The same has been done in battles, when hospitals are situated within the field of the engagement 116. Honorable belligerents often request that the hospitals with- AMERICAN INSTEUCTIONS FOR GOVERNMENT OF ARMIES. 503 in the territory of the enemy may be designated, so that they may be spared. An honorable belligerent allows himself to be guided by flags or signals of protection as much as the contingencies and the neces- sities of the fight will permit. 117. It is justly considered an act of bad faith, of infamy or fiend- ishness, to deceive the enemy by flags of protection. Such act of bad faith may be good cause for refusing to respect such flags. 118. The besieging belligerent has sometimes requested the be- sieged to designate the buildings containing collections of works of art, scientific museums, astronomical observatories, or precious li- braries, so that their destruction may be avoided as much as pos- sible. SECTION VII.— THE PAROLE. 119. Prisoners of Tvar may be released from captivity by exchange, and, under certain circumstances, also by parole. 120. The term parole designates the pledge of individual good faith and honor to do, or to omit doing, certain acts after he who gives his parole shall have been dismissed, wholly or partially, from the power of the captor. 121. The pledge of the parole is always an individual but not a private act. 122. The parole applies chiefly to prisoners of war whom the captor allows to return to their country, or to live in greater free- dom within the captor's country or territory, on conditions stated in the parole. 123. Release of prisoners of war by exchange is the general rule; release by parole is the exception. 124. Breaking the parole is punished with death when the person breaking the parole is captured again. Accurate lists, therefore, of the paroled persons must be kept by the belligerents. 125. "When paroles are given and received, there must be an ex- change of two written documents, in which the name and rank of the paroled individuals are accurately and truthfully stated. 126. Commissioned officers only are allowed to give their parole, and they can give it only with the permission of their superior, as long as a superior in rank is within reach. 127. No non-commissioned ofhcer or private can give his parole except through an officer. Individual paroles not given through an officer are not only void, but subject the individual giving them to the punishment of death as deserters. The only admissible ex- ception is where individuals, properly separated from their com- mands, have suffered long confinement without the possibility ot being paroled through an officer. 128. No paroling on the battle-field, no paroling of entire bodies of troops after a battle, and no dismissal of large numbers of pris- 504 APPENDIX II. oners, -with a general declaration that they are paroled, is permitted, or of any value. 12!). In capitulations for the surrender of strong places or forti- fied camps, the commanding officer, in cases of urgent necessity, may agree that the troops under his command shall not light again during the war, unless exchanged. 130. The usual pledge given in the parole is not to serve during the existing war, unless exchanged. This pledge refers only to the active service in the field, against the paroling belligerent or his allies actively engaged in the same war. These cases of breaking the parole are patent acts, and can be visited with the punishment of death; but the pledge does not refer to internal service, such as recruiting or drilling the recruits, fortifying places not besieged, quelling civil commotions, fighting against belligerents unconnected with the paroling belligerents, or to civil or diplomatic service for which the paroled officer may be employed. 131. If the government does not approve of the parole, the paroled officer must return into captivity; and should the enemy refuse to receive him, he is free of his parole. 132. A belligerent government may declare, by a general order, whether it will allow paroling, and on what conditions it will al- low it. Such order is communicated to the enemy. 133. No prisoner of war can be forced by the hostile government to parole himself, and no government is obliged to parole prisoners of war, or to parole all captured officers if it paroles any. As the pledging of the parole is an individual act, so is paroling, on the other hand, an act of choice on the part of the belligerent. 134. The commander of an occupying army may require of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of his army; and upon their failure to give it-, he may arrest, confine, or detain them. SECTION VIII.— ARMISTICE— CAPITULATION. 135. An armistice is the cessation of active hostilities for a period agreed upon betv/een belligerents. It must be agreed upon in writ- ing, and duly ratified by the highest authorities of the contending parties. 136. If an armistice be declared, without conditions, it extends no further than to require a total cessation of hostilities along the front of both belligerents. If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If either party violates any express condition, the armistice may be declared null and void by the other. AMERICAN INSTRUCTIONS FOR GOVERNMENT OF ARMIES. 505 137. An armistice may be general, and valid for all points and lines of the belligerents; or special — that is, referring to certain troops or certain localities only. An armistice may be concluded for a definite time; or for an in- definite time, during which either belligerent may resume hostilities on giving the notice agreed upon to the other. 138. The motives which induce the one or the other belligerent to conclude an armistice, whether it be expected to be preliminary to a treaty of peace, or to prepare during the armistice for a more vigorous prosecution of the war, do in no way affect the character of the armistice itself. 139. An armistice is binding upon the belligerents from the day of the agreed commencement; but the officers of the armies are responsible fi-om the day only when they receive official informa- tion of its existence. 140. Commanding officers have the right to conclude armistices binding on the distz'ict over which their command extends; but sucli armistice is subject to the ratification of the superior authority, and ceases so soon as it is made known to the enemy that the armi- stice is not ratified, even if a certain time for the elapsing between giving notice of cessation and the resumption of hostilities should have been stipulated for. 141. It is incumbent upon the conti'acting parties of an armistice to stipulate what intercourse of persons or traffic between the in- habitants of the territories occupied by the hostile armies shall be allowed, if any. If nothing is stipulated, the intercourse remains suspended, as during actual hostilities. 142. An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties. 143. When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on this subject that the besieger must cease all extension, perfection, or advance of his attacking works, as much so as from attacks by main force. But as there is a difference of opinion among martial jurists,^ whether the besieged have the right to repair breaches or to erect new works of defence within the place during an armistice, this point should be determined by express agreement between the parties. 14r4. So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arras, stores, or am- munition, in his possession, during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in the same. 145. When an armistice is clearly broken by one of the parties,, the other party is released from all obligations to observe it. a06 APPENDIX II. 14G. Prisoners, taken in the act of breaking an armistice, must be treated as prisoners of war, the officer alone boinj? responsible who g-ives the order for such a violation of an armistice. The highest authority of the belligerent aggrieved may demand redress for the infraction of an armistice. 147. Belligerents sometimes conclude an armistice while their plenipotentiaries are met to discuss the conditions of a treaty of peace; but plenipotentiaries may meet without a preliminary armi- stice: in the latter case, the war is carried on without any abate- ment. SECTION IX.— ASSASSINATION. 148. The law of war does not allow proclaiming either an indi- vidual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such international outla^ATy; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in con- sequence of such proclamation, made by whatever authority. Civil- ized nations look with horror upon offers of rewards for the assas- sination of enemies, as relapses into barbarism. SECTION X.— INSURRECTION— CIVIL WAR— REBELLION. 149. Insurrection is the rising of people in arms against their government, or a portion of it, or against one or more of its laws, or against an officer or officers of the government. It may be con- fined to mere armed resistance, or it may have greater ends in view. 150. Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and eacli claiming to be the legitimate government. The term is also some- times applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to those containing the seat of government. * 151. The term rebellion is applied to an insurrection of large ex- tent, and is usually a war between the legitimate government of a country and portions or provinces of the same who seek to throw off their allegiance to it, and set up a government of their own. 152. When humanity Induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of them, as an inde- pendent or sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own acknowledgment of the revolted peo- ple as an independent power. 153. Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agree- AMERICAN INSTRUCTIONS FOR GOVERNMENT OF ARMIES. 507 tiients with theui ; addressing officers of a rebel army by tbe rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war-taxes or forced loans, or doing any other act sanctioned or de- manded by the law and usages of public war between sovereign bel- ligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or sovereign power. Nor does the adoption of the rules of w^ar toward rebels imply an engagement with them extending be- yond the limits of these rules. It is victory in the field that ends the strife, and settles the future relations between the contending parties. 154. Treating, in the field, the rebellious enemy according to the law and usages of "war, has never prevented the legitimate govern- ment from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are in- cluded in a general amnesty. 1.55. All enemies in regular war are divided into two general classes; that is to say, into combatants and noncombatants, or un- armed citizens of the hostile government. The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize with the rebellion, without positively aiding it, and those who, with- out taking up arms, give positive aid and comfort to the rebellious enemy, without being bodily forced thereto. 156. Common justice and plain expediency require that the mili- tary commander protect the manifestly loyal citizens, in revolted territories, against the hardships of the war, as much as the com- mon misfortune of all war admits. The commander will throw the burden of the war, as much as lies; within his power, on the disloyal citizens of the revolted portion or province, subjecting them to a stricter police than the noncombat- ant enemies have to suffer in regular war; and if ho deems it ap- propriate, or if his government demands of him, that every citizen shall, by an oath of allegiance, or by some other manifest act. de- clare his fidelity to the legitimate government, he may expel, trans- fer, imprison, or fine the revolted citizens who refuse to pledge them- selves anew as citizens obedient to the law, and loyal to the govern- ment. Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government have the right to decide. 157. Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops, is levying war against the United States, and is therefore treason. APPENDIX III CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED IN ARMIES IN THE FIELD. GENEVA, JULY 6, 1906 [Names of States.] Being equally animated by the desire to lessen the inherent evils of warfare as far as is within their power, and wishing for this pur- pose to improve and supplement the provisions agreed upon at Gen- eva on August 22, 1SG4, for the amelioration of the condition of the wounded in armies in the field. Have decided to conclude a new convention to that effect, and have appointed as their plenipotentiaries, to wit: [Names of delegates.] Who, after having communicated to each other their full powers, found in good and due form, have agreed on the following; [Translation.] CHAPTER I.— THE SICK AND WOUNDED. Article 1. OflBcers, soldiers, and others persons officially attached to armies who are sick or wounded shall be respected and cared for, without distinction of nationality, by the belligerent in whose power they are. A belligerent, however, when compelled to leave his wounded in the hands of his adversary, shall leave with them, so far as mili- tary conditions permit, a portion of the personnel and materiel of his sanitary service to assist in caring for them. Art. 2. Subject to the care that must be taken of them under the preceding article, the sick and wounded of an Army who fall into the power of the other belligerent become prisoners of war, and the general rules of international law in respect to prisoners become applicable to them. The belligerents remain free, however, to mutually agree upon such clauses, by way of exception or favor, in regard to sick and wounded prisoners as they may deem proper. They shall have au- thority to agree: 1. To mutually return the sick and wounded left on the lield of battle after an engagement. WiLS.lNT.L. (508) GENEVA CONVENTION, 1!X)6. 509 2. To send back to their own country the sick and wonndefl who have recovered, or who are in a condition to be transported, and whom they do not desire to retain as prisoners. 3. To send the sick and wounded of the enemy to a neutral state, with its consent and on condition that it shall charge itself with their interment until the close of hostilities. Art. 3. After every engagement the belligerent who remains In possession of the field of battle shall take measures to s^earch for the wounded and to protect the wounded and dead from spoliation and ill treatment. He will see that a careful examination is made of the bodies of the dead prior to their interment or incineration. Art. 4. As soon as possible each belligerent shall forward to the authorities of their country or Army the military tokens, or badges of identification, found upon the bodies of the dead, together with a list of the sick and wounded taken in charge by him. Belligerents will keep each other mutually advised of interments and transfers, together with admissions to hospitals and deaths which occur among the sick and woanded in their hands. They will collect all personal belongings, valuables, letters, etc., which are found upon the field of battle, or have been left by the sick or wound- ed, or by those who have died in sanitary formations or other estab- lishments, for transmission to interested persons through the author- ities of their own country- Art. 5. Military authority may make an appeal to the charitable zeal of the inhabitants to receive and, under his supervision, to care for the sick and wounded of the armies, by granting to persons re- sponding to such appeals special protection and certain immunities. CHAPTER n.— SANITARY FORMATIONS AND ESTABLISH- MENTS. Art. 6. Movable sanitary formations (i. e., those which are intend- ed to accompany armies in the field) and the fixed establishments belonging to the sanitary service shall be protected and respected by belligerents. Art. 7. The protection due to sanitary formations and establish- ments ceases If they are used to commit acts injurious to the enemy. Art. S. A sanitary formation or establishment shall not be depriv- ed of the protection accorded by article 6 by the fact that: 1. The personnel of a formation or establishment is armed and uses its arms In self-defense or in defense of Its sick and wounded. 2. In the absence of armed hospital attendants, the formation is guarded by an armed detachment or by sentinels regularly estab- lished. 3. Arms or cartridges, taken from the wounded and not yet turn- ed over to the proper authorities, are found in the formation or es- tablishment. ilO APPENDIX III. CHAPTER III.— PERSONNEL. Art 9. The persouiiel exclusively cbarged with the removal, trans- portation, and treatment of the sick and -woundod, as well as with the administration of sanitary formations and esta)ilishmonts, and the chaplains attached to armies shall be respected and protected under all circumstances. If they fall into the hands of the enemy they shall not be regarded as prisoners of war. These provisions apply to the personnel of the guard of sanitary formations and establishments in the case provided for in section 2 of article 8. Art. 10. The personnel of volunteer aid societies, duly recognized and authorized by their respective governments, who are employed in the sanitary formations and establishments of armies, are assimi- lated to the personnel contemplated in the preceding article, upon condition that the said personnel shall be subject to military laws and regulations. Each state shall make known to the other either in time of peace or at the opening or during the progress of hostilities — in any case, before actual employment — the names of the societies which it has authorized to render assistance, under its responsibility, in the of- ficial sanitary service of its armies. Art. 11. A recognized society of a neutral state can not lend the services of its sanitary personnel and formations to a belligerent ex- cept with the prior consent of its own government and the authority of such belligerent. The belligerent who has accepted such assist- ance is required to notify the enemy before making any use thereof. Art. 12. Persons described in articles 9, 10, and 11 will continue in the exercise of their functions after they have fallen into the power of the enemy and under his direction. When their co-operation is no longer indispensable they will be sent back to their army or country, within such period and by such route as may accord with military necessity. They will carry with them such effects, instruments, arms, and horses as are their private property. Art. 13. While they remain in his power, the enemy will secure to the personnel mentioned in article 9 the same pay and allowances to which persons of the same grade in his own Army are entitled. CHAPTER IV.— :mat]i:riel.. Art. 14. Mobile sanitary formations that have fallen Into the pow- er of the enemy shall retain their materiel and means of transporta- tion of whatever kind, including teams, whatever maj- be the means of transportation, and the conducting personnel. Competent military authority, however, shall have the right to employ them in caring for the sick and wounded. The restitution GENEVA CONVENTION, 1906. 511 of the mat(5riel shall take place in accordance with the conditions prescribed for the sanitary personnel, and, as far as possible, at the same time. Art. 15. Buildings and materiel pertaining to fixed establishments shall remain subject to the laws of war, but can not be diverted from their use so long as they are necessary for the sick and wound- ed. Commanders of troops engaged in operations, however, may use them in case of important military necessity, if before such use, the sick and wounded who are in them have been provided for. Art. 16. The materiel of aid societies, admitted to the benefits of this convention in conformity to the conditions herein prescribed, is regarded as private property and, as such, will be respected under all circumstances, save that it is subject to the right of requisition by belligerents in conformity to the laws and usages of war. CHAPTER v.— CONVOYS OP EVACUATION. Art. 17. Convoys of evacuation shall be treated as movables sani- tary formations with the following exceptions: 1. A belligerent intercepting a convoy may, if required by military necessity, bi'eak up such convoy by charging himself with the care of the sick and wounded whom it contain. 2. In this case the obligation to rostore the sanitary personnel, as provided for in article 12, shall be extended to include the entire military personnel employed, under proper authority, in the trans- portation and protection of the convoy. The obligation to return the sanitary materiel as provided for in article 14 shall apply to railway trains and vessels intended for in- terior navigation which have been especially equipped for evacua- tion purposes, together with the equipment of such vehicles, trains, and vessels which belong to the sanitary service. Military vehicles, with their teams, other than those belonging to the sanitary service, may be captured. Civilians and various means of transportation obtained by req- uisition, including railway materiel and vessels utilized for convoys, are subject to the general rules of international law. CHAPTER VI.— DISTINCTIVE EMBLEM. Art. 18. In homage to Switzerland the heraldic sign of the red cross on a white ground, formed by the reversal of the federal colors, is continued as the emblem and distinctive sign of the sani- tary service of armies. Art. 19. This emblem appears on flags and brassards as well as upon all materiel appertaining to the sanitary service, with the per- mission of competent military authority. Art. 20. The personnel protected by the provisions of paragraph 1, article 9, and articles 10 and 11 will wear attached to the left 512 APPENDIX III. arm a brassard bearing a red cross on a white ground, which will be issued and stamped by competent military authority, and accom- panied by a certificate of identity in the case of persons attached to the sanitary service of armies who do not have military uniform. Art. 21. The distinctive flag of the convention can only be dis- played, with the consent of the military authorities over sanitary formations and establishments which the convention provides shall be respected, and with the consent of the military authorities. It shall be accompanied by the national flag of the belligerent to whose service the formation or establishment is attached. Sanitary formations which have fallen into the power of the enemy, however, shall fly no other flag than that of the Red Cross so long as they continue in that situation. Art. 22. Neutral sanitary formations which, under the conditions i?et forth In article 11, have been authorized to render their services shall fly, with the flag of the convention, the national flag of the belligerent to which they are attached. The provisions of the sec- ond paragraph of the preceding article are applicable to them. Art. 23. The emblem of the red cross on a white ground and the words Red Cross or Geneva Cross may only be used, whether in time of peace or war, to protect or designate sanitary formations and establishments, the personnel and materiel protected by the convention. CHAPTER VII.— APPLICATION AND EXECUTION OF THE CONVENTION. Art. 24. The provisions of the present convention are obligatory on the contracting powers only, in case of war between two or more of them. The said provisions shall cease to be obligatory from the time when one of the belligerent powers should not be signatory to the convention. Art. 25. The commanders In chief of the belligerent armies shall have to provide for the details of execution of the foregoing articles, as well as for unforeseen cases, in accordance with the instructions of their respective governments, and conformably to the general principles of this convention. Art. 26. The signatory governments shall take the necessary steps to acquaint their troops, and particularly the protected personnel, with the provisions of this convention and to make them known to the people at large. CHAPTER VIII.— REPRESSION OF ABUSES AND IN- FRACTIONS. Art. 27. The signatory powers whose legislation should not now be adequate engage to take or recommend to their legislatures such measures as may be necessary to prevent the use, by private per- GENEVA CONVENTION, 1906. 513 sons or by societies other than those upon which this convention confers the right thereto, of the emblem or name of the Red Cross or Geneva Cross, particularly lor commercial purposes by means of trade marks or commercial labels. The prohibition of the use of the emblem or name in question shall take effect from the time set by each act of legislation and not later than five years after this convention goes into effect. Upon the said going into effect, it shall be unlawful to use a trade mark or commercial label contrary to such prohibition. . Art. 2S. In the event of their military penal laws being insufficient, the signatory governments also engage to take, or to recommend to their legislatures, the necessary measures to repress, in time of war. individual acts of pillage and ill treatment of the sick and wounded of the armies, as well as to punish, as usurpations of military In- signia, the wrongful use of the flag and brassard of the Red Cross by military persons or private individuals not protected by the present convention. They will communicate to each other through the Swiss Federal Council the measures taken with a view to such repression, not later than five years from the ratification of the present conven- tion. GENERAL PROVISIONS. Art. 29. The present convention shall be ratified as soon as pos- sible. The ratifications will be deposited at Berne. A record of the deposit of each act of ratification shall be pre- pared, of which a duly certified copy shall be sent, through diplo- matic channels, to each of the contracting powers. Art. 30. The present convention shall become operative, as to each power, six months after the date of deposit of its ratification. Art. 31. The present convention, when duly ratified, shall super- sede the Convention of August 22, 1864, in the relations between the contracting states. The Convention of 18G4 remains in force in the relations between the parties who signed it but who should not also ratify the present convention. Art. 32. The present convention may, until December 31, proximo, be signed by the powers represented at the conference which opened at Geneva on June 11, 1906, as well as by the powers not represented at the conference who have signed the Convention of 1864. Such of the powers as shall not have signed the present conven- tion on or before December 31, 1906, will remain at liberty to ac- cede to it after that date. They shall signify their adhesion in a written notification addressed to the Swiss Federal Council, and communicated to all the contracting powers by the said Council. Other powers may request to adhere in the same manner, but their request shall only be effective if, within the period of one year from its notification to the Federal Council, such Council has WiLS.lNT.L.— 33 514 APPENDIX III. not been advised of any opposition on the part of any of the con- tracting powers. Art. 33. Each of the contracting parties shall have the right to denounce the present convention. This denunciation shall only be- come operative one year after a notification in writing shall have been made to the Swiss Federal Council, which shall forthwith com- municate such notification to all the other contracting parties. This denunciation shall only become operative in respect to the power which has given it. In faith whereof the plenipotentiaries have signed the present convention and affixed their seals thereto. Done at Geneva, the sixth day of July, one thousand nine hun- dred and six, in a single copy, which shall remain in the archives of the Swiss Confederation and certified copies of which shall be delivered through the diplomatic channel to the contracting parties. [Here follow the signatures.] APPENDIX IV HAGUE CONVENTIONS. FINAL ACT OF THE SECOND INTERNATIONAL PEACE CONFERENCE.! The Second International Peace Conference, proposed in the first instance by the President of the United States of America, having been convolved, on the invitation of His Majestic the Emperor of AJl the Kussias, by Her Majesty the Queen of the Netherlands, assem- bled on the 15th June, 1907, at The Hague, in the Hall of the Knights, for the purpose of giving a fresh development to the hu- manitarian principles which served as a basis for the work of the First Conference of 1899. The following Powers took part in the Conference, and appointed the Delegates named below: [Names of forty-four states and delegates.] At a series of meetings, held from the 1.5th June to the 18th Oc- tober, 1907, in which the above Delegates were throughout animated by the desire to realize. In the fullest possible measure, the gen- erous views of the august initiator of the Conference and the In- 1 Introductory Note. The Second International Peace Conference was held at The Hague from June 15 to October 18. 1907. Forty-four states signed the conventions, with or without reservations. The states, in alphabetical order of names in the French language, are: Germany, United States of America, Argentina, Austria-Hungary, Bel- gium. Bolivia. Brazil, Bulgaria, Chile, China, Colombia, Cuba, Denmark, Dominican Republic, Ecuador, Spain, France, Great Britain. Greece, Guatemala, Haiti, Italy, Japan, Luxembourg, Mexico, Montenegro, Nica- ragua, Norway, Panama, Paraguay, Netherlands, Peru, Persia, Portugal, Roumania, Russia. Salvador, Servia, Siam, Sweden, Switzerland, Turkey, Uruguay, and Venezuela. The delegates from the United States were Joseph H. Choate, Horace Porter, Uriah M. Rose, David Jayne Hill, Charles S. Sperry, George B. Davis, William I. Buchanan, James Brown Scott, and Charles Henry Butler. The Conference drew up thirteen conventions and one declaration. The conventions were to bear date of October IS, 1907, and the states repre- sented might sign up to June 30. 1908. To avoid unnecessary repetition, the names of the states and of the delegates are omitted in reproducing the text of these conventions. In WiLS.lNT.L. (515) 516 APPENDIX IV. tentions of their Governments, the Conference drew up for submis- sion for signature by the Plenipotentiaries, the text of the Con- ventions and of the Declaration enumerated below^ and annexed to the present Act: 1. Convention for the Pacific Settlement of International Dis- putes. 2. Convention Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts. 3. Convention Relative to the Opening of Hostilities. 4. Convention Respecting the Laws and Customs of War on Land. 5. Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. 6. Convention Relative to the Statns of Enemy Merchant-Ships at the Outbreak of Hostilities. 7. Convention Relative to the Conversion of Merchant-Ships into War-Ships. 8. Convention Relative to the Laying of Automatic Submarine Contact Mines. 9. Convention Respecting Bombardment by Naval Forces in Time of War. 10. Convention for the Adaptation to Naval War of the Princi- ples of the Geneva Convention. 11. Convention Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War. 12. Convention Relative to the Creation of an International Prize Court. 13. Convention Concerning the Rights and Duties of Neutral Powers in Naval War. 14. Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons. These Conventions and Declaration shall form so many separate Acts. These Acts shall be dated this day, and may be signed up certain cases the substance of the conventions is inserted in the text and is not reprinted in the appendices. The articles as to ratification and denunciation are in the main sim- ilar. These are printed in the First Convention, articles xcii— xcvil. (Ar- ticle xciv applies particularly to the First Convention.) The articles as to ratification are omitted in the text of other conventions, unless there are clauses not generally applicable. The translation is in substance that submitted to the United States Senate by the Secretary of State in Document No. 444, 60th Congress, l.st Session, 1908. The French text is the ofiirial text, and may be found in British Parliamentary Papers, Miscellaneous, No. 1 (1908), Cd. 3857, in Supplement, American Journal of International Law, Vol. 2, Nos. 1 and 2, 1908, Scott, Texts of the Peace Conferences at The Hague, 1809 and 1907. and Higgins, The Hague Peace Conferences. Discussions of the several conventions agreed upon at The Hague in 1907 can be found in the American Journal of International Law, Vol. 2, 1908. HAGUE CONVENTIONS. 517 to the 30th June, 1908, at The Hague, by the Plenipotentiaries of the Powers represented at the Second Peace Conference. The Conference, actuated hj the spirit of mutual agreement and concession characterizing its deliberations, has agreed upon the fol- lowing Declaration, which, while reserving to each of the Powers represented full liberty of action as regards voting, enables them to affirm the principles which they regard as unanimously admitted: It is unanimous^ 1. In admitting the principle of compulsory arbitration. 2. In declaring that certain disputes. In particular those re- lating to the interpretation and application of the pro- visions of International Agreements, may be submitted to compulsory arbitration without any restriction. Finally, It is unanimous in proclaiming that, although it has not yet been found feasible to conclude a Convention in this sense, nevertheless the divergences of opinion which have come to light have not exceeded the bounds of judicial controversy, and that, by working together here during the past four months, the collected Powers not only have learnt to understand one another and to draw closer together, but have succeeded in the course of this long collab- oration in evolving a very lofty conception of the common welfare of humanity. The Conference has further unanimously adopted the following Resolution: "The Second Peace Conference confirms the Resolution adopted by the Conference of 1899 in regard to the limitation of military expenditure; and inasmuch as military expenditure has consider- ably increased in almost every country since that time, the Confer- ence declares that it is eminently desirable that the Governments should resume the serious examination of this question." It has besides expressed the following opinions: 1. The Conference calls the attention of the Signatory Powers to the advisability of adopting the annexed draft Con- vention for the creation of a Judicial Arbitration Court, and of bringing it into force as soon as an agreement has been reached respecting the selection of the Judges and the constitution of the Court. 2. The Conference expresses the opinion that, in case of war, the responsible authorities, civil as well as military, should make it their special duty to ensure and safeguard the maintenance of pacific relations, more especially of the commercial and industrial relations between the Inhab- itants of the belligerent States and neutral countries. 3. The Conference expresses the opinion that the Powers should regulate, by special Treaties, the position as re- gards military charges, of foreigners residing within their territories. 518 APPENDIX IV. 4. The Conference expresses the opinion that the preparation of regulations relative to the laws and customs of naval war should figure in the programme of the next Confer- ence, and that in any case the Powers may apply, as far as possihle, to war by sea the principles of the Convention Relative to the Laws and Customs of War on Land. Finally, the Conference recommends to the Powers the assembly of a Third Peace Conference, which might be held within a period corresponding to that which has elapsed since the preceding Con- ference, at a date to be fixed by common agreement between the Powers, and it calls their attention to the necessity of preparing the programme of this Third Conference a sufficient time in ad- vance to ensure its deliberations being conducted w'ith the necessary authority and expedition. In order to attain this object the Conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory Committee should be charged by the Governments with the task of collecting the various pro- posals to be submitted to the Conference, of ascertaining w-hut sub- jects are ripe for embodiment in an International Regulation, and of preparing a programme which the Governments should decide upon in sufficient time to enable it to be carefully examined by the countries interested. The Committee should further be intrusted with the task of proposing a system of organization and procedure for the Conference itself. In faith whereof the Plenipotentiaries have signed the present Act and have affixed their seals thereto. Done at The Hague, the 18th October, 1907, in a single copy, which shall remain deposited in the archives of the Netherland (jov- ernment, and duly certified copies of which shall be sent to all the Powers represented at the Conference. HAGUE CONVENTIONS. 519 CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES. His Majesty the German Emperor, King of Prussia ; tlie President of. tlie United States of America ; tlie President of the Argentine Re- public; His Majesty the Emperor of Austria, King of Bohemia, etc., and Apostolic King of Hungary; His Majesty the King of the Bel- gians ; the President of the Republic of Bolivia ; the President of the Republic of the United States of Brazil ; His Royal Highness the Prince of Bulgaria; the President of the Republic of Chile; His Maj- esty the Emperor of China ; the President of the Republic of Colom- bia ; the Provisional Governor of the Republic of Cuba ; Flis Majesty the King of Denmark; the President of the Dominican Republic; the President of the Republic of Ecuador ; His Majesty the King of Spain ; the President of the French Republic ; His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India; His Majesty the King of the Hellenes ; the President of the Republic of Guate- mala ; the President of the Republic of Haiti ; His Majesty the King of Italy; His Majesty the Emperor of Japan; His Royal Highness the Grand Duke of Luxemburg, Duke of Nassau ; the President of the United States of Mexico ; His Royal Highness the Prince of Montenegro; the President of the Republic of Nicaragua; His Maj- esty the King of Norway ; the President of the Republic of Panama ; the President of the Republic of Paraguay; Her ^Majesty the Queen of the Netherlands ; the President of the Republic of Peru ; His Im- perial Majesty the Shah of Persia ; His Majesty the King of Portugal and of the Algarves, etc.; His Majesty the King of Roumania ; His Majesty the Emperor of All the Russias ; the President of the Repub- lic of Salvador ; His Majesty the King of Servla ; His Majesty the King of Slam; His Majesty the King of Sweden; the Swiss Fed- eral Council ; His Majesty the Emperor of the Ottomans ; the Presi- dent of the Oriental Republic of Uruguay ; the President of the United States of Venezuela — Animated by the sincere desire to work for the maintenance of the general peace; Resolved to promote by all the efforts in their power the friendly settlement of intei'national disputes ; Recognizing the solidarity which unites the members of the society of civilized nations ; Desirous of extending the empire of law, and of strengthening the appreciation of international justice ; Convinced that the permanent institution of a Tribunal of Arbitra- 520 APPENDIX IV. tioD, accessible to all, in the midst of the independent Powers, will contribute effectively to this result; Having regard to the advantages attending the general and regular organization of the procedure of arbitration ; Sharing the opinion of the august Initiator of the International Peace Conference that it is expedient to record in an international Agreement the principles of equity and right on which are based the security of States and the welfare of peoples; Being desirous, with this object, of insuring the better working in practice of Commissions of Inquiry and Tribunals of Arbitration, and of facilitating recourse to arbitration in cases which allow of a summary procedure; Have deemed it necessary to revise in certain particulars and to complete the work of the First Peace Conference for the pacific settle- ment of international disputes. The High Contracting Parties have resolved to conclude a new Convention for this purpose, and have appointed the following as their Plenipotentiaries: [Names of Plenipotentiaries.] Who, after having deposited their full powers, found in good and due form, have agreed upon the following: TITLE I.— ON THE MAINTENANCE OF THE GENERAL PEACE. Article 1. With a view to obviating, as far as possible, recourse to force in the relations between States, the Contracting Powers agree to use their best efforts to insure the pacific settlement of international differences. TITLE II.— ON GOOD OFFICES AND MEDIATION. Art. 2. In case of serious disagreement or dispute, before an ap- peal to arms, the Contracting Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers. Art. 3. Independently of this recourse, the Contracting Powers recommend that one or more Powers, strangers to the dispute, should, on their own initiative, and as far as circumstances may allow, offer their good offices or mediation to the States at variance. Powers, strangers to the dispute, have the right to offer good offices or mediation, even during the course of hostilities. The exercise of this right can never be regarded by one or the other of the parties in conflict as an unfriendly act. Art. 4. The part of the mediator consists in reconciling the op- posing claims and appeasing the feelings of resentment which may have arisen between the States at variance. HAGUE CONVENTIONS. 521 Art. 5. The functions of the mediator are at an end when once it is declared, either by one of the parties to the dispute, or by the mediator himself, that the means of reconciliation proposed by him are not accepted. Art. 6. Good offices and mediation, either at the request of the parties at variance, or on the initiative of Powers strangers to the dispute, have exclusively the character of advice and never having binding force. Art. 7. The acceptance of mediation cannot, unless there be an agreement to the contrary, have the effect of interrupting, delaying, or hindering mobilization or other measures of preparation for v^^ar. If mediation occurs after the commencement of hostilities, it causes no interruption to the military operations in progress, unless there be an agreement to the contrary. Art. 8. The Contracting Powers are agreed in recommending the application, when circumstances allow, of special mediation in the following form: In case of a serious difference endangering the peace, the States at variance choose respectively a Power, to whom they intrust the mis- sion of entering into direct communication with the Power chosen on the other side, with the object of preventing the rupture of pacific relations. For the period of this mandate, the term of which, unless otherwise stipulated, cannot exceed thirty days, the States in conflict cease from all direct communication on the subject of the dispute, which is re- garded as referred exclusively to the mediating Powers, who must use their best efforts to settle it. In case of a definite rupture of pacific relations, these Powers are charged with the joint task of taking advantage of any opportunity to restore peace. TITLE III.— ON INTERNATIONAL COMMISSIONS OF INQUIRY. Art. 9. In differences of an international nature involving neither honor nor vital interests, and arising from a difference of opinion on points of fact, the Contracting Powers deem it expedient and desirable that the parties, who have not been able to come to an agreement by means of diplomacy, should as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation. Art. 10. The International Commissions of Inquiry are constituted by special agreement between the parties in conflict. The Convention for an inquiry defines the facts to be examined ; it determines the mode and time in which the Commission is to be formed and the extent of the Commissioners' powers. It also determines, if there is need, where the Commission is to sit ; and whether it may remove to another place, the language the Com- 522 APPENDIX IV. mission shall use and the languages the use of which shall be au- thorized before it. as well as the date on which each party must de- posit its statement of facts, and, generally speaking, all the condi- tions upon which the parties have agreed. If the parties consider it necessary to appoint Assessors, the Con- vention of Inquiry shall determine the mode of their selection and the extent of their powers. Art. 11. If the Inquiry Convention has not determined where the Conunission is to sit, it will sit at The Hague. The place of meeting, once fixed, cannot be altered by the Com- mission except with the assent of the parties. If the Inquiry Convention has not determined what languages are to be employed, the question shall be decided by the Conunission. Art. 12. Unless an undertaking is made to the contrary, Commis- sions of Inquiry will be formed in the manner determined by Arti- cles 4.J and 57 of the present Convention. Art. 13. Should one of the Commissioners or one of the Assessors, should there be any. either die, or resign, or be unable for any reason whatever to discharge his functions, the same procedure is followed for filling the vacancy as was followed for appointing him. Art. 14. The parties are entitled to appoint special agents to at- tend the Commission of Inquiry, whose duty it is to represent them and to act as intermediaries between them and the Commission. They are further authorized to engage counsel or advocates, ap- pointed by themselves, to state their case and uphold their interests before the Commission. Art. 15. The International Bureau of the Permanent Court of Arbitration acts as registry for the Commissions which sit at The Hague, and it shall place its ottices and staff at the disposal of the Contracting Powers for the rise of the Commission of Inquiry. Art. 16. If the Commission meets elsewhere than at The Hague, it appoints a Secretary-General, whose office serves as registry. It is the function of the registry, under the control of the President, to make the necessary arrangements for the sittings of the Commis- sion, the preparation of the Minutes, and, while the inquiry lasts, for the charge of the archives, which shall subsequently be transferred to the International Bureau at The Hague. Art. 17. In order to facilitate the constitution and working of Commissions of Inquiry, the Contracting Powers recommend the following rules, which shall be applicable to the inquiry procedure in so far as the parties do not adopt other rules. Art. 18. The Commission shall settle the details of the procedure not covered by the special Inquiry Convention or the present Con- vention, and shall arrange all the formalities required for dealing with the evidence. Art. 19. On the inquiry both sides must be heard. At the dates fixed, each party communicates to the Commission and to the other party the statements of facts, if any, and, in all cases, HAGUE CONVENTIONS. 523 the Instruments, papers, and documents which it considers useful for ascertaining the truth, as well as the list of witnesses and experts whose evidence it wishes to be heard. Art. 20. The Commission is entitled, with the assent of the Pow- ers, to move temporarily to any place where it considers it may be useful to have recourse to this means of inquiry or to send one or more of its members. Permission must be obtained from the State on whose territory it is proposed to hold the inquiry. Art. 21. Every investigation, and every examination of a locality, must be made in the presence of the agents and counsel of tlie parties or after they have been duly summoned. Art. 22. The Commission is entitled to ask from either party for such explanations and information as it considers necessary. Art. 23. The parties undertake to supply the Commission of In- quiry, as fully as they may think possible, with all means and facili- ties necessary to enable it to become completely acquainted with, and to accurately understand, the facts in question. They undertake to make use of the means at their disposal, under their municipal law, to insure the appearance of the witnesses or ex- perts who are in their territory and have been summoned before the Commission. If the witnesses or experts are unable to appear before the Com- mission, the parties will arrange for their evidence to be taken before the qualified officials of their own country. Art. 24. For all notices to be served by the Commission in the ter- ritory of a third Contracting Power, the Commission shall apply direct to the Government of the said Power. The same rule applies in the case of steps being taken on the spot to procure evidence. The requests for this purpose are to be executed so far as the means at the disposal of the Power applied to under its municipal law allow. They cannot be rejected unless the Power in question considers they are calculated to impair its sovereign rights or its safety. The Commission will equally be always entitled to act through the Power on whose territory it sits. Art. 25. The witnesses and experts are summoned on the request of the parties or by the Commission of its own motion, and, in every case, through the Government of the State in whose territory they are. The witnesses are heard in succession and separately, in the pres- ence of the agents and counsel, and in the order fixed by the Commis- sion. Art. 26. The examination of witnesses is conducted by the Pres- ident. The members of the Commission may however put to each witness questions which they consider likely to throw light on and complete his evidence, or get information on any point concerning the witness within the limits of what is necessary in order to get at the truth. 624 APPENDIX IV. The agents and counsel of the parties may not interrupt the witness when he is making his statements ; nor put any direct question to him, but they may ask the President to put such additional questions to the witness as they think expedient. Art. 27. The witness must give his evidence without being allowed to read any written draft. He may, however, be permitted by the President to consult notes or documents if the nature of the facts referred to necessitates their employment. Art. lis. A Minute of the evidence of the witness is drawn up fortli- with and read to the witness. The latter may make such alterations and additions as he thinks necessary, which will be recorded at the end of his statement. When the whole of his statement has been read to the witness, be is asked to sign it. Art. 29. The agents are authorized, in the course of or at the close of the inquiry, to present in writing to the Commission and to the other party such statements, requisitions, or summaries of the facts as they consider useful for ascertaining the truth. Art. 30. The Commission considers its decisions in private and the proceedings are secret. All questions are decided by a majority of the members of the Com- mission. If a member declines to vote, the fact must be recorded in the Minutes. Art. 31. The sittings of the Commission are not public, nor the Minutes and documents connected with the inquiry published except in virtue of a decision of the Commission taken with the consent of the parties. Art. 32. After the parties have presented all the explanations and evidence, and the witnesses have all been heard, the President de- clares the inquiry terminated, and the Commission adjourns to delib- erate and to draw up its Report. Art. 33. The Report is signed by all the members of the Commis- sion. If one of the members refuses to sign, the fact is mentioned ; but the validity of the Report is not affected. Art. 34. The Report of the Commission is read at a public sitting, the agents and counsel ot the parties being present or duly sum- moned. A copy of the Report is given to each party. Art. 35. The Report of the Commission is limited to a statement of facts, and has in no way the character of an Award. It leaves to the parties entire freedom as to the effect to be given to the statement. Art. 36. Each party pays its own expenses and an equal share of the expenses incurred by the Commission. HAGUE CONVENTIONS. 525 TITLE IV.— ON INTERNATIONAL ARBITRATION. Chapteb I. — On the System of Arbitration. Art. 37. International arbitration has for its object the settlement of disputes between States by judges of their own choice, and on the basis of respect for law. Recourse to arbitration implies an engagement to submit in good faith to the Award. Art. 38. In questions of a legal nature, and especially in the in- terpretation or application of International Conventions, arbitration is recognized by the Contracting Powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle. Consequently, it would be desirable that, in disputes about the above-mentioned questions, the Contracting Powers should, if the case arose, have recourse to arbitration, in so far as circumstanoes permit. Art. 39. The Arbitration Convention is concluded for questions already existing or for questions which may arise eventually. It may embrace any dispute or only disputes of a certain category. Art. 40. Independently of general or private Treaties expressly stip- ulating recourse to arbitration as obligatoi-y on the Contracting Powers, the said Powers reserve to themselves the right of conclud- ing new Agreements, general or private, with a view to extending obligatory arbitration to all cases which they may consider it pos- sible to submit to it. Chapter II. — On the Permanent Court of Arbitration. Art. 41. With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been pos- sible to settle by diplomacy, the Contracting Powers undertake to maintain the permanent Court of Arbitration, established by the First Peace Conference accessible at all times and operating, unless other- wise stipulated by the parties, in accordance with the Rules of Pro- cedure inserted in the present Convention. Art. 42. The Permanent Court shall be competent for all arbitra- tion cases, unless the parties agree to institute a special Tribunal. Art. 43. The Permanent Court sits at The Hague. An International Bureau serves as registry for the Court. This Bureau is the channel for communications relative to the meet- ings of the Court. It has the custody of the archives and conducts all the administra- tive business. The Contracting Powers undertake to communicate to the Bureau as soon as possible a certified copy of any conditions of arbitration 526 APPKXDIX IV. ai'rivod at between them, and of any award concerning them delivered by a special Tribunal. They undertake likewise to comnuuiieate to the Bureau the Laws. Regulations, and documents eventually showing the execution of the awards given by the Court. Art. 44. Each Singatory Power shall select four persons at the most, of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbi- trators. The persons thus selected shall be inscribed, as members of the Court, in a list which shall be notified by the Bureau to all the Con- tracting Powers. Any alteration in the list of Arbitrators is brought by the Bureau to the knowledge of the Contracting Powers. Two or more Powers may agree on the selection in common of one or more Members. The same person can be selected by different Powers. The Members of the Court are api)ointed for a term of six year.s. Their appointments can be renewable. In case of the death or retirement of a member of the Court, his place shall be filled in accordance with the method of his appoint- ment. In this case the appointment is made for a fresh period of six years. Art. 45. When the Contracting Powers desire to have recourse to the Permanent Court for the settlement of a difference that has arisen between them, the Arbitrators called upon to form the Tri- bunal with jurisdiction to decide this difference, must be chosen from the general list of members of the Court. Failing the direct agreement of the parties on the composition of the Arbitration Tribunal, the following course shall be pursued: Each party appoints two Arbitrators, of whom one only can be its national or chosen from among the persons selected by it as members of the Permanent Court. These Arbitrators together choose an Um- pire. If the votes are equally divided, the choice of the Umpire is in- trusted to a third Power, selected by the parties by common accord. If an agreement is not arrived at on this subject, each party selects a different Power, and the choice of the Umpire is made in concert by the Powers thus selected. If, within two months' time, these two Powers cannot come to an agreement, each of them presents two candidates taken from the list of members of the Permanent Coiirt, exclusive of the members selected by the parties and not being nationals of either of them. Drawing lots determines which of the candidates thus presented shall be Um- pire. Art. 4G. The Tribunal being thus composed, the parties notify to the Bureau their determination to have recourse to the Court the text of their "Compromis" and the names of the Arbitrators. HAGUE CONVENTIONS. 527 The Bureau communicates without delay to each Arbitrator the "Compromis," and the names of the other members of the Tribunal. The Tribunal of Arbitration assembles on the date fixed by the par- ties. The Bureau makes the necessary arrangements for the meeting. The Members of the Court, in the discharge of their duties and out of their own country, enjoy diplomatic privileges and immunities. Art. 47. The Bureau is authorized to place its offices and staff at the disposal of the Contracting Powers for the use of any special Board of Arbitration. . The jurisdiction of the Permanent Court may, within the conditions laid down in the Regulations, be extended to disputes between non- Contracting Powers, or between Contracting Powers and non-Con- tracting Powers, if the Parties are agreed on recourse to this Tri- bunal. Art. 48. The Contracting Powers consider it their duty, if a seri- ous dispute threatens to break out between two or more of them, to remind these latter that the Permanent Court is open to them. Consequently, they declare that the fact of reminding the parties at variance of the provisions of the present Convention, and the ad- vice given to them, in the highest interests of peace, to have recourse to the Permanent Court, can only be regarded as friendly actions. In case of dispute between two Powers, one of them can always address to the International Bureau a note containing a declaration that it would be ready to submit the dispute to arbitration. The Bureau must at once inform the other Power of the declara- tion. Art. 49. The Permanent Administrative Council, composed of the Diplomatic Representatives of the Contracting Powers accredited to The Hague and of the Netherland Minister for Foreign AfCairs, who will act as President. The Council settles its Rules of Procedure and all other necessary Regulations. It decides all questions of administration which may arise with re- gard to the operations of the Court. It has entire control over the appointment, suspension or dismissal of the officials and employes of the Bureau. It fixes the payments and salaries, and controls the general expendi- ture. At meetings duly summoned the presence of nine members is suf- ficient to render valid the discussions of the Council. The decisions are taken by a majority of votes. The Council communicates to the Contracting Powers without de- lay the Regulations adopted by it. It furnishes them with an annual Report on the labors of the Court, the working of the administration, and the expenses. The Report likewise contains a resume of what is important in the documents communicated to the Bureau by the Powers in virtue of Article 43, paragraphs 3 and 4. Art. 50. The expenses of the Bureau shall be borne by the Con- 528 APPENDIX IV. tracting Powers in the proportion fixed for the International Bureau of the Universal Postal Union. The expenses to be charged to the adhering Powers shall be reck- oned from the date on which their adhesion comes into force. Chapter III. — On Arbitral Procedure. Art. 51. With a view to encourage the development of arbitration, the Contracting Powers have agreed on the following Rules which shall be applicable to arbitral procedure, unless other rules have been agreed on by the parties. Art. 52. The Powers which have recourse to arbitration sign a special Act ("Compromis"), in which the subject of the dispute Is clearly defined, the time allowed for appointing Arbitrators, the form, order, and time in which the communication referred to in Ar- ticle 63 must be made, and the amount of the sum which each party must deposit in advance to defray the expenses. The "Compromis" likewise defines, if there is occasion, the manner of appointing Arbitrators, any special powers which may eventually l)flong to the Tribunal, where it shall meet, the language it shall use, and the languages the employment of which shall be authorized before it, and, generally speaking, all the conditions on which the parties are agreed. Art. 53. The Permanent Court is competent to settle the "Com- [)romis," if the parties are agreed to have recourse to it for the pur- pose. It is similarly competent, even if the request is only made by one of the parties, when all attempts to reach an understanding through the diplomatic channel have failed, in the case of: 1. A dispute covered by a general Treaty of Arbitration concluded or renewed after the present Convention has come into force, and pro- viding for a "Compromis" in all disputes and not either explicitly or implicitly excluding the settlement of the "Compromis" from the competence of the Court. Recourse cannot, however, be had to the Court if the other party declares that in its opinion the dispute does not belong to the category of disputes which can be submitted to com- pulsory arbitration, imless the Treaty of Arbitration confers upon the Arbitration Tribunal the power of deciding this preliminary question. 2. A dispute arising from contract debts claimed from one Pow- er by another Power as due to its nationals, and for the settlement of which the offer of arbitration has been accepted. This arrange- ment is not applicable if acceptance is subject to the condition that the "Compromis" should be settled in some other way. Art. 54. In the cases contemplated in the preceding Article, the "Compromis" shall be settled by a Commission consisting of five members selected in the manner arranged for in Article 45, para graphs 3 to 6. The fifth member is President of the Commission ex officio. HAGUE CONVENTIONS. 529 Art. 55. The dutiss of Arbitrator may be conferred on one Arbi- trator alone or on several Arbitrators selected by the parties as they please, or chosen by them from the members of the Permanent Court of Arbitration established by the present Convention. Failing the constitution of the Tribunal by direct agreement be- tween the parties, the course referred to in Article 45, paragraphs 3 to 6, is followed. Art. 5G. When a Sovereign or the Chief of a State is chosen as Arbitrator, the arbitral procedure is settled by him. Art. 57. The Umpire is President of the Tribunal ex officio. When the Tribunal does not include an Umpire, it appoints its own President Art. 58. When the "Compromis" is settled by a Commission, as contemplated in Article 54, and in the absence of an agreement to the contrary, the Commission itself shall form the Arbitration Tri- bunal. Art. 59. In case of the death, retirement, or disability from any cause of one of the Arbitrators, his place shall be filled in accord- ance with the method of his appointment. Art. 60. The Tribunal sits at The Hague, unless some other place is selected by the parties. The Tribunal can only sit in the territory of a third Power with the latter's consent. The place of meeting once fixed cannot be altered by the Tribunal, except with the consent of the parties. Art. 61. If the question as to what languages are to be used has not been settled by the "Compromis," it shall be decided by the Tribunal. Art. 62. The parties are entitled to appoint special agents to at- tend the Tribunal, for the purpose of serving as intermediaries be- tween themselves and the Tribunal. They are further authorized to retain, for the defense of their rights and interests before the Tribunal, counsel or advocates ap- pointed by them for this purpose. The members of the Permanent Court may not act as agents, coun- sel, or advocates except on behalf of the Power which appointed them members of the Court. Art. 63. As a general rule the arbitral procedure comprises two distinct phases: Pleadings and oral discussions. The pleadings consist in the communication by the respective agents to the members of the Tribunal and the opposite party of cases, counter-cases, and, if necessary, of replies; the parties an- nex thereto all papers and documents called for in the case. This communication shall be made either directly or through the inter- mediary of the International Bureau, in the order and within the time fixed by the "Compromis." WiLS.lNT.L.— 34 530 APPENDIX IV. The time fixed by the "Couipromis" may be extended by mutual agreement by the parties, or by the Tribunal when the latter con- sidei's it necessary for the purpose of reachhig a just decision. Discussion consists in the oral development before the Tribunal of the arguments of the parties. Art. G4. A certified copy of every document produced by one party must be communicated to the other party. Art. 65. Unless special circumstances arise, the Tribunal does not meet until the pleadings are closed. Art. 66. The discussions are under the control of the President. They are only public if it be so decided by the Tribunal, with the assent of the parties. They are recorded in minutes drawn up by the Secretaries ap- pointed by the President. These minutes are signed by the Presi- dent and by one of the Secretaries and alone have an authentic character. Art. 67. After the close of the pleadings, the Tribunal has the right to refuse discussion of all new papers or documents which one party may desire to submit to it without the consent of the other party. Art. 68. The Tribunal is free to take into consideration new pa- pers or documents to which its attention may be drawn by the agents or counsel of the parties. In this case, the Tribunal has the right to require the production of these Acts or documents, but is obliged to make them known to the opposite party. Art. 69. The Tribunal can, besides, require from the agents of the parties the production of all papers, and can demand all necessary explanations. In case of refusal, the Tribunal takes note of it. Art. 70. The agents and the counsel of the parties are authorized to present orally to the Ti-ibunal all the arguments they may think expedient in defense of their case. Art. 71. They are entitled to raise objections and points. The de- cisions of the Tribunal on those points are final, and cannot form the subject of any subsequent discussion. Art. 72. The members of the Tribunal are entitled to put questions to the agents and counsel of the parties, and to demand explanations from them on doubtful points. Neither the questions put nor the remarks made by members of the Tribunal during the discussions can be regarded as an expres- sion of opinion by the Tribunal in general, or by its members in particular. Art. 73. The Tribunal is authorized to declare its competence In interpreting the "Compromis" as well as the other acts and docu- ments which may be invoked in the case, and in applying the princi- ples of law. Art. 74. The Tribunal is entitled to issue Rules of Procedure for the conduct of the case to decide the forms, order and time in which HAGUE CONVENTIONS. 531 each party must conclude its arguments, and to arrange all the for- malities required for dealing with the evidence. Art. 77. When the agents and counsel of the parties have sub- mitted all explanations and evidence in support of their case, the President pronounces the discussion closed. Art. 78. The deliberations of the Tribunal take place in private and the proceedings remain secret. Every decision is taken by a majority of members of the Tribunal. Art. 79. The award, given by a majority of votes, is accompanied by a statement of reasons. It contains the names of the Arbitrators; it is signed by the President and Registrar or by the Secretary act- ing as Registrar. Art. SO. The award is read out at a public meeting of the Tri- bunal, the agents and counsel of the parties being present, or duly summoned to attend. Art. 81. The award, duly pronounced and notified to the agents of the parties, puts an end to the dispute definitely and without ap- peal. Art. 82. Any dispute arising between the parties as to the inter- pretation and execution of the Award shall, in the absence of an Agreement to the contrary, be submitted to the Tribunal which pro- nounced it. Art. 83. The parties can reserve in the "Compromis" the right to demand the revision of the award. In this case, and unless there be an agreement to the contrary, the demand must be addressed to the Tribunal which pronounced the award. It can only be made on the ground of the discovery of some new fact calculated to exercise a decisive influence on the award, and which, at the time the discussion was closed, was un- known to the Tribunal and to the party demanding the revision. Proceedings for revision can only be instituted by a decision of the Tribunal expressly recording the existence of the new fact, rec- ognizing in it the character described in the foregoing paragraph, and declaring the demand admissible on this ground. The "Compromis" fixes the period within which the demand for revision must be made. Art. 84. The award is not binding except on the parties in dispute. When there is a question of interpreting a Convention to which Powers other than those concerned in the dispute are parties, they shall inform all the Signatory Powers in good time. Each of these Powers has the right to intervene in the case. If one or more of them avail themselves of this right, the interpretation contained in the award is equally binding on them. Art. 85. Each party pays its own expenses and an equal share of those of the Tribunal. 532 APPENDIX IV. Chapter IV. — Arbitration by Summary Procedube. Art. 86. With a view to facilitating the worliing of the system of arbitration in disputes admitting of a summary procedure, the Con- tracting Powers adopt the following rules, which shall be observed in the absence of other arrangements and subject to the reservation that the provisions of Chapter III apply so far as may be. Art. 87. Each of the parties in dispute appoints an Arbitrator. The two Arbitrators thus selected choose an Umpire. If they do not agree on this point, each of them proposes two candidates taken from the general list of the members of the Permanent Court ex- clusive of the members appointed by either of the parties and not being nationals of either of them; Avhich of the candidates thus proposed shall be the Umpire is determined by lot. The Umpire presides over the Tribunal, which gives its decisions by a majority of votes. Art. 88. In the absence of any previous agreement the Tribunal, as soon as it is formed, settles the time within which the two par- ties must submit their respective cases to it. Art. 89. Each party is represented before the Tribunal by an agent, who serves as intermediary between the Tribunal and the Government who appointed him. Art. 90. The proceedings are conducted exclusively in writing. Each party, however, is entitled to ask that witnesses and experts should be called. The Tribunal has, for its part, the right to de- mand oral explanations from the agents of the two parties, as well as from the experts and witnesses whose appearance in Court it may consider useful. General Provisions. Art. 91. The present Convention, duly ratified, shall replace, as between the Contracting Powers, the Convention for the Pacific Settlement of International Disputes of the 29th July, 1899. Art. 92. The present Convention shall be ratified as speedily as possible. The ratifications shall be deposited at The Hague. The first deposit of ratifications shall be recorded in a proces- verbal signed by the Representatives of the Powers which take part therein and by the Netherland Minister for Foreign Affairs. The subsequent deposits of ratifications shall be made by means of a written notification, addressed to the Netherland Government and accompanied by the instrument of ratification. A duly certified copy of the proces-verbal relative to the first de- posit of ratifications, of the notifications mentioned in the preceding paragraph, and of the instruments of ratification, shall be immedi- ately sent by the Netherland Government, through the diplomatic HAGUE CONVENTIONS. 533 channel, to the Powers invited to the Second Peace Conference, as well as to those Powers which have adhered to the Convention. In the cases contemplated in the preceding paragraph, the said Gov- ernment shall at the same time inform the Powers of the date on which it received the notification. Art. 93. The non-Signatory Powers which have been invited to the Second Peace Conference may adhere to the present Conven- tion. The Power which desires to adhare notifies its intention in writ- ing to the Netherland Government, forwarding to it the act of adhe- sion, which shall be deposited in the archives of the said Govern- ment. This Government shall immediately forward to all the other Pow- ers invited to the Second Peace Conference a duly certified copy of the notification as well as of the act of adhesion, mentioning the date on which it received the notification. Art. 94. The conditions on which the Powers which have not been invited to the Second Peace Conference may adhere to the present Convention shall form the subject of a subsequent Agreement be- tween the Contracting Powers. Art. 95. The present Convention shall take effect, In the case of the Powers which were not a party to the first deposit of ratifica- tions, sixty days after the date of the proces-verbal of this deposit, and, in the case of the Powers which ratify subsequently or which adhere, sixty days after the notification of their ratification or of their adhesion has been received by tlie Netherland Government. Art. 96. In the event of one of the Contracting Parties wishing to denounce the present Convention, this denunciation would not take effect until a year after its notification made in writing to the Netherlands Government, and by it communicated at once to all the other Contracting Powers. This denunciation shall only affect the notifying Power. Art. 97. A register kept by the Netherland Minister for Foreign Affairs shall give the date of the deposit of ratifications effected in virtue of Article 92, paragraphs 3 and 4, as well as the date on which the notifications of adhesion (Article 93, paragraph 2) or of denunciation (Article 9G, paragraph 1) have been received. Each Contracting Power is entitled to have access to this register and to be supplied with duly certified extracts from it. In faith whereof the Plenipotentiaries have appended their signa- tures to the present Convention. Done at The Hague, the 18th October, 1907, in a single copy, which shall remain deposited in the archives of the Netherland Government, and duly certified copies of which shall be sent, through the diplomatic channel, to the Contracting Powers. 534 APPENDIX IV. Resolution of Ratification of the Convention for the Pacific Settlement of International Disputes. Signed at The Hague, 1907. April 2, 1908. Resolved (two-thirds of the Senators present concurring therein), Tliat the Senate advise and consent to the ratification of a convention signed by the delegates of the United States to the Second International Peare Conference, held at The Hague from .Tune sixteenth to October eighteenth, nineteen hundred and seven, for the pacific settlement of international dis- putes, subject to the declaration made by the delegates of the United States before signing said convention, namely: ''Nothing contained in this convention shall be so construed as to re- quire the United States of America to depart from its ti-aditional policy of not intruding upon, interfering with, or entangling itself in the polit- ical questions of policy or internal administration ot: any foreign state; nor shall anything contained in the said ccnvention be construed to im- ply a relinquishment by the United States of its traditional attitude to- ward purely American questions." Resolved further, as a part of this act of ratification. That the United States approves this convention with the understanding that recourse to the permanent court for the settlement of diflf^rences can be had only by agreement thereto through general or special treaties of arbitration here- tofore or hereafter concluded between the parties in dispute ; and the United States now exercises the option contained in article fifty-three of said convention, to exclude the fonnulation of the "compromis" by the permanent court, and hereby excludes from the competence of the per- manent court the power to frame the "compromis"' required by general or special treaties of arbitration concluded or hereafter to be concluded b.v the United States, and further expressly declares that the "compromis" required by any treaty of arbitration to which the United States may be a party shall be settled only by agreement between the contracting par- ties, unless such treaty shall expressly provide otherwise. HAGUE CONVENTIONS. 535 CONVENTION RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND. [Names of 'States.] Considering that, while seeking means to preserve peace and pre- vent armed conflicts between nations, it is likewise necessary to bear in mind the case where the appeal to arms has been brought about by events which their care was unable to avert. Animated by the desire to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civiliza- tion, Thinking it important, with this object, to revise the general laws and customs of war, either with a view to defining them more precisely, or to confining them within such limits as would mitigate their severity as far as possible. Have deemed it necessary to complete and explain in certain par- ticulars the work of the First Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a wise and generous forethought, adopted provisions intended to define and govern the usages of war on land. According to the views of the High Contracting Parties, these pro- visions, the wording of which has been inspired by the desire to diminish the evils of war as far as military necessities permit, are intended to serve as a general rule of conduct for the belligerents in their relations with each other and with the inhabitants. It has not, however, been found possible at present to concert regulations covering all the circumstances which occur in practice. On the other hand, it could not be intended by the High Con- tracting Parties that the unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military Commanders. Until a more complete code of the laws of war has been issued the High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabit- ants and the belligerents remain under the protection and the rule of the principles of international law, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. They declare that it is in this sense especially that Articles 1 and 2 of the Regulations adopted must be understood. The High Contracting Parties, desiring to conclude a fresh Con- vention to this effect, have appointed as their Plenipotentiaries, to wit: 536 APPENDIX IV. [Names of Plenipotentiaries.] Wlio, after having deposited their full powers, found In good and due form, have agreed upon the following: Article 1. The Contracting Parties shall issue instructions to their armed land forces, which shall be in conformity with the Regula- tions Respecting the Laws and Customs of War on Laud, annexed to the present Convention. Art. 2. The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except bet\A-een Contracting Powers, and then only if all the belligerents are parties to the Convention. Art. 3. A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay com- pensation. It shall be responsible for all acts committed by persons forming part of its armed forces. Art. 4. The present Convention duly ratified, shall as between the Contracting Powers, be substituted for the Convention of the 29th July, 1899, Respecting the Laws and Customs of War on Land. The Convention of 1899 remains in force as between the Powers which signed it, and which do not also ratify the present Conven- tion. Art. 5. The present Convention shall be ratified as soon as possible. The ratifications shall be deposited at The Hague. The first deposit of ratifications shall be recorded in a proc6s- verbal signed by the Representatives of the Powers which take part therein and by the Netherland Minister for Foreign Affairs. The subsequent deposits of ratifications shall be made by means of a written notification, addressed to the Netherland Government and accompanied by the instrument of ratification. A duly certified copy of the proces-verbal relative to the first de- posit of ratifications, of the notifications mentioned in the preceding paragraph, as well as of the instruments of ratification, shall be immediately sent by the Netherland Government, through the diplo- matic channel, to the Powers invited to the Second Peace Conference, as well as to the other Powers which have adhered to the Conven- tion. In the cases contemplated in the preceding paragraph the said Government shall at the same time inform them of the date on which it received the notification. Art. 6. Non-Signatory Powers may adhere to the present Conven- tion. The Power which desires to adhere notifies in writing its inten- tion to the Netherland Government, forwarding to it the act of ad- hesion, which shall be deposited in the archives of the said Gov- ernment. This Government shall at once transmit to all the other Powers a duly certified copy of the notification as well as of the act of ad- hesion, mentioning the date on which it received the notification. HAGUE CONVENTIONS. 537 Art. 7. The present Convention shall come into force, In the case of the Powers which were a party to the first deposit of ratifications sixty days after the date of the procr'S-verbal of this deposit, and, in the case of the Powers which ratify subsequently or which ad- here, sixty days after the notification of their ratification or of their adhesion has been received by the Netherland Government. Art. 8. In the event of one of the Contracting Parties wishing to denounce the present Convention, the denunciation shall be notified in writing to the Netherland Government w^hich shall at once com- municate a duly certified copy of the notification to all the other Powers, informing them of the date on which it was received. The denunciation shall only have effect in regard to the notifying Power, and one year after the notification has reached the Nether- land Government. Art. 9. A register kept by the Netherland Ministry for Foreign Af- fairs shall give the date of the deposit of ratifications made in vir- tue of Article 5, paragraphs 3 and 4, as well as the date on which the notifications of adhesion (Article 6, paragraph 2) or of denuncia- tion (Article 8, paragraph 1) were received. Each Contracting Power is entitled to have access to this register and to be supplied with duly certified extracts. In faith whereof the Plenipotentiaries have appended their signa- tures to the present Convention. Done at The Hague, the 18th October, 1907, in a single copy, which shall remain deposited in the archives of the Netherland Govern- ment, and duly certified copies of which shall be sent, through the diplomatic channel, to the Powers which have been invited to the Second Peace Conference. Annex to the Conventiotst. Regulations Respecting the Laivs and Customs of War on Land. SECTION I.— ON BELLIGERENTS. OhA-PTeb I. — On the Qualifications of Belligerents. Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, fulfilling the follow- ing conditions: 1. To be commanded by a person responsible for his subordinates- 2. To have a fixed distinctive emblem recognizable at a distance 538 APPENDIX IV. 3. To carry arms openly; aud 4. To conduct their operations in accordance -with the laws and customs of war. In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army." Art. 2. The population of a territory which has not been occupied who, on the enemy's apin'oach, spontaneously take up arms to resist the Invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded a belligerent if they carry arms openly and if they respect the laws and customs of war. Art. 3. The armed forces of the belligerent parties may consist of combatants and noncombatants. In case of capture by the enemy both have a right to be treated as prisoners of war. Ohaptep. II. — On Prisoners of Wab. Art. 4. Prisoners of war are in the power of the hostile Govern- ment, but not in that of the individuals or coi-ps who captured them. They must be humanely treated. All their personal belongings, except arms, horses, and military pa- pers, remain their property. Art. 5. Prisoners of war may be interned in a town, fortress, camp, or any other locality, and bound not to go beyond certain fixed limits; but they cannot be confined except as an indispensable measure of safety and only while the circumstances which necessi- tate the measure continue to exist. Art. 6. The State may utilize the labor of prisoners of war ac- cording to their rank and aptitude, oflicers excepted. Their tasks shall not be excessive, and shall have nothing to do with the military operations. Prisoners may be authorized to work for the Public Service, for private persons, or on their own account. Work done for the State shall be paid for according to the rates in force for soldiers of the national army employed on similar tasks, or, if there are none in force, at a rate according to the work ex- ecuted. When the work is for other branches of the Public Service or for private persons, the conditions shall be settled in agreement with the military authorities. The wages of the prisoners shall go towards improving their posi- tion, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenance. Art. 7. The Government into whose hands prisoners of war have fallen is bound to maintain them. Failing a special agreement between the belligerents, prisoners of war shall be treated as regards food, quarters, and clothing, on the same footing as the troops of the Government which has captured them. HAGUE CONVENTIONS. 539 Art 8. Prisoners of war shall be sul)ject to the laws, regulations, and orders in force in the army of the State into whose hands they have fallen. Any act of insubordination warrants the adoption, as regards them, of such measures of severity as may be necessary. I'^scaped prisoners, recaptured before they have succeeded in re- joining their army or before quitting the territory occupied by the array that captured them, are liable to disciplinary punishment. Prisoners who after succeeding in escaping are again taken prison- ers, are not liable to any punishment for the previous flight. Art. 9. Every prisoner of war, if questioned, is bound to declare his true name and rank, and if he disregards this rule, he is liable to a curtailment of the advantages accorded to the prisoners of war of his class. Art. 10. Prisoners of war may be set at libertj^ on parole if the laws of their country authorize it, and, in such a case, they are bound, on their personal honor, scrupulously to fulfill, both as re- gards their own Government and the Government by whom they were made prisoners, the engagements they have contracted. In such cases, their own Government shall not require of nor ac- cept from them any seiwice incompatible Avith the parole given. Art. 11. A prisoner of war cannot be forced to accept his liberty on parole; similarly the hostile Government is not obliged to assent to the prisoner's request to be set at liberty on parole. Art. 12. Any prisoner of war, who is liberated on parole and re- captured, bearing ai'ms against the Government to whom he had pledged his honor, or against the allies of that Government, forfeits his right to be treated as a prisoner of war, and can be brought be- fore the Courts. Art. 13. Individuals who follow an army without directly belong- ing to it, such as newspaper correspondents and reporters, sutlers, contractors, who fall into the enemy's hands, and whom the latter think fit to detain, have a right to be treated as prisoners of war, provided they can produce a certificate from the military authori- ties of the army they were accompanying. Art. 14. A Bureau for information relative to prisoners of war is instituted, on the commencement of hostilities, in each of the bel- ligerent States, and when necessary, in the neutral countries on whose territory belligerents have been received. This Bureau is in- tended to answer all inquires about prisoners of war, and is fur- nished by the various services concerned with all the necessary in- formation to enable it to keep an individual return for each prisoner of war. It is kept informed of internments and changes, releases on parole, exchanges, as well as of admissions into hospitals and deaths. The office must state in this return the regimental number, name and surname, age, place of origin, rank unit, wounds, date and place of capture, internment, wounding and death, as well as any ob- servations of a special character. The individual return shall be 540 APPENDIX IV. sent to the Government of the other belligerent after the conclu- sion of peace. It is also tiie duty of the Information Bureau to receive and col- lect all objects of personal use, valuables, letters, etc., found on the battlefields or left by prisoners who have been released on parole, or exchanged; or who have escaped or died in hospital or ambulance, and to transmit them to those interested. Art. 15. Relief Societies for prisoners of war, which are properly constituted in accordance with the law of the country with the ob- ject of serving as the intermediary for charity, shall receive from the belligerents for themselves and their duly accredited agents every facility, within the bounds of military requirements and Ad- ministrative Regulations for the effective accomplishment of their humane task. Delegates of these Societies^ may be admitted to the places of internment for the distribution of relief, as also to the halt- ing places of repatriated prisoners, if furnished with a personal per- mit by the military authorities, ifad on giving an engagement in writing to comply with all their Regulations for order and police. Art. 16. The Information Bureau shall have the privilege of free postage. Letters, money orders, and valuables, as well as postal parcels destined for the prisoners of war or dispatched by them, shall be free of all postal duties both in the countries of origin and destination, as well as in those they pass through. Gifts and relief in kind for prisoners of war shall be admitted free of all duties of entry and others, as well as of payments for carriage by the State railways. Art. 17. Officers taken prisoners shall receive the same rate of pay as officers of corresponding rank in the country where they are de- tained, the amount to be ultimately refunded by their own Govern- ment. Art. 18. Prisoners of war shall enjoy complete liberty in the exer- cise of their religion, including attendance at their own church services, provided only they comply with the regulations for order and police issued by the military authorities. Art. 19. The wills of prisoners of war are received or drawn up on the same conditions as for soldiers of the National Army. The same rules shall be observed regarding death certificates, as well as for the burial of prisoners of war, due regard being paid to their grade and rank. Art. 20. After the conclusion of peace, tfie repatriation of prison- ers of war shall take place as speedily as possible. Chapter III. — On the Sick and Wounded. Art 21. The obligations of belligerents with regard to the sick and wounded are governed by the Geneva Convention of the 22d August, 1S64, subject to any modifications which may be introduced into it HAGUB CONVENTIONS. 541 SECTION II.— ON HOSTILITIES. Chapteb I. — On Means of Injuring the Enemy, Sieges, and Bom- bardments. Art. 22. The right of belligerents to adopt means of injuring the enemy is not unlimited. Art. 23. Besides the prohibitions provided by special Conventions, it is especially prohibited: (a) To employ poison or poisoned arms; (b) To kill or wound treacherously individuals belonging to the hostile nation or army; (c) To kill or wound an enemy w^ho, having laid down arms, or having no longer means of defense, has surrendered at discretion; (d) To declare that no quarter will be given; (e) To employ arms, projectiles, or material of a nature to cause superflous injury; (f) To make improper use of a flag of truce, the national flag, or military ensigns and the enemy's uniform, as well as the distinctive badges of the Geneva Convention; (g) To destroy or seize the enemy's property, unless such destruc- tion or seizure be imperatively demanded by the necessities of war. (h) To declare abolished, suspended, or inadmissible in a Court of law the rights and action of the nationals of the hostile party. A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service be- fore the commencement of war. Art. 24. Ruses of war and the employment of methods necessary to obtain information about the enemy and the country, are consid- ered allowable. Art. 25. The attack or bombardment by whatever means, of towns, villages, habitations or buildings which are not defended, is pro- hibited. Art. 26. The Commander of an attacking force, before com- mencing a bombardment, except in the case of an assault, should do all he can to warn the authorities. Art. 27. In sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes. The besieged should indicate these buildings or places by some par- ticular and visible signs, which should previously be notified to the assailants. Art. 28. The pillage of a town or place, even when taken by as- sault, is prohibited. 542 APPENDIX IV. Chapter II. — 0.\ Spies. Art. 29. An Individual can only be considered a spy if, acting clandestinely, or on false pretenses, he obtains, or seeks to obtain information in the zone of operations of a belligerent, with the in- tention of communicating it to the hostile party. Thus, soldiers not in disguise who have penetrated into the zone of operations of a hcstile army to obtain information are not con- sidered spies. Similarly, the following are not considered spies: soldiers or civilians, carrying out their mission openly, charged with the delivery of dispatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver dispatches, and generally to maintain communi- cation between the various parts of an army or a territory. Art. 30. A spy taken in the act cannot be punished without pre- vious trial. Art. 31. A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war and incurs no responsibility for his previous acts of espionage. Chapter III. — On Flags of Truce. Art. 32. An individual is considered as bearing a flag of truce who is authorized by one of the belligerents to enter into communi- cation with the other, and who carries a white flag. He has a right to inviolability, as well as the trumpeter, bugler, or drummer, the flagbearer and the interpreter who may accompany him. Art. 33. The Chief to whom a flag of truce is sent is not obliged to receive it in all circumstances. He can take all steps necessary to prevent the envoy taking ad- vantage of his mission to obtain information. In case of abuse, he has the right to detain the envoy temporarily. Art. 34. The envoy loses his rights of inviolability if it is proved beyond doubt that he has taken advantage of his privileged position to provoke or commit an act of treachery. Chapter IV. — On Capitulations. Art. 35. Capitulations agreed on between the Contracting Par- ties must be in accordance with the rules of military honor. When once settled, they must be scrupulously observed by both the parties. Chapter V. — On Armistices. Art. 36. An armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not fixed, the belligerent parties can resume operations at any time, pro- HAGUE CONVENTIONS. 543 vided always the enemy is warned within the time agreed upon, In accordance with the terms of the armistice. Art. 37. An armistice may be general or local. The first suspends all military operations of the belligerent States; the second, only those between certain fractions of the belligerent armies and in a fixed radius. Art. 38. An armistice must be notified oflicially, and in good time, to the competent authorities and the troops. Hostilities are suspend- ed immediately after the notification, or at a fixed date. Art. 39. It is for the Contracting Parties to settle, in the terms of the armistice, what communications may be held, on the theater of war, with the population and between the inhabitants of one bel- ligerent state and those of the other. Art. 40. Any serious violation of the armistice by one of the par- ties gives the other party the right to denounce it, and even, in case of urgency, to recommence hostilities at once. Art. 41. A violation of the terms of the armistice by private in- dividuals acting on their own initiative, only confers the right of de- manding the punishment of the offenders, and, if necessary, in- demnity for the losses sustained. SECTION III.— ON MILITARY AUTHORITY OVER HOSTILE TERRITORY. Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself. Art. 43. The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to reestablish and insure, as far as possible, public or- der and safety, while respecting, unless absolutely prevented, the laws in force in the country. Art. 44. Any compulsion of the population of occupied territory to furnish information about its own army or about its means of de- fence is prohibited. Art. 45. Any pressure on the population of occupied territory to take the oath to the hostile Power is prohibited. Art. 46. Family honor and rights, individual lives and private property, as well as religious convictions and practice, must be re- spected. Private property cannot be confiscated. Art. 47. Pillage is formally prohibited. Art. 48. If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do it, as far as possible, in accordance with the rules in existence and the assessment in force, and will in consequence be bound to 544 APPENDIX IV. defray the expenses of the administration of the occupied territory on the same scale as that by which the legitimate Government was bound. Art. 49. If, besides the taxes mentioned in the preceding Article; the occupant levies other money taxes in the occupied territory, this can only be for military necessities or the administration of such territory. Art. 50. No general penalty, pecuniary or otherwise, can be in- flicted on the population on account of the acts of individuals for which it cannot be regarded as jointly and severally responsible. Art. 51. No contril/ntion shall be collected except under a written order and on the responsibility of a Commander-in-Chief. This collection shall only take place, as far as possible, in accord- ance with the rules in existence and the assessment of taxes in force. For every contribution a receipt shall be given to the contributors. Art. 52. Neither requisition in kind nor services can be demanded, from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in military operations against their own country. These requisitions and services shall only be demanded on the au- thority of the Commander in the locality occupied. The requisitions in kind shall, as far as possible, be paid for in ready money; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible. Art. 53. An army of occupation can only take possession of the cash, funds, and property liable to requisition belonging strictly to the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property of the State which may be used for military operations. All appliances, whether on land, at sea, or in the air adapted for the transmission of news, or for the transport of persons or things, apart from cases governed by maritime law, as well as depots of arms and, generally, all kinds of war material, even though belong- ing to Companies or to private persons, are likewise material which may serve for military individuals, but they must be restored at the conclusion of peace, and indemnities paid for them. Art. 54. Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made. Art. 55. The occupying State shall be regarded only as adminis- trator and usufructuary of the public buildings, X'eal estate, forests, and agricultural works belonging to the hostile State, and situated in the occupied country. It must protect the capital of these proper- ties, and administer it according to the rules of usufruct. Art. 5G. The property of the communes, that of religious, char- HAGUE CONVENTIONS. 545 Itable, and educational institutions, and those of arts and science, even wlien State property, sliall be treated as private property. All seizure of, and destruction, or intentional damage done to sucli institutions, to historical monuments, worlvs of art or science, is pro- hibited, and should be made the subject of proceedings. SECTION IV.— ON THE INTERNMENT OP BELLIGERENTS AND THE CARE OF THE WOUNDED IN NEUTRAL COUNTRIES. Art. 57. A neutral State w^hich receives in its territory troops be- longing to the belligerent armies shall intern them, as far as possi- ble, at a distance from the theater of war. It can keep them in camps, and even confine them in fortresses or locations assigned for this purpose. It shall decide whether officers may be left at liberty on giving their parole that they will not leave the neutral territory without authorization. Art. 58. Failing a special Convention to the contrary the neutral 'State shall supply the interned with the food, clothing, and relief required by humanity. At the conclusion of peace, the expenses caused by the intern- ment shall be made good. Art. 59. A neutral State may authorize the passage through its territory of wounded or sick belonging to the belligerent armies, on condition that the trains bringing them shall carry neither combat- ants nor war material. In such a case, the neutral State is bound to adopt such measures of safety and control as may be necessary for the purpose. Wounded and sick brought under these conditions into neutral territory by one of the belligerents, and belonging to the hostile party, must be guarded by the neutral State, so as to insure their not taking part again in the military operations. The same duty shall devolve on the neutral State with regard to wounded or sick of the other army who may be committed to its care. Art. 60. The Geneva Convention applies to sick and wounded in- terned in neutral territory. WiLS.lNT.L.— 35 546 APPENDIX IV. CONVENTION RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS AND PER- SONS IN CASE OF WAR ON LAND. [Names of States.] With a view to laying down more clearly the rights and duties of neutral Powers in case of war on land and regulating the position of the belligerents who have taken refuge in neutral territory. Being likewise desirous of defining the meaning of the term "neu- tral," pending the possibility of settling, in its entirety, the position of neutral individuals in their relations with the belligerents, Have resolved to conclude a Convention to this effect, and have, in consequence, appointed the following as their Plenipotentiaries: [Names of Plenipotentiaries.] Who, after having deposited their full powers, found in good and due form, have agreed upon the following provisions: CHArxER I. — The Rights and Duties of Neutral Powees. Article 1. The territory of neutral Powers is inviolable. Art. 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power. Art. 3. Belligerents are likewise forbidden to: (a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea. (b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military pur- poses, and which has not been opened for the service of public mes- sages. Art. 4. Corps of combatants cannot be formed nor recruiting agen- cies opened on the territory of a neutral Power to assist the bel- ligerents. Art. 5. A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory. It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory. Art. 6. The responsibility of a nentral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents. HAGUE CONVENTIONS. 547 Art. 7. A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or. in general, of anything which can be of use to an army or a fleet. Art. 8. A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to Companies or private individuals. Art. 9. Every measure of restriction or prohibition taken by a neu- tral Power in regard to the matters referred to in Articles 7 and 8 must be impartially applied by it to both belligerents. A neutral Power must see to the same obligation being observed by Companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus. Art. 10. The fact of a neutral Power resisting, even by force, at- tempts to violate its neutrality cannot be regarded as a hostile act. Chapter II. — Belligehents Interned and Wounded Tended in Neutral Territory. Art. 11. A neutral Power which receives on its territory troops be- longing to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war. It may keep them in camps and even confine them in fortresses or in places set apart for this purpose. It shall decide whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission. Art. 12. In the absence of a special Convention to the contrary, the neutral Power shall supply the interned with the food, clothing and relief required by humanity. At the conclusion of peace the expenses caused by the internment shall be made good. Art. 13. A neutral Power which receives escaped prisoners of war shall leave them at liberty. If it allows them to remain in its ter- ritory it may assign them a place of residence. The same rule applies to prisoners of war brought by troops taking refuge in the territory of a neutral Power. Art. 14. A neutral Power may authorize the passage into its ter- ritory of the sick and wounded belonging to the belligerent armies, on condition that the trains bringing them shall carry neither personnel nor war material. In such a case, the neutral Power is bound to take whatever measures of safety and control are necessary for the .pur- pose. The sick or wounded brought under these conditions into neutral territory by one of the belligerents, and belonging to the hostile party, must be guarded by the neutral Power so as to insure their not taking part again in the military operations. The same duty shall devolve 548 APPENDIX IV. on the neutral State with regard to wounded or sick of the other army who may be committed to its care. Art. 15. The Geneva Convention applies to sick and wounded in- terned iu neutral territory. Ohapteb III. — Neutkal Persons, Art. 16. The nationals of a State which Is not taking part In the war are considered as neutrals. Art. 17. A neutral cannot avail himself of his neutrality: (a) If he commits hostile acts against a belligerent. (b) If he commits acts in favor of a belligerent, particularly if he voluntarily enlists in the ranks of the armed force of one of the par- ties. In such a ease, the neutral shall not be more severely treated by the belligerent as against whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act. Art. 18. The following acts shall not be considered as committed in favor of one belligerent in the sense of Article 17, letter (b): (a) Supplies furnished or loans made to one of the belligerents, pro- vided that the person who furnishes the supplies or who makes the loans lives neither iu the territory of the other party nor in the ter- ritory occupied by him, and that the supplies do not come from these territories. (b) Services rendered in matters of police or civil administration. Chaptek IV. — Railway Material. Art. 19. Railway material coming from the territory of neutral Powers, whether it be the property of the said Powers or of Com- panies or private persons, and recognizable as such, shall not be req- uisitioned or utilized by a belligerent except where and to the extent that it Is absolutely necessary. It shall be sent back as soon as pos- sible to the country of origin. A neutral Power may likewise, in case of necessity, retain and utilize to an equal extent material coming from the territory of the belligerent Power. Compensation shall be paid by one party or the other in proportion to the material used, and to the period of usage. Ohapteb V. — Final Provisions. Art. 20. The provisions of the present Convention do not apply except between Contracting Powers, and then only if all the belliger- ents are parties to the Convention. [Articles providing for ratification follow.] HAGUE CONVENTIONS. 549 CONVENTION FOR THE ADAPTATION TO NAVAL WAR OF THE PRINCIPLES OF THE GENEVA CONVENTION. [Names of States.] Animated alike by the desire to diminish, as far as depends on them, the inevitable evils of war. And wishing with this object to adapt to maritime warfare the principles of the Geneva Convention of the 6th July, 1906, Have resolved to conclude a Convention for the purpose of revising the Convention of the 29th July, 1899, relative to this question, and have appointed the following as their Plenipotentiaries: [Names of Plenipotentiaries.] Who, after having deposited their full powers, found in good and due form, have agreed upon the following provisions: -Article 1. 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 commencement or during the course of hostilities, and in any case before they are em- ployed, shall be respected, and cannot be captured while hostilities last. These ships, moreover, are not on the same footing as war-ships as regards their stay in a neutral port. Art. 2. Hospital-ships, equipped wholly or in part at the expense of private individuals or ofBcially recognized relief societies, shall be likewise respected and exempt from capture, if the belligerent Power to whom they belong has given them an official commission and has notified their names to the hostile Power at the commencement of or during hostilities, and in any case before they are employed. These ships must be provided with a certificate from the competent authorities declaring that the vessels have been under their control while fitting out and on final departure. Art. 3. Hospital-ships, equipped wholly or in part at the expense of private individuals or officially recognized societies of neutral conn- tries, shall be respected and exempt from capture, on condition that they are placed under the control of one of the belligerents, with the previous consent of their own Government and with the authorization of the belligerent himself, and that the latter has notified their name to his adversaiy at the commencement of or during hostilities, and in any case, before they are employed. 550 APPENDIX IV. Art. 4. The ships mentioned in Articles 1, 2, and 3 shall afford relief and assistance to the wounded, sick, and shipwrecked of the belligerents without distinction of nationality. The Governments undertake not to use these ships for any military purpose. These vessels must in no wise hamper the movements of the com- batants. During and after an engagement they will act at their own risk and peril. The belligerents shall have the right to control and visit them ; they can refuse their help, order them off. make them take a certain course, and put a Commissioner on board; they can even detain them, if im- portant circumstances require it. As far as possible, the belligerents shall enter in the log of the hos- pital-ships the orders which they give them. Art. 5. Military hospital-ships shall be distinguished by being paintetl white outside with a horizontal band of green about a metre and a half in breadth. The ships mentioned in Articles 2 and 3 shall be distinguished by being painted white outside with a horizontal band of red about a metre and a half in breadth. The boats of the ships above mentioned, as also small craft which may be used for hospital work, shall be distinguished by similar painting. All hospital-ships shall make themselves known by hoisting, with their national flag, the white flag with a red cross provided by the Geneva Convention, and further, if they belong to a neutral State, by flying at the mainmast the national flag of the belligerent under whose control they are placed. Hospital-ships which, in the terms of Article 4. are detained by the enemy, must haul down the national flag of the belligerent to whom they belong. The ships and boats above mentioned which wish to insure by night the freedom from interference to which they are entitled, must, subject to the assent of the belligerent they are accompanying, take the necessary measures to render their special painting sufficiently plain. Art. 6. The distinguishing signs referred to in Article 5 can only be used, whether in time of peace or war, for protecting or indicating the ships therein mentioned. Art. 7. In the case of a fight on board a war-ship, the sick-wards shall be respected and spared as far as possible. The said sick- wards and the materiel belonging to tln'm remain sub- ject to the laws of war ; they cannot, however, be used for any pur- pose other than that for which they were originally intended, so long as they are required for the sick and wounded. The commander, however, into whose power they have fallen may apply them to other purposes, if the military situation requires it, HAGUE CONVENTIONS. 551 after seeing that the sick and wounded on board are properly provided for. Art. 8. Hospital-ships and sick -wards of vessels are no longer en- titled to protection if they are employed for the purpose of injuring the enemy. The fact of the staff of the said ships and sick-wards being armed for maintaining order and for defending the sick and wounded, and the presence of wireless telegraphy apparatus on board, is not a suf- ficient reason for withdrawing protection. Art. 9. Belligerents may appeal to the charity of the commanders of neutral merchant-ships, yachts, or boats to take on board and tend the sick and wounded. Vessels responding to this appeal, and also vessels which have of their own accord rescued sick, wounded, or shipwrecked men, shall enjoy special protection and certain immunities. In no case can they be captured for having such persons on board, but, apart from special undertakings that have been made to them, they remain liable to capture for any violations of neutrality they may have committed. Art. 10. The religious, medical, and hospital staff of any cap- tured ship is inviolable, and its members cannot be made prisoners of war. On leaving the ship they take away with them the objects and surgical instruments which are their own private property. This staff shall continue to discharge its duties while necessary, and can afterwards leave, when the Commander-in-chief considers it possible. The belligerents must guarantee to the said staff, when it has fallen into their hands, the same allowances and pay which are given to the staff of corresponding rank in their own navy. Art. 11. Sailors and soldiers on board, when sick or wounded, as well as other persons officially attached to fleets or armies, whatever their nationality, shall be respected and tended by the captors. Art. 12. Any war-ship belonging to a belligerent may demand that sick, wounded, or shipwrecked men on board military hospital-ships, hospital-ships belonging to relief societies or to private individuals, merchant-ships, yachts, or boats, whatever the nationality of these vessels, should be handed over. Art. 13. If sick, wounded, or shipwrecked persons are taken on board a neutral war-ship, every possible precaution must be taken that they do not again take part in the operations of the war. Art. 14. The shipwrecked, wounded, or sick of one of the bellig- erents who fall into the power of the other belligerent are prisoners of war. The captor must decide, according to circumstances, whether to keep them, send them to a port of his own country, to a neutral port, or even to an enemy port. In this last case, prisoners thus re- patriated cannot serve again while the war lasts. Art. 15. The shipwrecked, sick, or wounded, who are landed at a neutral port with the consent of the local authorities, must, unless an arrangement is made to the contrary between the neutral State and 552 APPENDIX IV. the belligerent States, be guarded by the neutral State so as to pre- vent them again taking part in the operations of the war. The expenses of tending them in hospital and interning them shall be borne by the State to which the shipwrecked, sick, or wounded persons belong. Art. 16. After every engagement, the two belligerents, so far as military interests permit, shall take steps to look for the shipwrecked, sick, and wounded, and to protect them, as well as the dead, against pillage and ill-treatment. They shall see that the burial, whether by land or sea, or cremation of the dead shall be preceded by a careful examination of the corpse. Art. 17. Each belligerent shall send, as early as possible, to the au- thorities of their country, navy, or army, the military marks or doc- uments of Identity found on the dead and the description of the sick and wounded picked up by him. The belligerents shall keep each other reciprocally informed as to internments and transfers as well as to the admissions into hospital and deaths which have occurred among the sick and wounded in their hands. They shall collect all the objects of personal use, valuables, letters, etc., which are found in the captured ships, or which have been left by the sick or wounded who died in hospital, in order to have them forwarded to the persons concerned by the authorities of their own country. Art. 18. The provisions of the present Convention do not apply ex- cept between Contracting Powers, and then only if all the belliger- ents are parties to the Convention. Art. 19. The Commanders-in-chief of the belligerent fleets must see that the above Articles are properly carried out ; they will have also to see to cases not covered thereby, in accordance with the instruc- tions of their respective Governments and in conformity with the general principles of the present Convention. Art. 20. The Signatory Powers shall take the necessary measures for bringing the provisions of the present Convention to the knowl- edge of their naval forces, and especially of the members entitled thereunder to immunity, and for making them known to the public. Art. 21. The Signatory Powers likewise undertake to enact or to propose to their Legislatures, if their criminal laws are inadequate, the measures necessary for checking in time of war individual acts of pillage and ill-treatment in respect to the sick and wounded in the fleet, as well as for punishing, as an unjustifiable adoption of naval or military marks, the unauthorized use of the distinctive marks men- tioned in Article 5 by vessels not protected by the present Convention. Tliey will communicate to each other, through the Netherland Gov- ernment, the enactments for preventing such acts at the latest within flve years of the ratification of the present Convention. Art. 22. In the ease of operations of war between the land and sea forces of belligerents, the provisions of the present Convention do not apply except between the forces actually on board ship. HAGUE CONVENTIONS. 553 Art. 23. [As to ratification.] Art. 24. Non-Signatoi-y Powers which have accepted the Geneva Convention of the 6th July, 1906, may adhere to the present Conven- tion. The Power which desires to adhere notifies its intention to the Netherland Government in writing, forwarding to it the act of ad- hesion, which shall be deposited in the archives of the said Govern- ment. The said Government shall at once transmit to all the other Powers a duly certified copy of the notification as well as of the act of ad- hesion, mentioning the date on which it received the notification. Art. 25. The present Convention, duly ratified, shall replace as be- tween Contracting Powers, the Convention of the 29th .July, 1899, for the adaptation to maritime warfare of the principles of the Gene- va Convention. The Convention of 1899 remains in force as between the Powers which signed it but which do not also ratify the present Convention. Arts. 26-28. [As to ratification.] 554 APPENDIX IV. CONVENTION RELATIVE TO THE CREATION OF AN INTERNATIONAL PRIZE COURT. [Names of States.] Animated by the desire to settle in au equitable manner the differ- ences which sometimes arise in the course of a naval war in connec- tion with the decisions of National Prize Courts ; Considering that, if these Courts are to continue to exercise their functions in the manner determined by national legislation it is desir- able that in certain cases an appeal should be provided, under condi- tions conciliating, as far as possible, the public and private interests involved in matters of prize; Whereas, moreover, the institution of an International Court, whose jurisdiction and procedure would be carefully defined, has seemed to be the best method of attaining this object ; Convinced, finally, that in this manner the hardships consequent on naval war would be mitigated ; that, in particular, good relations will be more easily maintained between belligerents and neutrals and peace better assured; Desirous of concluding a Convention to this effect, have appointed the following as their Plenipotentiaries: [Names of Plenipoteutaries.] Who, after depositing their full powers, found in good and due form, have agreed upon the following provisions: PART I.— GENERAL PROVISIONS. Article 1. The validity of the capture of a merchant-ship or its cargo is decided before a Prize Court in accordance with the present Convention when neutral or enemy property is involved. Art. 2. Jurisdiction in matters of prize is exercised in the first in- stance by the Prize Courts of the belligerent captor. The judgments of these Courts are pronounced in public or are officially notified to parties concerned who are neutrals or enemies. Art. 3. The judgments of National Prize Courts may be brought before the International Prize Court — 1. When the judgment of the National Prize Courts affects the prop- erty of a neutral Power or individual. 2. When the judgment affects enemy property and relates to — • (a) Cargo on board a neutral ship ; (b) An enemy ship captured in the territorial waters of a neutral Power, when that Power has not made the capture the subject of a diplomatic claim; HAGUE CONVENTIONS. 555 (c) A claim based upon the allegation that the seizure has been effected in violation, either of the provisions of a Convention in force between the belligerent Powers, or of an enactment issued by the boll igo rent captor. The appeal against the judgment of the National Court can be based on the ground that the judgment was wrong either in fact or in law. Art. 4. An appeal may be brought — 1. By a neutral Power, if the judgment of the National Tribunals iiijuriously affects its property or the property of its nationals (Article 3 (1) ), or if the capture of an enemy vessel is alleged to have taken place in the territorial waters of that Power (Article 3 (2) (b) ). 2. By a neutral individual, if the judgment of the National Court injuriously affects his property (Article 3 (1) ), subject, however, to the reservation that the Power to which he belongs may forbid him to bring the case before the Court, or may itself undertake the pro- ceedings in his place. 3. By an individual subject or citizen of an enemy Power, if the judgment of the National Court injuriously affects his property in the cases referred to in Article 3 (2), except that mentioned in para- graph (b). Art. 5. An appeal may also be brought on the same conditions as in the preceding Article, by persons belonging either to neutral States or to the enemy, deriving their rights from and entitled to represent an individual qualified to appeal, and who have taken part in the pro- ceedings before the National Court. Persons so entitled may appeal separately to the extent of their interest. The same rule applies in the case of persons belonging either to neutral States or to the enemy who derive their rights from and are entitled to represent a neutral Power whose property was the subject of the decision. Art. 6. When, in accordance with the above Article 3, the Inter- national Court has jurisdiction, the National Courts cannot deal with a case in more than two instances. The municipal law of the bellig- erent captor shall decide whether the case may be brought before the International Court after judgment has been given in first instance or only after an appeal. If the National Courts fail to give final judgment within two years from the date of capture, the case may be carried direct to the Inter- national Court. Art. 7. If a question of law to be decided is covered by a Treaty in force between the belligerent captor and a Power which is itself or whose subject or citizen is a party to the proceedings, the Court is governed by the provisions of the said Treaty. In the absence of such provisions, the dourt shall apply the rules of international law. If no generally recognized rule exists, the Court shall give judgment in accordance with the general principles of jus- tice and equity. 556 APPENDIX IV. The above provisions apply equally to questions relating to the order and mode of proof. If, in accordance with Article 3 (2) (c), the ground of appeal is the violation of an enactment issued by the belligerent captor, the Court will enforce the enactment. The Coiu-t may disregard failure to comply with the procedure laid down in the enactments of the belligerent captor, when it is of opinion that the consequences of complying therewith are unjust and inequi- table. Art. 8. If the Court pronounces the capture of the vessel or cargo to be valid, they shall be disposed of in accordance with the laws of the belligerent captor. If it pronounces the capture to be null, the Court shall order resti- tution of the vessel or cargo, and shall fix. if there is occasion, the amount of the damages. If the vessel or cargo have been sold or de- stroyed, the Court shall determine the compensation to be given to the owner on this account. If the national Court pronounced the capture to be null, the Court can only be asked to decide as to the damages. Art. 9. The Contracting Powers undertake to submit in good faith to the decisions of the Intsrnational Prize Court and to carry them out with the least possible delay. PART II.— CONSTITUTION OF THE INTERNATIONAL PRIZE COURT. Art. 10. The International Prize Court is composed of Judges and Deputy Judges, who will be appointed by the Contracting Powers, and must all be jurists of known proficiency in questions of inter- national maritime law, and of the highest moral reputation. The appointment of these Judges and Deputy Judges shall be made within six months after the ratification of the present Convention. Art. 11. The Judges and Deputy Judges are appointed for a pe- riod of six years, reckoned from the date on which the notification of their appointment is received by the Administrative Council estab- lished by the Convention for the Pacific Settlement of International Disputes of the 29th July, 1899. Their appointments can be renewed. Should one of the Judges or Deputy Judges die or resign, the same procedure is followed for filling the vacancy as was followed for ap- pointing him. In this case, the appointment is made for a fresh period of six years. Art. 12. The Judges of the International Prize Court are all equal in rank and have precedence according to the date on which the notification of their appointment was received (Article 11, paragraph 1), and if they sit by rota (Article 15, paragraph 2), according to the date on which they entered upon their duties. When the date is the same the senior in age takes precedence. HAGUE CONVENTIONS. 557 The Deputy Judges when acting are assimilated to the Judges. They rank, however, after them. Art. 13. The Judges enjoy diplomatic privileges and immunities in the performance of their duties and when outside their own country. Before taking their seat, the Judges must swear, or make a solemn promise before the Administrative Council, to discharge their duties impartially and conscientiously. Art. 14. The Court is composed of fifteen Judges ; nine Judges constitute a quorum. A Judge who is absent or prevented from sitting Is replaced by the Deputy Judge. Art. 15. The Judges appointed by the following Contracting Pow- ers: Germany, the United States of America, Austria-Hungary, France, Great Britain, Italy, Japan, and Russia, are always sum- moned to sit. The Judges and Deputy Judges appointed by the other Contracting Powers sit by rota as shown in the Table annexed to the present Con- vention ; their duties may be performed successively by the same per- son. The same Judge may be appointed by several of the said Powers. Art. 16. If a belligerent Power has, according to the rota, no Judge sitting in the Court, it may ask that the Judge appointed by it should take part in the settlement of all cases arising from the war. Lots shall then be drawn as to which of the Judges entitled to sit ac- cording to the rota shall withdraw. This arrangement does not af- fect the Judge appointed by the other belligerent. Art. 17. No Judge can sit who has been a party, in any way what- ever, to the sentence pronounced by the National Courts, or has taken part in the case as counsel or advocate for one of the parties. No Judge or Deputy Judge can, during his tenure of office, appear as agent or advocate before the International Prize Court, nor act for one of the parties in any capacity whatever. Art. 18. The belligerent captor is entitled to appoint a naval offi- cer of high rank to sit as Assessor, but with no voice in the decision. A neutral Power, which is a party to the proceedings or whose sub- ject or citizen is a party, has the same right of appointment; if as the result of this last provision more than one Power is concerned, they must agree among themselves, if necessary by lot, on the officer to be appointed. Art. 19. The Court elects its President and Vice-President by an absolute majority of the votes cast. After two ballots, the election is made by a bare majority, and, in case the votes are equal, by lot. Art. 20. The Judges on the International Prize Court are entitled to travelling allowances in accordance with the regulations in force in their own country, and in addition receive, while the Court is sit- ting or while they are carrying out duties conferred upon them by the Court, a sum of 100 Netherland florins per diem. 558 APPENDIX IV. These payments are included in the general expenses of the Court dealt with In Article 47, and are paid through the International Bu- reau established by the Convention of the 29th July, 1899. The Judges may not receive from their own Government or from that of any other Power any remuneration in their capacity of mem- bers of the Court. Art. 21. The seat of the International Prize Court is at The Hague and it cannot, except in the case of force majeure, be transferred else- where without the consent of the belligerents. Art. 22. The Administrative Council fullils, with regard to the In- ternational Prize Court, the same functions as to the Permanent Court of Arbitration, but only Representatives of Contracting I'ow- ers will be members of it Art. 23. The International Bureau acts as registry to the Inter- national Prize Court and must place its otrices and staff at the dis- posal of the Court, It has charge of the archives and carries out the administrative work. The Secretary-General of the International Bureau acts as Reg- istrar. The necessary secretaries to assist the Registrar, translators and shorthand writers are appointed and sworn in by the Court. Art. 24. The Court determines which language it will itself use and what languages may be used before it. In every case the official language of the National Courts which have had cognizance of the case may always be used before the Court. Art. 25. Powers which are concerned in a case may appoint spe- cial agents to act as intermediaries between themselves and the Court. They may also engage counsel or advocates to defend their rights and interests. Art. 2G. A private person concerned in a case will be represented before the Court by an attorney, who must be either an advocate qualified to plead before a Court of Appeal or a High Court of one of the Contracting States, or a lawyer practising before a similar Court, or lastly, a professor of law at one of the higher teaching centres of those countries. Art. 27. For all notices to be served, in particular on the parties, witnesses, or experts, the Court may apply direct to the Govern- ment of the State on whose territory the service is to be carried out. The same rule applies in the case of steps being taken to pro- cure evidence. The requests for this purpose are to be executed so far as the means at the disposal of the Pow-er applied to under its municipal law allow. They cannot be rejected unless the Power in question considers them calculated to impair its sovereign rights or its safety. If the request is complied with, the fees charged must only com- prise the expenses actually incurred. HAGUE CONVENTIONS. 559 The Court is equally entitled to act through the Power on whose territory it sits. Notices to be given to parties in the place where the Court sits may be served through the International Bureau. PART III.— PROCEDURE IN THE INTERNATIONAL PRIZE COURT. Art. 28. An appeal to the International Prize Court is entered by means of a written declaration made in the National Court which has already dealt with the case or addressed to the International Bureau; in the latter case the appeal can be entered by telegram. The period within which the appeal must be entered is fixed at 120 days, counting from the day the decision is delivered or notified (Article 2, paragraph 2). Art. 29. If the notice, of appeal is entered in the National Court, this Court, without considering the question whether the appeal was entered in due time, will transmit within seven days the record of the case to the International Bureau. If the notice of the appeal is sent to the International Bureau, the Bureau will immediately inform the National Court, when pos- sible by telegraph. The latter will transmit the record as provided in the preceding paragraph. When the appeal is brought by a neutral individual the Interna- tional Bureau at once informs by telegraph the individual's Gov- ernment, in order to enable it to enforce the rights it enjoys under Article 4, paragraph 2. Art. 30. In the case provided for in Article 6, paragraph 2, the notice of appeal can be addressed to the International Bureau only. It must be entered within thirty days of the expiration of the pe- riod of two years. Art. 31. If the appellant does not enter his appeal within the period laid down in Articles 28 or 30, it shall be rejected without discussion. Provided that he can show that he was prevented from so doing by force majeure, and that the appeal w^as entered within sixty days after the circumstances which prevented him entering it before had ceased to operate, the Court can, after hearing the respondent, grant relief from the effect of the above provision. Art. 32. If the appeal is entered in time, a certified copy of the notice of appeal is forthwith officially transmitted by the Court to the respondent. Art. 33. If, in addition to the parties who are before the Court, there are other parties concerned who are entitled to appeal, or if in the case referred to in Article 29, paragraph 3, the Government who has received notice of an appeal has not announced its decision, the Court will await before dealing with the case the expiration of the period laid down in Articles 28 or 30. 560 APPENDIX IV. Art. 34. The procedure before the International Court Includes two distinct parts: the written pleadings and oral discussions. The written pleadings consist of the deposit and exchange of cases, counter-cases, and, if necessary, of replies, of which the order is fixed by the Court, as also the periods within which they must be delivered. The parties annex thereto all papers and documents of which they intend to make use. A certified copy of every document produced by one party must be communicated to the other party through the medium of the Court. Art. 35. After the close of the pleadings, a public sitting is held on a day fixed by the Court. At this sitting the parties state their view of the case both as to the law and as to the facts. The Court may, at any stage of the proceedings, suspend speeches of counsel, either at the request of one of the parties, or on their oTvn initiative, in order that supplementai-y evidence may be ob- tained. Art. 36. The International Court may order the supplementary evidence to be fallen either in the manner provided by Article 27, or before itself, or one or more of the members of the Court, provided that this can be done without resort to compulsion or the use of threats. If steps are to be taken for the purpose of obtaining evidence by .members of the Court outside the territory where it is sitting, the consent of the foreign Government must be obtained. Art. 37. The parties are summoned to take part in all stages of the proceedings and receive certified copies of the Minutes. Art. 38. The discussions are under the control of the President or Vice-President, or, in case they are absent or cannot act, of the sen- ior Judge present. The Judge appointed by a belligerent party cannot preside. Art. 39. The discussions take place in public, subject to the right of a Government who is a party to the case to demand that they be held in private. Minutes are taken of these discussions and signed by the President and Registrar, and these Minutes alone have an authentic character. Art. 40. If a party does not appear, despite the fact that he has been duly cited, or if a party fails to comply with some step within the period fixed by the Court, the case proceeds without that party, and the Court gives judgment in accordance with the material at its disposal. Art. 41. The Court officially notifies to the parties Decrees or de- cisions made in their absence. Art. 42. The Court takes into consideration in arriving at its de- cision all the facts, evidence, and oral statements. Art. 43. The Court considers its decision in private and the pro- ceedings are secret. HAGUE CONVENTIONS. 561 All questions are decided by a majority of the Judges present. If the number of Judges is even and equally divided, the vote of the jimior Judge in the order of precedence laid down In Article 12, par- agraph 1, is not counted. Art. 44. The judgment of the Court must give the reasons on which it is based. It contains the names of the Judges taking part in it, and also of the Assessors, if any; it is signed by the President and Registrar. Art. 45. The sentence is pronounced In public sitting, the parties concerned being present or duly summoned to attend; the sentence is officially communicated to the parties. When this communication has been made, the Court transmits to the National Prize Court the record of the case, together with copies of the various decisions arrived at and of the Minutes of the pro- ceedings. Art. 46. Each party pays its cwn costs. The party against whom the Court decides bears, in addition, the costs of the trial, and also pays 1 per cent, of the value of the sub- ject-matter of the case as a contribution to the general expenses of the International Court. The amount of these payments is fixed in the judgment of the Court. If the appeal is brought by an individual, he will furnish the In- ternational Bureau with security to an amount fixed by the Court, for the purpose of guaranteeing eventual fulfillment of the two ob- ligations mentioned in the preceding paragraph. The Court is en- titled to postpone the opening of the proceedings until the security has been furnished. Art. 47. The general expenses of the International Prize Court are borne by the Contracting Powers in proportion to their share in the composition of the Court as laid down in Article 15 and in the annexed Table. The appointment of Deputy Judges does not involve any contribution. The Administrative Council applies to the Powers for the funds requisite for the working of the Court. Art. 48. When the Court is not sitting the duties conferred upon it by Article 32, Article 34, paragraphs 2 and 3, Article 35, para- graph 1, and Article 46, paragraph 3, are discharged by a delegation of three Judges appointed by the Court. This delegation decides by a majority of votes. Art. 49. The Court itself draws up Its own rules of procedure, which must be communicated to the Contracting Powers. It will meet to elaborate these rules within a year of the ratifica- tion of the present Convention. Art. 50. The Court may propose modifications in the provisions of the present Convention concerning procedure. These proposals are communicated, through the medium of the Netherland Govern- ment, to the Contracting Powers, which will consider together as to the measures to be taken. WiLS.lNT.L.— 36 562 APPENDIX IV. PART IV.— FINAL PROVISIONS. Art. 51. The present Convention does not apply as of right except when the belligerent Powers are all parties to the Convention. It is further fully understood that an appeal to the International Prize Court can only be brought by a Contracting Power or the subject or citizen of a Contracting Power. In the cases mentioned in Article 5, the appeal is only admitted when both the owner and the person entitled to represent him are equally Contracting Powers or the subjects or citizens of Contracting Powers. [Articles providing for ratification follow.] Annex to Article XV. Distribution of Judges and Deputy Judges by Countries for Bach Year of the Period of Six Year^. Judges. Deputy Judges. First Year. Argentina .. . Columbia ... Spain Greece , Norway Netherlands Turkey Paraguay. Bolivia. Spain. Roumania. Sweden. Belgium. Persia. Third Year. Brazil China Spain Netherlands Roumania .. Sweden Venezuela .. Santo Domingo. Turkey. Portugal. Switzerland. Greece. Denmark. Haiti. Fifth Year. Belgium . Bulgaria Chile Denmark Mexico ... Persia .. . Portugal . Netherlands. Montenegro. Nicaragua. Norway. Cuba. China. Spain. Judges. Deputy Judges. Second Year. Argentina ... Spain Greece Norway Netherlands Turkey Uruguay .... Panama. Spain. Roumania. Sweden. Belgium. Luxemburg. Costa Rica. Fourth Year. Brazil Guatemala. China Turkey. Spain Portugal. Peru Honduras. Roumania Greece. Sweden -Denmark. Switzerland ' Netherlands. Sixth Year. Belgium . Chile Denmark Mexico .. . Portugal . Servia ... Siam Netherlands. Salvador. Norway. Ecuador. Spain. Bulgaria. China. HAGUE CONVENTIONS. 563 CONVENTION CONCERNING THE RIGHTS AND DUTIES OF NEUTRAL POWERS IN NAVAL WAR. [Names of States.] With a view to harmonizing the divergent views which, in the event of naval war. are still held on the relations between neutral Powers and belligerent Powers, and to anticipating the difficulties to which such divergence of views might give rise. Seeing that, even if it is not possible at present to concert measures applicable to all circumstances which may in practice occur, it is nevertheless undeniably advantageous to frame, as far as possible, rules of general application to meet the case where war has unfortu- nately broken out ; Seeing that, in cases not covered by the present Convention, it is expedient to take into consideration the general principles of the law of nations ; Seeing that it is desirable that the Powers should issue detailed: enactments to regulate the results of the attitude of neutrality when adopted by them; Seeing that it is. for neutral Powers, an admitted duty to apply these rules impartially to the several belligerents ; Seeing that, in this category of ideas these rules should not, in principle, be altered, in the course of the war, by a neutral Power, except in a case where experience has shown the necessity for such change for the protection of the rights of that Power ; Have agreed to observe the following common rules, which cannot however modify provisions laid down in existing general Treaties, and have appointed as their Plenipotentiaries, namely: [Names of Plenipotentiaries.] Who, after having deposited their full powers, found in good and due form, have agreed upon the following provisions: Article 1. Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, con- stitute a violation of neutrality. Art. 2. Any act of hostility, including capture and the exercise of the right of search, committed by belligerent war-ships in the terri- torial waters of a neutral Power, constitutes a violation of neutrality and is strictly forbidden. Art. 3. When a ship has been captured in the territorial waters of a neutral Power, this Power must employ, if the prize is still 564 APPENDIX IV. within its jurisdiction, the means at Its disposal to release the prize with its officers and crew, and to intern the prize crew. If the prize is not in the jurisdiction of the neutral Power, the cap- tor Government, on the demand of that Power, must liberate the prize with its officers and crew. Art. 4. A Prize Court cannot he set up by a belligerent on neu- tral territory or on a vessel in neutral waters. Art. 5. Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in par- ticular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on laud or sea. Art. 6. The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden. Art. 7. A neutral Power is not bound to prevent the export or ti'ansit, for the use of either belligerent, of arms, ammunitions, or, in general, of anything which could he of use to an army or fleet. Art. 8. A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a Power with which that Govern- ment is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entire- ly or partly within the said jurisdiction for use iu "war. Art. 9. A neutral Power must apply impartially to the two bellig- erents the conditions, restrictions, or prohibitions made by it in re- gard to the admission into its ports, roadsteads, or territorial waters, of belligerent war-ships or of their prizes. Nevertheless, a neutral Power may forbid a belligerent vessel which has failed to conform to the orders and regulations made by it, or which has violated neutrality, to enter its ports or roadsteads. Art. 10. The neutrality of a Power is not affected by the mere passage through its territorial waters of war-ships or prizes belonging to belligerents. Art. 11. A neutral Power may allow belligerent war-ships to em- ploy its licensed pilots. Art. 12. In the absence of special provisions to the contrary in the legislation of a neutral Power, belligerent war-ships are not per- mitted to remain in the ports, roadsteads, or territorial waters of the said Power for more than twenty-four hours, except in the cases cov- ered by the present Convention. Art. 13. If a Pov/er which has been informed of the outbreak of hostilities learns that a belligerent war-ship is in one of its ports or roadsteads, or in its territorial waters, it must notify the said ship to depart within twenty-four hours or within the time prescribed by local regulations. HAGUE CONVENTIONS. 5G5 Art. 14. A belligerent war-ship may not prolong its stay in a neu- tral port beyond the permissible time except on account of damage or stress of weather. It must depart as soon as the cause of the de- lay is at an end. The regulations as to the question of the length of time which these vessels may remain in neutral ports, roadsteads, or waters, do not apply to war-ships devoted exclusively to religious, scientilie. or philanthropic purposes. Art. 15. In the absence of special provisions to the contrary in the legislation of a neutral Power, the maximum number of war-ships belonging to a belligerent which may be in one of the ports or road- steads of that Power simultaneously shall be three. Art. 16. When war-ships belonging to both belligerents are pres- ent simultaneously in a neutral port or roadstead, a period of not less than twenty-four hours must elapse between the departure of the ship belonging to one belligerent and the departure of the ship belonging to the other. The order of departure is determined by the order of arrival, unless the ship which arrived first is so circumstanced that an extension of its stay is permissible. A belligerent war-ship may not leave a neutral port or roadstead until twenty-four hours after the departure of a merchant-ship flying the flag of its adversary. Art. 17. In neutral ports and roadsteads belligerent war-ships may only carry out such repairs as are absolutely necessary to render them seaworthy, and may not add in any manner whatsoever to their fight- ing force. The local authorities of the neutral Power shall decide what repairs are necessary, and these must be carried out with the least possible delay. Art. 18. Belligerent war-ships may not make use of neutral ports, roadsteads, or territorial waters for replenishing or increasing their supplies of war material or their armament, or for completing their crews. Art. 19. Belligerent war-ships may only revictual in neutral ports or roadsteads to bring up their supplies to the peace standard. Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port in their own country. They may, on the other hand, fill up their bunkers built to carry fuel, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied. If, in accordance with the law of the neutral Power, the ships are not supplied with coal within twenty-four hours of their arrival, the permissible duration of their stay is extended by twenty-four hours. Art. 20. Belligerent war-ships which have shipped fuel in a port belonging to a neutral Power may not within the succeeding three months replenish their supply in a port of the same Power. 566 APPENDIX IV. Art. 21. A prize may ouly be brought into a neutral port on ac- count of unseaworthiness, stress of weather, or want of fuel or pro- visions. It must leave as soon as the circumstances which justified its en- try are at an end. If it does not, the neutral Power must order it to leave at once; should it fail to obey, the neutral Power must employ the means at its disposal to i-elease it with its olhcers and crew and to intern the prize crew. Art. 22. A neutral Power must similarly, release a prize brought into one of its ports under circumstances other than those referred to in Article 21. Art. 23. A neutral Power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a Prize Court. It may have the prize taken to another of its ports. If the prize is convoyed by a war-ship, the prize crew may go on board the convoying ship. If the prize is not under convoy, the prize crew are left at liberty. Art. 24. If notwithstanding the notification of the neutral Power, a belligerent ship of war does not leave a port where it is not entitled to remain, the neutral Power is entitled to take such measures as it considers necessary to render the ship incapable of taking the sea during the war, and the commanding officer of the ship must facili- tate the execution of such measures. When a belligerent ship is detained by a neutral Power, the officers and crew are likewise detained. The officers and crew thus detained may be left in the ship or kept either on another vessel or on land, and may be subjected to the measures of restriction which it may appear necessary to impose upon them. A sufficient number of men for looking after the vessel must, however, be always left on board. The officers may be left at liberty on giving their word not to quit the neutral territory without permission. Art. 25. A neutral Power is bound to exercise such surveillance as the means at its disposal allow to prevent any violation of the pro- visions of the above Articles occurring in its ports or roadsteads or in its waters. Art. 26. The exercise by a neutral Power of the rights laid down in the present Convention can under no circumstances be considered as an unfriendly act by one or other belligerent who has accepted the Article relating thereto. Art. 27. The Contracting Powers shall communicate to each other in due course all Laws, Proclamations, and other enactments regulat- ing in their respective countries the status of belligerent war-ships in their ports and waters, by means of a communication addressed to the Government of the Netherlands and forwarded Immediately by that Government to the other Contracting Powers. HAGUE CONVENTIONS. 567 Art. 28. The provisions of the present Convention do not apply except to the Contracting Powers, and then only if all the belligerents are parties to the Convention. [Articles providing for ratification follovs^.] [Reservation by the United States.] Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the adherence of the United States to a convention adopted by the Second International Peace Conference held at The Hague from June 15 to October 18, 1907, con- cerning the rights and duties of neutral powers in naval war, re- serving and excluding, however, Article 23 thereof, which, is in the following words: "A neutral power may allow prizes to enter its ports and road- steads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports. "If the prize is convoyed by a war-ship, the prize crew may go on board the convoying ship. "If the prize is not under convoy, the prize crew are left at lib- erty." Resolved, further, That the United States adheres to this conven- tion with the understanding that the last clause of Article 3 implies the duty of a neutral power to make the demand therein mentioned for the return of a ship captured within the neutral jurisdiction and no longer within that jurisdiction. 568 APPENDIX IV. DRAFT CONVENTION RELATIVE TO THE CREA- TION OF A COURT OF ARBITRAL JUSTICE. TITLE I.— CONSTITUTION OF THE COURT OF ARBITRAL JUSTICE. Article I. With a view to promoting the cause of arliitration, the Contracting Powers agree to constitute, without altering the status of the Permanent Court of Arbitration, a Court of Arbitral Jus- tice, of free and easy access, composed of Judges representing the various juridical systems of the world, and capable of insuring con- tinuity in arbitral jurisprudence. Art. II. The Court of Arbitral Justice is composed of Judges and Deputy Judges chosen from persons of the highest moral reputation, and all fulfilling conditions qualifying them, in their respective coun- tries, to occupy high legal posts, or be jurists of recognized compe- tence in matters of international law. The Judges and Deputy Judges of the Court are appointed, as far as possible, from the members of the Permanent Court of Ar- bitration. The appointment shall be made within the six months after the ratification of the present Convention. Art. III. The Judges and Deputy Judges are appointed for a pe- riod of twelve years, reckoned from the date on which the appoint- ment is notified to the Administrative Council created by the Con- vention for the Pacific Settlement of International Disputes. Their appointments can be renewed. Should a Judge or Deputy Judge die or resign, the vacancy is filled in the manner in t\ hich his appointment was made. In this case, the appointment is made for a fresh period of twelve years. Art. IV. The Judges of the Court of Arbitral Justice are equal and rank according to the date on which their appointment was notified. The Jijdge who is senior in point of age takes precedence when the date of notification is the same. The Deputy Judges are assimilated in the exercise of their func- tions to the Judges. They rank, however, after the latter. Art. V. The Judges enjoy diplomatic privileges and immunities in the exercise of their duties and when outside their own country. Before taking their seat, the Judges and Deputy Judges must swear, before the Administrative Council, or make a solemn affirma- tion to exercise their functions impartially and conscientiously. Art. VI. The Court annually nominates three Judges to form a special Delegation and three more to replace them if the former are unable to act. They may be re-elected. They are balloted for. HAGUE CONVENTIONS. 569 The persons who secure the largest number of votes are considered elected. The Delegation itself elects its President, who, In default of a majority, is appointed by lot. A member of the Delegation cannot exercise his duties when the Power which appointed him, or of which he is a national, is one of the parties. The members of the Delegation are to conclude matters submit- ted to them, even if the period for which they have been appointed Judges has expired. Art. VII. A Judge may not exercise his judicial functions in any case in which be has, in any way whatever, taken part in the de- cision of a National Tribunal, of a Tribunal of Arbitration, or of a Commission of Inquiry, or has figured in the suit as counsel or ad- vocate for one of the parties. A Judge cannot act as agent or advocate before the Court of Arbitral Justice or the Pennanent Court of Arbitration, before a Special Tribunal of Arbitration or a Commission of Inquiry, nor act therein for one of the parties in any capacity whatsoever so long as his appointment lasts. Art. VIII. The Court elects its President and Vice-President by an absolute majority of the votes cast. After two ballots, the elec- tion is made by a bare majority and, in case the votes are even, by lot Art. IX. The Judges of the Court of Arbitral Justice receive an annual salary of 6,000 Netherland florins. This salary is paid at the end of each half-year, reckoned from the date on which the Court meets for the first time. In the exercise of their duties during the sessions or in the special cases covered by the present Convention, they receive the sum of 100 florins per diem. They are further entitled to receive a travelling allowance fixed in accordance with regulations existing in their own country. The provisions of the present paragi-aph are applicable also to a Deputy Judge when acting for a Judge. These emoluments are included in the general expenses of the Court dealt with in Article XXXI, and are paid through the Inter- national Bureau created by the Convention for the Pacific Settle- ment of International Disputes. Art. X. The Judges may not accept from their own Government or from that of any otber Power any remuneration for services con- nected with their duties in their capacity of members of the Court. Art. XI. The seat of the Court of Arbitral Justice is at The Hague, and cannot except in the case of force majeure be trans- ferred elsewhere. The Delegation may choose, with the assent of the parties con- cerned, another site for its meetings, if special circumstances ren- der such a step necessary. 570 APPENDIX IV. Art XII. The Administrative Council fulfllis with regard to the Court of Arbitral Justice the same functions as to the Permanent Court of Arbitration. Art. XIII. The International Bureau acts as registry to the Court of Arbitral Justice, and must place its offices and stafiC at the dis- posal of the Court. It has charge of the archives and carries out the administrative work. The Secretary-General of the Bureau discharges the functions of Registrar. The necessary secretaries to assist the Registrar, translators and shorthand writers are appointed and sworn in by the Court. Art. XIV. The Court meets in session once a year. The session opens the third Wednesday in June and lasts until all the business on the agenda has been transacted. The Court does not meet in session if the Delegation considers that such meeting is unnecessary. However, when a Power is party in a case actually pending before the Court, the pleadings in which are closed, or about to be closed, it may insist that the session should be held. When necessary, the Delegation may summon the Court in ex- traordinary session. Art. XY. A Report of the doings of the Court shall be drawn up every year by the Delegation. This Report shall be forwarded to the Contracting Powers through the International Bureau. It shall also be communicated to the Judges and Deputy Judges of the Court. Art. XVI. The Judges and Deputy Judges, members of the Court of Arbitral Justice can also exercise the functions of Judge and Deputy Judge in the International Prize Court. TITLE II.— COMPETENCY AND PROCEDURE. Art. XVII. The Court of Arbitral Justice is competent to deal with all cases submitted to it, in virtue either of a general under- taking to have recourse to arbitration or of a special agreement. Art. XVIII. The Delegation is competent — 1. To decide the arbitrations referred to in the preceding Article, if the parties concerned are agreed that the summary procedure, laid down in Part IV, Chapter IV, of the Convention for the Paciflc Settlement of International Disputes is to be applied; 2. To hold an inquiry under and in accordance with Part III of the said Convention, in so far as the Delegation is intrusted with such inquiry by the parties acting in common agreement. With the assent of the parties concerned, and as an exception to Article VII, paragraph 1, the members of the Delegation who have taken part in the inquiry may sit as Judges, if the case in dispute is submitted to the arbitration of the Court or of the Delegation itself. HAGUE CONVENTIONS. 571 Art. XIX. The Delegation is also competent to settle the Com- promis referred to in Article LII of the Convention for the Pacific Settlement of International Disputes if the parties are agreed to leave it to the Court. It is equally competent to do so, even when the request is only made by one of the parties concerned, if all attempts have failed to reach an understanding through the diplomatic channel, in the case of — 1. A dispute covered by a general Treaty of Arbitration concluded or- renewed after the present Convention has come into force, pro- viding for a Compromis in all disputes, and not either explicitly or implicitly excluding the settlement of the Compromis from the com- petence of the Delegation. Recourse cannot, however, be had to the Court if the other party declares that in its opinion the dispute does not belong to the category of questions to be submitted to ob- ligatory arbitration, unless the Treaty of Arbitration confers upon the Arbitration Tribunal the power of deciding this preliminary question. 2. A dispute arising from contract debts claimed from one Power by another Power as due to its nationals, and for the settlement of which the offer of arbitration has been accepted. This arx-ange- ment is not applicable if acceptance is subject to the condition that the Compromis should be settled in some other way. Art. XX. Each of the parties concerned may nominate a Judge of the Court to take part, with power to vote, in the examination of the case submitted to the Delegation. If the Delegation acts as a Commission of Enquiry, this task may be intrusted to persons other than the Judges of the Court. The travelHng expenses and remuneration to be given to the said per- sons are fixed and borne by the Powers appointing them. Art. XXI. The Conti-acting Powers only may have access to the Court of Arbitral Justice set up by the present Convention. Art. XXII. The Court of Arbitral Justice follows the rules of procedure laid down in the Convention for the Pacific Settlement of International Disputes, except in so far as the procedure is laid •down in the present Convention. Art. XXIII. The Court determines what language it will itself use and what languages may be used before it. Art. XXIV. The International Bureau serves as channel for all communications to be made to the Judges during the interchange of pleadings provided for in Article LXIII, paragraph 2, of the Con- vention for the Pacific Settlement of International Disputes. Art. XXV. For all notices to be served, in particular on the par- ties, witnesses, or experts, the Court may apply direct to the Gov- ernment of the State on whose territory the service is to be carried out. The same rule applies in the case of steps being taken to pro- cure evidence. 572 APPENDIX IV. The requests addressed for this purpose can only be rejected when the Power applied to considers them likely to impair its sov- ereign rights or its safety. If the request is complied with, the fees charged must only comprise the expenses actually incurred. The Court is equally entitled to act through the Power on whose territory it sits. Notices to be given to parties in the place where the Court sits may be served through the International Bureau. Art. XXVI. The discussions are under the control of the President or Vice-President, or, in case they are absent or cannot act, of the senior Judge present. The .Judge appointed by one of the parties cannot preside. Art. XXVII. The Court considers its decisions In private, and the proceedings remain secret. All decisions are arrived at by a majonty of the Judges present. If the number of Judges is even and equally divided, the vote of the junior Judge, in the order of precedence laid down in Article I\, paragraph 1, is not counted. Art. XXVIII. The judgments of the Court must give the reasons on which they are based. They contain the names of the Judges taking part in them; they are signed by the President and by the Registrar. Art. XXIX. Each party pays its own costs and an equal share of the costs of the trial. Art. XXX. The provisions of Articles XXI to XXIX are appli- cable by analogy to the procedure before the Delegation. When the right of attaching a member to the delegation has been exercised by one of the parties only, the vote of the member at- tached is not recorded if the votes are evenly divided. Art. XXXI. The general expenses of the Court are borne by the Contracting Powers. The Administrative Gouncil applies to the Powers to obtain the funds requisite for the working of the Court. Art. XXXII. The Court itself draws up its own rules of proced- ure, which must be communicated to the Contracting Powers. After the ratification of the present Convention the Court shall meet as early as possible in order to elaborate these rules, elect the President and Vice-President, and appoint the members of the Dele- gation. Art. XXXIII. The Court may propose modifications in the provi- sions of the present Convention concerning procedure. These pro- posals are communicated through the Netherland Government to the Contracting Powers, which will consider together as to the meas- ures to be taken. HAGUE COJv'VBNTIONS. 573 TITLE III.— FINAL PROVISIONS. Art. XXXIV. The present Convention shall be ratified as soon as possible. The ratifications shall be deposited at The Hague. A proces-verbal of the deposit of each ratification shall be drawn up, of which a duly certified copy shall be sent through the diplo- matic channel to all the Signatory Powers. Art. XXXV. The Convention shall come into force six months after its ratification. It shall remain in force for twelve years, and shall be tacitly re- newed for periods of twelve years, unless denounced. The denunciation must be notified, at least two years before the expiration of each period, to the Netherland Government, which will inform the other Powers. The denunciation shall only have effect in regard to the notifying Power. The Convention shall continue in force as far as the other Powers are concerned. APPENDIX V DECLARATION OF LONDON, FEBRUARY 26, 1909 [Translation.] 2 DECLARATION CONCERNING THE LAWS OF NAVAL WAR. His Majesty the German Emperor, King of Prussia; the President of the United States of America ; His Majesty the Emperor of Austria. King of Bohemia, &c., and Apostolic King of Hungary ; His Majesty the King of Spain ; the President of the French Republic; His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominion beyond the Seas, Emperor of India ; His Maj- esty the King of Italy; His Majesty the Emperor of Japan; Her Maj- esty the Queen of the Netherlands ; His Majesty the Emperor of All the Russias ; Considering the invitation which the British Government has given to various Powers to meet in conference in order to determine together as to what are the generally recognized rules of international law within the meaning of Article 7 of the Convention of 18th October, 1907, relative to the establishment of an International Prize Court; Recognizing all the advantages which, in the unfortunate event of a naval war an agreement as to said rules would present, both as re- gards peaceful commerce, and as regards the belligerents and their diplomatic relations with neutral Governments ; Considering that the general principles of international law are often in their practical application the subject of divergent procedure ; Animated by the desire to insure henceforward a greater measure of uniformity in this respect ; Hoping that a work so important to the common welfare will meet with general approval; Have appointed as their Plenipotentiaries, that is to say: [Names of Plenipotentiaries.] ^Vho, after having communicated their full powers found in good and due form, have agreed to make the present Declaration: 2The official text of this Declaration is iu the French language. WiLS.lKT.L, (."74) DECLARATION OF LONDON, FEBRUARY 2G, 1909. 575 PRELIMINARY PROVISION. The Siguatory Powers are agreed that the rules contained In the following chapters correspond in substance with the generally recog- nized principles of international law. CHAPTER I.— BLOCKADE IN TIME OF WAR. Article 1. A blockade must be limited to the ports and coasts belonging to or occupied by the enemy. Art. 2. In accordance with the Declaration of Paris, 1856, a block- ade, in order to be binding, must be effective— that is to say, it must be maintained by a force sufhcient really to prevent access to the en- emy coast. Art. 3. The question whether a blockade is effective is a question of fact. Art. 4. A blockade is not regarded as raised if by bad weather the blockading forces are temporarily driven off. Art. 5. A blockade must be applied impartially to the ships of all nations. Art. 6. The commander of a blockading force may grant to a war- ship permission to enter, and subsequently to leave, a blockaded port. Art. 7. In circumstances of distress, acknowledged by an author- ity of the blockading forces, a neutral vessel may enter a place under blockade and subsequently leave it, provided that she has neither discharged nor shipped any cargo. Art. 8. A blockade, in order to be binding must be declared in accordance with Article 9, and notified in accordance with Articles 11 and 16. Art. 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 coast blockaded. (3) The delay to be allowed to neutral vessels for departure. Art. 10. If the blockading Power, or the naval authorities acting in its name, do not establish the blockade in conformity with the pro- visions, which, in accordance with Article 9 (1) and (2), must be in- serted in the declaration of blockade, the declaration is void, and a new declaration is necessary in order to make the blockade operative. Art. 11. A declaration of blockade is notified — (1) To the neutral Powers, by the blockading Power by means of a communication addressed to the Governments themselves, or to their Representatives accredited to it. (2) To the local authorities, by the officer commanding the block- ading force. These authorities will, on their part, inform, as soon as possible, the foreign consuls who exercise their functions in the port or on the coast blockaded. 576 APPENDIX V. Art. 12. The rules relative to the declaration and to the notifica- tion of blockade are applicable in the case in which the blockade may have been extended, or may have been re-established after having been raised. Art. 13. The voluntary raising of a blockade, as also any limita- tion which may be introduced, must be notified in the manner pre- scribed by Article 11. Art. 14. The liability of a neutral vessel to capture for breach of blockade is contingent on her knowledge, actual or presumptive, of the blockade. Art. 15. Failing proof to the contrary, knowledge of the blockade is presumed if the vessel left a neutral port subsequently to the noti- fication of the blockade made in sufficient time to the Power to which such port belongs. Art. 16. If a vessel which approaches a blockaded port does not know, or cannot be presumed to know, of the blockade, the notifica- tion must be made to the vessel itself by an officer of one of the ships of the blockading force. This notification must be entered in the ship's log-book, with entry of the day and hour, as also of the geographical position of the vessel at the time. A neutral vessel which leaves a blockaded port must be allowed to pass free, if through the negligence of the officer commanding the blockading force, no declaration of blockade has been notified to the local authorities, or, if in the declaration, as notified, no delay has been indicated. Art. 17. The seizure of neutral vessels for violation of blockade may be made only within the radius of action of the ships of war as- signed to maintain an effective blockade. Art. 18. The blockading forces must not bar access to the ports or to the coasts of neutrals. Art. 19. Whatever may be the ulterior destination of the ship or of her cargo, the evidence of violation of blockade is not sufficiently conclusive to authorize the seizure of the ship if she is at the time bound toward an unblockaded port. Art. 20. A vessel which in violation of blockade has left a block- aded port or has attempted to enter the port is liable to capture so long as she is pursued by a ship of the blockading force. If the pur- suit is abandoned, or if the blockade is raised, her capture can no longer be effected. Art. 21. A vessel found guilty of breach of blockade is liable to condemnation. The cargo is also liable to condemnation, unless it is proved that at the time the goods were shipped the shipper neither knew nor could have known of the intention to violate the blockade. CHAPTER II.— CONTRABAND OF WAR. Art. 22. The following articles and materials are, without notice, regarded as contraband, under the name of absolute contraband: DECLARATION OF LONDON, FEBRUARY 26, 1909. 577 1. Arms of all kinds, including arms for sporting purposes, and their unassembled distinctive parts. 2. Projectiles, charges, and cartridges of all kinds, and their unas- sembled distinctive parts. 3. Powder and explosives specially adapted for use in war. 4. Gun carriages, caissons, limbers, military wagons, field forges, and their unassembled distinctive 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 unassembled distinctive parts. 9. Armor plates. 10. War-ships and boats and their unassembled parts specially dis- tinctive as suitable for use only on a vessel of war. 11. Implements and apparatus made exclusively for the manufac- ture of munitions of war, for the manufacture or repair of arms or of military material, for use on land and sea. Art. 23. Articles and materials which are exclusively used for war may be added to the list of absolute contraband by means of a notified declaration. The notification is addressed to the Governments of other Powers or to their Representatives accredited to the Power which makes the declaration. A notification made after the opening of hostilities is addressed only to the neutral Powers. Art. 24. The following articles and materials, susceptible of use in war as well as for purposes of peace, are without notice regarded as contraband of war, under the name of conditional contraband: (1) Food. (2) Forage and grain suitable for feeding animals. (3) Clothing and fabrics for clothing, boots and shoes, suitable for military use. (4) Gold and silver in coin or bullion ; paper money. (5) Vehicles of all kinds available for use in war, and their unas- sembled parts. (6) Vessels, craft, and boats of all kinds, floating docks, parts of docks as also their unassembled parts. (7) Fixed railway material and rolling stock, and material for tele- graphs, radio-telegraphs and telephones. (8) Balloons and flying machines and their unassembled distinctive parts as also their accessories, articles and materials distinctive as intended for use in connection with balloons or flying machines. (9) Fuel ; lubricants. (10) Powder and explosives which are not specially adapted for use in war. (11) Barbed wire as also the implements for placing and cutting the same. (12) Horseshoes and horseshoeing materials. WiLS.lNT.L.— 37 578 APPENDIX V. (13) Harness and saddlery material. (14) Binocular glasses, tolescdpes, chronometers, and all kinds of nautical instruments. Art. 25. Articles and materials susceptible of use in war as well as for purposes of peace, and other than those enumerated in Articles 22 and 24, may be added to the list of conditional contraband by means of a declaration which must be notified in the manner provided for in the second paragraph of Article 23. Art. 26. If a Power waives, so far as it is concerned, the right to regard as contraband of war articles and materials which are com- prised in any of the classes enumerated in Articles 22 and 24, it shall make known its intention by a declaration notified in the man- ner provided for in the second paragraph of Article 23. Art. 27. Articles and materials, which are not susceptible of use in war, are not to be declared contraband of war. Art. 28. The following articles are not to be declared contraband of war: (1) Raw cotton, wool, silk, jute, flax, hemp, and other raw ma- terials of the textile industries, and also j-arns of the same. (2) Nuts and oil seeds; copra. .(3) Rubber, resins, gums and lacs; hops. (4) Raw hides, 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 materials prepared for its manufacture. (10) Soap, paint and colors, including articles exclusively used in their manufacture, and varnishes. (11) Bleaching powder, soda ash, caustic soda, salt cake, ammonia, sulphate of ammonia, and sulphate of copper. (12) Agricultural, mining, textile, and printing machinery. (13) Precious stones, semi-precious stones, pearls, mother-of-pearl, and coral. (14) Clocks and w^atches, other than chronometers. (15) Fashion and fancy goods. (16) Feathers of all kinds, hairs, and bristles. (17) Articles of household furniture and decorations; office fur- niture and accessories. Art. 29. Neither are the following to be regarded as contraband of war: (1) Articles and materials serving exclusively for the care of the sick and wounded. They may, nevertheless, in case of urgent mili- tary necessity and subject to the payment of compensation, be re- quisitioned, if their destination is that specified in Article 30. DECLARATION OF LONDON, FEBRUARY 26, 1909. 579 (2) Articles and materials intended for the use of the vessel in which they are found, as well as those for the use of her crew and passengers during the voyage. Art. 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 either transhipment or transport over land. Art. 31. Proof of the destination specified in Article 30 Is com- plete in the following cases: (1) When the goods are documented to be discharged in a port of the enemy, or to be delivered to his armed forces. (2) When the vessel is to call at enemy ports only, or when she is to touch at a port of the enemy or to join his armed forces, before arriving at the neutral port for which the goods are documented. Art. 32. The ship's papers are complete proof of the voyage of a vessel transporting absolute contraband, unless the vessel is encoun- tered having manifestly deviated from the route which she ought to follow according to the ship's papers and being unable to justify by sufficient reason such deviation. Art. 33. Conditional contraband is liable to capture if it is shown that it is destined for the use of the armed forces or of a government department of the enemy State, unless in this latter case the circum- stances show that the articles cannot in fact be used for the pur- poses of the war in progress. This latter exception does not apply to a consignment coming under Article 24 (4). Art. 34. There is presumption of the destination referred to in Article 33 if the consignment is addressed to enemy authorities, or to a merchant, established in the enemy country, and when it is well known that this merchant supplies articles and material of this kind to the enemy. The presumption is the same if the consignment is destined to a fortified place of the enemy, or to another place serv- ing as a base for the armed forces of the enemy; this presumption, however, does not apply to the merchant vessel herself bound for one of these places and of which vessel it is sought to show the contraband character. Failing the above presumptions, the destination is presumed inno- cent. The presumptions laid down in this Article admit proof to the contrary. Art. 35. Conditional contraband is not liable to capture, except when on board a vessel bound for territory belonging to or occu- pied by the enemy, or for the armed forces of the enemy, and is not to be discharged at an intervening neutral port. The ship's papers are conclusive proof of the voyage of the vessel as also of the port of discharge of the goods, unless the vessel is encountered having manifestly deviated from the route which she 580 APPENDIX V. ought to follow according to the ship's papers and being unable to justify by sufficient reason such deviation. Art. 36. Notwithstanding the provisions of Article 3."), if the terri- tory of the enemy has no seaboard, conditional contraband is liable to capture if it is shown that it has the destination referred to in Article 33. Art. 37. A vessel carrying articles 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 course of her voyage, even if she has the intention to touch at a port of call before reaching the hostile destination. Art. 38. A capture is not to be made on the ground of a carriage of contraband previously accomplished and at the time completed. Art. 39. Contraband is liable to condemnation. Art. 40. The confiscation of the vessel carrying contraband is al- lowed if the contraband forms, either by value, by weight, by vol- ume, or by freight, more than half the cargo. Art. 41. If a vessel carrying contraband is released, the expenses incurred by the captor in the trial before the national prize court as also for the preservation and custody of the ship and cargo dur- ing the proceedings are chargeable against the ship. Art. 42. Goods which belong to the owner of the contraband and which are on board the same vessel are liable to condemnation. Art. 43. If a vessel is encountered at sea making a voyage in ig- norance of the hostilities or of the declaration of contraband affect- ing her cargo, the contraband is not to be condemned except with indemnity; the vessel herself and the remainder of the cargo are ex- empt from condemnation and from the expenses referred to in Ar- ticle 41. The case is the same if the master after becoming aware of the opening of hostilities, or of the declaration of contraband, has not yet been able to discharge the contraband. A vessel is deemed to be aware of the state of war, or of the dec- laration of contraband, if she left a neutral port after there had been made in .sufficient time the notification of the opening of hos- tilities, or of the declaration of contraband, to the power to which such port belongs. A vessel is also deemed to be aware of a state of war if she left an enemy port after the opening of hostilities. Art. 44. A vessel stopped because carrying contraband, and not liable to condemnation on account of the proportion of contraband, may, according to circumstances, be allowed to continue her voyage if the master is ready to deliver the contraband to the belligerent ship. The deliveiy of the contraband is to be entered by the captor on the log-book of the vessel stopped and the master of the vessel must furnish the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband which is thus delivered to him. DECLARATION OF LONDON, FEBRUARY 26, 1909. 581 CHAPTER III.— UNNEUTRAL SERVICE. Art. 45. A neutral vessel is liable to be coDdemned and, in a gen- eral way, is liable to the same treatment which a neutral vessel would undergo when liable to condemnation on account of contra- band of war: (1) If she is making a voyage specially with a view to the trans- port of individual passengers who are embodied in the armed force of the enemy, or with a view to the transmission of information in the interest of the enemy. (2) If, with the knowledge of the owner, of the one who charters the vessel entire, or of the master, she is transporting a military detachment of the enemy, or one or more persons who, during the voyage, lend direct assistance to the operations of the enemy. In the cases specified in the preceding paragraphs (1) and (2), goods belonging to the owner of the vessel are likewise liable to condemnation. The provisions of the present Article do not apply if when the vessel is encountered at sea she is unaware of the opening of hos- tilities, or if the master, after becoming aware of the opening of hostilities, has not been able to disembark the passengers. The ves- sel is deemed to know of the state of war if she left an enemy port after the opening of hostilities, or a neutral port after there had been made in sufficient time a notification of the opening of hostili- ties to the Power to which such port belongs. Art. 46. A neutral vessel is liable to be condemned and, in a gen- eral way, is liable to the same treatment which she would undergo if she were a merchant vessel of the enemy: (1) If she takes a direct part in the hostilities. (2) If she is under the orders or under the control of an agent placed on board by the enemy Government. (3) If she is chartered entire by the enemy Government. (4) If she is at the time and exclusively either devoted to the transport of enemy troops or to the transmission of information in the interest of the enemy. In the cases specified in the present Article, the goods belonging to the owner of the vessel are likewise liable to condemnation. Art. 47. Any individual embodied in the armed force of the enemy, and 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. CHAPTER IV.— DESTRUCTION OF NEUTRAL PRIZES. Art. 48. A captured neutral vessel is not to be destroyed by the captor, but must be taken into such port as is proper in order to de- termine there the rights as regards the validity of the capture. 582 APPENDIX V. Art. 49. As an exception, a neutral vessel oaptni-od by a belliger- ent ship, and which would be liable to condeumation, may be de- stroyed if the observance of Article 48 would involve danger to the ship of war or to the success of the operations in which she is at the time engaged. Art. 50. Before the destruction the persons on board must be plac- ed in safety, and all the ship's papers and other documents which those interested consider relevant for the decision as to the validity of the capture must be taken on board the ship of war. Art. .51. A captor who has destroyed a neutral vessel must, as a condition precedent to any decision upon the validity of the capture, establish in fact that he only acted in the face of an exceptional necessity such as is contemplated in Article 49. Failing to do this, he must compensate the parties interested without examination as to whether or not the capture was valid. Art. 52. If the capture of a neutral vessel, of which the destruc- tion has been justified, is subsequently held to be invalid, the captor must compensate those interested, in place of the restitution to which they would have been entitled. Art. 53. If neutral goods which were not liable to condemnation have been destroyed with the vessel, the owner of such goods is en- titled to compensation. Art. 54. The captor has the right to require the giving up of, or to proceed to destroy, goods liable to condemnation found on board a vessel which herself is not liable to condeumation, provided that the circumstances are such as, according to Article 49, justify the destruction of a vessel liable to condemnation. The captor enters the goods delivered or destroyed in the log-book of the vessel stop- ped, and must procure from the master duly certified copies of all relevant papers. When the giving up or destruction has been com- pleted and the formalities have been fulfilled, the master must be allowed to continue his voyage. The provisions of Articles 51 and 52 respecting the obligations of a captor who has destroyed a neutral vessel are applicable. CHAPTER v.— TRANSFER OF PLAG. Art. 55. The transfer of an enemy vessel to a neutral flag, effected before the opening of hostilities, is valid, unless it is proved that such transfer was made in order to evade the consequences which the enemy character of the vessel would involve. There is, how- ever, a presumption that the transfer is void if the bill of sale is not on board in case the vessel has lost her belligerent nationality less than sixty days before the opening of hostilities. Proof to the contrary is admitted. There is absolute presumption of the validity of a transfer ef- fected more than thirty days before the opening of hostilities if it is absolute, complete, conforms to the laws of the countries concern- DECLARATION OF LONDON, FEBRUARY 26, 1909. 583 ed, and if its effect is such that the control of the vessel and the profits of her employment do not remain in the same hands as be- fore the transfer. If, however, the vessel lost her belligerent nationality less than sixty days before the opening of hostilities, and if the bill of sale is not on board, the capture of the vessel would not give a right to compensation. Art. 5G. The transfer of an enemy vessel to a neutral flag, effected after the opening of hostilities, is void unless it is proved that such transfer was not made in order to evade the consequences which the enemy character of the vessel would involve. There is, however, 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 there is a right of redemption or of reversion. (3) If the requirements upon which the right to fly the flag de- pends according to the laws of the country of the flag hoisted have not been observed. CHAPTER VI.— ENEMY CHARACTER. Art. 57. Subject to the provisions respecting the transfer of flag, the neutral or enemy character of a vessel is determined by the flag which she has the right to fly. The case in which a neutral vessel is engaged in a trade which is reserved in time of peace, remains outside the scope of, and is in no wise affected by this rule. Art. 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. Art. 59. If the neutral character of goods found on board an en- emy vessel is not proven, they are presumed to be enemy goods. Art. 60. The enemy character of goods on board an enemy vessel continues until they reach their destination, notwithstanding an in- tervening transfer after the opening of hostilities while the goods are being forwarded. If, however, prior to the capture a former neutral owner exer- cises, on the bankruptcy of a present enemy owner, a legal right to recover the goods, they regain their neutral character. CHAPTER VII.— CONVOY. Art. 61. Neuti'al vessels under convoy of their national flag are exempt from search. The commander of a convoy gives, in writing, at the request of the commander of a belligerent ship of war, all in- formation as to the character of the vessels and their cargoes, which could be obtained by visit and search. 584 APPENDIX V. Art. G2. If the commander of the belligerent ship of war has rea- son to suspect that the coiifldence 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 conduct an in- vestigation. He must state the result of such investigation in a re- port, of Avhich a copy is furnished to the officer of the ship of war. If, in the opinion of the commander of the convoy, the facts thus stated justify the capture of one or more vessels, the protection of the convoy must be withdrawn from such vessels. CHAPTER VIII.— RESISTANCE TO SEARCH. Art. 63. Forcible resistance to the legitimate exercise of the right of stoppage, visit and search, and capture, involves in all cases the condemnation of the vessel. The cargo is liable to the same treat- ment which the cargo of an enemy vessel would undergo. Goods belonging to the master or owner of the vessel are regarded as ene- my goods. CHAPTER IX.— COMPENSATION. Art. 64. If the capture of a vessel or of goods is not upheld by the prize court, or if without being brought to judgment the captured vessel is released, those interested have the right to compensation, unless there were sufficient reasons for capturing the vessel or goods. FINAL PROVISIONS. Art. 65. The provisions of the present Declaration form an indi- visible whole. Art. 66. The Signatory Powers undertake to secure the reciprocal observance of the rules contained in this Declaration in case of a war in which the belligerents are all parties to this Declaration. They will therefore issue the necessary instructions to their authori- ties and to their armed forces, and will take the measures which are proper in order to guarantee the application of the Declaration by their Courts and more particularly by their prize courts. Art. 67. The present Declaration shall be ratified as soon as pos- sible. The ratifications shall be deposited in Loudon. 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 For- eign Affairs. The subsequent deposits of ratifications shall be made by means of a written notification addressed to the British Government, and accompanied 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 ac- DECLARATION OF LONDON, FEBRUARY 20, 1009. 585 company them, shall be immediately sent by the British Government, through 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 re- ceived the notification. Art. 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. Art. G9. If it happens that one of the Signatory Powers wishes to denounce the present Declaration, such denunciation can only be made to take effect at the end of a period of twelve years, begin- ning 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 Power which shall have made the notification. Art. 70. The Powers represented at the London Naval Conference attach particular value to the general recognition of the rules which they have adopted and express the hope that the Powers which were not represented will adhere to the present Declaration. They re- quest the British Government to invite them to do so. A Power which desires to adhere notifies its intention in writing to the British Government, In transmitting the act of adhesion, which will be deposited in the archives of the said Government. The said Government shall forthwith transmit to all the other Powers a duly certified copy of the notification, as also of the act of adhesion, stating the date on which it received the notification. The adhesion takes effect sixty days after such date. The position of the adhering Powers shall be in all matters con- cerning this Declaration similar to the position of the Signatory Powers. Art 71. The present Declaration, which shall bear the date of the 26th February, 1009, may be signed in London until the 30th June, 1909, by the Plenipotentiaries of the Powers represented at the Na- val Conference. In faith whereof the Plenipotentiaries have signed the present Declaration, and have thereto afiixed 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- posited in the archives of the British Government, and of which duly certified copies shall be sent through the diplomatic channel to the Powers represented at the Naval Conference. TABLE OF CASES CITED [the figures Kp:rER to pages.] Acteon. The, 307. Adeline, The. 300. Adger v. Alston. 379. Adula, The, 451. Adventure, The, 477. Alexander, The. 299. Alliance, The. 303. Amelia, The, 16. Antelope, TTie, 75. Ariadne, The, 473. Astrea, The, 300. Atlas, The, 40(;. Aurora, The, 3G.j, 473. B Batesville Institute v. Kauffman, 379. Benito Estenger, The, 407. Bentzon v. Boyle, 295. Bermuda, The, 463. Blumer, Ex parte, 16. Brown v. Hiatt, 379. Brown v. U. S., 284. Buena Ventura, The, 243, 247, 290. Caledonian, The, 365. Carolina, The, 470. Carter v. McClaughry, 340. Charming Betsy. The, 16. Chicago, R. I. & P. R. Co. v. Me Glinn, 77. Chinese Exclusion Case, 143. WlLS.lNT.L. (58 Church of Jesus Christ of Latter- Day Saints v. U. S., 83. Circassian, The, 449, 451, 462, 480. Columbia, The, 451. Commercen, The, 430, 431. Constitution, The, 150. Coppell V. Hall, 365. Cotton Plane, The, v. U. S., 477. Davis V. Concordia Parish, 84. De Geofroy v. Riggs, 194, 200, Delassus v. U. S., 84. De Lima v. Bidwell, 84. Dewey v. U. S., 310. Diamond Rings, The, 84, 191. Direct U. S. Cable Co. v. Anglo American Tel. Co., 101, 103. Divina Pastora, The, 27. Dooley v. U. S., 84, 329, 330, 332. Dow V. Johnson, 339. Downes v. Bidwell, 84, 133, 330. Dynes v. Hoover, 340. Edward and Mary, 299. Edye v. Robertson, 191. Emperor of Austria v. Day, 27. Ernst jNIerck. The, 407. Exchange, The, v. McFaddon, 92, 148, 149. Felicity, The, 307. Florida, The, 250. 7) 588 CASES CITED. [The figures refer to pages.] 143. Fong Tue Ting v. U. S. Foster v. Neilson, 27. Francis. The. 400. Franeislvji, Tlie, 451. Franlvlin, The, 434. Frederick Mollie, Tlie, 451. 454. Frelinsluiysen v. Key, 22S. Friendship, The, 470. Garcia v. Lee, 27. Geipel v. Smith, 448. Gelston v. Hoyt, 27. General Hamilton, The, 454. George, The, 303. Georgia v. Tennessee Copper Co. 88. Gospel V. "UTieeler, 272. Grotius, The, 299, 410, 477. Guyer v. Smith, 127. H Handly v. Anthony, 86. Harmony, The, 294. Hauenstein v. Lynham, 200. Haver v. Yal^er, 199. Hilton V. Guyot. 5, 6, 13. Hiram, The, 36.5, 473. Hoop, The, 303. Hudson County Water Co. v. Mc- Carter, 89. I Illinois Cent. R. R. v. Illinois, 104, 105, 115. Imperial Japanese Government v. P. & O. Co., 204. Insular Decisions, 133. Iowa V. Illinois, 107. Jange Tobias, The, 433. Johanna Maria, The, 446, 451. Johnson v. Mcintosh, 80, 83, 37U. Jones v. U. S., 27, 80. Jonge Klassina, The, 295. Julia, The, 365, 473. K Keone v. McDonough, 27. Kennett v. Chambers, 16. La Abra Silver Min. Co. v. U. S. 211. 228. Lamar \. Browne, 478. La Ninfa, 227. Leucade, The. 307. Lucy, The, 433. Luther v. Borden, 339. M Maissonaire v. Keating, 302. Mangrove, The, 309. Maria, The, 10, 405, 478. Mary, The, 299. Memphis, The, 455. Mighell V. Sultan of Johoro. 148 Miller v. Resolution, ,302, 477. Milligan, Ex parte, 343. Mitchell V. U. S., 371. More V. Steinbach. 77. Mortensen v. Peters, 110. N Neptunus, The, 451. Nereide, The, 17. New York, The, 17. New York Life Ins. Co. t. Sta- tham, 270. North American Commercial Co. V. U. S., 228. Olinde Rodrigues. The, 443, 443. Orozembo, The, 470. 10, Panama, The, 290, 312. Paquete Habana, The, 5, 0. 13, 17, 288. Parlement Beige, The, 7G. 150. Pedro, The, 14, 243, 249, 477. Pelican, The, 27. Peterhoff, The. 434, 441, 4G3. Prize Cases, The, 249, 272. 440 446. Protector, The, 249, 374, 379. Reg. V. Cunningham, 101. Reg. V. Jameson, 391. Reg. V. Keyn, 85, 86. Republic of Peru v. Dreyfus, 27. Republic of Peru v. Peruvian Guano Co., 27. Respublica v. De Longchamps, IG. Ringende Jacob, The, 433. Salvador, The, 44. Santa Cruz, The, 10. Santissima Trinidad, The, 92, US, 303, 431. Santo Domingo, The, 310. Scholefleld v. Eichelberger, 270. Scotia, The, 10, 16. Screw Collier Co. v. Schurmans. 98. Sea Lion, The, 3G5. Semmes v. City Fire Ins. Co., 378. Semmes v. Hartford Ins. Co., 270. Sifekin V. Glover, 3G5. Siren, The, v. U. S., 477. Small's Adxn'r v. Lumpkin's Ex'x, 271. Society for Propagation of Gos- pel V. New Haven, 378. Springbok, The, 462. Staadt Embden, The, 434. Star, The, 478. CASES CITED. 589 [The figures refer to pages.l State of Kansas v. State of Colo- rado, lOG. Stephen Hart, The, 463. Strother v. Lucas, 84. Symons v. Baker, 150. Talbot V. Seeman, 16. Taylor v. Barchlay, 27. Thirty Hogsheads of Sugar T. Boyle, 5, 12, 16, 330. Thompson, The, 404. Three Friends, The, 39, 40, 44, 243. Tucker v. Alexandroff. 200, 201. Two Friends, The, 300. Underhill v. Hernandez, 44, 56, 243. U. S. V. The Active, 16. U. S. V. Alexander, 477. U. S. V. Arjona, 16. U. S. V. De la Maza Arredondo, 5, 84. U. S. V. De Repentigny, 83. U. S. V. Dewey, 300, 310, 477. U. S. V. Diekelman, 332. U. S. V. Dunniugton, 381. U. S. V. Huckabee, 83, 371. U. S. V. Lynde, 27. U. S. V. McRae, 50. U. S. V. Moreno, 370. U. S. V. One Hundred Barrels of Cement, 40. U. S. V. Palmer, 27. U. S. V. Percheman, 52, 84, 371. U. S. V. Rauscher, 146. U. S. V. Rice, 331. U. S. V. Rodgers, 104, 117. U. S. V. Rogers, 115. U. S. V. Smith, .50. U. S. V. Taylor, 310. U. S. V. Wright, 363. U. S. V. Yorba, 27. 590 Vavasseur v. Krupp, 7G. 148, Vrouw Anna Cathaiiiui, 295. w CASES CITED. [The figures refer to pages.] West Rand Cent. Gold Min. Co. v. Rex, 11. Williams v. Suffolk Ins. Co., 27. William, The. 401. Wilson V. McManee, 117. 13. Walshingham Packet, The, Ward V. Race Horse, 207. Ward V. Smith, 271. Ware v. Hylton, 4, 31, 284. Weber v. Harbor Com'rs, 115. Welvaart van Pillaw. The, 4.54. Western Union Tel. Co. v. Texas, 123. Yangtsze Ins. Ass'n v. Indemnity Mutual Marine, lus. Co., 470. Yeaton v. Frj-, 451. Zaratarlan v. Billings, 131. INDEX [the figubks refer to pages] A ABROGATION, of treaties, 211. ABSOLUTELY CONTRABAND, what articles are, 426, 427. ABSTENTION, neutral duty of, 256-258. ACCRETION, acquisition of territory by, 82. ACQUISITION, of international status, 24-25. of territorial domain, 79-85. of nationality, 126-135. ADMISSION, of insurgency, 48. AERIAL DOMAIN, what it includes, 87-90. AERIAL JURISDICTION, 120-124. AGGRESSION. of insurgent, resisted by private vessel, 48. ALABAMA, case of, 260. ALIENS, rights of, as to naturalization, 137-139. Jurisdiction over, 143-145. ALLIES, obligations in case of war, 253. ALTERNAT, principle of, 197. AMALPHITAN TABLES, 10. WiLS.lNT.L. (591) 592 INDEX. [The figures refer to pages.] AMBASSADORS, office of in early days, 161. rules as to, 1G2-164. appointment of, 163. right of legation, 165. suite of, 166. credentials, 166-168. commencement of mission, 168, 169. privileges and prerogatives of, 169-176. functions of, 176-178. termination of mission, 178-180. AMNESTY, nature of, 381. ANGARY, right of, 416. ANGLO-AMERIOAN DOCTRINE, of contraband, 433, 434. APPOINTMENT, of diplomatic agents, 162-164. of consuls, 1S4-186. ARBITRAL JUSTICE, court of, 225, 568. ARBITRATION, historical development of, 221, 222. Hague Convention, 12, 223, 375, 519. by summary procedure, 224, 532. award, 227, 531. ' AREA, of belligerent operations, 250-253. of operations of blockading force, 456, 457. ARMED NEUTRALITIES OF 17S0 AND 1800, 388, 402. ARMISTICES, kinds of, 360. of Russia and Japan. 360. operation of, 361, 362. ASYLUM, on vessels, 118. ' in legations, 172. in consulates, 188. ATALAN-TA, case of, 472. AWARD, made by arbitrators, 227, 228. 531. INDEX. 593 FThe figures refer to pages.] B BALANCE OF POWER IN EUROPE, intervention for maintenance of, 66, 67. BALLOONS, in aerial domain, 88. jurisdiction over, 121. launching of projectiles from, 326, 327. BAYS, jurisdiction over, 100. BELGIUM, neutralization of, 33. BELLIGERENCY, recognition of, 40-43. BELLIGERENTS, effect of war, 253. obligations of, 254, 255. persons, 273. qualifications of, 274, 275. property on land, 278-284. property at sea, 285-298. maritime capture, 299-316. conduct of tiostilities, 317-328. occupation, 329-343. nonhostile relations of, 357-365. relations with neutral states, 395. relations with neutral individuals, 395, 396. carriage of, 470. BELLIGERENT OPERATIONS, area and general effect of, 250-253. BERING SEA. fisheries in, 115. BERLIN CONFERENCE, on acquisition of African territory, 80. BLOCKADE, pacific, 235-237. a war measure, 262. definition of, 439, 440 commercial, 440. strategic, 440. place of, 440^42. establishment of, 442, 443. declaration and notification of, 441 - 41 6. maintenance of, 447. WiLS.lNT.L.— 38 594 INDEX. [The figures refer to pages.] BLOCKADE— Continued, termination of, 449-451. violation of, 451, 452. penalty for violation of. 4.5.3. area of, 45G. liability for violation of, 454-458. BOMBARDMENT, regulations of, 323, 324. BOOTY, nature of, 284. BRITISH ENLISTMENT ACT, provisions of, 491. c CANADA, coast fislieries, 117. CANALS, navigation of, 109-113. Corinth, 110. Kiel, 110. Suez, 109, 110. Panama, 112. Nicaraguan, 111. status of in war, 441. CAPITULATION, nature of, 358, 359. CAPTURE, grounds of on sea, 404. 405. exemptions from, 285-295. CAPTURED VESSELS, treatment of, 409-412. CARTEL SHIP, exemption of, from capture, 286, 287. CARTELS, what they are, 193, 362, 363. CEREMONIALS, diplomatic, 168. CESSATION OF HOSTILITIES, involving military occupation and military control, 341-343. as a termination of war, 373, 374. efiTect of, 374, 375. CESSION, of territory, 83-85. INDEX, 695 [The figures refer to pages.] CHAP^GES D' AFFAIRS. rules as to, 161 et seq. CHARITABLE INSTITUTIONS, in time of war, 281. CHINA, United States Court for, 152. leased territory in, 95-97. CIRCASSIAN, THE, case of, 462. CITIZENSHIP, see Nationality, acquisition of, 12G-135. expatriation, 135. CIVIL RIGHTS AND REMEDIES, during war, 270-272. CLEVELANT), PRESIDENT, position, as to intervention of VenezAiela, 70, 71- neutrality laws, 44. as to practice in case of diplomats, 178. COMBATANTS. who are, 273-276. COMMENCEMENT, of war, 245-249. of mission, IGS, 169. ' COMMERCIAL BLOCKADE, what it is, 440. COMMISSIONS OF INQUIRY, what they are, 220-221. 521. Dogger Bank affair, 220. COMMUNICATION, hy wires, 296. without wires, 296-298. CONCEPTION BAY, jurisdiction of, 103. CONDITIONALLY CONTRABAJSTD, articles, 427, 428. CONDOMINIUM, joint jurisdiction, 93. CONFERENCES AND CONGRESSES, as a means of settling disputes, 222-226. CONFISCATION, as military measure, 304. 596 INDBX. [The figures reler to pages.] CONQUEST, acquisition by, 82. termination of war by, 366-368. effect of, 36S-372. CONSTITUTION OF THE UNITED STATES, as to force of international law, 15. as to citizens of the United States, 126. appointment of ambassadors, 163. as to effect of treaty, 207. CONSULS, exemptions of, 14S. historically considered, 181, 182. functions of, 182-184. appointment and reception of, 184-186. termination of office, 186, 187. immunities and privileges of, 187-190. CONTINUOUS VOYAGES, rule as to, 459-468. CONTRABAND OF WAR, liability to seizure, 262, 430^32. definition of, 418-420. classification of, 420^30. penalty for carrying, 432-437. CONTRACT, form of between states, 195-197. suspension of private, 270. CONTRIBUTIONS, in war, 282. CONVENTION, difference between and treaty, 192. Declaration of Paris, April 16, 1856, 487. instructions for the government of armies of the United States in the field, April 24, 1863, 488. Geneva Convention for the amelioration of the condition of the wounded in armies in the field, July 6, 1906, 508. Hague Conventions of 1907 — final act of the Second International Peace Conference, 515. convention for the pacific settlement of international dis- putes, 519. convention respecting the laws and customs of war on land, 535. convention respecting the rights and duties of neutral pow- ers and persons in case of war on land, 546. convention for the adaptation to naval war of the principles of the Geneva Convention, 549. INDEX. 597 [The figures refer to pages.] CONVENTION— Continued, convention relative to tlie creation of an international prize court, 554. convention concerning tlie rights and duties of neutral pow- ers in naval war, 563. draft convention relative to the creation of a court of ar- bitral justice, 568. Declaration of London, February 26, 1909, 574. CONVERSION OF MERCHANT VESSELS, in time of war, 314. CONVOY, vessels under, 402, 403. CORRESPONDENTS, newspaper, 345. not spies, 327. COURTS, of prize, 12-13, 478-482. of arbitration, 12, 225. martial, 340. CRIMES, extradition for, 146. CUSTOM, practice and usage, 9. DANISH SOUND DUES, abolition of, 108. DEATH OF DIPLOMATIC AGENT, proceedings on, 179. DEBTS, iu time of war, 244. DECLARATION OF IX)NDON, provisions of, 307, 308, 403, 406, 414, 415, 431, 432, 434-437, 442, 444, 452, 456, 4S2. form of, 574. DECLARATION OF PARIS, as to contraband, 419. form of, 487. DECLARATION, of intention to change nationality, 140. of war, 246-248. of neutrality, 393, 394. of blockade, 444-446. 598 INDEX. [The figures refer to pages.] DECT.ARATIONS, delined, 193. DEFINITIONS, see word or phrase when defiuition is desired. DE GEOFREY V. RIGGS, case of, 200. DELAI DE PAVEUR, vessels exempt by, 289. DENMARK, jurisdiction of, over Danish Sound and Two Belts, 108, 109. DENUNCIATION, of treaty, 210. DEPARTMENT OF FOREIGN AFFAIRS, in diplomacy, 158-159. DESTRUCTION, of neutral property at sea, 412-417. of enemy property, 322. DIPLOMATIC AGENTS, exemptions of, 148. grades of, 159-162. appointment of, 162-164. right of legation, 104-166. suite of, IGG. credentials of, 166-168. commencement of mission, 168, 1G9. privileges and prerogatives, 169-176. functions of, 176-178. termination of mission, 178-180. DIPLOMATIC NEGOTIATION, as a means of adjusting differences, 218. DIPLOMATIC PAPERS, as a source of international law, 14. DIPLOMATIC RELATIONS, breaking off of, 229, 230. DISPUTES, amicable settlement of, 217-228, 519. DOGGER BANK AFFAIR. commission of inquiry on, 220. DOMAIN, kinds of, 78, 79. acquisition of territorial, 79-85. maritime and fluvial, 85-87. aerial, 87-90. INDEX. 599 [The figures refer to pages.] DOMICILE, as test of liability to capture, 294. "DUE DILIGENCE," duty to use, 2G0. "means at its disposal," art. 25, 5GG. DUTY, of nonintervention, 57-65. E EGYPT, mixed courts of, 152. condominium over Soudan, 94. EMBARGO, defined, 232-233. ENEMY, see Belligerents. EQUALITY, right of, 73-75. ESCAPE, of prisoners of war, 350, 351. EXCHANGE, of prisoners of war, 350. EXEMPTIONS, from .iurisdietion, 147-150. of diplomat, from criminal and civil jurisdiction, 170-172. of consuls, 187. EXEQUATUR, form of, 1S5. withdrawal of, 1S7. EXPATRIATION, doctrines of, 135, 136. EXTRATERRITORIAL JURISDICTION, nature and extent of, 151, 152. EXTERRITORIALITY, see Exemptions ; Immunity. EXTRADITION, nature of, 145-147. F FALSE COLORS. in maritime warfare. 322. GOO INDEX. IThe figures refer to pages.) FISHERIES, ou high seas, 115-117. Bering Sea, 115, 116. Canadian, 117. FISHING VESSELS, exemption of, from capture, 288, 289. BT^AG, transfer of, 407, 408, 582. FLAGS OF TRUCE, use of, 357, 358. FORAGING, when allowed, 283. FORBIDDEN METHODS, in war, 322, 323. FORCE. display of, 234. FORCES, belligerent, 273. FOREIGN AFFAIRS, department of, 158, 159. FOREIGN-BORN SUBJECTS, jurisdiction over, 126. FOREIGN ENLISTMENT ACXT, British regulations, 263. FORMOSA, blockade of, 235, 236. FRANCE, treaty of United States as to "most favored nation clau.se, 202-204. treaty with Spain, as to recession of Louisiana, 213. FREiE GOODS, doctrine of, 428, 429. '•FREE SEAS," limits of, 97. "FULL POWERS," of diplomats, 167. G GENE^^A ARBITRATION, neutral duties, 260. GENEVA CONVENTION, as to neutral duty of prevention, 258. INDEX. 601 [The figures refer to pages.] GENEVA CONVENTION — Continued, for the amelioration of the condition of the wounded in armies in the field 1906, provisions of, 354, 508. adaptation to maritime warfare, 355, 549. GERMANY, position of as to aerial domain, 89. attitude of as to transport of wounded across Belgium, 261. ordinance regarding payment of war debts, 281. GOODS, liability of, to capture at sea, 286. in general, 290-295. enemy character of, 294. GOOD OFFICES, settlement of disputes by resorting to, 218-220. GOVERNMENT, forms of, 23. GREAT BRITAIN, political union with Hanover, 34. as protector of South African Republic, 35. temporary occupation of Egypt, 38. relations of, to treaty of Utrecht, 66. declaration with Germany as to spheres of influence in West- ern Pacific, 81. agreement of, as to Islands of Samoa, 93. agreement with Egypt, as to condominium over the Soudan, 94, 95. Clayton-Bulwer treaty with United States, 111. Hay-Pauncefote treaty in regard to trans-isthmian canal. 111. convention of, as to Suez Canal, 110. treaty with United States as to navigation of Mississippi, 114. jurisdiction of, over aliens, 135. contention in regard to "most favored nation clause," 204. agreement with Japan, 206. attitude toward blockade of Venezuela, 236. doctrine of continuous voyage, 460. case of the seizure of the Herzog, General, and Bundesrath, 464, 465. GREAT LAKES, jurisdiction over, 104, 105. GREAT POWERS, enumeration of, 74. GREECE, in early international law, 7. as to arbitration, 221. 602 INDEX. [The figures refer to pages.] GROTIUS, contribution to international law, 8. GUADALUPE HIDALGO, treaty of, as to arbitration, 222. GUARANTY, treaties of, 205-207. GULFS, as affecting jurisdiction, 100. navigation of, 201. H HAGUE CONVENTIONS, as to court of arbitration, 12, 519. customs of war on land, 280, 296, 333, 336, 347, 535. rights of capture, in naval war, 301. conversion of merchant ships into war ships, 315. laying of automatic contact submarine mines, 324, 32.5. care of sick and wounded, 355, 549. pacific settlement of international disputes, 375, 519. final act of the Second Peace Conference, 515. rights of neutral powers in naval war, 410. 411, 563. rights of neutral powers in war on land, 121, 254, 255, 256, 257, 297, .346. creation of international prize court, 4S1, 554. adaptation to naval war of the principles of the Geneva Con- vention, 354, 549. draft convention relative to creation of court of arbitral jus- tice, 568. relative to the creation of international prize court, 554. HAY-PAUNCEFOTE TREATY, as to navigation and neutralization of canal, 111. HEAD OF STATE, in international relations, 157, 158. HILTON V. GUYOT, case of, 5, 6. "HINTERLAND DOCTRINE," of occupation, 81. HOSPITAL SHIPS, status of, 287. HOSTILE MILITARY OCCUPATION, what constitutes, .329-331. HOSTILITIES, commencement of, 24.5. cessation of, 373, 374. INDEX. 603 [The figures refer to pages.] h6tel op state representative, exemption of, 148. HUMANITT, as ground for intervention, 64. I IMMUNITY, of diplomatic agents, 172. of consuls, 187. INDEPENDENCE, right of, 56, 57. INDIVIDUALS, see Persons, under international law, 21. INSTRUMENTS, of war, 319. INSURANCE, suspension of, 270. INSURGENCY, what constitutes, 43^9. INTERCOURSE, right of, 165. suspension of, 271. INTEREST. suspension of, 271. INTERNATIONAL ARBITRATION, object, etc., 221-228. INTERNATIONAL COMMISSION OF INQUIRY, into North Sea incident, 220. INTERNATIONAL DIFFERENCES, nature of, 217. INTERNATIONAL LAW, definition of, 2-6. place of international private law, 6. development of, 7-9. sources of, 0-14. force of, 15-17. status of persons in, 21. states, 22. definition of state, 22-24. acquisition of international status, 24, 25. recognition of international status, 26-31 persons having limited status, 31. 604 INDEX. [Th» figures refer to pages.] INTERNATIONAL LAW— Continued, states outside the family of nations, 32. neutralized states, 32, 33. members of political unions, 33-35. protected states, 35-39. belligerents, 39. recognition of belligerency, 40-43. insurgency, 43—49. loss or modification of status, 49-52, INTERNMENT, of belligerent troops, 264. of vessels, 268, 209. INTERPRETATION, of treaties, 199-202. INTERVENTION, for self-preservation, 58. under treaty of guaranty, 61. on invitation of a party to civil war, 62. under sanction of a body of states, 63. on grounds outside field of International law, 64. on grounds of humanity, 64. for protection of religion, 64. policy of, 66-73. INVIOLABILITY, of diplomat, 169. of consular oflBcers, 188. ITALY, convention of, as to the Suez Canal, 110. strain of diplomatic relations with United States, 230. treaty with United States as to exemption of vessels, 287. J JAPAN, entrance to family of nations, 25. treaty of guaranty with Great Britain, 206. regulation as to procedure in capturing vessels, 317. regulations as to visit and search, 400. regulations governing captures at sea, 460. JURISDICTION, nature of, 91-92, over territory and property, 92. joint, 93-95. over leased territory, 95-97. over waters, 97-115. over fisheries, 115-117. over vessels, 117-120. INDEX. 605 [The figures refer to pages.] JURISDICTION— Continued^ aerial, 120-124. over nationals, 125-143. over aliens, 143-145. exemption from, 147-150. extraterritorial, 151, 152. JUS GENTIUM, defined, 7. JUS NATURALS, defined, 7. JUS SANGUINIS, explained, 126, 135. JUS SOLI, explained, 126, 135. KBILET, MR., case of, 165. KENNAN, MR., case of, 144. KOSZTA, MARTIN, case of, 141, 142, LA ALBA SILVER MINING OO., case of, 227, 228. LAKES, jurisdiction over, 103. LEGATION, right of, 164-166. LEJTTERS OF CREDENOB. nature of, 166. form of, 167. termination of diplomatic mission by expiration of, 179. LICENSES, to trade, 165. LIEBER, rules for government of armies of United States, 488, 508. LOANS, by neutral to belligerent state, 257. LYNCHING, at Tallulah, La., ISa action on, 139. G06 INDEX. [TTve figures refer to pagps.] M MAIL VESSELS, exemption from visit and search, 402. ^LiRGINAL SEA, jurisdiction of, 97. MARINE LEAGUE, of maritime jurisdiction, 97. MARITIME WAR, property at sea, 285-298. capture, 299-316. MARRIAGE, as affecting nationality, 128, 129. MEDIATION, see Good OflBces. AIERCH, ERNEST, case of, 407. MILITARY ASSISTANCE, not to be furnished by neutral to belligerent, 258-2G2: MILITARY AUTHORITY, exercise of, 203. exercise of in occupied territory, 334-338. inLITARY COMMISSIONS, what they are, 341. MILITARY GOVERNMENT, what constitutes, 331-334. MILITARY LAW, where and when it exists, 340, 341. MILITARY OCCUPATION, nature of, 329. government under, I'.ni. exercise of authority, 334. cessation of, 341. MILITIA, calling forth of, in case of insurgency, 43. MINES; regulation of use, 324. inNISTERS, plenipotentiary, 159-161. resident, 159-161. INDEX. 607 [The figures refer to pages.] MONROE DOCTRINE, history of, 67-68. President Roosevelt's interpretation, (50-70. in Venezuelan controversy, 70-71. various interpretations of the principles, 71-73. MONROE, PRESIDENT, statement of IMonroe Doctrine, 67. on the claims of Russia on northwest coast of American con- tinent, 67. "MOST FAVORED NATION CLAUSE," interpretations of, 202-205. MORA CLAIM, case of, 218. MOVABLE PROPERTY, of military use, 282. 283. MUNICIPALITIES, property of in war. 281. MUNITIONS OF WAR, sale of by neutral state, 256. sale of by neutral individual, 257. N NAPOLEON BONAPARTE, position, as to balance of power, 67. NATURAL^BORN SUBJECTS, jurisdiction over, 126. NATIONALITY, acquisition of, 126-134. abandonment of, 135. NATIONALITY OF VESSEL, how determined, 120. NATIONALS, definition, 125. jurisdiction over, 12.1. protection of, 136-143. NATURALIZATION, nature of, 127. NAVAL FORCES. exemptions of, 149. NAVIGATION, rights of, 108. 608 INDEX. [The figures refer to pages.] NEKiOTIATION OF TREATIES, essentials and form, 194, 195. NETHERLANDS, convention of, as to Suez Canal, 110 rule of expatriation, 135. NEUTRALITY, proclamation of, 264. duty of abstention, 256-258. duty of prevention, 258-262. obligation of toleration, 262, 263. duty of regulation, 2G3-270. definition of, 385, 386. development of, 386-391. declaration of, 393, 394. division of subject 395, 396. visit and search in case of, 397-402. convoy, in case of, 402, 403. contraband, in case of, 41S-438. blockade, in case of, 439-451. violation of blockade, 451^58. continuous voyage, 459-468. unneutral service, 469-476. prize and prize courts, 477-482. NEUTRALIZATION, of states, 391-393. NEUTRAL INDIVIDUALS, during war, status of, 277. NEUTRAL MERCHANT SHIPS, exemptions of, from visit and search, 401, NONCOMBATANTS, who are, 273-276. NONHOSTILE REDRESS, what is, 229-237. NONINTERCOURSE ACTS, suspension of, 271. NONINTERVENTION, duty of, 57-65. NORTH SEA FISHERIES, convention as to, 220-221. NOTIFICATION, of commencement of war, 249. of blockade, 444-446. INDEX. 609 [The figures refer to pages.] OCXiJASIONAL CONTRABAND, term sometimes used, 424. OCCUPATION, a method of acquiring territory, 79-8L vessels exempt by, 288, 289. . military, 329-331. OPERATION, of treaties, 207-209. OTTOMAN EMPIRE, treaty with United States, 1^, 184. OXFORD MANUAL OF LAWS OF WAR, Von Moltke on, 318. PACIFIC BLOCKADE, nature of, 235-237, 439. those since 1827, 235. PANAMA. recognition of, 30. PAPACY, Holy See, 23. PAPERS, ship's, 404. PAQUETE HABANA, case of, 5, 13. PARIS, Declaration of, 311, 434, 448. terms of Declaration of, 487. PARLIAMENT BELGE, case of, 150. PARTNERSHIPS, in time of war, 271. PAROLE, release on, 349. PARTNERSHIP, suspension of in war, 271. PASSPORT, document of identification, 145. given in time of war, 364. WiLS.lNT.L.— 39 610 INDEX. [The figures refer to pages.] PBDRO, case of, 14. PERFIDY, deceit involving, 322. PERMANENT COURT, of ai-bitration, 223, 525. PERSONA NON GRATA, who may be, 165. PERSONS, status of in international law, 21. having limited status, 31. political jurisdiction over, 125-152. general effect of war on, 252. status of, in war, 273 et seq. PHILIPPINES, sale of, to the United States, 84. occupation of, 33&-337. PILLAGE, prohibited, 322, 543. PIUS FUND, case of, 227. POISON, use of, forbidden in war, 321. POLITICAL UNIONS, members of, 33-35. PORTO RICO, after Spanish-American War, 342, 343. PORTS, closure of, 47. POSTLIMINIUM, what it is, 379, 380. PREDICARIS, case of, 177. PRE-EMPTION, doctrine of, 437, 438. PREROGATIVES, of diplomat, 175, 176. PRESCRIPTION, acquisition of territory by, 82. PREVENTION, neutral duty of, 258-262. INDBX. 611 [The figures refer to pages.] PRISONERS OF WAR, who are, 3-14, 345. treatment of, 345-348. release of, 348-353. exchange of, 450. PRIVATEERING, history of, 310^12. PRIVATE INTERNATIONAL LAW. place of, 6. PRIVATE PROPERTY, as affected by loss of international status, 52. immovable, 281, 282. movable, of military use, 282, 283. in enemy's jurisdiction, 283, 284. of belligerents on the water, 286-290. liability to capture, 290-295. attitude of United States toward exemption, 291. PRIVATE VESSELS, liability to capture, 286, 287. exemption from capture, by service, 287, 288. exemption from capture, by occupation, 288, 289. exemption from capture, by delai de faveur, 289, 290. PRIVILEGES, diplomatic, 169. consular, 187. PRIZE, courts of, 12, 13. taking of, into neutral waters, 267. title to, 300. treatment of, 300-302. release of, 302, 303. appropriation of, 304, 305. destruction of, 30O-30S, 482, 581. term to express legal capture, 477. procedure as to, in court, 478-482. money, 300, 4S0. sequestration of, 411, 566. PRIZE COURTS, national, 478-^80. international, 480-482, 554. rules for international court, 481, 554, 574. PRIZE MONEY, distribution of, 309, 480. 612 INDEX. [The figures re£er to pages.] PROCLAMATION, of treaties, 109. as meaus of terruinating civil war, 379. of blockade, 444. of neutrality, 303. of President McKinley for suspension of hostilities, 361. of President Roosevelt, as to neutrality, 389-390. of the United States during Spanish-American War, 447. PROHIBITED MEANS. of Injuring enemy, 319-322. PROHIBITED METHODS, of injuring enemy, 322, 323. PROJECTILES, inflicting unnecessary suffering, 321. from balloons, 326, 327. PROPERTY, in general, 76-78. jurisdiction over. 92. general effect of war on, 2.52. on land, 278-284. of municipalities and institutions, 281. on water, 285-298. private in war, 291. destruction of, and appropriation of, at sea, 412. PROTECTOR, THE, case of, 373, 374. PROTECTORATES, states under, 35-39. jurisdiction over, 81. PROTOCOL, what it is. 192. PROVISIONS, when may be supplied to belligerents, 266. as conditional contraband, 427. PUBLIC BLOCKADE, what it is, 443. PUBLIC BUILDINGS, as immovable public property, 278. PUBLIC INTERNATIONAL LAW, of what it treats, 3-6. PUBLIC OBLIGATIONS, as affected by loss of international status, 50. INDEX. 613 [The figures refer to pages.] PUBLIO PROPEPt.TY, as affected by loss of international status, 50. immovable, 278, 279. movable, 279-281. of belligerents on water, liable to capture, 285, 286. PUBLIC VESSELS, jurisdiction over, 118. exemptions of, 150. liability of, to capture, 285, 286. RADIO-TELEGRAPHY, in time of war, 296-298. RANSOM, bill of, 303. release on, 349. RATIFICATION, of treaties. 197-199. REAL PROPERTY. status of, in war, 278, 279. RECALL, termination of mission by, 178, 179. termination of consular office by, 186. RECAPTURE, of vessel, 303. RECOGNITION, of new states, 26-31. of belligerency, 40-43. RED CROSS, use of, 322, 511. REGULATION, neutral duty of, 263-270. as to internment of belligerent troops, 264, 265. as to sojourn of belligerent vessels in neutral ports, 26,"), 2tjii. of belligerent action, 317-319. RELATIONS, of insurgents and parent state. 46. of belligerents and neutrals, 396. RELIGION, protection of, 281. REPRISALS, defined, 231, 232. 614 INDEX. [Tte figures refer to pages.] REQUISITIONS, iH kiud. 282. RESTRICTED USE OF FORCE, short of war, 233. RETALIATION, short of war, 230, 231. RETORSION, defined, 230, 231. RIGHTS. of equality, 73-75. of asylum, on war ships, 118. of relijjion on grounds of diplomat, 172. of belligereuts and neutrals during war, 270-272. RIVERS, domain in, 86. jurisdiction over, 105-107. as to blockade, 441. ROOSEVELT, PRESIDENT, on Monroe Doctrine. 70. tendering good offices to the Russian and Japanese governments. 219. neutrality proclamation of. 3S9, 390. RUSSIA, intervention on Northwest coast, 67. as to right of equality, 75. position as to maritime and fluvial jurisdiction, 98. convention of, as to Suez Oanal, 110. volunteer navy of, 313. rules of, as to contraband. 422. 423. declaration of, as to penalty for unneutral service, 475. SAFE CONDUCT, in time of war, 364. SAFEGUARD, in time of war, 364. SAMOA, joint jurisdiction over, 94. SCIENTIFIC WORKS, exemption of, 281. SCIENTIFIC EXPEDITIONS, exemption of, 285, 287. IMDBX. 615 [The figures refer to paees.] SEARCH, see Visit and Search. SELF-PRESERVATION, right of, 55, 56. SERVITUDES, what they are, 153, 154. SHIP'S PAPERS, regular, 404. SHIPWRECKED, treatment of, 353-356. SICK AND WOUNDED, treatment of, 353-356. SIGNAL DISTANCE. what constitutes, 309. SOJOURN, in neutral ports, 265. SOUND DUES, history of, 109. SOURCES OP INTERNATIONAL LAW, explained, 9. SOUTH AFRICAN REPUBLIC, protection of, 35. SOVEREIGN, exemptions and privileges of, in foreign countries, 148. SPAIN, convention as to the Suez Canal, 110. treaty with United States as to immunity of consular officers, 188-190. treaty with France as to termination of treaties, 211. recession of Louisiana, 213. breaking of diplomatic relations with United States, 230, 251, 252. termination of treaty of, with United States, 251, 252. treaty with United States, 352, 3.53. SPHERE OF INFLUENCE, nature of, 81. SPIES, status and treatment of, 275, 276, 327, 328. SPONSIONS, defined, 194. SPRINGBOK, case of, 462, 463. 616 INDEX. [The figures refer to pases.] STATE, status of, in Interuational law, 22. definition of. 22. outside the family of nations, 32. neutralized, 32, 33. protected, 35-39. STRAITS, jurisdiction of, 99. navigation of, 108, 109. not liable to blockade, 440. STRATEGIC BLOCKADE, ■what it is, 440. STATUS QUO ANTE BELLUM, restoration of, 377. SUBMARINE MINES AND TORPEDOES. use of, forbidden in war, 324-326. SUEZ CANAL, see Canals. SUMMARY PROCEDURE, arbitration by, 224, 22.5. SUPPLIES OF WAR. not to be furnished by neutral state, 256, 266. SUZERAINTY, relationship under, 37. SUSPENSION OF HOSTILITIES, operation of, 361. SWISS FEDERAL COURT, as to jurisdiction over rivers, 107. SWITZERLAND, neutralization of, 33. T TAXES, diplomatic exemption, 171. consular exemption, 187. tinder military occupation, 338. TELEGRAPH, , status of, in war, 296-298. TERMINATION, of diplomatic missions, 178-180. of consular service, 186, 187. of treaties, 209-212. of war. 366-381. of blockade, 449-451. INDIiX. 617 [The figures refer to pages.] TEKHITORIAL DOMAIN, what it is, 7S. acquisition of, 79-85. TERRITORY, acquisition of, 79-85. formed by alluvium, 82. as determined by rivers and Lakes, etc, 86. jurisdiction over, 92. leased, 95-97. transfer of, 1.31. THE THREE FRIENDS, case of, 44, 39. THREE-MILE LIMIT, jurisdiction, as to, 98, 99. TOLERATION, neutral obligation of, 262, 263. TRANSFER OF FLAG, because of wa.r, 406, 582. TRANSFER OF PROPERTY, because of war, 406, 583. TRANSFER OF SOVEREIGNTY, determined by treaty, 378. of belligerent property before war, 407-409. after war, 409. TRANSFER OF TERRITORY, as affecting allegiance, 131. TRANSFORMATION OF MERCHANT VESSELS, in time of war, 314. TREATIES, as a source of international law, 11, 12. of extradition, 14-1. definition of, 191. otlier forms of, 192-194. validity of, 194, 195. form of contract, 195-197. ratification of, 197-199. interpretation of, 199-202. most favored nation clause, 202-205. of guaranty, 205-207, operation of, 207-209. termination of, 209-212, abrogation of, 211. continuation of, 212, 213. general effect on, of war, 252. of peace, 375. 018 INDEX. [The figures refer to pages.] TREATY OF PARIS, provision as to navigation of the Danube, 114. TREATY OF PEACE, as termination of war, 375. scope of, 376, 377. elTect of, 377-379. TREATY RELATIONS, as affected by loss of international status, 49. TRENT, case of, 471. TROOPS, furnishing of by neutrals, forbidden, 256. internment of, 268. TRUCE, see Flags of Truce. TURKEY, status of the Bosphorus and Dardanelles, 109. convention of, as to Suez Canal, 110. "TWENTY-FOUR HOUR RULE," 265. UNDEFENDED TOWNS, in time of war, 323. UNIONS. personal, 34. real, 34. confederate, 34. federal. 34. UNITED STATES, decision, in case of Paquete Habana, 13. 14. Constitution of, as regards force of international law, 15, 16. treaty with China. 32. position of, as to right of private vessel to resist aggression, 48. attitude of, as to Monroe Doctrine, 66-73. intervention of, in case of Venezuela, 70. decision, in case of Georgia v. Tennessee Copper Co., 68. position of, as to aerial domain, 88, 89. agreement as to islands of Samoa, 93. lease from Cuba of coaling stations, 97. position as to Great Lakes, 104. attitude of, as to Sound Dues, 109. as to Dardanelles, 109. Clayton-Bulwer Treaty with Great Britain, 111. treaty with Republic of Panama, 112-113. INDEX. 610 [The figures refer to pages.] UNITED STATES— Continued, treaty of peace with Great Britain as to navigation of Missis- sippi, 114. treaty witti Germany, as to disturbance of peace of port, 119. jurisdiction of, over nationals, 126, 127. laws as to naturalization, 12G-lo.j. position of, as to citizens of Hawaii, 134. treaty with Spain, as to rights of nationals in other states, 137. action of, on lynching at Tallulah, 139. attitude of, as to Koszta, 141, 142. Court for China, 152. attitude of, as to diplomatic agents, 163 et seq. position of, in case of the Predicaris, 177. treaty with Ottoman Empire, 183, 184. civil service act, 186. treaty with Spain, as to immunities of consular officers, 188-190. making and ratification of treaties of, 19S, 199. decision of, in case of De Geofroy v. Riggs, 200. decision of, in case of Tucker v. Alexandroff, 200. treaty with France, relating to "most favored nation clause," 203, 204. treaty with Japan, as to "most favored nation clause," 205. position of, as to operation of treaties, 207, 208. treaty with Great Britain, as to termination of treaties, 209. mediation of, in Russo-Japane.se War, 219, 220. pos-ition of, as to establishment of court of arbitral justice, 226. action of, in case of Chinese, 234. position of, in case of Venezuela, 236. attitude of, as to Alabama case, 260. decision of, in case of exemption of private property in enemy jurisdiction. 284. treaty with Prussia, as to exemption of vessels, 286, 287. treaty with Italy, as to exemption of vessels, 287. resolution of, as to exemption of private property at sea, 291. opinion of. as to ownership of soil, 295. position of, in Spanish-American War, as to appropriation and destruction of prize, 304. attitude of, in Spanish-American War, as to military govern- ment, 333, 334. order of, as to occupation of Philippines, .336-838. treaty of peace with Spain, 3-52, 3-53. regulations of, dui-ing Civil War, as to care of sick and wounded, 353, 354. protocol of treaty of peace with Spain, 361. treaty with Prussia. 363. treaty with Spain, 377. treaty with It.aly, 399. method of visit and search during Spanish-American War, 400 620 INDEX. [The figures refer to pages.] UNITED STATES— Continued, position of, as to notification of blockade, 445. proclamation in Spanish-American War as to withdrawal of neutral vessels, 447. decision as to maintenance of blockade, 448, 449. position of, as to national prize courts, 479, 480. UNITED STATES v. HUCKABEE, case of, 371, 372. UNNEUTRAL SERVICE, definition of, 469, 470. scope of, 470-474. penalty for, 474-476. UTI POSSIDETIS, orinciple of, 374. VALID TREATY, essentials of, 194. VENEZUELA, boundary question, 70. pacific blockade of, 235, 236. VESSELS, jurisdiction over, 117-120. status of, at sea, 285. visit and search of, 262, 397-402. liability of, to capture, 286, 2,s7. exemption from capture, by service, 287. exemption from capture, by occupation, 288, 289. exemption from capture, by delai de faveur, 289, 290. voluntary and auxiliary navy, 312-316. convoy, 402. capture of, 404. treatment of, when captured, 409-412. destruction and appropriation of, 412-417 in blockaded port, 446, 447. VIENNA, CONGRESS OF, rules of, as to diplomatic agents, 159. VIOLATION OF BLOCKADE, what constitutes, 453. penalty for, 453. liability for, 454r-458. VISIT AND SEARCH, right of, 262. object of, 397. exercise of the right of, 397-399. INDEX. 621 [The figures refer to pages.] VISIT ANT) SEARCH— Continued, method of, 399-401. exemption from and limilaliou of, 401, 402. VOLUNTEER AND AUXILIARY VESSELS, status of, in maritime capture, 312-516. of Russia, 313. of Great Britain, 314. of the United States, 314. of France, 313, 314. w WAR, definition of, 241, 242. kinds of, 243, 244. object of, 244, 245. commencement of, 245, 246. declaration of, 246-248. date of commencement of, 248, 249. area and general effect, 250-253. obligations of belligerents in, 254, 255. neutral duty of abstention in, 256-258. neutral duty of prevention in, 2.J.S-262. neutral obligation of toleration in, 262, 263. neutral duty of regulation in, 2(53-270. civil rights and remedies during, 270-272. persons within belligerent jurisdiction during, 273. combatants and uoncombatants, 273-276. neutral individuals, 277. immovable public property, 278, 279. movable public property, 279-281. property of municipalities and institutions, 281. immovable private property, 281, 282. movable property of military use, 2.82, 283. private property in enemy jurisdiction, 283, 284. booty, 284. vessels, 285, 286. goods, 286. private vessels, 286. vessels exempt by service, 287. vessels exempt by occupation, 288, 289. vessels exempt by delai de faveur, 289, 290. goods in general, 290-295. means of telegraphic communication, 296-298. maritime capture, 299, 300. title to prize, 300. conducting of prize, 300-302. release of prize, 302, 303. 622 INDEX. [The figures refer to pages.] WAR— Continued, appruiJi-iuliou and destruction of prize, 304-308. prize money and bounty, 309, 310. privateers, 310-312. volunteei', auxiliary, or subsidized vessels, 312-316. regulation of belligerent action, 317-319. prohibited means, 319-322. prohibited methods, 322, 323. bombardment, 323, 324. submarine mines and torpedoes, 324-326. discharge of projectiles and explosives from balloons, 326, 327. spies, 327, 328. hostile military occupation, 329-331. military government, 331-334. exercise of military authority in occupied territory, 334-338. martial law, 339, 340. military law. courts-martial, and military commissions, 340. cessation of hostile military occupation and of military control, 341-343. prisoners of, 344. 345. treatment of prisoners of, 345-348. release of prisoners, 348-353. sick, wounded, and shipwrecked. 353-356. nonhostile relations of belligerents in, 357. flags of truce, 357, 358. capitulations, 358, 359. armistices, 300. operation of armistices, 361, 3G2. cartels, 362, 363. safe-conducts and passports, 364. safeguards, 364. licenses to trade, 365. methods of termination of, 366. conquest, 3GG-368. the effect of conquest, 368-^372. cessation of hostilities, 373, 374. effect of cessation of hostilities, 374, 376. treaty of peace, 375. scope of a treaty of peace, 376, 377. effect of a treaty of peace, 377-379. proclamation, 379. postliminium, 379, 380. amnesty, 381. WATERS, jurisdiction over, 86 et seq. WESTPHALIA, peace of, 9. INDEX. 623 [The figures refer to pages.] WIRELESS TELEGRAPHY, jurisdiction of, 121. use of, in time of war, 296-29S. WOMEN, nationality of, 128, 129. WORKS OF ART, exemption of, 281. WOUNDED, treatment of, 353-356. intat FUBLISHLMQ CO., FBHiTlSBfl, ST. PAUL, XUOL LAW LIBRARY OF LOS ANGELES COUNTY iJNrVEHtiit) . , LOS AiH QRl.Rfi -«="-lif- 000 834 237 '«&'