GIFT OF J.A.C. Grant 1^ ^\^y\ p Sau-nicr s. INTERNATIONAL LAW BY GEORGE GRAFTON WILSON, Ph.D. PROFESSOR IN BROWN UNIVERSITY AND GEORGE FOX TUCKER, Ph.D. LATELY REPORTER OP DECISIONS OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS FIFTH EDITION SILVER, BURDETT AND COMPANY NEW YORK BOSTON CHICAGO Copyright, 1910, by SILVER, BURDETT AND COMPANY ^. ■» -^ .V. :- •■; • ■-•. •• ■ « * • . * 1 i5 T, ^ii > -i j • ^' • , i Roman law. ternational law gamed a eertam dignity and weight from its relation to the Roman law, the most potent legal institution in history. (6) The canon law, as the law of the ecclesiastics who were supposed to recognize the broadest principles of human unity, gave an ethical element to early international law. Gregory IX (1227-1241), the Justinian of the Church, reduced * Last hostages given in Europe 1748, by England to France. 10 INTERNATIONAL LAW canon law to a code. The abstract reasoning upon its prin- ciples among the clergy and counsellors of kings, made it a Ethical influ- P^^* ^^ ^^^ mental stock of the early text ence of canon writers, while it strongly influenced state prac- ^^^' tice. The canon law gave a quasi-religious sanc- tion to its observance, and in so far as international law embod- ied its principles, gave the same sanction to the observance of international equity. This may be seen in the religious formula in treaties, even to a late date, (c) The common law, itself international as according to Practical influ- tradition, derived by Edward the Confessor ence of com- from three systems, and subsequently modified mon law. j^y g^g^Qj^j^ furnished a practical element in determining the nature of international law. (rf) Equity promoted the development of the recognition of principles in international law. In the early days of Eng- Equity and ^^^^ cases arose which were not within the recognition of cognizance of the common law judges. The principles. petitioner having applied to the king in Parlia- ment or in council for justice, his petition was referred to the chancellor, the keeper of the king's conscience, who, after a hearing, required that what was equitable should be done. Thus the simpler matters came before the common law court, the more difficult before the equity court. Even now a jury largely deals with questions relating to the recov- ery of money, and their decision is a verdict, which is followed by a judgment. In an equity court, the more difficult prob- lems of business and commerce are considered; and the de- cision of the judge is a decree. (e) Admiralty law may be defined as in one sense the law Admiralty law ^^ ^^^ ^^^' Anterior to and during the Middle and maritime Ages, the maritime relations of states gave relations. ^-^^^ ^^ ^^^ laws, many of which are to-day well- recognized principles of international law. NATURE OF INTERNATIONAL LAW 11 8. International Law and Statute Law Statute law proceeds from legislative enactment, and is enforced by the power of the enacting state within its juris- diction. International law, on the other hand, is not formally enacted, and has no tribunal for its enforcement. In case of infraction of its rules nations may resort to war, when the issue may rather depend upon the relative strength of the two states than upon the justice of the cause, or the states may agree to refer their differences to some form of arbitral adjudication. 9. Relation of International Law to Law If law is defined, as by Austin, "a rule laid down for the guidance of an intelligent being by an intelligent being having power over him," ^ it would not be possible to include under it international law without undue liberality in the interpretation of the language. In form, however, law is a body of rules and principles in accord with which phenomena take place. If these rules are not followed as enunciated by the state in case of statute law, certain penalties are inflicted. The nature of the penalty must to a great extent depend on the source. International law is the body of rules and principles, in accord with which, interstate phenomena take place. Violations of international law do not meet the same penalties as those of statute law, as they do not have the same source nor an established tribunal for their enforcement. International law is, how- ever, in form law and in practice so regarded.^ ' "Lectures on Jurisprudence," I. ^ Walker, "Science of International Law," Chs. I and II, fully discusses Austin's definition. For decisions of the highest courts see West Rand Gold Mining Co. v. The King, L. R. 2 K. B. (1905) 391; The Paquete Habana (1900), 175 U. S., 677. OUTLINE OF CHAPTER III HISTORICAL DEVELOPMENT 10. EARLY PERIOD. (a) Recognition by Greece of international obligations. (b) Rome's contribution to international law. 11. MIDDLE PERIOD. (a) Supremacy of Roman Empire. (b) Unifying influence of the Church. (c) Feudalism and the territorial basis of sovereignty. (d) Crusades and a broader basis of comity. (e) Chivalry and a basis of equitable dealing. (f) Expansion of commerce and the development of maritime codes. (g) Consuls and the development of maritime law. (h) Discovery of America. (i) Contributions of the Middle Period. 12. MODERN PERIOD FROM 1648. (a) 1648-1713: Development of principles. (b) 1713-1815: Testing of principles. (c) 1815-1898: Practical application of principles. (d) 1898 to date: Progress toward international peace. (1) The First Peace Conference at The Hague. (2) Results of the First Peace Conference. (3) The Second Peace Conference at The Hague and its con- ventions. (4) The International Naval Conference of 1908-1909, and Declaration of London. (5) Contributions in this period to international law. 13. INFLUENCE OF THE UNITED STATES. (a) The regulations of 1793 in regard to neutrality. (b) Freedom of commerce and navigation. "" (c) Open-door policy in the Far East. (d) Protection of citizens in their legitimate rights. (e) Contributions to establishment of laws of war. (f) Advocacy of peaceful settlement of international disputes. (g) Isolation of the United States and its influence. 14. WRITERS. (a) Life and work of Hugo Grotius (1583-1645). (b) Other authorities on international law. 12 CHAPTER III HISTORICAL DEVELOPMENT 10. Early Period The history of the development of those rules and principles now considered in international law naturally falls into three periods, early, middle and modern.^ The early period dates from the development of early European civilization, and extends to the beginning of the Christian Era. During this period the germs of the present system appear.^ (a) The dispersion of the Greeks in many colonies which became practically independent communities gave rise to systems of intercourse involving the recognition Recognition by . . . . Greece of inter- of general obligations.^ The maritime law of national obii- Rhodes is an instance of the general acceptance of common principles. The main body of this law has not survived, yet the fragment appearing in the Digest, De Lege Rhodia de Jactu,^ is, after more than two thousand years, the basis of the present doctrine of jettison. ' Bluntschli, " Volkerrecht, " Introduction; Lawrence, § 20. ^Walker, "Science of International Law," Ch. Ill, p. 58. "But when, beside the vague and fleeting World Law, the law of all humanity, was recognized a law special to certain peoples, when the distinction was drawn between the progressive and the stationary, between civilization and barbarity, when the Greek noted rh v6ixiixa rwv 'Ewiivuy, and the Roman felt the ties of a particular Jus Fetiale and a particular Jus Belli, International Law cast off its swaddling bands, and began its walk on earth." ' Cicero, "Pro Lege Manilla," Ch. XIII. * Justinian Digest, 14. 2, " If goods are thrown overboard to lighten the ship, as this is done for the sake of all, the loss shall be made good by a contribution of all." 13 14 INTERNATIONAL LAW It is reasonable to suppose that though the words of other portions of the Rhodian law are lost, the principles may have entered into formation of later compilations. The recognition by Greece of the existence of other independent states, and the relations into which the states entered, developed crude forms of international comity, as in the sending and receiving of ambassadors i and the formation of alliances. 2 (6) Rome made many contributions to the principles of international law in the way of the extension of her own laws Rome's contri- *° wider Spheres, and in the attempt to adapt bution to inter- Roman laws to conditions in remote territories, national law. j^ ^j^-g gg^j-jy period Rome may be said to have contributed to the field of what is now considered private inter- national law rather than to that of public international law. Wlierever Rome extended her political rule, she adapted her laws to the peoples brought under her sway. This is evident in the laws in regard to marriage, contract, property, etc. The dominance of Rome impressed her laws on others, and extended the influence of those principles which, from general practice, or conformity to accepted standards, gained the name Jus Gentium.^ ' Bluntschli, "Volkerrecht," Introduction; Thucydides, " Peloponnesian War," II, 12, 22, 29. ^ The Amphyctionic League recognized some principles of interstate right and comity, as well as preserved Grecian institutions and religious traditions. This is shown in the oath of the members, "We will not de- stroy any Amphyctionic town nor cut it off from running water, in -war or peace; if any one shall do this, we will march against him and destroy his city. If any one shall plunder the property of the god, or shall be cogni- zant thereof, or shall take treacherous counsel against the things in his temple at Delphi, we will punish him with foot and hand and voice, and by every means in our power." They also agreed to make and observe hu- mane rules of warfare. See also Bluntschli, "Volkerrecht," Introduction. 3 Maine, " Ancient Law," Ch. III. The idea as to what jus gentium was, of course varied with times. Under the Empire it lost its old meaning. See Cicero, "De Officiis," III, 17; Livy, VI, 17; IX, 11; I, 14; V, 36; Sallust, "Bell. Jug.," XXII; Tacitus, "Ann.," 1, 42; "Quintus Curtius," IV, 11, 17. HISTORICAL DEVELOPMENT 15 11. Middle Period The varied struggles of the middle period — from the begimiing of the Christian Era to the middle of the seven- teenth century — had a decided influence upon the body and form of international law. (a) The growth of the Roman Empire, as the single world- power and sole source of political authority, left small need of international standards. The appeal in case Roml^Empire. °^ disagreement was not to such standards, but to Csesar. The idea of one common supremacy was deep-rooted. Political assimilation followed the expan- sion of political privileges. (6) A similar unifying influence was found in the growth of the Christian Church which knew no distinction — bond or Unifying influ- ^^^^' '^^^ ^^ Gentile. Christianity, called to be ence of the the state religion early in the fourth century, ^^ ■ modeled its organization on that of the Roman Empire; and from the sixth century, with the decay of the Empire, the Church became the great power. The belief in the permanent continuance and universality of Roman dominion was strengthened by the Church, although mate- rially changed in its nature.^ Whatever the inconsistencies in Church and State during the first ten centuries of our era, there had grown up the idea, of great importance for inter- national law, that there could be a ground upon which all might meet, a belief which all might accept, both in regard to polit- ical and religious organization. For five hundred years before the days of Boniface VIII (1294-1303), the holder of the papal office had from time to time acted as an international judge. The canon law, codified by Gregory IX (1227-1241), was planned to rival the Corpus Juris Civilis. The Popes, with varying degrees of success, tried to render such international ' Bryce, "Holy Roman Empire," Ch. VII. 16 INTERNATIONAL LAW justice as the discordant elements introduced by the growth of cities and rise of nationalities demanded. ^ From the Coun- cil of Constance (1414r-1418), which was a recognition of the fact of nationality, and at which the emperor for the last time appeared as the great international head, the decline of both the Church and the Empire as direct international factors was rapid. (c) By the eleventh century feudalism had enmeshed both the temporal and spiritual authorities. This system, closely related to the possession of land and gradation Feudalism and i i i , r ^ the territorial 01 classes, discouraged the development of the basis of ideas of equality of state powers necessary for the development of international law, though it did emphasize the doctrine of sovereignty as based on land in distinction from the personal sovereignty of earlier days. (d) The Crusades (1096-1270), uniting Christendom against the Saracen for foreign intervention, awakening Europe to Crusades and a ^ ^^^ civilization, expanding the study and broader basis practice of the Roman law which feudal courts m comity. j^^^ checked, weakening many feudal overlords, enfranchising towns, freeing the third estate, spreading the use of the Latin language, enlarging and diversifying com- merce, teaching the possible unity of national interests, led to the apprehension of a broader basis in comity which hastened the growth of interstate relations.^ (e) The code of chivalry and the respect for honor wliich it Chivalry and a enjoined introduced a basis of equitable dealing basis of equi- which on account of the international character table eaimg. ^^ ^j^^ orders of chivalry reacted upon state practice throughout Christian Europe. ' Bryce, "Holy Roman Empire," Chs. VII and XV. The "Truce of God," introduced by the clergy (i034), left only about eighty days in a year for fighting and settling feuds. 'On effects of Crusades, see Milman, "Latin Christianity," VII, 6; Hallam, "Middle Ages," Ch. Ill, Pt. I; Bryce, "Holy Roman Empire," Chs. XI, XIII. HISTORICAL DEVELOPMENT 17 (/) The expansion of commerce, especially maritime, em- phasized the duties and rights of nations. The old Rhodian laws of commerce, which had in part been ^ommelle^L incorporated in and expanded by the Roman the develop- code during the days before the overthrow of ment of maxi- ^-^q Empire, formed a basis for maritime inter- time codes. course. From the fall of the Empire to the Crusades commerce was attended with great dangers from pirates on the sea and from exactions in the port. The so- called Amalfitan Tables seem to have been the sea law of the latter part of the eleventh century. The much more detailed Consolato del Mare of doubtful origin between the twelfth and fourteenth centuries derived some of its principles from the eleventh-century code. The Consolato was recog- nized by maritime powers as generally binding, and made possible wide commercial intercourse. Many of its principles have stood to the present day, though touching such ques- tions as the mutual rights of neutrals and belligerents on the sea in time of war.^ As the Consolato formed the code of Southern Europe, the Laws of Oleron formed the maritime code for Western Europe, and were compiled the latter part of the twelfth century, whether by Richard I or by his mother, Queen Eleanor, is a disputed question. These laws are based in large measure on the other existing systems. The Laws of Wisby, dating from about 1288, supplemented the Laivs of Oleron, and formed the fundamental law of maritime courts of the Baltic nations.^ The Hanseatic League in 1591 com- piled a system of marine law, Jus Hanseaticum Maritimum,^ based on the codes of Western and Northern Europe. The maritime law of Europe had been practically unchanged for nearly a hundred years, when systematized in 1673 under I Hall, p. 713. * Laws of Wisby contain early reference to marine insurance, § 66. ' Expanded in 1614. 18 INTERNATIONAL LAW Louis XIV. Similar to the maritime codes are the "Customs of Amsterdam," the "Laws of Antwerp," and the "Guidon de la Mar." i ig) Closely connected with the development of maritime law during the latter part of the middle period was the estab- Consuis and the lishment of the office of consul. The consuls, development of under the title of consules marinariorum et mer- maritime law, cutorum, resident in foreign countries, assisted by advice and information the merchants of their own coun- tries, and endeavored to secure to their countrymen such rights and privileges as possible. Consuls seem to have been sent by Pisa early in the eleventh century, and were for some time mainly sent by the Mediterranean countries to the East. (h) The discovery of America marked a new epoch in territorial and mercantile expansion, and in- iscovery o troduced new problems among those handed America. ^ ° down from an age of political chaos. (i) The middle period, with all its inconsistencies in theory and practice, had nevertheless taught men some lessons. Contributions "^^^^ world-empire of Rome showed a common of the political sovereignty by which the acts of remote Middle Period, territories might be regulated; the world-relfgion of the Church of the middle period added the idea of a common bond of humanity. Both of these conceptions imbued 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 a 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 » De Valroger, "Droit Maritime," I, § 1. HISTORICAL DEVELOPMENT 19 classes, feudal or religious. The fluctuations and uncertainties in theory and practice of international intercourse, both in peace and war, made men ready to hear the voice of Grotius ^(1583-1645), whose work marks the beginning of the modern period. 12. Modern Period (1648-) The modern period of international law may be divided into four epochs: (a) From the Peace of Westphalia, 1648, ' to the Peace of Utrecht, 1713; (6) from the Peace of Utrecht, 1713, to the Congress of Vienna, 1815; (c) from the Congress of Vienna, 1815, to the call for the First Hague Peace Con- ference, 1898; (d) from the call for the First Hague Peace ■ Conference, 1898, to the present time. (a) It became evident at the termination of the Thirty Years' War in 1648 that the old doctrines of world-empire, 1648-1713- whether of Pope or of Eniperor, could no longer Development be sustained. The provisions of the Peace of of principles. ^Yestphalia, while not creating a code to govern international relations, did give legal recognition to the existence of such conditions as Grotius contemplated in "De Jure Belli ac Pacis," viz. sovereign states, equal to one another as such regardless of area and power. The decree of James I, in 1604, establishing a neutral zone by "a straight line drawn from one point to another about the realm of England," in which neither of the parties to the war between the United Pro\'inces and Spain should carry on hostilities, formed a precedent in maritime jurisdic- tion, even though the decree was but imperfectly enforced. This early part of the modern period was especially fruitful in treatises and discussions upon the nature of mternational law, and upon what it ought to he, and also upon the law of the sea, particularly Grotius's ''Mare Liberum," 1609, Selden's ''Mare Clausum," 1635, and Bynkershoek's "De Dominio 20 INTERNATIONAL LAW Maris," 1702.i During this period the public law was dili- gently studied; the right of legation became generally recog- nized; French gradually took the place of Latin in inter- national intercourse,^ with a corresponding modern spirit in the practice, though the discussions were usually ponderous and abstract; the idea of the balance of power flourished and formed a subject of frequent controversy; the principle of intervention upon political grounds was propounded and acknowledged; and the opinions of the great publicists, such as Grotius, gained great weight and were widely studied. The general principles of neutral trade, including "free ships, free goods," were laid down, prize laws and provisions as to con- traband were adopted, numerous treaties of commerce gave witness of the growth of international intercourse, and both men and states became somewhat more tolerant. (6) The Treaty of Utrecht (1713) contained recognition of many of the principles which had become fairly well 1713-1815: accepted during the years since 1648. There Testing of were evidences of the growing influences of the principles. -^^^ ^y^j,jj ^p^^ ^j^^ p^j.^^ ^^ ^^^ ^j^. ^^^ American fisheries question appeared; the international regulations in regard to commerce were multiplied, and the central subject of the preamble was the subject of "the balance of power." 3 -por many years the question of ^suc- cession to the various seats of royal and princely power formed the chief subject of international discussion. During the eighteenth century the steady growth of England as a maritime power and the European complications over trans- Atlantic possessions gave rise to new international issues. The basis of modern territorial acquisition was found in the Roman ^ The Marine Ordinance of Louis XIV, 1681, became the basis of sea law. ^ With the dechne of the influence of the "Holy Roman Empire," the use of Latin in diplomacy became less general. 5 Abb^ Saint-Pierre, in three volumes, 1729, " Abr^g^ du Projet de Paix perpdtuelle," outlines a plan for peace by fixed system of balance of power. HISTORICAL DEVELOPMENT 21 law of ocaipatio, and the Roman law of river boundaries was almost exactly followed.^ From the Treaty of Aix-la-Chapelle (1748), in which former treaties were generally renewed, to 1815, the growth and observation of the principles of inter- national law was spasmodic. By the Peace of Paris and by the Peace of Hubertsburg (1763), many questions of terri- torial jurisdiction were settled. England, then become the dominant power in North America, with greatly extended power in the East, impressed upon international practice adherence to actual precedent rather than to theoretically correct principles. At the same time in Central Europe the conditions were ripe for that violation of international justice, the partition of Poland in 1772, followed by the further partition in 1793 and 1795. The rights which the concert of nations was thought to hold sacred were the very ones most ruthlessly violated by the neighboring powers. The American Revolution of 1776 and the French Revolution of 1789 introduced new principles. The "armed neutrality" of 1780,2 while maintaining the principle "free ships, free goods," made impossible the converse, "enemy's ships, enemy's goods," which had been held. Both the American and French Revolutions made evident the necessity of the development of the laws of neutrality hitherto greatly con- fused and disregarded. 3 During the French Revolution it seemed that to Great Britain alone could the states of Europe look for the practice of the principles of international law. After the French Revolution it was necessary to define just intervention that Europe might not be again convulsed. It became clear that the state was an entity and distinct from the person of its king. No longer could the king of France or of any European state say "L'etat, c'est moi." Even » "Institutes," II, 1, 21, 22. ' Declaration of Russia, Feb. 28, 1780. ^ The works of Moser (1701-1786) and his immediate followers attempt to make practical the principles of international law. 22 INTERNATIONAL LAW though personal selfishness of monarchs might pervade the Congress of Vienna, the spirit of nationality could not long be restrained. The period from 1713 to 1815 had tested the general principles propounded during the seventeenth cen- tury, and it was found necessary to expand their interpreta- tion, while the growth of commerce and intercourse made necessary new laws of neutrality and new principles of comity, such as were in part laid down in the early days of the nine- teenth century, as seen in the resistance to the right of search, the declaration against African slave trade, establishment of freedom of river navigation, improved regulations in regard to trade in time of war, neutralization of Switzerland, placing of protectorate over Ionian Islands, and the determination of precedence and dignities of the various diplomatic agents and the states which they represented. By the year 1815 the theory of the seventeenth century had been severely tested by the practice of the eighteenth century, and it remained for the nineteenth century to profit by the two centuries of modern political experience. (c) The Peace of Westphalia (1648), the Peace of Utrecht (1713), and the Treaty of Vienna (1815) are the three cele- brated cases of combined action of modern 1815-1898 ; Practical appii- European powers. The "balance of power" cation of j^jg^ had gradually been supplemented"" by "the concert of the powers" idea, which would not merely maintain the relative status quo of "the balance," but might enter upon a positive policy of concerted action. The "Holy Alliance" of 1815, to pro- mote "Justice, Christian Charity, and Peace," ^ was first broken by its originators. There was a strong feeling that the principles of international law should be followed, how- ever, and this, the " Declaration of the Five Cabinets," No- vember 15, 1818, distinctly avowed in " their invariable reso- ' I Hertslet, 317. HISTORICAL DEVELOPMENT 23 lution, 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." ^ The attempt to ex- tend the principle of intervention in favor of maintaining the various sovereigns on their thrones, and in suppression of in- ternal revolutionary disturbances by foreign force was made in the ''Circular of the Three Powers," December 8, 1820.2 Under many forms intervention was one of the great questions of the nineteenth century, and the gro\\ing proximity and the multiplication of relations of states during that century added many complications.^ The Grecian War of Independence (1821-1829) brought the new principle of pacific blockade (1827), and at its conclusion the powers guaranteed the sovereignty of Greece. The subjects of right of search, for- eign enlistment, Monroe Doctrine, freedom of commerce and navigation, expatriation, extradition, neutralized territory, ship canals, consular rights, neutral rights and duties, arbi- tration, reciprocity, mixed courts, international postage, w'eights and measures, trade-marks and copyright, rules of war, submarine cables, and sphere of influence, which came to the front during the nineteenth century, indicate in a measure the subject-matter of international negotiation. Throughout the period since 1815 the tendency has been rather to regard what is the international practice, (d) At the reception of the diplomats at the Foreign Office, St. Petersburg, August 12 (24), 1898, Count Mouravioff handed to each foreign representative a docu- 1898 to date: . . , , . ,, ,i , , Progress ment settmg forth at some length the burdens toward inter- imposcd by War and by the preparations for national peace. , . ,i i ^^i - .i j.- war and expressmg the hope that the time was come "to put an end to incessant armaments." This document of Count Mouravieff further declares that, " Filled with this idea. His Majesty has been pleased to order me to 1 1 Hertslet, 573. » Ibid., 658. » Hall, p. 284. 24 INTERNATIONAL LAW propose to all the Governments whose representatives are accredited to the Imperial Court, the meeting of a conference which would have to occupy itself with this grave problem. "This conference should be, by the help of God, a happy presage for the century which is about to open. It would converge in one powerful focus the efforts of all States which are sincerely seeking to make the great idea of universal peace triumph over the elements of trouble and discord. "It would, at the same time, confirm their agreement by the solemn establishment of the principles of justice and right, upon which repose the security of States and the wel- fare of peoples." This proposition by the Czar of Russia for an international peace conference marks the beginning of a new epoch for international law and international relations; an epoch in which the endeavor is to substitute the reign of reason for that of force. It was fully recognized that agreement upon the law which should hold among nations would be the first great step toward peace. The suggested program for the conference of the powers referred to (1) the limitation of armaments; (2) prohibition of new means of injuring an enemy; (3) prohibition of new explosives and of throwing projectiles from balloons, etc.; (4) prohibition of submarine boats and rams; (5) extension of the provisions of the Geneva Convention of 1864 to naval war- fare; (6) neutralization of vessels rescuing shipwrecked; (7) re- vision of Declaration of Brussels, 1874, as to laws of war on land, and (8) matters of good offices, mediation and arbitration. This conference, representing twenty-eight states, which The First Peace '^^ ^^^ known as the First International Peace Conference at Conference at The Hague, assembled at The The Hague. pj^^^^ ^^ ^j^y jg^ jggg^ ^^^ j^^j^ j^g SeSSionS at the House in the Woods. It concluded its labors on July 29, 1899. HISTORICAL DEVELOPMENT 25 This Conference formulated three conventions and three declarations. Conventions: (1) Pacific settlement of international dis- putes, (2) laws and customs of war on land, (3) adaptation to maritime warfare of the principles of the Geneva Conven- tion of August 22, 1864. Declarations: (1) To prohibit the launching of projec- tiles and explosives from balloons or by other similar new methods, (2) To prohibit the use of projectiles, the only object of which is the diffusion of asphyxiating or dele- terious gases. (3) To prohibit the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope, of which the envelope does not entirely cover the core, or is pierced with incisions. The Conference adopted a resolution favoring the restric- tion of military charges. The Conference expressed ■wishes (1) for the early revision of the Geneva Convention of 1864, (2) for the consideration of the rights and duties of neutrals by a subsequent confer- ence, (3) for further study of the limitation of the effectiveness of arms, (4) for the further consideration of the limitation of armaments, (5) for reference of question of inviolability of private property at sea to a subsequent conference, (6) for similar reference of question of bombardment of coast towns and villages. While the results of this First International Peace Confer- ence were at first regarded as insignificant, their value was Results of the ^^^^ evident. The United States led in sub- First Peace mitting causes to the Court of Arbitration, and Conference. ^Yie worth of the plans of the Conference was shown in the peaceful adjustment of the threatened difficul- ties between Great Britain and Russia over the Dogger Bank affair during the Russo-Japanese War in 1904, The suggested Conference for the revision of the Geneva 26 INTERNATIONAL LAW Conference assembled at Geneva June 11, 1906, and com- pleted its labors of revision on July 10, 1906. The value of such conferences as that called at The Hague in 1899 was so well established that according to the preamble of the Final Act, ''The Second International Peace Confer- ence, proposed in the first instance by the President of the United States of America, having been convoked, on the invitation of His Majesty, the Emperor of All the Russias, by Her Majesty, the Queen of the Netherlands, assembled on the 15th June, 1907, at The Hague, in the Hall of the Knights, for the purpose of giving a fresh development to the humanitarian principles which served as a basis for the work of the First Conference of 1899." This Second International Peace Conference at The Hague, representing forty-four states, concluded thirteen conven- tions and one declaration. Peace Confer- Conventions: (1) Pacific settlement of inter- ence at The national disputes, (2) limitation of employ- convwit^ions'. ^ ment of force for recovery of contract debts, (3) opening of hostilities, (4) laws and customs of war on land, (5) rights and duties of neutral powers and per- sons in case of war on land, (6) status of enemy merchant ships at outbreak of hostilities, (7) conversion of merchant ships into war ships, (8) laying of automatic submarine contact mines, (9) bombardment by naval forces, (10) adaptation of prin- ciples of Geneva Convention to naval war, (11) restriction of right to capture in naval war, (12) international prize court, (13) rights and duties of neutral powers in naval war. Declaration: Prohibiting the discharge of projectiles and explosives from balloons. This Conference of 1907 also pronounced in favor of the principle of compulsory arbitration, expressed opinion on sev- eral other matters and recommended the assembling of a Third International Peace Conference after a period corre- HISTORICAL DEVELOPMENT 27 spending to that which elapsed between the First and Second Conferences. In 1908 Great Britain invited a conference of naval powers to determine upon the rules for war upon the sea in order that the International Prize Court Convention The Interna- ^^^Uj^ \yQ ratified bv certain powers who were tional Naval Con- => -^ ^ ference of 1908, reluctant to accept the Convention " so long as and Declaration yagucness and Uncertainty exist as to the prin- of London, 1909. ^ , ^ . ^ ^^ ■,^ ^ ciples which the Court, in dealing with appeals brought before it, would apply to questions of far-reaching importance affecting naval policy and practice." This Inter- national Naval Conference met at London, December 4, 1908, and concluded the Declaration of London concerning the Laws of Naval War, February 26, 1909. The period since 1898 has been an epoch of formulation of law by international conventions. The contributions thus made have often removed uncertainties which Contributions „ , ., , , ,• i-r- i of this period formerly prevailed, have sometimes modihed to international existing law, have set forth principles to govern ^^" new conditions and in general have recognized the principle that establishment of equitable law is an essen- tial to the realization of peace. Note. — The more important texts of these various con- ferences are given in the appendices, while the more signifi- cant articles of the several conventions are inserted in sections of the text upon which they bear.i 13. Influence of the United States The United States of America for many years after 1776 occupied a position to a considerable extent apart from European influences. It developed, therefore, ideas in re- gard to international relations which showed the influence 1 The full texts of the conventions, etc., of the Peace Conferences at The Hague may be found in Scott's " Texts of the Peace Conferences at The Hague 1899 and 1907"; Higgins, " The Hague Peace Conferences." 28 INTERNATIONAL LAW of general principles rather than the influence of national policy. (a) The regulations in regard to neutrality issued in 1793 set forth the principles which have subsequently become gen- erally recognized. Of this contribution toward of 1793 in re- the development of international law Hall says : gardto ''The policy of the United States in 1793 con- neu ra i y. stitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even went further than authorita- tive international custom has up to the present time advanced. In the main, however, it is identical with the standard of conduct which is now adopted by the community of nations." ^ (h) The United States has also consistently advocated the freedom of commerce and navigation. Many claims for Freedom of exclusive rights over rivers, gulfs, and other commerce and bodies of water werc resisted by the United navigation. States from the time of the acquisition of state- hood. The United States early insisted upon tliB freedom of navigation of the Scheldt. In the definitive treaty of peace with Great Britain in 1783, Article 8, it was provided that " The navigation of the River Mississippi from its source to the ocean, shall forever remain free and open to the Sub- jects of Great Britain, and the Citizens of the United States." The negotiations of the United States for securing freedom of river navigation were based upon the natural right, but for many years the arguments of the representatives received slight consideration. The Sound Dues, which Denmark had for centuries collected from vessels passing between the North and the Baltic seas were a heavy burden on commerce. « Hall, "Int. Law," 5th ed., p. 593. HISTORICAL DEVELOPMENT 29 Henry Wheaton, subsequently to become one of the fore- most authorities in international law, while United States Minister to Denmark from 1827 to 1835, reported to the Department of State upon the subject of these dues. The United States soon maintained that '' Denmark cannot lay claim to these duties upon any principle either of nature or of the law of nations nor from any other reason than that of anti- quated custom." While maintaining that Denmark had no right to collect tolls because of her geographical position, the United States did admit that a reasonable return might justly be made " for the improvement and safety of the navi- gation of the Sound or Belts." The United States, by the treaty of April 11, 1857, paid $393,011 in consideration of Denmark's agreement to keep up lights, buoys, and pilot establishments. The United States has also always ques- tioned the right of any state or states to forbid access to the Black Sea. The United States also protested against the restrictions placed upon the navigation of some of the South American rivers. The principle of freedom of navigation for which the United States had so often contended was fully recognized in the Kongo in the latter part of the nine- teenth century. Open-door (^) '^^^ United States has also uniformly policy in the striven for the largest possible freedom of trade Far East routes as in the maintenance of the policy of the "open door" in the Far East. (d) It has protected its citizens in their legitimate rights and has opposed oppression and arbitrary measures. When Perdicaris, an American citizen in Morocco, Protection of i . i /. i • r i i i t citizens in was deprived of his freedom by the bandit their legitimate Raisuli in 1904, Secretary Hay, after a rea- sonable time, informed Morocco that " this Government wants Perdicaris alive or Raisuli dead." ^ » U. S. For. Rel., 1904, p. 508. 30 INTERNATIONAL LAW (e) The United States has also contributed toward the establishing of the laws of war both upon the land and upon Contributions to ^^^ ^^^- '^^^ Instructions for the Government of establishment Armies of the United States in the Field, pre- of laws of war. ^^^^^ y^^ j^^ Lj^^^^j. ^^ jggg^ j^^^^ g^^.^^^ ^g ^^le basis for the modern rules for warfare on land. The United States has advocated some of the most advanced positions upon the customs of war upon the sea. At the Hague Convention of 1907 an earnest attempt was made to secure the exemption from capture of private property at sea, in accord with the traditional attitude of the United States. The Supreme Court in 1S99 said: ''It is, as we think, histor- ically accurate to say that this Government has always been, in its views, among the most advanced of the gov- ernments of the world in favor of mitigating, as to all non- combatants, the hardships and horrors of war." ^ (/) In the United States there have always been many advo- cates of the peaceful methods of settlement of international disputes. Such method was provided for the peaxefui'^settie- Settlement of differences among the states of the ment of inter- United States by the Articles of Confederation in nationa 1778. Commissions were frequently appointed by the United States for settlement of difficulties with foreign states. Specific provision was made in a treaty with Tripoli in 1 796, that in case of dispute arising under the treaty, neither party should appeal to arms, *'nor shall war be declared on any pretext whatever," but a year shall be given for the adjustment of the difficulty, "during which time no act of hostility shall be permitted by either party." This provision is renewed in Article 15 of the treaty of 1805 between the United States and Tri{)oli, which is still in force. Many of the leading men of the United States have been the earnest advocates of arbitral procedure. At the various I The Buena Ventura, 175 U. S., 384. HISTORICAL DEVELOPMENT 31 strictly American conferences, and at The Hague in 1899 and in 1907, the United States representatives gave cordial support to the extension of arbitration to the fullest practi- cable extent. (g) The isolation of the United States during the early period of its existence made it possible to pay more regard to principle because less influenced by policy. These Isolation of the ' ^ J t^ J United States principles showed the general attitude of the and its United States and have had increasing weight in the councils of the nations as the United States has gained in power. The advocacy of the principle of freedom of navigation and commerce, the observance of neutrality, the establishment of just rules for war, and the support of arbitration as a means of settling international differences show the direction in which the United States has influenced the development of international law in the re- markable progress of recent years. 14. Writers Among the writers upon subjects connected with inter- national law before the days of Grotius the most prominent are Victoria (1480-1546), Ayala (154S-1584), Suarez (1548- 1617), and Gentilis (1552-1608). WTiile in many respects their contributions to the science were valuable, the work of Grotius stands out preeminent among all the early writers. (a) Hugo Grotius (1583-1645), the scholar, jurist and statesman, was born in Delft, April 10, 1583. Of good family. Life and work ^^ ^'^^ extremely precocious, acquiring prodigious of Hugo Grotius learning in many branches. At fifteen he went '■ with a special embassy to France; at twenty he was historiogi-apher to the United Provinces, and at twenty- five advocate-general of the fisc of Holland and Zealand. The next year he married Mary van Riegesberg, a worthy helpmeet, and at thirty he became pensionary of the city of Rotterdam 32 INTERNATIONAL LAW as well as one of a deputation to England to settle maritime disputes. In 1619, however, on account of his active part in religious controversies, he was sentenced to imprisonment for life, and his property was confiscated. Two years later, through the cleverness of his wife, he escaped to Paris, where he spent days of adversity and study. In 1625 "De Jure Belli ac Pacis" was published; it brought no profit, but im- mediate and lasting fame. Disappointed in his hope to return to permanent residence in Holland, he was ap- pointed Swedish ambassador at the French Court in 1635. Declining further service in 1645, he retired, honored in all lands. He died from the effects of hardships encountered in the journey to his native land, at Rostock, August 28, 1645.1 Grotius's "De Jure Belli ac Pacis" (1625) is an attempt to bring into a systematic treatment those principles which have since become known as international law. Rich in quotations, it touches upon many other subjects, and its broad philo- sophical basis gives it permanent value. Conditions in Europe at the time when the work appeared gave it immediate and powerful influence in determining the course of modern polit- ical history. Of course, many of the principles expounded by Grotius are no longer applicable, and many new principles, such as the doctrine of neutrality, have gained recognition. Nevertheless, upon the foundation laid by Grotius, the mod- ern science has been largely built. (6) ZoucH (1590-1660), the successor of Gentilis, as pro- fessor of Roman Law at Oxford, while a follower of Grotius in other author- matter and method, deserves mention for his dis- ities on inter- tinction between jus gentium and that law to national law. ^\^[q\^ \^q gives the name jus inter gentes, in the French translation called Droit entre les Gens, later Droit Inter- national, and in the English, Law of Nations, and since the » Walker, "Hist. Law of Nations," pp. 283, 336. HISTORICAL DEVELOPMENT 33 latter part of the eighteenth century when Bentham led the way, International Law. PuFENDORF (1632-1694), in his voluminous works in gen- eral follows Grotius. Toward the end of the seventeenth century, a school oppos- ing the earlier writers arose. This school, headed by Rachel (1628-1691), assigned a stronger authority to the principles of international law, and gave more attention to usage, whether tacitly admitted or plainly expressed, and to com- pacts. Bynkershoek (1673-1743), limiting his work to particular subjects in international law, gave to the eighteenth century several authoritative treatises which are justly regarded as of the highest worth. He especially defined the laws of maritime commerce between neutrals and belligerents (De Dominio Maris, 1702), gave an outline of ambassadorial rights and privileges (De Foro Legatorum, 1721), besides contribut- ing to a much clearer understanding of the general subject of international law. Wolff (1679-1754), published in 1749 his "Jus Gentium." This bases international law on a sort of state universal, civitas maxima, made up of the states of the world in their capacity as voluntarily recognizing a natural law. Vattel (1714-1767), an ardent admirer of Wolff, pub- lished in 1758 his "Law of Nations," which he based upon the work of Wolff. This work of Vattel was clear and logi- cal and gained an immediate and wide influence, far sur- passing that of his master. MosER (1701-1786), brings into the science the positive method which Rachel had hinted at in his work a hundred years before. He narrows his view to the principles under- lying the cases of his own day, and would build the science on recent precedents. The method thus introduced has strongly influenced succeeding writers. 34 INTERNATIONAL LAW G. F. DE Martens (1756-1801), combines in a measure the method of Vattel with the positive method of Moser in his "Precis du Droit des Gens Moderne de I'Europe," 1789. This treatise has been a recognized authority. Many special and general works appeared in the later years of the eighteenth century and early years of the nine- teenth. Wheaton (1785-1848), the foremost American writer on international law, published in 1836 his "Elements of Inter- national Law," which has long been recognized as a standard throughout the world. Beside the great work of Wheaton justly stands Philli- more's "Commentaries upon International Law." Many other works of highest merit appeared during the latter half of the nineteenth century, such as those of Blunt- schli, Travers Twiss, Calvo, Wharton, Pradier-Fodere, F. de Martens, and the late William Edward Hall. There are also many living writers whose contributions are of greatest worth. Mention of the leading authors and their works is made in the " Bibliography." OUTLINE OF CHAPTER IV SOURCES OF INTERNATIONAL LAW 15. PRACTICE AND USAGE. 16. PRECEDENT AND DECISIONS. (a) Prize and admiralty courts decisions. (b) Decisions of domestic courts. (c) Decisions of courts of arbitration. 17. TREATIES AND STATE PAPERS. (a) Laying down new rules or outlining operation of old rules. (b) Enunciation of established rules. (c) Agreement as to rules to be held mutually binding. (d) Interstate compacts. 18. TEXT WRITERS. 19. DIPLOMATIC PAPERS. 36 CHAPTER IV SOURCES OF INTERNATIONAL LAW 15. Practice and Usage If for a time international intercourse follows certain methods, these methods are regarded as binding in later intercourse, and departure from this procedure is held a vio- lation of international right. That collection of customs known as ''The Law Merchant" is an example of a source of this class. Of this it has been said : " Gradually, the usages of merchants hardened into a cosmopolitan law, often at positive variance with the principles of local law, but none the less acquiesced in for mercantile transactions, and enforced by tribunals of commanding eminence and world-wide repu- tation, such as the courts of the Hanseatic League and the Parloir aux Bourgeois at Paris." ^ Sir W. Scott, in the case of the "Santa Cruz," 1798, said "Courts of Admiralty have a law and a usage on which they proceed, from habit and ancient practice." 2 16. Precedent and Decisions The domestic courts of those states within the family of nations, ma}^ by their decisions furnish precedents which become the basis of international practice. (a) Prize and admiralty courts decisions form in them- selves a large body of law. Jurisdiction in admiralty and maritime causes in the United States rests in the District * Jenks, " Law and Politics in the Middle Ages," p. 30. » The Santa Cruz, 1 C. Rob., 49, 61. 37 276609 38 INTERNATIONAL LAW Courts, the Circuit Courts and the Supreme Court. The District Courts have original jurisdiction in civil causes of Prize and ad- admiralty and concurrent jurisdiction with the miraity courts Circuit and State Courts in suit of an alien, decisions. because of violation of international law or treaty of United States. The District Court also has full prize court powers. Appeals from prize courts decisions go directly to the Supreme Court for final judgment; appeals from admiralty decisions go to the Circuit Court for final judgment. ^ The prize courts of other powers vary in jurisdiction, nature, and procedure. British and American courts rely more particu- larly upon precedents, while the Continental courts follow more distinctly the general principles laid down in codes and text writers, and place less reliance upon previous inter- pretation of these principles as shown in court decisions. 2 Whatever the method of the prize court, its decision, if legally rendered, stands as valid in all states. ^ Provision was made at the Second Hague Conference in 1907 for the establishment of an international prize court. (6) The decisions of domestic courts upon such matters as extradition,^ diplomatic privileges, piracy, do^mestic^courts ^^^-f ^^^^ ^^ become a source of international law. In the United States the Supreme Court has original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls." ^ (c) The decisions of courts of arbitration and other mixed courts are usually upon broad principles. Some of the principles involved may become established precedents, yet the tendency to render a decision, which by a compromise may be measurably acceptable to both parties, may lessen the ' Act of Congress, March 3, 189L 26 U. S. Sts. at Large, 826. 2 Lawrence, § 64. ' Bolton v. Gladstone, 5 East, 155, 160. • United States v. Rauscher, 1886, 119 U. S., 407. » United States Constitution, Art. Ill, § 2. For English view, see Walker, p. 46, who quotes 3 Burr, 1480. SOURCES OF INTERNATIONAL LAW 39 value of the decision as a precedent. As arbitration has hith- erto been voluntary, there was generally a consensus upon Decisions of certain points which might become recognized courts of precedents, even though the decision rendered arbitration. might not become a precedent. The principles upon which the court of arbitration bases its decision, more often than the decision itself, furnishes material valuable for international law. The growth of the practice of arbitration of disputes is an indication of the general recognition of mutual confidence between states. 17. Treaties and State Papers Treaties and state papers of whatever form ^ indicate the state of opinion, at a given time, in regard to the matters of which they speak. Since they are binding upon the parties to them, treaties may be regarded as evidence of what the states, bound by their terms, accept as law. When the same terms are generally accepted among nations, treaties become a valuable evidence of concrete facts of practice and proper sources of international law. The principles may be so well established by successive treaties as to need no further treaty specification. Treaties and state papers, however, vary greatly in value as sources of international law. (a) Treaties and state papers may lay do\\Ti new rules or outline the operation of old rules. As instances of those ■ . ^ laying down new rules may be taken several of Laying down , tt r^ new rules or the Hague Conventions of 1907, the Interna- outiining opera- tional Radiotelegraphic Convention of Novem- tion of old rules. , n -, r^^ t ^ /-. ber 3, 1906, the Geneva Convention of 1864; of those outlining and determining the operation of old rules, there are many instances; the most numerous of these are in the treaties in regard to maritime affairs and consuls. * Declarations, protocols, conventions, proclamations, notes, etc. 40 INTERNATIONAL LAW (6) Treaties and state papers may enunciate established rules as understood by the parties to the treaty. The Decla- Enunciation of nation of the Conference of London, January 17, established 1871, to which the major European states were ^^^^' parties, announces that the signatory powers "recognize that it is an essential principle of the Law of Nations that no Power can liberate itself from the engage- ments of a Treaty, nor modify the stipulations thereof, unless with the consent of the Contracting Powers by means of an amicable agreement." ^ (c) Treaties and state papers may agree as to rules which shall be held as binding upon the parties to the treaty or paper. The Declaration of Paris, 1856, agreed Agreement as '^ . . . , , , » 7 . to rules to be ^s to certain principles and rules of maritime held mutually international law, which should be held as bind- ing the signatory powers or those later agreeing to its provisions. This Declaration may be held as generally binding. The United States, by Proclamation of April 26, 1898, announced its adherence to the principles of the Decla- ration, and during the same year Spain acquiesced in its principles. (d) Most treaties and state papers, however, deal with Interstate matters of interstate politics, and are not in compacts. ^^y ggi^ge sources of international law. They are in most cases little more than interstate compacts. 18. Text Writers During the seventeenth and the first half of the eighteenth century, the writings of the great publicists were regarded as the highest source of authority upon matters now in the domain of international law. These writings not only laid down the principles which should govern cases similar to those which had arisen, but from the broad basis given the law of » III Hertslet, 1904. SOURCES OF INTERNATIONAL LAW 41 nations deduced the principles for such cases as might arise. This latter method was especially common among the early- writers, such as Victoria and Suarez in the sixteenth century. The philosophical school, from Grotius to the middle of the eighteenth century, continued to propound the principles which should govern in supposed cases, should they ever actually arise. Statesmen looked to these treatises as authori- tative sources. The prolific Moser, in the middle of the eight- eenth century, made the historical method more prominent by giving less attention to the natural law, and by founding his system on usage and treaties. Bynkershoek (1673- 1743) had anticipated him in this method in special lines, but Moser extended the system and made it most ample. Succeeding writers mingled the two systems, inclining to the one or to the other. In the early days of the modern period the writers upon the law of nations outlined the course which states should pursue in their relations to one another. In the later days of the modern period, the writers upon the law of nations, while sometimes discussing problems before they arise, in general attempt to expound the rules and prin- ciples which have entered already into interstate action. The works of the text writers, from Grotius to the present, must be regarded as sources of highest value. The Supreme Court of the United States in case of the Paquete Habana in 1900 referring to the determination of questions involving international law, said: ''For this purpose, where there is no treaty, and no controlling ex- ecutive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concern- 42 INTERNATIONAL LAW ing what the law ought to be, but for trustworthy evidence of what the law really is." ^ 19. Diplomatic Papers The diplomatic papers, as distinct from the state papers to which more than one state becomes a party, are simply papers issued by a state for the guidance of its own represen- tatives in international intercourse. The papers are some- times named state papers or included among the papers to which other states are parties, — in the United States, in the series known as "Diplomatic Correspondence, 1861-1868," and "Foreign Relations" since 1870; and in Great Britain in the " British and Foreign State Papers." These papers, showing the opinions of various states from time to time upon certain subjects which may not come up for formal state action, afford a valuable source of informa- tion upon the attitude of states toward questions still formally unsettled. The simple expression to state agents in the way of instructions or information as to the position of the state on a given matter may, if continued and long accepted, give to the principle involved the force of international sanction. This was almost the case in the so-called Monroe Doctrine. 2 In these papers may often be found an indication of the line which the principles of international law will subsequently follow, and a general consensus by several states in diplomatic instructions may be considered strong evidence of what the law is on a given point. 1 The Paquete Habana and the Lola, 175 U. S., 677. ^ In signing the Hague Convention for the Pacific Settlement of Inter- national Disputes, the representatives of the United States made the reservation that, "Nothing contained in this convention shall be so con- strued as to require the United States of America to depart from its tra- ditional 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 convention be construed to imply a relinquishment by the United States of America of its tra- ditional attitude toward purely American questions." PART TWO PERSONS IN INTERNATIONAL LAW OUTLINE OF CHAPTER V STATES 20. DEFINITION OF A STATE. (a) Must be political unity. (b) Must possess sovereignty, 21. CONDITIONS OF STATE EXISTENCE. (a) Moral. (b) Physical. (c) Communal. (d) External relationship. 22. RECOGNITION OF NEW STATES. (a) De facto existence of a state. (b) Varying circiunstances of recognition. (1) By division. (2) By union. (3) By admission of old states. (4) By admission of former barbarous commimities. (5) Individual and collective recognition. (6) Example of an act of dissolution. (c) Acts constituting recognition. (d) Premature recognition. (e) Certain political conditions requisite for recognition. (f) Recognition irrevocable. (g) Consequences of recognition. (1) For the recognizing state. (2) For the recognized state. (3) For the parent state. (4) For other states. 44 CHAPTER V STATES 20. Definition of a State A State is a sovereign political unity. It is of the rela- tions of states that public international law mainly treats. From the nature of its subject-matter it is a juridical, histor- ical, and philosophical science. ^ These sovereign political unities may vary greatly. The unity, however, (a) Must be political, i.e. organized for public ends as Must be understood in the family of nations and not political and for private ends as in the case of a corn- sovereign, mercial company, a band of pirates, or a religious organization. (6) Must possess sovereignty, i.e. supreme political power beyond and above which there is no political power. It is not inconsistent with sovereignty, that a state should vol- untarily take upon itself obligations to other states, even though the obligations be assumed under stress of war or fear of evil. 21. Conditions of State Existence From the nature of the state as a sovereign political unity it must be self-sufficient, and certain conditions are therefore generally recognized as necessary for its existence from the standpoint of international law.^ * Holtzendorff, "Introduction droit public," 44. * Hall, p. 17; I Rivier, § 3, 9, I. 45 46 INTERNATIONAL LAW (a) A state must be to a degree moral. In order that a state may be regarded as within the ''family of nations," and within the pale of international law, it must Essential con- . . ' ditions: moral, recognize the rights of other states and acqui- physicai, qqqq [^ j^g obligations toward them. This is considered a moral condition of state existence. (&) A state must also possess those physical resources which enable it to exist as territory, etc. (c) A state must possess a body of men in such communal relationship as to warrant the belief in the continued ex- istence of the unity. Each state may be its own judge as to the time when this relationship is established in a given body of men, and the recognition of the new state is fitting. That such conditions are recognized as prerequisites of state existence from the point of view of international law is not due to the essential nature of the state, but rather to the course of development of international law; as Hall says: ''The degree to which the doctrines of international law are based upon the possession of land must in the main be attributed to the association of rights of sovereignty or su- preme control over human beings with that of territorial property in the minds of jurists at the period when the foundations of international law were being laid." ^ (d) The external relationship of the state rather than the internal nature is the subject of consideration in international law. For local law, a community may enter relationship. upon state existence long before this existence is recognized by other nations, as in the case of Switzerland before 1648. Until recognition by other states of its existence becomes general, a new state cannot acquire full status in international law; and this recognition is con- ditioned by the policy of the recognizing states. » Hall, p. 19. STATES 47 22. Recognition of New States (a) State existence de facto is not a question of inter- national law but depends upon the existence of a sovereign De facto ex- political Unity with the attributes which nec- istence of a essarUy appertain to it. This de facto exist- state. gj^pg jg j^Q^ dependent upon the will of any other state or states.^ The entrance of the state into the international statehood, however, depends entirely upon the recognition by those states already within this circle. What- ever 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 actu- ally parties to the recognition. The basis of this family of nations or international 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 ' The internal acts of a de facto state are valid, whatever the attitude of the international circle. As an example, in 1777, during the Revolu- tionary War, the British governor of Florida made a grant of land in what is now the southern part of the United States. Fifty years later a de- scendant of the grantee laid claim to the land, but the Supreme Court of the United States declared: "It has never been admitted by the United States that they acquired anything by way of cession from Great Britain by that treaty [of Peace, 1783]. It has been viewed only as a recognition of preexisting rights, and on that principle the soil and the sovereignty, within their acknowledged limits, were as much theirs at the Declaration of Independence as at this hour. By reference to the treaty, it will be found that it amounts to a simple recognition of the independence and limits of the United States, without any language purporting a cession or relinquishment of right, on the part of Great Britain; . . . grants of soil made flagrante hello by the party that fails, can only derive vaUdity from treaty stipulations." Harcourt v. Gaillard, 12 Wheat. 523, 527. See also M'llvaine v. Coxe's Lessee, 4 Cr. 209, 212. 48 INTERNATIONAL LAW in their mutual dealings; and international law in its begin- ning proposed to set forth what this system was and should be.^ This family of states could not permit new accessions to its membership unless these new states were properly con- stituted to assume the mutual relationships, and as to the proper qualifications for admission in each case, the states already within the family claim and exercise the right to judge. (6) The circumstances of recognition vary. (1) The most numerous instances are in consequence of division which involves the recognition of the existence of Varying cir- rnore than one state within the limits which cumstances of had formerly been under a single jurisdiction, recognition. rpj^-^ ^^^ y^^ preceded by recognition of the belligerency of a revolted community within the jurisdiction of an existing state, or may be preceded by division of an existing state into two or more states.^ In the first case recognition is a question of national policy; in the second case recognition is usually readily accorded. (2) In modern times a new state has frequently been formed by the union of two or more existing states.^ The recognition in such a case usually follows immediately. (3) A state after existence for a period of years may be formally admitted into the family of states. Japan, for centuries a de facto state, was only recently fully admitted to international statehood.'* Turkey, so long the dread of Europe, was formally received by the Treaty of Paris, 1856. (4) New states may be formed in territory hitherto outside any de facto state jurisdiction, or within regions hitherto ' Suarez, "De Legibus," 6. ^ Wheat. D., 41 n. ' Greater Republic of Central America, June 20, 1895, from Republics of Nicaragua, Salvador, and Honduras. Dissolved November 29, 1898. * Japan has been generally recognized since 1894, and her foreign rela- tions were for several years in course of readjustment. This readjustment was completed as regards the United States by the treaty of November 22, 1894, which became fully operative July 17, 1899. STATES 49 considered savage. The examples of this class are mainly African, as in the creation of the Kongo Free State under the International Association of the Kongo. The United States recognized the Kongo Free State by acknowledging its flag, April 22, 1884. Liberia, originally established by the American Colonization Society in 1821, as a refuge for negroes from America since 1847, has been recognized as an independent republic. (5) From another point of view recognition may he indi- vidual or collective. Recognition is individual when a state, independently of any other, acknowledges the international statehood of a new state. This was the method of recog- nition of the United States. Collective recognition is by the concerted action of several states at the same time. This has taken place most often in the admission of minor states to the European family of states, as in the cases of Greece by the powers at the Conference of London, 1830; Belgium, 1831; Montenegro, Servia, and Roumania, at the Congress of Berlin, 1878; Bulgaria by agreement of the interested Powers in 1908. The Kongo Free State was acknowledged by the International Kongo Conference at Berlin, 1885.^ (6) As an example of an act of dissolution, following a Nor- Exampie of wegian vote for dissolution, may be cited King an act of Oscar's address to the Swedish Riksdag, October dissolution. jg^ -^QQg. ''Good gentlemen, and Swedish men: It is an important moment when I now raise my voice in this throne room. "The union formed in 1814 between the two peoples of the Scandinavian peninsula, which during former centuries were separate nations, is now dissolved and the Swedish Riksdag, by its decision of the 16th instant, has confirmed my proposition in favor of its dissolution. * The Kongo Free State by Treaty of Cession and Annexation, Novem- ber 28, 1907, was annexed to Belgium under the title " Belgian Kongo." 50 INTERNATIONAL LAW "In truth, it is not without great pain that I see the form- er separation of these two closely related peoples again take place, and the disadvantages and perils which during the nearly century-old union seemed to be forever removed again possibly brought to life. I will, however, not suppress the hope that, notwithstanding that political union no longer exists, a lasting peace between the peoples of Sweden and Norway may nevertheless be preserved during the future, to the happiness and security of both nations, and I am convinced that a good foundation for this has been laid by the agreements with Norway which you now by my sug- gestion have approved. "At this moment may I, not without deep emotion, pro- claim my warm and heartfelt thanks for all the fidelity and devotion which has been shown to me by the noble people of Sweden during the time, so painfully trying to me, which has elapsed since June 7 this year. The memory thereof I shall not only cherish in my heart till the last moment of my life, but it will constantly encourage me to use all the strength which is still left me in my old age to the best benefit of the country and people who have shown me such fidelity and love. "I hereby declare this Riksdag adjourned, and remain, good gentlemen and Swedish men, with all royal grace and favor, always well disposed toward you." ^ (c) The act constituting recognition of a new state may be formal, as by a declaration, proclamation, treaty, sending ^j.,,g and receiving ambassadors, salute of flag, etc., constituting or informal, by implication through the grant recognition. ^^ ^^ exequatur to a consul from the new state, or other act which indicates an acknowledgment of inter- national rights and obligations.^ It should be observed, however, that the appointment by or reception within, an exist- ' y. S. For. Rel. 1905, p. 863. ^ 1 Moore, § 27, STATES 51 ing state, of agents to carry on necessary intercourse between the existing state and the aspirant for recognition does not constitute recognition. It may be essential to have relations with a community the statehood of which is not established, because of commercial and other matters pertaining to the rights of the citizens of the existing state w^hose interests, or who in person, may be within the jurisdiction of the un- recognized community.^ The definite act of recognition is, however, in accord with the decision of the internal authority to which this function is by state law ascribed. As foreign states usually take cognizance of the acts of the executive department only, it is the common custom to consider recog- nition as an executive function, or as a function residing in the head of the state. In the United States, the President is for foreign affairs the head of the state, and has the authority to recognize new states in any manner other than by those acts which by the Constitution require the advice and con- sent of the Senate, as in the conclusion of treaties, and appointment of ambassadors, other public ministers, and con- suls.2 President Grant, in his second annual message, Decem- ber 5, 1870, said, "As soon as I learned that a republic had been proclaimed at Paris, and that the people of France had acquiesced in the change, the minister of the United States was directed by telegraph to recognize it, and to tender my congratulations and those of the people of the United States." ^ As President Jackson had in his message in December, 1831, and in the official correspondence with Buenos Aires denied that country's jurisdiction over the Falkland Islands, Justice McLean said, in rendering his opinion in Williams v. Suffolk Insurance Company: "And 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 » I Rivier, §§ 44, 125. ' I HaUeck, p. 90. ' See on this subject, 1 Moore, § 27. 52 INTERNATIONAL LAW foreign nations, assume a fact in regard to sovereignty of any island or country, it is conclusive on the judicial depart- ment? 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." ^ "The President is the executive department." 2 {d) Recognition may be premature and the recognized community may not be able to maintain its place in the international circle, or in case of a struggle with recognition. another state may be defeated. The recogniz- ing state must assume in such case whatever consequences may come from its misjudgment, and the parent state may justly question the right of the recognizing state in its action, e.g. the recognition by France of the United States in 1778 could justly be regarded by England as prema- ture and as a hostile act. (e) The recognition of a new state is the recognition of the existence of certain political conditions. This recogni- Certain poiiti- *^°^ ^^ ^^^ Bts^t^ Carries with it the acknowledg- cai conditions mcut of Sovereignty, independence, equality, etc. requisite for j^ jg ^^^ essential coucHtion to iust recognition recognition. u i • •< o that the new aspirant possess these qualifica- tions absolutely or potentially to a reasonable extent. (/) From its nature, recognition is irrevocable and abso- lute, unless distinctly conditional. Even when conditional, if the r(icognition is prior to the fulfillment of irrevocable. ^^^ Condition by the recognized state, the recog- nition cannot be withdrawn because of non- fulfillment of the condition, but the recognizing state may resort to any other means which would be admitted in inter- ' 13 Pet. 415. See also Jones v. United States, 137 U. S., 202; Foster v. Neilson, 2 Pet. 253. 2 State of Mississippi v. Johnson, President, 4 Wall. 475, 500. For review of the question, see 32 Amer. Law Rev. 390, W, L. Penfield. STATES 53 national law as justifiable against any other state failing to fulfill its obligations, e.g. suspension of diplomatic relations, retorsion, reprisals, or even war.^ In the case of Belgium, the definition of its boundaries and establishing of permanent neutralization was an act subsequent to the recognition of its international statehood, and in case of violation of the treaty stipulations, Belgium would not lose its position as a state, but would be liable to such measures of reparation as the other parties to the treaty might employ.^ If recognition could be withdrawn, it would work injustice to the recognized state, and to other states who, as third parties, will not per- mit their rights to be subject to the will of the recognizing state or states. (g) The consequences of recognition immediately touch the relations of (1) the recognizing state, (2) the of'recogni^ion TGCognized, (3) the parent state if the new state is formed from an existing state, and (4) in a minor degree other states. (1) The recognizing state is bound to treat the new state in all respects as entitled to the rights and as under duties accepted in international law. (2) The recognized state is, as related to the recognizing state, entitled to the rights, and under the obligations pre- scribed in international law. As it is a new person in international law, it is entitled to full personal freedom in entering into relations with other states. So far, however, as the territory within the new state was under local obligations, these obligations are transferred to the new state. The gen- eral obligations resting on the parent state, by reason of treaties and responsibilities of all kinds which have been assumed by the parent state in the capacity of a legal unity, are not transferred, because the identity of the parent state remains intact.^ 1 1 Rivier, " Droit des gens," §§ 3, 11. ^ Hall, note 1, p. 88. ^ Hall, p. 94. 54 INTERNATIONAL LAW (3) The parent state, in cases in which the new state is formed by separation from one already existing, is, as regards the recognizing state, on the same international footing as the new state. Both states are entitled to equal privileges, and under like obligations. The relations to other states are not necessarily much changed. (4) The relations of the states other than the recognizing, recognized, and parent states are changed to the extent that they must respect the de facto relations set forth in (1), (2), and (3) above, i.e. while not recognizing the new state, they must accept the fact that the recognition exists for the states who are parties to it, and they are not entitled to pass judg- ment as to the justice of the recognition. OUTLINE OF CHAPTER VI LEGAL PERSONS HAVING QUALIFIED STATUS 23. MEMBERS OP CONFEDERATIONS AND OTHER UNIONS. (a) States as members of confederations. (b) States as members of unions. 24. NEUTRALIZED STATES: Sovereign only in a qualified degree. 25. PROTECTORATES AND SUZERAINTIES. (a) Protectorates usually possess all powers not specifically resigned. (b) Suzerainties possess only the competence specifically granted. 26. CORPORATIONS. (a) Corporations organized for private purposes. (b) Corporations exercising political powers. 27. INDIVIDUALS. 28. INSURGENTS. (a) Definition. (b) Effect of admission of insurgency. 55 29. BELLIGERENTS. (a) Definition. (b) Conditions prior to recognition. (c) Grounds of recognition. (d) Recognition of belligerency, an act of the executive authority. (e) Consequences of recognition of belligerency. (1) Recognition by a foreign state. (2) Recognition by the parent state. (3) General effect of recognition. (!) Admission of insurgency or recognition of belligerency gives certain war status. 30. COMMUNITIES NOT FULLY CIVILIZED. 56 CHAPTER VI LEGAL PERSONS HAVING QUALIFIED STATUS 23. Members of Confederations and Other Unions A state in the sense of public law is not sovereign in the sense of international law if there are any limitations upon states as ^^^ power to enter into relations with other members of states. Such a state may be a member of a confederations, confederation and exercise certain powers giv- ing it a qualified international status. These loose unions may, as in the German Confederation from 1815 to 1866, leave to the local states a certain degree of autonomy in regulating international affairs while granting to the central government certain specified powers. This division of inter- national competence is usually a temporary compromise end- ing in new states or in a close union, "Inasmuch as both the central and the separate states carry on diplomatic intercourse with foreign powers, they must each and all be regarded as Subjects of International Law; and inasmuch as they carry on such intercourse only in a limited degree, they cannot be regarded as fully and absolutely sovereign." ^ In the examples of personal and real unions and the like, the nature of the state is a matter of public law and little states as concerns international law. As related to inter- members of national law, the question is how far are such "°'*'°^' states restricted in their dealings with other states. A union, such as that existing in the case of the ruler of the United Kingdom of Great Britain and Ireland ' Lawrence, § 51, p. 75. 57 58 INTERNATIONAL LAW and Empire of India, is of importance to international law only in its united capacity, while for public law the nature of the union is of much significance. The same may be said of the union of Austria-Hungary, and of the union of Sweden- Norway from 1814 until 1905. 24. Neutralized States Neutralized states are sovereign only in a qualified degree. While such states have a certain formal equality, their actual competence is limited in regard to the exercise of sovereign powers. This limitation as to neutrality may be externally imposed or externally enforced, as in the case of Belgium, Switzerland, Luxemburg, Kongo Free State, and till 1900, Samoa. This neutralization may take place for political or philanthropic reasons. ^ The degree of external sovereignty possessed by neutralized states varies. The fact that these states are not fully sovereign in the field of international law in no way affects their competence except in respect to matters covered by the conditions of neutralization. Such states are deprived of the right of offensive warfare, and have not therefore that final recourse possessed by fully sovereign states for enforcing their demands. 25. Protectorates, Suzerainties (a) States under protectors — ^protectorates — usually possess all powers not specifically resigned. States fully sovereign may demand (1) that states under protectors afford usually possess reasonable protection to the subjects and to the all powers not property of subjects of fully sovereign states, and specifically ^2) that the protecting state use reasonable resigned. ^ ' ^ ^ measures to give effect to the protection which it has assumed. Just how much responsibility the protecting state has depends upon the degree of protection exercised and ^ "Political Annuals," since 1887 rich in discussion of neutralization. LEGAL PERSONS HAVING QUALIFIED STATUS 59 assumed. The protectorate of Great Britain over the South African Republic by the agreement of 1884, terminated in 1902 by war and absorption, was of a very moderate form. The right to veto within a certain time any treaty made with a foreign state, other than the Orange Free State and native princes, constituted practically the only restriction on the independence of the Republic. Great Britain has several other protectorates in Africa over which the degree of authority varies. In many instances protectorates easily pass into colonies, as in the case of Madagascar, which Great Britain recognized as under French protection in 1890, which protection the queen of Madagascar accepted in October, 1895, and in August, 1896, Madagascar was declared a French colony.^ In the Convention between the United States and the Republic of Panama, November 18, 1903, Article I, ''The United States guarantees and will maintain the independence of the Republic of Panama." A relationship partaking somewhat of the nature of a protectorate was entered into by Germany, France, Great Brit- ain, Norway, and Russia in 1907, by which Norway "under- takes not to cede any portion of her territory to any power," and the other states undertake "to respect the integrity of Norway " and in case of demand from Norway to afford "their support, by such means as may be deemed the most appropriate, with a view to safeguarding the integrity of Norway." ^ (b) As distinct from a state under a protectorate which pos- sesses all competence in international affairs which it has not specifically resigned, a state under suzerainty possesses only such competence as has been specifically conferred upon it by the suzerain. The relations are usually much closer than between protecting and protected states; and in many cases > Statesman's Year Book 1901, p. 591. ' 2 A. J. I. L. Doc, p. 267. 60 INTERNATIONAL LAW only the suzerain has international status, while the vassal is merely tributary, though having a certain degree of internal independence which may be in some instances possesroniy almost complete. By the first article of the the competence Treaty of Berlin, Bulgaria was made a tributary specifically ^^^ autonomous principaHty under the suze- granted. r ir ^ rainty of the Sultan of Turkey. Under Russian suzerainty are such vassal states as Bokhara and Khiva. Some of the states under the suzerainty of European states have no status in international law, as in the case of Bokhara and Khiva. There exist such anomalous cases as the co- suzerainty of the republic of Andorra, the collective suzerainty of the Samoan Islands till 1900, and the absolute suzerainty of the United States over the '' domestic dependent nations" of Indians. 26. Corporations From the point of view of international law, corporations are generally of two kinds : corporations organized for private purposes, and corporations organized for purposes involving the exercise of delegated sovereign powers. (a) Corporations organized for private purposes come within the field of international law, when in Corporations . » , . i • i organized for time of War their property or other rights are private impaired, when maritime law, whether of peace or war, may have been infringed, and when their rights are involved in the domain of private international law. (6) Corporations organized for purposes involving the exercise of political powers have from time to time, for. Corporations Several centuries, been chartered and have often exercising acquired a quasi-international status. While re- po itica powers. g|^j.j(3^(.(j ^q ^}^g performance of functions intrusted to them by their charters, the home governments have often sanctioned acts for which their charters gave no warrant. LEGAL PERSONS HAVING QUALIFIED STATUS 61 The companies that early entered America, India, Africa, and the later African companies, are of this kind. The de- velopment of the modern doctrine of " the sphere of influence" has given an important position to these companies organized within those states desirous to share in ''the partition of Africa." Among the most notable of the earlier companies was the English East India Company,^ which received its first English East charter in 1600. During more than two hun- india Company. (jj.g(^ and fifty years this company exercised practically sovereign powers, until by the act of August 2, 1858, the government heretofore exercised by the company was transferred to the crown, and was henceforth to be exer- cised in its name. In recent years the African companies chartered by the European states seeking African dominions have had very elastic charters in which the home governments companies. ^ave generally reserved the right to regulate the exercise of authority as occasion might demand. These companies advance and confirm the spheres of influence of the various states, govern under slight restric- tions great territories, and treat with native states with full authority. The British South Africa Company, chartered in 1889, was granted liberal powers of administration and full capacity, subject to the approval of the Secretary of State for the Colonies, to treat with the native states. The field of operations of this company was extended in 1891, so that it soon included over six hundred thousand square miles of territory. Of this company Lawrence said: "Clearly then it is no independent authority in the eye of British law, but a subordinate body controlled by the appropriate departments of the supreme government. Like Janus of old, it has two faces. On that which looks towards the native tribes all the ' 6 American Cycl., 376. 62 INTERNATIONAL LAW lineaments and attributes of sovereignty are majestically outlined. On that which is turned towards the United Kingdom is written subordination and submission." ^ The acts of these companies become the basis of subsequent negotiations among the various European states, and the companies have a very important influence in molding the character of African development. In recent years commercial companies have secured special concessions for the construction of railways, opening of mines, etc., in Asia. These companies have often received the approval of European states and have sometimes had govern- ment subsidies. The areas in which these companies operated or in which they had concessions were considered within the spheres of interest of the European states. 27. Individuals Without entering into discussion of ''the doctrine of the separability of the individual from the state," it is safe to affirm that individuals have a certain degree of competence under exceptional circumstances, and may come under the cognizance of international law. By the well-established dictum of international law a pirate may be captured by any vessel, whatever its nationality. General admiralty and maritime procedure against a person admit the legal status of an individual from the point of view of international law. The extension of trade and commerce has made this neces- sary. This is particularly true in time of war, when indi- viduals wholly without state authorization, or even in contravention of state regulations, commit acts putting them within the jurischction held to be covered by international law, as in the case of persons brought before prize courts. The principles of private international law cover a wide range of cases directly touching individuals. ' Lawrence, p. 82, § 54, LEGAL PERSONS HAVING QUALIFIED STATUS 63 28. Insurgents (a) Insurgents are organized bodies of men who, for public political purposes, are in a state of armed hostility to an established government. There may be war in the " material sense " which, because belligerency has not been recognized, has not become war in the ''legal sense." ^ (h) The practice of tacitly admitting insurgent rights has become common when the hostilities have assumed such Effect of ad- proportions as to jeopardize the sovereignty mission of of the parent state over the rebelling com- insurgency. munity, or scriously to interfere with cus- tomary foreign intercourse.^ In general, it may be said that: 3 (1) Insurgent rights cannot be claimed by those bodies seeking other than political ends.* (2) Insurgent acts are not piratical, as they imply the pursuit of " public as contrasted with private ends." ^ (3) The admission of insurgent rights does not carry the rights of a belligerent, nor imply official recognition of the insurgent body.^ (4) The admission of insurgent rights does not relieve the * "The distinction between recognition of belligerency and recognition 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 pohtical department has not recognized the existence of a de facto beihgerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare prevailing be- fore, at the time, and since this forfeiture is alleged to have been in- curred." The Three Friends, 166 U. S. 1; Scott, 748. ^ Wheat. D., note L5, p. 37. ^ For full discussion see Wilson, "Insurgency" lectures U. S. Naval War College, 1900. » Hall, 5th ed., p. 31 ff. » 2 Moore, §§ 329-335; United States v. "Ambrose Light," 25 Fed. Rep. 408. Snow cases, 206, "Montezuma." « President Cleveland's Message Dec. 2, 1885. U. S. For. Rel. 1885, pp. 254, 273. 64 INTERNATIONAL LAW parent state of its responsibilities for acts committed within its jurisdiction.! (5) When insurgents act in a hostile manner toward foreign states, they may be turned over to the parent state, or may be punished by the foreign state. 2 (6) A foreign state must in general refrain from inter- ference in the hostilities between parent state and insurgents, i.e. cannot extend hospitality of its ports to insurgents, extra- dite insurgents, etc.^ (7) When insurgency exists, the armed forces of the insur- gents must observe and are entitled to the advantages of the laws of war in their relations to the parent state. * Note. During the struggles between the parties in the United States of Colombia in 1885, the President of Colom- bia decreed: (1) That certain Caribbean ports held by the opposing party should be regarded as closed to foreign com- merce, and trade with these ports would be considered ilhcit and contraband, and that vessels, crews, etc., involved in such trade, would be liable to the penalties of Colombian laws. (2) That as the vessels of the opposing party in the port of Car- tagena were flying the Colombian flag, it was in violation of right, and placed that party beyond the pale of international law.^ The United States refused to recognize the validity of the first decree unless Colombia should support it by an effective blockading force.^ (For similar position on part of Great Britain, see Pari. Deb. H. C, June 27, 1861.) The United States also refused to recognize that the vessels of the insurgents were beyond the pale of international law or in any sense piratical. ' Pari. Papers, 1887, 1 Peru, 18. China in 1901 agreed to pay various states more than $335,000,000 as indemnity for the injuries suffered dur- ing the Boxer uprising of the previous year (U. S. For. Rel. 1901, Appendix). '^ 2 Moore, § 331, " Iluascar." ^ 33 Albany Law Jour., 125. * Lawrence, § 162. » 1885, For. Rel. U. S. 252, 264. ' Ibid., pp. 254, 273. LEGAL PERSONS HAVING QUALIFIED STATUS 65 The United States did not deny that closure might be a do- mestic measure similar to blockade in accord with municipal law, but emphatically maintained that effective blockade could close a port in time of such insurrection only. It was further maintained that "The denial by this [U. S.] Government of the Colombian proposition did not, however, imply the admission of a belligerent status on the part of the insurgents." Message Pres. Cleveland, December 8, 1885.1 The President's messages of December 2, 1895, December 7, 1896, and December 7, 1897, distinctly mention a status of insurgency as existing in Cuba. During the rebellions in Chile in 1891 and in Brazil in 1894, the insurgents, while not recognized as belligerents by for- eign powers, were nevertheless given freedom of action by these powers. 29. Belligerents (a) A community attempting by armed hostility to free itself from the jurisdiction of the parent state may, under certain conditions, be recognized as a belligerent. (6) The general conditions prior to recognition are: (1) That the end which the community in revolt seeks shall be Conditions political, i.e. a mere mob or a party of marauders prior to could have no belligerent rights; (2) the hostili- recognition. ^j^g must be of the character of war and must be carried on in accord with the laws of war; (3) the pro- portions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible; (4) the hostilities and general government of the revolting community must be in the hands of a responsible organization. As each state, including the parent state, must judge as to the fact whether the conditions warranting recognition of » 2 Moore, § 332; Bluntschli, § 512; Hall, p. 31; U. S. For. Rel. (1885), pp, 252, 254, 264, 273. 66 INTERNATIONAL LAW belligerency exist, fhere may be great divergency of opinion in cases of recognition, i but the question of belligerency is a question of fact and never a question of theory. (c) A community carrying on, in accord with the rules of war, an armed revolt of such proportions as to make the issue uncertain and acting under a respon- Groiinds of •, i • x- ^ u • j -^.u recognition. ^^"^^ organization may not be recognized with- out offense to the parent state except upon certain grounds. The generally admitted ground is, that the interests of the recognizing state be so far affected by the hostilities "as to make recognition a reasonable measure of self-protection." 2 "The reason which requires and can alone justify this step [recognition of belligerency] 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 rela- tions to the parties. ... A recognition by a foreign state of full belligerent rights, if not justified by necessity, is a gratu- itous demonstration of moral support to the rebellion, and of censure upon the parent government." ^ (d) Recognition of belligerency is naturally an act of the executive authority. * The following is the proclamation of Queen birrc"! Victoria of May 13, 1861:- act of the execu- .. „^ i -i .in tive authority. Whereas we are happily at peace with all sovereign powers and states: "And whereas hostilities have unhappily commenced be- tween 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 United States, have declared our royal determination to maintain a strict and impartial neutrality in the contest between the said contending parties: * See numerous references in 51 Br. and Fr. St. Papers; also Hall, p. 33. 2 HaU, p. 33. 3 Wheat. D., note 15, p. 34. * 1 Moore, §§ 59-70. LEGAL PERSONS HAVING QUALIFIED STATUS 67 "We, therefore, have thought fit, by [and with] the advice of our privy council, to issue this our royal procla- mation : "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 relations thereto, as they will answer to the contrary at their peril." (e) Certain consequences follow the recognition of bellig- erency. (1) // recognition is by a foreign state (a) From the date of recognition, the parent state is released from responsibility to the recognizing state for the Consequences ^^^^ ^f the belligerents. of recognition (b) So far as the recognizing state is con- of belligerency. ^^^.^^^^ ^j^^ p^^.^^^^ ^^^^^ ^^^ ^^^ belligerent community would have the same war status, i.e. in the ports of the recognizing state, the vessels of both parties would have the same privileges, the merchant vessels of the rec- ognizing state must submit to the right of search as justly belonging to both parties; in fine, so far as the prosecution of hostilities is concerned, the recognizing state must ac- cord the belligerent community all the privileges of a full state. (c) The recognizing state may hold the belligerent com- munity, if it subsequently becomes a state, accountable for its acts during the period after the recognition of its bellig- erency. If, however, the parent state reduces the revolting community to submission, the recognizing state can hold no one responsible for the acts of the recognized community from the date of recognition, (d) This recognition does not necessarily affect other 68 INTERNATIONAL LAW than the three parties, the recognizing state, the belligerent community, and the parent state. (2) // recognition is by the parent state (a) From the date of recognition, the parent state is released from responsibility to all states for the acts of the belligerents. (b) So far as the prosecution of hostilities is concerned,, the community, recognized as belligerent by the parent state, is entitled to full war status. (c) From the date of recognition by the parent state, the belligerent community only is responsible for acts within its jurisdiction, and if subdued by the parent state, no one can be held responsible, i.e. contracts made with a belligerent, or responsibilities assumed by a belligerent, do not fall upon the parent state, when victorious in the contest.* (d) Recognition of belligerency by the parent state gives the revolting community a war status as regards all states. (3) In a broad way, recognition by the parent state makes general those conditions which may exist only for the parties directly concerned, when recognition is by a ^fTe^cognition single foreign state. In cases where several states recognize the belligerency of a ho^stile community, other states that have not recognized its bel- ligerency may, without offense to the parent state, treat the hostile community as a lawful belligerent, which treatment would be constructive recognition. The general effect of recognition is to extend to the belligerent all the rights and obligations as to war that a state may possess, and to free the parent state from certain obligations while giving some new rights. The parent state may use the proper means for the enforcement of neutrality and demand LEGAL PERSONS HAVING QUALIFIED STATUS 69 reparation for any breach of the same, may maintain blockade, prize courts, and talie other measures allowable in war. (/) The condition of insurgency is usually tacitly admitted for a period prior to the recognition of belligerency, and the Admission or vessels of the insurgents are not regarded as recognition of pirates either in practice or theory. They have war status. ^^^ ^j^^ animus jurandi. The admission of in- surgent status or the recognition of belligerency does not imply anything as to the political status of the community. In the first place there is conceded a qualified war status, and in the second full war status. 30. Communities Not Fully Civilized While there is no agreement as to what constitutes civil- ization, still international law is considered as binding only upon states claiming a high degree of enlightenment. Com- munities, whether or not politically organized and not within the circle of states recognized by international law, because they are not regarded as sufficiently civilized, are not treated as without rights. It is held that these communities not fully civilized should be treated as civilized states would be treated, so far as the time and other circumstances permit. Unduly severe measures, whether in war or peace, should not be used by civilized states in dealing with those not civilized. It may be necessary that barbarians should be used as auxiliary forces in contests with barbarians, but it is now held that such forces should be officered and controlled by the civilized state. Extreme measures, in the way of devastation and destruction, have been used with the idea of impressing upon the minds of barbarians respect for the power of a state, but it is now questioned how far this is fitting for states claiming civilization. Many states not admitted to the circle of nations 70 INTERNATIONAL LAW have now acquired such a status as entitles them to the general privileges of international law to the extent to which their action has not violated its provisions, and it is generally so accorded, as for many years to China, Persia, and other Asiatic states. PAKT THREE INTERNATIONAL LAW OF PEACE OUTLINE OF CHAPTER VII GENERAL RIGHTS AND OBLIGATIONS OF STATES 31. EXISTENCE: The single comprehensive right of a state. 32. INDEPENDENCE: Freedom from external political control. 33. EQUALITY: The possession of equal rights in political affairs. 34. JURISDICTION: The right to exercise state authority. 35. PROPERTY: The right of domain in the territory. 36. INTERCOURSE: A right necessary for the transaction of state business. 72 CHAPTER VII GENERAL RIGHTS AND OBLIGATIONS OF STATES 3 1 . Existence The most comprehensive right of a state is the right to exist as a sovereign political unity. From this comprehen- sive right flow the general rights of independence, equality, jurisdiction, property, and intercourse and the obligations which the exercise of these rights imply. There are many classifications of the general rights of states. During the eighteenth century a classification into perfect and imperfect rights was common. A classification based on the essential nature of the state as a sovereign political unity, having (1) a right to existence and (2) from the point of view of international law, having relations to other states, has been widely followed. The rights based on the comprehensive right to existence were variously named as essential, funda- mental, primitive, innate, absolute, permanent, etc., while the rights derived from the practice of states in their mutual relations were called accidental, derived, secondary, acquired, relative, contingent, etc. The view now most generally recognized is that from the single comprehensive right of states to exist, all other rights flow, and all other rights are therefore related, if not directly, at least by virtue of their common source. 32. Independence Independence from the point of view of international law is freedom from external political control. While all states 73 74 INTERNATIONAL LAW possessing freedom from external political control may not be admitted to the family of states, yet in order that a state may be admitted, it is regarded as essential that it be inde- pendent. The recognition of a state carries with it the recognition of independence. However, from the fact that there are states in the world having equal rights to independ- ence, it follows that the field of action of each state is limited by the necessity of respect for the right of independ- ence belonging to other states. The recognition of a state presupposes autonomy as an essential for the existence of a sovereign political unity, and autonomy implies the right to determine and pursue such lines of action as may be in accord with its policy. 33. Equality All states, the existence of which has been recognized by the family of states, are regarded as possessed of equal rights in political affairs, so far as legal competence is concerned. This does not imply an equality of territorial area, popu- lation, wealth, rank, and influence, etc., or that a given state may not voluntarily limit the exercise of its powers. 34. Jurisdiction The right of jurisdiction is the right to exercise state authority. The right of jurisdiction is in general coextensive with the dominion of the state. It may be "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 in- tercourse in a manner best suited to their dignity and rights." ^ ' Story, "Santissima Trinidad," 7 Wheat. 354; Scott, 701. GENERAL RIGHTS AND OBLIGATIONS OF STATES 75 3 5 . Property In international law, as against other states, a given state has the right of property or domain in the territory and fix- tures within its limits. This right of property is not the right in the old feudal sense, for in the public law of the state the title of ownership may vest in the state only in a limited sense as over territory to which none of its subjects have title, and over such other forms it has ownership in corporate capacity, as public buildings, forts, arsenals, ves- sels, lighthouses, libraries, museums, etc. The right of emi- nent domain as a domestic right may also vest in the state. While from the point of view of international law, a state has the right of property over all territorial and non-territorial possessions within its limits as against other states, yet the effect of this right is somewhat modified by the fact of public or private ownership, particularly as regards the laws of war, neutrality, and intercourse. 36. Intercourse In early periods of history intercourse among states was very limited and sometimes even prohibited. At the present time the necessities of state existence presuppose, hi inter- national law, the recognition of the right of intercourse in order that state business may be transacted. The principles upon which this intercourse is carried on are well established, and form the basis of diplomatic practice. OUTLINE OF CHAPTER VIII EXISTENCE 37. APPLICATION OP THE RIGHT. (a) Right to take measures necessary for self-defense. (b) Responsibility for acts. (c) Right to administer internal affairs. 38. EXTENSION OF THE RIGHT TO SUBJECTS OF THE STATE. 76 CHAPTER VIII EXISTENCE 37. Application of the Right Besides the general rights of independence, equality, juris- diction, property, and intercourse, the right of existence in its exercise may lead to certain acts for which the general prin- ciples of international law do not provide rules. 1 (a) In face of actual dangers immediately threatening its existence, a state may take such measures as are necessary for self-preservation, even though not sanctioned measures ^ ^ by international law. Such measures, however, necessary for must be from "a necessity of self-defense, in- se . e ense. g^^nt, overwhelming, and leaving no choice of means and no moment for deliberation," and further "must be limited by that necessity and kept clearly within it." 2 The wide discussion of the case of the Virginius involved the principle of the limits of the right of self-defense. ^ (h) The right to act in a manner which international law does not sanction or denies, even though it may be strictly to preserve the existence of the state so acting, f^ractT'^'^'*^^ cannot be upheld as freeing it from responsi- bility for such acts, and these acts may be regarded as hostile by states affected by them. (c) As the domestic acts of a state are not within the province of international law, a state has the right to admin- » Hall, p. 269. » "Caroline," 1 Whart. § 50 c; 2 ibid., § 224. See Appendix XV. » 2 Moore, pp. 895, 967, 980; Scott Cases, 308, 321 n. 77 78 INTERNATIONAL LAW ister its internal affairs in such manner as it may determine fit to secure and further its existence. It may adopt any Right to ad- form of government ; may plan for its growth minister in- by developing its resources, by encouraging im- ternai affairs, migration; may strengthen defenses and forces; may regulate trade, commerce, and travel. Wliile acts of this character may work injury to other states, they are not in general just grounds for war, but may properly be met by like acts on the part of other states. 38. Extension of the Right to Subjects of the State As the subjects of a state are necessary for its existence, the right of self-preservation has been held to justify certain acts of states to secure to their subjects in their relations with foreign states such rights as the foreign states would accord to their own subjects under similar circumstances. That a local tribunal within a purely domestic division of a state cannot secure to foreigners rights to which they are entitled, in no way frees that state, whose sovereignty extends over such domestic division, from responsibility for violation of the foreigner's right. International law recognizes only the personality of the sovereign political unity, and cannot cognize the administrative and other subdivisions. Italy as- sumed a correct position in holding the United States govern- ment responsible for the murder of Italian subjects while in custody of officers of the State of Louisiana in 1891.^ Hall says: "States possess a right of protecting their subjects abroad which is correlative to their responsibility in respect of injuries inflicted upon foreigners within their dominions." ^ "Fundamentally, however, there is no difference in principle between wrongs inflicted by breach of a monetary agreement > U. S. For. Rel. 1891, pp. 628-658; "New Orleans v. Abbagnato," 62 Fed. Rep. 240; 1 Butler, "Treaty-making Power," 149-166. ' Hall, p. 278. EXISTENCE 79 and other wrongs for which the state, as itself the wrong- doer, is immediately responsible. The difference which is made in practice is in no sense obligatory; and it is open to governments to consider each case by itself, and to act as seems well to them on its merits." ^ » Hall, p. 281. OUTLINE OF CHAPTER IX INDEPENDENCE 39. MANNER OF EXERCISE OF THE RIGHT. 40. EUROPEAN BALANCE OF POWER. 41. MONROE DOCTRINE AND AMERICAN POLICIES. (a) The Monroe Doctrine. (1) Reservation made by the United States in regard to the Monroe Doctrine. (2) A policy of the United States, not a principle of international law. (3) Extent to which it has been recognized. (b) Other American policies. (1) Early congresses of South American states. (2) Pan-American Conferences, their aims and results. (3) Certain principles observed only in the western hemisphere. 42. NON-INTERVENTION. 43. PRACTICE IN REGARD TO INTERVENTION. (a) Intervention for self-preservation. (b) Intervention to prevent illegal acts. (c) Intervention by general sanction. ■» (d) Other grounds of intervention. (1) To carry out treaty stipulations. (2) To preserve the balance of power. (3) On the groimds of humanity. (4) To act as mediator in time of civil war. (6) On the ground of financial transactions. (e) Intervention justifiable only on ground of self-preservation. 80 CHAPTER IX INDEPENDENCE 39. Manner of Exercise of the Right Strictly, there can be no limitation or restriction of inde- pendence, for it is a recognized principle that independence must be absolute and inalienable. In fact, every state vol- untarily accepts either formally by treaty or tacitly by prac- tice, many conditions which restrain it in the exercise of its powers. The independence of the state is not thereby vio- lated, since the restraint is exercised by the state itself, and is not an act of external control. The number of these restraints which states voluntarily assume is continually increasing, owing to the closer relations of humanity. The exercise of the right of independence involves the privilege of making treaties, alliances, contracts, and munici- pal laws, so far as these do not violate international law or the right of independence as possessed by other states. A state may go to war to maintain its independence. The international rights of a state are in general closely related to the right of independence, and derive force from this relationship. 40. European Balance of Power Undoubtedly the idea of establishing a relationship among " neighboring states more or less connected with one another, by virtue of which no one among them can injure the inde- pendence or essential rights of another without meeting with 81 82 INTERNATIONAL LAW effectual resistance on some side and consequently exposing itself to danger" i is not a modern idea. Ancient states united to prevent the growth of some neighboring power to such magnitude as would threaten their independence.2 From the beginning of the modern period of international law, Peace of Westphalia (1648), the idea of maintaining an equilibrium among the powers of Europe has had great in- fluence, and until the latter part of the nineteenth century was regarded as one of the fundamental principles of Euro- pean international practice. Many treaties aim to preserve this balance among the European powers, and the words "balance" and "equilibrium" often appear.^ The Treaty of Utrecht in its provision between Spain and Great Britain, July 13, 1713, gives as its object ad firmandam stabiliendamque pacem ac tranquillitatem christiani orbis justo potenticB equilihro. The idea that independence was to be preserved by some balance of power reappears in successive treaties. This idea of the balance of power has led to most diverse action. Un- just rulers have made it the cloak for action entirely outside the sanction of international law. Many times it has " served as the pretext for a quarrel, and repeatedly made hostilities general which would otherwise have been shut up within a comparatively small area." ^ The feeling that the balance of power was a necessary policy for the preservation of European states, led to the idea that states should be con- strained to certain lines of action, which would prevent, in many cases, normal growth. Frequently the independence of a state was violated to anticipate an action which might disturb the European equilibrium. The partitions of Poland show a violation of the principles of international law for the sake of giving equal compensation to the parties to it. The doctrine of the balance of power is not a principle of ' Von Gentz, "Fragments upon the Balance of Power in Europe," 1806. ^ Hume, "Essays," VIL ^ Nys, " Origines," pp. 165 ff. » Bernard, "Lectures on Diplomacy," 98. INDEPENDENCE 83 international law, but merely a maxim of European politi- cal practice pretending to state the means of maintaining the independence of European states. ^ 41. Monroe Doctrine and American Policies (a) Another maxim of political action is that which has become known as the "Monroe Doctrine." 2 \Miile enun- ciated by a single state, it had in view the Doctrine maintenance of the independence of the states of the American continent. For many years after the Revolutionary War the opinion prevailed that Europe viewed with disfavor the growth of the American republic. The Holy Alliance, formed on the downfall of Napoleon, was followed by several congresses of European powers, at one of which, held at Verona in 1822, the subject of helping Spain recover her revolting colonies in America was discussed. This led to the declaration of President Mon- roe in his message of December 2, 1823, that there should be (1) no more European colonies on these continents, (2) no extension of the European political system to any portion of this hemisphere, (3) no European interposition in the affairs of the Spanish-American republics. This doctrine has been repeatedly affirmed by the United States, and in some in- stances very liberally interpreted. It in no way embodies a principle of international law, though the European and other states may regard it as expressing the attitude of the United States upon the points covered, and if desirous of avoiding friction, govern themselves accordingly. The United States, in signing the Hague Convention for the Pacific Settlement of International Disputes in 1899, made the following reservation: "Nothing contained in this convention shall be so construed as to require the United 1 Tucker, "Monroe Doctrine," 4. ^ For documentary material, see 6 Moore, § § 927-969. 84 INTERNATIONAL LAW States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the Reservation political question of policy or internal adminis- made by the tration of any foreign state ; nor shall anything United states contained in the said convention be construed in regard to the Monroe to imply a relinquishment by the United States Doctrine. q£ America of its traditional attitude towards purely American questions," In ratifying on April 2, 1908 this same convention as revised at the Second Hague Con- ference in 1907 the Senate of the United States made the same reservation. If the Monroe Doctrine were a principle of international law, the United States would not be justified in changing its attitude upon the doctrine, but probably it Un^ted^tates^ would not be seriously maintained that the not a principle United States might not enunciate another oMnternationai ^^^-^y setting aside the Monroe Doctrine.^ Reddaway well says, " that it produced its de- sired effect as an act of policy, but in no way modified the Law of Nations." ^ The doctrine 3 has always failed of direct legislative in- dorsement, and at times has been strenuously which it has opposed by European powers. That it has been been recognized, however, to a certain ex- recognize . iq^i^^ appears by the course of events.^ It was in 1895 applied in the case of the intervention by the United States in the dispute over the boundary between * Hart, "Foundations of American Foreign Policy," p. 211 ff. » "The Monroe Doctrine," VI. 3 President Roosevelt in his message of December 3, 1901, said: "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. . . . The Monroe Doctrine is a declaration that there must be no territorial aggran- dizement by any non-American power at the expense of any American power on American soil. . . . We do not guarantee any state against punishment if it misconducts itself, provided that punishment does not take the form of the acquisition of territory by any non-American power." *Sec Tucker, "Monroe Doctrine," p. 116. INDEPENDENCE 85 Venezuela and British Guiana. Arbitration settled this difficulty. 1 In 1902 an attempt was made by Germany and England to enforce their money claims against Venezuela by sinking Venezuelan war vessels and blockading Venezuelan ports. Both the German and British governments disavowed any intention to acquire territory, and measures were finally adopted for the settlement of the claims of these and other states by reference to arbitration.^ (6) Other American policies have gradually been developed in the western hemisphere. The proclamation of the Monroe Doctrine emphasized the growth of the feeling policies ™^'^'*'^" that the states of America had interests pecu- liarly American. The American states which had so recently broken from European allegiance soon began their endeavor to unite for common action on American matters. A congress of American states was called at Pan- ama in 1826.^ This Congress of Panama did not realize the hopes which had been entertained by some upon the possibility of developing a distinctively Ameri- gresses of Can policy. It had, however, among its ob- South Ameri- jg^^^g ij^q promotion of the peace and union of American nations. In 1831 another similar congress was called. Five South American states met at Lima in 1847. During the next forty years there were sev- eral congresses called with the idea of bringing the South American states into closer union and with the idea of pro- viding means for the maintenance of amicable relations among these states particularly through mediation and arbitration. In 1888, after a considerable period of discussion, the United States Congress authorized the President to call a lAnn. Cycl. (1895), p. 741; (1896), p. 804; (1899), p. 845, also U. S. For. Rel. 1896. ' U. S. For. Rel. 1903, pp. 417 S.; 452 ff.; 601 S.; U. S. For. Rel. 1904, p. 509. 3 American State Papers, 5 For. Rel., 839-905. 86 INTERNATIONAL LAW Pan-American Conference to meet at Washington in 1889. This Conference voted various recommendations relating to the general and particular relations of the Amer- Pan-American . . ^ . . . , Conferences, ican statcs. Qucstions of private mternational their aims jg^^ received much attention. Arbitration was and results. • ^ t r ^• • • i indorsed as a means of settling mternational controversies. Other matters, as extradition, patents, trade- marks, etc., were discussed. This Conference was followed by the Second Conference at Mexico, in 1901-1902, and the Third at Rio Janeiro, in 1906. Resolutions were adopted at this conference providing for the negotiation of conven- tions covering: (1) the status of naturalized citizens re- turning to the country of their origin; (2) the codification of public and private international law; (3) patents, trade- marks and copyright law; and (4) arbitration of pecuniary claims. The First Pan-American Scientific Congress held at Santiago, Chile, 1908-1909, gave much attention to in- ternational questions of special interest to the American states. There have come to be in the western hemisphere certain accepted international policies in which the European states have only a remote or occasional interest. Cer- ci^^ies'observed ^^^^ principles whicli European states have not only in the yet admitted have by treaty been extensively western adopted among American states, as in the case hemisphere. ^ . ^ . . . ."" of the principle of obligatory arbitration in the event of international differences. The South American states have in the instance of Chile and the Argentine Republic, by the convention of May 28, 1902, led in the limitation of arma- ments. ^ There has been manifested among the American states in recent years an increasing tendency to stand together and to develop policies which are American in character. As in Europe there has grown up the idea of the balance of 1 1 A. J. I. L. Doc, p. 294. INDEPENDENCE 87 power, SO common interests and ideals have developed to some extent an American policy. 42. Non-intervention With the right of independence goes the correlative ohliga- lion of non-intervention, i.e. of refraining from all acts that would forcibly limit the freedom of another state. This obligation of non-intervention does not extend to the limita- tion of acts involving no display or threat of force, as in the case of mediation and arbitration. Nor can it be claimed that the obligation of non-intervention can be urged against measures undertaken by a state to preserve its fundamental right to existence. There is no right of intervention, as has been sometimes argued, though an act of intervention may be sometimes justifiable in itself. ^ Intervention is the at- tempt of one or more states, by means of force, to coerce another state in its purely state action. The making of an alliance between two may influence a third state in its action, but it cannot be considered an intervention, nor is the tender of friendly offices in the settlement of a dispute to which a state is a party, intervention ; but when a state directly inter- feres with the exercise of the authority in another state or by another state, it constitutes intervention. Intervention may vary greatly in degree and in character, whether it be armed or diplomatic. Each case must be considered sep- arately on its merits, and if in any degree a justifiable measure, it must be on the highest grounds, and the motives of the intervening state must be pure. Wliile it is still necessary to discuss the question of intervention in its various forms, yet, as Hall says: "It is unfortunate that publicists have not laid down broadly and unanimously that no intervention is legal, except for the purpose of self-preservation, unless a breach of the law as between states has taken place, or unless » Bonfils, No. 295; "Pradier-Fod^re," No. 355. 88 INTERNATIONAL LAW the whole body of civilized states have concurred in authoriz- ing it." 1 4}. Practice in Regard to Intervention The nineteenth century might be called the century of interventions, for its whole political history has been closely related to the application of measures of intervention of the most varied sort. Naturally, all authorities do not agree as to the causes underlying the action of the several states, nor as to the nomenclature which should be used in describ- ing these measures. A review of some of the cases of inter- vention during the nineteenth century shows that while the doctrine of non-intervention has been more and more widely professed, the practice has been strongly influenced by politi- cal expediency. Intervention for any cause may always be regarded by the state whose independence is impinged as a hostile act, and a ground for war, thus putting the matter outside the international law of peace.^ (a) As the right of existence is the first right of a state and universally admitted, intervention may sometimes be Intervention ^^^^ ^^ ^ means of maintaining this existence, for self- In such a case it is clearly a matter of policy preservation. ^ ^^ ^-^e means which a state shall use, and if it resorts to intervention rather than other means, it niust have ample grounds for its action in the particular case. A case of intervention on the grounds of self-preservation which has caused much debate is that of England in the two attacks upon Copenhagen in 1801 and 1807, on the ground that it was necessary for English supremacy of the seas, which formed her chief defense, to prevent the union of the Danish forces with those of the other powers. Intervention cannot be justified by any appeal to general principles which inhere » Hall, p. 290. * Ibid., p. 284. INDEPENDENCE 89 in the act itself. "The facts of intervention are acts of the political existence of states. Good or bad, according as the intervention is injurious or beneficial." i Of intervention as a method of state action, Sir W. Harcourt says: "It is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law. Nevertheless, it must be admitted that in case of Intervention, as in that of Revo- lution, its essence is illegality, and its justification is its suc- cess. Of all things, at once the most unjustifiable and the most impolitic is an unsuccessful Intervention." 2 Non- intervention is the obligation which international law enjoins. It gives no sanction to a "right of intervention" which would be entirely inconsistent with the right of independence. The question of intervention is one of state policy only, and is outside the limits of the field of international law. Inter- vention is a method of state action which is justifiable only in rare cases, and less and less justifiable as the growing mutual dependence of states makes possible other methods less open to objection. International law at the present day undoubtedly regards intervention when strictly necessary to preserve the fundamental right of the intervening state to its existence as a permissible act though contravening the right of independence in another state. (6) As international law must rest upon the observance of certain general principles, it may in extreme cases be Intervention to ^ecessary to intervene in order that these prin- prevent uiegai ciplcs may be respected by certain states in **'*^'' their dealings with other states which, though weaker in physical force, have equal rights in international law. How far any state will act as champion of the law of nations is a question which it must decide for itself. Un- questionably international law would look with favor upon measures necessary for its own preservation. > Bonfils, No. 295. ' "Letters to Historicus," p. 41. 90 INTERNATIONAL LAW (c) Some authorities have maintained that intervention when sanctioned by a group of states is justifiable. It is Intervention probable that a group of states would be less by general wdlling to pursue an unjust course than a single sanction. state, and that intervention under such sanc- tion would be more likely to be morally justifiable. It is, however, no more legal than the same act by a single state; and if general consent is the only sanction, while the act may be expedient, advantageous, and morally just, it cannot be regarded as upheld by international law, nor can a single act of this kind establish a principle. The several cases of such intervention under general sanction can hardly be regarded as sufficiently similar to establish a principle even upon the Eastern Question in Europe. ^ It may be concluded that while general sanction of a considerable group of states may, for a given interference, free a state from moral blame and warrant the act as a matter of policy, yet it does not give any international law sanction for intervention by general consent. {d) Many reasons have been advanced as justifying such measures as intervention, onntef^entfon. (1) Intervention to carry out provisions of treaties of guaranty was formerly common, e.g. intervention by one state to preserve the same form of gov- ernment in the other or to maintain the ruling family. It is To carry out ^^^ ^^^^ ^^^^ ^^ treaty can justify interference treaty in the internal affairs of a state not party to stipulations. ^^^ ^^^^^^^ In general, intervention, because of treaty stipulations, even when the state subject to the intervention is a party to the treaty, is a violation of independence unless the treaty provides for such measures, in which case the state has become a protected state or entered into relations by which it has not full state powers. Such treaties must be clearly > See Rolin-Jaequemyns, R. D. I., XVIII, 378, 506, 591. INDEPENDENCE 91 state acts and not acts of individuals^ " who from their posi- tion have the opportunity of giving to their personal agree- ments the form of a state act." i Wliile there is still difference of opinion as to the question of intervention under treaty sanction, the weight of opinion seems to be decidedly to the effect that such intervention has no ground of justi- fication in international law. (2) Intervention to preserve the balance of power, which was regarded as a necessary means for the preservation of Euro- To preserve pean peace, has been considered as justifiable the balance of till recent times. Since the middle of the nine- power, teenth century the position has received less and less support, though advanced in behalf of the preserva- tion of the Turkish Empire and the adjustment of the Balkan states. In 1854 Great Britain and France, on the appeal of the Sultan for assistance against the Russian aggressions, determined to aid him, ''their said Majesties being fully per- suaded that the existence of the Ottoman Empire in its present Limits is essential to the maintenance of the Balance of Power among the States of Europe." 2 The attitude at the present time is stated by Lawrence. "The independence of states is not to be violated on the ground of possible danger to some imaginary equilibrium of political forces." ^ (3) Interventions upon the broad and indefinite ground of humanity have been common and were generally upheld Qjj ^jjg by the writers to the time of Vattel. Since his grounds of day Opposition to intervention of this kind has humanity. gradually obtained favor. What the grounds of humanity are, and which nation's ideas of humanity shall be accepted as standard, have been questions difficult to settle to the general satisfaction of states. For a state to set itself up as judge of the actions of another state and to assume that ' Hall, p. 288. ' Hertslet, 1181, 1193. ' Lawrence, § 85, p. 129. See also 1 Halleck, 507. 92 INTERNATIONAL LAW it has ^e right to extend its powers to settling and regulating affairs of morals, religion, and the relations of public author- ity to the subjects in another state, on the ground of main- taining the rights of mankind as a whole, is to take a ground which the conduct of any modern state, even the most civil- ized, would hardly warrant. While it is admitted that a state or states may sometimes interfere to prevent one state from unduly oppressing another, as in the intervention of the powers in Greece in 1827, yet it is generally held that to interfere because the internal affairs of a given state are not conducted in a manner pleasing to the foreign state is to give a sanction to an act that would result in far more evil than good. Such intervention has often taken place. The '' Holy Alliance," in attempting to guard Europe from "the curse of Revolution," advocated in practice a most dangerous form of intervention.! Indeed, much of the European history of the nineteenth century is but a history of successive inter- ventions. In spite of all this, as Walker says, "the rule regularly progresses towards more general recognition, that non-intervention in the internal affairs of a state is a law which admits of no exception to foreign powers, so long as the operations of that state are confined in their effect to the limits of the national territory." 2 Nevertheless, the United States interfered in the affairs of Cuba on the ground of humanity. The President, in his message of April 11, 1898, said, after a long statement of the facts: "I have exhausted every effort to relieve the intoler- able condition of affairs which is at our doors. Prepared to execute every obligation imposed upon me by the Constitution and the law, I await your action." 3 By joint resolution of Congress of April 20, 1898, demand was made upon Spain to relinquish its authority in Cuba, and the President was « 1 Hertslet, 317. Ibid., 658. ' Walker, p. 151. ' Ann. Cycl. 1898, p. 159; U. S. For. Rel. 1898, p. 760. INDEPENDENCE 93 authorized to use land and naval forces to carry the resolu- tion into effect. 1 (4) In time of civil war, on invitation of both parties, a foreign state may act as mediator, but unless the revolting party has been recognized, this is mediation in medfatorin ^ domestic sense rather than intervention in civil war *^^ sense of international law. Under other conditions there is a diversity of view as to the proper course of action.^ Some deny with Vattel, G. F. de Martens, Heffter, Fiore, Bluntschli, Woolsey, and others maintain or permit intervention in civil war at the request of one of the parties, though some of the authorities do not permit intervention except on the invitation of the parent state and not on that of the rebelling party. Blunt- schli (§ 476) and Woolsey (§ 42) admit intervention only in behalf of the party representing the state; Vattel and some others permit intervention in behalf of the party which the intervening state considers to have the right of the contest, thus opening the arbitration of the contest to a foreign state. Both of these positions are receiving less and less of sanction. Intervention in behalf of the established state implies a doubt as to which power within the state is the de facto power, and as Hall says : " The fact that it has been necessary to call in foreign help is enough to show that the issue of the conflict would without it be uncertain, and consequently that there is a doubt as to which side would ultimately establish itself as the legal representative of the state." ^ It is plain to see that intervention in behalf of the rebelling party is a viola- tion of the independence of the existing state. It is equally clear that international law does not give a foreign state a right to judge upon the justice or merits of domestic questions in another state. The principle may now be regarded as established by both I 30 U. S. Sts. at Large, 738. ' Bluntschli, § 477. ^ Hall, p. 293. 94 INTERNATIONAL LAW theory and practice that the invitation of neither party to a domestic strife gives a right to a foreign state to intervene, and that no state has a right to judge as to the merits of the contest and to interfere in behalf of the party it thinks in the right. Indeed, intervention because of civil war only is in no case justifiable, though the consequences of such a dis- turbance may warrant intervention upon other grounds, i (5) Intervention on the ground of financial transactions is not now sanctioned. A state may make any injustice done On the ground ^^^ subjects by a foreign state a matter of diplo- of financial matic negotiations. It has sometimes been held r nsac ions. ^j^^^ contracts running between a state and the subject or subjects of another state may, if violated, become grounds of just intervention, and that the subjects had a right to demand action by their sovereign. This ground is manifestly insufficient, though each state is judge as to what measures it will take in a given case. International law does not guarantee the payment of loans which are merely per- sonal transactions between the individual and the state in its corporate capacity, nor can the public law of one state be expected to hold in another. Interference on such grounds is a matter of expediency and not a matter of right. (e) In general, the best authorities seem to agree that at the present time, owing to the ease with which other meas- ures may be taken, intervention can be admitted Intervention , j.i, • i i p ic justifiable only ^nly on the Single ground of self-preservation, on ground of The numerous cases of intervention upon varied tion^'^^^^'^^^" S^o"^^^ amply show that any other ground would be open to wide abuse, as has often been the case. For general purposes of remedy for injury such measures as retorsion, reprisals, embargo, and pacific block- ade may be taken when a state deems it expedient and is willing to assume the responsibility for such measures.^ ' 1 Hertslet, 664 ff. « See Ch. XV. INDEPENDENCE 95 While intervention is, for the sake of preserving the existence of a state, a justifiable measure, it is not a right, but merely a means sometimes justifiable to preserve a right, — the right of a state to exist, which alone supersedes the obligation of non-intervention . OUTLINE OF CHAPTER X EQUALITY 44. EQUALITY OF STATES EXTENDS ONLY TO LEGAL STATUS. 45. INEQUALITIES AMONG STATES. (a) Court precedence an old mark of inequality. (b) Various inequalities in matters of ceremonial still exist. (c) Inequalities in weight of influence in affairs. (1) At the present time states classified on political grounds. (a) The Great Powers. (b) Instances of the practice of the Great Powers. (c) Policy liable to change with expediency. (2) European alliances. (3) Influence of the United States among American states. 96 CHAPTER X EQUALITY 44. Equality of States Extends Only to Legal Status The equality of states was an early premise of international law. This equality, however wide may have been its mean- ing, as interpreted by some of the earlier writers, can now be held to extend only to legal status. A state from its very being as a sovereign unity must be legally equal to any other state. Only those states who are members of the interna- tional circle are regarded as possessed of this equality from the point of view of international law. So far as legal attri- butes as states extend, the states, members of the international circle, are equal, yet that their weight in the world of affairs may vary by virtue of other circumstances must be admitted. The legal status of states is the same; regardless of the form of state organization, whether monarchy or republic; regardless of origin, whether by division or union of former states or even if created in a region hitherto outside the jurisdiction of any state; regardless of area, population, wealth, influence, etc.; regardless of relations to other states provided sover- eignty is not impaired; regardless of any change in the form of state organization, as from a republic to a monarchy or even of a temporary lapse in the exercise of sovereignty. 45. Inequalities among States While all states, members of the family of states, are equal in international law so far as their legal attributes are con- cerned, they may be very unequal in other respects. 97 98 INTERNATIONAL LAW (a) One of the oldest marks of inequality is that of court precedence, which for many years was a fertile ence an old source of difficulty, and was at last settled to the mark of extent of ranking by title of diplomatic repre- sentative by the Congress of Vienna in 1815. ^ (6) Inequalities in matters of ceremonial of various kinds have not disappeared. These may be based upon tradition, or conventional grounds, and frequently give inTquaUties in ^^^^ ^^ difficulties if disregarded. These cere- matters of monials may be (1) political as between the *^ni™°rt sovereigns in their official personal capacity as emperors, kings, dukes, etc., (2) court and diplomatic in interstate negotiations, (3) treaty as in altemat or in the alphabetical signing of treaties, (4) maritime cere- monial in salutes, etc. (c) Inequalities in weight of influence in affairs. (1) In Europe there is distinctly recognized in political practice an inequality of the states, and they are classed as "the great powers," "the minor powers," and Inequalities m u x / weight of in- Sometimes such states as those of the Balkan fluence in peninsula are referred to as "the little powers" or "third-rate states." These divisions are based merely upon political grounds, and states may pass from one division to another as their wealth, area, or in- fluence increases or decreases. At the present time "the great powers," generally men- tioned officially upon the continent in the alphabetical order At the present ^^ ^^^^^ names in French, i.e. Allemagne, Angle- time states terre, Autriche, etc., are Germany, Great Britain, classified on Austria, France, Italy, and Russia. During the political ' J ./ 7 ^ o grounds; the sixteenth and seventeenth centuries Spain was Great Powers, numbered with "the great powers." Sweden was so ranked in the seventeenth century. Italy was « See Sec. 72 (6). EQUALITY 99 counted with "the great powers" after 1870. The union of several powers upon certain lines of policy, since early in the nineteenth century, has been called "the concert of Europe," " the primacy of the great powers," etc. It was not the pur- pose of these great powers to establish new rules of interna- tional law; but as enunciated by the five powers, November 15, 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." ^ That the practice of the Great Powers has not been strictly in accord with these expressed principles, a glance will show. The immediate action of Austria, Russia, and Illstj3jIlC65 of the practice of Prussia in the Congress of Troppau, 1820, car- the Great pj^d the principle of interference in the internal PcwGrs affairs of states so far that Great Britain found itself compelled to dissent. This continuance of the policy of the Holy Alliance in putting down movements in favor of popular liberty, wherever arising, led to gross violations of international rights. Nor did Great Britain become a party to the acts of the Congress of Verona in 1822, which led to intervention to prevent changes in the internal organization of Spain in 1823. The struggles of the Greeks for independ- ence at about this time were naturally regarded by those upholding the ideas of the Holy Alliance as dangerous to those states desiring to prevent revolutionary movements. But the narrow policy of the Alliance was gradually losing sup- port. The opposition of Great Britain and the death of Alexander of Russia in 1825 hastened its speedy fall. Mean- time the idea of a collective authority in the Great Powers had been maintained. This began to be exercised in behalf of the Greeks in 1826, and throughout the nineteenth centuiy was repeatedly exercised in the same behaK, sometimes un- 1 1 Hertslet, 574. 100 INTERNATIONAL LAW selfishly, often from motives of mixed character. During the latter half of the nineteenth century the Great Powers con- tinually kept a close surveillance over Grecian affairs, and enforced their judgments in regard to Greece by force (de- struction of Turkish fleet at Navarino, 1827); by providing form of government and naming monarch (1829 and later); by fixing and changing boundaries (1829 and often); by pacific blockade (1827, 1850, 1886, 1897) ; by regulating finan- cial affairs, and by other means of varying degree of force. ^ The Eastern question has particularly occupied the Con- cert, and the disposition of the territory once within the Turkish jurisdiction has offered a fertile field for varying policy. The establishment of Belgium as a neutral state by the treaty to which Belgium was itself a party afforded another example of the influence of the Great Powers. Since 1839 Egypt has also been subject to frequent control by the Great Powers. Since 1885 the unappropriated portion of Africa has been brought within the range of action of the Concert by the theory of the sphere of influence. The Concert of the Great Powers shows then a policy which is liable to change with expediency. The two great treaties Policy liable °^ ^^^ Concert are those of Paris, 1856, and to change with Berlin, 1878. Of these Holland says: ''The expe lency. treaties of Paris and of Berlin thus resemble one another, in that both alike are a negation of the right of any one Power, and an assertion of the right of the Powers collectively, to regulate the solution of the Eastern question." ^ The fact that the action of the Great Powers has been re- garded as binding and tacitly accepted in Europe in certain questions in the East, Egypt, Greece, and Belgium does not give ^ For detailed summary, 1826-1881, see Holland, "European Concert in the Eastern Question," Ch. II. ^ "European Concert in the Eastern Question," p. 221. EQUALITY 101 the sanction of international law to the action. The most that can be said is that it is an alliance of a loose character, whose authority is in proportion to the force behind its decisions. ^ (2) Another feature in European politics giving rise to further inequalities in practice was introduced by the alliance of Germany and Austria in 1879 and Italy in ai]Snces° 1883, which is now commonly known as the Triple Alliance. This belt of powers separating Eastern from Western Europe has materially affected the action of other powers. The "friendly understanding" between France and Russia soon after the Triple Alliance affords a measure of counter- check upon the action of the other powers. The exact terms of this compact of Germany, Austria- Hungary, and Italy have never been divulged, although co- operation is assured in the event of hostile relations with Russia or France. The alliance does not prevent friendly relations between the parties to it and the other powers. In spite of all these alliances and counter-alliances, the recognition of the weight of the decisions of the congresses and conferences of the Great Powers upon those subjects which are held to affect "the peace of Europe" has an influence comparable to that which might be assigned to a "Supreme Court of International Appeal." ^ (3) The United States upon the American continent in its enunciation of the Monroe Doctrine, and in the Influence of i i • i i i • /• -^ i ^ the United Subsequent mterpretation oi it, has assumed a states among position as arbiter among the American states American -^^ some respects similar to that of the European Concert among the European states. This atti- tude of the United States has weight in international practice, but cannot be regarded as a part of international law, ^ Lawrence, "Disputed Questions," V. ' Lawrence, "Disputed Questions," V, end. OUTLINE OF CHAPTER XI JURISDICTION 46. JURISDICTION IN GENERAL. 47. TERRITORIAL DOMAIN AND JURISDICTION. 48. METHOD OF ACQUISITION OF TERRITORIAL JURISDICTION. (a) By right of discovery of a new land. (b) By eflEective and continued occupation of a territory. (1) The Hinterland Doctrine. (2) Uncivilized peoples the rightful occupants of the soil. (c) By conquest of a territory, usually a result of military occupation. (d) By cession through the transfer of territory. (1) By gift. (2) By exchange. (3) By sale. (4) By special agreement. (e) By prescription, or long-continued possession. (f) By accretion, or change in land areas near the boundary of a state. 49. QUALIFIED TERRITORIAL JURISDICTION. (a) In protectorates the external affairs and international relations are usually imder the direction of the protecting state. (b) In a sphere of influence the aim is to secure the rights without all the obligations. 50. MARITIME AND FLUVIAL JURISDICTION. 51. JURISDICTION OF RIVERS. (a) Rivers which traverse only one state. (b) Rivers which traverse two or more states. (c) Rivers with opposite banks imder jurisdiction of two different states. 102 62. THE NAVIGATION OP RIVERS. (a) General rules for river navigation. (b) Confirmation of rules by conventions. 53. JURISDICTION OP ENCLOSED WATERS. (a) Exclusive jurisdiction of a state over the waters wholly within its borders. (b) Jurisdiction over gulfs, bays, and estuaries in the state or states enclosing them. (c) Jurisdiction over straits less than six miles in width in the shore state or states. (1) Jurisdiction over the Danish sounds. (2) The Bosphorus and Dardanelles. (d) JiKisdiction of canals similar to that of straits. (1) The Suez Canal. (2) The Panama Canal. (3) The Corinth and Kiel Canals. 64. THE THREE-MILE LIMIT. (a) Statement and origin of the principle. (b) A wider limit sometimes claimed for special purposes. 66. JURISDICTION OVER FISHERIES. (a) Pishing on the high sea a right belonging to all states alike. (b) Special privileges in fishing, as in the case of the Canadian fisheries. (c) The disputed question of seal-fishing in the Bering Sea. 66. JURISDICTION OVER VESSELS. (a) Two classes of vessels. (1) Public. (2) Private. (b) Nationality of a vessel determined by its flag or papers. (c) General exercise of jurisdiction over vessels. (1) Exclusive over public and private vessels on high seas and in home waters. 103 66. JURISDICTION OVER YESSELS.— Continued. (2) Exclusive over public vessels in foreign waters in regard to matters of internal economy, (a) Extent of immunities of the persons on a ship of war in a foreign harbor. (6) The right of asylum on board a ship of war, (c) Immunities of other vessels in public service, (3) Varying over private vessels in foreign waters, (4) Special exemption of semi-public vessels, 67. AERIAL JURISDICTION. 68. JURISDICTION OVER PERSONS AND THE QUESTION OF NATIONALITY, 69. JURISDICTION OVER NATURAL-BORN SUBJECTS. 60. JURISDICTION OVER FOREIGN-BORN SUBJECTS. (a) The rule of jus sanguinis, i.e., the child inherits the nationality of his father. (b) The rule of jus soli, i.e., the place of birth determines the na- tionality. (c) Variations in laws, 61. JURISDICTION BY VIRTUE OF ACQUIRED NATIONALITY, (a) By marriage a woman in most states acquires the nationality of her husband. (b) By naturalization, or an act of sovereignty by which a foreigner is admitted to citizenship in another state. (c) By annexation of the territory upon which a person resides. (d) The effect of naturalization on a person in his relations to his adopted and native states. (e) Incomplete naturalization or the effect on a person of his declara- tion of intention to become a citizen. (1) Case of Martin Koszta. (2) Citizenship and liability to military service. (3) Municipal laws and naturalization, 104 62. JURISDICTION OVER ALIENS. (a) Qualified jurisdiction of native state over subjects abroad. (1) Right to make emigration laws. (2) Recall of citizens for special reasons. (3) Penal jurisdiction over subjects who have committed crimes in a foreign state. (4) Protection of subjects in a foreign state. (b) Jurisdiction of a state over aliens within its territory. (1) Right of exclusion. (2) Right of expulsion. (3) Right to conditional admission. (4) Restrictions upon settlement. (5) Right to levy taxes. (6) Sanitary and police jurisdiction. (7) Penal jurisdiction for crimes committed within territorial limits. (8) Maintenance of public order. (9) No right to demand military service for political ends. (10) Freedom of commerce. (11) Holding and bequeathing of property. (12) Freedom of speech and worship. (c) Passport a means for establishing the identity of an alien. 63. EXEMPTIONS FROM LOCAL JURISDICTION GENERALLY MADE FOR PERSONS REPRESENTING THE AUTHORITY OF A FRIENDLY STATE. (a) Exterritoriality, or immimity from jurisdiction. 64. EXEMPTION FROM LOCAL JURISDICTION OF SOVEREIGNS SOJOURNING IN THEIR OFFICIAL CAPACITY IN FOREIGN COUNTRIES. 65. EXEMPTIONS OF STATE OFFICERS. (a) Wide immimity allowed diplomatic agents. (b) Exemptions granted to consuls to facilitate effective performance of their duties. (c) A foreign army entering a state, by permission of its sovereign, is free from that sovereign's jurisdiction. (d) A vessel of war in a foreign state free from local jurisdiction. 105 66. SPECIAL EXEMPTIONS. (a) In certain Oriental states special exemptions regulated by treaty. (1) General rules in regard to penal matters. (2) General rules in regard to civil matters. (b) Mixed courts in Egypt. 67. EXTRADITION. (») Persons liable to extradition vary according to treaties. (b) Limitations as to jurisdiction over a person extradited. (c) Conditions necessary for a claim for extradition. (d) Procedure in cases of extradition based on definite principles. 68. SERVITUDES. (a) International servitudes, positive and negative. (b) General servitudes. 106 CHAPTER XI JURISDICTION 46. Jurisdiction in General Jurisdiction is the right to exercise state authority, and for the purposes of international law may be classified as (a) territorial or land jurisdiction, (b) fluvial and maritime, (c) aerial, and (d) jurisdiction over persons. 47. Territorial Domain and Jurisdiction The word "territory" is sometimes used as equivalent to domain or dominion or to an expression covering the sphere of state control. Territory is also used in the stricter sense of the land area over which a state exercises its powers. In this stricter sense, territorial jurisdiction refers to the exercise of state authority over the land within its boundaries and those things which appertain to the land. The growing international importance of railroads, telegraph, and other modern means of communication has introduced new topics which were not considered in early treatises, and are still under discussion. The fundamental law of territorial jurisdiction is that a state has within its boundaries absolute and exclusive juris- diction over all the land and those things which appertain thereto. Certain exemptions are specially provided in inter- national law to which all states are considered as giving express or tacit consent. In other respects than those men- tioned under exemptions, the state may, as sovereign, exercise 107 108 INTERNATIONAL LAW its authority at discretion within the sphere it has set for itself. The state has, as against all other states, an exclusive title to all property within its territorial jurisdiction. As regards its own subjects, it has the paramount title which is recognized in the right of eminent domain, or the right to appropriate private property when necessary for public use, A state may also in its corporate capacity hold absolute ownership in property, as in its forts, arsenals, ships, etc. The state also has the right to enforce a lien on the land and what appertains to it in the form of taxes. 48. Method of Acquisition The method of acquisition of territorial jurisdiction is a subject which has received much attention in international law, particularly because of the remarkable e;xpansion of the territorial area of states within the modern period of international law since 1648. The methods commonly considered are: (1) discovery, (2) occupation, (3) conquest, (4) cession, (5) prescription, (6) accretion. (a) In the early period of European expansion through discovery, the doctrine that title to land hitherto unknown By ri ht of Vested in the state whose subject discovered the discovery of land was current. Gross abuse of this doctrine a new land. j^^ ^^ ^j^^ modification that discovery without occupation did not constitute a valid title. As the field of discovery has grown less, the importance of a definition of occupation has decreased. (6) Occupation is held to begin at the time of effective application of state authority, and strictly continues only during the exercise of such authority. In fact, however, the title by occupation is held to extend to the adjacent unoccu- pied territory to which the state might potentially extend JURISDICTION 109 the exercise of its authority, or where it may from time to time exercise its authority in an undisputed manner. Title by occupation extends as a rule to that area, and continued ^ot Under the jurisdiction of another state, occupation of a which is necessary for the safety of the occupied ern ory, ^^^^ ^^ .^ naturally dependent upon it, as to the territory drained by a river of which a given state holds the mouth. The "Hinterland Doctrine," brought forward during the later years of the nineteenth century, advances the idea that no such limits as above shall bound the area which can be claimed on ground of occupation, but that coast settlements give a prima facie title to the unexplored interior. While the uncivilized peoples living within an area to which a civilized state claimed jurisdiction by virtue of occupancy were often unjustly treated, they peoples ttie however " were admitted to be the rightful occu- rightfui occu- pants of the soil, with a legal as well as just pants of the claim to retain possession of it, and to use it according to their own discretion, though not to dispose of the soil of their own will, except to the govern- ment claiming the right of preemption. . . . The United States adopted the same principle, and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil, and exercise such a degree of sovereignty as circumstances required, has never been questioned." ^ (c) Conquest in the technical sense of the status of a territory which has come permanently under a territory^ ° the jurisdiction of the enemy is distinct from usually a result military occupation, which is a simple fact sup- of military ^^^^^ ^ ^^^^^ occupation. . Military occupation may pass into conquest (I) by actual occupation for a long period, with intention on ' 3 Kent Com. 379, 3S0; 1 Gould and Tucker, 484, no INTERNATIONAL LAW the part of the occupier to continue the possession for an in- definite period, provided there has not been a continued and material effort upon the part of the former holder to regain possession. If, after a reasonable time, this effort to regain possession seems futile, the conquest may be regarded as com- plete. Each state must judge for itself as to the reasonable- ness of the time and futility of the effort. (2) Conquest may be said to be complete when by decree, in which the in- habitants acquiesce, a subjugated territory is incorporated under a new state. (3) A treaty of peace or act of cession may confirm the title by conquest, i (d) Transfer of territory by cession may be by gift, ex- By cession change, Sale, or other agreement, through (1) The transfer by gift is simple, and carries '^^ift'^exchan e ^^^^ obligations as the parties interested may sale, or other Undertake. In 1850, by a treaty with Great agreement. Britain, ''Horse-shoe Reef," in Lake Erie, was ceded to the United States for the purpose of the erection of a lighthouse, "provided the Government of the United States will engage to erect such lighthouse, and to maintain a light therein; and provided no fortification be erected on said Reef." 2 (2) Transfer of territory by exchange is not common in modern times. By the Treaty of Berlin, 1878, a portion of Bessarabia, given to Roumania by the Treaty of Paris, 1856, was given back to Russia, and Roumania received in exchang-e a portion of Turkey. ^ (3) Transfer of territory by sale has been frequent. From 1311, when the Markgraf of Brandenburg sold three villages to the Teutonic knights, down to the nineteenth century, instances of sale might be found, but the nineteenth century ' In case of the United States, while the President may after declaration of war conquer and hold foreign territory, the joint action of the President and Senate is necessary to make the title complete by treaty. ^ Treaties of U. S. 444. » Woolsey, 496; Hertslet, 2745, 2791. JURISDICTION 111 has numerous instances which have established the principles. Napoleon sold Louisiana to the United States in 1803, the Prince of Monaco made a sale to France in 1851, Russia sold Alaska to the United States in 1867, the Netherlands sold African colonies to Great Britain in 1872, Sweden sold the island of St. Barthelemy to France in 1877, the United States bought the Philippines in 1898. The fact of the sale is not a matter of international law, but is purely within the range of the public law of the countries concerned. The change of jurisdiction of the area gives rise to certain possible compli- cations which may involve principles of international law, though generally the conditions of sale settle such questions. (4) Cession of jurisdiction over a. given portion of territory as surety for the performance of a certain act, by lease, by annexation agreements, as payment of an indemnity or the like, are methods of acquiring temporary jurisdiction which frequently becomes permanent. (e) Prescription, or the acquisition of territory by virtue of long-continued possession, is similar to prescription in . . public law as applied to the acquisition of By prescription, '■ mi . or long-con- property by persons. The recognition of this tinued principle prevents many disputes over jurisdic- tion of territory which originally may have been acquired in a manner open to question, e.g. the hold- ing of the territory by the states parties to the partition of Poland may through long-continued possession be valid by prescription if not by the original act. In regard to prescription, it should be observed that (1) it is a title valid only against other states. The inhabitants do not necessarily lose rights originally possessed. (2) This method avoids perpetual conflicts on ground of defect of original title. (3) Prescription may be considered as effective when other states have for a considerable time made no objection, threatening the exercise of jurisdiction by the state 112 INTERNATIONAL LAW in possession. While some authors deny this right, it is generally admitted in fact, and by most of the leading authori- ties acknowledged in theory. i (/) When land areas in the neighborhood of the boundary of a state are changed, territory may be acquired by accre- tion. (1) Land formed by alluvium or other o/change'i'n' causo near the coast of a state is held to belong land areas near to that state. Lord Stowell, in 1805, held that of a state ^^^ ^^ud islands formed by alluvium from the Mis- sissippi River should for international law purposes be held as part of the United States territory.^ In general, alluvium becomes the property of the state to which it attaches, following the Roman law.^ (2) Where a river is the boundary, the rule is well established that islands formed on either side of the deepest channel be- long to the state upon that side of the channel; an island formed mid-stream is divided by the old channel line. (3) WTien a river's channel is suddenly changed so as to be entirely within the territory of either state, the boundary line remains as before in the old channel. So also the bound- ary line of territory is not changed, even if the bed of a lake be changed.'* 49. Qualified Territorial Jurisdiction Two degrees of qualified territorial jurisdiction are exer- cised in the protectorate and the sphere of influence. - (a) The protecting state usually acquires the jurisdiction over all external affairs of the protected community, often including territorial waters, and assumes the direction of its international relations. A measure of jurisdiction of those in- ternal affairs which may lead to international complications ' See discussion in Hall, note 1, p. 120. ' The "Anna," 5 C. Rob., 373; Scott, 684. ' "institutes," 11, 1, 20. * Cooley V. Golden, 52 Mo. App. 52; Scott, 129; Missouri v. Nebraska, 196 U. S. 23; Nebraska v. Missouri, 197 U. S. 577, JURISDICTION 113 is also generally assumed by the protecting state, e.g. treat- ment of foreigners in the protected territory, relations of pro- tected subjects in foreign countries, use of flag, In protect- ^^^^ rpj^^ Conditions of protected states vary orates. "^ , , *' greatly, hardly the same description holding for any two. It may be safe to say that (1) the protecting state cannot be held responsible for the establishment of any par- ticular form of government ; (2) a reasonable degree of secur- ity and justice must be maintained. As to what constitutes a "reasonable degree," the circumstances of each case must determine; then the protecting state is bound to afford such justice and security and (3) must be able to exercise within the protected area such powers as are necessary to meet its responsibilities. (6) The term "sphere of influence" has been used since the Berlin Conference, 1884-1885, to indicate a sort of attenuated protectorate in which the aim is to oHnfluence secure the rights without the obligations. First applied to Africa in the partition of the unex- plored interior among the European powers — Great Britain, Germany, France, Italy, Portugal — it has since been ex- tended to other regions. This doctrine of mutual exclusion of each from the "spheres" of all the others cannot be held to bind any states not party to the agreement. The method of exercise of "influence," while varying, usually consists in making with the native chiefs treaties which convey privileges other than the cession of sovereignty. These privileges are often commercial, and may be with the state direct or agreements with some company to whom the state has delegated a portion of its authority, as in the African trade companies. The "spheres of influence," gradually with the growth of power of the influencing state and the necessity of protect- ing the "sphere," against other states, become less vague ia 114 INTERNATIONAL LAW their relations to the influencing state and merge into pro- tectorates or some other more stable condition. This "sphere of influence" idea, as well as the "Hinterland Doctrine," can be of only temporary importance, owing to the limited area still open to occupation. It is maintained that within the "sphere" the influencing state has jurisdic- tion to the exclusion of another state, and that it has a right to occupy the territory later, if advisable. The influencing state disclaims all obligations possible. ^ 50. Maritime and Fluvial Jurisdiction Wheaton states as a general principle of maritime and fluvial jurisdiction: "Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others from using these elements in any manner which does not occasion a loss or inconvenience to the pro- prietor." 2 While the tendency of international policy is toward unrestricted freedom of river navigation, yet the principle as enunciated by Wheaton cannot be said to be established in practice. The American and Continental writers have generally favored the principle enunciated by Wheaton. English writers have contended against this posi- tion as a right, but admit that the principle is becoming established by numerous treaties and conventions. As to the sea, the principle may be said to be established. 51. Jurisdiction of Rivers The jurisdiction of rivers is a question which is not identi- cal with the right of navigation of rivers, and may best be considered apart. The question of jurisdiction is one of general international principl-e, while the question of river 'See Lawrence, 153, 161, 164-167; Reinsch, " World Politics," pp. 60, 113, 184. 2 Wheat. D., § 193, p. 274. JURISDICTION 115 navigation is, in many instances, one of particular pro- vision. The rivers fall under three classes: — 1. Rivers which traverse only one state. 2. Rivers which traverse two or more states. 3. Rivers upon the opposite banks of which different states have jurisdiction. (a) Rivers which traverse only one state are exclusively Rivers which within the jurisdiction of that state. This traverse only jurisdiction may extend even to the forbidding one state. ^^ ^j^^ ^g^ ^^ ^ ^.-^gj. ^^ other states, and justifies the state in prescribing such regulations for its use as it may deem fit. (6) Rivers flowing through two or more states are for those parts within the boundaries of each state under its Rivers which jurisdiction for the purposes of police, tolls, and traverse two general regulations. The right of absolute ex- or more states. pi^gJQj^ of i\^q co-riparian states by any one of the states through which a river flows has been the subject of much discussion, and authorities of great weight can be found upholding either side. (c) When two states have jurisdiction upon opposite banks of a river, the jurisdiction of each state extends to the middle of the main channel or thalweg. Before the ^^tn^ Treaty of Luneville (Art. VI)_, 1801, it had under juris- been common to consider the limit of jurisdic- diction of two ^.^^ ^f ^j^g ^^^ g^^^^g ^^^ j^.^^g ^f ^^^ ^^ different states. _ ' a line much more difficult to determine, and more changeable than the channel line. The thalweg has been frequently confirmed as the accepted boundary where no con- ventions to the contrary existed. ^ * Ed. Engelhardt, " Du regime conventionnel des fleuves intemationaux," Ch. II.; Scott, 129; 1 Moore, § 128. 116 INTERNATIONAL LAW 52. The Navigation of Rivers The laws of jurisdiction of rivers are generally accepted. The early idea that there was a natural right of navigation, and innocent passage received less support during the nine- teenth century than formerly. The history of river navi- gation during the nineteenth century, as shoAvn in the discussions between the representatives of various nations, and in the treaties and conventions agreed upon, as well as in treaties and declarations voluntarily made in regard to navi- gation of rivers, seems to furnish general rules : (a) 1. That international law gives to other states no right of navigation of rivers wholly within the jurisdiction of General rules another state. for river 2. That wheu a river forms the boundary of navigation. ^^^ ^^ more states it is open to the navigation of each of the states. 3. That when a river passes through two or more states, international law gives no right to one of the states to pass through the part of the river in the other state or states. There is a strong moral obligation resting upon the states below to allow freedom of navigation through the river to the states upon the upper course of the river. The right of innocent use, innocent passage, freedom of river navigation, has been maintained on various grounds and in various forms, by many authorities, i Those who take a position opposed to this claim assert that the navigation of rivers is, and prop- erly should be, to avoid more serious complications, a matter of convention. (b) In fact, since the French Revolution, the subject has so frequently boon a matter of convention ^ as to establish the 1 Grotius, II, ii, 12-14; Pufendorf, III. 3, 4; Vattel, §§ 104, 126-130, 132-134; Bluntschli, ^ 314; Calvo, §§ 259, 290-291; Fiore, §§ 758, 768; Carnazza-Amari, "Traite," § 2,Ch. VII, 17; Heffter, § 77; Wheat. D., § 193. 2 Wheat. D., §§ 197-204; 1 Moore, § 129; Pradier-Fodere, "Traite," §§ 727-755. JURISDICTION 117 general principles, that in case of no special restrictions, river navigation is free, subject to such regulations as the state having jurisdiction may deem necessary, and of rules by that the privilege of navigation carries with it conventions. ^^^ ^gg q£ ^Y\e river banks, so far as is neces- sary for purpose of navigation. i 53. Jurisdiction of Enclosed Waters (a) The rule in regard to waters wholly within the terri- tory of a state such as lakes, etc., is that the jurisdiction is Jurisdiction on exclusively in that state. The decisions of the waters wholly United States Supreme Court have sometimes enclosed. regarded the Great Lakes as " high seas," though treaties, opinions, and practice have generally been such as would find sanction only in exclusive jurisdiction. 2 (6) Gulfs, bays, and estuaries are regarded as within the jurisdiction of the state or states enclosing them, provided , . ,. ,. the mouth is not more than six miles in width. Jurisdiction over gulfs, bays, A line drawn from headland to headland on and estuaries, g^j^j^gj. gj^jg Qf ^^g mouth Is Considered as the coast line of the state, and for purposes of maritime jurisdic- tion the marine league is measured from this line. Waters having wider openings into the sea have been claimed on special grounds, as the claim of the United States to terri- torial jurisdiction over the Chesapeake and Delaw^are bays. France and Germany claim jurisdiction over gulfs having outlets not over ten miles in width. Between states parties to treaties special claims have been made and allowed. These treaty stipulations do not necessarily bind states not parties to the treaty, e.g. treaty between Great Britain and France, 1839. "It is agreed that the distance of three miles, fixed as the general limit of the exclusive right of fishing upon the » Justinian, "Institutes," 2, t. 1, §§ 1-5. 2 United States v. Rodgers, 150 U. S. 249. 118 INTERNATIONAL LAW coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be meas- ured from a straight line drawn from headland to headland." ^ More recent tendency is toward the acceptance of the ten-mile limit of width of mouth, though there is a reasonable claim that some ratio should be fixed for very large interior water areas to which the entrance, though more than ten miles, is yet relatively narrow. (c) Straits less than six miles in width are within the juris- diction of the shore state or states. In case two shores are territory of different states, each state has juris- «!!ll^ol!o';^^ diction to the middle of the navigable channel. over straits. ^ Where a state owns both shores of a strait which does not exceed six miles in width, the strait is within its territorial jurisdiction, though other states have the right of navigation. This right of navigation is in general conferred upon both merchant and war vessels of states at peace with the territorial power. These vessels must, however, comply with proper regulations in regard to navigation. The claim to exclu- sive jurisdiction over such narrow straits has been abandoned. The claim of the king of Denmark to jurisdiction over the Danish Sound and the Two Belts, which entitled him Jurisdiction ^^ ^^^^ ^^^^^ upon vessels passing through, was over the based on prescription and fortified by treaties anis soun s. ^^ early as the one with the Hanse towns in 1368. Against these tolls, as an unjust burden upon com- merce, the United States protested in 1848, at the same time maintaining that Denmark had not the right of exclusive jurisdiction. The European states in 1857 paid a lump sum in capitalization of the sound dues. The United States, refusing to recognize the right of Denmark to levy tolls, paid $393,011 in 1857 in consideration of Denmark's agree- ment to keep up lighthouses, etc. ' 1 Moore, § 153. JURISDICTION 119 The navigation of the Bosphorus and Dardanelles has been a subject of discussion and treaty since 1774, when The Bosphorus R^^sia compelled Turkey to open these straits and Darda- to the passage of merchant vessels. War ves- "® ®^" sels were excluded till 1856 when, by convention attached to the Treaty of Paris, such vessels were admitted for special purposes of service to the embassies at Constanti- nople and protection of improvements on the Danube water- way. By the Treaty of 1871 the Sultan may admit other war vessels, if necessary for carrying out terms of the Treaty of Paris. The United States has never acknowledged that the Sultan had the right to exclude its war vessels, though always asking permission of the Sultan to pass the Dardanelles. As a generally accepted principle the law may be stated as follows: straits connecting free seas are open to the navi- gation of all states, subject of course to reasonable jurisdic- tion of the territorial power. (d) Canals connecting large bodies of water have been regarded as in most respects subject to jurisdiction similar to that of straits. Yet as these canals are Juris iction constructed at a cost, they must also be given over canals. _ . . . , exemptions from certain restrictions which properly apply to natural channels. The position of the Suez Canal as an international water- way gives some indication of existing practice. It is to be noted, (1) that the canal is an artificial waterway; (2) that M. de Lesseps, a foreigner, in 1854, under authorization of the Viceroy, undertook its con- Canai"^^ struction as a business venture; (3) that it is wholly within the territory of Egypt. The case is then one of an artificial waterway, constructed by private capital, wholly within the territory of a state. The negotiations continued from 1869, when the canal was opened, to 1888, when a convention was signed by the 120 INTERNATIONAL LAW Six Great Powers, and by the Netherlands, Spain, and Tur- key, by which the status of the canal was defined. By Article I of the Conventional Act, " The Suez Maritime Canal shall always be free and open, in the time of war as in the 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." By Article IV, the canal is not to become the base of hostile action. The marine league is to be respected in the action of foreign vessels. The twenty-four hour period is to elapse between the sailing of hostile vessels. By Article VII, the powers may keep two war vessels in the "ports of access of Port Said and Suez," though "this right shall not be exercised by belligerents." By Article X, the territorial jurisdiction for general ad- ministrative purposes is affirmed, and likewise for sanitary measures in Article XV. ^ This Suez Canal of such great international importance is by this convention within the jurisdiction of Egypt, but the powers have assumed to provide that this jurisdiction shall not be exercised in such a way as to prevent innocent passage. The Hay-Pauncefote Treaty of 1901, setting aside "" the Clayton-Bulwer Treaty of 1850, leaves to the United States large jurisdiction over such canal as it may The Panama determine to construct across the Central Amer- Canal. ican Isthmus, and it is also provided that the canal shall be neutralized substantially as in the manner set forth in the Convention in regard to the Suez Canal. 'Pari. Papers, 1889, Commercial, No. 2; Holland, "Studies in Inter- national Law," p. 270. JURISDICTION 121 The canal at Corinth, shortening somewhat the route to the Black Sea and Asia Minor, was opened in 1893. This canal does not, like the Suez, greatly change K^ercaiTa^s ^^^^ Current of the world's intercourse, and is entirely within the jurisdiction of Greece. Similarly the canal at Kiel, opened in 1896, is wholly within the jurisdiction of Germany. 54. The Three-mile Limit (a) One of the most generally recognized rules of interna- tional law is that the jurisdiction of a state extends upon the statement and op^u sea to a distance of three miles from the origin of the low-water mark. In the words of the Act of princip e. Parliament passed in consequence of the case of the Franconia,^ 1878 (41 and 42 Victoria, c. 73), "The terri- torial waters of 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 international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence 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 terri- torial waters of Her Majesty's dominions." The three-mile limit became more and more generally recognized after the publication of Bynkershoek's "De Dominio Maris," in which he enunciates the principle that the territorial jurisdiction ends where the effective force of arms ends, which being approximately three miles from shore at that time, has since been usually accepted. (6) For special purposes a wider limit of jurisdiction is maintained and sometimes accepted by courtesy, though it ' See Regina v. Keyn, 2 L. R. (Exch. Div.), 63; Scott, 154. 122 INTERNATIONAL LAW is doubtful whether any state would attempt to hold its po- sition against a protest from another state. The claims are based on the jurisdiction over fisheries, the en- A wi er imit forcement of revenue laws, and the maintenance sometimes ' claimed for of neutrality. Such claims as the former English special claims to the "King's Chambers," announced in purposes. 1604 to be bounded by a "straight line drawn from one point to another about the realm of England," as from the Lizard to Land's End, would not now receive serious support; and since the rejection of the claims of the United States by the Bering Sea Tribunal, it can be safely stated that the expansion of territorial jurisdiction upon the open sea will only come through the consensus of states. The desirability of some new regulations upon marine jurisdiction was well shown in the discussions of the Institute of Inter- national Law at its meeting in Paris in 1894. ^ Within the three-mile limit the jurisdiction extends to commercial regulations, rules for pilotage and anchorage, sanitary and quarantine regulations, control of fisheries, revenue, general police, and in time of war to the enforcement of neutrality. 55. Jurisdiction over Fisheries The existence of fisheries has given rise to some special claims to extension of maritime jurisdiction. (a) As a general rule, the right of fishing on the high sea belongs to all states alike, but each must respect the rights of others. In order that these rights might be Fishing on the , „ . . i high sea a right defined, it has in many cases been necessary belonging to iq resort to conventions. One of the excel- lent examples of this kind is seen in the con- vention in regard to the North Sea Fisheries, May 6, 1882, to which Belgium, Denmark, France, Germany, Great Britain, » Annuaire XIII, 329. JURISDICTION 123 and Holland are parties. The cruisers of any of these states may present the case of the fishing vessel violating the regu- lations of the convention in the country to which the vessel belongs, but the trial and penalty belong to the country of the vessel. 1 (6) Special privileges granted by one state to another, or secured by custom, become servitudes, as in ii!,l!!^r,^ficl';"^n. the case of the Canadian fisheries, and must leges in nsning, ' as in the case depend upon the interpretation of the treaties of the Canadian , ^j^-^j^ ^^ ^^^^ granted. XlSI16ri6S •/ cj By the Treaty of 1783 the United States has the right of fishing on certain parts of the coast of the Brit- ish Dominion in North America. Great Britain claimed that these rights were annulled by the Treaty of Ghent, 1814, which put an end to the War of 1812 as that treaty was silent upon the subject. The United States declared, " they were not annulled by the war as they were enjoyed by the colonists before the separation from England in 1783, and so existed perpetually independent of treaty." This claim was adjusted by the Treaty of 1818, which gave to the United States permission to take fish on certain parts of the coast of Newfoundland and Labrador, to dry and cure fish in certain inlets, and to enter other inlets for shelter, repairs, and supplies. Disputes arising under this treaty were settled by the Treaty of 1854, which gave to Canadian fishermen certain rights of fishing along the eastern coast of the United States north of the thirty-sixth parallel of latitude. The United States took action to terminate this treaty in accord with its terms in 1866. The conditions of the Treaty of 1818 revived. The Treaty of Washington, 1871, practically reestablishes ^ Lawrence, pp. 138, 182. 124 INTERNATIONAL LAW the provisions of the Treaty of 1854, specifying that the difference in value between the rights granted by each state to the other should be determined by a commission. This commission awarded $5,500,000 to Great Britain in 1877. ^ In accord with the provisions of the Treaty of 1871, it was terminated by the United States in 1886, the provisions of the Treaty of 1818 again coming in force. A law of March 3, 1897,^ provides that the President may in certain contingencies deny vessels of the British Dominions of North America entry into the waters of the United States, and may also prohibit the importation of fish and other goods. 3 These fisheries continued to be the subject of international negotiations, and modi vivendi were from time to time agreed upon between the United States and Great Britain, till at length under the provisions of the Arbitration Treaty of April 4, 1908, between the two states, the dispute was referred to the Hague tribunal for adjudication in accordance with a special agreement of January 27, 1909.'* (c) Another question which has given rise to much dis- cussion is that of the seal-fishing in Bering Sea. In 1821 Russia claimed that the Pacific north The disputed c i • i 7 mi xt • i question of of latitude 51° was mare clausum. The United seal-fishing in gtates and Great Britain denied this claim. By conventions, 1824 and 1825, Russia conceded to these nations rights of navigation, fishing, etc. After "the United States in 1867 acquired Russian America, seal-fishing assumed importance. As the Canadian fishermen were not restrained by the laws binding the United States fishermen, it was feared that the seal would become extinct. In 1886 three Canadian schooners were by decree of the district court of Sitka confiscated for the violation of the laws of the United » See Cushing's " Treaty of Washington." ^ 24 U. S. Sts. at Large, 475. « 1 Moore, 767-874. • 3 A. J. I. L. Doc, 168. JURISDICTION 125 States in regard to seal-fishing, the judge charging the jury that the territorial waters of Alaska embraced the area bounded by the limits named in the treaty of cession to the United States of 1867 as those "within which the territories and dominion conveyed are contained." ^ This act with others of similar character led to a formal protest by Great Britain. The questions in dispute were referred to a court of arbi- tration which decided against the claims of the United States, denying that the sea referred to as the Bering Sea was mare clausum, and denying that the United States acquired juris- diction by prescriptive right from Russia in 1867. It was also decided that the United States had no right of property in the seals in the open sea, and that the destruction of these animals was contrary to the laws of nature. The United States and Great Britain, however, entered into an agreement in regard to the protection and taking of the seals by their subjects. Other nations were also to be asked to become parties to the agreement. ^ It may be regarded as finally established that fishing in the open sea is free to all, though of course states may by conventions establish regulations which shall be binding upon their subjects. 56. Jurisdiction over Vessels At the present time every vessel must be under the juris- diction of some state. (a) Vessels are divided into two general classes. (1) Public vessels, which include ships of " *f ^° , war, government vessels engaged in public private vessels. \ ^ . . service, and vessels employed in the service of the state and in command of government officers. 1 Treaties of U. S., 940. 2 Proceedings Fur Seal Arbitration, 1893; also 27 U. S. Sts. at Large, 947. 126 INTERNATIONAL LAW (2) Private vessels, owned by individuals and under regulations varying in different states. (6) The nationality of a public vessel is determined by its flag. In an extreme case the word of the commander is held to be sufficient proof. Nationality of a . / i j^i n - vessel deter- An case 01 a private vessel the nag is a corn- mined by its j^Qn evidence, but in case of doubt the vessel flag or papers. . i ^ 4.x. -4.' -x must show to proper authorities its papers which certify its nationality. (c) The general exercise of jurisdiction over vessels pre- sents four different aspects as follows: (1) Upon the high seas and within its General . .,.. exercise oivu Waters the jurisdiction of a state over of jurisdiction j^g public and private vessels is exclusive over vessels. „ „ tor all cases. (2) Over public vessels in foreign ivaters, the jurisdic- tion of the state to which a public vessel belongs is exclusive for all matters of internal economy. The ves- sels are subject to port regulations in matters of anchor- age, public safety, etc. As Dana says in his note to Wheaton: "It may be considered as established law, now, that the public vessels of a foreign state coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits." i In general practice the waters of all states are open to the vessels of war of all other states with which they are at peace. This is a matter of courtesy and not of right, and is in fact sometimes denied, as by the provision of the Treaty of Berlin, 1878: "The port of Antivari and all the waters of Montenegro shall remain closed to the ships of war of all nations." ^ Various regulations may require, with- out offense, notice of arrival, probable duration of stay, rank of commander, etc. > Note 63, § 105. » IV Hertslet, 2783, JURISDICTION 127 The boats, rafts, etc., attached to a vessel of war are re- garded as a part of the ship while engaged in the public service. While there is some difference of opinion as to the immu- nities of the persons belonging to a ship of war in a foreign harbor, a generally admitted rule seems to be immmiities ^^^^ while the persons of a ship of war are en- gaged in any public service that is not prohib- ited by the local authorities, such persons are exempt from local jurisdiction. The ship's crew would not be arrested and detained by local authorities for minor breaches of local regulations, though they might be sent on board their vessel with statement of reasons for such action. If the action of the crew constitutes a violation of the law of the country to which they belong, the commander of the ship may punish them, and report his action to the local authorities. In case of crimes of serious nature the commander may turn the offenders over to the local authorities, but must assure them a fair trial. The commander of a vessel is, of course, always responsible to his home government, and his action may become the subject of diplomatic negotiations. The question of right of asylum on board a ship of war has been much discussed. First, most civilized states now The right of afford asylum on board their ships of war to asylum on board those who, in the less civilized regions, flee from a ship of war. gjavery.i Second, in cases of revolution ships of war sometimes afford refuge to members of the defeated party, though the ship of war may not be used as a safe point from which further hostilities may be undertaken. Third, a commander may afford asylum to political refugees under circumstances which he thinks advisable. Fourth, in cases where asylum is granted to offenders whether political, or (in case of treaty right) criminal, if the request of the local * Art. 28, Gen. Act Brussels Conference, July 2, 1890, 128 INTERNATIONAL LAW authorities for the release of the criminal is refused by the commander of the ship, there is no recourse except to the diplomatic channels through extradition. The immunities granted to vessels of war are also gen- erally conceded to other vessels strictly upon public service, Immunities ^'S- Carrying an ambassador to his post. The of vessels in largest possible exemption is given to a vessel pu ic service. (.Q^veying the sovereign of a state. Vessels transporting military forces in command of regularly com- missioned government officers are usually granted immunities accorded to men-of-war. (3) Over private vessels in foreign waters the amount YsiTying ^^ jurisdiction claimed by different states jurisdiction Varies. vesse?"^^*^ '^^^ principle which is meeting with growing in foreign favor, as shown by practice and by treaty waters. stipulation, was stated by Chief Justice Waite in 1886 as follows : " Disorders which disturb only the peace of the ship, or those on board, are to be dealt with exclusively by the sovereignty of the home of the ship; but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction." ^ The position of France is, briefly, to assume no jurisdic- tion over foreign merchantmen within her ports save in cases where the act affects some person other than those belonging to the ship, where the local authorities are expressly called upon to interfere, or, when the order of the port is disturbed. ^ The British Territorial Waters Jurisdiction Act of August 28, 1878, gives jurisdiction to the authorities over all acts committed within the marine league, even though the ships are not anchored but merely passing through territorial ' Wildenhus's Case, 120 U. S. 1, 18; Scott, 225. ' Bonfils, "De la competence des tcibunaux franQais," § 326.. JURISDICTION 129 waters.^ This is an extreme position, and not supported by the best authorities, even in Great Britain. The position of France, as stated above, is open to little objection either in practice or theory, and is more and more becoming a form of treaty agreement, and may be consid- ered generally approved. Where these principles are adopted the jurisdiction of breaches of order within the ship may be referred to the consul who has jurisdiction, and if necessary he may call upon the local officers to assist him in enforcing his authority. (4) In recent years special exemption from jurisdic- tion has been accorded to certain semi-public vessels engaged particularly in the postal and emption of Scientific service. Vessels in the postal semi-public service have by treaties been accorded special freedom from customs and port regulations; and by the Convention between Great Britain and France, August 30, 1890 (Art. 9), it is agreed that in time of war such vessels shall be free from moles- tation till one of the states shall give formal notice that communication is at an end. 57. Aerial Jurisdiction With the development of wireless telegraphy and with the use of the atmosphere as a highway for airships, balloons, etc., there have arisen questions in regard to aerial jurisdic- tion. It is generally recognized that the state possessing territorial, maritime and fluvial jurisdiction has jurisdiction in the atmosphere above. Already states have begim to regulate the use of the wireless telegraph by the Convention of Berlin of November 3, 1906. In a preliminary statement, the Institute of International Law in 1906, declared that ''The air is free. States have over it, in time of peace and in time of war, only » Statutes, 41 and 42, Vict., p. 579. 130 INTERNATIONAL LAW the rights necessary for preservation." Each state must judge for itself what the extent of these rights may be as is the case within fairly definite limits with reference to mari- time jurisdiction; e.g. photographing of fortifications might be prohibited from ships upon the water or from ships in the air. The extent to which a state may exercise its jurisdiction will be determined in large measure by the limits of its effec- tive control of the atmosphere. 58. Jurisdiction over Persons — Nationality Under the discussion of jurisdiction of the state over persons comes the question of nationality. Nationality involves the reciprocal relations of allegiance and protection on the part of the person and state. It corresponds to citi- zenship in the broad sense of that term. In general a state may exercise jurisdiction over its own subjects or citizens as it will, and the relations of a state to its citizens are matters of municipal law only. Persons who owe allegiance to a state and are entitled to its protection are in some recent treaties called nationals of that state. A state exercises jurisdiction over all persons within its limits except certain officers of other states by exterritoriality entitled to exemption from local jurisdiction. In some of the Eastern states citizens of Western states are by treaty exempt from certain local laws. This last exemption may properly be said to be by local law, as a treaty be- comes a part of the state law for the subjects upon which it touches. The jurisdiction also varies with the status of the person as regards his relations to other states. The conflict of laws in regard to nationality forms an important part of 'private international law. JURISDICTION 131 59. Jurisdiction over Natural-born Subjects Children born within a state of which the parents are citizens are natural-born subjects of that state. Such per- sons are fully under the local jurisdiction. Foundlings, because of the uncertainty of parentage, are considered subjects of the state in which they are found. Illegitimate children take the nationality of the mother, provided they are born in the state of which the mother is subject. The great bulk of the population of all states, except those most recently founded, is natural-born, and therefore fully under local jurisdiction. 60. Jurisdiction over Foreign-bom Subjects It is the general principle that each state determines citi- zenship by its own laws. The status of persons born abroad may become very uncertain by virtue of the conflict of laws of the state of which one or both the parents are citizens and the state in which the child is born. These laws in regard to children born to parents while sojourning in foreign countries may be classified as follows: — (a) The child born in the foreign country is a subject of the state of which his parents are citizens. That the child inherits the nationality of his father is a com- Theruieof ^^^^ maxim known as jus sanguinis. The ]us sanguinis. "" United States law says: "All children hereto- fore 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." 1 The jus sanguinis is followed by Austria, ^ Ger- » TT. S. Rev. Sts., § 1993; 1 Gould and Tucker, 478; 2 ibid., 178, 203. 2 Civil Code, Art. 28. 132 INTERNATIONAL LAW many/ Hungary,2 Sweden,^ Switzerland/ and by some of the smaller European states. (6) Certain states follow the rule of jus soli, maintaining that the place of birth determines the nationality. Great Britain, by Article 4 of the Act of May 12, 1870, jus soli. adopts this principle. By the Fourteenth Amendment of the Constitution of the United States, "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." The laws of the United States have given rise to many questions.^ Portugal and most of the South American states follow the jus soli. (c) Other states follow sometimes the jus sanguinis, some- times jus soli, and sometimes modifications of these laws. The laws of Belgium and Spain regard the child inTaws!"^ of an alien as an alien, though on attaining majority the child may choose the citizenship of the country of his birth. The French laws of June 26-28, 1889, and July 22, 1893, consider as subjects the children born abroad to French citizens, also the children of foreigners born in France, unless these children within one year after attaining majority elect the nationality of their parents. Most states allow the descendants born to foreign- ers sojourning within their limits to elect their allegiance on attaining majority. Switzerland, however, strongly main- tains the jus sanguinis, without according any choice to the descendants born to foreigners within her limits, or to her own subjects born abroad except by formal renunciation of citizenship. Thus the child of a citizen of Switzerland born in France would be by French law a citizen of France, and by Swiss law a citizen of Switzerland. 1 Law of June 1, 1870. ' Dec. 24, 1879. 3 Feb. 27, 1858. * July 3, 1876. « 3 Moore, § 425. JURISDICTION 133 By the law of Germany, a citizen of Germany sojourning more than ten years abroad without registration at his con- sulate loses his German citizenship, without necessarily acquiring the citizenship of the country of his sojourn, thereby becoming heimatlos, or a "man without a country." At the present time the laws in regard to descendants born to parents sojourning in a foreign state show the widest diversity and give rise to unfortunate complications.^ 61. Jurisdiction by Virtue of Acquired Nationality The jurisdiction of a state extends to those who volun- tarily acquire its citizenship. 2 (a) A woman in most states by marriage acquires the nationality of her husband. In some of the South American states the husband acquires the citizenship of his By marriage. ^^^^ -j^^ ^j^^ j^^ ^^ Belgium, AugUSt 6, 1881, and by the law of France, June 26, 1889, it was made easier for foreigners who had married women natives of those states to acquire Belgian or French nationality respectively. The United States law holds that a woman marrying a citizen of the United States acquires his nationality. An American woman on marrying a foreigner takes his nationality, but on termination of marital relations, she may regain American nationality by registering within one year before a United States consul or by residence within the United States.^ (6) A state may acquire jurisdiction over persons by nat- uralization, which is an act of sovereignty by which a for- eigner is admitted to citizenship in another state. The method of naturalization is in accord with local law and varies greatly in different states.* The law of the United States »3 Pradier-Fod^r4, 1648-1653; Van Dyne, "Citizenship of the United States." ^ Van Dyne, " Law of Naturalization of the United States." 334 Sts. at Large, 590; 1 Gould and Tucker, 479; 2 ibid., 178. * 3 Pradier-Fod6r6, 1656 ff.; U. S. Sts. 1905-6, Ft. I, 596, Act June 29, 1906; 1 A. J. I. L. Doc, p. 31. 134 INTERNATIONAL LAW prescribes that Congress has power " to establish an uniform rule of naturalization." ^ The foreigner desiring naturaliza- tion in the United States must declare on oath By natural!- before a court '' two years, at least, prior to his zation. _ J J J I admission, and after he has reached the age of eighteen years," his intent to become a citizen. After five years of residence and within seven years of the first declara- tion, he may obtain citizenship by taking an oath of alle- giance to the United States and of renunciation of his former country.2 (c) A state may acquire jurisdiction over persons by annexation of the territory upon which they reside. The territory may be acquired by cession, exchange, o/territOTT*°° purchase, conquest, etc. The conditions of the transfer of allegiance from the state formerly possessing the territory is usually fixed by the treaty. This transfer is known as collective naturalization. Ordinarily a right to choose the allegiance to either state is left to the inhabitants of an annexed territory. Removal from the new jurisdiction is usually required if the inhabitant does not choose to change his allegiance. If the inhabitant does not take any action, it is held that he thereby tacitly transfers his allegiance unless there are special treaty pro- visions.^ {d) The effect of naturalization, whatever the method, is to make the person a citizen of the state into which he is admitted, and over him that state has juris- naturaUzation ^i^tion in all placcs outside the jurisdiction of the state whose allegiance he has forsworn. There may be conflict in the laws determining the relations to his native state of a person who has renounced his alle- giance to one state by naturalization in another state. The ' Constitution of U. S., Art. I, § 8. ^ 34 Sts. at Large, 590; 1 Gould and Tucker, 513; 2 ibid., 202. 3 2 Pradier-Fod^r^, 863; 3 ibid., 1671 ff. JURISDICTION 135 general law is, that he becomes entitled to all the privileges of a subject of the state of his new allegiance, except that when he is within his first state he becomes liable for the performance of any obligation which he may have incurred prior to his naturalization. ^ A state may determine what conditions must be fulfilled in order to constitute a valid severance of allegiance. Laws are diverse upon this subject. Many states have maintained, and some still maintain, that allegiance is inalienable.^ Eng- land formally maintained this principle till 1870, and her attempts to enforce the principle brought on the War of 1812 with the United States. In certain countries, as in the United States and Switzer- land, minor children are held to follow the allegiance of their father in case of naturalization. The French law claims that the minor child's nationality is that of his birthplace. The subject has been determined in some instances by treaty stipulation, yet must be considered, like many questions of naturalization, as unsettled. Many states distinguish in law and more in practice between that naturalization which carries with it protection of the state and allegiance of the subject {naturalisation ordinaire) and that naturalization which carries full political privileges (grande naturalisation). (e) The fact that a person has taken the preliminary steps toward acquiring the nationality of a foreign state, by mak- ing a declaration of his intention or otherwise, ncompete ^ -^ ^j^^ State to which the person has naturalization, ^ o i^ assumed an inchoate allegiance the right of pro- tection of the declarant against third states, ^ though not necessarily against the native state of the declarant."* Of the privileges to be accorded to one who has declared his intention ' Treaties of U. S., 1262; 3 Moore, § 401. * Hall, p. 231. ' 3 Moore, § 387. '3 Moore, § 491. 136 INTERNATIONAL LAW to become a citizen of the United States, Secretary Marcy said, ''The declaration, indeed, is prima facie evidence that the person who made it was, at its date, domiciled in the United States, and entitled thereby, though not to all, to certain rights of a citizen, and to much more consideration when abroad than is due to one who has never been in our country; but the declarant, not being a citizen under our laws, even while domiciled here, cannot enjoy all the rights of citizenship either here or abroad"; ^ and Mr. Marcy also says of the papers proving domicile, "And to this simple certificate . . . the European authorities are at liberty to pay such respect as they think proper." 2 In 1853 a case arose in which the United States affirmed: "It is a maxim of international law that domicile confers national character; . . . international law looks Koszta " "^ ^^^^y ^^ ^^^ national character in determining what country has the right to protect. If a person goes from this country abroad, with the nationality of the United States, this law enjoins upon other nations to respect him, in regard to protection, as an American citizen." ^ This statement was made in support of the position assumed by the United States in the case of one Martin Koszta. Koszta, a Hungarian refugee of 1848-1849, went to Turkey, was imprisoned, later was released on condition of leaving the country, went to the United States, declared his intention to become a citizen, and in 1853 returned to Turkey. "He went into business at Smyrna, obtained there a traveling pass certifying that he was under protection of the United States, was seized, thrown into the sea by persons employed by the Austrian consulate, and was picked up by an Austrian man- of-war. Hussar. The consul of the United States remon- » 3 Moore, § 502, Marcy to Seibels, May 27, 1854. 2 3 Moore, § 502, Marcy to Fay, May 27, 1854. = 2 Moore, §§ 197, 200, 287; 3 Moore, § 490; 5 Moore, § 870, Marcy to Hiiselmann, Sept. 26, 1853. JURISDICTION 137 strated, but the captain of the Hussar held Koszta. The charg6 d'affaires requested the aid of a United States man- of-war, whose captain demanded Koszta's release. To avoid conflict in the port the mediation of the French consul was accepted, and Koszta was intrusted, pending settlement of claims, to the French consul. Finally Koszta was allowed to return to the United States, though Austria maintained her right to proceed against him if he returned to Turkey. The United States in this case undoubtedly took an extreme position in its claim of jurisdiction. By an act of March 3, 1863, the United States declared that those who had taken the preliminary oath of intention , to become citizens were liable to military ser- Citizenship and . , » . . Uabiiity to vice. Upon protest by foreign nations against military ^^js ^^^ gf Congress, the President, by proclama- tion, announced that, as it had been claimed that "such persons, under treaties or the law of nations, retain a right to renounce that purpose, and to forego the privileges of citizenship and residence within the United States, under the obligations imposed by the aforesaid act of Congress," ^ to avoid all misapprehension, the plea of alienage would be accepted for sixty-five days, during which time such persons as had only declared their intention to become citi- zens might depart. The position in the Koszta case, where the claim to the protection of the United States was made when the inchoate citizen was in trouble, and the claim of the inchoate citizens to renounce their allegiance when the state was in difficulties, show some of the problems to which the diverse laws and practices in regard to naturalization have given rise. The municipal laws of some of the local states of the United States admit to all political privileges of the local state those who have taken the first steps toward naturaliza- ' 6 Messages and Papers of Presidents, 168. 138 INTERNATIONAL LAW tion. It is generally conceded that such as have exercised the privileges of full citizens can properly be held to the obli- Mxinicipai laws g^tions of full citizens, as was declared in the and naturaii- above proclamation. zation. rpj^g inconsistencies in regard to jurisdiction over those naturalized or incompletely naturalized are grad- ually yielding to treaty provisions which distinctly determine the position of such persons. 62. Jurisdiction over Aliens Citizens of one state, when sojourning in a foreign state, have a dual relationship by which they may claim certain privileges, both from their native state and from the foreign state. (a) The native state naturally has jurisdiction of a qualified sort over its subjects even when they are in a foreign state. (1) The right to make emiqration laws Qualified juris- , , ^^ ^ . ^. , • ,. diction over inay lead to restrictions binding in a subjects foreign state. A state may banish its subjects. No other state is obliged to re- ceive them, however. (2) A state may recall its citizens for special reasons, as in the case of Greece in 1897, when Greek citizens were recalled for military service. (3) There is much difference of opinion upon the ques- tion of penal jurisdiction of the native state over its sub- jects who have committed crimes in a foreign state. In general American and English authorities agree that penal law is territorial. Some of the continental authori- ties take the view that a citizen on his return may be punished for crimes committed in a foreign state. The English law takes this position in certain crimes, as JURISDICTION 139 treason, bigamy, and premeditated murder. Usually a crime committed upon a vessel in a foreign harbor is held as within the jurisdiction of the state of the vessel's registry. (4) A state may interfere to protect its subjects in a foreign state, thus extending its authority in their behalf. This has been frequently done to protect Western so- journers in Eastern states, e.g. the demands of Germany, in 1898, for concessions from China on account of injuries to missionaries. These demands, accompanied by a naval demonstration, resulted in the cession of Kiauchau. (6) The jm'isdiction of a state over aliens within its terri- tory is very extensive. (1) The absolute right of exclusion of all Jurisdiction / over aliens foreigners w^ould hardly be maintained by within any civilized state, though it could be de- duced from the doctrine of sovereignty. Whether justly or not, Japan and China have been com- pelled by force to cede certain rights to states demanding admission for their citizens. (2) The right of expulsion is, however, generally main- tained. This right should, however, be exercised most carefully, as the fact of admission carries with it some obligation on the part of the admitting state. (3) The right to conditional admission is generally allowed, as seen in laws in regard to immigration, (4) The foreign state may impose such restrictions upon settlement as it sees fit. (5) A foreign state may levy such taxes upon the person and goods of aliens as are in accord with state law. 140 INTERNATIONAL LAW (6) Aliens are subject to the local sanitary and 'police jurisdiction. (7) The foreign state has fcnal jurisdiction over aliens for crimes committed within territorial limits, and many- states maintain, also, for such crimes as plotting against the state, counterfeiting state money, or crimes directly imperiling the state's well-being even when committed outside of state limits. (8) The state may require aliens to render service such as is necessary to maintain public order, even military- service, to ward off immediate and sudden danger, e.g. as an attack by savages, a mob, etc., but (9) A state cannot compel aliens to enter its military service for the securing of political ends, or for the general ends of war. (10) In nearly all states freedom of commerce is now conceded, the state giving to native and foreigner similar privileges. China still restricts trade to certain free ports. (11) The holding and bequeathing of property of what- ever sort is subject to local law. (12) Freedom of speech and of worship are also subject to local law. All these laws are subject to the exemptions in favor of sovereigns, diplomatic agents, etc. Passport ^s Ordinarily the identity of an alien is fli 1x16 cvUS lor ^ - establishing established by a passport. This may also the identity ggcure for him a measure of care in a for- of an alien. ^ . . , i /• c x eign state. Opposite is the form ot passport. JURISDICTION 141 Good only for two years from date. UNITED STATES OF AMERICA Depaktment of State To all to whom these presents shall come, Greeting : I, the undersigned, Secretary of State of the United States of America, hereby request all whom it may DESCRIPTION concern to permit Age Years Stature. . . .Feet,. .Inches. ., Eng. Forehead Eyes Nose Mouth Chin Hair Complexion Face (seal) (Signature of the Bearer) a Citizen of the United States, safely and freely to pass, and in case of need to give all lawful Aid and Protection. Given under my hand and the Seal of the Department of State, at the City of Washington, the day of in the year 19. ., and of the Independence of the United States the one hun- dred and No. 63. Exemptions from Jurisdiction — General As a general principle, the sovereignty of a state within its boundaries is complete and exclusive. For various reasons there has grown up the custom of granting immunity from local jurisdiction to certain persons generally representing the public authority of a friendly state. This immunity may extend to those persons and things under their control. This immunity has been called exterritoriality. The per- sons and things thus exempt from local jurisdiction are regarded as carrying with them the territorial status of their native state, or as being for purposes of jurisdiction within 142 INTERNATIONAL LAW their own state territory, and beyond that of the state in which they are geographically. Wherever they may go they carry with them the territory and jurisdiction Exterritoriality. ^^ ^^^^.^ ^^^^ ^^^^^^ Doubtless this doctrine of exterritoriality in the extreme form may be carried too far, as many late writers contend, and some have desired another term, as immunity from jurisdiction, as more exact and cor- rect. ^ Such a term would have the merit of directing atten- tion to the nature of the relation which the persons concerned sustained to the state. Hall sums up the case by saying, ''If exterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is un- settled or contested." 2 Exterritoriality should be viewed as based on the immunities conceded to public persons, rather than as the source of these immunities. 64. Exemption of Sovereigns Sovereigns sojourning in their official capacity in foreign countries are exempt from local jurisdiction. This principle is based, not merely upon courtesy, but also upon convenience and necessity. The sovereign represents the state, and there- fore cannot be subjected to the jurisdiction of another state without waiving the sovereignty, and in so far depriving the state of one of its essential qualities. Nor can the visiting sovereign exercise any authority which would infringe the sovereign powers of the state in which he is. The visit- ing sovereign can only claim immunity for such action as is in accord with the necessities of his convenient sojourn. He, ' Bonfils, No. 337. ' Hall, p. 167. JURISDICTION 143 his retinue, and effects, are exempt from civil and criminal jurisdiction. He is free from taxes, duties, police and ad- ministrative regulations. In the case of Vavasseur v. Krupp, 1878, it was decided that infringement of the patent law did not constitute a ground for suit against a sovereign. In this case Vavasseur brought action against Krupp, for infringe- ment of patent on shells in custody of the agents of the Mikado of Japan. The action resulted in an injunction pre- venting removal of the shells to the Mikado's ships, but on application of the Mikado to remove the shells as his prop- erty, the court held that, even if the property in question infringed a patent, the Mikado could not be sued and his property could not be held. ^ The principle that the sovereign is free from suit has frequently been decided by the courts of various countries. A sovereign sojourning in a foreign state cannot, however, set up his courts and execute judgment; such functions belong to his territorial courts. Criminals in his retinue must be sent home for trial. While the sover- eign's hotel or place of residence while abroad is exempt from local jurisdiction, the sovereign is not justified in allowing the hotel to become an asylum for others than members of his retinue. On demand he must give up such refugees. In case the sovereign does not observe this principle or commits acts liable to endanger the peace of the foreign state, the authorities may invite him to depart, or if necessary expel him by force. The sovereign may, in his private capacity, hold property and become party to a suit like any citizen. 2 A sovereign may travel incognito, and is then entitled only to the recog- nition accorded to the rank which he assumes. He can, how- ever, assert his sovereign capacity and obtain its immunities at any time should he deem it proper. ' Scott, "Cases," 182 ff., for this and other cases. 2 Rothschild v. Queen of Portugal, Scott, "Cases," 178; Bynkershoek, " De Foro Legatorum, " Ch. XVI . 144 INTERNATIONAL LAW 65- Exemptions of State Officers (a) Diplomatic agents, or those commissioned to transact the poHtical affairs of the state abroad, are conceded a wide Wide immunity immunity from local jurisdiction. As repre- aiiowed dipio- senting the political will of their state, diplo- matic agents, jj^^tic agents have immunities similar to those conceded to the sovereign, though by virtue of the fact that the sending of diplomatic agents has long been a common practice, their immunities are quite well defined. These immunities will be considered more in detail under the sub- ject of International Intercourse, but in general a diplomatic agent is exempt from (1) criminal jurisdiction, (2) civil juris- diction, (3) local police and administrative regulations, (4) taxes and duties, (5) jury and witness duty, (6) regulations in regard to religious and social action, (7) all exercise of authority by the local state within his official residence or hotel, (8) and is exempt from the exercise of similar authority over his household, official and unofficial. ^ (6) The exemptions granted to consuls vary in different Exemptions states and under different circumstances. In granted to general consuls are entitled to such exemptions consuls. ^g ^jjj gnable them to perform their func- tions effectively. 2 (c) Any foreign army within the territorial limits of a given state, by permission of the sovereign of said "^tate, is free from the sovereign's jurisdiction. Chief tJtZtf^^Zte Justice Marshall, in 1812, gave as his opinion: by permission, " In such case, without any express declaration free from waiving iurisdiction over the army to which jiu-isdiction. ° •' 1111 this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. . . . The grant of a ' See Sec. 80 (b) for full discussion. ^ See Sec. 82 (/) for full discussion. JURISDICTION 145 free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punish- ments, which the government of his army may require." ^ Permission, either general or special, must be obtained in order that an army may enter a foreign state in time of peace. The army must cause the least possible incon- venience to the state during its sojourn. The military attache of an embassy is regarded as a mem- ber of the official household of the diplomatic agent. (d) As a vessel of war can without inconvenience to a foreign state pass through or remain within its maritime jurisdiction, it is customary to accord to the A vessel of war i j • -. e i i • • v in a foreign vessel and crew immunity from local jurisdic- state free from tion and freedom of passage unless withheld \°'^^^,. ^. for special reason. "Their immunity from local jurisdiction. .... jurisdiction has come to be more absolute than that of the official residence of ambassadors, and probably for the reason that they have the efficient means of resistance which an ambassador has not." 2 In general the exemption from local jurisdiction which a vessel of war enjoys in a foreign state extends: (1) to acts beginning and ending on board the vessel ; ^ (2) to all boats, etc., of the vessel of war in charge of the crew of the vessel and upon its service; (3) to freedom from customs and all such regulations as are not necessary for the safety of the port. It was held in case of the United States frigate Consti- tution, in 1879, that she was not liable to salvage charges. ^ A vessel of war is liable to quarantine, anchorage, and to other rules which imply no derogation of sovereignty; (4) to all persons on board the vessel whether members of the crew or others. This exemption should not be taken as warrant- 1 Exchange v. M'Faddon, 7 Cr., 116, 139; Scott, 208. * "International Law," Naval War Col., 2d ed., p. 23. » HaU, p. 195. * Scott, "Cases," p. 218. 146 INTERiNATIONAL LAW ing a general exercise of the right of asylum on board vessels of war. Asylum may be granted as an act of hospitality to a political refugee, who should not use the vessel as a base for political intrigue. Asylum to common criminals cannot be granted without offense to the foreign state. Such crim- inals are usually surrendered on request of the local author- ities. A commander may not pursue deserters on shore or exercise external authority. Hall sums up the general principle as follows, "The im- munities of a vessel of war belong to her as a complete instru- ment, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes ; they consequently are not exempted from the local jurisdic- tion." 1 In case of abuse of exemptions the state in whose waters the foreign ship of war is, can request it to depart; and if its request is not complied with, can use force, though the cus- tomary method is to resort to diplomatic channels. 66. Special Exemptions (a) In certain Oriental states, the subjects of Western states are by treaty exempt from local jurisdiction. The extent of the exemption in each case depends orientaTstates ^pou the treaty provisions. The basis of this special exemp- exemption is found in the " incompatibility of tions regulated j^^|^j^.g ^^ thought on all legal and moral ques- by treaty '^ . .,.,.. tions," 2 and the consequent impossibility of obtaining what to the Western states seems just treatment on the part of Oriental officials. Consular courts were established to meet the needs of foreigners within the juris- » Hall, p. 198. ^ 2 Moore, § 262. JURISDICTION 147 diction of these Eastern states. i The consuls in these states were invested with special judicial powers, though not con- sidered by the laws of the United States judicial officers. Each state determines the competence of its consular courts in foreign states. The following rules are general, though not absolute, propositions in regard to the treatment of cases involving natives of Eastern countries and foreigners. (1) Penal Matters. If a native commits a crime against a foreigner, he is generally tried in the local court. If a foreigner commits a crime against a native, he is generally tried in the consular court of his state. If a foreigner commits a crime against a foreigner of another nationality, he is generally tried in the consular court of the injured foreigner. If both parties to the crime are of the same nationality, the offenders are tried in the court of their ovm state. If the crime is a grave one, such as murder, sentence cannot be passed without the sanction of the home government, and in some cases the offender is sent home for trial. (2) Civil Matters. In cases invohing a foreigner and a native, the trial is generally by agents of the two countries. In cases involving subjects of the same state, their consular court has jurisdiction. In cases involving foreigners of different nationalities the consular court of the defendant has jurisdiction. In cases involving large interests, there is an appeal from the consular to the higher courts of the state. ' By treaties with Japan, going into effect 1899, such courts were abol- ished in that empire. 29 U. S. Sts. at Large, 848. By an Act of Con- gress of June 30, 1906, the United States estabhshed "the United States Court for China," which takes over for the more important cases the juris- diction formerly exercised by consuls and ministers. 148 INTERNATIONAL LAW In the East registration of the head of the family at the consulate is necessary to obtain consular protection. Local statutes provide for the execution of treaty stipu- lations as to consular jurisdiction. ^ (6) In Egypt mixed courts were instituted in 1875. This system, arranged by convention, has received the assent of nearly all the European states and of the United Mixed courts o^ j. o !„ -p^^,,* btates.2 in Egypt. The majority of the judges in these courts are foreigners, and the courts have competence over cases against the Egyptian government, over civil and commercial matters between foreigners and natives, and between for- eigners of different nationalities. The consuls have jurisdic- tion in other matters. These courts have been the subject of much discussion and great difference of opinion. 67. Extradition Extradition is the act by which one state delivers a person accused of crime committed beyond its borders to another state for trial and punishment. Many of the Continental states maintain that extradition is a duty binding upon all civilized states, on the ground that the prevention of crime which would result from cer- tainty of punishment is an object to be sought by all for the general good. Grotius, Vattel, Kent, Fiore, and many other authorities maintain this position. Bluntschli, Foelix, Klii- ber, G. F. de Martens, Pufendorf, Phillimore, Wheaton and the majority of authorities make the basis of extradition the conventional agreement of treaties. ^ The large number of extradition treaties of the last half of the nineteenth century ' 1 U. S. Rev. Sts., §§ 4083-4130; 1 Gould and Tucker, 770-772; 2 ibid., 503. 2 Proclamation of March 27, 1876; 19 U. S. Sts. at Large, 662. '"The surrender of fugitives from justice is a matter of conventional arrangement between states, as no such obligation is imposed by the law of nations." In the Matter of Metzger, 5 How. 173. JURISDICTION 149 has made the practice general. Occasionally a state has, in the absence of treaties, voluntarily surrendered fugitives from justice as an act of courtesy. The extradition of Tweed by Spain in 1876 was an act of this kind.i Such cases are not common, however, ^ and it is safe to derive the principles from the general practice as seen in treaties. (a) Persons liable to extradition vary according to treaties. It is the general practice to surrender on demand of the state in which the crime is committed only those Persons liable ^^^ ^^^ subjects of the State making the de- to extradition. *■ ^ '^ ^ mand. This is the general rule of the Conti- nental states. As Great Britain and the United States maintain the principle of territorial penal jurisdiction, it is customary for these states to uphold the idea of extradition even of their own subjects.^ The practice is not uniform in the relations of these states to other states, as is shown in their treaties. The South American and Continental Euro- pean states hold that their own citizens are not liable to extra- dition. A large number of the modern writers are in favor of the extradition of subjects in the same manner as aliens, and it is evident that the drift of international practice, as shown by the treaties of the last quarter-century, is toward the refusal to grant protection to a subject who has sought refuge in his native state after committing a crime abroad. In case the accused whose extradition is demanded is a citizen of a third state, the practice is not uniform, though the best authorities seem to favor the granting of the extra- dition only after communication with and assent of the third state, on the ground that the state to which the subject has fled is responsible to the third state for its treatment of him. This practice has been followed in many European treaties. » 4 Moore, §§ 580-588. « ggott, "Cases," 274 ff.; 4 Moore, § 582. 3 1 Moore, "Extradition," 156. 150 INTERNATIONAL LAW Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. 1 During the last quarter of the nineteenth century few treaties have been made which do not make political criminals specifically non - extraditable. Political crimes accompanied by attacks upon the person of the sover- eign or of those holding political office or position are not, however, in the above category, but are usually extra- ditable, (6) Even when an accused person is extradited there are limitations as to the jurisdiction of the state to which he goes. The trial must be for the offense or offenses Limitations as i • i -n i to jurisdiction enumerated m the treaty, i^or example, a over a person treaty between two states enumerates among extradited. , t, i i • i i i x extraditable crimes murder, and does not enu- merate larceny. A fugitive from one of the countries is accused of both murder and larceny. The country surrendering the criminal would not permit the trial of the criminal for any other crime than murder, until the criminal should have had opportunity to return to the state from which he was sur- rendered. For many years Great Britain claimed that a per- son surrendered in accordance with an extradition treaty should be tried only for the specific offense for which he was surrendered. The United States desired to include other of- fenses provided the person had been once surrendered. This position of Great Britain was accepted by the treaty of July 12, 1889.2 (c) The conditions necessary for a claim for extradition are: (1) that the crime shall have been committed within the territorial or maritime jurisdiction of the state making 1 In Re Castioni, 1 L. R., Queen's Bench [1891], Div. 149; Scott, 285. 2 26 IJ. S. Sts. at Large, 1508; Scott, "Cases," 274 ff.; 4 Moore, § 596; 1 Moore, "Extradition," 196 ff.; 1 Gould and Tucker, 987. JURISDICTION 151 the demand, (2) that there be sufficient evidence of guilt to establish a case, and (3) that the application be from the Conditions proper authority and in the proper form.^ necessary for {d) The procedure in cases of extradition is extradition. based on definite principles. As it is an act of sovereignty, it must be performed by agents of the sovereign person, who for this purpose, although generally engaged in Procedure in Other functions, are executive officers. 2 The cases of general rule is that the demand for extradition extradition. ^j^^jj ^^ ^^^^ through the Ordinary diplomatic channels. In colonies and under special circumstances an of- ficer of first rank may be the medium of the demand. The person demanded may be placed under provisional arrest pending the full proceedings of extradition. ^ Reasonable evidence of the identity of the person and of the facts of the crime must be furnished by the state making the demand. In case a person is demanded by two states, his native state and a third state in which he has committed a crime, it is customary to grant the request of the state in which he has committed the crime. When a person is demanded on the ground of separate crimes committed in both states as above, if the crimes are equally grave, the request of his native state is granted. Sometimes, however, when the third state offers to surrender the fugitive to his native state after he has paid the penalty of his crime, the request of the third state is granted. When the crime committed in one state is more grave than that committed in another, the request of the state maintaining the graver charge is granted. 1 26 U. S. Sts. at Large, 1510; U. S. Rev. Sts., §§ 5270-5280; 1 Gould and Tucker, 979-989; 4 Moore, § 605. ^ In case of Chesapeake, 1863, the consul acted as agent. Wheat. D., § 428, note 207; 3 Pradier-Fod^re, 1876. 3 3 Pradier-Foder^, 1877. 152 INTERNATIONAL LAW When states other than the native state request the extra- dition of a fugitive, the state receiving the demand may take into consideration the gravity of the offense and the prob- ability that a given state will, after securing justice, make it possible for other states to prosecute their claims. In cases of equal gravity priority of demand usually determines the course of action. ^ If the person demanded is accused of a crime in the state of refuge, the demand for his extradition may be refused pending his trial in the state of refuge. Many other questions arise which complicate the actual procedure in cases of extradition, but these belong mainly to the realm of private international law. 68. Servitudes Servitudes in international law constitute a restriction upon the exercise of the territorial jurisdiction of a state in favor of one or more states. (a) International servitudes are: — (1) positive, implying that a state is servitudes, Under obligation to permit within its terri- positive and ^ory another state to exercise certain pow- ers, as by the Treaty of Berlin, 1878, Art. XXIX, "The administration of the maritime and sani- tary police, both at Antivari and along the coast of Montenegro, shall be carried out by Austria-Hungary by means of light coast-guard vessels"; ^ (2) negative, impljdng that a state is to refrain from certain acts, otherwise customary, as "Montenegro shall neither have ships of war nor flag of war." ^ Among the positive servitudes are: those obligations of a state to allow within its own jurisdiction the exercise of politi- ' "Annuaire de I'Tnstitut de droit international," 1881-1882, p. 128. 2 IV Hertslet, 2783. ^ /fej^. JURISDICTION 153 cal or administrative authority by another state, as in the execution of judicial or police regulations; those obligations to allow the exercise of military authority, as in military occupation of a portion of the territory or the passage of troops. Among the negative servitudes are: those obligations ( f a state to refrain from exercising within its own jurisdic- tion certain political or administrative authority which might be exercised, if the servitude did not exist, as in the exemption of the citizens or corporate persons of certain states from cer- tain acts of jurisdiction or taxation; those obligations to refrain from military acts, such as the limitation of the army or navy to a certain number, or the obligation not to fortify a certain place. (6) There are also servitudes which may be called gen- eral, because binding alike upon every state servitudes. ^^ favor of all others, such as the innocent use of territorial seas.^ * For the general question, see 2 Pradier-Foddrd, 834, 845. OUTLINE OF CHAPTER XII PROPERTY 69. PROPERTY IN GENERAL. 70. STATE PROPERTY IN INTERNATIONAL LAW. 154 CHAPTER XII PROPERTY 69. Property in General The term "property" has been used in varying senses by writers upon international law. By virtue of the fact that a state has jurisdiction over all its public property there has sometimes been confusion between the two terms, but juris- diction may, and does, extend to persons and things of which proprietorship cannot be affirmed by the state. In the sense commonly used in international law the prop- erty of a state is held to be all the lands and water within its limits. Within this territory the state has rights to the exclusion of other states, and upon the land area may exer- cise the right of eminent domain. The idea of property in this international sense is dis- tinct from that of private ownership, which is merely relative and depends upon the regulations of the state; in- deed, private property may be seized for the debts of the state. A state may hold absolute possession of such objects as are capable of appropriation, as lands, builcUngs, and other material resources for public purposes. In some cases the state owns the railroads, telegraphs, mines, etc. In time of war such property receives treatment somewhat different from that of private property, and in time of peace it may receive special recognition, e. g. houses of ambas- sadors. 155 156 INTERNATIONAL LAW 70. State Property in International Law Hall outlines this subject as follows: "A state may own property as a private individual within the jurisdiction of another state; it may possess the immediate as well as the ultimate property in movables, land, and buildings within its own territory; and it may hold property in its state capac- ity in places not belonging to its owti territory, whether within or outside the jurisdiction of other states." ^ Prop- erty of the first class falls under the local law of the state in which it is. Property of the second class may come within the scope of international law in time of war. Property of the third class may come within the scope of international law both in time of peace and of war. ' Hall, p. 161. OUTLINE OF CHAPTER XIII DIPLOMACY AND INTERNATIONAL RELATIONS IN TIMES OF PEACE 71. GENERAL DEVELOPMENT OF DIPLOMACY. 72. DIPLOMATIC AGENTS. (a) History. (1) Privileges of ambassadors. (2) Diplomacy as an art in Italy. (3) Permanent ambassadors after the fifteenth century. (4) The Peace of Westphalia, 1648, the begiiming of modern international relations. (5) Diplomatic friction, 1648-1815. (b) Rank of state agents. (1) Titles of diplomatic agents. (o) Diplomatic agents of the first class. (b) Envoys extraordinary, envoys ordinary, and minis- ters plenipotentiary. (c) Ministers resident. (d) Charges d'affaires. (2) Reciprocity between states in the grade of agents. 73. SUITE, OR PERSONNEL OF A MISSION. (a) OfiBcial suite consists of the functionaries. (b) Non-oflBcial suite includes the family and household servants of the agent. 74. WHO MAY SEND DIPLOMATIC AGENTS. 75. WHO MAY BE SENT AS DIPLOMATIC AGENTS. (a) Case of Mr. Keily. 76. CREDENTIALS, INSTRUCTIONS AND PASSPORT. 77. DIPLOMATIC CEREMONIAL. (a) Historical tendencies in ceremonial. (b) Ceremonial of reception of an agent. (c) Rules of precedence and places of honor. (d) Prerogatives appertaining to diplomats of the first rank. (e) Salutes to diplomatic representatives. 78. FUNCTIONS OF A DIPLOMATIC REPRESENTATIVE. ^^) To direct the internal business of the legation. (b) To conduct the negotiations with the state to which he is ac- credited. (c) To protect fellow-citizens, to issue and vis6 passports and cer- tificates, and to present and certify extradition papers. (d) To make reports to his home government. 157 79. TERMINATION OF MISSION. (a) Through the death of the diplomat. (b) In ordinary course of events. (c) Under strained relations. (d) Ceremonial of departure. 80. IMMUNITIES AND PRIVILEGES. (a) Inviolability of the person of the diplomatic agent. (1) Basis of the privilege. (2) Extent of the privilege. (3) Limits of immunity. (b) Exterritoriality and exemptions. (1) Exemption of agent from the criminal jurisdiction of the receiving state. (2) Exemption of agent from civil jurisdiction of the receiving ^ state. (3) Immvmities of family and suite of agent. (4) The diplomatic residence exempt from local jurisdiction. (5) Right of asylum in the house of the ambassador now generally denied. (6) Agent generally exempt from personal taxes. (7) Freedom of religious worship. 81. DIPLOMATIC PRACTICE OF THE UNITED STATES. (a) International relations the province of the Department of State. ', (b) Supreme Court has original jurisdiction over diplomatic agents. ^ (c) Diplomatic agents forbidden to receive presents. (d) Diplomatic agents may protect subjects of other friendly powers in case of revolution. (e) Diplomatic agents forbidden to participate in the political con- cerns of receiving coimtry. (f) Joint action with diplomatic agents of other powers at a foreign court deprecated. (g) Regulations regarding ofl&cial dress, (h) Compensation of diplomatic agents. 82. CONSULS. (a) History. (b) Rank of consuls a matter of domestic law. (c) Nomination and reception of consuls. (d) Great variety of functions of the consul. (1) Duties in connection with commercial interests. (2) Duties relating to maritime service. (3) Represents certain interests of his fellow-citizens (4) Furnishes information to his state. (e) Special powers in Eastern states. (f) Privileges and immunities vary in different states. (g) Termination of the consular office. 158 CHAPTER XIII DIPLOMACY AND INTERNATIONAL RELATIONS IN TIMES OF PEACE 71. General Development of Diplomacy Diplomacy may be broadly defined as the art and science of international negotiation. The conditions which make possible established relations among states are of compara- tively recent origin. In the days when stranger and enemy were not distinguished, and when "strange air made a man unfree," there could be no extended relations among states. In very early times, however, states had some relations with one another, and a few general principles were observed in carrying on such business as might be necessary. These growing relations have given rise to what is known as the right of legation. Sometimes a right of intercourse between states has been claimed on the ground that the citizens of one state cannot be excluded from the natural advantages of another state, on the ground that all men have an equal right to innocent use of the earth's resources, or on more abstract grounds of moral duty variously interpreted. As the actual practice of states never has recognized such a right, to contend for it would hardly be necessary. States put restrictions upon commerce, even to the exclusions of goods and persons. In some cases where the terms of the state enactment may not be prohibitive, the conditions of admission amount to practical prohibition. ^ » U. S. Chinese Exclusion Act, 1882, 1 Gould and Tucker, 502 et seq. ; 2 ibid., 193 et seq. 159 160 INTERNATIONAL LAW The influence of commerce in its many forms, the idea of unity of mankind in its various manifestations, the growth of neighborhood on the part of European states, and the necessity of respect for each other on the part of these states, made interstate relations imperative and convenient. While the right of intercourse might be questioned, the necessity and convenience of interstate relations admitted of no question. 72. Diplomatic Agents (a) In very early times special privileges were extended to heralds, ambassadors, or other bearers of the state will. History: Laws ^ and history record as a fact this practice PrivUeges of which had long been observed. The ambassador ambassa ors. ^^^ often a person who in his own state held some priestly office. In the days of the Roman dominance, the office of ambassador was commonly exercised by one holding a religious office, and while the unity represented by the church remained prominent, its officials were often am- bassadors. Both from necessity and from the sacred charac- ter of the person, the ambassador was usually regarded as inviolable. The person of the ambassador was respected long before there was any recognition of the rights and dig- nity of states as states. In order that there might be any such intercourse, it was necessary that the agents should not be placed in undue personal peril. ^ With the preeminence of the Italian city states in the Middle Ages there came the development of diplomacy as an art. The most distinguished men of the ip omacy as ^jj^^g y^Q^e called to this state service. Machia- an art in Italy. velli's name is inseparably linked to one school of diplomacy. Dante, Petrarch, Boccaccio, and others whose names have become famous, were sent on missions. ^ ' Digest, LVII, 17. ^ 3 Pradier-Fod6r6, 1233. ^ Nys, "Les Origines du Droit International," 297. DIPLOMACY AND INTERNATIONAL RELATIONS 161 During the thirteenth century, Venice outHned the policy which her ambassadors should follow, and there the system of foreign representation became well established. This sys- tem included the granting of a commission, instructions^ let- ter of credence, attaches, etc. Italy may, indeed, be called the home of the diplomatic system. For many years, in fact till comparatively recent times, ambassadors were looked upon with suspicion, as spies whom monarchs were more willing to give than to PprmjHiGiit ambassadors receive. Gradually, however, the practice of after the fif- sending and receiving ambassadors was seen to have much value. During the fifteenth century, which marks the beginning of the modern period in the history of diplomacy, the practice of sending permanent am- bassadors seems to have arisen. There may have been iso- lated cases of sending of permanent ambassadors before this, time, but from the fifteenth century the practice became more and more common, though the different countries did not observe any uniform regulations as to personnel, pro- cedure, or in other respects. From this time diplomacy became more of a career, and one going on a mission to a foreign country received careful preparation that he might outwit the representatives of the state to which he was sent. Sir Henry Wotton's oft-quoted definition of an ambassador, " An ambassador is an honest man, sent to lie abroad for the good of his country," ^ describes the attitude taken in many countries toward the office, when early in the seventeenth century he wrote the definition in Christopher Flecamore's album. Gradually the rules of international negotiation be- came established, and treatises upon the subject appeared. The Peace of Westphalia in 1648, which marks the begin- ning of modern international relations, showed that modern diplomacy had already obtained a recognition, and served to ' Walton, "Life of Wotton," 155. 162 INTERNATIONAL LAW give it a more definite form. This date serves as a boundary to the first division of the modern period in the history of diplomacy. The years from the early part of We^stpiTaUa!'^ ^^^ fifteenth century to the Peace of Westphalia are the years of beginnings. From this time the system of permanent ministers, which so greatly changed the character of international negotiations, became almost a ne- cessity through the development of the equilibrium of the states of Europe. ^ During the years 1648 to 1815 the relations of states be- came more complex, and the business of international nego- tiation more delicate. Diplomatic practice, tiin!°w48-i8i5. ^^w^ys tending to look to precedent, suffered — severe strains under the ambitious monarchs occupying the thrones of Europe after the Peace of West- phalia. Principles and precedent were often disregarded to obtain political ends. So great was the friction that at length some of the more commonly disputed questions were settled at the Congress of Vienna, 1815. (6) The question of relative rank of state agents gave rise, in the days before the Congress of Vienna, to many difficulties. The protocol of that Congress of fge°nts°^ '***' M^^ch 9, 1815, together with the eighth article adopted at the Congress of Aix-la-Chapelle, November 21, 1818, gives the basis of present practice as follows : — "In order to prevent in future the inconveniences which have frequently occurred, and which may still occur, from the claims of Precedence among the different Diplomatic characters, the Plenipotentiaries of the Powers who signed the Treaty of Paris have agreed on the following Articles, and think it their duty to invite those of other Crowned Heads to adopt the same regulations : — » Calvo, § 1311 ff. DIPLOMACY AND INTERNATIONAL RELATIONS 163 Division of Diplomatic Characters Art. I. Diplomatic characters are divided into Three classes: That of Ambassadors, Legates, or Nuncios. That of Envoys, Ministers, or other persons accredited to Sovereigns. That of Charges d'Affaires accredited to Ministers for foreign affairs. Representative Character Art. II. Ambassadors, Legates, or Nuncios only shall have the Representative character. Special Missions Art. III. Diplomatic characters charged with any special Mission shall not, on that account, assume any superiority of Rank. Diplomatic Precedence Art. IV. Diplomatic characters shall rank in their respec- tive classes according to the date of the official notification of their arrival. Representatives of the Pope The present Regulation shall not occasion any change re- specting the Representative of the Pope. Form for Reception of Diplomatic Agents Art. V. There shall be a regular form adopted by each State for the reception of Diplomatic Characters of every Class. Diplomatic Agents of Courts allied by Family or Other Ties Art. VI. Ties of consanguinity or family alliance between Courts confer no Rank on their Diplomatic Agents. The same rule also applies to political alliances. 164 INTERNATIONAL LAW Alternation of Signatures in Acts or Treaties Art. VII. In Acts or Treaties between several Powers that admit alternity, the order which is to be observed in the signa- tures of Ministers shall be decided by ballot. ^ Art. VIII. It is agreed between the Five Courts that Ministers Resident accredited to them shall form, with respect to their Precedence, an intermediate class between Ministers of the Second Class and Charges d'Affaires." ^ To the articles, except the last, Austria, Spain, France, Great Britain, Portugal, Prussia, Russia, and Sweden were parties. Spain, Portugal, and Sweden were not parties to the eighth article. Theoretically these rules are binding only upon those states parties to the treaties, but practically they are accepted by all civilized states. The four grades are as follows : — ^..-J: Ambassadors, legates, and nuncios. ..2. Envoys, ministers, or other persons accredited to sov- ereigns. 3. Ministers resident. 4. Charges d'affaires. The first three grades are accredited to the sovereign. The fourth grade, charges d'affaires, is accredited to the minister of foreign affairs. (1) The rank of the agent does not necessarily have any Titles of relation to the importance of the business which diplomatic may be intrusted to him. The titles given to the agen s. different diplomatic agents, at the present time, are in a general way descriptive, as follows : — (a) Diplomatic agents of the first class are held to represent, the person of _the sovereign. Ambassador ordinary formerly ' I Hertslet, 62. 63. ^ Ibid., 575. These rules have been adopted by the U. S. Department of State. DIPLOMACY AND INTERNATIONAL RELATIONS 165 designated one holding a permanent mission. Ambassador extraordinary designated one on a special mission, or having power to act in exceptional circumstances. This, however, is now simply a title of somewhat superior honor giving no other advantage. Papal legates and nuncios rank, and for practical purposes, are, ambassadors extraordinary, though representing particularly ecclesiastical affairs and the Pope as head of the Church. Legates are c hosen from the cardi- nals and sent to countries recognizing the papal supremacy.^ The representative of the Pope is usually accorded the position of ''Doyen" of the "Diplomatic Corps" in states receiving representatives of the Pope. Otherwise, the "Doyen" is the senior diplomat of the highest rank. (b) Envoys extraordinary, envoys ordinary, and ministers plenipotentiary have in general the same functions and rank. With these rank the papal internuncio. The general idea is that the agents of the second class do not s tand for the person of the sovereign, but for the state. (c) Ministers resident are regarded as upon a less im- portant mission than the agents of the first or second class. They are frequently sent by the greater powers to the lesser powers. (d) Charges d'affaires ceremonially rank below the ministers resident. They are accredited to the minister of foreign affairs, while members of the first three classes are accredited to the sovereign. A charge d'affaires may perform the func- tions of the higher grades of agents and has the same general privileges. When a consul is charged with a diplomatic mis- sion he ranks with the charges d'affaires. Commissioners on various missions are sometimes accorded the same rank ; but, as they do not bear the title, commissioners cannot claim the rank of the charge d'affaires, though in their functions there may be no difference. » Calvo, § 1328 ff. 166 INTERNATIONAL LAW (2) There is no rule as to the grade of diplomatic agent which one state shall send to another, though it was formerly Reciprocity as ^^^^ ^^^* ^^^ states entitled to royal honors to the grade could Send ambassadors. It is now customary for of agents. states to agree among themselves as to the rela- tive ranks of their diplomatic agents. Thus the United States by an act of 1893 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 extraordinary, minister plenipotentiary, minister resident, or special, envoy or charge d'affaires, he is authorized in his discretion to direct that the representative of United States to such government shall bear the same designation. This provision shall in no wise affect the duties, powers, or salary of such representative." ^ The rank of a diplomatic agent is a mark of dignity and honor particularly of consequence in matters of etiquette and ceremonial. Reciprocity between states is the general rule in the grade of agents. The old theory that agents of the first rank had access to the ear of the sovereign is no longer held, and all grades alike represent both the sovereign and the state from which they come. 73. Suite The personnel of a mission may be distinguished as^the official and the non-official. (a) The official suite consists of the functionaries, and varies in number according to the dignity and importance of the mission. Formerly the number was scruti- Oflacial suite. . , . , • x ^i <• j.t, j. mzed with great care, owmg to the tear that a numerous suite might endanger the safety of the receiving state. The ofl^cial suite may include, (1) the counsel to the mission, (2) the secretaries, (3) the attaches, military, naval, ' March 1, 1893, 27 U. S. Sts. at Large, c. 182. DIPLOMACY AND INTERNATIONAL RELATIONS 167 and others, (4) the interpreters and dragomans, (5) the clerks and accountants, (6) the couriers, (7) the chaplain, (8) the doctor, and in some instances other officers necessary for the performance of the official functions. (6) The non-official suite includes the family of the dip- lomatic agent and those in his household em- Non-officiai i^^^ rpj^^g ^^^ include, beside his immediate family, (1) the private chaplain, (2) the private doctor, (3) the private secretaries, (4) the domestic servants of various grades. 74. Who May Send Diplomatic Agents It is the general rule that sovereign states only may send ambassadors or other diplomatic agents. Sometimes diplo- matic relations are maintained between states when both are not fully sovereign, as in the relations between Bavaria, a member of the German Empire, and France. In general, where the sovereignty of a state is not complete, its right of legation is fixed by the treaty which impairs its sovereignty. A state which has not full sovereign powers may have a par- tial right of legation, either active or passive, or a right to send diplomatic agents with limited functions. The sending of a diplomatic agent is essentially an act of the sovereign person, whether he be a monarch, president, council, or have other title. The domestic law determines who this person shall be. International law makes no dis- tinction. In each state a department, usually called the department of foreign affairs, has the business of international inter- course in charge. The organization of this department and the general methods are matters of domestic law. All foreign states need to know is to what extent this department is com- petent to carry on negotiations. 168 INTERNATIONAL LAW 75. Who May Be Sent f Before actually sending a diplomatic agent, a state usually 'obtains assurance from the receiving state that the proposed agent will be an acceptable person. If the proposed agent is a persona non grata, it is held that the foreign state is not obliged to give its reasons for refusing to receive him. To refuse a given person does not imply any lack of courtesy to the sending state on the part of the refusing state. A state may refuse to receive one of its own citizens as the minis- ter of a foreign state. Sometimes states have refused to receive those who have in the sending state taken po- sitions manifesting hostile disposition toward the receiving state. In 1885 the Italian government refused to receive Mr. Keily as United States representative on the ground that he had denounced the overthrow of the temporal M V u power of the Pope. It was considered probable that one who had taken so decided an attitude toward an action of the government to which he was sent would hardly be acceptable. Mr. Keily had just before been refused by Austria-Hungary on the ground that his wife was a Jewess and his marriage only a civil one. President Cleve- land showed his attitude toward this action in his first annual message, 1885. "The Austro-Hungarian government finally decided not to receive Mr. Keily 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 interests of this government at Vienna are now in the care of the secretary of legation, acting as charg^ d'affaires ad interim^ ^ > 4 Moore, § 638. DIPLOMACY AND INTERNATIONAL RELATIONS 169 16. Credentials, Instructions, Passport Before starting upon his mission, a diplomatic represen- tative receives, if of one of the first three classes, from the head of the state, if of the fourth class Letters of (charge d'affaires), from the minister of foreign credence. \ o /? t, affairs, a letter of credence. In the United States the President signs the letters of credence of diplo- matic agents above the rank of charg^ d'affaires. In these instances the letter is addressed to the head of the foreign state. In the case of charge d'affaires the letter is addressed to the minister of foreign affairs and signed by the Secretary of State. A letter of credence gives the name, the character and general object of the mission, and requests for the agent full faith and credence as the state's representative. In case of representatives to Turkey, besides the letter to the Sultan, formerly letters were also taken to the grand vizier and to the minister of foreign affairs. Representatives of the Pope carry in place of letters of credence papal bulls. Sometimes a diplomatic agent receives also letters of recommendation to persons of importance in the foreign country. These let- ters have a semi-official character in many cases. While a letter of credence may give power to open treaty nego- tiations, it is usual to give a special letter conferring /w/Z povjers or general full powers to close and sign a treaty, or to act in behalf of the state in some manner not covered by his instructions. These letters are commonly letters patent. The diplomatic agent also customarily receives instruc- tions which may be either for his own guidance or to be communicated to the foreign state. If to be communicated to the foreign state, the instruc- tions make more fully known his special functions. In all cases the agent is bound by his instructions, and 170 INTERNATIONAL LAW should there be doubt as to method of action it is easy, in these days of rapid communication, to entertain a matter ad referendum. The diplomatic agent also receives for himself, family and suite, a special passport. The special passport "differs from the ordinary passport in that it usually de- Speciai scribes the official rank or occupation of the passport. ^ holder, and often also the purpose of his travel- ing abroad, while generally omitting the description of his person." ^ This may serve not only the purpose of the ordinary passport, but may also give an official introduction to the bearer. The papers furnished to diplomatic representatives of the United States include: — '"1. A sealed letter of credence to the head of the state or minister of foreign affairs according to rank of the representative. 2. "An open office copy of the letter of credence." 3. The special passport above mentioned. 4. "A copy of the Register of the Department of State." 5. A letter of credit upon the bankers of the United States. 6. A copy of Instructions to the Diplomatic Officers of the United States. 7. A copy of the Consular Regulations of the United States. » " The American Passport," U. S. Dept. State, 1898, p. 7. DIPLOMACY AND INTERNATIONAL RELATIONS 171 (form of) LETTER OF CREDENCE A B , President of the United States of America. To. Great and Good Friend: I have made choice of one of our distinguished citizens, to reside near the Government of Your in the quahty 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 knowl- edge of his high character and ability 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 prosperity of May God have Your in His wise keeping. Written at Washington this day of in the year Your good friend, A B By the President, Secretary of State. 77. Diplomatic Ceremonial (a) In certain countries diplomatic ceremonial has been very elaborate and complex. The tendency during the nine- teenth century was toward simplification. Each state has the power to determine its own ceremonial for the most part.^ » Taylor, "International Public Law," 323. 172 INTERNATIONAL LAW Of course no state can disregard established rules as to rank, precedence, and similarly generally recognized practices. At Historical ^^^ time when these practices originated it was tendencies in imperative that there should be some fixed ceremonial. mode of procedure which a state could follow without giving offense in its treatment of a foreign represen- tative. Much of the ceremonial became fixed during the latter part of the seventeenth and during the eighteenth cen- tury. In the days of absolutism the monarch naturally demanded such recognition of his representative in a foreign country as befitted his own estimate of the dignity of the monarchical office. It may not be unfortunate that the mon- arch placed a high estimate upon the sovereign office and de- vised 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 sovereignties 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, whether it be weak or powerful. (6) While the minor details of the ceremonial of reception of a diplomatic agent are not invariable, certain customs, are well established. A diplomat officially noti- eception o ^^^ ^^iq receiving state of his arrival by sending, an agent. ^ j ny (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, while sometimes the above procedure is allowed, he usually makes DIPLOMACY AND INTERNATIONAL RELATIONS 173 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 minis- ter 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 received in public audience. At the audience the diplomat presents his letter of credence, and usually makes a brief address, of which he has earlier furnished a copy to the min- ister of foreign affairs in order that a suitable reply may be prepared. Diplomats of the second rank customarily receive a similar solemn audience. This may or may not be granted to ministers of the third rank. Official visits, varying some- what in ceremonial in different states, follow. (c) From the time when permanent missions began to be common, conflict between the representatives of different states made necessary fixed rules of precedence. Rules of ^g Wicquefort said in the latter part of the precedence. ^ seventeenth century, "One of the thmgs that most hinders Embassadors from paying one another civilities, is the Contest they have concerning Honours and Rank; not only on Account of the Competition of their Masters, but sometimes also by Reason of some Pretensions they have amongst themselves." ^ Wicquefort's citations of cases give ample evidence of the confusion prevailing in his day. Bj^n- kershoek, in "De Foro Legatorum," Chapters I and XII, shows that the confusion was scarcely less in 1721, though the rank by title was coming to be more fully recognized. Vattel in 1758 shows that there had arisen a more definite ceremonial ^ and a fairly clear gradation, yet as this had never been agreed to by any considerable number of states, and was not in accordance with any generally recognized principle, 1 Wicquefort, "The Embassador and His Functions," Digby's trans- lation, Ch. XXII, p. 201. 2 :' Droit des gens," Liv. IV, Ch. VL 174 INTERNATIONAL LAW there were contests still. By the Congresses of Vienna (1815) and Aix-la-Chapelle (1818) many of the disputed points in regard to precedence were adjusted. Certain general prop- ositions are now admitted, such as, that no diplomat can pretend to special honors or immunities above other diplo- mats of the same rank.i The rule of the Congress of Vienna I is followed, by which diplomats of the same class rank accord- ing to the precedence in the date of the official notification of their, arrival. Places of honor are now quite definitely fixed. On cere- monial occasions, where the representatives are seated at a table, as in an international congress, it may Places of j_jg somewhat varied as fronting the main win- honor. _ ^ dow, opposite the main entrance to the room, in the place receiving the light over the left shoulder. When the place is determined by the relation to the head of the table or the presiding officer, the first honor, except in Turkey, is at his right, the second at his left, the third in the second place on the right, the fourth in the second place on the left, and so on. In processions the place of honor is sometimes first, sometimes last. For relatively short processions, cer- tain more definite rules are usually observed. When only two participate, the first place is the place of honor; when three participate, the middle place, the place in advance being the second honor and the place in the rear the third; when four participate, the second place is the place of honor^ the place in advance the second, the third and fourth being in honor in order; when five participate, the middle is the place of honor, the second place being the second in honor, the first the fourth in honor, the fourth the third in honor, and the fifth the fifth in honor.^ To avoid friction as to place of honor in signing treaties, > Calvo, § 1328 ff. ' Lehr, "Manuel des Agents Diplomatiques," § 367 ff. DIPLOMACY AND INTERNATIONAL RELATIONS 175 etc., the principle of the alternat is usually followed, by which the copy going to a given nation has the name of its own representative first in order, ^ Sometimes the order is deter- mined by lot, and sometimes is alphabetical in the order of the names of the states parties to the treaty. {d) Certain prerogatives are held to appertain to the office of ambassador and to diplomats of the first rank. Among these are: (1) the title of Excellency, (2) the eroga ives. j.jg}^^ ^^ remain covered in the presence of the sovereign, unless the sovereign himself is uncovered, (3) the privilege of a dais in his own home, (4) the right to use a "coach and six" with outriders, (5) military and naval honors, (6) the use of the coat of arms over the door, (7) invitations to all court ceremonies. This last is usually extended to all diplomats. Those of lower rank than the ambassador sometimes claim modified forms of the above prerogatives. Many of the interesting phases of diplomatic ceremonial are survivals of forms which in earlier days were most jeal- ously and strenuously guarded. The closer relations of states and better understanding of mutual relations have made un- necessary the observance of many forms once vital to harmony. Many courtesies are regarded as due diplomatic representa- tives by virtue of their rank. These are not uniform at the various courts, but generally include, notification of accession to the throne, notifications of births and deaths in the royal family, congratulations and condolences as public events warrant, and many others. (e) Diplomats are also entitled to receive salutes, which are usually arranged for in advance. The ambassador receives a salute of nineteen^guns; envoys extraordinary and minister plenipotentiary, fifteen; the minis- ter resident, thirteen; and the charge d'affau-es, eleven. • The Department of State instructs the representatives of the United States to follow this practice. 176 INTERNATIONAL LAW 78. Functions of a Diplomatic Representative The functions of a diplomatic representative in a broad sense are, to direct the internal business of the legation, to conduct the negotiations with the state to which he is accred- ited, to protect citizens of his state ^ and to issue passports under proper restrictions,^ and to make reports to his home government. (a) The internal business of the mission may in general be classified as concerned with (1) the custody of archives, Internal (•^) diplomatic correspondence^ involving at business of times the use of cipher, (3) record of the work the legation. ^£ ^^^ legation, (4) the exercise of a measure of jurisdiction over the household. In grave cases the diplo- mat must send the offender home for trial, or under certain circumstances, if a native of the state, hand the offender over to the local authorities. Otherwise his jurisdiction is mainly of a minor disciplinary sort. The assumption of such au- thority as claimed by Sully, in 1603, when he tried and con- demned to death one of the French suite, is now absolutely denied. Indeed, James I pardoned the offender whom Sully had delivered to him for execution. In 1896 Great Britain denied the right of the Chinese ambassador to detain a China- man who was held in the legation under charge of political conspiracy, and compelled his release. (h) The conduct of negotiations with the state to which the representative is accredited may involve, (1) verbal com- munications with the sovereign or ministers. Conduct of fpj^g purport of such communications may be negotiations. ' ' ^ ^ *' preserved in writing known as briefs of the con- versation, or aids to the memory. In cases of somewhat formal > IT. S. Rev. Sts., § 2000. Ubid., § 4075. 'Till the reign of Louis XIV, Latin was the language of diplomacy; from that time, French became more and more used. Since the Congress of Vienna, 1815, any language may be used without offense. Art. 120. DIPLOMACY AND INTERNATIONAL RELATIONS 177 conversations the written reports may be called notes or memoranda. To the proces-verbaux, or reports of international conferences for the discussion of treaty stipulations, the name protocol is usually given. (2) Formal communications with the sovereign or ministers ; (3) the maintenance of diplomatic privileges and immunities ; (4) such action as may be neces- sary to protect his state's interests so far as possible, and particularly its treaty rights. (c) The diplomat's relations to the citizens of his own country are largely determined by the domestic law of his own state, and usually involve, (1) a measure Relation to ^^ protection to his fellow-citizens; (2) issue and fellow-citizens. ^ ; v / vise of passports, and in some countries the issue of certificates of nationality and travel certificates; (3) in cases of extradition, of citizens of^Ms own. state from the foreign state, the presentation of the requisition for extradition; and in cases of extradition of citizens of the state to which he is accredited from his own state, usually the certification that the papers submitted as evidence are "properly and legally authenticated." ^ In some states dip- lomats are authorized to perform notarial acts.^ (4) The exercise of a reasonable courtesy in the treatment of his fellow-citizens. All these functions vary with local law. The practice is not uniform, as is evidenced in the inconsistencies in regard to regulations as to marriage by the diplomatic agent.^ (d) In making reports the diplomat is supposed to keep Reports to ^^^ °^^ government informed upon (1) the views home and policy of the state to which he is accredited, government. ^^^ ^2) such facts as to events, commerce, dis- coveries, etc., as may seem desirable. These reports may be regular at specified periods, or special. > 22 U. S. Sts. at Large, 216, § 5. 'U. S. Rev. Sts., § 1750; 1 Gould and Tucker. 446; 2 ibid., 158. » Hall, n. 1, p. 185. 178 INTERNATIONAL LAW 79. Termination of Mission The mission of a diplomatic representative may terminate in various ways. (a) A mission may terminate through the death of the diplomat. In such a case there may properly be a funeral befitting the rank of the diplomat. The prop- Through death gj.^ ^^^ papers of the mission are inventoried of agent. j r r and sealed by the secretary, or in case of the absence of secretaries and other proper persons, by the diplo- mats of one or more friendly powers. The inheritance and private property of the diplomat, of course, follow the law of his country, and the property of the deceased is exempt from local jurisdiction. (6) The mission may terminate in ordinary course of events, by (1) expiration of the period for which the letter Inordinary °^ Credence or full power is granted; (2) fulfill- course of ment of the purpose of the mission, if a special events. mission; (3) change of grade of diplomat; (4) the death or dethronement of the sovereign to whom the diplomatic agent is accredited, except in cases of republican forms of government. In the above case new letters of credence are usually regarded as essential to the continuance of the mission. The weight of opinion seems to indicate that the mission of a diplomat is terminated by a change in the government of his home country through revolution, and that new letters of credence are necessary for the continuance of his mission. (c) A mission may be interrupted or broken off through strained relations between the two states or between the diplomatic agent and the receiving state. (1) Under strained ^ declaration of War immediately terminates relations. "^ diplomatic relations. (2) Diplomatic relations may be broken off by the personal departure of the agent. DIPLOMACY AND INTERNATIONAL RELATIONS 179 which departure is for a stated cause, such as the existence of conditions making the fulfillment of his mission impossible, or the violation of the principles of international law. (3) Diplomatic relations may be temporarily suspended, owing to friction between the states, as in the case of the suspension of diplomatic relations between Great Britain and Venezuela from 1887 to 1897, owing to dispute upon questions of bound- ary. In 1891 Italy recalled her minister from the United States on account of alleged tardiness of the United States authorities in making reparation for the lynching of Italians in New Orleans on March 14, 1891. ^ (4) A diplomatic agent is sometimes dismissed either on grounds personal to the diplomat, or on grounds involving the relations of the two states. When, in 1888, the demand for the recall of Lord Sackville, the British minister at Washington, was not promptly complied with. Lord Sackville was dismissed and his passport sent to him. Lord Sackville had, in response to a letter purporting to be from an ex-British subject, sent a reply which related to the impending presidential election. His recall was demanded by telegraph, October 27. The British government declined to grant it without time for investigation, and his passport was sent him on October 30. In 1871, "The conduct of Mr. Catacazy, the Russian minister at Washington, having been for some time past such as materially to impair his usefulness to his own Government, and to render intercourse with him for either business or social purposes highly disagreeable," it was the expressed opinion of the President that " the interests of both countries would be promoted ... if the head of the Russian legation here was to be changed." The President, however, agreed to tolerate the minister till after the contemplated visit of the grand duke. The communication also stated, " That minister will then be dismissed if not recalled." ^ 1 For. Relations U. S. 1891, p. 658 ff. ^ 4 Moore, § 639. 180 INTERNATIONAL LAW (d) The ceremonial of departure is similar to that of recep- tion. (1) The diplomat seeks an interview according to the method outlined in the ceremonial of reception, Ceremonial of -^^ ^^^^^ ^^ present his letter of recall. (2) In departure. '■ ^ ^ case of remoteness from the seat of government the agent may, if necessary, take leave of the sovereign by letter, forwarding to the sovereign his letter of recall. (3) It very often happens that a diplomatic agent presents his suc- cessor at the time of his own departure. (4) In case of change of title the diplomat follows the ceremonial of departure in one capacity with that of arrival in his new capacity. (5) It is understood that the agent, after the formal close of his mission, will depart with convenient speed, and until the expiration of such period he enjoys diplomatic immunities. 80. Immunities and Privileges Few subjects involved in international relations have been more extensively discussed than the privileges and immuni- ties of diplomatic agents. Many of the earliest treatises on international affairs were devoted to such questions. In order that any business between states might be carried on, some principles upon which the diplomatic agent could base his action were necessary. The treatment of the agent -eould not be left to chance or to the feeling of the authorities of the receiving state. Gradually fixed usages were recognized. These immunities and privileges may be considered under two divisions: personal inviolability, and exemption from local jurisdiction, otherwise known as exterritoriality. (a) The person of the agent was by ancient law inviolable. According to the dictum of the Roman Law, sancti hahenlur Inviolability of ^^(l^^^^- In accord v^^ith this principle the phys- the person of ical and moral person is inviolable. Any offense the agent. toward the person of the ambassador is in effect an offense to the state which he represents, and DIPLOMACY AND INTERNATIONAL RELATIONS ISl to the law of nations. The receiving state is bound to ex- tend to the diplomatic agent such protection as will preserve his inviolability. This may make necessary the use of force to preserve to the diplomatic agent his privileges. The idea of inviolability, as Calvo says, is absolute and unlimited, and based, not on simple convenience, but upon ^rivUe°e*^^^ necessity. Without it diplomatic agents could not perform their functions for they would be dependent upon the sovereign to whom they might be ac- credited.i In many states laws have been enacted during the last half of the nineteenth century fixing severe penalties for acts which affect the diplomatic agent unfavorably in the performance of his functions or reflect upon his dignity .2 The privilege of inviolability extends^lrr alike to agents of all classes; j(2) to the suite, official and non-ofRcial; (3) to such things as are convenient for the perform- Extent of the ^^^^ ^^ ^Yye agent's functions; (4) during the entire time of his official sojourn, i.e., from the time of the announcement of his official character to the ex- piration of a reasonable time for departure after the com- pletion of his mission. This also holds even when the mission is terminated by the outbreak of war between the state from which the agent comes and the state to which he is accredited. (5) By courtesy the diplomatic agent is usually accorded similar privileges when passing through a third state in going to or returning from his post. A diplomatic agent may place himself under the law, says Despagnet, so far as attacks upon him are concerned: (1) when he voluntarily exposes himself to danger, Limits of -j^ ^ j.Jq^ ^^gj p-^jj ^^j.. ^2) when in his private immunity. ' capacity he docs that which is liable to criticism, e.g., as a writer or artist, provided the criti- cism should not degenerate into an attack upon his public > " Droit Int.," § 1481 ff. =* Lehr, " Manuel," §§ 988-998. 182 INTERNATIONAL LAW character; (3) when the attacks upon him are in legitimate personal self-defense; (4) when, by his actions, he provokes on the part of the local government precautionary measures against himself, e.g. if he should plot against the surety of the state to which he is accredited.^ Only in the case of extreme necessity, however, should any force be used. It is better to ask for the recall of the agent. In case of refusal or in case of urgent necessity the agent may be expelled. (6) Exemption from local jurisdiction of the state to which a diplomatic agent is sent, or exterritoriality in a limited sense, flows naturally from the admitted right !.1°^'eMptn. °f inviolability. The term "exterritoriality" is a convenient one for describing the condition of immunity which diplomatic agents enjoy in a foreign state, but it should be observed that the custom of conceding these immunities has given rise to the " legal fiction of exterri- toriality," rather than that these immunities are based on a right of exterritoriality. The practice of granting immuni- ties was common long before the idea of exterritoriality arose.^ The exemptions give to diplomatic agents large privileges. (1) The diplomatic agent is exempt from the criminal jurisdiction of the state to which he is accredited. In case Agent exempt °^ violation of law the receiving state has to from criminal dccidc whether the offense is serious enough to juris ic ion. warrant a demand for the recall of the agent, or whether it should be passed without notice. In extr'eme cases a state might order the agent to leave the country, or in case of immediate danger might place the agent under reasonable restraint. Hall considers these "as acts done in pursuance of a right of exercising jurisdiction upon sufficient emergency, which has not been abandoned in conceding immunities to diplomatic agents." ^ * Dospagnot, "Droit intomational public," 2d ed., § 235; Heffter, 5 204. ' Grotius, " De Jure Belli," II, 18. 3 Hall, p. 173. DIPLOMACY AND INTERNATIONAL RELATIONS 183 (2) The diplomatic agent is exempt from civil jurisdiction of the state to which he is sent, and cannot be sued, arrested, Agent exempt °^ punished by the law of that state, i This from civu rule is sometimes held to apply only to such jurisdiction. proceedings as would affect the diplomat in his official character; but unless the diplomat voluntarily assume another character, he cannot be so proceeded against. If he become a partner in a firm, engage in business, buy stocks, or assume financial responsibilities, it is held in theory by some authorities that the diplomatic agent may be proceeded against in that capacity. The diplomatic agent of the United States is distinctly instructed that " real or personal property, aside from that which pertains to him as a minister, ... is subject to the local laws." ^ The practice is, however, to extend to the diplomat in his personal capacity the fullest possible immunity, and in case of need to resort to his home courts, or to diplomatic methods by appeal to the home government, for the adjustment of any difficulties that may involve its representative in foreign court proceedings. The real property of the diplomatic agent is, of course, liable to local police and sanitary regulations. In cases where a diplo- matic agent consents to submit himself to foreign jurisdiction, the procedure and the judgment, if against him, cannot in- volve him in such manner as seriously to interfere with the performance of his functions. He cannot be compelled to appear as witness in a case of which he has knowledge; how- ever, it is customary in the interests of justice for the diplo- matic agent to make a deposition before the secretary of the legation or some proper officer. By the Constitution of the United States, in criminal prosecutions the accused has a right to have the evidence taken orally in his presence. The refusal of M. Dubois, the Dutch minister to the United States 1 U. S. Rev. Sts., §§ 4063, 4064; Wheat. D., 308-310. * Instructions to Diplomatic OflBcers, 1897, § 47. 184 INTERNATIONAL LAW in 1856, to give oral testimony, resulted in his recall. ^ The Venezuelan minister, however, testified in open court as a courtesy to the United States government in the trial of the assassin of President Garfield.^ The United States at the present time maintains that ''a diplomatic representative cannot be compelled to testify, in the country of his sojourn, before any tribunal whatsoever." This may be considered the generally accepted principle, though the interests of gen- eral justice and international courtesy frequently lead to voluntary waiving of the rule with the consent of the accred- iting state. (3) The official and non-official family enjoy the immuni- ties of their chief as necessary for the convenient performance Immunities of ^f his mission. Questions in regard to the family and immunities of the non-official suite have some- ■"^*®* times arisen. To avoid this it is customary for the diplomat to furnish the receiving state with a list of his family. Great Britain does not admit the full immunity of domestic servants. When Mr. Gallatin was United States minister to Great Britain, his coachman,who had committed an assault beyond the hotel of the minister, was held liable to the local jurisdiction. As a diplomatic agent can voluntarily turn over an offender to the local authorities, and as he would naturally desire the observance of local law, there would be little danger of friction with local authorities anywhere, pro- vided a just cause could be shown. Couriers and bearers of dispatches are entitled to immuni- ties so far as is necessary for the free performance of the specific function. (4) The house and all grounds and buildings within the limits of the diplomatic residence are regarded as exempt from local jurisdiction. Great Britain claimed the right of entry to arrest Mr. Gallatin's coachman above mentioned, » 4 Moore, § 662. » Ibid. DIPLOMACY AND INTERNATIONAL RELATIONS 185 though admitting that such entrance should be made at a time to suit the convenience of the minister if he did not „^ ^. , . care to hand him over directly. This immu- The diplomatic residence ex- nity extends also to carriages and other neces- empt from local gary appurtenances of the mission. Children born to the official family in the house of the diplomatic agent are considered as born in the state by which the agent is accredited. (5) The right of asylum in the house of the ambassador is now generally denied. In 1726 the celebrated case of the Right of Duke of Ripperda, charged with treason, gave asylum gen- rise to the decision by the Council of Castile eraiiy denied. ^^iSit the duke could be taken from the English legation by force if necessary, because the legation, which had been established to promote good relations between the states, would otherwise be used for overthrowing the state in which it had been established. ^ It may be regarded as a rule that, in Europe and in the United States, the house of a diplomatic agent affords only temporary protection for a criminal, whether political or otherwise, and that on demand of the proper authority the criminal must be surrendered. Refusal is a just ground for demand for recall of the diplomatic agent. The United States instructs its agents that "The privilege of immunity from local jurisdiction does not embrace the right of asylum for persons outside of a representative's dii)lomatic or personal household." ^ This right is, however, recognized in practice, both by the United States and Euro- pean nations, so far as pertains to the houses of the diplomats in South American states. The United States, in 1870, tried without avail to induce the European nations to agree to the discontinuance of the practice. In 1891, in Chile, Minister Egan, of the United States, afforded refuge in the legation » De Martens, "Causes Cel.," I, 174. * Instructions to Diplomatic Officers, 1897, § 50. 186 INTERNATIONAL LAW to a large number of the political followers of Balmaceda. Chile demanded his recall, but the United States maintained that there must be sufficient grounds for such action. In Eastern countries it has been the practice to afford asylum in legations in times of political disturbance and to political offenders. In 1895 the British ambassador at Constantinople gave asylum to the deposed grand vizier at Constantinople. It may be said, however, that the tendency is to limit the granting of asylum to the fullest possible extent,^ and finally to abolish the practice altogether, as has been the case with the ancient extension of this privilege to the neighborhood of the legation under the name of jus quarteriorum? (6) In general, the diplomatic agent is exempt from per- sonal taxes and from taxes upon his personal goods. The property owned by and devoted to the use of axation ^^^q mission is usually exempt from taxation. exemptions. *' '^ In this respect the principle of reciprocity is followed among some states. The taxes for betterments, such as paving, sewerage, etc., are regarded as proper charges upon the mission. A state has a right to make such regula- tions as it deems necessary to prevent the abuse of this im- munity from taxation. It is also customary for a third state to grant to a diplomat passing through its territory immu- nity from duties. Diplomatic agents are also exempt from income, military, window, and similar taxes. (7) It is hardly necessary now to mention the fact -that the diplomatic agent is entitled to freedom of religious worship Freedom of within the missiou, provided there be no attempt religious by bell , symbol, or otherwise to attract the atten- wors ip. ^j^j^ ^|. ^^^ passer-by to the observance. This priv- ilege was formerly of importance, but now is never questioned. ' Hall, p. 182. 'See the "Ripht of Asylum in the Legations of the United States in Central and South America," by Barry Gilbert, in Harvard Law Review for June, 1901, p. 118. DIPLOMACY AND INTERNATIONAL RELATIONS 187 /81. Diplomatic Practice of the United States^ Some of the minor points of procedure and functions may '^'^be seen by the study of the customs and rules of any large state, as in the United States. f(a) Official communications involving international rela- tions and general international negotiations are within the exclusive province of the Department of State, at the head of which stands the Secretary of State. In other states this department is commonly called the Department of Foreign Affairs, and its chief is the Minister or Secretary for Foreign Affairs, and was so designated in the United States from 1781 to 1789. The Department of State of the United States, however, performs many functions not strictly within a Department of Foreign Affairs, as an enumeration of the Bureaus will show. (1) Bureau of Appointments. (2) Diplomatic Bureau. (3) Consular Bureau. (4) Bureau of Indexes and Archives. (5) Bureau of Accounts. (6) Bureau of Rolls and Library, which, besides other duties, has charge of the publication of the laws, treaties, proclamations, and executive orders. (7) Bureau of Citizenship. (8) Bureau of Trade Relations. (9) Division of Far Eastern Affairs. (10) Division of Latin- American Affairs. (6) The Constitution provides that, " In all cases affecting I ambassadors, other public ministers, and consuls," the Su- preme Court has original jurisdiction.^ (c) A diplomatic agent cannot, without consent of Con- * Concise bibliography, Hart, " Foundations of American Foreign Policy," pp. 241-293. * U. S. Constitution, Art. Ill, § 2, 2. 188 INTERNATIONAL LAW gress, "accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state." i This provision does not, however, prevent the rendering of a friendly service to a foreign power, and it may be proper for him, having first obtained permission from the Depart- ment of State, to accede to the request to discharge tempo- rarily the duties of a diplomatic agent of any other state.2 (d) In case of revolution a diplomatic agent may extend protection to the subjects of other friendly powers left for the time without a representative.^ In neither this nor in the preceding case does the United States become responsible for the acts of its diplomatic representative in so far as he is acting as agent of the other state or states. ' (e) "It is forbidden to diplomatic officers to participate in any manner in the political concerns of the country of their residence; and they are directed especially to refrain from public expressions of opinion upon local political or other questions arising within their jurisdiction. It is deemed advisable to extend similar prohibition against public ad- dresses, unless upon exceptional festal occasions, in the country of official residence. Even upon such occasions any reference to political issues, pending in the United States or elsewhere, should be carefully avoided." * A diplomatic agent is forbidden to recommend any person for office under the government to which he is accredited.^ The diplomatic agent should not become the agent to prosecute private claims of citizens.*^ The diplomatic agent should not retain any copy of the archives, nor allow the publication of any official document, without authorization of the Department of State. The Department in general disapproves of residence of the agent elsewhere than at the capital of the receiving state. » U. S. Constitution, Art. I, § 9, 8. 2 4 Moore, § 653. » Jbid. » Instructions to Diplomatic Officers, U. S., 1897, §§ 68, 69. » U. S. Rev. Sts., § 1751. • 4 Moore, § 654. DIPLOMACY AND INTERNATIONAL RELATIONS 189 (/) Joint action with the diplomatic agents of other powers at a foreign court is deprecated, although conferences result- ing in a common understanding in cases of emergency are considered desirable. ^ r (g) It is permitted that the diplomatic agent of the United ' States wear the uniform and bear the title of the rank attained in the volunteer service of the Army of the United States during the rebellion.^ It is prohibited by a later statute to wear " any uniform or official costume not previously author- ized by Congress." ^ This has been interpreted as applying to dress denoting rank, but not to the prescribed court dress of certain capitals;^ and "diplomatic officers are permitted to wear upon occasions of ceremony the dress which local usage prescribes as appropriate to the hour and place." ^ ' - (h) The United States has never been liberal in compensa- ting diplomatic agents for their services. In 1784 the salary of the highest grade was fixed at nine thousand dollars, and it has only been doubled at the end of the nineteenth century. Other states of equal dignity provide far more Hberally for their representatives. The whole matter of diplomatic agents has been the subject of numerous statutes.^ 82. Consuls (a) Historically the office of consul preceded that of ambassador. The merchants of different states had dealings with one another long before the states, as such, History. . . entered into negotiations. The Egyptians, ap- parently as early as the fourteenth century b.c, intmsted the trial of certain maritime cases to a designated priest. 1 4 Moore, § 652. ^ xj. s. Rev. Sts., § 1226. 3 Ibid., § 1688. * Schuyler, " Amer. Dip.," 144. » Instructions to Diplomatic Officers, IJ. S., § 67. 6 U. S. Rev. Sts., §§ 1674-1752; 1 Gould and Tucker, 439-447; 2 ibid., 155-158. 190 INTERNATIONAL LAW The Mediterranean merchants appealed to the judicium mer- catorium et maritimum in the sixth century b.c. The Greek proxenos performed some consular functions. Rome later had similar public servants. The consular system, however, did not develop during the long period of decay of the Roman Empire. In the days of the Crusades, the merchants settled in the coast cities of the Mediterranean. Quarters of the cities practically came under the jurisdiction of the foreign occupants. The consuls, probably at first chosen by the merchants, exercised this jurisdiction, under which the law of the state of the origin of the merchants was regarded as binding. Their functions were somewhat similar to those exercised in some Eastern states at the present time. As soon as conditions became more settled, the states gradually assumed control of these consular offices. The laws of Oleron, Amalfi Wisby, the Consolato del Mare, and the early Lex Rhodia show that many of the consular functions were recognized in the Middle Ages, and the institution of consuls seems to have been quite well established by the year 1200. The Hanseatic League in the fourteenth century had magis- trates in many cities entitled aldermen, who were performing functions similar to those of the consuls of the Mediterranean. ^ England began to send consuls in the fifteenth century; the system rapidly spread, and the powers and functions of con- suls were wide. From this time, with the growth of the practice of sending resident ambassadors, the extent of the consular duties was gradually lessened. The diplomatic functions formerly in the charge of the consuls were intrusted to the ambassadors, and other functions of the consuls were reduced by making them the representatives of the business interests of the subjects of the state in whose service they were, rather than of the interests of the state as such .2 From ' Nys, "Les origines du droit international," "Le Commerce," p. 286. 'Lawrence, "Commcntaire sur Wheaton," IV, p. 6. DIPLOMACY AND INTERNATIONAL RELATIONS 191 the middle of the seventeenth century, when the responsi- bility of states to each other became more fully recognized, and government became more settled, the exterritorial juris- diction of consuls was no longer necessary. The growth of conm[ierce among the nations has increased the duties of the consul. The improved means of communication, telegraphic and other, has relieved both consuls and ambassadors of the responsibility of deciding, without advice from the home government, many questions of serious nature. (h) The rank of consuls is a matter of domestic law, and each state may determine for its own officers the grade and Rank of consuls honors attaching thereto in the way of salutes, a matter of precedence among its domestic officials, etc. domestic law. 'pj^gj.g js jjq international agreement in regard to consuls similar to that of 1815-1818 in regard to diplomatic agents. The United States differentiates the consular service more fully than most states, having the following: consuls-general, vice-consuls-general, deputy consuls-general, consuls, vice- consuls, deputy consuls, commercial agents, vice-commercial agents, consular agents, consular clerks, interpreters, marshals, and clerks.i The term "consular officer," however, includes only consuls-general, consuls, commercial agents, deputy con- suls, vice-consuls, vice-commercial agents, and consular agents.2 The full officers are consuls-general, consuls, and commercial agents. The vice-consular officers are "substi- tute consular officers" and the deputy consuls-general, deputy consuls, and consular agents are "subordinate consular of- ficers." 3 Consuls-general ordinarily have a supervisory jurisdiction of the consuls within the neighborhood of their consulate, though sometimes they have no supervisory jurisdiction. ' Consular Regulations, 1896, 1. 2 U, S, Rev. Sts., § 1674. ^ /^j^;^ 192 INTERNATIONAL LAW This is often exercised by the diplomatic agent accredited to the same state. Most states have consuls-general, consuls, vice-consuls, consular agents, sometimes also consular students. (c) The nomination of consuls is an attribute of a sovereign state. They may be chosen either from among its own citi- „ . ,. ^ zens or from those of the foreign state. Consuls Nomination and "^ '-' ^ o reception of choscn from the citizens of the state to which consuls. ^i^gy g^j.g accredited exercise only in part the full consular functions, the limit of the functions being determined by the laws of the accrediting state and by the laws of the receiving state. Some states refuse to receive their own citizens as consuls; others do not accredit foreigners as con- suls. The commission or patent by which a consul-general or consul is always appointed is transmitted to the diplomatic representative of the appointing state in the state to which the consul is sent, with the request that he apply to the proper authority for an exequatur, by which the consul is officially recognized and guaranteed such prerogatives and immunities as are attached to his office. The vice-consul is usually appointed by patent, though he may be nominated by his superior, and is recognized by granting of an exequatur. The exequatur may be revoked for serious cause, though the more usual way is to ask the recall of a consul who is not satisfactory to a state. The exequatur may be refused for cause. It is usually issued by the head of the state. If the form of government in the receiving state or in the accrediting state changes, it is customary to request a new exequatur. Note. The consular agents, while appointed and confirmed as are the higher consular officers, do not in the practice of the United States receive an exequatur. DIPLOMACY AND INTERNATIONAL RELATIONS 193 (form of) FULL PRESIDENTIAL EXEQUATUR President of the United Sta>'=^ 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 In Testimony whereof, I have caused these Letters to be made Patent, and the Seal of the United States [seal to be hereimto affixed. OF THE Given imder my hand at the City of Washington UNITED the day of , a.d. 19 .... , states] and of the Independence of the United States of America, the By the President, Secretary/ of State. (d) The consul, as the officer representing particularly the commercial and business interests of the state from which he comes, and in a minor degree the other indi- o/the cons^^'°°^ vidual interests, has a great variety of functions. His functions are in general such as affect only indirectly the state in which he resides. He is not, like the diplomatic agent, directly concerned with affairs of state; he has no representative character, though in efTect he is often the local representative of the diplomatic agent accredited to the state. The functions of a consul are largely matters determined by custom, treaty stipulation, and by special provisions of his exequatur. Within these limits domestic law of the 194 INTERNATIONAL LAW accrediting state determines the consul's functions. (1) In general the consul has many duties in connection with the commercial interests of the subjects of the state which he serves. These duties extend both to maritime and land com- merce. The consul is to care that the provisions of commer- cial treaties are observed, that proper invoices of goods are submitted, and that shipment is in accord with the regula- tions of the state which he serves. He is to furnish such reports in regard to commercial and economic conditions as are required. These reports often involve many subjects only indirectly related to trade and commerce. (2) The con- sul has many duties relating to the maritime service of the state which accredits him. This usually includes such super- vision of merchant vessels as the domestic law of his state may grant to him, together with that accorded by custom. His office is a place of deposit of a ship's papers while the ship remains in port. When necessary he may supervise the shipment, wages, relief, transportation, and discharge of sea- men, the reclaiming of deserters, the care of the effects of deceased seamen, in some states the adjudication of disputes between masters, officers, and crews, and if necessary he may intervene in cases of mutiny or insubordination. In case of wrecked vessels the consul is usually left considerable latitude in his action. The consul may also authenticate the bill of sale of a foreign vessel to the subject of the state which accredits him. This authentication entitles the vessel t<^ the protection of the consul's state. The consul may also be intrusted with other duties by treaties and custom of given states. (3) The consul represents the interests of the citizens of the state in whose service he is, in matters of authentication of acts under seal, in administration of the property of citizens within his district, in taking charge of effects of deceased citizens, in arbitration of disputes voluntarily submitted to him, vise of passports, and minor services. (4) The consul DIPLOMACY AND INTERNATIONAL RELATIONS 195 furnishes to the state which he represents information upon agreat variety of subjects particularly relating to commercial, economic, and political affairs, the conditions of navigation, and general hydrographic information. Besides this he is expected to keep his state informed of the events of interest transpiring within his district. ^ As Hall says: "In the performance of these and similar duties the action of a consul is evidently not international. He is an officer of his state to whom are entrusted special functions which can be carried out in a foreign country with- out interfering with its jurisdiction. His international action does not extend beyond the unofficial employment of such influence as he may possess, through the fact of his being an official and through his personal character, to assist compatri- ots who may be in need of his help with the authorities of the country. If he considers it necessary that formal representa- tions shall be made to its government as to treatment experi- enced by them or other matters concerning them, the step ought in strictness to be taken through the resident diplo- matic agent of his state, — he not having himself a recognized right to make such communications." ^ In late years there has been in the consular conventions between different states a tendency to extend to consuls the right of complaint to the local authorities in case " of any infraction of the treaties or conventions existing between the states," and "if the com- plaint should not be satisfactorily redressed, the consular officer, in the absence of the diplomatic agent of his country, may apply directly to the government of the country where he resides." ^ ' Stowell, E. C, Le Consul, p. 15. ' Hall, p. 317. 5 See Treaties: United States and Colombia (New Granada), 1850; United States and France, 1853; United States and Austria, 1870; United States and Germany, 1871; Austria and Portugal, 1873; Germany and Russia, 1874; France and Russia, 1874; United States and Italy, 1878; Portugal and Belgium, 1880; United States and Roumania, 1881; United States and Kongo Free State, 1891, and others. 196 INTERNATIONAL LAW (e) In some of the Eastern and non-Christian states consuls have special powers and functions in addition to the ordinary Special powers Powers and functions. The extent of the pow- in Eastern ers varies, and is usually determined by treaty, states. With the advance of civilization these special functions are withdrawn, as by the Treaty of the United States with Japan, November 22, 1894,^ the jurisdiction of the consular courts of the United States in Japan came to an end July 17, 1899. In general, in Mohammedan and non-Christian states, treaty stipulations secure to the consuls of Western states the right of exercising extensive criminal and civil jurisdiction in cases involving citizens of their own and the Eastern states, or in cases involving citizens of their own and other Western states.2 In some of the Eastern states the consuls have exclusive jurisdiction over all cases to which citizens of their states are parties;^ in others the cases involving citizens of the Eastern and Western states are tried in the court of the defendant in the presence of the "authorized official of the plaintiff's nationality," who may enter protest if the proceed- ings are not in accord with justice,^ while in certain states or for certain cases mixed courts are constituted. Certain West- ern states in their domestic laws make provisions for appeal from the decision of the consular court to specified authori- ties, as to the diplomatic agent or to some domestic tribunal. This jurisdiction is exceptional, furnishes no precedents for international law, tends to become more restricted, and will doubtless gradually disappear.^ (/) The privileges and immunities vary according to the states and from the fact that a consul may be (1) a citizen ' 29 U. S. Sts. at Large, 848. ' See Sec. 66 for extent of jurisdiction. ' U. S. Treaty with Borneo, June 23, 1850, Art. IX, Treaties of U. S., 102. * U. S. Treaty with China, Nov. 17, 1880, Art. IV, Treaties in Force, 120. » Hall, note, p. 323. DIPLOMACY AND INTERNATIONAL RELATIONS 197 of the state in which he exercises his consular functions, (2) a domiciled alien, (3) an alien engaged in business or some other occupation in the state where he exercises his Privileges and functions, OF (4) a citizen of the accrediting immunities. ' , " state engaged exclusively upon consular busi- ness.^ It is, however, necessary that the state which grants an exequatur to, or receives as consul a person from, one of the first three classes, grant to such person a measure of privilege and immunity consistent with the free performance of his consular duties. Each consul has the privilege of placing above the door of his house the arms of the state which he serves, generally also of flying its flag. The archives and official property are inviolable. In the case of a consul not a citizen of the receiving state and engaged exclusively in consular business, exemption from arrest except on a criminal charge, when he may be punished by local laws or sent home for trial; exemption from witness duty, though testimony may be taken in WTiting; exemption from taxation; exemption from military charges and service, — is usually conceded by custom and often by treaty. It is not, however, conceded that the consular residence may be used as an asylum. The consul of the third class, who, though an alien to the recei\dng state, engages in business other than consular duties, is subject to all local laws governing similarly circumstanced foreigners, except when in the performance of his functions. His consular effects must be kept distinct from those apper- taining to his business capacity, which last are under local law. The domiciled alien exercising consular functions is subject to local law as others similarly circumstanced, which, in some states, may involve considerable obligations. The freedom 1 Lehr, § 1236 ff. 198 INTERNATIONAL LAW from local restrictions sufficient for the convenient perform- ance of his consular duties is implied in the grant of the exequatur. The reception of a citizen as a consular representative of a foreign state does not confer upon him the personal privileges and immunities of any of the other classes, but only the immunities attaching to the office itself, and absolutely neces- sary for the performance of its duties, as the right to use the arms above the office door, the inviolability of archives, and respect for his authority while in the performance of his functions. In some of the Eastern states and in some of the non- Christian and semicivilized states consuls are entirely exempt from local jurisdiction, enjoying exemptions similar to those of diplomatic agents. In time of war the house of the consul is, when flying the flag of the state which he serves, specially protected, and liable to injury only in case of urgent military necessity. Consuls do not necessarily withdraw because of hostilities with the accrediting state.^ In general, the consul, by virtue of his public office, is entitled to more respect than a simple citizen, or, as Heffter puts it, " consuls are entitled to that measure of inviolability which will enable them to exercise their consular functions without personal inconvenience." ^ (g) The consular office may be vacated by a given occu- pant, (1) by death, (2) by recall, (3) by expiration of his term of service, (4) by revocation of his exequatur. Termination of , , , , !•-<.• consular office. ^ ^^^ ^^^* cause IS the Only one needmg attention. The exequatur may be revoked by the state issuing it, if the conduct of the holder be displeasing to the state. The state issuing the exequatur is sole judge. This does not necessarily imply any discourtesy to the accrediting » " De Clerq et de Vallat," I, pp. 106, 107. ^ § 244. DIPLOMACY AND INTERNATIONAL RELATIONS 199 state, as the consul does not represent the sovereignty of the state. It is customary, however, to give the accrediting state an opportunity to recall its consul. Exequaturs have, on several occasions, been withdrawn from consuls who have directly or indirectly aided the enemies of the receiving state, or have given offense by their participation in the public affairs of the receiving state. Consequently consuls are usually officially advised to refrain so far as possible from expressions of their opinions upon public affairs, either of the receiving or sending state. Appointment and Examination of Consuls Formerly the United States consuls were usually changed on the election of a new President. It was found that such a policy was detrimental to the interests of the United States, for often the four years of experience would be an excellent preparation for subsequent service and a reason why the con- sul should be retained rather than allowed to withdraw. With a view to the promotion of the efficiency and per- manency of the consular service, an Act of Congress of April 5, 1906, made it practicable for the President of the United States to extend to the consular service the regulations gov- erning selections under the civil service laws. Accordingly the Presidents have from time to time issued orders providing for promotion on basis of ''ability and efficiency," and for new appointments after examination. The examinations are, in general, open to citizens of the United States between the ages of twenty-one and fifty years who have proper physical, moral, and mental qualifications. While the Board of Ex- aminers may determine the scope and method of examina- tions, certain subjects are essential. These subjects are such as, a modern language other than English, "the natural, in- dustrial, and commercial resources and the commerce of the 200 INTERNATIONAL LAW 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 inter- national, commercial, and maritime law." It was also pro- vided in recent regulations that, while due regard should be paid to the geographical distribution of appointees among the states and territories, that "neither in the designation for examination or certification or appointment will the political affiliations of the candidate be considered." OUTLINE OF CHAPTER XIV TREATIES 83. DEFINITION OF A TREATY. 84. OTHER FORMS OF INTERNATIONAL AGREEMENTS. (a) Protocol. (b) Declarations. (c) Memoranda. (d) Letters and notes. (e) Sponsions. (f) Cartels. (g) Compromis. 85. THE NEGOTIATION OF TREATIES. (a) The agreement upon the terms of the treaty. (b) The draft usually of a uniform style. (c) The signing of the treaty and its binding effect on the state represented. (d) Ratification, or acceptance of the treaty by the state. (1) Refusal to ratify. (2) Exchange of ratifications. (3) Approbation, adhesion, accession. 86. THE VALIDITY OF TREATIES. (a) Parties to the treaty must have the international capacity to contract. (b) Agents of a state must be duly authorized. (c) Freedom of consent necessary in agreements between states. (d) Treaties must be in conformity to law. 87. THE CLASSIFICATION OF TREATIES. (a) Various methods of classification. (b) Treaty of guaranty. (c) Treaty of alliance. 201 88. THE INTERPRETATION OP TREATIES. (a) Rules for interpretation. (b) Cases of conflicting clauses. (c) " The most favored nation " clause. 89. THE TERMINATION OF TREATIES. (a) By complete fulfillment of all treaty stipulations. (b) By the expiration of the time agreed upon. (c) By express agreement of the parties concerned. (d) Not effective when the execution of conditions is impossible or contrary to the principles of law or morality. (e) By renunciation of advantages and rights secured by a treaty. (f) By a declaration of war. (g) When the test of voidability applies. (h) By act of denunciation. 202 CHAPTER XIV TREATIES 83. Definition of a Treaty A treaty is an agreement, generally in writing, and always in conformity with law, between two or more states. A treaty may establish, modify, or terminate obligations. These obligations must be such as are legally within the capacity of the states concerned to negotiate, A treaty runs between states only. As distinguished from other forms of inter- national agreement, a treaty is usually concerned with mat- ters of high state importance, with a considerable number of questions, or with matters involving several states. Separate articles are clauses attached to a treaty after ratification, and to be interpreted with reference to the whole. 84. Other Forms of International Agreements Besides the treaty, which is the most formal international agreement, there may be various other methods of expressing the terms of international agreements. The importance of the matter contained in the various documents is not neces- sarily in proportion to their formality. The terms "convention" and "treaty" are very generally used interchangeably, though strictly the scope of a conven- tion is less broad, and usually applies to some specific subject, as to the regulation of commerce, navigation, consular serv- ice, postal service, naturalization, extradition, boundaries, etc. The terms below are often used loosely in practice. 203 204 INTERNATIONAL LAW (a) A protocol, or proems verbal, is usually in the form of official minutes, giving the conclusions of an international conference and signed at the end of each session Protocol. , , . mi • 1 by the negotiators. Ihis does not require rati- fication by the sovereign as in the case of treaties and con- ventions, though it may be binding upon the good faith of the states concerned. Ordinarily the persons signing the protocol have been duly authorized by their respective states in advance. The term "protocol" is sometimes applied to the preliminary draft of an agreement between two or more states as to the agreements entered into by negotiators in preparation of a more formal document, such as a treaty or convention.^ (6) Declarations are usually documents containing recipro- cal agreements of states, as in granting equal privileges in matters of trade marks, copyrights, etc., to the Declarations. . . mi • i n Citizens of each state. The term is used for the documents, (1) which outline the policy or course of con- duct which one or more states propose to pursue under certain circumstances, (2) which enunciate the principles adopted, or (3) which set forth the reasons justifying a given act. (c) The terms "memoranda" and "memoires" are used to indicate the documents in which the principles entering an international discussion are set forth, together Memoranda. . . with the probable conclusions. These docu- ments may be considered by the proper authorities, e.g. may be sent to the foreign secretaries of the states concerned, and contre-memoires may be submitted. These documents are generally unsigned. {d) Besides the above, there may be in diplomatic negotia- •For various protocols, see Treaties of U. S., 824, 1148; 30 U. S. Sts. at Large, 1593; ibid., 1596. For the protocol between the United States and Spain as to terms of peace, see 30 U. S. Sts. at Large, 1742. Letters and notes. TREATIES 205 tions letters between the agents, in which the use of the first or second person is common, and notes which are more formal and usually in the third person. These letters, if made public, may have much force, as in the case of the collective note of the powers commonly called the "Andrassy note," by which the Powers of Europe in 1875 held that in Turkey "reform must be adopted to put a stop to a disastrous and bloody contest." (e) When representatives of states not properly commis- sioned for the purpose, or exceeding the limits of their au- thority, enter into agreements, their acts are Sponsions. n l • j • • r-t ^ called treaties sub spe rati or sponsions. Such agreements require ratification by the state. This ratification may be explicit in the usual form, or tacit, when the state governs its actions by the agreements. (/) Of the nature of treaties are cartels, which are agree- ments made between belligerents, usually mutual, regulating intercourse during war. These may apply to exchange of prisoners, postal and telegraphic communications, customs, and similar subjects. These docu- ments are less formal than conventions, usually negotiated by agents specially authorized, and do not require ratification, though fully obligatory upon the states parties to the agree- ment.^ Here also may be named the suspension of arms, which the chief of an army or navy may enter into as an agreement for the regulation or cessation of hostilities within a limited area for a short time and for military ends. When such agreements are for the cessation of hostilities in general, or for a considerable time, they receive the name of armis- tices or truces. These are sometimes called conventions with the enemy. These last do not imply international negotia- tion. » Wheat. D., §§ 254, 344. 206 INTERNATIONAL LAW (g) The term "compromis" is now generally used for the agreement by which, in a dispute to be presented to a court of arbitration, the issue is defined, the time ompromis. ^^^ manner of appointing the arbitrators, the procedure, etc., are set forth. Note. Agreements concluded between states and private indi\dduals or corporations have not an international char- acter, and do not come within the domain of international law. Such agreements may include: — 1. Contracts with individuals or corporations for a loan, colonization, developing a country, etc. 2. Agreements between princes in regard to succession, etc. 3. Concordats signed by the Pope as such and not as a secular prince. 85. The Negotiation of Treaties The negotiation of treaties includes, (a) the international agreement upon the terms, (6) the drafting of the terms, (c) the signing, and (d) the ratification. (a) The first step preparatory to the agreement is the sub- mission of proof that the parties entering into the negotia- The agreement ^^^'^ ^^^ ^^^ qualified and authorized. ^ As upon terms of the sovereigns themselves do not now in person the treaty. negotiate treaties,^ it is customaiy for those who are to conduct such negotiations to be authorized by a com- mission generally known as full power. The negotiators first present and exchange their full powers. They may be some- what limited in their action by instructions.^ Often it is the dijilomatic representatives who negotiate with the proper authorities of the state to which they are accredited. The negotiations are sometimes written, sometimes verbal, and are ' Butler, "Treaty-making Power," pp. 4 ff. ' The Holy Alliance of 1815 was signed by three sovereigns. 3 See Sec. 76. TREATIES 207 preserved in the proems verbaux. In case the negotiations are for any reason discontinued before the drafting of the terms of the agreement, it is customary to state the circumstances leading to this act in a protocol signed by all the negotia- tors. Sometimes this takes the name of a manifest or of a declaration. (6) The draft of the treaty is usually, though not neces- sarily, of a uniform style. Many early treaties opened with The draft ^^ invocation to Deity. This is not the custom usually of a followed by the United States, however. The uniform style, ggj^gj-g^j form is to Specify the sovereigns of the contracting states, the purpose of the agreement, and the names of the negotiators, with their powers. This constitutes the preamble. Then follow in separate articles the agree- ments entered into forming the body of the treaty, the con- ditions of ratification, the number of copies, the place of the negotiation, the signatures and seals of the negotiators. Sometimes other articles or declarations ^ are annexed or added, with a view to defining, explaining, or limiting words or clauses used in the body of the treaty. Ordinarily the same formula is followed as in the portion of the main treaty subsequent to the body in setting forth conditions of ratifica- tion, etc. The order of the states parties to the treaty, and of the agents negotiating it, varies in the different copies. The copy transmitted to a given state party to the treaty contains the name of that state and of its agents in the first place, so far as possible. Each negotiator signs in the first place the copy of the treaty to be transmitted to his own state, and if the agents of more than one other state sign the treaty, they sign in alphabetical order of their states, in the original language of the convention. This is known as the principle of the alternat, ^ The Declaration of Paris, 1856. 208 INTERNATIONAL LAW The following is the beginning and end of the Treaty of Washington relative to the Alabama Claims, etc., including the President's proclamation thereof: ^ — "BY THE PRESIDENT OF THE UNITED STATES OF AMERICA "A Proclamation "Whereas a treaty, between the United States of America and her Majesty the Queen of the United Kingdom of Great Britain and Ireland, concerning the settlement of all causes of difference between the two countries, was concluded and signed at Washington by the high commissioners and plenipo- tentiaries of the respective governments on the eighth day of May last; which treaty is word for word, as follows: — "'The United States of America and her Britannic Majesty, being desirous to provide for an amicable settlement of all causes of difference between the two countries, have for that purpose appointed their respective plenipotentiaries, that is to say: The President of the United States has appointed, on the part of the United States, as Commissioners in a Joint High Commission and Plenipotentiaries [here follow the names]; and her Britannic Majesty, on her part, has appointed as her High Commissioners and Plenipotentiaries [here follow the names]. "'And the said plenipotentiaries, after having exchanged their full powers, which were found to be in due and proper form, have agreed to and concluded the following articles: — [Here follow 42 articles.] '"Article XLIII "'The present treaty shall be duly ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof, and by her Britannic Majesty; and the ratifications shall be exchanged either at Washington or at London within six months from the date hereof, or earlier if possible. ' 17 U. S. Sts. at Large, 863; Treaties of U. S., 478. TREATIES 209 "'In faith whereof, we, the respective plenipotentiaries, have signed this treaty and have hereunto affixed our seals. "'Done in duplicate at Washington the eighth day of May, in the year of our Lord one thousand eight hundred and seventy-one.' [Here follow the seals and signatures.] "And whereas the said treaty has been duly ratified on both parts, and the respective ratifications of the same were ex- changed in the city of London, on the seventeenth day of June, 1871, by Robert C. Schenck, Envoy Extraordinary and Minister Plenipotentiary of the United States, and Earl Gran- ville, her Majesty's Principal Secretary of State for Foreign Affairs, on the part of their respective governments: "Now, therefore, be it known that I, Ulysses S. Grant, President of the United States of America, have caused the said treaty to be made public, to the end that the same, and every clause and article thereof, may be observed and fulfilled with good faith by the United States and the citizens thereof. "In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. "Done at the City of Washington this fourth day of July, in the year of our Lord one thousand eight hundred and seventy- one, and of the Independence of the United States the ninety- sixth. «U. S. Grant. "By the President: " Hamilton Fish, Secretary of State." There is no diplomatic language, though various languages have from time to time been more commonly used. In early treaties and diplomatic works Latin was very common, and it was used so late as the Treaty of Utrecht in 1713. Spanish prevailed for some years toward the end of the fifteenth cen- tury. From the days of Louis XIV, when the French par- ticularly became the court language, it has been widely used in congresses and treaties. Frequently, when used, there have been inserted in the treaties provisions that the use of 210 INTERNATIONAL LAW French should not be taken as a precedent. The French lan- guage is, however, commonly employed in congresses in which a considerable number of different languages are represented, and the original forms of the treaties are drawn in French. During the nineteenth century this has been very common, as in the acts of the Congress of Vienna, 1815; Aix-la-Chapelle, 1818; Paris, 1856; Berlin, 1878 and 1885; Brussels, 1890. Even other states of Europe, in making treaties with Asiatic and African states, have agreed upon French as the authori- tative text for both states. In some of the treaties of the United States and the Ottoman Porte, the French language is used. It is customary, when the treaty is between states having different official languages, to arrange for versions in both languages in parallel columns, placing at the left the version in the language of the state to which the treaty is to be trans- mitted. (c) In signing the treaty each representative signs and seals in the first place the copy to be sent to his own state. The order of the other signatures may be by Signatures j^^ ^^ -^^ ^^ie alphabetical order of the states and seals. ^ represented. The signing of the treaty indicates the completion of the agreement between those commissioned in behalf of the states concerned. This does not irrevocably bind the states which the signers represent, though the factthat its representative has signed a treaty is a reason for ratifi- cation which cannot be set aside except for most weighty cause. (d) Ratification is the acceptance by the state of the terms of the treaty which has been agreed upon by its legally qualified agent. The exchange of ratifications is usually Ratification, or ^ • i i >. 226 INTERNATIONAL LAW 92. Retorsion. Retorsion is a species of retaliation in kind.^ Retorsion may not consist in acts precisely identical with those which have given offense, though it is held that the acts should be analogous. The offense in consequence of which measures of retorsion are taken may be an act entirely legitimate and desirable from the point of view of the offending state. Another state may, however, consider the act as discourteous, injurious, discriminating, or unduly severe. In recent years commercial retorsion has become a very important means of retaliation which, bearing heavily upon modern communities, may lead to a speedy settlement of difficulties. The tariff wars of recent years show the effectiveness of commercial retorsion, e.g. the measures in consequence of the tariff dis- agreements between France and Switzerland in 1892. These measures of retorsion should always be within the bounds of municipal and international law. 93. Reprisals Reprisals are acts of a state performed with a view to obtaining redress for injuries. The injuries leading to re- prisals may be either to the state or to a citizen, and the acts of reprisal may fall upon the offending state or upon its citi- zens either in goods or person. The general range of acts of reprisal may be by (1) the seizure and confiscation of pub- lic property or private property ,2 and (2) the restraint of inter- course, political, commercial, or general. In extreme cases, acts of violence upon persons belonging to one state, when in a foreign state, have led to similar acts, upon the part of the state whose subjects are injured, against the subjects of the foreign state. This practice is looked upon with disfavor, • Pra(lior-Fod(5r6, 2634-2636. ' For the rules in regard to the collection of contract debts, see Sec. 99 (c), p. 237. AMICABLE SETTLEMENT OF DISPUTES 227 though it might be sanctioned by extremest necessity. Acts of retaliation for the sake of revenge are generally dis- countenanced. 94. Embargo Embargo consists in the detention of ships and goods which are within the ports of the state resorting to this means of reprisal. It may be (1) civil or pacific embargo, the detention of its own ships, as by the act of the United States Congress in 1807, to avoid risk on account of the Berlin Decree of Napoleon, 1806, and the British Orders in Council, 1807; or (2) hostile, the detention of the goods and ships of another state. It was formerly the custom to detain within the ports of a given state the ships of the state upon which it desired to make reprisals, and if the relations between the states led to war to confiscate such ships. Hostile em- bargo may now be said to be looked upon with disfavor, and a contrary policy is generally adopted, by which merchant vessels may be allowed a certain time in which to load and depart even after the outbreak of hostilities. By the procla- mation of the President of the United States declaring that war with Spain had existed since April 21, 1898, it was also declared that "Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places." ^ Spain, by the royal decree of April 23, 1898, declared "A term of five days from the date of the publication of the present royal decree in the Madrid Gazette is allowed to all United States ships anchored in Spanish ports, during which they are at liberty to depart." ^ The Hague Convention of 1907 relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities, while not fixing the number of days of grace stated that "it is de- ' 30 U. S. Sts. at Large, 1770. ' Proclamations and Decrees, p. 93. 228 INTERNATIONAL LAW sirable that it should be allowed to depart freely, either imme- diately or after a reasonable number of days of grace, and to proceed, after being furnished with a pass, direct to its port of destination or any other port indicated." ^ 95. Pacific Blockade Pacific blockade is a form of reprisal or constraint which consists in the blockading by one or more states of certain ports of another state without declaring or making war upon that state. In the conduct of such blockades practice has varied greatly. In general, however, the vessels of states not parties to the blockade are not subject to seizure. Such vessels may be visited by a ship of the blockading sc^uadron in order to obtain proof of identity. Whether vessels under foreign flags are liable to other inconveniences or to any penalties is not defined by practice or opinion of text writers. ''The Institute of International Law," in 1887, provided that pacific blockade should be effective against the vessels of the blockaded party only. This position seemed to be one which could be generally accepted. From the nature of pacific blockade as a measure short of war, its consequences should be confined only to the parties concerned. The pacific block- ade of Greece in 1886 extended only to vessels flying the Greek flag,2 but the admirals of the Great Powers in the pacific blockade of Crete in 1897 endeavored to establish the right to control other than Greek vessels if they carried merchandise for the Greek troops or for the interior of the island. As no case arose to test the claim, this question cannot be regarded as settled. The provisions of the pacific blockade of Crete in 1897 were as follows: — "The blockade will be general for all ships under the Greek flag. « Appendix, p. 424. » Pari. Papers, Greece, No. 4, 1886. AMICABLE SETTLEMENT OF DISPUTES 229 " Ships of the six powers or neutral may enter into the ports occupied by the powers and land their merchandise, but only if it is not for the Greek troops or the interior of the island. These ships may be visited by the ships of the international fleets. "The limits of the blockade are comprised between 23° 24' and 26° 30' longitude east of Greenwich, and 35° 48' and 34° 45' north latitude." ^ The Secretary of State of the United States, in acknowl- edging the receipt of the notification of the action of the powers, said: "I confine myself to taking note of the com- munication, not conceding the right to make such a blockade as that referred to in your communication, and reserving the consideration of all international rights and of any question which may in any way affect the commerce or interests of the United States." ^ The weight of authority supports the position of the United States. (a) The first attempt to establish a blockade without re- sorting to war was in 1827, when Great Britain, France, Instances of ^^^ Russia blockaded the coasts of Greece with pacific a view to putting pressure upon the Sultan, its nommal ruler. Since that time there have been pacific blockades varying in nature: blockade of the Tagus by France, 1831; New Granada by England, 1836; Mexico by France, 1838; La Plata by France, 1838 to 1840; La Plata by France and England, 1845 to 1848; Greece by England, 1850; Formosa by France, 1884; Greece by Great Britain, Germany, Austria, Italy, and Russia, 1886; Zanzibar by Portugal, 1888; Crete by Great Britain, Germany, Austria, France, Italy, and Russia, 1897, and Venezuela by Great Britain, Germany and Italy, 1902. This blockade of 1902 was at first announced as a pacific blockade, and when 1 The London Gazette, March 19, 1897. * U. S. For. Rel. 1897, p. 255. 230 INTERNATIONAL LAW third states raised objection was transformed into a war blockade.^ (6) From these instances it may be deduced (1) that pacific blockade is a legitimate means of constraint short of war, _ , ... (2) that those states parties to the blockade are tude toward pa- Iwund by its conscqucnccs, (3) that as a matter cific blockade, ^j policy it may be advisable to resort to pacific l)lockade in order to avoid the more serious resort to war, antl (4) that states not parties to the pacific blockade are in no way bound to observe it, though their ships cannot complain because they are required to establish their identity in the ordinary manner. These conclusions seem to be in harmony with the spirit of the Hague conventions limiting the effect of hostilities to the period of the war subsequent to a declaration. To determine the nationality of a ship the so-called "right of approach" may be exercised. » U. S. For. Rel. 1903, pp. 417 ff. PART FOUR INTERNATIONAL LAW OF WAR OUTLINE OF CHAPTER XVI WAR 96. DEFINITION OF WAR. 97. COMMENCEMENT OF WAR. (a) Historical practice. (b) Rules of the Hague Conference. (c) Civil war. 98. DECLARATION AND NOTIFICATION OF WAR. (a) Historical practice. (b) Provisions of the Hague Conference. 99. OBJECT OF WAR. (a) From the political point of view. (b) From the military point of view. (c) Limitation by the Hague Conference. 100. GENERAL EFFECTS OF WAR. (a) The general and immediate effects. (1) To suspend all non-hostile intercourse between the states. (2) To suspend all the ordinary non-hostile intercourse be- tween the citizens of the states. "" (3) To introduce new principles in intercourse with other states. (4) To abrogate or suspend certain treaties. (b) The Hague Convention with respect to the Laws and Customs of War on Land. 232 CHAPTER XVI WAR 96. Definition of War Gentilis, one of the earliest writers on the laws of war, defined war in 1588 as "a properly conducted contest of armed public forces." ^ The nature of such contests varied with circumstances, and wars were, accordingly, classified by early writers as public, private, mixed, etc., distinctions that now have little more than historical value.^ Wars are now sometimes classified as international and civil. 97. Commencement of War It is now assumed that peace is the normal relation of states.^ When these relations become strained it is cus- tomary for one or both of the states to indicate this condition by discontinuing some of the means of peaceful intercom- munication, or by some act short of war. The withdrawal of a diplomatic representative, an embargo, or any similar action does not mark the commencement of war. (a) War formerly commenced with the first act of hostili- ties, unless a declaration fixed an earlier date, and in case of a declaration subsequent to the first act of hostilities, war dated from the first act. A proclamation of the blockade • "De Jure Belli," I, 11, "Bellum est publicorum armorum justa con- tentio"; Instr. U. S. Armies, § 20. ' Halleck, Ch. XVI; Calvo, § 1866 ff. ' The United States wars of the nineteenth centiiry were, June, 1812- Feb., 1815; March, 1846-Feb., 1848; April, 1861-April, 1865; April, 1898- August, 1898. 233 234 liNTERNATIONAL LAW of Cuban ports preceded the declaration of war between .Spain and the United States in 1898.i Similarly, hostilities were begun before the declaration of war between Historical Qj-^jj^^ ^nd Japan in 1894,2 and between Russia practice. ^^^ ^^^^^^ .^ ^^^^ Indeed, few of the wars of the last two centuries have been declared before the out- break of hostilities, and many have not been declared formally at all. In the case of the war in South Africa, early in Octo- ber, 1899, the government of the Transvaal requested the government of Great Britain to give "an immediate and affirmative answer" not later than 5 p.m. on October 11th to certain questions in the accompanying ultimatum as to settling differences by arbitration, the withdrawal of British troops, etc., stating that if the answer was not satisfactory, it would be regarded as "a formal declaration of war." The government of Great Britain replied that the conditions demanded were such that the government deemed it impos- sible to discuss them. Hostilities immediately followed. (6) The present rules in regard to the commencement of war as agreed upon at The Hague in 1907 provide that hos- ,,. tilities between the contracting parties "must Rules of the "^ ^ . Hague not commence without previous and explicit Conference. vvarning, in the form either of a reasoned decla- ration of war or of an ultimatum with conditional declaration of war." (c) Civil war naturally is not preceded by a declaration, but exists from the time of the recognition of the belligerency by an outside state, or from the date when the Civil war. , , , • . r • j. parent state engages m some act or war against the insurgent party .^ In the case of the Civil War in the United States, the proclamation of blockade of the Southern » 30 U. S. Sts. at Large, 1769, 1776. ' Takahashi, Chino-Japanese, 42 et seq. • Prize Cases, 2 Black, U. S. 635; Scott, 475. WAR 235 ports by President Lincoln was held to be sufficient ac- knowledgment of a state of war.^ 98, Declaration and Notification of War (a) In ancient times wars between states were entered upon with great formality. A herald whose person was inviolate brought the challenge, or formal decla- Historicai ration, which received reply with due formality. practice. ' . , , *' *' At the beginning of the eighteenth century this practice had become unusual, and in the days of Vattel (1714- 1767) the theory of the necessity of a formal declaration was set aside. It was, however, maintained that a proclamation or manifesto should be issued for the information of the sub- jects of the states parties to the war, and for the informa- tion of neutrals. The practice became general, and was regarded as obligatory .2 Provisions of ^^) ^^ ^^^^ ^^^ Hague Convention relative the Hague to the Opening of Hostilities provided as to Conference. ^^^ declaration or ultimatum, and as to (2) notification: "Article I. The contracting powers recognize that hos- tilities between themselves must not commence without pre- vious and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declara- tion of war." " Art. II. The existence of a state of war must be noti- fied to the neutral powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral powers, nevertheless, cannot rely on the absence of notification if it is clearly estabhshed that they were in fact aware of the existence of a state of war." ^ * Takahashi, Chino-Japanese, 38 et seq. * Calvo, § 1910. » Scott, "Conferences," p. 199. 236 INTERNATIONAL LAW Such requirements are reasonable in view of the changes which a state of war brings about in the relations of the par- ties concerned, and of neutrals. The declarations usually specify the date from which the war begins, and hence have weight in determining the nature of acts prior to the decla- ration, as the legal effects of war depend on the declaration. The constitution of a state, written or unwritten, deter- mine'S in what hands the right to declare war shall rest, e.g. in the United States in Congress. By act of the United States Congress of April 25, 1898,^ it was declared: — "First, That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, Anno Domini eighteen hundred and ninety eight, in- cluding said day, between the United States of America and the Kingdom of Spain. " Second, That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the mihtia of the several States, to such extent as may be necessary to carry this Act into effect." 2 99. Object of War (a) The object of war may be considered from two points of \new, the political and the military. International law From the Cannot determine the limits of just objects^ for political point which a State may engage in war. Politically the objects have covered a wide range, though there is a growing tendency to limit the number of objects for which a state may go to war. It is generally held that self-preservation is a proper object, but as each state must decide for itself what threatens its existence and well-being, ' 30 U. S. Sis. at Large, 364. ' The French declaration of war against Prussia in 1870 is eiven in 2 Lornmer, 44J. ^ WAR 237 even this object may be very broadly interpreted. History shows that it has not been difficult from the political point of view to find an object of war when the inclination was present in the state. The nominal are often not the real objects, and the changing conditions during the progress of the war may make the final objects quite different from the initial objects. The simple cost of carrying on hostilities sometimes changes the conditions upon which peace can be made. The classification of causes and objects formerly made has little weight in determining whether a state will enter upon war. The questions of policy and conformity to current standards are the main ones at the present time. (6) The object of war in the military sense *' is a renewed state of peace," 1 or as stated in the English manual, "to From the procure the complete submission of the enemy military point at the earliest possible period with the least of view. possible expenditure of men and money." The "Institute of International Law," Oxford session of 1880, gave as a general principle that the only legitimate end that a state may have in war is to weaken the mili- tary strength of the enemy. In general the ultimate ob- ject of war is to establish a permanent peace. The means naturally accord with that end and must under present regulations be humane. (c) The Hague Conference of 1907 endeavored to remove Limitation by ^^^ ^^ ^^^ frequent objccts of war by limiting the Hague by convention the employment of force for Conference. ^^^ recovery of contract debts as follows: "Article 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 Govern- ment of another country as being due to its nationals. "This undertaking is, however, not apphcable when the * Inst. U. S. Armies, § 29 ; Appendix, p. 355. 238 INTERNATIONAL LAW debtor State refuses or neglects to reply to an offer of arbitra- tion, or, after accepting the offer, prevents any 'Compromis' from being agreed on, or, after the arbitration, fails to submit to the award/' i 100. General Effects of War (a) The general and immediate effects of war are: — (1) To suspend all non-hostile intercourse between the The general states parties to the war. and immediate (2) To suspend the Ordinary non-hostile in- effects. tercourse between the citizens of the states parties to the war. (3) To introduce new principles in the intercourse of the states parties to the war with third states. These impose new duties upon neutrals and allies. (4) To abrogate or suspend certain treaties: — (a) To abrogate those treaties which can have force only in time of peace, e.g. of amity, commerce, naviga- tion, etc. (b) To suspend those treaties which are permanent and naturally revive at the end of the war, e.g. of bound- aries, public debts, etc, (c) To bring into operation treaties concerning the conduct of hostilities. (6) The Convention with Respect to the Laws and Cus- _ ^. toms of War on Land, signed at The Hague on Convention on ^ o o the Laws and Octobcr 18, 1907, in a measure supplants all Customs of other codifications and rules upon this subject. In cases for which the Convention provides, the signatory powers are thereby bound; "in cases not included in the Regulations adopted by them the inhabitants and the belligerents remain under the protec- ' Scott, "Confrroncoa," p. 104. This Convention introduces a modified form of the " Dnigo Doctrine." For statement of which, see U. S. For. Rel. 190:5, p. 1. WAR 239 tion and the rule of the principles of international law as they result from the usages estabUshed among civilized peoples, from the laws of humanity, and the dictates of the public conscience." i The provisions are to become binding upon the contracting states, and are to be made the regulations for their armed land forces. Non-signatory states may adhere to the Con- vention upon giving proper notification.^ This Convention has been so widely adopted that it may be said to be generally binding for the subjects of which it treats.^ Earlier codes and orders must be consulted for subjects not contained in the Hague Convention.* ' Preliminary Declaration, Appendix, p. 409. ' Ibid., Appendix, p. 410. ^ List of Signatory States, Appendix, p. 389. »See Appendices. OUTLINE OF CHAPTER XVII STATUS OF PERSONS IN WAR 101. PERSONS AFFECTED BY WAR. (a) Subjects of enemy states. (b) Subjects of neutral states. (c) Combatants and noncombatants. 102. COMBATANTS. (a) Status of combatants allowed to two classes engaging in de- fensive hostilities. (b) Status of combatants not allowable for those engaging in ag- gressive hostilities without state authorization. 103. NONCOMBATANTS. (a) Status of noncombatants within a territory under control of an enemy. (b) Status of subjects of one belligerent state within the jurisdiction. of the other. 240 CHAPTER XVII STATUS OF PERSONS IN WAR 101. Persons Affected by War (a) By the strict theory of war "the subjects of enemy states are enemies." ^ The treatment of the subjects of enemy states is not, however, determined by the allegiance alone, but in part by conduct and in part by domicile of the subject. (6) The subjects of neutral states are affected by their relations to the hostile states as established by their own government, as determined by their conduct, and as deter- mined by their domicile. (c) By conduct persons are divided into combatants and noncombatants, according as they do or do not participate in the hostilities. The status of such persons may be further modified by domicile or by political allegiance. 102. Combatants Combatants in the full sense are the regularly authorized military and naval forces of the states. They are liable to the risks and entitled to the immunities of warfare, and if captured become prisoners of war. The Hague Convention of 1907 respecting the Laws and Customs of War on Land, which was a revision of that of 1899, provided that > Hall, p. 390; Instr. U. S. Armies, §§ 20, 21, 22; Appendix, pp. 353, 354. 241 242 INTERNATIONAL LAW "Article I. The laws, rights, and duties of war apply not only to armies, but also to miUtia and volunteer corps fulfilling the follo^ving 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 arras 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 denomina- tion 'army.'" ^ (a) The status of combatants is also allowed to two classes which engage in defensive hostilities: — (1) The officers and crew of a merchant vessel which defends itself by force are liable to capture as prisoners of war. (2) With regard to levies en masse much difference of opinion existed. Article 10 of the Declaration of Brus- sels, 1874, was adopted at the Hague Conferences in 1899 and 1907, and may be considered as representing a generally accepted position, namely, " The population of a non-occupied territory, who, on the approach of the enemy, of their owti accord take up arms to resist the invading troops, without having had time to organize themselves in conformity with Article 1 [providing for responsible leader, uniform, etc.], shall be considered as belligerents if they carry arms openly and if they respect the laws and customs of war." 2 (b) The status of combatants is not allowable for those who, without state authorization, engage in aggressive hos- tilities. ' Appendix, p. 411. » See Appendix, p. 411. STATUS OF PERSONS IN WAR 243 (1) When in the time of war the officers and crew of a merchant vessel attack another merchant vessel, they are liable to punishment according to the nature of their acts, and the state to which they owe allegiance is only indirectly responsible, nor can they claim its protec- tion. (2) When bands of men without state authorization and control, such as guerrilla troops or private persons, engage in offensive hostilities, they are hable to the same treatment as above mentioned. (3) Spies are those who, acting secretly or under false pretenses, collect or seek to collect information in the districts occupied by the enemy, with the inten- tion of communicating it to the opposing force.^ Such agents are not forbidden, but are hable to such treatment as the laws of the capturing army may prescribe. This may be death by hanging, though a spy is always entitled to a trial. The office of spy is not necessarily dishonor- able. "Soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain in- formation are not considered spies. Similarly, the fol- lowing are not considered spies: soldiers and civiHans, carrying out their mission openly, charged with the dehvery 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 dis- patches, and generally to maintain communication be- tween the various parts of an army or a territory." ^ 103. Noncombatants Noncombatants include those who do not participate in the hostilities. In practice this status is generally conceded » Appendix, pp. 367, 416. ' Appendix, p. 416. 244 INTERNATIONAL LAW to women, children, clergy, scientists, artists, professional men, laborers, etc., who make no resistance, whether subjects of the state or not. These are, of course, liable to the hard- ships consequent upon war. (rt) When the armed forces of one state obtain authority over territory previously occupied by the status of non- j t ^ i ^^ ^ combatants Other statc, the noncombatant population is within a terri- fj.^>g £j.qj^ g^jj yioleuce or Constraint other than tory under . i i m-, -^ mi control of an that required by military necessity, ihey enemy. ^yc, liable, however, to the burdens imposed by civilized warfare. (6) Subjects of one of the belligerent states sojourning within the jurisdiction of the other were in early times _ ^ , detained as prisoners. While Grotius (1625) subjects of one allows this ou the ground of weakening the belligerent forces of the enemy ,^ and while Ayala had state within the i . t~. i i jurisdiction of earlier (1597) sanctioned it,^ Bynkershoek, writ- the other. jj^g jj^ 1737^ mentions it as a right seldom used. The detention of English tourists by Napoleon in 1803 was not in accord with modern usage. During the eighteenth century, the custom was to secure, by treaty stipulation, a fixed time after the outbreak of hostilities during which enemy subjects might withdraw. While similar provisions are inserted in many treaties of the nineteenth century, the practice may be said to be so well established that, in absence of treaty stipulations, a reasonable time would be allowed for withdrawal. A large number of treaties of the nine- teenth century have provisions to the effect of Article XXVI of the treaty between the United States and Great Britain of 1794: "The merchants and others of each of the two nations residing in the dominions of the other shall have the privilege of remaining and continuing their trade, so long "'DeJureBelli,"III, ix, 4. ' "De Jure et Officiis Bellicis," I, v, 25. STATUS OF PERSONS IN WAR 245 as they live peaceably and commit no offense against the laws; and in case their conduct should render them sus- pected, and their respective Governments should think proper to order them to remove, the term of twelve months from the publication of the order shall be allowed them for that purpose, to remove with their families, effects, and property." This custom of allowing enemy subjects to remain during good behavior has become common, but can hardly be called a rule of international law. Persons thus allowed to remain are generally treated as neutrals, though in the case of Alcinous V. Nigreu i it was held that an enemy subject, resid- ing in England without a license, could not maintain an action for breach of contract, though the contract which had been entered into before the war was valid and might be enforced when peace was restored. ' 4 Ellis and Blackburn's Reports, 217. OUTLINE OF CHAPTER XVIII STATUS OF PROPERTY ON LAND 104. PUBLIC PROPERTY OF THE ENEMY. (a) Early practice. (b) Provisions of the Hague Conference. 105. REAL PROPERTY OF ENEMY SUBJECTS. 106. PERSONAL PROPERTY OF ENEMY SUBJECTS. (a) Movable property now exempted as far as possible. (1) Stock in the public debt wholly exempt. (b) Contributions. (c) Requisitions. (d) Foraging. (e) Booty. 246 CHAPTER XVIII STATUS OF PROPERTY ON LAND 104. Public Property of the Enemy (a) Formerly the public property of the enemy, whatever its nature, was regarded as hostile, and liable to seizure. Practice of modern times has gradually become less extreme, and the attitude of the powers in restoring the works of art which Napoleon had brought to Paris shows the sentiment early in the nineteenth century. The practice in regard to public property of the enemy has now become fairly defined. The public property of one belligerent state within the territory of the other at the outbreak of war, if real prop- erty, may be administered during the war for the benefit of the local state; if movable, it is liable to confiscation. Works of art, scientific and educational property, and the like are, however, exempt.^ The Treaty of August 20, 1890, between Great Britain and France, exempts public vessels employed in the postal service. (6) In case one belligerent by military occupation acquires Provisions of authority over territory formerly within the the Hague jurisdiction of the other, the rules of the Hague Conference. Conference of 1907 provide as foUows:— " Art. 53. An army of occupation can only take possession of the cash, funds, and realizable securities belonging strictly to the State, depots of arms, means of transport, stores and 1 Appendix, pp. 356, 416, 419. 247 248 INTERNATIONAL LAW supplies, and, generally, all movable property of the State which may be used for military operations. " All appUances, 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, depots of arms and, generally, all kinds of war material, even though be- longing to private persons, may be seized, but they must be re- stored at the conclusion of peace, and indemnities paid for them. "Art. 54. Submarine cables connecting an occupied terri- tory 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 administrator and usufructuary of public buildings, real estate, forests, and agricultural works belonging to the hostile State, and situated in the occupied country. It must protect the capital of these properties, and administer it according to the rules of usufruct. "Art. 56. The property of communes, that of religious, charitable, and educational institutions, and those of arts and science, even when State property, shall be treated as private property. " All seizure of, and destruction, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should be made the subject of proceedings." ^ 105. Real Property of Enemy Subjects The real property of the subject of one belligerent situated within the territory of the other belligerent was in early times appropriated by the state; later practice administered it (luring the war, for the benefit of the state; but at present it is treated as the real property of any non-hostile foreigner. It is generally conceded that real property of the subjects of either state is unaffected by hostile occupation by the ' Appendix, p. 419. STATUS OF PROPERTY ON LAND 249 forces of the other state, except so far as the necessities of warfare may require.^ 106. Personal Property of Enemy Subjects (a) The movable property of the subject of one of the belUgerent states in the territory of the other belligerent state was until comparatively recent times appropriated. In the case of Brown v. United States,^ in 1814, the Supreme Court held that the "existence of war gave the right to con- fiscate, yet did not of itself and without more, operate as a confiscation of the property of an enemy," though it further held that the court could not condemn such property unless there was a legislative act authorizing the confiscation. Many modern treaties provide that in case of war between the parties to the treaties subjects of each state may remain in the other, "and shall be respected and maintained in the full and undisturbed enjoyment of their personal liberty and property so long as they conduct themselves peaceably and properly, and commit no offense against the laws." ^ The most recent practice has been to exempt personal property of the subject of one belligerent state from all molestation, even though it was within the territory of the other at the outbreak of war. Of course, such property is liable to the taxes, etc., imposed upon others not enemy subjects. In case of hostile occupation, the Hague Conference of 1907 summarized the rules as follows: — "Art. 46. . . . Private property cannot be confiscated. "Art. 47. Pillage is formally prohibited. "Art. 48. If, in the territory occupied, the occupant col- lects the taxes, dues, and tolls imposed for the benefit of the > Appendix, pp. 355, 419. ' 8 Cr., 110. ' See Index U. S. Treaties, "Reciprocal Privileges of Citizens." 250 INTERNATIONAL LAW State, he shall do so, as far as possible, in accordance with the rules in existence and the assessment in force. . . . "Art. 49. If . , . the occupant levies other money taxes in the occupied territory, this can only be for military necessi- ties or the administration of such territory." Articles 50, 51, 52, provide that burdens due to military occupation shall be as equable as possible, and that payment shall be made for requisitions.^ The practice now is to exempt private property so far as possible from the consequences of hostile occupation, and to take it only on the ground of reasonable military necessity .^ With regard to one particular form of property, modern commercial relations as influenced by state credit have been more powerful than theory or country. The stock in the public debt held by an enemy subject is wholly exempt from seizure or sequestration, and practice even demands that interest must be paid to enemy subjects during the continu- ance of the war.^ In case of belligerent occupation, contributions, requisi- tions, and other methods are sometimes resorted to in supply- ing military needs. {b) Contributions are money exactions in excess of taxes.* Contributions should be levied only by the general-in-chief. (c) Requisitions consist in payment in kind of such arti- cles as are of use for the occupying forces, as food, clothes, horses, boats, compulsory labor, etc. Requisitions may be levied by subordinate commanders when there is immediate need, otherwise by superior officers. Such requisitions should not be in excess of need or of the resources of the region. Receipts for the value of both contributions and requisi- tions should be given, in order that subsequent impositions may not })e made without due knowledge, and in order that ' Appendix, p. 418. » Appendix, pp. 355, 418. Lawrence, § 198. • 7 Moore, § 1149. STATUS OF PROPERTY ON LAND 251 the sufferers may obtain due reparation from their own state on the conclusion of peace. In naval warfare ''requisitions for provisions or supplies for the immediate use of the naval force before the place in question" ^ are allowed. Such requisitions may be enforced by bombardment if necessary. Contributions, however, can- not be exacted unless after actual and complete belligerent occupation, as by land forces. Contributions in the form of ransom to escape bombardment cannot be levied, as in such cases occupation is not a fact.^ (d) Foraging is resorted to in cases where lack of time makes it inconvenient to obtain supplies by the usual proc- ess of requisition, and consists in the actual taking of pro- visions for men and animals by the troops themselves. (e) Booty commonly applies to military supplies seized from the enemy. In a more general sense it applies to all property of the enemy which is susceptible of appropriation. Such property passes to the state of the captor, and its dis- position should be determined by that state. '- Scott, " Conferences," p. 262. ^ Ibid. OUTLINE OF CHAPTER XIX STATUS OF PROPERTY AT SEA 107. VESSELS. (a) Status of public vessels of a belligerent. (b) Status of private vessels of a belligerent. (1) Provisions of the Hague Conference. (c) Transfer of enemy vessel to a neutral &ag, 108. GOODS. 109. SUBMARINE AND WIRELESS TELEGRAPH. (a) Treatment of submarine telegraphic cables in time of war. (b) Treatment of wireless telegraph in time of war. 252 CHAPTER XIX STATUS OF PROPERTY AT SEA 107. Vessels Vessels may be classed as public, belonging to the state, and private, belonging to citizens of the state. (a) Public vessels of a belligerent are liable to capture status of public ^^ ^^^ P^''^ ^^ ^^^ except in territorial waters vessels of a of a neutral. The following public vessels are, e hgerent. however, exempt from capture unless they per- form some hostile act: — (1) Cartel ships commissioned for the exchange of prisoners. (2) Vessels engaged exclusively in non-hostile scien- tific work and in exploration. ^ (3) Hospital ships, properly designated and engaged exclusively in the care of the sick and wounded.^ (6) Private vessels of the enemy are liable to capture in status of pri- ^^y P*^^* ^^ ^^^ except in territorial waters of vate vessels of a neutral. The following private vessels when e igerent. innocently employed are, however, exempt from capture: — (1) Cartel ships. (2) Vessels engaged in explorations and scientific work. (3) Hospital ships. (4) Small coast fishing vessels. This exemption is not allowed to deep-sea fishing vessels.^ * Appendix, p. 432. ^ Appendix, p. 426. 'Appendix, p. 432; Paquete Habana, 175 U. S., 677. 253 254 INTERNATIONAL LAW (5) Small boats employed in local trade. (6) Vessels of one of the belligerents in the ports of the other at the outbreak of hostilities were more often allowed a specified time in which to take cargo and de- part. In the war between the United States and Spain, 1898, Spanish vessels were allowed thirty days in which to depart and were to be exempt on homeward voyage. Vessels sailing from Spain for the United States ports before the declaration of war were to be allowed to continue their voyages. ^ Spain allowed vessels of the United States five days in which to depart .^ It did not prohibit the capture of such ships after departure. No provision was made for vessels sailing from the United States for Spanish ports before the declara- tion of war. The Hague Convention of 1907 relative to the Status of Enemy Merchant Ships at the Outbreak of Hostili- Provisions of ^^^^ provided for ''a reasonable number of the Hag:ue days of grace" for vessels in an enemy port on erence. ^^ ^j^^ outbreak of hostilities or entering an enemy port without knowledge of the hostilities. Enemy merchant vessels on the sea ignorant of the out- break of hostilities may be detained without compensa- tion or requisitioned or even destroyed on payment of compensation, due care being taken for security of per- sons and papers on board. These exemptions do not apply to '' merchant ships whose build shows that they are intended for conversion into war-ships." ^ In the Prize Law of Japan, 1894, the following exemp- tions of enemy's vessels are made : — " (1) Boats engaged in coast fisheries. ' Proclamation of April 26, 1898. ' Decree of April 23, 1898. ' Appendix, p. 425. STATUS OF PROPERTY AT SEA 255 " (2) Ships engaged exclusively on a voyage of scien- tific discovery, philanthropy, or religious mission. " (3) Vessels actually engaged in cartel service, and this even when they actually have prisoners on board. " (4) Boats belonging to lighthouses." ^ (c) The transfer of an enemy vessel to a neutral flag was sometimes resorted to as a means of changing the status of private vessels in anticipation of the outbreak enernVve^'ssei ^i War. In order to remove uncertainty and to to a neutral sccure as great freedom of commerce as possible ^^^' without unduly restricting belligerent rights, the Declaration of London of 1909 provides : "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, however, a presumption that the transfer is void if the bill of sale is not on board in case the vessel has lost her belligerent nationahty less than sixty days before the opening of hostihties. Proof to the contrary is admitted. " There is absolute presumption of the vaHdity of a transfer effected more than thirty days before the opening of hostilities if it is absolute, complete, conforms to the laws of the countries concerned, 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 before the transfer. If, however, the vessel lost her belligerent nationahty 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." ^ 108. Goods In general all public goods found upon the seas outside of neutral jurisdiction are liable to capture. Works of art, ' Takahashi, Chino-Japanese, p. 178. * Appendix, p. 460. 256 INTERNATIONAL LAW historical and scientific collections are sometimes held to be exempt, and probably would not be captm-ed. Private hostile property at sea and not under the flag of a neutral is liable to capture unless such property consist of vessels, etc., exempt under § 107, (b). Contraband of war under any flag, outside of neutral territory, and destined for the enemy forces, is liable to cap- ture. Neutral goods in the act of violating an established block- ade may be captured. Previous to the Treaty of Paris in 1856 great diversity in the treatment of maritime commerce prevailed. This treaty provided that: — "The neutral flag covers enemy's goods, with the exception of contraband of war," and ''Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag." ^ Nearly all the important states of the world acceded to these provisions except the United States and Spain, and both of these powers formafly proclaimed that they would observe these provisions in the war of 1898.^ The London Naval Conference of 1908-1909 agreed upon twenty-three articles relating to contraband of war. The Declaration of London, made at the conclusion of this Con- ference, mentions these articles, and defines more fully than hitherto the status of goods upon the sea in time of war.^ 109. Submarine and Wireless Telegraph (a) The position of submarine telegraphic cables has in recent years become of great importance. Such a cable easily becomes an instrument of value in carrying on the ' Appendix, p. 370. ' U. S. Procl.imation, April 26, 1898; Spain, Decree of April 23, 1898. * Appendix, pp. 453^58, STATUS OF PROPERTY AT SEA 257 operations of war. A convention of representatives of the important states of the world met at Paris in 1884, and Submarine agreed upon rules for the protection of sub- teiegraphic marine cables.^ Article XV of this conven- cabies. ^^^^ announces that "It is understood that the stipulations of this convention shall in no wise affect the liberty of action of belligerents." The treatment of submarine cables in time of war as deter- mined by opinions, proclamations, etc., seems to establish that (1) Submarine telegraphic cables between points within the territory of an enemy or between a point within the ter- ritory of one belligerent and a point within the territory of the other belligerent are liable to such treatment as the exigencies of war may determine. (2) Submarine telegraphic cables between a point within the territory of an enemy and a point within the territory of a neutral are liable to interruption within the enemy's juris- diction. (3) Submarine telegraphic cables between a point within the territory of an enemy and a point within the territory of a neutral are liable to interruption outside of neutral juris- diction if the cables are used for war purposes. (4) Submarine telegraphic cables between points within neutral territories are not liable to interruption. Submarine telegraphic cables between a point within the territory of an enemy and a point within the territory of a neutral may be liable to interruption on the high seas if used for war purposes. ^ It is generally held that such interruption » Treaties U. S., p. 1176 ff. => Captain C. H. Stockton, "Submarine Telegraph Cables in Time of War," Proceed. U. S. Naval Inst., Vol. XXIV, p. 451. See discussion, Wilson, "Submarine Telegraphic Cables in their Inter- national Relations," Lectures U. S. Naval War College, 1901; also "The Report of the Inter- Departmental Committee on Cable Communication" to British Parliament, March, 1902. 258 INTERNATIONAL LAW renders the belligerent interrupting the cable service, to some extent liable. The Convention of The Hague in 1907 respecting the Cus- toms and Laws of War on Land provided : "Art. 54. Submarine cables connecting an occupied ter- ritory 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." (6) The wireless telegraph has also become in recent years an important factor in war. There has been an attempt to extend to wireless communication analogous tei*e^'r\ rules to those applied to submarine cables, but these are not sufficient in all cases. ^ Under the Berlin Convention of November 3, 1906, states assumed a measure of control over wireless telegraphy. A correspond- ing responsibility must be assumed. Russia on April 15, 1904, declared in a note addressed to the foreign states "that the lieutenant of His Imperial Majesty in the Far East has just made the following declaration: "'In case neutral vessels, having on board correspondents who may communicate war news to the enemy by means of improved apparatus not yet provided for by existing conven- tions, should be arrested off the coast of Kwantung or within the zone of operations of the Russian fleet, such correspondents shall be regarded as spies, and the vessels provided with wire- less telegraph apparatus shall be seized as lawful prize.' " Objection was immediately made to the treatment of cor- respondents as spies, but no objection was made to the sei- zure of the wireless apparatus as prize. The Hague Convention of 1907 respecting Rights and Duties of Neutral Powers also provides that: ' Scholz, "Drahtlose Telegraphic und Neutralitat," 43. STATUS OF PROPERTY AT SEA 259 "Art. 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; " (6) 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. . . . "Art. 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 companies or private individuals." ^ While the law in regard to wireless communication is not settled yet certain principles seem to be recognized. 1. A belligerent may regulate or prohibit the use of wire- less telegraph within the area of operations. 2. Unneutral use of wireless telegraph on board a neutral vessel makes the vessel liable to the penalty for unneutral service. 3. The wireless apparatus is similarly liable to penalty, i.e. it may be confiscated or sequestrated. * Appendix, pp. 420, 421 ; see also International Law Situations, U. S. Naval War College, 1907, pp. 138-176. OUTLINE OF CHAPTER XX CONDUCT OF HOSTILITIES 110. BELLIGERENT OCCUPATION. (a) The sovereignty of the occupied territory. (b) The local laws of the invaded state. (c) Public and private property. 111. FORBIDDEN METHODS IN THE CONDUCT OP HOSTILITIES. (a) Declarations of the Hague Conferences on this subject. 112. PRIVATEERS. 113. VOLUNTARY AND AUXILIARY NAVY. (a) The organization of a volunteer navy. (b) The use of aiixiliary vessels. 114. CAPTURE AND RANSOM. (a) The exemption from capture of private property at sea. (b) When capture is complete. (c) The captiu-ed vessel as a prize. (d) Practice in regard to ransom. 115. POSTLIMINIUM. (a) The jus postliminium defined. (b) Restoration of property or territory. (c) Rules as to restoration of ships. 116. PRISONERS AND THEIR TREATMENT. (a) Who may be made prisoners. (b) Refusal of quarter and liability to retaliation. (c) The practice of internment. (d) Employment of prisoners of war. (e) Exchange of prisoners a voluntary act. (f) Release on parole. fg) Treatment of the sick and wounded. (h) Bureau of Information established by the Hague Convention. 117. NON HOSTILE RELATIONS OF BELLIGERENTS. (a) Flag of truce. (b) Cartels. (c) Passports, safe-conducts, and safeguards. (d) License to trade. (e) Suspension of hostilities, truce, armistice. (f) Capitulation. 260 CHAPTER XX 1 CONDUCT OF HOSTILITIES HO. Belligerent Occupation This was defined by the Institute of International Law, at Oxford in 1880, as follows : — " A territory is considered to be occupied, when, as the result of its invasion by an enemy's force, the State to which it be- longs has ceased, in fact, to exercise its ordinary authority within it, and the invading State is alone in a position to main- tain order. The extent and duration of the occupation are de- termined by the limits of space and time within which this state of things exists." In the Hague Convention of 1907 it is stated that: "Art. XLII. 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 estabhshed, and in a position to assert itself. "Art. XLIII. The authority of the legitimate power hav- ing 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, pubUc order and safety, while respecting, unless absolutely prevented, the laws in force in the country." ^ (a) The sovereignty of the occupied territory does not pass to the occupying state, but only the right to exercise ' For the discussion of the laws and customs of war, at the Hague Peace Conference, see Holls, 134 et seq., and Higgins, p. 256 et seq. * See Appendix, pp. 417-418. 261 262 INTERNATIONAL LAW the authority necessary for safety and operations of war. Belligerent occupation was formerly held to carry with it the right to full disposition of whatever ap- The sovereign- » '■ t\ • ,x. • ty of occupied pertained to the territory. During the nme- territory. tecnth ccutury it was given a clearer definition. Belligerent occupation is a fact impairing the usual jurisdic- tion, but it does not transfer sovereignty. (6) In general the civil laws of the mvaded state continue in force in so far as they do not affect the hostile occupant unfavorably. The regular judicial tribunals Local laws of continue to act in cases not affecting the mili- invaded state. » i • • • m tary occupation. Administrative omcers con- tinue to perform their functions in absence of orders to the contrary, though of course purely political officers would be limited in the exercise of their functions; e.g. registrars of marriages, births, and deaths might act as usual, while the authority of a governor might be suspended. There is no doubt that the freedom of the press cannot be claimed, as this might bring grave consequences upon the occupying force. (c) The belligerent occupant may destroy or appropriate public property which may have a hostile purpose, as forts, Public and arms, armories, etc. The occupying force may private cnjoy the income from the public sources, property. Strictly private property should be inviolable, except so far as the necessity of war requires contrary action. "Art. LIII. An army of occupation can only take posses- sion of cash, funds, and reaUzable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property be- longing to the State which may be used for military operations. " All ;ii)pliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of ammunition of war, may be CONDUCT OF HOSTILITIES 263 seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made." ^ The invader is bound to give such measure of protection to the inhabitants of the occupied territory as he is able.^ Belligerent occupation begins when an invaded territory is effectively held by a military force. 111. Forbidden Methods In the conduct of hostilities certain methods of action and certain instruments are generally forbidden. Deceit involving perfidy is forbidden.^ As there are certain conventional agreements held to exist even between enemies, violations of these agreements remove from the violator the protection of the laws of war. On land it is not permitted "(a) To employ poison or poisoned weapons; " (h) To kill or wound treacherously individuals belonging to the hostile nation or army; " (c) To kill or wound an enemy who, having laid down his 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 calculated to cause unnecessary suffering; " (/) To make improper use of a flag of truce, of the national flag, or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention; " (g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the neces- sities of war; " (h) To declare abolished, suspended, or inadmissible in a Court of law the rights and actions of the nationals of the hos- tile party. ' Appendix, p. 419. ' Appendix, pp. 357, 418. ' Appendix, p. 415. 264 INTERNATIONAL LAW "A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war di- rected against their own country, even if they were in the belligerent's service before the commencement of war." ^ "The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden. "A place cannot be bombarded solely because automatic submarine contact mines are anchored off the harbour." 2 Undefended towns may be bombarded if they refuse rea- sonable requisitions for supplies necessary for the immediate use of the naval force but not for failure to make money contributions.^ Provisions for protection of non-military buildings, monuments, etc., have been made.^ While the use of false colors in naval war is not yet for- bidden, when summoning a vessel to lie to, or before firing a gun in action, the national colors must be displayed. The use of the conventional flag of truce, a white flag, or of the hospital flag, red cross on white ground, to cover military operations or supplies is forbidden. ^ Stratagems, such as feigned attacks, ambush, and deceit not involving perfidy are allowed.^ By the declaration of the Hague Conference of 1899, Declarations of " ^^e contracting parties agree to prohibit, for the Hague a term of five years, the launching of projec- tiles and explosives from balloons or by other new methods of a similar nature." ^ The declaration was renewed at the Hague Conference of 1907 to extend to the close of the Third Conference. There was also an agreement in 1899 "to abstain from the use of bullets which expand or flatten easily in the human body." Apppnrlix. p. 415. 2 Scott, " Conferences," p. 260. IhuL, p. 2<)1. 'Appendix, pp. 415-416. ' Appendix, i)p. 415, 430. "Appendix, p. 415. ' llolls, "Hague Peace Conference," 93 et seq., 455. CONDUCT OF HOSTILITIES 265 The Hague Conference of 1899 also declared against the "use of projectiles, the object of which is the diffusion of asphyxiating or deleterious gases." ^ The Hague Convention of 1907 provided: "Art. I. It is forbidden: "1. To lay unanchored automatic contact mines, except when they are so constructed as to become harmless one hour at most after the person who laid them ceases to control them; "2. To lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings ; "3. To use torpedoes which do not become harmless when they have missed their mark. "Art. IL It is forbidden to lay automatic contact mines off the coast and ports of the enemy, with the sole object of intercepting commercial shipping." ^ Retaliation, devastation, refusal of quarter, and other severe methods once resorted to are now generally forbidden, except as punishment for violation of the laws of war. 112. Privateers A private armed vessel owned and manned by private per- sons and under a state commission called a ''letter of marque," ^ is a privateer. This method of carrying on hostilities has gradually met with less and less favor. ^ From the early days of the fifteenth century neutrals were given commissions. Toward the end of the eighteenth century treaties and domestic laws gradually provided against this practice, though letters of marque were offered to foreigners by Mexico in 1845, and by the Confed- erate States in 1861-1865. These were not accepted, how- 'See Holls, "Hague Peace Conference," 93 et seq., 461. The United States did not sign this declaration. ^ Scott, "Conferences," p. 2.'")f. ' For form, see United States v. Baker, 5 Blatchford, 6; 2 Halleck, 1 IT. •See article of Dr. Stark on "Privateering," in Columbia Universil-' Publications (1897), Vol. VIII, No. 3. 266 INTERNATIONAL LAW ever, as such action had then come to be regarded as piracy by many states. Privateering of any kind, as Kent said, "under all the restrictions which have been adopted, is very liable to abuse. The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce. . . . Under the best regulations, the business tends to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity." ^ The granting of let- ters of marque to private persons of either of the belligerent states was attended with grave evils, and, by the Declara- tion of Paris, 1856, " Privateering is, and remains, abolished." 2 This declaration was agreed to by the leading states of the world, with the exception of the United States, Spain, Mexico, Venezuela, and China. In the Spanish-American War of 1898 the United States formally announced that it would not resort to privateering.^ Spain, while maintaining her right to issue letters of marque, declared the intention to organize for the present (May 3, 1898) a service of "auxiliary cruisers of the navy." The importance of the subject of privateering is now largely historical, as it is doubtful whether any civilized state would resort to this method of carrying on maritime war. 113. Voluntary and Auxiliary Navy (a) The relationship of private vessels to the state in time of war, which had been settled by the Declaration of The organiza- Paris in 1856, was again made an issue by the tion of a voiun- act of Prussia in the Franco-German War. By teer navy. ^ decree of July 24, 1870, the owners of vessels were invited to equip them for war and place them under » 1 Kent Com., 97. » Appendix, p. 379. * Proclamations and Decrees (April 25, 1898), p. 77. CONDUCT OF HOSTILITIES 267 the naval discipline. The officers and crews were to be furnished by the owners of the vessels, to wear naval uniform, to sail under the North-German flag, to take oath to the articles of war, and to receive certain premiums for capture or destruction of the enemy's ships. The French authorities complained to the British that this was privateering in dis- guise and a violation of the Declaration of Paris. The law officers of the crown declared that there was a "substantial difference" between such a volunteer navy and a system of privateering, and that the action of Prussia was not contrary to the Declaration of Paris. With this position some authori- ties agree, while others dissent.^ The weight of the act as a precedent is less on account of the fact that no ships of this navy ever put to sea. The similar plan of Greece for a volunteer navy in 1897 was never put into operation .2 Russia, in view of possible hostilities with England in 1877-1878, accepted the offer of certain citizens to incor- porate into the navy during the war, vessels privately pur- chased and owned. Vessels of this character are still num- bered in the ''volunteer fleet," and though privately owned and managed are, since 1886, under the Admiralty. These vessels may easily be converted into cruisers, and are, so far as possible, favored with government service. There seems to be little question as to the propriety of such a relationship between the state and the vessels which may be used in war. (6) Still less open to objection is the plan adopted by Great Britain in 1887 and by the United States in 1892, by The use of which these governments, through agreements auxiliary with certain of their great steamship lines, can vesse s. y^^^^ ^^ purchase at a fixed price specified vessels for use in case of war The construction of such vessels is subject to government approval, and certain subsidies are granted to these companies. In time of war both officers > Hall, p. 527. » R. D. I., IV, 695. 268 INTERNATIONAL LAW and men must belong to the public forces. The plans of Russia, Great Britain, and the United States have met with little criticism.^ The method of conmiissioning auxiliary vessels has given rise to much discussion, particularly during the Russo- Japanese \\'ar in 1905. Certaui states contend that the conversion of a merchant ship into a war ship should not be permitted on the high sea. Other states take the opposite position. The Hague Conference of 1907, as the London Naval Conference of 1908-1909, was unable to reach an agree- ment as to the matter of conversion of merchant ships into war ships on the high seas. There is, however, a general recognition of the necessity for control of a converted ship by direct authority of the state whose flag it bears. Such a ship should also have the external marks of a war ship and should observe the laws and customs of war, and the belligerent making such con- version should immediately make it public .^ 114. Capture and Ransom For more than one hundred years the capture of private property at sea has been regarded with disfavor both on the continent of Europe and in America. (a) The attitude of the United States is shown by the provision in the Treaty with Prussia of 1785, whereby fiaer- chant vessels of either state are to pass "free The exemption from capture and Unmolested." ^ John Quincy Adams, m of private 1823, askcd England, France, and Russia to property at sea. - i ^-i • ^ x r i. exempt hostile private property trom capture. The proposition was not accepted.^ The United States with- held its approval of the Declaration of Paris of 1856 because private property was not exempted from capture. The ' See Act of May 10, 1892; 27 U. S. Sts. at Large, 27. ' For Convention of 1907 see Scott, "Conferences," p. 246. » Treaties of U. S., pp. 905, 906. » 7 Moore, § 1198. CONDUCT OF HOSTILITIES 269 resolution in the United States House of Representatives of Mr. Gillett of Massachusetts, of April 25, 1898, exempting merchant ships from capture, failed to pass, the argument being advanced that Spain had shown a lack of reciprocity. On April 28, 1904, the United States Congress passed a resolution favorable to the exemption of innocent private property at sea. States in practice have attempted to intro- duce the principle of exemption of private property from capture, as at the inception of the Franco-German War in 1870. The American delegates to the Second Peace Confer- ence at The Hague strenuously endeavored, but without suc- cess, to induce the powers represented to exempt private property at sea from capture. Within recent years declarations and regulations have often provided that in case of capture of a merchant vessel its officers and crew might be made prisoners if they were by training or enrollment immediately available for the naval service of the enemy. i Some might be detained as witnesses. Others should be released. Passengers on such vessels should be treated with con- sideration and landed at a convenient port.^ (6) Capture is complete when the hope of recovery has ceased and surrender has taken place. It was long held that twenty-four hours of possession consti- tuted valid capture. In earlier times the cap- ture was complete when the property seized was brought within the firm possession of the captor, as within a camp, fortress, fleet, etc. This rule seems to be more equitable, as the effective possession is a better ground than the lapse of time. The evidence of intention to capture must be shown by some act, such as the placing of a prize crew or prize master on board a captured vessel, though the vessel has been held * Japanese Regulations, 1904, Art. 50. ' Ibid., Art. 69. 270 INTERNATIONAL LAW to be under the control of the captor, even when by reason of the weather no one has been placed on board.^ (c) The captor should bring his prize into port for adju- dication by the court. The title to the prize immediately _ , vests in the state, and is to be disposed of only vessel as by state authority. However, an enemy's ves- a prize. g^j j^^y j^g destroyed when it is no longer sea- worthy, when it impedes unduly the progress of the captur- ing force, when its recapture is threatened by the enemy, when the capturing force is unable to place a sufficient prize crew on board without impairing too much its own efficiency, and when a port of the capturing force to which the prize may be brought is too far away.^ The United States, in the War of 1812, directed its officers to destroy all the enemy's vessels captured, unless very valuable and near a port. This was necessary on account of its lack of forces.^ (d) Sometimes the original owner is allowed to ransom by repurchase property which has been captured. In such Practice in ^^^^ ^^^ transaction is embodied in a ''ransom regard to bill," by which the master agrees that the owner ransom. ^^ ^^^ ^^ ^j^^ captor s, Certain sum of money. A duplicate copy of this bill serves as a safe-conduct for the ransomed vessel so long as there is no departure from its terms in regard to the course to be sailed, the ports to be entered, the time of sailing, etc. The contract is not vio- lated when the ransomed vessel is driven from her course by stress of weather or by circumstances beyond her control. The captor takes from the captured vessel a hostage for the fulfillmont of the ransom contract. Should the captor's vessel be taken with the hostage and ransom bill on board by a vessel of the enemy, the ransom bill is discharged. The captor may bring suit in the courts of the captured vessel's 'The "r;rotiiis," 9 Cr., 368, 370. 'Hcc rules of the "Inst, of Int. Law," 1882; "Annuaire," 1883, p. 221. Sec Sec. 136 (/i) for destruction of neutral prizes. CONDUCT OF HOSTILITIES 271 state usually, though in England the process is by action of the imprisoned hostage to recover his freedom. Some of the European states forbid the practice, others limit it, and others, like the United States, allow ransom. 115. Postliminium (a) The word "postliminium" is derived from the Roman Law idea that a person who had been captured and after- Thejus wards returned within the boundaries of his postliminium own state was restored to all his former rights, for jus postliminium supposes that the captive has never been absent. ^ The attempt to incorporate this fiction into international law has obscured the fact for which it stands. The fact is that the rights of an owner are sus- pended by hostile occupation or capture. These rights revive when the occupation or capture ceases to be effective. The consequences of acts of the enemy involving the capture while in the enemy's possession are not necessarily invali- dated if these acts were within his competence by the laws recognized by civilized states. Thus taxes paid during a hostile occupation or penalties for crime imposed by the invader are held to discharge the obligation as if imposed by the regular authorities. (&) When the restoration of the property or territory which has been in the captor's possession is accomplished by a Restoration of V^^^Y Other than the owner, the service of res- property or toration should receive proper acknowledgment territory. ^^ -^^ Other cases of service. If territory is restored through the cooperation of an ally, the conditions of the alliance will determine the obligation of the original possessor. (c) Most states have definite rules as to the restoration of ships, as well as other property, and the granting of sal- • Justinian, I, xii, 5. 272 INTERNATIONAL LAW vage. The United States provides that when any vessel or other property already captured shall be recaptured, the same not having been condemned as prize before Restoration j-ccapture, the court shall award salvage accord- of ships. ^ j> 1 ing to the circumstances of the case. If the captured property belonged to the United States, salvage and expenses shall be paid from the treasury of the United States; if to persons under the protection of the United States, salvage and expenses shall be paid by them on restora- tion; if to a foreigner, restoration shall be made upon such terms as by the law of his country would be required of a citizen of the United States under like circumstances of recapture; but, if there be no law, it shall be restored upon the payment of such salvage and expenses as the court may order. But these rules are not to contravene any treaty.^ When the original crew of the vessel arise and take the vessel from their captors, it is called a rescue and the crew is not entitled to salvage. When an American ship, on a voyage to London in 1799, was captured by the French and afterward rescued by her crew, the British sailors working their passage to London in the ship were allowed salvage.^ While Prussia was in possession of a portion of France during the Franco-Prussian War of 1870, Prussia contracted with certain persons for a sale of a portion of the public forests in France. The purchasers paid for the privilege of fclHng the forests, but had not completed the cutting of the trees when the Prussian occupation ceased. The purchasers claimed that they had the right to complete their contract, but France maintained that her rights revived when the Prussian occupation ceased, and this position was accepted by Prussia in an additional article to the treaty of peace of December 11, 1871. • U. S. Rev. Sts., § 4652. » The "Two Friends," 1 C. Rob., 271. CONDUCT OF HOSTILITIES 273 116. Prisoners and Their Treatment (a) "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 Who may be wounded, on the field, or in the hospital, by made prisoners. ' ' i j j individual surrender, or capitulation. . . . Citi- zens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such." "All persons who are of particular and singular use and benefit to the hostile army or its government" ^ are liable to capture. Levies en masse are now treated as public enemies. Within recent years persons who by reason of their trades or training may be of special use to the enemy are included among those liable to capture; as the personnel of captured merchantmen. It is now a fundamental principle of law that the treat- ment of a prisoner of war is not to be penal, unless the penalty is imposed for some act committed after his capture. A prisoner of war is subject to such restraint as is necessary for his safe custody. A prisoner of war may be killed while attempting to escape, but if recaptured no punishment other than such confinement as is necessary for his safe keeping is allowable. (6) The refusal of quarter to prisoners of war is not now allowed. Those who have violated the laws of war or the principles of humanity are liable to retaliation retaJUition'* ^^ ^ measure of protective retribution only. It "shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution." ^ ' Instr. U. S. Armies, 50; Appendix, pp. 359, 360. * Instr. U. S. Armies, 28. See Appendix, p. 355. 274 INTERNATIONAL LAW (c) " Prisoners of war may be interned in a town, fortress, camp, or any other locality, and bound not to go beyond certain fixed lines; but they can only be con- n ernmen . ^^^^ ^^ ^^ indispensable measure of safety and only while the circumstances which necessitate the measure continue to exist." ^ (d) "The state may utilize the labor of prisoners of war according to their rank and aptitude, officers excepted. Their tasks shall not be excessive and shall have noth- ^^ ° " ing to do with the military operations. . . . 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." 2 (e) The exchange of prisoners of war is a purely voluntary act on the part of the states at war. This takes place under an agreement called a "cartel." The exchange is usually rank for rank, number for number, value for value, though it is sometimes necessary to agree upon certain conventional values when those of the same rank are not among the captives, as in 1862, when the United States exchanged a captain in the army for six privates, etc. (/) Prisoners of war may be released on parole, which is a promise to do or to refrain from doing certain acts in con- sideration of the grant of freedom in other respects. The punishment for breach of parole may be determined by the court.^ (g) The sick and wounded taken in the field become prisoners of war. Their treatment is now generally deter- mined by the provisions of the Geneva Conven- wouifded. ^'^^^ ^^ ^^OC^. This convention provides for the neutralizing and protection of hospitals, ambu- lances, and those engaged in the care of the sick and wounded, » Appendix, p. 412. » Appendix, p. 412. » See, as to prisoners of war, Appendix, pp. 371, 412. CONDUCT OF HOSTILITIES 275 and for distinctive marks for this service, particularly the Red Cross. 1 (Ji) The Hague Convention provides for a Bureau of Information to answer inquiries, to preserve Bm-eauof property found on battlefields or left by Information. x i >' -^ prisoners, etc.^ 117. Non-hostile Relations of Belligerents (a) In time of war it is necessary that belligerents should have certain relations not strictly hostile. Negotiations are often opened under a flag of truce. In regard Flag of truce. ^^ ^j^jg ^^^ Brussels Code, Article 43, with which Article XXXII of the Hague Convention of 1907 respecting the Laws and Customs of War on Land is in practical accord, provides : — "An individual authorized by one of the belligerents to confer with the other on presenting himself with a white flag, accompanied by a trumpeter (bugler or drummer), or also by a flag-bearer, shall be recognized as the bearer of a flag of truce. He as well as the trumpeter (bugler or drummer), and the flag-bearer, who accompanies him,^ shall have the right of inviolability." He may be accompanied, *' if necessary, by a guide and an interpreter." A commander is not obliged to receive the bearer of a flag of truce, and may take necessary measures to prevent injury on account of his presence. He may be blindfolded, detained at an outpost, or be put under other restrictions. If the bearer take advantage of his privilege to spy upon the enemy, he is liable to treatment as a spy, though he may report such military information as he may acquire without effort on his own part. If a bearer present himself during active operations, firing need not necessarily 'For details, see Geneva Convention, Appendix, p. 426; Holls, "The Hague Peace Conference," 120 et seq. ' Appendix, p. 413. 276 INTERNATIONAL LAW cease, and the bearer is liable to such consequences as his act may bring upon himself. "In operations afloat the senior officer alone is authorized to dispatch or to achnit communication by flag of truce; a vessel in position to observe such a flag should communicate the fact promptly. The firing of a gun by the senior officer's vessel is generally understood as a warning not to approach nearer. The flag of truce should be met at a suitable distance by a boat or vessel in charge of a commissioned officer, having a white flag plainly displayed from the time of leaving until her return." i (6) Cartels are agreements made to regulate intercourse during war. Such conventions may regulate postal and tele- graphic communication, the reception of flags of truce, the exchange of prisoners, the care and treatment of the same and of the sick and wounded. A cartel ship is a vessel sailing under a safe-conduct for the purpose of carrying exchanged prisoners. When thus em- ployed the vessel is not subject to seizure, although this ex- emption does not extend to a voyage from one port to another in her own state for the sake of taking on prisoners. The immunity is lost if the vessel departs from the strict line of service by engaging in ordinary commerce, transportation, or hostile acts .2 Such a vessel may carry one gun for the purpose of salutes. (c) Passports, safe-conducts, and safeguards are sometimes given in time of war. A passport is a written permission given by the belligerent government or by its authorized agent to the subject of the Passports, enemy state to travel generally in belligerent safe-conducts, territory. and safecnjards. k c ^ i • • , A sare-conduct is a pass given to an enemy subject or to an enemy vessel, allowing passage between de- ' "International Law," Naval War College, 2cl ed., p. 93. » The "Venus," 4 C. Rob., 355. CONDUCT OF HOSTILITIES 277 fined points. Safe-conducts are granted either by the govern- ment or by the officer in command of the region within which it is effective.^ A safeguard is a protection granted by a commanding officer either to person or property within his command. "Sometimes they are delivered to the parties whose persons or property are to be protected; at others they are posted upon the property itself, as upon a church, museum, Hbrary, public office, or private dwelUng." 2 When the protection is enforced by a detail of men, this guard must use extreme measures, if necessary to fulfill their trust, and are themselves exempt from attack or capture by the enemy. {d) A Hcense to trade is a permission given by competent authority to the subject of that authority or to another to carry on trade even though there is a state of License to ^^^^ These licenses may be general or special. A general license grants to all the subjects of the enemy state or to all its own subjects the right to trade in specified places or in specified articles. A special license grants to a certain person the right to trade in the manner specified in his license. Neutrals may receive a license to trade in lines which otherwise would not be open to them. A general license is granted by the head of the state. A special license may be granted by a subordinate, valid in the region which he commands so far as his subordinates are con- cerned. His superior officers are not necessarily bound by his act, however.^ It is held that a license must receive a reasonable construc- tion. In general, fraud vitiates a license; it is not negotiable unless expressly made so; a fair compliance in regard to the terms as to goods is sufficient; a deviation from the prescribed course invalidates the license unless caused by stress of » Appendix, p. 366. ' 2 Halleck, p. 361. »The "Sea Lion," 5 Wall., 630. 278 INTERNATIONAL LAW weather or by accident; and a delay in completing a voyage within the specified time mvalidates the license unless caused by enemy or the elements.^ When a license becomes void, the vessel is liable to the penalties which would fall upon it if it had committed the act without Mcense. (e) The cessation of hostilities for a time is sometimes brought about by agreement between the parties to the con- flict. When this cessation is for a temporary or hosShtfer ° military end, and for a short time or within a truce, limited area, it is usually termed a suspension armistice. ^^ hostilities. When the cessation is quite gen- eral, for a considerable time, or for a political end, it is usually termed a truce or armistice. Acts of hostility done in ignorance of the existence of the cessation of hostilities are not violations of the agreement unless there has been negligence in conveying the information to the subordinates. Prisoners and property captured after the cessation in a given region must be restored. During the period of the truce, the commercial and personal intercourse between the opposing parties is under the same restrictions as during the active hostilities, unless there is provision to the contrary in the agreement. The relative position of the parties is supposed to be the same at the end of the truce as at the beginning. Hall says: "The effect of truces and like agreements is therefore not only to put a stop to all directly offensive acts, but to interdict all acts tending to strengthen a belligerent which his enemy, apart from the agreement, would have been in a position to hinder." 2 Acts which the enemy would not have been in a position to hinder, even in the absence of a truce, are not necessarily interrupted by the agreement.^ The {provisioning of a besieged place during a truce has been the subject of some difTerence of opinion. If the conditions » Hall, pp. r,.-)4-5.57. » Hall, p. 545. » 2 Halleck, 349 et seq. CONDUCT OF HOSTILITIES 279 of the truce are to be fair to the besieged party, that party must be allowed to bring in a supply of provisions equal to the consumption during the continuance of the truce.^ At the present time this matter is usually provided for in the terms of the truce. A truce or other form of cessation of hostilities, if for a definite time, comes to an end by the expiration of the time limit; if for an indefinite time, by notice from one party to the other, or is terminated by the violation of the conditions by either of the parties. A violation of a truce by an indi- vidual renders him liable to such punishment as his state may prescribe.2 (/) A capitulation is an agreement defining the conditions of surrender of military forces, places, or districts within the command of an officer. Such agreements are Capitulation. . , , i-i.- i r purely military and can have no political force. The capitulation agreed upon between Generals Sherman and Johnston, in 1865, was not sanctioned because it involved political provisions. By the capitulation of Santiago, July, 1898, the American commander agreed to transport the Spanish troops to Spain. The conditions involved in a capitu- lation may vary greatly, but at the present time it is usually possible to obtain the sanction of the political authority be- fore entering upon an agreement, owing to the improved methods of communication. It is therefore hardly probable that the terms of capitulations will be set aside, as in the cele- brated case of El Arisch, in 1800.^ Agreements made by officers not possessing proper authority or made in excess of authority, are called sponsions or sub spe rati, and require ratification or acceptance by the state to render them effective.* ' Calvo, " Droit Int.," §§ 2440-2446. ^ 2 Halleck, 345 et seq. » Lawrence, p. 463. *See 1 Halleck, 297. OUTLINE OF CHAPTER XXI TERMINATION OF WAR 118. METHODS OF TERMINATION OF WAR. 119. TERMINATION OF WAR BY CONQUEST. 120. TERMINATION OF WAR BY CESSATION OF HOSTILITIES. 121. TERMINATION OF WAR BY A TREATY OF PEACE. (a) Matters covered by a treaty of peace. (b) When a treaty of peace is effective. 280 CHAPTER XXI TERMINATION OF WAR 118. Methods of Termination War may come to an end, (1) by the complete submission of one of the parties to the conflict or by conquest, (2) by the cessation of hostilities between the parties to the conflict, or (3) by a treaty of peace duly concluded. ^ The object of war in early times was often conquest, and the conflict ended only with the submission of one of the parties. This end is at present usually disavowed, and the object of war is proclaimed to be some purpose that will meet with as little disapproval as possible.^ The conditions under which the war will be brought to an end will be in some measure de- termined by the object for which the war was undertaken. 119. By Conquest Conquest in the complete sense, as in the case of the de- bellatio of the Romans, is not now common. This implies a submission of one of the parties without condition. There have been examples of absorption of the sovereignty of the vanquished state in recent times, as in the Prussian Decree of September 20, 1866, by which conquered Hanover, Hesse, Nassau, and Frankfort were incorporated into the Prussian state. Similarly, some of the Italian states were absorbed by the kingdom of Italy after the Treaty of ViUafranca, 1859, and Madagascar became a part of France in 1896. » Heffter-Geffcken, "Droit Int.," II, §§ 176-190. ' See above, Sec. 99. 281 282 INTERNATIONAL LAW Conquest is held to be complete when the fact is evident from actual, continued, and recognized possession. All of these evidences may not be present in a given case, but if the intention and the fact of the conquest and the submission are fully shown, it is sufficient to constitute validity.^ 120. By Cessation of Hostilities Certain wars have terminated by the simple cessation of hostilities. Cases of such termination are rare. Such a method leaves in doubt the relations of the parties to the conflict, and occasions inconvenience to all states which may have intercourse with the contestants. The war between Sweden and Poland in 1716, and also the war between France and Spain in 1720, came to an end m this way. The war between Spain and her American colonies ceased in 1825, but no diplomatic relations were established with them till 1840, and the independence of Venezuela was not recognized till 1850. After the hostilities between France and Mexico, 1862-1867, no diplomatic relations were entered into till 1881. It is only fair to neutrals that a declaration of the conclusion of hostilities should be made. 121. By a Treaty of Peace War is most often terminated by a treaty of peace, which is usually a diplomatic agreement upon the manner of cessation of hostilities and upon the conditions of the reestablishment of friendly relations. In recent years such treaties have often been preceded by preliminary agreements. These are some- times preceded by an armistice in order that the terms may not be changed from day to day by the current fortunes of war, as was the case in the discussions pending the Treaty of Westphalia in 1648. No armistice was made for facilitating ' Case of Hesse Cassel, Hall, p. 567. TERMINATION OF WAR 283 the Russo-Japanese peace negotiations in 1905. In the war between China and Japan, in 1894-1895, an agreement for the suspension of hostilities was made on March 30, 1895, but the treaty of peace was not signed till April 17th. These pre- liminary agreements may sometimes be made through the friendly offices of a third power, as in the protocol of August 12, 1898, in regard to the suspension of hostilities between Spain and the United States. The ambassador of France acted for Spain.^ These preliminary agreements can be con- cluded only by those persons delegated for the purpose, and they are as binding as any international agreement in the matters upon which they touch. (a) A treaty of peace usually covers, (1) the cessation of hostilities, (2) the subjects which have led to war,^ (3) agree- ments for immunity for acts done during the covered by War without sufficient authority or in excess of a treaty of authority. Such acts might otherwise become bases for civil or criminal process. Acts not consequent upon the existence of war, but such as are action- able under the ordinary laws of the state, as for violation of private contract, ordinary debts, etc., are not included unless there is a direct stipulation to that effect. This immunity is commonly called amnesty. (4) Provision for the release of the prisoners of war is often included. (5) The renewal of former treaties is provided for in many peace agreements. (6) Special provision may be made for cession of territory, indemnity, boundaries, or other contingent points.^ (6) A treaty of peace is usually held to be effective from the date of signature, or from the date set in the treaty. Pro- visions fixing the time at which hostilities shall cease at » 30 U. S. Sts. at Large, 1742. 'The Treaty of Ghent, Dec. 24, 1814, between U. S. and Great Britain is a marked exception. See Treaties of U. S., 399; Wheaton, "Hist. Int. Law," 585; Schurz, "Henry Clay," I, pp. 105 et seq. 3 Treaty between Spain and U. S., Dec. 10, 1898; 30 U. S. Sts. at Large, 1754. 284 INTERNATIONAL LAW different points are common. Acts of war committed after the conclusion of peace or after the official notice of the When a treaty termination of hostilities, are void.i The Treaty of peace is of Frankfort, 1871, provides that maritime cap- effective, tures not condemned at the conclusion of the war are not good prize. "The general effect of a treaty of peace is to replace the belligerent countries in their normal relation to each other." 2 In case of no stipulations to the contrary, the doctrine of uti possidetis applies, by which the property and territory in the actual possession of either of the belligerents at the conclu- sion of the war vests in the one having possession. Private rights suspended during the war revive on the conclusion of peace. Though it was once held that debts could be confiscated during war, this is now nowhere main- tained.3 In such cases the obligation revives on the con- clusion of peace, and by the Statute of Limitations the period of the war is not reckoned in the time specified as the period at which debts become outlawed.^ 'Case of Swineherd, 1801, 1 Kent Com., 173, note (6); "Sophie," 1 Kent Com., 174; 6 C. Rob., 138. » Hall, p. 558. ' Treaties of U. S., 386. • Lawrence, § 239. PART FIVE INTERNATIONAL LAW OF NEUTRALITY OUTLINE OF CHAPTER XXII DEFINITION AND HISTORY OF NEUTRALITY 122. DEFINITION OF NEUTRALITY. 123. FORMS OF NEUTRALITY AND OF NEUTRALIZATION. (a) Neutralized states are bound to refrain from offensive hostilities. (1) Neutralization of Switzerland and Belgium. (b) A portion of a state may be the subject of an act of neutralization. (c) The neutralization of certain routes of commerce. (d) The Geneva Convention of 1906 neutralized persons and things. 124. HISTORY OF NEUTRALITY. (a) Early conceptions of neutrality. (b) The United States and the principles of neutrality. 125. DECLARATION OF NEUTRALITY. 126. TWO CLASSES OF RELATIONS BETWEEN NEUTRALS AND BELLIGERENTS. (a) Between neutral states and belligerent states as states. (b) Between the states and individuals. 286 CHAPTER XXII DEFINITION AND HISTORY OF NEUTRALITY 122. Definition of Neutrality Neutrality is the relation which exists between states which take no part in the war, and the belligerents.^ Impartial treatment of the belligerents is not necessarily neutrality. The modern idea of neutrality demands an entire absence of participation, direct or indirect, however impartial it may be. 123. Forms of Neutrality and of Neutralization The first form of neutrality is what was formerly known as perfect neutrality, in distinction from imperfect neutrality, which allowed a state to give to one of the belligerents such aid as it might have promised by treaty entered into before and without reference to the war. At the present time the only neutrality that is recognized is perfect, i.e. an entire absence of participation in the war. A second form of neu- trality is commonly known as armed neutrality. This im- plies the existence of an understanding, on the part of some of the states not parties to the contest, in accordance with which they will resist by force certain acts which a belligerent may claim the right to perform. The armed neutralities of February 28, 1780, and of December 16, 1800, defended the principle of ''free ships, free goods." ^ Neutralization is an act by which, through a conventional agreement, the subject of the act is deprived of belligerent 1 The "Three Friends," 166, U. S. 1, 52. ' Lawrence, p. 566. 287 288 INTERNATIONAL LAW capacity to a specified extent. Neutralization may apply in various ways. (a) Neutralized states are bound to refrain from offensive hostilities, and in consequence cannot make agreements which may demand such action. Thus it was recog- hfstuitiM nizcd that Belgium itself, a neutralized state, forbidden could not guarantee the neutrality of Luxem- neutraiized |^^ -^^ ^^ie Treaty of London, in 1867. Bel- gium is, however, a party to the Treaty of Ber- lin of 1885, agreeing to respect the neutrality of the Kongo State. This agreement "to respect" does not carry with it the obligation to defend the neutrality of the Kongo State. The important instances of neutralization are those agreed upon by European powers. By the declaration signed at Neutralization Vienna, March 20, 1815, the powers (Austria, of Switzerland France, Great Britain, Prussia, and Russia) and Belgium. '< acknowledged that the general interest de- mands that the Helvetic States should enjoy the benefits of perpetual neutrality," and declared "that as soon as the Helvetic Diet should accede to the stipulations" prescribed, her neutrality should be guaranteed.^ The Swiss Confedera- tion acceded on May 27, 1815, and the guaranteeing powers gave their acknowledgment on November 20, 1815.^ The powers also guaranteed the neutrality of a part of Savoy at the same time. The neutralization of Belgium is provided for by Article VII of the Treaty of London, of November 15, 1831, "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." 3 (b) A portion of a state may be the subject of an act of neutralization, as in the case of the islands of Corfu and ' 1 Ilcrtslr-t, 64. > Ibid., 370; see also "La Neutrality do Suisse," S. Bury, R. D. I., II, 636. • 2 Hertalet, 863. DEFINITION AND HISTORY OF NEUTRALITY 289 Paxo by the Treaty of London, of March 29, 1864. By Article II, " The Courts of Great Britain, France, and Russia, Neutralization ^^ ^^^^^ character of Guaranteeing Powers of of a portion of Greece declare, with the assent of the Courts a state. ^£ Austria and Prussia, that the Islands of Corfu and Paxo, as well as their Dependencies, shall, after their Union to the Hellenic Kingdom, enjoy the advan- tages of perpetual Neutrality. His Majesty the King of the Hellenes engages, on his part, to maintain such Neu- trality." 1 (c) The neutralization of certain routes of commerce has often been the subject of convention. The United States Neutralization guaranteed the^ "perfect neutrality" 2 of the of routes of means of trans-isthmian transit when the State commerce. ^^ ^^^ Granada controlled the Isthmus of Panama in 1846. By the Treaty of 1867 with Nicaragua the United States guarantees "the neutrality and innocent use" of routes of communication across the state of Nica- ragua.^ The Nine Powers by the Convention of Constanti- nople, of October 29, 1888, Great Britain making certain reservations, agree, by a conventional act upon "a definite system destined to guarantee at all times, and for all the powers, the free use of the Suez Maritime Canal." ^ Full provisions for the maintenance of the neutrality of the canal were adopted at this time also. Substantially the same rules were embodied in the treaty between the United States and Great Britain, concluded November 18, 1901, in regard to the construction of the canal across the Isthmus of Panama. (d) The Geneva Convention of 1906, superseding that of » 3 Hertslet, 1592. ' Art. XXXV, Treaty of Dec. 12, 1846; Treaties of IT. S., 204. ' Art. XV, Treaty of Jan. 21, 1867; Treaties of U. S., 1784. 'Pari. Papers, 1889, Commercial, No. 2. See also Holland, "Studies in Int. Law," p. 269. 290 INTERNATIONAL LAW 1864, neutralized persons and things employed in the amel- ioration of the condition of the sick and wounded in the time of war.i At the present time hospital ships The Geneva properly Certified and designated by flags and Convention. ^^ b^nds of coloF on the outside are neutrahzed by general practice. 124. History of Neutrality Neutrality as now understood is of recent growth. In early times, and in general throughout the Middle Ages, the fear of retaliation alone deterred states from hostile action against belligerent states with which they were formally at peace. A belligerent in the prosecution of war might disregard the terri- torial, personal, or property rights in a neutral state without violation of the principles of public law then accepted. (a) A gradual formulation of principles which gave the basis of a more equitable practice came through the custom Earl concep- ^^ making treaty provisions in regard to the tions of conduct of One of the parties when the other was neutrality. ^^ ^^^ ^^j^ ^ ^j^-^.^ ^^^^^^ npj^US J^ ^^S USUally provided that no aid should be given to the third state. By the end of the seventeenth century that which had former- ly been a matter of treaty stipulation became quite generally accepted as a rule of action. Grotius, in 1625, gives only about a fourth of a short chapter to the consideration of the duties of the neutral toward the belligerents and the balance of the same chapter to the duties of belligerents toward those not parties to the war. Grotius maintains that "it is the duty of those who have no part in the war to do nothing which may favor the party having an unjust cause, or which may hinder the action of the one waging a just war, . . . and in a case of doubt to treat both belligerents alike, in per- mitting transit, in furnishing provisions to the troops, in * Articles 1-16, Appendix, pp. 426-429. DEFINITION AND HISTORY OF NEUTRALITY. 291 refraining from assisting the besieged." ^ In Barbeyrac's note to Pufendorf, 1706, the discussion shows that the idea of neutrality is clearer, but still confused by the attempt to admit a variety of qualified forms by which a state may be neutral in some respects and not in others.^ Bynkershoek in 1737 said, " I call those non hostes who are of neither party." ^ This statement of Bynkershoek furnishes a convenient start- ing-point for his successors. Vattel, in 1758, accepting this definition, also says that a state may give such aid as has been promised in a treaty of alliance previously made with one of the states, and still preserve exact neutrality toward the other state.* (6) By Article XVII of the Treaty of Amity and Commerce between the United States and France, in 1778, ''It shall be lawful for the ships of war of either party, states and the and privateers, freely to carry whithersoever principles of they please the ships and goods taken from aiy. ^j^^.^ enemies; ... on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people or property of either of the parties," except when driven in by stress of weather. By Article XXII of the same treaty, foreign privateers were not allowed to be fitted out or to sell their prizes in the ports of either party. In 1793 M. Genet, the French minister, began to fit out privateers, to give commissions to citizens of the United States to cruise in the service of France against the British, and to set up prize courts in the French consulates. He justified himself under the provisions of the Treaty of 1778. His action threatened to bring the United States into war with Great Britain and led to the enunciation of the principles by the United States authorities, of which Canning in 1823 said, " If I wished for a guide in a system » "De Jure Belli ac Pads," Lib. Ill, C. XVII, iii, 1. 2 "Le Droit de la Nature et des Gens," Liv. VIII, C. VI, vii, n. 2. 3 "Quaestiones Juris Publici," I, ix. * " Droit des Gens," III, viii. 292 INTERNATIONAL LAW of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretary- ship of Jefferson." ^ The President's Proclamation of Decem- ber 3, 1793, declares that, in the war of France and the European powers, "the duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers." 2 While the Proclamation does not mention "neutrality," the orders and instructions issued in accordance with it use the word. By the Act of Congress of June 5, 1794, and by subsequent acts codified in 1818,^ the United States assumed a position which marks an epoch in the history of neutrality. The principles then enunciated are the generally accepted rules of the present day. Great Britain passed similar enactments in 1819, and made these more definite and stringent by the Foreign Enlistment Act of 1870.4 125. Declaration of Neutrality In recent years it has become customary to issue procla- mations of neutrality, or to make known the attitude of the state by some public announcement. This method publishes to other states and to the subjects of the state issuing the announcement the position which the state will take during the hostilities. Ordinarily some specifications as to what may be done during the war accompany the proclamation. In the war between the United States and Spain in 1898 and in subsequent wars, practically all the leading states of the world made known their neutrality. Germany, according to the custom in that state for twenty years preceding, made no public proclamation, but the neutrality of the Empire was announced less formally by the Emperor in a speech before ' .5 Speeches, 50. * 1 Messages and Papers of the Presidents, 156. 'IT. S. Rev. fits., §§ ,5281-5291, see Appendix, p. 465. For cases, see 1 r;()ul(l and Tuckor, 090, and 2 ibid., 627. « 3.3 and 34 Vict., c. 00, p. 560. See also 2 Lorimer, 490. DEFINITION AND HISTORY OF NEUTRALITY 293 the Reichstag. The British proclamation of April 23, 1898, is, however, a very full statement of the principles which are to be observed during the hostilities.^ A clause from the Russian Declaration of April 18, 1898, is an example of the announcement of the general fact of neutrality : " It is with keen regret that the Imperial Govern- ment witnesses an armed conflict between two states to which it is united by old friendship and deep sympathy. It is firmly resolved to observe with regard to these two bel- ligerents a perfect and impartial neutrality." ^ 126. Relations between Neutrals and Belligerents The relations between neutrals and belligerents naturally fall into two divisions: — (a) The relations between neutral states and [belligerent states as states. These relations are determined by the respect for sovereignty, by international usage, and by treaties. (6) Relations between the states and individuals. These relations involve : — (1) Ordinary commerce. (2) Contraband. (3) Unneutral service. (4) Visit and search. (5) Convoy. (6) Blockade. (7) Continuous voyage. (8) Prize and prize courts. ■ Proc. and Decrees during the war with Spain, p. 31. ^ Ibid., p. 63. President Cleveland's neutrality proclamations as to the war in Cuba are given in 29 U. S. Sts. at Large, 870, 881. OUTLINE OF CHAPTER XXIII RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES 127. GENERAL PRINCIPLES OF THE RELATIONS BETWEEN STATES. 128. NEUTRAL TERRITORIAL JURISDICTION. (a) Inviolability of neutral territory. (b) Passage of belligerents through neutral territory restricted. (c) Maritime jurisdiction of a neutral. (d) Neutral territory as a base of military operations forbidden. 129. REGULATION OF NEUTRAL RELATIONS. (a) Obligation of neutral state to offer asylum to belligerent troops seeking refuge. (b) Right of asylum of a belligerent vessel in a neutral port. (c) Internment of a vessel in a neutral port to escape capture."" (d) Ordinary entry depends upon the will of the neutral. (e) Time of sojourn of vessels usually limited to twenty-four hours. (1) Regulation by proclamation. (2) Regulations in regard to vessels with prizes. 130. NO DIRECT ASSISTANCE BY THE NEUTRAL ALLOWED. (aj Military assistance on any grounds not now justified. (b) Furnishing of supplies of war not allowable. (c) Loans of money forbidden. (d) Enlistment of troops within the jurisdiction of a neutral state not permitted. 131. POSITIVE OBLIGATIONS OF A NEUTRAL STATE. (a) Obligation to restrain hostile acts. (b) Acts in themselves not necessarily warlike must be judged by inference as to their purpose. 2'J4 CHAPTER XXIII RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES 127. General Principles of the Relations between States Of the general principle Wheaton says, " The right of every independent state to remain at peace whilst other states are engaged in war is an incontestable attribute of sovereignty." ^ Equally incontestable is the right of a belligerent state to demand that a state not a party to the war shall refrain from all participation in the contest, whether it be direct or indirect. The modern tendency is to remove from the neutral all possible inconveniences which might result from war between states with which the neutral is at peace. The normal rela- tions between neutral and neutral are unimpaired. As the neutral is at peace with the belligerents, the relations between the neutral and the belligerents are affected only so far as the necessities of belligerent operations demand. "Every restriction, however, upon the rights of a neutral or belligerent must have a clear and undoubted rule and reason. The bur- den of proof lies upon the restraining government." ^ 128. Neutral Territorial Jurisdiction (a) One of the earliest principles to receive the sanction of theory and practice was that of the inviolability of territorial Inviolability jurisdiction of neutrals. This principle has been of neutral liberally interpreted in recent times, and the em ory. tendency has been to make increasingly severe the penalties for its violation. 1 Wheat. D., p. 509. 2 "International Law," Naval War College, 2d ed., p. 118. 295 296 INTERNATIONAL LAW The Hague Convention of 1907 respecting the Rights and Duties of Neutral Powers provides that (1) Neutral territory is inviolable; (2) "Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power." (6) Formerly it was held that the right of passage might be granted by a neutral to both belligerents on the same terms, or to one of the belligerents if in accord with an Passage of i i p i mi belligerents agreement entered into before the war. There through neutral ^re many examples of this practice before the nineteenth century. Article XIV of the Hague Convention shows the present attitude of states. " A neutral State may authorize the passage through its territory of wounded or sick belonging to the belligerent armies, on con- dition that the trains bringing them shall carry neither com- batants 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." Such persons in neutral terri- tory " must be guarded by the neutral Power, so as to insure their not taking part again in the military operations." ^ (c) The rules applicable to the maritime jurisdiction of a neutral are somewhat different from those of the land. The Maritime ncutral docs Hot control with the same absolute jurisdiction of authority the waters washing its shores and the a neutra . j^^^^ within its boundaries. That portion of the sea which is within the three-mile limit is for the purposes of peaceful navigation a part of the open sea. The simple passage of ships of war through these waters is permitted. All b(illigerent acts within the maritime jurisdiction of a neutral are forbidden.^ The waters which appertain more strictly to the exclusive * Appendix, p. 422. *Case of the "Gen. Armstrong," 2 Moore, "Arbitrations," 1071; the "Anne," 3 Wheat., 435; 7 Moore, 510, 512, 617, 1089. RELATIONS OF NEUTRAL AND BELLIGERENT STATES 297 jurisdiction of the neutral, such as harbors, ports, enclosed bays, and the like, are subject to the municipal laws of the neutral.^ Asylum in case of imminent danger is, how- ever, not to be denied; otherwise these waters are open to belligerent ships of war only on condition that they observe the regulations prescribed by the neutral. Such regulations must of course be impartial. These regulations were formerly announced in the proclamations of neutrality, as was the case in the war of the United States and Spain in 1898. They are now quite fully set forth in the Hague Convention of 1907 concerning the Rights and Duties of Neutral Powers in Naval War.2 (d) Neutral territory may not be used as the base of mili- tary operations or for the organization or fitting out of warlike expeditions. Sir W, Scott said in the case of the Twee Gehroeders that "no proximate acts of war are in any manner to be allowed to originate on neutral grounds." ^ This would tory as a base without doubt apply to filibustering expeditions. of military Many acts are of such nature as to make it im- forMdden^ possible to determine whether this principle is violated until the actor is beyond the jurisdic- tion of the neutral. In such cases the neutral sovereignty is "violated constructively." ^ A second act of this kind might constitute the neutral territory a base of military operations. It is difficult to distinguish in some cases between those ex- peditions which have a warlike character and those which cannot at the time of departure be so classed. In 1828, during the revolution in Portugal, certain troops took refuge in England. In 1829 these men, unarmed but under military command, set out from Plymouth in unarmed vessels, ostensibly for Brazil. Arms for their use had been > Perels, "Das Seerecht," § 39. * Appendix, p. 420. » 3 C. Rob., 164. • HaU, p. 603 298 INTERNATIONAL LAW shipped elsewhere as merchandise. Off the island of Terceira, belonging to Portugal, they were stopped by English vessels within Portuguese waters, and taken back to a point a few hundred miles from the English Channel. The Portuguese then put into a French port. Most authorities are agreed that the expedition was warlike, but that the British ministers should have prevented the departure of the expedition from British waters where they had jurisdiction, instead of coercing it in Portuguese waters.^ During the Franco-German War of 1870 a large body of Frenchmen left New York in French vessels bound for France. These vessels also carried large quantities of rifles and car- tridges. The Frenchmen were not organized, the arms were proper articles of commerce, and the two were not so related as to render them immediately effective for war. The Ameri- can Secretary held that this was not a warlike expedition. In discussing this case Hall says, '' The uncombined elements of an expedition may leave a neutral state in company with one another, provided they are incapable of proximate combina- tion into an organized whole." ^ In order, therefore, that an expedition may be warlike there must be an organized body of men, under military or naval direction, and intending to engage in war in the near future. 129. Regulation of Neutral Relations The relations between the belligerent and the neutral may in some respects be regulated by the neutral. Such regula- tions find expression in neutrality laws, in proclamations of neutrality, and in special regulations issued under exceptional circumstances or by joint agreement of several states, as in the Hague Conventions. ' 3 Phillimore, 287-299. * Hall, p. 607. For the case of the "Caroline," see Appendix, p. 480. RELATIONS OF NEUTRAL AND BELLIGERENT STATES 299 (a) While it is admitted that the belligerent troops may not use the land of a neutral, yet the neutral is under obliga- tion to offer asylum to those seeking refuge to Obligation to *' .. t-,i n offer asylum to escape death or captivity. It is the duty of a belligerent neutral state, within whose territory commands, or individuals, have taken refuge, to intern them at points as far removed as possible from the theater of war. Interned troops may be guarded in camps, or fortified places. The expenses occasioned by the internment are reimbursed to the neutral state by the belligerent state to whom the in- terned troops belong.! (6) In general a belligerent vessel has the right of asylum Right of ^^ ^ neutral port. It may enter to escape the asylum for perils of the sea or to purchase provisions, and vessels. ^^ make repairs indispensable to the continu- ance of the voyage. (c) A vessel may be interned in a neutral port when enter- ing after defeat by the enemy or to escape Internment in a ^_^^j.^ and if it docs not Icavc within the neutral port. ' ' prescribed time is both by law and in accord with practice liable to be interned till the end of the war. The Hague Convention of 1907 concerning Neutral Powers in Naval War provides that: "Art. 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 en- titled 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 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 1 Appendix, pp. 421-422. 300 INTERNATIONAL LAW or kept either on another vessel or on land, and may be sub- jected to the measures of restriction which it may appear necessar}'- 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 Uberty on giving their word not to quit the neutral territory without permission." * During the Russo-Japanese War of 1904-1905, the Russian transport Lena in September, 1904, was interned at San Francisco,^ and Admiral Enquist's squadron in June, 1905, was interned at Manila. During the same war the principle of naval internment was acted upon by China, France, Great Britain, Germany, and the United States, and recognized by Japan and Russia. {d) Ordinary entry depends upon the will of the neutral, and is subject to conditions imposed upon all belligerents alike.^ These conditions usually allow a vessel Ordinary entry _ , '' dependent upon to take on necessary provisions and supplies to will of the enable her to reach the nearest home port. A neutral. regulation of the Hague Convention of 1907 concerning Neutral Powers in Naval War provides that : "Art. XIX. Belligerent war-ships may only revictuafin 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."-* (e) The time of sojourn is usually limited to twenty-four hours, unless a longer time is necessary for taking on supplies, 1 Appendix, p. 448. 2 U. S. For. Rel. 1904, pp. 785-790. » 7 Attorney-Generals' Opinions, 122. » Appendix, p. 447. RELATIONS OF NEUTRAL AND BELLIGERENT STATES 301 completing necessary repairs, or from stress of weather. Regulations as to the time of departure of hostile vessels Time of ^^^^ ^ neutral port were quite fully outlined sojourn of in President Grant's proclamations of August vessels. ^2 and of October 8, 1870, during the Franco- Prussian War.i He declared that no vessel of war of either belligerent should leave the "waters subject to the jurisdiction of the United States from which a vessel of the other belhgerent . . . shall have pre- viously departed, until after the expiration of at egu a ion y ]g,^g|. twenty-four hours from the departure of such last-mentioned vessel beyond the jurisdic- tion of the United States. If any ship of war or privateer of either belligerent shall, after the time this notification takes effect, enter any . . . waters of the United States, such vessel shall be required ... to put to sea within twenty- four hours after her entrance into such . . . waters, except in case of stress of weather or of her requiring provisions or things necessary for the subsistence of her crew, or for re- pairs; in either of which cases the authorities . . . shall re- quire her to put to sea as soon as possible after the expiration of such period of twenty-four hours, without permitting her to take in supplies beyond what may be necessary for her imme- diate use; and no such vessel . . . shall continue within such . . . waters . . . for a longer period than twenty-four hours after her necessary repairs shall have been completed, unless within such twenty-four hours a vessel ... of the other belhger- ent, shall have departed therefrom, in which case the time Hmited for the departure . . . shall be extended so far as may be necessary to secure an interval not less than twenty-four hours between such departure and that of any . . . ship of the other belligerent which may have previously quit the same . . . waters. No ship of war ... of either belhgerent shall be de- tained in any . . . waters of the United States more than > As to the British Neutrality Regulations, see 2 Ferguson, Appendix F, p. 77; 2 Lorimer, 446. 302 INTERNATIONAL LAW twenty-four hours, by reason of the successive departures from such . . . waters of more than one vessel of the other belliger- ent. But if there be several vessels of each or either of the two belligerents in the same . . . waters, the order of their de- parture therefrom shall be so arranged as to afford the oppor- tunity of leaving alternately to the vessels of the respective belHgerents, and to cause the least detention consistent with the objects of this proclamation. No ship of war ... of either belUgerent shall be permitted, while in any . . . waters within the jurisdiction of the United States, to take in any supplies except provisions and such other things as may be requisite for the subsistence of her crew, and except so much coal only as may be sufficient to carry such vessel, if without sail power, to the nearest European port of her own country; or in case the vessel is rigged to go under sail, and may also be pro- pelled by steam power, then with half the quantity of coal which she would be entitled to receive if dependent upon steam alone; and no coal shall be again supphed to any such ship of war ... in the same or in any other . . . waters of the United States, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within the waters of the United States, unless such ship of war . . . shall, since last supphed, have entered a European port of the government to which she belongs." ^ The tendency at the present time is to make regulations which shall guard most effectively against any possible use of neutral maritime jurisdiction for hostile pur- Regulations in regard to poses. In the Spanish-American War of 1898, vessels with Brazil provided that in case of two belligerent prizes. vessels: — "If the vessel leaving, as well as that left behind, be a steamer, or both be sailing vessels, there shall remain the interval of twenty-four hours between the sailing of one and the other. If the one leaving be a sailing vessel ' 8 Messages and Papers of Presidents, pp. 86 et seq. RELATIONS OF NEUTRAL AND BELLIGERENT STATES 303 and that remaining a steamer, the latter may only leave seventy-two hours thereafter." ^ Many states had adopted the practice of absolutely refusing entrance within their waters to belligerent vessels with prizes, except in case of distress. Some states prescribed that, in such eases, the prizes should be liberated. The Hague Convention of 1907 respecting Neutral Powers in Naval War has the following : "Art, 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. "Art. 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. " Art, 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 Hberty." 2 The United States and some other powers have not ac- cepted Article XXIII permitting sequestration. * Proc. and Decrees of the war with Spain, Brazil, XVI, p. 15. * Appendix, p. 447. 304 INTERNATIONAL LAW 130. No Direct Assistance by the Neutral Allowed The neutral state may not furnish to a belligerent any assistance in military forces, supplies of war, loans of money, or in any similar manner. (a) Formerly military assistance was often furnished to one of the belligerents by a state claiming to be neutral on the ,,.,.. ground that such action was justified by a treaty Military *=> 1 c 1 u u assistance obligation entered into before the war could be forbidden. foreseen. This position was supported by some of the ablest of the authorities of the nineteenth century,i but is no longer admitted. (6) It is generally held that a neutral state may not furnish to one or both of the belligerents supplies of war. As Hall Furnishing of ^^y^' "^^^ general principle that a mercantile supplies of war act is not a violation of a state of neutrality, is not allowable. pj.gggg(j ^00 far when it is made to cover the sale of munitions or vessels of war by a state." ^ A case that aroused discussion was occasioned by the action of the authorities of the United States conformably to a joint resolution of Congress of July 20, 1868, by which the Secretary of War was to cause "to be sold, after offer at public sale on thirty days' notice, . . . the old cannon, arms, and other ordnance stores . . . damaged or otherwise unsuitable for the United States military service, etc." ^ Complaint was made that sales made under this act during the time of the Franco- German War were in violation of neutrality. A committee appointed by the United States Senate to investigate these charges reported that sales "were not made under such cir- cumstances as to violate the obligations of our government as a neutral power; and this, to recapitulate, for three reasons: (1) The Remingtons [the alleged purchasing agents of the ' Wheat. D., § 425; Dana, contra, note 203; 1 Kent Com., pp. 49, 116; Bluntschli, § 759; Woolsey, § 165. ' Hall, p. 597. ' 15 U. S. Sts. at Large, 259. RELATIONS OF NEUTRAL AND BELLIGERENT STATES 305 French government] were not, in fact, agents of France during the time when sales were made to them; (2) if they were such agents, such fact was neither known nor suspected by our government at the time the sales were made; and (3) if they had been such agents, and 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 conmaencement of hostilities." ^ This last statement does not accord with the best opinion and doubtless would not be maintained at the present time. The first and second claims might justify the sale, though it would be in better accord with a strict neutrality for a state to refrain from all sale of supplies of war during the period of war between two states, toward which states it professes to maintain a neutral attitude. This, of course, does not affect the rights of commerce in arms on the part of the citizens of a neutral state not residing in belligerent territory .2 (c) The authorities are practically agreed that loans of money to a belligerent state may not be made or guaranteed by a neutral state. This does not, however. Loans of money ^^^^^ the commerce in money which may be forbidden. . i - . carried on by the citizens of a neutral state not residing in belligerent territory. ^ (d) A neutral may not permit the enlistment of troops for belligerent service within its jurisdiction. This applies Enlistment of ^^ ^"^^ action as might assume the propor- troops not tions of recruiting. The citizens or subjects of permitted. ^ neutral state may enter the service of one of the belligerents in a private manner.* » 3 Whart., § 391. » Appendix, p. 422. » Appendix, p. 422. • Appendix, p. 421, Articles IV, VI. 306 INTERNATIONAL LAW 131. Positive Obligations of a Neutral State (a) Not only must a neutral state refrain from direct assistance of either belligerent, but it must also put forth Obligation to positive efforts to prevent acts which would restrain assist a belligerent. If a state has neutrality hostile acts. i^^^^^ -^ -^ ^^^^j. obligations to enforce these laws, and is also under obligations to see that the principles generally recognized by international law are observed. Most states make provision for the enforcement of neutrality. In the United States the President is authorized to employ the land and naval forces or militia to execute the law.^ Jeffer- son said that, "If the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments." ^ There can be no difference of opinion upon the proposition that a neutral state is bound to restrain within its jurisdiction all overt acts of a character hostile to either belligerent. (6) There are, however, many acts which in themselves have no necessarily warlike character. Whether such acts are in violation of neutrality must be determined Acts in them- , . - j^ ^1 • t-. i"" selves not by inference as to their purpose. By such acts, necessarUy ^g jjall says, "the neutral sovereignty is only violated constructively." ^ These acts vary so much in character and are of so wide a range that the deter- mination of their true nature often imposes severe burdens upon the neutral attempting to prevent them. The destina- tion of a vessel that is in the course of construction may de- termine its character so far as the laws of neutrality are con- cerned. If it is for a friendly state which is at peace with all » U. S. Rev. Sts., § 5288. ' 1 Amer. State Papers, 116. 3 Hall, p. 603. RELATIONS OF NEUTRAL AND BELLIGERENT STATES 307 the world, no objection to its construction and sale can be raised. If a subject of a neutral state builds a vessel for one of the belligerents, such an act has sometimes been regarded as a legitimate business transaction, at other times as an act in violation of neutrality. As a business transac- tion, the vessel after leaving neutral territory is liable to the risk of seizure as contraband. As an act in violation of neutrality, the neutral state is bound to prevent the depart- ure of the vessel by a reasonable amount of care. The line of demarcation which determines what acts a neutral state is under obligation to prevent, and what acts it may allow its subjects to perform at their own risk, is not yet clearly drawn. It is certain that a state is bound to use "due dili- gence" to prevent the violation of its neutrality. In the case of the Alabama ^ this phrase was given different mean- ings by the representatives of the United States and of Great Britain. The arbitrators declared that "due diligence" should be "in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part." 2 This definition is not satisfactory, and the measure of care required still depends upon the circumstances of each individual case, and is therefore a matter of doubt. The Hague Convention of 1907 concerning Neutral Powers in Naval War provides that: "Art. VI. The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, am- munition, or war material of any kind whatever, is forbid- den. . . . "Art. VIII. 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 be- lieve is intended to cruise, or engage in hostile operations, » Appendix, p. 481. ' 7 Moore, § 1330. 308 INTERNATIONAL LAW against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the de- parture from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted en- tirely or partly within the said jurisdiction for use in war." i ' Appendix, p. 445. OUTLINE OF CHAPTER XXIV NEUTRAL RELATIONS BETWEEN STATES AND INDIVIDUALS 132. ORDINARY COMMERCE IN TIME OF WAR. (a) Destination of the vessel. (b) Ownership of goods. (c) Nationality of the vessel. (1) Instances of the variety of practice since 1778. (d) Principles of the Declaration of Paris in regard to the flag and goods. 133. CONTRABAND. (a) History of the principle of contraband. (1) Attitude of the United States. (2) Range of articles classed as contraband. (b) Declaration of London, 1909, in regard to articles treated as contraband. 134. PENALTY FOR CARRYING CONTRABAND. (a) Hostile destination renders goods liable to penalty. (b) Provision of Declaration of London. (c) Practice of preemption. (d) When contraband is only part of the cargo. 135. UNNEUTRAL SERVICE. (a) Participation in the hostilities. (b) Transmission of intelligence in the interest of the enemy. (c) The carriage of certain belligerent persons. (d) Auxiliary coal, repair, supply, or transport ships. 309 136. VISIT, SEARCH, AND SEIZURE. (a) The right of visiting and searching merchant ships upon the seas. (b) The object of the right of search. (c) The method of conducting the search. (d) Ship's papers as evidence of the character of the vessel. (e) Groxmds of seizure. (f) Procedure in regard to neutral vessel and property in case of seizure. (g) Exemptions from capture as provided by the Hague Convention. (h) Destruction of neutral prizes generally forbidden. 137. CONVOY. (a) Differences in practice in regard to convoy. (b) Provision of the Declaration of London, 1909. 138. BLOCKADE. (a) History of the practice of blockade. (b) Conditions of existence of a blockade. (c) Blockade a war measvu-e. (d) Declaration of a blockade. (e) Notification of the existence of a blockade. (f) A blockade must be effective. (g) Cessation of a blockade. 139. VIOLATION OP BLOCKADE. 140. CONTINUOUS VOYAGES. (a) History of the principle. (1) Case of the Bermuda. (2) Case of the Stephen Hart. (3) Position of the United States. (b) Rules of the Declaration of London, 1909. 141. PRIZE AND PRIZE COURTS. (a) Prize the general term applied to captures made at sea. (b) The National Prize Court. (1) Where the prize court may sit. (2) Methods of procedure of prize courts. (c) Prize money and its distribution. (d) The International Prize Court. 310 CHAPTER XXIV NEUTRAL RELATIONS BETWEEN STATES AND INDIVIDUALS 132. Ordinary Commerce in Time of War As a general principle, subjects of a neutral state may carry on conunerce in the time of war as in the time of peace. At the same time, owing to the fact of war, a belligerent has the right to take measures to reduce his opponent to subjec- tion. The general right of the neutral and the special right of the belligerent come into opposition. The problem be- comes one of " taking into consideration the respective rights of the belligerents and of the neutrals; rights of the belligerents to place their opponent beyond the power of resistance, but respecting the liberty and independence of the neutral in doing this; rights of the neutrals to maintain with each of the belligerents free commercial relations, without injury to the opponent of either." ^ In regard to commerce in the time of war, the matters of des- tination, ownership of goods, and the nationality of the vessel have been the facts ordinarily determining the treatment by the belligerent. If there is nothing hostile in the destination of the commercial undertaking, in the nature of the goods, or in the means of transport, the commerce is free from inter- ruption by the belligerent. ' Bonfils, "Droit Int. Public." § 1404 ff.; Despa^rnet, "Droit Int. Pub- lic," § 682 ff.; Investigation Chalmette Supply Camp, House Doc. 568, 57th Cong. U. S., 1902. 311 312 INTERNATIONAI. LAW (a) The questions arising in regard to destination will naturally be treated under the subjects of con- Destination. , , 11111 1 i- traband blockade and continuous voyage. (6) The ownership of goods has usually been a fact deter- mining their liability to capture. The rules of the Consolato del Mare, compiled in the thir- teenth or fourteenth century, looked to the protection of the neutral vessel and the neutral goods on the Ownership of ^^^ hand, and to the seizure of the enemy vessel goods. ' '' and of the enemy goods on the other hand. The goods of an enemy could be seized under a neutral flag, and the goods of a neutral were free even though under an enemy flag. This doctrine considered mainly the character of the goods. These rules were held in favor till the sixteenth cen- tury, from which time the practice varied greatly, sometimes being regulated by treaty. In the sixteenth century France advanced the doctrine of hostile contagion, maintaining the principle of "enemy ships, enemy goods," and "enemy goods, enemy ships." ^ The practice of states was far from uniform in the various wars. (c) The nationality of the vessel has been sometimes regarded as the sole fact determining liability Nationality of ^f g^^^g ^^ Capture, and at other times affect- tiXl6 V6SS61. ing only the vessel itself. Under the rules of the Consolato, the flag determined the liability of the vessel only. Under the French ordinances, the flag contaminated the goods. From 1778, the doctrine that the neutral flag covered enemy goods became more commonly accepted. This was especially emphasized by the armed neutrality of 1780. Some of the agreements of the United States will show the variety of practice even in recent times. By Art. XXIII of the Treaty of 1778 with France it is provided, " that free ' Walker, "Science of Int. Law," p. 296. RELATIONS BETWEEN STATES AND INDIVIDUALS 313 ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on Instances of board the ships belonging to the subjects of either practice since of the confederates, although the whole lading ^'^'^^- or any part thereof should appertain to the enemies of either, contraband goods being always excepted." In the Treaty of 1785 with Prussia occurs the following: "Free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other." In the Treaty of 1795 with Spain is a similar provision, excepting, however, contraband of war. It is asserted in the Treaty of 1799 with Prussia that'as the doctrine of "free ships make free goods" has not been respected ''during the two last wars," and in the one "which still continues," the contracting parties propose "after the return of a general peace" to confer with other nations and meantime to observe "the principles and rules of the law of nations generally acknowledged." The Treaty of 1819 with Spain interprets the clause of the Treaty of 1795, in which it is stipulated that the flag shall cover the property, by saying, "that this shall be so understood with respect to those Powers who recognize this principle; but if either of the two contracting parties shall be at war with a third party, and the other neutral, the flag of the neutral shall cover the property of enemies whose Government acknowledges this principle, and not of others." The Treaty of 1794 with Great Britain expressly provides that property of an enemy on a neutral vessel shall be good prize. In 1887 it was agreed in the treaty with Peru "that the stipulation in this article declaring that the flag shall cover the property shall be understood as applying to those nations only who recognize this principle ; but if either of the contracting parties shall be at war with a third, and the other shall remain neu- 314 INTERNATIONAL LAW tral, the flag of the neutral shall cover the property of ene- mies whose Governments acknowledge this principle, and not that of others." ^ In spite of these variations, the practice of the United States has been much more uniform than that of the states in which the foreign relations have exercised a more direct influence. The nationality of the vessel is determined by the Declara- tion of London of 1909, as follows: "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 is entitled 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 this, and is in no wise affected by this rule." ^ ^ , . , (d) Since 1856 the principles enunciated in Declaration of . . Paris in regard the Declaration of Paris have generally pre- to the flag vailed. The provisions in regard to the flag and goods. , , ^ ^ ^ and goods are: — "2. The neutral flag covers enemy's goods, with the excep- tion of contraband of war. " 3. Neutral goods, with the exception of contraband of war, are not Hable to capture under the enemy's flag." ^ This agreement bound only those states which signed it. A few states, including the United States, Spain, Mexico, Venezuela, and China, did not accede to these provisions. The United States declined because the government desired a provision exempting all private property at sea from cap- ture. ^ In the War of 1898, the United States announced * See Treaties of U. S. under respective dates. ^ Appendix, p. 461. ^ Appendix, p. 379, and particularly the London Declaration, 1909, Chapter VI, Appendix, p. 461. * For the discussion of " the immunity of private property on the high seas," at the Hague Peace Conference, see HoUs, 306 et seq. RELATIONS BETWEEN STATES AND INDIVIDUALS 315 that the rules of the Declaration of Paris would be observed, and Spain made a similar announcement except as to the clause in regard to privateering.^ Spain did not, however, make use of privateers. The goods of a neutral embarked in a belligerent carrying vessel are liable to the damages or destruction which may be the consequence of necessary acts of war. Destruction not the result of such necessary acts would be in violation of the rules of the Declaration of Lon- don, and the neutral is entitled to reparation. 2 The rules of the Declaration of Paris have been so generally accepted in practice that there is little possibility that they will be disregarded by the civilized states of the world. 133. Contraband Contraband is the term applied to those articles which from their usefulness in war a neutral cannot transport with- out risk of seizure. While a state is under obligation to pre- vent the fitting out of hostile expeditions and to refrain from furnishing belligerent ships warlike material, a state is not bound to prevent the traffic of its citizens or subjects in contraband of war. Such articles as are contraband may be seized on the high seas, and by the Declaration of Paris ^ are not protected by the neutral flag. (a) Of the articles of commerce themselves, Grotius makes three general classes: — " 1. Those which have their sole use in war, such as arms." "2. Those which have no use in war, as articles of luxury." "3. Those which have use both in war and out of war, as money, provisions, ships, and those things appertaining to ships." 4 ^ Proclamations and Decrees during the war with Spain, pp. 77, 93. ' Appendix, p. 459. ' Appendix, p. 379. » "De Jure Belli," Bk. Ill, Ch. i, 5; The "Peterhoff," 5 Wall., 28, 58. 316 INTERNATIONAL LAW Grotius regards articles of the first class as hostile, of the second as not a matter of complaint, and of the third as of History of ambiguous use {usus ancipitis), of which the the principle treatment is to be determined by their relation of contraband, j. xi, _ to the war. While the general principle may be clear, the application of the principle is not simple. Those articles whose sole use is in war are, without question, contraband. Articles ex- clusively for peaceful use are not contraband. Between these two classes are many articles in regard to which both practice and theory have varied most widely. ^ The theorists have usually endeavored to give the neutral the largest possible liberty in commerce, on the ground that those who were not parties to the war should not bear its burdens. This has been the opinion most approved by the jurists of Continental Europe. Great Britain and the United States have been inclined to extend the range of articles which might on occa- sion be classed as contraband. The attitude of the United States may be seen from the following enumeration of articles, which were Attitude of the declared contraband in the Spanish War of United States. ^ 1898:— "Absolutely Contraband. — Ordnance; machine guns and their appliances and the parts thereof; armor plate and whatever pertains to the offensive and defensive armament of naval vessels ; arms and instruments of iron, steel, brass, or copper, or of any other material, such arms and instruments being specially adapted for use in war by land or sea; torpedoes and their ap- purtenances ; cases for mines, of whatever material ; engineering and transport materials, such as gun carriages, caissons, car- tridge boxes, campaigning forges, canteens, pontoons; ordnance stores; portable range finders; signal flags destined for naval use; ammunition and explosives of all kinds; machinery for » Woolsey, "Int. Law," § 194. RELATIONS BETWEEN STATES AND INDIVIDUALS 317 the manufacture of arms and munitions of war; saltpeter; military accouterments and equipments of all sorts; horses." "Conditionally Contraband. — Coal, when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs: and money, when such materials or money are destined for the enemy's forces; provisions, when destined for an enemy's ship or ships, or for a place that is besieged." The range of articles classed as contraband will naturally vary from time to time as changes in the method of carrying Range of ^^ "^^^ occur. Horses have usually been re- axticies classed gardcd as Contraband by France, England, and as contraband. ^^^ United Statcs, exccpt in their dealings with Russia, which state has always opposed this inclusion. The increasing importance of coal during the latter half of the nineteenth century has led to the policy of determination of its character by its destination. Provisions are in practically the same position as coal.^ In the war with Spain in 1898, the United States included as absolute contraband, horses, and as conditionally contraband, coal, money, and provisions, which Spain did not mention. Spain mentioned by name sulphur, which the United States did not specify, though it might be included in some of the general classes. "As the supply of sulphur is chiefly obtained from Sicily, the Spanish government would have had a rare opportunity to seize and confiscate it as it passed through the Straits of Gibraltar. But upon the request of the Italian government it . . . refrained from treating sulphur as contraband." ^ The states of continental Europe had generally maintained in time of war the division of articles into contraband and non-contraband. The United States, Great Britain and Japan usually added the category of conditional contraband. »The "Commercen," 1 Wheat., 382. ' See article of John Bassett Moore in Review of Reviews, May, 1899. 318 INTERNATIONAL LAW When Russia, in 1904, included in the category of absolute contraband such articles as fuel and cotton, several states protested on the ground that the destination for military use was essential before these articles could be regarded as contraband.! Russia later gave the interpretation that, " In cases where they were addressed to private individuals these articles shall not be considered contraband of war." There remained great diversity of opinion upon the sub- ject of contraband. The Hague Conference of 1907 formu- lated a tentative list of absolute contraband, but did not reach final conclusions and the subject of contraband was made the first in the list submitted to the International Naval Conference at London in 1908-1909. (b) The International Naval Conference participated in by Germany, United States, Austria-Hungary, Spain, France, Great Britain, Italy, Japan, Netherlands, and Declaration of j^uggia adopted in the Declaration of London London, 1909. ' ^ ^ , , , ,• i- ^ i of February 26, 1909, the tentative list agreed upon at the Hague Conference in 1907. This includes articles which may, without notice, be treated as contraband of war, under the name of absolute contraband when destined for territory within the enemy jurisdiction. With the exception of "saddle, draught, and pack animals suitable for use in war," this is a list of articles primarily and distinctively of military character. In Article 24 of the Declaration articles susceptible of use in war as well as for purposes of peace, which may, without notice, be treated as contraband of war, under the name of conditional contraband were enumerated. This list includes foodstuffs, fuel, clothing, etc. A departure from earlier regulations was made in providing that (Article 27) "Articles and materials which are not sus- ' II. S. For. Rel. 1904, p. 3; British Pari. Papers, Russia, No. 1 (1905), p. 24. RELATIONS BETWEEN STATES AND INDIVIDUALS 319 ceptible of use in war are not to be declared contraband of war," A specific free list was also established including many raw materials such as cotton, wool, including agricultural and mining machinery, fancy goods, etc. Likewise articles serving exclusively to aid the sick and wounded may not be treated as contraband of war. Articles intended for the use of the vessel in which they are found, and those intended for the use of her crew and passengers during the voyage, may not be treated as contraband. It was recognized that in the course of time, through new inventions, etc., other articles might properly be added to the lists of absolute or conditional contraband, and provision to this end was made by means of a notified declaration.^ 134. Penalty for Carrying Contraband (a) No penalty attaches to the simple act of transporta- tion of contraband. It is the hostile destina- Hostile destina- . 1 .1 ^ 1 ,1 t 1 i . tion renders tiou of the goods that renders them liable to goods liable to penalty and the vessel liable to delay or other pena y. consequences according to circumstances. Hostile destination for absolute contraband is "the terri- tory belonging to or occupied by the enemy, or to the armed forces of the enemy." Hostile destination for conditional contraband is in general restricted, and conditional contra- band must be shown " to be destined for the use of the armed forces or of a government department of the enemy State, unless in this latter case the circumstances show that the articles cannot in fact be used for the purposes of the war in progress." ^ (b) The Declaration of London, 1909, provides as follows: ''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 1 Appendix, Ch. II, p. 454. ^ Appendix, Articles 30-37, pp. 456^57. 320 INTERNATIONAL LAW 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." A vessel which would otherwise be free when carrying contraband may become liable to condemnation on account of fraud. Such fraud may consist in bearing false papers or claiming a false destination. In certain instances, vessels have been held liable to con- demnation because carrying articles which by treaty between the state of the captor and the state of the carrier are specially forbidden. The neutral carrier loses freight on the contraband goods and suffers such inconvenience and delay as the bringing in of the contraband and its adjudication in a proper court may entail, and may be condemned to pay costs.^ (c) Under special circumstances goods have been treated as liable to preemption instead of absolute seizure. Of this Hall says, "In strictness every article which is Preemption. .,, ., x i, i t.* i. -l either necessarily contraband, or which has become so from the special circumstances of 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 practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at ten per cent on the amount." ^ This practice was not viewed with favor upon the Continent because indicating a departure from the gen- erally accepted practice.^ ' Appendix, Article 41, p. 457. ^ Hall, p. 665. ' In some cases, belligerents exer.cise the so-called right of using or de- stroying neutral property on the plea of necessity, giving compensation. This practice is called "angary," or "prestation," and is by most jurists RELATIONS BETWEEN STATES AND INDIVIDUALS 321 (d) Provision was, however, made in the Declaration of London, 1909, by which "A vessel stopped because carrying contraband, and not liable to condemnation on account of the proportion of con- „, traband, may, according to circumstances, be al- band is only lowed to continue her voyage if the master is part of the ready to deliver the contraband to the belhgerent •^^^^^ 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 Uberty to destroy the contraband which is thus delivered to him." i The United States has from time to time made treaties involving this principle. An early treaty between the United States and Sweden, 1783, says of the seizure of neutral ves- sels with contraband: "And in case the contraband merchandize be only a part of the cargo and the master of the vessel agrees, consents & offers to dehver them to the vessel that has chscovered them, in that case the latter, after recei\dng the merchandizes which are good prize, shall immediately let the vessel go & shall not by any means hinder her from pursuing her voyage to the place of her destination." 2 135. Unneutral Service Unneutral service differs from the carriage of contraband, particularly in being hostile in its nature and involving a either condemned or regarded with disfavor. An illustration is the sink- ing, during the Franco-Prussian War of 1870, by the Germans, of several British merchant ships in the Seine to prevent French gunboats from going up the river. During the same war, the Germans seized in Alsace, for military purposes, certain railway carriages of the Central Swiss Rail- way and certain Austrian rolling stock, all of which remained in the possession of the Germans for some time. See Lawrence, § 252; Hall, p. 737. » Appendix, Article 44, p. 458. ^ Article 13, Treaty 1783. 322 INTERNATIONAL LAW participation in the contest by the neutral rendering the service. Such service involves assistance in the performance of warlike acts. While the destination is a question of vital importance in the case of contraband, the intent of the act is a matter of highest importance in cases of unneutral service. The acts generally regarded as in the category of unneutral service are: — 1. Participation in the hostilities. 2. The transmission of mtelligence in the interest of the enemy. 3. The carriage of certain belligerent persons. 4. Aid by auxiliary coal, repair, supply, transport ships, or other ships in control of the belligerent. (a) Participation in the hostilities naturally identifies a Participation neutral with the belligerent and makes him in hostilities, ^jj^j j^jg property liable to similar treatment. (6) Of the transmission of intelligence, in the case of the Atalanta, Lord Stowell said: — "How is the intercourse between the mother country and the colonies kept up in the time of peace? By ships of war or by packets in the service of the state. If a war Transmission • , i j.i ^i i it ^ m ^ of intelligence Intervenes, and the other belligerent prevails to interrupt that communication, any person step- ping 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." ^ The United States Naval Code of 1900, withdrawn in 1904, states that "A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure. Mail steamers under neutral flags carrying ' 6 C. Rob., 440, 454. RELATIONS BETWEEN STATES AND INDIVIDUALS 323 dispatches in the regular and customary manner, either as a part of their mail in their mail bags, or separately as a matter of accommodation and without special arrangement or re- muneration, are not liable to seizure and should not be de- tained, except upon clear grounds of suspicion of a violation of the laws of war with respect to contraband, blockade, or un- neutral service, in which case the mail bags must be forwarded with seals unbroken." Regular diplomatic and consular correspondence is not regarded as hostile unless there is some special reason for such belief. Such acts as the repetition of signals by a neutral ship in interest of a belligerent might render the ship liable to penalty. Submarine telegraphic cables between a belligerent and a neutral state may become liable to censorship or to inter- ruption beyond neutral jurisdiction if used for hostile pur- poses. (c) The limitation in regard to the carriage of certain bel- ligerent persons applies to those who travel in such manner Carriage of ^^ ^^ make it evident that they travel in the certain beiiig- military or naval service of the belligerent state, erent persons, jj ^|^^ Carriage of the person or persons is paid by the state, or is done under state contract, it is regarded as sufficient evidence of unneutral service.^ The neutral carrier engaged in ordinary service is not obliged to investi- gate the character of persons who take passage in the usual way. The case of the Trent had no particular bearing upon this subject, as it merely emphasized a principle at that time settled "that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persons." 2 . ' The principle thus stated by Dana was modified as regards J The "Orozembo/' 6 C. Rob., 430. ' Wheat. D., p. 648. 324 INTERNATIONAL LAW those actually embodied in the armed forces of the enemy by the Declaration of London, 1909, to the following effect: " 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." (d) Auxiliary coal, repair, supply, or transport ships, or other vessels under orders or control of an Auxiliary coal, repair, supply, enemy government or in its exclusive employ or transport have an Undoubted hostile character. ^ slllDS The general penalty for the performance of unneutral service is the forfeiture of the vessel so engaged. The penalties specifically prescribed in the Declaration of London, 1909, are set forth in the following articles: " Art. 45. A neutral vessel is liable to be condemned and, in a general way, is liable to the same treatment which a neutral vessel would undergo when Uable to condemnation on account of contraband of war: — "(1) If she is making a voyage specially with a view to the transport 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 hkewise hable to condemnation." "Art. 46. A neutral vessel is liable to be condemned and, in a general way, is liable to the same treatment which » The " Kow-shing," Takahashi, 24-5L RELATIONS BETWEEN STATES AND INDIVIDUALS 325 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 informa- tion in the interest of the enemy. "In the cases specified in the present article, the goods be- longing to the owner of the vessel are hkewise hable to con- demnation." 1 136. Visit, Search, and Seizure (a) "The right of visiting and searching merchant ships upon the seas — whatever be the ships, whatever be the car- goes, whatever be the destinations — is an in- The right of o ; , , . , r i i p n • • visiting and Contestable right of the lawiully conimissioned searching mer- cruisers of a belligerent nation," 2 is the state- ment of the general principle laid down in the case of the Maria. Judge Story says that the right is "al- lowed by the general consent of nations in the time of war and limited to those occasions." ^ There is, however, a qualified right of search in the time of peace in case of vessels suspected of piracy or of slave trade. Under these circumstances the right must be exercised with the greatest care, otherwise the searching party is liable to damages.* (b) In the time of war the right is exercised in order to The object of secure from the neutral the observance of the the right of laws of neutrality, or specifically, according to search. ^-^q regulations of the United States:— 1. To determine the nationality of a vessel. 1 Appendix, Chap. Ill, p. 458. * 1 C. Rob., 340, 359. 'The "Marianna Flora," 11 Wheat., 1. '"International Law," Naval War College, p. 164; Lawrence, §§ 124, 210. 326 INTERNATIONAL LAW Note. The right of approach to ascertain the nation- ality of a vessel is generally allowed in time of peace. "International Law/' Naval War College, p. 165. 2. To ascertain whether contraband of war is on board. 3. To ascertain whether a breach of blockade is in- tended or has been committed. 4. To ascertain whether the vessel is engaged in any capacity in the service of the enemy. (c) The vessel is usually brought to by firing a gun with a blank charge, or if this is not sufficient, a shot across the The method of bows or even by the use of necessary force. The conducting the cruiser should then send a small boat with an ^^^^^ ' officer to conduct the search. Arms may be carried in the boat but not upon the persons of the men. The officer should not be accompanied on board the vessel by more than two men. He should examine the papers of the vessel. If these papers show contraband, any offense in re- spect to blockade, or that she is in the enemy service, the vessel should be seized; otherwise she should be set free, unless suspicious circumstances justify a further search. An entry in the log book of the circumstances of the visit should be made by the boarding officer.^ {d) The papers expected to be on board as evidence of the character of the vessel are: — Ship's papers. ^_ ^^^ ^^^.^^^^^ 2. The crew and passenger list. 3. The log book. 4. A bill of health. 5. The manifest of cargo. 6. A charter party, if the vessel is chartered. 7. Invoices and bills of lading.^ » See Gen. Order U. S. Navy No. 492, 1898. *Most of the forms are given in Glass's "Marine International Law." RELATIONS BETWEEN STATES AND INDIVIDUALS 327 (e) It is generally held that a vessel may be seized in case of: — seizure. 1- Resistance to visit and search. ^ 2. Clear evidence of attempt to avoid visit and search by escape. 3. Clear evidence of illegal acts on the part of the neutral vessel. 4. Absence of or defect in the necessary papers. (a) Fraudulent papers. (b) Destruction, defacement, or concealment of papers. (c) Simple failure to produce regular papers. (/) In case of seizure it is held that the neutral vessel and property vest in the neutral till properly condemned by a duly authorized court. The captor is therefore under obligation : — 1. To conduct the seizure with due regard to the person and property of the neutral. 2. To exercise reasonable diligence to bring the cap- ture quickly to a port for its adjudication. 3. To guard the capture from injury so far as within his power. Failure to fulfill these obligations renders the belligerent liable to damages.^ In the Chino-Japanese War of 1894, the Japanese war vessels visited eighty-one neutral vessels but only one was brought to the prize court.^ In the Russo-Japanese War of 1904-1905 sixty-four vessels were brought before the Japanese prize courts, of which fifty were condemned.* ig) The Hague Convention of 1907 with regard to the Right of Capture in Naval War, provided for the inviolability * See Declaration of London, 1909, Article 63, Appendix, p. 462. 2 Hall, p. 620. ^Takahashi, Chino-Japanese, 16-23. » Takahashi, Russo-Japanese, 537. 328 INTERNATIONAL LAW of all postal correspondence of whatever character on the high seas except when "destined for or proceeding from a blockaded port." The mail-ship is not exempt Exemptions ^^^ should not be searched except when abso- from capture. lutely necessary. Innocently employed small coast fishing and coast trading vessels are exempt from capture, as are vessels engaged in religious, scientific, or philanthropic missions.^ (h) As a general principle a neutral vessel which has been seized should be conducted to a prize court Destruction of ^^^ according to the Declaration of London, 1909: "Art. 48. A neutral vessel which has been captured may not be destroyed by the captor; she must be taken into such port as is proper for the determination there of the rights as regards the validity of the capture." It was evident, however, that in practice neutral vessels were sometimes destroyed and that the regulations of certain states made provision for destruction under exceptional cir- cumstances. There was not agreement upon what should be admitted as exceptional circumstances. To meet this difficulty the London Declaration provides : " Art. 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 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." All persons and papers must be placed in safety. The captor must establish that his act was due to " an exceptional necessity," otherwise compensation must be paid "whether or not the capture was valid." Compensation must also be ^ Appendix, p. 432. RELATIONS BETWEEN STATES AND INDIVIDUALS 329 paid if the capture is subsequently held invalid and also for innocent goods destroyed.^ 137. Convoy (a) A neutral merchant vessel is sometimes placed under the protection of a ship of war of its own state, and is then said to be under convoy. It had been claimed by many authorities, particularly those of Continental Europe, that such a merchant vessel was exempt from visitation and search upon the lOiff fir ATio^^ in practice. declaration of the commander of the neutral ship of war that the merchantman was violating no neutral obligation. England had uniformly denied the validity of this claim up to 1908, when at the International Naval Conference she waived her former claim. Practice has been very divergent in most states. From the middle of the seventeenth century the right of convoy has been asserted. From the end of the eighteenth century the claim has gained in importance. 2 The United States has made many treaties directly recognizing the practice. In the war of 1894, "Japan ordered naval officers to give credence to the declara- tion of a convoying officer. The idea was simply that, as generosity was the chief object of Japan, she did not wish to search and make actual inspection in order to verify the char- acter of escorted merchantmen and goods, trusting to the honor of neutral officers. This was the main idea of the Japanese in adopting the Continental principle regarding convoy; but she was not, in actual cases, so lax as to admit exorbitant claims of the right of convoy, such as an English admiral made for all British ships in the China Sea." ^ * Appendix, p. 459. ^ Gessner, "Le Droit des neutres sur mer," Ch. IV; Perels, "Manuel Droit Maritime," § 56. " Takahashi, p. 13. 330 INTERNATIONAL LAW (6) The Declaration of London, 1909, admitted the right Declaration of ^^ convoy and inserted a guarantee for its London, 1909. legitimate exercisB I "Art. 61. Neutral vessels under convoy of their national flag are exempt from search. The commander of a convoy gives, in wTiting, at the request of the commander of a bellig- erent ship of war, all information as to the character of the vessels and their cargoes, which could be obtained by visit and search. "Art. 62, If the commander of the belligerent ship of war has reason to suspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions to him. In such a case it is for the commander of the convoy alone to conduct an investigation. He must state the result of such investigation in a report, of which a copy is furnished to the officer of the ship of war. If, in the opinion of the com- mander 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." i 138. Blockade Blockade is the obstruction of communication with a place in the possession of one of the belligerents by the armed forces of the other belligerent. The form which blockade takes in most cases is that of obstruction of communication by water. (o) In 1584 Holland declared the ports of Flanders block- aded. Holland did not, however, maintain this declaration by ships of war; indeed, in the early days there were no such ships as would make the mainte- nance of a blockade possible. Such paper blockades were common in the following centuries, and all the ports of a state were frequently proclaimed blockaded, even though there * Appendix, p. 461. RELATIONS BETWEEN STATES AND INDIVIDUALS 331 might be no force in the neighborhood to insure that the blockade would not be violated. Treaties of the eighteenth century show an inclination in the states to lessen the evils of blockade by proclamation. The growth of neutral trade led to the adoption of rules for its greater protection. The armed neutrality of 1780 asserted in its proclaimed principles that a valid blockade should involve such a disposition of the vessels of the belligerent proclaiming the blockade as to make the attempt to enter manifestly dangerous.^ The armed neutrality of 1800 asserted that a notice from the commander of the blockading vessels must be given to the approaching neutral vessel. During the Napoleonic wars there was a return to the practice of issuing proclamations with the view to limiting neutral commerce. The English Orders in Council of 1806 and 1807, and the Berlin Decree of 1806, and the Milan Decree of 1807, by which Napoleon attempted to meet the English Orders, were the expression of the extremest belligerent claims in regard to the obstruction of neutral commerce. The treaties of 1815 said nothing in regard to blockade. The practice and theory varied till, by the Decla- ration of Paris in 1856, a fixed basis was announced in the provision that "Blockades, in order to be binding, must be effective." ^ (6) A blockade presupposes, — 1. A state of war. Conditions of 3. Declaration by the proper authority. existence. j i- r j ^ 3. Notification of neutral states and their subjects. 4. Effective maintenance, (c) The so-called pacific blockade differs in its purpose and method to such an extent as to cause many to deny it any standing in international law. Only a belligerent can insti- ' Walker, "Science of Int. Law," p. 304. ' Appendix, p. 379. 332 INTERNATIONAL LAW tute a blockade which other states are bound to respect, as, without war, there are no neutrals. The blockade may continue even until the conclusion of peace. Blockade a rpj^^ agreement to a truce or an armistice does war measure. ° not put an end to the blockade. (d) Blockade can be declared only by the proper authority. As war is a state act, only the person or authority desig- nated by the constitution or law of the state can declare a blockade. Such a declaration must, in general. Declaration. « i i • <• c i t come from the chief of the state, in certain cases a blockade declared by an officer in command of forces remote from the central government is held to be valid from the time of its proclamation, if the act of the commander receives subsequent ratification from the central authority. The Declaration of London, 1909, states that : "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 operations of the blockading Power, or the naval authorities acting in its name, do not establish the blockade in conformity A\'ith the provisions which, in accord- ance with Article 9 (1) and (2), must be inserted in the declara- tion of blockade, the declaration is void, and a new declaration is necessary in order to make the blockade operative." i (e) Neutrals must be notified of the existence of a blockade. This notification may be : — 1. By official proclamation announcing the place to be blockaded, and the time when the procla- mation becomes effective. * Appendix, pp. 451-452. RELATIONS BETWEEN STATES AND INDIVIDUALS 333 2. By notification to vessels when they come near the place blockaded. 3. The use of both the above methods. The theory of the American and English authorities has been to assume a knowledge of the blockade on the part of subjects if the political authority of their state had been informed of the existence of the blockade before the neutral vessel left port. In practice both powers have in recent years given a neutral vessel warning of the existence of blockade of a port before seizure.^ The French rule has been to give in every instance an ap- proaching neutral vessel warning of the existence of a block- ade, and to consider the notification to the neutral state authorities as merely a diplomatic courtesy. Ordinarily local notification is made to port and consular authorities of the place blockaded. In recent years the time allowed a vessel to discharge, reload, and to leave port has been specified. In order that a blockade may be fully operative, the Decla- ration of London states that : "Art. 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 vnW, on their part, inform, as soon as possible, the foreign consuls who exercise their functions in the port or on the coast blockaded." ^ In case of special notification by the officer in command of a blockading ship to a neutral vessel ignorant of the block- ' President McKinley's Proclamation of Blockade, during the war with Spain, is given in Proclamations and Decrees, p. 75, and President Lin- coln's, during the war with the South, in 12 U. S. Sts. at Large, Appendix ii, iii. ' Appendix, p. 452. 334 INTERNATIONAL LAW ade, the fact with particulars should be entered in the log of the neutral vessel over the officer's signature. ^ (/) The principle that a blockade must be effective ap- A blockade P^^^® ^^^^ ^^ ^^^ place and to the manner of en- must be forcement. effective, ^ Blockade must apply to a place which may be blockaded, i.e. to seaports, rivers, gulfs, bays, roadsteads, etc. A river which forms the boundary between one of the belligerent states and a neutral state may not be blockaded. Rivers flowing for a part of their course through belligerent territory but dis- charging through neutral territory may not be blockaded. Certain waters are not liable to blockade because exempt by agreement; as in the case of the Kongo River by the Act of 1885. 2. " Blockades, in order to be binding, must be effect- ive, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy." ^ This is interpreted in the United States as "maintained by a force sufficient to render ingress to or egress from the port dangerous." ^ The subject of the degree of effect- iveness which is necessary has been much discussed, and can only be determined by the circumstances in a given case.^ The English interpretation in the main agrees with that of the United States. The Continental states" are inclined to give a more literal interpretation to the rule. The Declaration of London, 1909, recognizes that geo- graphical and many other conditions affect the maintenance of a blockade and decides: "Art. 3. The question whether a blockade is effective is a question of fact." ^ ' Appendix, p. 452. ' Declaration of Paris, Appendix, p. 379. ^Gen. Orders, No. 492, Navy Dcpt., 1898. « Calvo, § 2841. 5 Appsndix, p. 451, RELATIONS BETWEEN STATES AND INDIVIDUALS 335 (g) A blockade comes to an end: — 1. By the cessation of any attempt to render it effective. 2. By the repulse by force of the vessels at- tempting to maintain the blockade. 3. For a given neutral vessel when there is no evidence of a blockade, after due care to respect its existence. This may happen when the blockading force is tempo- rarily withdrawn on account of stress of weather. There is a general agreement that in the other cases after cessation blockade must be formally instituted again as it was in the beginning. 139. Violation of Blockade " A breach of blockade is not an offense against the laws of the country of the neutral owner or master. The only penalty for engaging in such trade is the liability to capture and condemnation by the belligerent." ^ The American and English practice was to regard as the breach of blockade the act of passing into or out of a blockaded place, unless by special privilege, or a manifestation of an intent to thus pass. The French courts imposed a penalty only upon those who actually attempted to run the blockade. The American prac- tice made the vessel liable to penalty from the time of its departure from neutral jurisdiction with intent to enter the blockaded port until its return, unless the blockade was raised meantime. The Declaration of London, 1909, attempting to reconcile divergent practices, in an equitable manner prescribed that: '' 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 assigned to maintain an effective blockade." "Art. 20. A vessel which in violation of blockade has ' Snow's "International Law," p. 155. 336 INTERNATIONAL LAW 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." i Under proper regulations, certain vessels are usually allowed to pass a blockade without penalty: — 1. Neutral vessels in actual distress.^ 2. Neutral vessels of war strictly as a privilege.^ 3. Neutral vessels in the port at the time of the establish- ment of the blockade, provided they depart within a reason- able time.4 In the War of 1898, the United States allowed thirty days after the establishment of the blockade to neutral vessels to load and to depart. The penalty for the violation of blockade is forfeiture of vessel and cargo, although when vessel and cargo belong to different owners, and the owner of the cargo is an innocent shipper, it has been held that the cargo may be released.^ This may happen if a vessel deviates from her original des- tination to a blockaded port. The crews of neutral vessels violating a blockade are not prisoners of war, but may be held as witnesses before a prize court. 140. Continuous Voyages (a) The Rule of War of 1756 declared that during war neutrals were not permitted to engage with the colonies of a belligerent in a trade which was not permitted to foreigners in time of peace.^ Ordinarily in the time of peace, trade between the mother country and the colony was restricted to domestic ships. This rule was adopted in order that a neutral might not, by undertaking trade denied him in time of peace, relieve one of the bel- * Appendix, pp. 452, 453. * Appendix, p. 45L 'Appendix, p. 451. » Appendix, p. 452. • Appendix, p. 453. • See 3 Phillimore, Chap. XI. RELATIONS BETWEEN STATES AND INDIVIDUALS 337 ligerents of a part of the burdens of war which the interrup- tion of domestic commerce by the other belligerent had imposed. Trade with neutral ports was allowed in time of peace. Therefore, to avoid technical violation of the rule, neutral vessels sailing from a port within belligerent jurisdic- tion, touched at a port within neutral jurisdiction, and in some cases landed and reshipped their cargoes. Lord Stowell decided that it was a settled principle "that the mere touch- ing at any port without importing the cargo into the com- mon stock of the country will not alter the nature of the voyage, which continues the same in all respects, and must be considered as a voyage to the country to which the vessel is actually going for the purpose of delivering her cargo at the ultimate port." ^ In the case of the William in 1806, Sir William Grant declared that "the truth may not always be discernible, but when it is discovered, it is according to the truth and not according to the fiction that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it mat- ters 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 English authorities held that the visit to a neutral port did not constitute the trip two voyages, but that the voyage was continuous and the prop- erty liable to confiscation, though Hall says the "cargo was confiscated only when captured on its voyage from the port of colorable importation to the enemy country." ^ British cruisers, however, seized three German vessels, the Herzog, the Bundesrath, and the General, during the South African War of 1899-1900, while on a voyage to the Portuguese port of Lourengo Marquez, which was the natural port of entry » The "Maria," 5 C. Rob., 365, 368. ' 5 C. Rob., 385, 396. » Hall, p. 669. 338 INTERNATIONAL LAW for Pretoria, the capital of the South African Republic. Ger- many protested. The vessels were released and the English authorities promised that in the future they would refrain from searching vessels until the vessels had passed beyond Aden, or any other place at the same distance from Delagoa Bay. The American doctrine of continuous voyages is a con- siderable extension of the English doctrine and Case t e j^^^ ^^^^ ^j^j^ Severe criticism. In the case of Bermuda. the Bermuda, captured during the Civil War of 1861-1865, it was held that:— " Destination alone justifies seizure and condemnation of ship and cargo in voyage to ports under blockade ; and such destina- tion justifies equally seizure of contraband in voyage to ports not under blockade; but in the last case the ship, and cargo, not contraband, are free from seizure, except in cases of fraud or bad faith." > In the case of the Stephen Hart, a British schooner, bound from London to Cuba with a cargo of war sup- stephe^Hart P^^^^' captured in 1862 off the coast of Florida, Judge Betts condemned both vessel and cargo. He maintained that: — "The commerce is in the destination and intended use of the property laden on board of the vessel, and not in the incidental, ancillary, and temporary voyage of the vessel, which may be but one of many carriers through which the property is to reach its true and original destination. ... If the guilty intention, that the contraband goods should reach a port of the enemy, existed when such goods left their English port, that guilty in- tention cannot be obliterated by the innocent intention of stopping at a neutral port on the way. . . . This court holds that, in all such cases, the transportation or voyage of the con- traband goods is to be considered as a unit, from the port of ' 3 Wall, 514. RELATIONS BETWEEN STATES AND INDIVIDUALS 339 lading to the port of delivery in the enemy's country; that if any part of such voyage or transportation be unlawful, it is un- lawful throughout; and that the vessel and her cargo are subject to capture; as well before arriving at the first neutral port at which she touches after her departure from England, as on the voyage or transportation by sea from such neutral port to the port of the enemy." i This position of the United States, which has been so criticised, is liable to be abused to the disadvantage of neu- tral commerce. The absence of some such rule Position of the ^^^jj ^ ^^ie door to acts which, though United States. ^ . neutral in form, would be hostile in fact. It seemed necessary to allow the exercise of a certain amount of supervision over commerce of neutrals when it was destined to neutral ports having convenient communication with the enemy. This might extend to the seizure of neutral vessels bound for that port only in form, provided there was no doubt as to the true destination, but such seizure was to be made with the greatest care not to violate the proper rights of neu- trals. There was less reason for the general exercise of this supervision over vessels sailing to a neutral port which was separated from the belligerent territory by a considerable expanse of water, than for its exercise over vessels sailing to a port which was separated only by a narrow expanse of water. In cases where the neutral port was upon the same land area with the belligerent territory and had easy com- munication by rail or otherwise, so that it might become a natural port of entry for goods bound for one of the bellig- erents, the other belligerent might properly exercise a greater degree of authority in the supervision of commerce than would ordinarily be allowable. It was on this ground that England could justify her action in the seizure of vessels bound for Delagoa Bay during the war in South Africa, in » Blatchford's Prize Cases, 387, 405, 407; Scott, "Cases," p. 852. 340 INTERNATIONAL LAW 1899-1900; and similarly Italy justified her seizure of the Dutch vessel, Doelwyk, in August, 1896, during the Abys- sinian war. This vessel was bound for a friendly port, but a port from which its cargo of war supplies would pass over- land to the enemy without difficulty. (6) "The doctrnie of continuous voyage in respect both D I f *y, of contraband and of blockade" which had Rules or the Declaration of been the subject of so much controversy was London, 1909. introduced as one of the questions in the pro- gram of discussion for the London Naval Conference in 1908- 1909. The United States Government had advanced the ex- tremest claims under this doctrine during the Civil War of 1861-1865. It was acknowledged that these claims were made under exceptional circumstances. Certain states had positively denied the existence of the rights claimed by states maintaining the doctrine of continu- ous voyage. The Conference finally agreed that the doctrine of con- tinuous voyage might properly be recognized as applying to absolute contraband and formulated this opinion in the Declaration of London, 1909, as follows: "Art. 30. Absolute contraband is hable 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 im- material whether the carriage of the goods is direct or entails either transhipment or transport over land." The right of capture was also extended to conditional con- traband in the exceptional case "where the enemy country has no seaboard" and the conditional contraband is found to be destined for the armed forces of the enemy.i * British Pari. Papers, Misc. No. 4 (1909), p. 47; Appendix, p. 457. RELATIONS BETWEEN STATES AND INDIVIDUALS 341 141. Prize and Prize Courts (a) Prize is the general term applied to captures made at sea. The ships and goods of an enemy liable to capture by the laws of war, and the ships and goods of a neutral when involved in acts forbidden by the laws of war, may be brought into port for adjudication and disposition. Enemy's goods, except contraband of war, are not liable to capture on neutral ships.i Certain ships engaged in charitable or scientific pursuits, and coast fishing and trad- ing vessels, are exempt from capture,^ as are also certain specially exempted by treaty. In general other goods and vessels of the enemy are liable to capture. Contraband goods of a neutral, vessels attempting to violate blockade, vessels performing unneutral service, or goods or vessels otherwise involved in a way contrary to the laws of war are liable to capture. (b) The National Prize Court is the tribunal which deter- mines the rights of the parties concerned in the capture and the disposition of the goods or vessel. All cap- National Prize ^^j.^g belong to the state in whose name they Court. ° ..... are made. An inchoate title to the prize is ac- quired by possession, but complete title is acquired only after condemnation by a properly constituted prize court. (1) A prize court may be established by the belligerent in its own state, in the territory where the belligerent has mili- taiy jurisdiction or in the territory of an ally.^ ing. ^^^ establishment of a court in neutral juris- diction is not permitted.4 When Genet, the minister of France, tried, in 1793, to set up consular prize courts in the United States, Washington protested and Genet was recalled. Takahashi says, " It is clear that if we admit the » Appendix, pp. 456-^57, Articles 33, 35, 36. ' Appendix, p. 432. » Lawrence, § 212. » Appendix, p. 445. 342 INTERNATIONAL LAW prevailing principle concerning the establishment of a prize court in a belligerent's own dominions or its ally's, or in occupied territory, we may infer that a court can be held on the deck of a man-of-war— a floating portion of a terri- torial sovereignty— lying in the above-mentioned waters, provided the processes of procedure are followed." i He maintains, however, that a court might not be established on the high seas, as proper procedure for the interested par- ties would not be possible. (2) The tribunals which have jurisdiction of prize cases differ in the different countries. In the United Methods of gtates, the District Courts possess the powers ^"''^ " of a prize court, and an appeal lies to the Supreme Court. 2 Dana calls the prize tribunal an inquest hy the state, and regards it as the means by which the sovereign " desires and is required to inform himself, by recognized modes, of the lawfulness of the capture." The methods of procedure of prize courts are similar in different countries.^ The practice in the United States is as follows : — The commanding officer of the capturing vessel, after securing the cargo and documents of the captured vessel, makes an inventory of the last named, seals them and> sends them, together with the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and also any one on board supposed to have information, under charge of a prize master and a prize crew, into port to be placed in the custody of the court. The prize master delivers the documents and the inventory to prize commissioners, who are appointed by the court, and reports to the district attor- ' Takahashi, Chino-Japanese, p. 105. 'U. S. Rev. Sts., § 5(53, cl. 8; 18 St., 316, c. 80. ' Takahashi, Russo-Japanese, 527. RELATIONS BETWEEN STATES AND INDIVIDUALS 343 ney, who files a libel against the prize property and sees "that the proper preparatory evidence is taken by the prize commissioners, and that the prize commissioners also take the depositions de bene esse of the prize crew, and of other transient persons cognizant of any facts bearing on con- denmation or distribution." ^ The libel should ''properly contain only a description of the prize, with dates, etc., for identification, and the fact that it was taken as prize of war by the cruiser, and brought to the court for adjudication, that is, of facts enough to show that it is a maritime cause of prize jurisdiction and not a case of municipal penalty or forfeiture." 2 Notice is then published that citizens or neu- trals, but not enemies, interested in the prize property shall appear and enter their claims. As there are no allegations in the libel, the answer of the claimant is only a general denial under oath. The prize conrnaissioners then examine the witnesses privately; and this evidence, which is kept in secret until complete, is called in preparatorio.^ If the court is in doubt it will order "further proof," that is, besides the ship, cargo, documents, and witnesses. The burden is on the claimant to prove title.^ If the claimant's right is not sufficiently established, the property is condemned. The captors are, however, liable to damages if there is found no probable cause for the capture.^ (c) It has been the general practice to distribute as prize money the proceeds, or a part of the proceeds, of a capture »U. S. Rev. Sts., § 4618, also 1624, par. 16-17; 4615, 4617, 4621; The "Nassau," 4 Wall., 634. » Wheat. D., n. 186, III; U. S. Rev. Sts., § 4622. » Wheat. D., n. 186, III; The "Springbok," 5 Wall., l;The "Sir William Peel," ibid., 517. * Wheat. D., n. 186, III. 'The "La Manche," 2 Sprague, 207. The method of procedure in a prize court, in case of enemy property, is given in Appendix, p. 469 et seq. With a few changes, the same forms may be used in the case of neutral property. See further on the method of procedure in a prize court, Taka- hashi, Chino-Japanese, pp. 11 et seq., 73-107, 172-191. 344 INTERNATIONAL LAW among the captors. This distribution is a matter of munic- ipal law. In England the sum realized from the sale of the goods and vessel may be distributed among the captors, though the crown reserves the right to decide what interest the captors shall have, if any.^ By a royal decree of June 20, 1864, Prussia provided in detail what each of those participating in the capture should receive .^ By the act of March 3, 1899, the United States provided that "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 hereafter occurring in time of war, are hereby repealed." ^ (d) The International Prize Court was provided for in the The Inter- Hague Conference of 1907, the delegates de- nationai Prize claring that they had concluded the Convention Court. £^j, ^j^^^ purpose.^ The Hague Conference of 1907 declared that it had agreed upon a Convention for the Creation of an International Prize Court, "animated by the desire to settle in an equitable manner the differences which sometimes arise in the course of a naval war in connection with the decisions of National Prize Courts." This Convention for the Creation of an International Prize Court provides for exercise of jurisdiction in the first instance by the National Prize Court and for appeal to the International Prize Court. It also provides for the constitution and pro- cedure of the court. Article VII of this Hague Convention provided that "in the absence of treaty provisions covering a given case, the Court shall apply the rules of international law. If no gen- * Lawrence, § 212. ' Perels, "Manuel Droit Maritime Int.," p. 457. » 30 U. S. Sts. at Large, 1007. • Appendix, p. 434. RELATIONS BETWEEN STATES AND INDIVIDUALS 345 erally recognized rule exists, the Court shall give judgment in accordance with the general principles of justice and equity." Certain states were uncertain as to the interpretation which would be given under this clause of Article VII. Ac- cordingly, on the invitation of Great Britain, a conference, known as the International Naval Conference, of ten powers — Germany, United States, Austria-Hungary, Spain, France, Great Britain, Italy, Japan, Netherlands, Russia — assembled at London, December 4, 1908, and on February 26, 1909, con- cluded the Declaration of London, which announces in the Preliminary Provision that: " The Signatory Powers are agreed that the rules contained in the following chapters correspond in substance with the generally recognized principles of international law." ^ The chapters of this Declaration are: 1. Blockade in time of war. 2. Contraband of war. 3. Unneutral service. 4. Destruction of neutral prizes. 5. Transfer to a neutral flag. 6. Enemy character. 7. Convoy. 8. Resistance to search. 9. Compensation. Powers not represented at the London Naval Conference are invited to accede to the Declaration. * For full text of Declaration of London, see Appendix, p. 450. APPENDICES APPENDIX I INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD WAR DEPARTMENT, Adjutant General's No. 100. f Washington, April 24, 1863. General Orders, ( Adjutant General's Office, The following "Instructions 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 information of all concerned. By order of the Secretary of War: E. D. TOWNSEND, Assistant Adjutant General. INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD SECTION I Martial Law — Military Jurisdiction — Military Necessity — Retaliation 1 A place, district, or country occupied by an enemy stands, in con- sequence of the occupation, under the Martial Law of the invading 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 consequence of oc- cupation or conquest. The presence of a hostile army proclaims its Martial Law. 349 350 APPENDIX I Martial Law does not cease during the hostile occupation, except 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. 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 military necessity requires this suspension, substitution, or dictation. The commander of the forces may proclaim that the administration of all civil and penal law shall continue either wholly or in part, as in times of peace, unless otherwise ordered by the military authority. Martial Law is simply military authority exercised in accordance 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 exer- cised in places or regions where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is allowed — 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 country is paramount to all other considerations. All civil and penal law shall continue to take its usual course in the enemy's planes and territories under Martial Lav/, unless interrupted APPENDIX I 351 or stopped by order of the occupying military power; but all the functions of the hostile government — legislative, executive, or admin- istrative — whether of a general, provincial, or local character, 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 aUens to that government. 8 Consuls, among American and European nations, are not diplomatic agents. Nevertheless, their offices and persons will be subjected to Martial Law in cases of urgent necessity only : their property and busi- ness 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 reasonable 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 conquering or occupying power usually recognizes them as temporarily accredited to itself. 10 Martial Law affects chiefly the police and collection of public rev- enue 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 con- cerning engagements concluded with the enemy during the war, but also the breaking of stipulations solemnly contracted by the belliger- ents in time of peace, and avowedly intended to remain in force in case of war between the contracting powers. It disclaims all extortions and other transactions for individual gain ; all acts of private revenge, or connivance at such acts. Offenses to the contrary shall be severely punished, and especially so if committed by officers, 352 APPENDIX I 12 Whenever feasible, Martial Law is carried out in cases of individual offenders 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, and then only with the approval of the chief commander. 13 Military jurisdiction is of two kinds: First, that which is conferred and defined by statute ; second, that which is derived from the common law of war. Military offenses under the statute law must be tried in the manner therein directed ; but military offenses which do not come within the statute must be tried and punished imder the common law of war. The character of the courts which exercise these juris- dictions depends upon the local laws of each particular 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 Articles 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, con- sists 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 allows of the captur- ing 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 sus- tenance or means of life from the enemy ; of the appropriation of what- ever an enemy's country 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 supposed by the modern law of war to exist. Men who take up arms against one another in public war do APPENDIX I 353 not cease on this account to be moral beings, responsible to one an- other and to God. 16 Mihtary necessity does not admit of cruelty — that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devasta- tion of a district. It admits of deception, but disclaims acts of perfidy ; and, in general, military necessity does not include any act of hos- tility which makes the return to peace unnecessarily diflScult. 17 War is not carried on by arms alone. It is lawful to starve the hos- tile belligerent, armed or unarmed, so that it leads to the speedier sub- jection of the enemy. 18 When a commander of a besieged place expels the noncombatants, in order to lessen the number of those who consume his stock of pro- visions, 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 in- tention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity. 20 Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, 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 sub- jected to the hardships of the war. 354 APPENDIX I 22 Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinc- tion 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 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 disturbed 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 hostile country is destined to suffer every privation of liberty and pro- tection, and every disruption of family ties. Protection was, and still is with unciviUzed 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 rela- tions are the exceptions. 26 Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance'" 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 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 no 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 securing him- self against the repetition of barbarous outrage. APPENDIX I 355 28 Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and more- over, cautiously and unavoidably ; that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution. Unjust or inconsiderate retahation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages. 29 Modern times are distinguished from earlier ages by the existence, at one and the same time, of many nations and great governments related to one another in close intercourse. Peace is their normal condition ; war is the exception. The ultimate object of all modern war is a renewed state of peace. The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief. 30 Ever since the formation and coexistence 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 conven- tional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations and restrictions on principles of justice, faith, and honor. SECTION II Public and Private Property op the Enemy — Protection op Persons, and especially op Women; of Religion, the Arts AND Sciences — Punishment op Crimes against the Inhabitants OF Hostile Countries 31 A victorious army appropriates all public monej^, seizes all public movable property until further cUrection by its government, and se- questers for its own benefit or of that of its government all the rev- enues 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. 356 APPENDIX I 32 A victorious army, by the martial power inherent in the same, may suspend, change, or abohsh, as far as the martial power extends, the relations which arise from the services due, according to the ex- isting 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 country, 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 hospitals, or other establishments of an exclusively charitable character, to es- tablishments of education, or foundations for the promotion of knowl- edge, 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 precious instruments, such as astronomical telescopes, as well as hospitals, 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 belonging 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 ultimate owner- ship is to be settled by the ensuing treaty of peace. In no case sh^U they be sold or given away, if captured by the ar- APPENDIX I 357 mies of the United States, nor shall they ever be privately appropri- ated, or wantonly destroyed or injured. 37 The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women ; and the sacred- ness of domestic relations. Offenses to the contrary shall be rigor- ously 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 sol- diers, or to appropriate property, especially houses, lands, boats or ships, and churches, for temjiorary and military uses. 38 Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the sup- port or other benefit of the army or 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 office, and can continue it according to the circumstances arising out of the war — such as judges, administrative or poUce officers, officers of city or communal governments — are paid from the public revenue of the invaded territory, until the military government has reason wholly or partially to discontinue it. Salaries or incomes connected wnth 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. 358 APPENDIX I 42 Slavery, complicating and confounding the ideas of property (that is of a thing), and of personality (that is of humanity), exists accord- ing to municipal 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 were slaves, \'illains, or serfs, into another country, have, for centuries past, been held free and acknowledged 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 belligerent 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 mil- itary forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. 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 postliminy, no belligerent lien or claim of service. 44 All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the author- ized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such i-nhab- itants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. 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 ca})tor. Prize money, whether on sea or land, can now only be claimed under local law. APPENDIX 1 35d 46 Neither officers nor soldiers are allowed to make use of their posi- tion or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate. Offenses to the con- trary committed by commissioned officers will be punished with cashiering or such other punishment as the nature of the offense may require ; if by soldiers, they shall be punished according to the nature of the offense. 47 Crimes punishable by all penal codes, such as arson, murder, maim- ing, 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 pre- ferred. SECTION III Deserters — Prisoners of War — Hostages — Booty on the Battlefield 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 service 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 hos- tile 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 indi- vidual 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 attached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for; all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown 360 APPENDIX I 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 purpose, such as sutlers, editors, or reporters of journals, or contractors, if cap- tured, may be made prisoners of war, and be detained as such. The monarch and members of the reigning hostile family, male or female, the chief, and chief officers of the hostile government, its dip- lomatic agents, and all persons who are of particular and singular use and benefit to the hostile army or its government, are, if captured, on belligerent ground, and if unprovided with a safe conduct 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 approach of a hostile army, rise, under a duly authorized levy, en masse to re- sist the invader, they are now treated as public enemies, and, if cap- tured, are prisoners of war. 52 No beUigerent has the right to declare that he will treat every cap- tured 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, officers of the medical staff, apothecaries, hospital nurses and servants, if they fall into the hands of the Ameri- can Army, are not prisoners of war, 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. 54 A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents during the war, or in con- sequence of a war. Hostages are rare in the present age. APPENDIX I 361 55 If a hostage is accepted, he is treated like a prisoner of war, ac- cording 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 intentional in- fliction 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 not individual crimes or offenses. No bellig- erent 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 would be a case for the severest retaliation, 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 nations. 59 A prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was cap- tured, and for which he has not been punished by his own authorities. All prisoners of war are liable to the infliction of retaliatory meas- ures. 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 de- clare 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 cumber himself with prisoners. 362 APPENDIX I 61 Troops that give no quarter have no right to kill enemies already disabled on the ground, or prisoners captured by other troops. 62 All troops of the enemy known or discovered to give no quarter in f'^neral, 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. 64 If American troops capture a train containing uniforms of the en- emy, 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. 65 The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection 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 or- dered to suffer death if, within three days after the battle, it be dis- covered that he belongs to a corps which gives no quarter. Si* 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 unjust 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. APPENDIX I 363 and, indeed, modern war itself, are means to obtain that object 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 wholly 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 al- ready wholly disabled, or kills such an enemy, or who orders or en- courages 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 prisoners, or in their possession, they shall be taken from them, and the surplus, after providing for their own support, appropriated for the use of the army, under the direction of the commander, unless otherwise ordered by the government. Nor can prisoners claim, as private property, large sums found and captured in their train, although they have been placed in the private luggage of the prisoners. 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 signahze admiration of his distinguished bravery or approbation of his humane treatment of prisoners before his cap- 364 APPENDIX I ture. The captured officer to whom they may be restored cannot wear them during captivity. 74 A prisoner of war, being a public enemy, is the prisoner of the gov- ernment, and not of the captor. No ransom can be paid by a pris- oner of war to his individual captor or to any officer in command. 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 con- finement 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, when- ever 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 otherwase killed in his flight; 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 security 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 punished, even with death; and capital punishment may also be inflicted upon prisoners of war discovered to have plotted rebellion against the au- thorities of the captors, whether in union with fellow prisoners 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 captured again in battle after having rejoined their own army, they shall not be punished for their escape, but shall be treated as simple prisoners of war, although they will be subjected to stricter confinement. APPENDIX I 365 79 Every captured wounded enemy shall be medically treated, accord- ing 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 prisoners in order to extort the desired information or to punish them for having given false information. SECTION IV Partisans — Armed Enemies not belonging 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 making inroads into the territory occupied by the en- emy. If captured, they are entitled to all the privileges of the pris- oner 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 army, 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 appearance of soldiers — such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates. 83 Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtain- ing information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death. 366 APPENDIX I 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 tele- graph 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 author- ities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether 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 rising or armed violence. SECTION V Safe-conduct — Spies — War-traitors — Captured Messengers 86 All intercourse between the territories occupied by belligerent ar- mies, whether by traffic, by letter, by travel, or in any other way, ceases. This is the general rule, to be observed without special proclamation. Exceptions to this rule, whether by 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 this rule are highly punishable. 87 Ambassadors, and all other diplomatic agents of neutral powers, accredited to the enemy, may receive safe-conducts through the terri- tories occupied by the belligerents, unless there are military reasons to the contrary, and unless they may reach the place of their destina- tion conveniently by another route. It implies no international af- APPENDIX I 367 front 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 pretense, seeks information with the intention of communicating it to the enemy. The spy is punishable with death by hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy. 89 If a citizen of the United States obtains information in a legitimate 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 com- mander, gives information of any kind to the enemy, or holds inter- course with him. 91 The war-traitor is always severely punished. If his offense consists in betraying to the enemy anything concerning the condition, 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 conquered 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 offense. 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. 368 APPENDIX I 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 country 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 intentionally, may be put to death. 98 All unauthorized or secret communication with the enemy is con- sidered treasonable by the law of war. Foreign residents in an invaded or occupied territory, or foreign vis- itors 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 be 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 with 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 manner, the interests of the enemy, if captured, is not entitled to the privileges of the prisoner of war, and may be dealt with according to the circumstances 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 APPENDIX I 369 law of war allows even capital punishment for clandestine or treach- erous 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 offenses, 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 according to the common law of war. The exchange of such persons would re- quire a special cartel, authorized by the government, or, at a great distance from it, by the chief commander of the army in the field. 104 A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer cus- tody as a person individually dangerous. SECTION VI Exchange of Prisoners — Flags of Truce — Abuse of the Flag OP Truce — Flags of Protection 105 Exchanges of prisoners take place — number for number — rank for rank — wounded for wounded — with added condition for added con- dition — such, for instance, as not to serve for a certain period. 106 In exchanging prisoners of war, such numbers of persons of inferior rank may be substituted as an equivalent for one of superior rank as may be agreed upon by cartel, which requires the sanction of the gov- ernment, 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 his rank; and he is not to assume a lower rank than belongs to him, 370 APPENDIX I 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 ex- change has taken place is sometimes released either for the payment 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 cannot be demanded by either of them. No belligerent is obliged to exchange prisoners of war. A cartel is voidable as soon as either party has violated it. 110 No exchange of prisoners shall be made except after complete cap- ture, and after an accurate account of them, and a list of the captured officers, has been taken. Ill The bearer of a flag of truce cannot insist upon being admitted. He must always be admitted with great caution. Unnecessary fre- quency is carefully to be avoided. 112 If the bearer of a flag of truce offer himself during an engagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the engage- ment. Firing is not required to cease on the appearance of a flag of truce in battle. 113 If the bearer of a flag of truce, presenting himself during an engage- ment, is killed or wounded, it furnishes no ground of complaint what- ever. APPENDIX I 371 114 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 sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer 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 enemy may avoid firing on them. The same has been done in battles, when hos- pitals 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. 117 It is justly considered an act of bad faith, of infamy or fiendishness, 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 besieged to designate the buildings containing collections of works of art, scien- tific museums, astronomical observatories, or precious libraries, so that their destruction may be avoided as much as possible. SECTION VII The Parole 119 Prisoners of war may be released from captivity by exchange, and, under certain circumstances, also by parole. 372 APPENDIX I 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 al- lows to return to their country, or to live in greater freedom 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 break- ing the parole is captured again. Accurate Usts, therefore, of the paroled persons must be kept by the belligerents. 125 When paroles are given and received there must be an exchange 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 noncommissioned officer or private can give his parole except through an officer. Individual paroles not given through an officer are not only void, but subject the individuals giving them to the pun- ishment of death as deserters. The only admissible exception is where individuals, properly separated from their commands, have suffered long confinement without the possibility of being paroled through an officer. APPENDIX I 373 128 No paroling on the battlefield ; no paroling of entire bodies of troops after a battle ; and no dismissal of large numbers of prisoners, with a general declaration that they are paroled, is permitted, or of any value. 129 In capitulations for the surrender of strong places or fortified camps the commanding officer, in cases of urgent necessity, may agree that the troops under his command shall not fight again during the war, unless exchanged. 130 The usual pledge given in the parole is not to serve during the exist- ing war, unless exchanged. This pledge refers only to the active service in the field, against the paroling beUigerent 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 un- connected with the paroling belligerents, or to civil or diplomatic serv- ice for which the paroled oflBcer 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 allow it. Such order is communicated to the enemy. 133 No prisoner of war can be forced by the hostile government to pa- role himself, and no government is obliged to parole prisoners of war, or to parole all captured oflScers, 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. 374 APPENDIX I 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 between belligerents. It must be agreed upon in writing, and duly ratified by the highest authorities of the contending parties. 136 If an armistice be declared, without conditions, it extends no fur- ther 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. 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 indefhiite 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 con- clude 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, does 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 APPENDIX I 375 from the day only when they receive official information of its exis- tence. 140 Commanding officers have the right to conclude armistices binding on the district over which their command extends, but such armistice is subject to the ratification of the superior authority, and ceases so soon as it is made known to the enemy that the armistice is not rati- fied, 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 contracting parties of an armistice to stip- ulate what intercourse of persons or traffic between the inhabitants of the territories occupied by the hostile armies shall be allowed, if any. If nothing is stipulated the intercourse remains suspended, as dur- ing 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 defense within the place during an armistice, this point should be determined by express agreement between the parties. 144 So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or ammunition, 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 obligation to observe it. 376 APPENDIX I 146 Prisoners taken in the act of breaking an armistice must be treated as prisoners of war, the officer alone being responsible who gives 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 pleni- potentiaries are met to discuss the conditions of a treaty of peace; but plenipotentiaries may meet without a preliminary armistice; in the latter case, the war is carried on without any abatement. SECTION IX Assassination 148 The law of war does not allow proclaiming either an individual be- longing 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 intentional out- lawry; on the contrary, it abhors such outrage. The sternest retalia- tion should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism. SECTION X Insurrection — Civil War — Rebellion 149 Insurrection is the rising of people in arms against their govern- ment, 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 confined to mere armed resistance, or it may have greater ends in view. 150 Ci\'il war is war between two or more portions of a country or state, each contending for the mastery of the whole, and each claiming to APPENDIX I 377 be the legitimate government. The term is also sometimes appUed to war of rebelUon, when the rebellious provinces or portion of the state are contiguous to those containing the seat of government. 151 The term "rebellion" is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of provinces of the same who seek to throw off their al- legiance 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 independent and 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 people as an independent power. 153 Treating captured rebels as prisoners of war, exchanging them, con- cluding of cartels, capitulations, or other warhke agreements with them ; addressing officers of a rebel army by the 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 demanded by the law and usages of public war between sovereign belligerents, neither proves nor es- tablishes an acknowledgment of the rebellious people, or of the gov- ernment which they may have erected, as a public or sovereign power. Nor does the adoption of the rules of war toward rebels imply an en- gagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife and settles the future rela- tions 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 government from trj-ing the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty. 378 APPENDIX I 155 All enemies in regular war are divided into two general classes — that is to say, into combatants and noncombatants, or unarmed citi- zens of the hostile government. The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted por- tion 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, without taking up arms, give positive aid and comfort to the rebellious enemy with- out being bodily forced thereto. 156 Common justice and plain expediency require that the military com- mander protect the manifestly loyal citizens, in revolted territories, against the hardships of the war as much as the common 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 noncombatant enemies have to suffer in regular war; and if he deems it appropriate, or if his government demands of him that every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government. Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government has the riglit 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 II DECLARATION OF PARIS The Plenipotentiaries who signed the Treaty of Paris of the thirtieth of March, one thousand eight hundred and fifty-six, assembled in conference. Considering: 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 im- portant 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, resolved to concert among themselves as to the means of attaining this object ; and having come to an agreement, have adopted the fol- lowing 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 379 380 APPENDIX II 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 Pleni- potentiaries doubt not that the efforts of their Governments to obtain 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. APPENDIX III CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED IN ARMIES IN THE FIELD. GENEVA, JULY 6, 1906 (Names of thirty-five 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 purpose to improve and supplement the provisions agreed upon at Geneva on August 22, 1864, for the amelioration of the condition of the woimded 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. Officers, soldiers, and other persons oflScially attached to armies who are sick or wounded shall be respected and cared for, with- out 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 military con- ditions permit, a portion of the personnel and materiel of his sanitary service to assist in caring for them. 381 382 APPENDIX III 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 authority to agree : 1. To mutually return the sick and wounded left on the field of battle after an engagement. 2. To send back to their own country the sick and wounded 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 intern- ment 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 search 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 fist 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 wounded 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 wounded, or by those who have died in sanitary formations or other establishments, for transmission to interested persons through the authorities 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 responding to such appeals special protection and certain immunities. APPENDIX III 383 CHAPTER II SANITARY FORMATIONS AND ESTABLISHMENTS Art. 6. Movable sanitary formations (i. e., those which are intended to accompany armies in the field) and the fixed establishments belong- ing to the sanitary service shall be protected and respected by belliger- ents. Art. 7. The protection due to sanitary formations and estabUsh- ments ceases if they are used to commit acts injurious to the enemy. Art. 8. A sanitary formation or establishment shall not be deprived 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 established. 3. Arms or cartridges, taken from the wounded and not yet turned over to the proper authorities, are found in the formation or establish- ment. CHAPTER III PERSONNEL Art. 9. The personnel exclusively charged with the removal, trans- portation, and treatment of the sick and wounded, as well as with the administration of sanitary formations and establishments, 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^ 384 APPENDIX III before actual employment — the names of the societies which it has authorized to render assistance, under its responsibility, in the official sanitary service of its armies. Art. 11. a recognized society of a neutral state cannot lend the services of its sanitary personnel and formations to a belligerent except with the prior consent of its own government and the authority of such belligerent. The belligerent who has accepted such assistance 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 MATERIEL Art. 14. Mobile sanitary formations that have fallen into the power of the enemy shall retain their materiel and means of transportation of whatever kind, including teams, whatever may 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 of the materiel shall take place in accordance with the conditions pre- scribed 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 cannot be diverted from their use so long as they are necessary for the sick and wounded, 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 APPENDIX III 385 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 OF EVACUATION Art. 17, Convoys of evacuation shall be treated as movable sanitary formations with the following exceptions: 1. A belligerent intercepting a convoy may, if required by military necessity, break up such convoy by charging himself with the care of the sick and wounded whom it contains. 2. In this case the obligation to restore 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 interior navigation which have been especially equipped for evacuation pur- poses, 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 requisi- tion, 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 sanitary 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 permission of competent military authority. 386 APPENDIX III Art. 20. The personnel protected by the provisions of paragraph 1 article 9, and articles 10 and 11 will wear attached to the left arm a brassard bearing a red cross on a white ground, which will be issued and stamped by competent military authority, and accompanied 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 displayed, •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 ac- companied 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 set forth in article 11, have been authorized to render their services shall fly, with the flag of the convention, the national flag of the belliger- ent to which they are attached. The provisions of the second para- graph of the preceding article are appUcable 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 establish- ments, 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 goverimients, and conformably to the general principles of this convention. Art. 26. The signatory governments shall take the necessary steps to APPENDIX III 387 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 INFRACTIONS 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 persons 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 for commercial purposes by means of trade marks or com- mercial 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. 28. 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 insignia, 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 convention. GENERAL PROVISIONS Art. 29. The present convention shall be ratified as soon as possible. The ratifications will be deposited at Berne. A record of the deposit of each act of ratification shall be prepared, of which a duly certified copy shall be sent, through diplomatic chan- nels, 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 supersede 388 APPENDIX III the Convention of August 22, 1864, in the relations between the con- tracting states. The Convention of 1864 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 jjowers not represented at the conference who have signed the Convention of 1864. Such of the powers as shall not have signed the present convention on or before December 31, 1906, will remain at liberty to accede to it after that date. They shall signify their adhesion in a written notifica- tion 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 not been ad- vised of any opposition on the part of any of the contracting powers. Art. 33. Each of the contracting parties shall have the right to denounce the present convention. This denunciation shall only become 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 con- vention and affixed their seals thereto. Done at Geneva, the sixth day of July, one thousand nine hundred 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 di})lomatic channel to the contracting parties. [Here follow the signatures.] APPENDIX IV CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES His Majesty the Cerman Emperor, King of Prussia; the President of the United States of America; the 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 Roj-al Highness the Prince of Bulgaria; the President of the Republic of Chile; His Majesty the Emperor of China; the President of the Republic of Colombia; the Provisional Governor of the Republic of Cuba; His Majesty the King of Denmark; the President of the Dominican Republic; the President of the Repubhc of Ecuador; His Majesty the King of Spain; the Presi- dent 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 Guatemala; 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 Lux- emburg, Duke of Nassau ; the President of the United States of Mex- ico; His Royal Highness the Prince of Montenegro; the President of the Republic of Nicaragua; His Majesty the King of Norway; the President of the Republic of Panamd; the President of the Republic of Paraguay; Her Majesty the Queen of the Netherlands; the Presi- dent of the Republic of Peru ; His Imperial Majesty the Shah of Per- sia; 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 Republic of Salvador; His Majesty the King of Servia; His Majesty the King of Siam; His Majesty the King of Sweden ; the Swiss Federal Council ; His Majesty the Emperor of the 3S9 390 APPENDIX IV Ottomans; the President 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 international 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- tion, accessible to all, in the midst of the independent Powers, will contribute elTectively 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 re\ase 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. APPENDIX IV 391 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 deem it expedient and desirable that one or more Powers, strangers to the dispute, should, on their own initiative, and as far as circum- stances 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. 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 war. 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 conununication with the Power chosen on the other side, with the object of preventing the rupture of pacific relations. 392 APPENDIX IV 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 elTorts 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 con- scientious investigation. Art. 10. The International Commissions of Inquiry are consti- tuted by special agreement between the parties in conflict. The Inquiry Convention 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- mission shall use and the languages the use of which shall be author- ized before it, as well as the date on which each party must depesit its statement of facts, and, generally speaking, all the conditions upon which the parties have agreed. If the parties consider it necessary to appoint Assessors, the In- quiry Convention shall determine the mode of their selection and the extent of their powers. Art. 11. If the Inquiry Convention has not determined where the Commission 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 Commission. Art. 12. Unless an undertaking is made to the contrary, Com- APPENDIX IV 393 missions of Inquiry shall be formed in the manner determined by Articles 45 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 offices and staff at the disposal of the Contracting Powers for the use 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 Conunissions 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, the instruments, papers, and documents which it consiflers 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 394 APPENDIX IV 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 local- ity, must be made in the presence of the agents and counsel of the 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 Inquiry, 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 territory of a third Contracting Power, the Conmiission 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 sights 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 wit- ness questions which they consider likely to throw light on and complete his evidence, or get information on any point concerning APPENDIX IV 395 the witness within the limits of what is necessary in order to get at the truth. The agents and counsel of the parties may not interrupt the witness when he is making his statement ; 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 al- lowed 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. 28. A Minute of the evidence of the witness is drawn up forth- 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, he is required 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 Com- mission, 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 of the parties being present or duly summoned. 396 APPENDIX IV 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 ])arty pays its own expenses and an equal share of the expenses incurred by the Commission. Title IV. — On International Arbitration Chapter I. On the System of Arbitration Art. 37. International arbitration has for its object the settle- ment 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 dii)lomacy 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 circumstances 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 disi)utes of a certain category. Art. 40. Independently of general or private Treaties expressly stipulating recourse to arbitration as obligatory on the Contracting Powers, the said Powers reserve to themselves the right of concluding new Agreements, general or private, with a view to extending oblig- atory arbitration to all cases which they may consider it possible 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 APPENDIX IV 397 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 is competent for all arbitration cases, unless the parties agree to institute a special Tribunal. Art. 43. The Permanent Court sits at The Hague. An Inter- national Bureau serves as registry for the Court. It is the channel for communications relative to the meetings of the Court; it has the custody of the archives and conducts all the administrative business. The Contracting Powers undertake to communicate to the Bureau as soon as possible a certified copy of any conditions of arbitration arrived at between them, and of any award concerning them delivered by a special Tribunal. They undertake likewise to communicate to the Bureau the laws, regulations, and documents eventually showing the execution of the awards given by the Court. Art. 44. Each Contracting 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 are inscribed, as members of the Court, in a list which shall be notified by the Bureau to all the Contracting 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 may be selected by different Powers. The Members of the Court are appointed for a term of six years. Their appointments can be renewed. 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 appointment. In this case the appointment is made for a fresh period of six years. Art. 43. 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 Tribunal 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: 398 APPENDIX IV 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 intrusted 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 Court, 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. 46. As soon as the Tribunal has been constituted, the parties notify to the Bureau their determination to have recourse to the Court, the text of their "Compromis," and the names of the Arbi- trators. The Bureau communicates without delay to each Arbitrator the "Compromis," and the names of the other members of the Tribunal. The Tribunal assembles on the date fixed by the parties. The Bureau makes the necessary arrangements for the meeting. The Members of the Tribunal, 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 Tribunal. 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 APPENDIX IV 399 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 declaration. 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 Affairs, who acts as President, is charged with the direction and control of the International Bureau. 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. IL 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- 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 arbitra- tion, 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 "Compromis," in which the subject of the dispute is clearly defined, the time allowed for appointing Arbitrators, the form, order, and time 400 APPENDIX IV in which the commiinication referred to in Article 63 must be made, and the amount of the sum which each party must deposit in advance to defray the expenses. The "Compromis" Ukewise defines, if there is occasion, the manner of appointing Arbitrators, any special powers wliich may eventually belong 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- promis," if the parties are agreed to have recourse to it for the purpose. 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 expUcitly 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, 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 arrangement 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, paragraphs 3 to 6. The fifth member is President of the Commission ex officio. Art. 55. The duties 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 between the parties, the course referred to in Article 45, paragraphs 3 to 6, is followed. APPENDIX IV 401 Art. 56. 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 Tribunal. Art. 59. In case of the death, retirement, or disability from any cause of one of the Arbitrators, his place shall be filled in accordance 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 may only sit in the territory of a third Power with the latier'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 "Compromis" has not determined what languages are to be used, 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 between themselves and the Tribunal. They are further authorized to retain, for the defense of their rights and interests before the Tribunal, counsel or advocates appointed 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 : written pleadings and oral discussions. The pleadings consist in the communication by the respective agents to the members of the Tribunal and the opposing party, of cases, coun- ter-cases, and, if necessary, of replies; the parties annex thereto all papers and documents relied on in the case. This communication shall be made either directly or through the intermediary of the Inter- national Bureau, in the order and within the time fixed by the "Com- promis." The time fixed by the "Compromis" may be extended by mutual agreement by the parties, or by the Tribunal when the latter considers it necessary for the purpose of reaching a just decision. 402 APPENDIX IV Discussion consists in the oral development before the Tribunal of the arguments of the parties. Aet. 64. A duly certified copy of every docimient 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 may, 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 Tribunal all the arguments they may think expedient in defense of their case. Art. 71. They are entitled to raise objections and points. The decisions 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 ques- tions to the agents and counsel of the parties, and to demand explana- tions 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 expression 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- APPENDIX IV 403 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 each party must conclude its arguments, and to arrange all the for- mahties required for dealing with the evidence. Art. 75. The parties imdertake to supply the Tribunal, as fully as they consider possible, with all the information required for deciding the case. Art. 76. For all notices which the Tribunal has to serve in the territory of a third Contracting Power, the Tribunal shall apply direct to the Government of that Power. The same rule applies in the case of steps being taken to procure evidence on the spot. The requests for this purpose are to be executed as 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 them calculated to impair its own sovereign rights or its safety. The Tribunal will equally be always entitled to act through the Power on whose territory it sits. Art. 77. When the agents and counsel of the parties have sub- mitted all ex]:)lanations and evidence in support of their case, the Pres- ident 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 ma- jority of members of the Tribunal. Art. 79. The award 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 acting as Registrar. Art. 80. 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 agree- ment to the contrary, be submitted to the Tribunal which pronounced it. Art. 83. The parties may reserve in the "Compromis" the right to demand the revision of the award. 404 APPENDIX IV 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 unknown to the Tri- bunal 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, recognizing 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. Chapter IV. Arbitration by Summary Procedure Art. 86. With a view to facilitating the working 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 rescFvation that the provisions of Chapter III apply so far as they are not incon- sistent. 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 exclusive of the members appointed by either of the parties and not being nationals of either of them ; which of the candidates thus proposed shall be the Umjnre 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, APPENDIX IV 405 as soon as it is formed, settles the time within which the two parties 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 Gov- ernment which has 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 demand 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 Set- tlement 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 procbs-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 deposit of ratifications, of the notifications mentioned in the preceding para- graph, and of the instruments of ratification, shall be immediately sent by the Netherland Government, through the diplomatic 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 Government 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 Convention. The Power which desires to adhere notifies its intention in writing to the Netherland Government, forwarding to it the act of adhesion, which shall be deposited in the archives of the said Government. This Government shall immediately forward to all the other Powers 406 APPENDIX IV 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 pres- ent 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 parties to the first deposit of ratifications, 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 the Netherland Government. Art. 96. 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, which shall inamediately communicate 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 Netherland Government. 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 denimcia- tion (Article 96, 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. The said Convention was ratified by the Senate of the United States of America under reservation of the following declaration: "Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangUng itself in APPENDIX IV 407 the political questions of policy or internal administration of any- foreign state; nor shall anything contained in the said convention be construed to imply a relinquishment by the United States of America of its traditional attitude toward 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 differences can be had only by agreement thereto through general or special treaties of arbi- tration heretofore or hereafter concluded between the parties in dis- pute ; and the United States now exercises the option contained in Article 53 of said convention, to exclude the formulation of the "Com- promis"by the permanent court, and hereby excludes from the com- petence of the permanent court the power to frame the "Compromis" required by general or special treaties of arbitration concluded or hereafter to be concluded by 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 parties, unless such treaty shall expressly provide otherwise. APPENDIX V CONVENTION WITH RESPECT TO 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 in- terests of humanity and the ever progressive needs of civilization; 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 sever- ity 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 1S74, 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 provi- sions, 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 reg- ulations covering all the circvunstances which occur in practice. On the other hand, it could not be intended by the High Contracting Parties that the unforeseen cases should, in the absence of a written undertaking, be loft to the arbitrary judgment of military Command- ers. Until a more complete code of the laws of war has been issued, the * For names of States see Appendix IV, p. 389. 408 APPENDIX V 409 High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the prin- ciples of international law, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the pubhc 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: — [Names of Plenipotentiaries.] Who, after having deposited their full powers, found in good and due form, have agreed upon the following: — Article 1. The High Contracting Parties shall issue instructions to their armed land forces, which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land, an- nexed 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 between Contracting Powers, and then only if all the beUigerents 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 compen- sation. 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 Convention. Art. 5. The present Convention shall be ratified as soon as pos- sible. 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. 410 APPENDIX V 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 im- mediately 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 Convention. In the cases contemplated in the preceding paragraph the said Gov- ernment 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 Con- vention. The Power which desires to adhere notifies in writing its intention to the Netherland Government, forwarding to it the act of adhesion, which shall be deposited in the archives of the said Government. 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. 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 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 ad- hesion has been received by the Netherland Government. Art. 8. In the event of one of the Contracting Powers wishing to denounce the present Convention, the denunciation shall be notified in writing to the Netherland Government, which shall at once com- municate a duly certified copy of the notification to all the other Pow- ers, informing them of the date on which it was received. The denunciation shall only have eff'ect in regard to the notifying Power, and one year after the notification has reached the Netherland Government. Art. 9. A register kept by the Netherland Ministry for Foreign Affairs shall give the date of the deposit of ratifications made in virtue of Article 5, jjaragraphs 3 and 4, as well as the date on which the notifications of adhesion (Article 6, paragraph 2) or of denunciation (Article 8, paragrai)h 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. APPENDIX V 411 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 Powers which have been invited to the Second Peace Conference. ANNEX TO THE CONVENTION REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND SECTION I Belligerents Chapter 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 coqjs, fulfilling the following conditions : 1. To be commanded by a person responsible for his subordinates; 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 cus- toms 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 approach, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as 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. Chapter II. Prisoners of War Art. 4. Prisoners of war are in the power of the hostile Govern- ment, but not in that of the individuals or corps who captured them. They must be humanely treated. All their personal belongings, except arms, horses, and military papers, remain their property. 412 APPENDIX V 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 meas- ure of'safety, and only while the circumstances which necessitate the measure continue to exist. Art. 6. The State may utilize the labor of prisoners of war ac- cording to their rank and aptitude, officers 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 pubUc 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 executed. When the work is for other branches of the pubhc 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 position, 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. Art. 8. Prisoners of war shall be subject to the laws, regulations, and ord(!rs 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. Escaped prisoners, recaptured before they have succeeded in re- joining their army or before quitting the territory occupied by the army 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 liberty on parole if the APPENDIX V 413 laws of their country authorize it, and, in such a ease, they are bound, on their personal honor, scrupulously to fulfill, both as regards their own Government and the Government by which they were made prisoners, the engagements they have contracted. In such cases, their own Government shall not require of nor accept from them any service incomi^atible with the parole given. Art. U. a prisoner of war cannot be forced to accept his liberty on parole; similarly the hostile Government is not obhged 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 arms 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 before the Courts. Art. 13. Individuals who follow an army without directly be- longing 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 authorities 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 intended to answer all inquiries about prisoners of war, and is furnished by the various services concerned with all the information respecting intern- ments and transfers, releases on parole, exchanges, escapes, admissions into hospital, deaths, as well as other information necessary to enable it to make out and keep up to date an individual return for each prisoner of war. The bureau must state in this return the regimental number, name and surname, age, place of origin, rank, unit, wounds, date and place of captm-e, of internment, the woimds, and the death, as well as any observations of a special character. The individual re- turn shall be sent to the Government of the other belligerent after the conclusion of peace. It is also the duty of the information bureau to receive and collect all objects of personal use, valuables, letters, etc., found on the battle- fields or left by prisoners who have been released on parole, or ex- changed, or who have escaped or died in hospitals or ambulances, and to transmit them to those interested. 414 APPENDIX V Art. 15. Relief Societies for prisoners of war, which are properly constituted in accordance with the law of the country with the object of serving as the intermediary for charity, shall receive from the bel- ligerents for themselves and their duly accredited agents every facil- ity, within the bounds of military requirements and administrative regulations for the effective accomplishment of their humane task. Delegates of these Societies may be admitted to the places of intern- ment for the distribution of relief, as also to the halting places of re- patriated prisoners, if furnished with a personal permit by the military authorities, and on giving an engagement in writing to comply with all regulations for order and police which they may prescribe. 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 destina- tion, 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 detained, 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 Aip 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, the repatriation of pris- oners of war shall take place as speedily as possible. Chapter III. The Sick and Wounded Art. 21. The obligations of belligerents with regard to the sick and wounded are governed by the Geneva Convention. APPENDIX V 415 SECTION II Hostilities Chapter I. On Means of injuring the Enemy, Sieges and Bombard- ments Art. 22. The right of belligerents to adopt means of injuring the enemy is not unlimited. Art. 23. Besides the prohibitions provided by special Conven- tions, 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 who, 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 superfluous injury; (/) 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, imless 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 actions of the nationals of the hostile party. A belligerent is hkewise 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 before the commencement of war. Art. 24. Ruses of war and the employment of methods necessary to obtain information about the enemy and the coimtry, are consid- ered allowable. Art. 25. The attack or bombardment, by whatever means, of towns, villages, habitations or buildings which are not defended, is prohibited. 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 416 APPENDIX V 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. Chapter II. Spies Art. 29. An individual can only be considered a spy if, acting clandestinely, or on false pretenses, he obtains, or seeks to obtain in- formation in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. Thus, soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not consid- ered spies. Similarly, the following are not considered spies: soldiers or civilians, carrying out their mission openly, charged with the de- livery 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 communication be- tween the various parts of an army or a territory. Art. 30. A spy taken in the act cannot be punished without previous 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, 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 communica- tion with the other, and who carries a white flag. He has a right to inviolability, as well as the trumpeter, bugler, or drummer, the flag- bcarcr 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 advan- tage of his mission to obtain information. APPENDIX V 417 In case of abuse, he has the right to detain the envoy temporarily. Art. 34. The bearer of a flag of truce loses his rights of inviolability if it is proved beyond doubt that he has taken advantage of his privi- leged position to provoke or commit an act of treachery. Chapter IV. Capihdations 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. 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, provided always the enemy is warned within the time agreed upon, in accord- ance with the terms of the armistice. Art. 37. An armistice may be general or local. The first sus- pends 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 officially, and in good time, to the competent authorities and the troops. Hostilities are suspended 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 with each 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 \aolation of the terms of the armistice by individuals acting on their own initiative, only confers the right of demanding the punishment of the offenders, and, if necessary, indemnity for the losses sustained. SECTION III Military Authority over Hostile Territory Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army. 418 APPENDIX V 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 order 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 the army of the other belligerent or about its means of defense 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 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 terri- tory. 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 collectively responsible. Art. 51. No contribution 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 accordance with the rules in existence and the assessment of taxes in force. For every payment a receipt shall be given to the payer. 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 APPENDIX V 419 obligation of taking part in military operations against their own country. These requisitions and services shall only be demanded on the authority 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 j^ossession of the cash, fimds, and realizable securities belonging strictly to the State, depots of arms, means of transport, stores and suppUes, 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, depots of arms and, generally, all kinds of war material may be seized, even though belonging to private persons, 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 compensa- tion fixed when peace is made. Art. 55. The occupying State shall be regarded only as adminis- trator and usufructuary of the public buildings, real estate, forests, and agricultural works belonging to the hostile State, and situated in the occupied country. It must protect the capital of these properties, and administer it according to the rules of usufruct. Art. 56. The property of the communes, that of religious, char- itable, and educational institutions, and those of arts and science, even when State property, shall be treated as private property. All seizure of, and destruction, or intentional damage done to such institutions, to historical monuments, works of art or science, is pro- hibited, and should be made the subject of proceedings. APPENDIX VI CONVENTION RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS AND PERSONS 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: Chapter I. The Rights and Duties of Neutral Powers 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. (6) 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 messages. 'For names of States sec Appendix IV, p. 389. 420 APPENDIX VI 421 Art. 4. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belUgerents. 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 neutraUty unless the said acts have been committed on its own territory. Art. 6. The responsibiUty of a neutral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents. Art. 7. A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the beUigerents, 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 beUigerents 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 neutral 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, attempts to violate its neutrality cannot be regarded as a hostile act. Chapter II. Internment of Belligerents and Care of Wounded in Neutral Territory Art. 11. 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 fortresses or in places set apart for this purpose. It shall decide whether officers may 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. 422 APPENDIX VI 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 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. 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 material of war. In such a case, the neutral Power is bound to take whatever measures of safety and control are necessary for the purpose. 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 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 interned in neutral territory. Chapter III. Neutral 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 parties. In such a case, the neutral shall not be m.ore 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) The furnishing of supplies or loans to one of the 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 territory occupied by him, and that the supplies do not come from these territories; APPENDIX VI 423 (6) The rendering of services in matters of police or civil adminis- tration. Chapter 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 companies or private persons, and recognizable as such, shall not be requisitioned or utilized by a belligerent except where and to the extent 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 proportion to the material used, and to the period of usage. Chapter 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.] APPENDIX VII CONVENTION RELATIVE TO THE STATUS OF ENEMY MERCHANT-SHIPS AT THE OUTBREAK OF HOSTILITIES [Names of States.'] Anxious to insure the security of international commerce against the surprises of war, and wishing, in accordance with modern prac- tice, to protect as far as possible operations undertaken in good faith and in process of being carried out before the outbreak of hostilities, have resolved to conclude a Convention to this effect, and have ap- pointed the following persons 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 L When a merchant-ship belonging to one of the bellig- erent Powers is at the commencement of hostilities in an enemy port, it is desirable that it should be allowed to depart freely, either immediately, or after a reasonable number of days of grace, and to proceed, after being furnished with a pass, direct to its port of des- tination or any other port indicated. The same rule should apply in the case of a ship which has left its last port of departure before the commencement of the war and en- tered a port belonging to the enemy while still ignorant that hostilities had broken out. Art. 2. A merchant-ship unable, owing to circumstances of force majeure, to leave the enemy port within the period contemplated in the above Article, or which was not allowed to leave, cannot be con- fiscated. The belligerent may only detain it, without payment of compensa- tion, but subject to the obligation of restoring it after the war, or requisition it on payment of compensation. * For names of States see Appendix IV, p. 389. 424 APPENDIX VII 425 Art. 3. Enemy merchant-ships which left their last port of de- parture before the commencement of the war, and are encountered on the high seas while still ignorant of the outbreak of hostilities cannot be confiscated. They are only Uable to detention on the understand- ing that they shall be restored after the war without compensation, or to be requisitioned, or even destroyed, on payment of compensation, but in such case provision must be made for the safety of the persons on board as well as the security of the ship's papers. After touching at a port in their own country or at a neutral port, these ships are subject to the laws and customs of maritime war. Art. 4. Enemy cargo on board the vessels referred to in Articles 1 and 2 is likewise Uable to be detained and restored after the termina- tion of the war without payment of compensation or to be requisi- tioned on pajonent of compensation, with or without the ship. The same rule applies in the case of cargo on board the vessels referred to in Article 3. Art. 5. The present Convention does not affect merchant-ships whose build shows that they are intended for conversion into war- ships. Art. 6. 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.] APPENDIX VIII 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 evil& 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. Hosf)ital-ships, equipped wholly or in part at the expense of private individuals or officially 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. * For names of States see Appendix IV, p. 389. 426 APPENDIX VIII 427 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 ofiicially recognized societies of neutral coun- 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 liis adversary at the commencement of or during hostilities, and in any case, before they are employed. 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 miUtary 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 painted 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. 428 APPENDIX VIII 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 them remain sub- ject to the laws of war; they cannot, however, be used for any purpose 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, 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, subject to special promises that have been made to them, they remain liable to capture for any violations of neutrality they may have com- mitted. Art. 10. The religious, medical, and hospital staff of any cap- tured ship is inviolable, and its members cannot be made prisoners APPENDIX VIII 429 of war. On leaving the ship they take away with them the objects and surgical instruments which are tlieir 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 individ- uals, 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 the belligerent States, be guarded by the neutral State so as to i:)re- 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 corpses. Art. 17. Each belligerent shall send, as early as possible, to the 430 APPENDIX VIII authorities of their country, navy, or army the mihtary marks or doc- uments of identity found on the dead and the description of the sick and wounded picked up by him. The beUigerents 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 except 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 shall provide for the execution of the details of the above Articles, as also for cases not covered thereby, in accordance with the instructions 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. They will communicate to each other, through the Netherland Gov- ernment, the enactments for preventing such acts at the latest within five years of the ratification of the present Convention. Art. 22. In the case 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. [Articles providing for ratification follow.] APPENDIX IX CONVENTION WITH REGARD TO THE EXERCISE OF THE RIGHT OF CAPTURE IN NAVAL WAR [Names of States.'] Recognizing the necessity of more effectively insuring than hith- erto the equitable application of law to the maritime international relations in time of war; Considering that, for this purpose, it is expedient, in giving up or, if necessary, in harmonizing for the common interest certain conflict- ing practices of long standing, to commence codifying in regulations of general application the guarantees due to peaceful commerce and legitimate business, as well as the conduct of hostiHties by sea; that it is expedient to lay down in written mutual engagements the prin- ciples which have hitherto remained in the uncertain domain of con- troversy or have been left to the discretion of Governments; That, from henceforth, a certain number of rules may be made, without affecting the common law now in force with regard to the matters which that law has left unsettled ; 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 : Chapter I. Postal Correspondence Article 1. The postal correspondence of neutrals or belligerents, whatever its official or private character may be, found on the high seas on board a neutral or enemy ship, is inviolable. If the ship is detained, the correspondence is forwarded by the captor with the least possible delay. * For names of States see Appendix IV, p. 389. 431 432 APPENDIX IX The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for or proceeding from a blockaded port. Art. 2. The inviolabiUty of postal correspondence does not ex- empt a neutral mail-ship from the laws and customs of maritime war as to neutral merchant-ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible. Chapter II. The Exemption from Capture of Certain Vessels Art. 3. Vessels used exclusively for fishing along the coast or small boats employed in local trade are exempt from capture, as well as their appliances, rigging, tackle, and cargo. They cease to be exempt as soon as they take any part whatever in hostilities. The Contracting Powers agree not to take advantage of the harmless character of the said vessels in order to use them for military pur- poses while preserving their peaceful appearance. Art. 4. Vessels charged with religious, scientific, or philanthropic missions are likewise exempt from capture. Chapter III. Regulations Regarding the Crews of Enemy Merchant- Ships Captured by a Belligerent Art. 5. When an enemy merchant-ship is captured by a belliger- ent, 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 officers likewise nationals of a neutral State, if they promise formally in writing not to serve on an enemy ship while the war lasts. Art. 6. The captain, officers, and members of the crew, when nationals of the enemy State, are not made prisoners of war, on con- dition that they make a formal promise in writing, not to undertake, while hostilities last, any service connected with the operations of the war. Art. 7. The names of the persons retaining their liberty under the conditions laid down in Article 5, paragraph 2, and in Article 6, are notified by the belligerent captor to the other belligerent. The latter is forbidden knowingly to employ the said persons. APPENDIX IX 433 Art. 8. The provisions of the three preceding Articles do not ap- ply to ships taking part in the hostilities. Chapter IV. Final Provisions x\.RT. 9. 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.] APPENDIX X CONVENTION RELATIVE TO THE CREATION OF AN INTERNATIONAL PRIZE COURT [Names of States.'] Animated by the desire to settle in an 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 aj^peal should be provided, under condi- tions conciliating, as far as possible, the public and private interests involved in matters of prize ; Considering, 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 Plenipotentiaries.] Who, after de])ositing their full powers, foimd in good and due form, have agreed upon the following provisions: Pakt 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. ' For names of States see Appendix IV, p. 389. 434 APPENDIX X 435 Art. 2. Jurisdiction in matters of prize is exercised in the first instance by the Prize Courts of the belligerent captor. The judgments of these Courts are pronoimced in jjublic 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 property of a neutral Power or individual; 2. When the judgment affects enemy property and relates to — (a) Cargo on board a neutral ship ; (6) 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; (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 belligerent 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 injuriously afYects 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 paragraph (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. 436 APPENDIX X 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. Aht. 6. When, in accordance with the above Article 3, the Inter- national Court has jurisdiction, the National Coiu-ts 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 Court 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 justice and equity. 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 Court 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 comj^ensation 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. APPENDIX X 437 Art. 9. The Contracting Powers undertake to submit in good faith to the decisions of the International 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 period 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. \\Tien the date is the same the senior in age takes precedence. 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 Powers: Germany, the United States of America, Austria-Hungary, 438 APPENDIX X France, Great Britain, Italy, Japan, and Russia, are always sum- moned to sit. The Judges and Deputy Judges appointed by the other Contract- ing Powers sit by rota as shown in the Table annexed to the present Convention ; their duties may be performed successively by the same person. 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 affect tlie 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 subject 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 ap- pointed. 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 traveling 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 Nethcrland florins per diem. 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. Th(> Judges may not receive from their own Government or from that of any other Power any remuneration in their capacity of members of the Court. APPENDIX X 439 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 fulfills, with regard to the International Prize Court, the same functions as to the Permanent Court of Arbitration, but only Representatives of Contracting Powers will be members of it. Art. 23. The International Bureau acts as registry to the Inter- national Prize Court and must place its offices and staff at the disposal of the Court. It has charge of the archives and carries out the admin- istrative work. The Secretary-General of the International Bureau acts as Registrar. The necessary secretaries to assist the Registrar, translators and shorthand writers are appointed and sworn in by the Court. Apt. 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 special agents to act as intermediaries between themselves and the Court. They may also engage counsel or advocates to defend their rights and interests. Art. 26. A private person concerned in a case will be represented before the Court by an attorney, who must be either an advocate qual- ified 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 centers 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 Government of the State on whose territory the service is to be carried out. The same rule apphes in the case of steps being taken 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 them calculated to impair its sovereign 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. 440 APPENDIX X 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 Bu- reau; 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 (Arti- cle 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 possible by telegraph. The latter will transmit the record as provided in the preceding paragraph. When the appeal is brought by a neutral individual the International Bureau at once informs by telegraph the individual's Government, in order to enable it to enforce the rights it enjoys under Article 4, para- graph 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 period 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 was 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, APPENDIX X 441 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. 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 rephes, 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 own initiative, in order that supplementary evidence may be obtained. Art. 36. The International Court may order the supplementary evidence to be taken either in the manner provided by Article 27, or before itself, or one or more of the members of the Court, pro\ided 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 con- sent 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 senior Judge present. The Judge appointed by a belligerent party may not preside. Art. 39. The discussions take place in pubUc, 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. 442 APPENDIX X 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 all judgments or orders 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. 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 junior Judge in the order of precedence laid down in Article 12, paragraph 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 proceed- ings. Art. 46. Each party pays its own 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 subject- matter of the case as a contribution to the general expenses of the International Court. The amount of these payments is fixed in the jutlgment of the Court. If the api)eal is brought by an individual, he will furnish the Inter- national Bureau with security to an amount fixed by the Court, for the puqioso of guaranteeing eventual fulfilment of the two obligations mentioned in the preceding paragraph. The Court is entitled to post- pone the opening of the proceedings until the security has been fur- nished. Art. 47. The general expenses of the International Prize Court are borne by the Contracting Powers in proportion to their share in APPENDIX X 443 the composition of the Court as laid down in Article 15 and in the an- nexed 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, paragraph 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 ratification 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. 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.] APPENDIX XI 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 conformity with these 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.] ■ For names of States see Appendix IV, p. 389. 444 APPENDIX XI 445 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 neutraUty. 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 stiU 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 be 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 beUigerent forces on land 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 transit, for the use of either beUigerent, of arms, ammunitions, or, in general, of anything which could be 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 entirely or partly within the said jurisdiction for use in war. Art. 9. A neutral Power must apply impartially to the two belligerents the conditions, restrictions, or prohibitions made by it in 446 APPENDIX XI regard 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 belUgerent 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 permitted 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. Art. 13. If a Power which has been informed of the outbreak of hostiUties learns that a belUgerent 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. 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 delay 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 ap- ply to war-ships devoted exclusively to reUgious, scientific, or philan- thropic 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 belong- ing 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. APPENDIX XI 447 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 fighting 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 suppUed 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. Art. 21. A prize may only 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 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 in- tern 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 or not under convoy, when they are brought there 448 APPENDIX XI 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 Uberty. 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 dur- ing the war, and the commanding 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 subjected to the meas- ures 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, ordinances, and other enactments regulating 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. Art. 28. The provisions of the present Convention do not apply except to the Contracting Powers, and then only if all the belUgerents are parties to the Convention. [Articles providing for ratification follow.] APPENDIX XI 449 [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 Confer- ence held at The Hague from June 15 to October 18, 1907, concerning the rights and duties of neutral powers in naval war, reserving and excluding, however, Article 23 thereof, which is in the following words : A neutral power may allow prizes to enter its ports and roadsteads whether or not under convoy, when they are brought there to be seques- trated 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 Uberty. Resolved, further. That the United States adheres to this convention with the understanding that the last clause of Article 3 imphes 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. APPENDIX XII DECLARATION OF LONDON [Translation.] 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 ApostoUc King of Hungary; His Majesty the King of Spain ; the President of the French RepubUc ; 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 to- gether 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 pro- cedure ; 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; 450 APPENDIX XII 451 Have appointed as their Plenipotentiaries, that is to say: [Names of Plenipotentiaries.] Who, after having communicated their full powers, found in good and due form, have agreed to make the present Declaration: PRELIMINARY PROVISION The Signatory 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 blockade, in order to be binding, must be effective — that is to say, it must be maintained by a force sufficient really to prevent access to the enemy coast. Art. 3. The question whether a blockade is eflfective is a cjuestion 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 blockad- ing 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. 452 APPENDIX XII Art. 10. If the blockading Power, or the naval authorities act- ing in its name, do not establish the blockade in conformity with the provisions, which, in accordance with Article 9 (1) and (2), must be inserted 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. 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 reestablished 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 notifi- cation of the blockade made in sufficient time to the Power to whi«h 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 notifi(?ation 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 APPENDIX XII 453 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 caj^ture 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: 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 only suitable for use in 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. 454 APPENDIX XII 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 imas- 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, radiotelegraphs 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 wliich are not specially adapted for use in war. (11) Barbed wire as also the implements for placing and cutting the same. s. (12) Horseshoes and horseshoeing materials. (13) Harness and saddlery material. (14) Binocular glasses, telescopes, 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 moans 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 re- gard as contraband of war articles and materials which are comprised APPENDIX XII 455 in any of the classes enumerated in Articles 22 and 24, it shall make known its intention by a declaration notified in the manner 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 materials of the textile industries, and also yarns 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 watches, other than chronometers. (15) Fashion and fancy goods. (16) Feathers of all kinds, hairs, and bristles. (17) Articles of household furniture and decorations; office furniture 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 miUtary necessity and, subject to the payment of compensation, be requisitioned, if their destination is that specified in Article 30. (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. 456 APPENDIX XII 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 arriv- ing 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 Uable 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 purposes 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 serving as a base for the armed forces of the enemy ; this presumption^ how- ever, 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 innocent. The presumptions laid down in this Article admit proof to the con- trary. Art. 35. Conditional contraband is not liable to capture, except when on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and when it is not to be discharged at an intervening neutral port. APPENDIX XII 457 The ship's papers are conclusive proof both 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 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 35, 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 Ar- ticle 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 ter- ritorial 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 accompUshed 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 volume, 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 during the pro- ceedings 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 ignorance of the hostilities or of the declaration of contraband affect- ing her cargo, the contraband is not to be condemned except with in- demnity ; the vessel herself and the remainder of the cargo are exempt from condemnation and from the expenses referred to in Article 41. The case is the same if the master after becoming aware of the open- ing 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 declara- tion of contraband, if she left a neutral port after there had been made in sufficient time the notification of the opening of hostilities, 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 en- emy port after the opening of hostilities. 458 APPENDIX XII 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 beUigerent 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. Chapter III. Unneutral Service Art. 45. A neutral vessel is liable to be condemned and, in a gen- eral way, is liable to the same treatment which a neutral vessel would undergo when hable to condemnation on account of contraband of war: (1) If she is making a voyage specially with a view to the transport of individual passengers who are embodied in the armed force of the enemy, or with a view to the transmission of information in the in- terest 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 de- tachment of the enemy, or one or more persons who, during the voy- age, 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 Ukewise Uable to condemna- tion. The provisions of the present Article do not apply if when the vessel is encountered at sea she is unaware of the opening of hostilities, or if the master, after becoming aware of the opening of hostilities, has not been able to disembark the passengers. The vessel is deemed toTcnow of the state of war if she left an enemy port after the opening of hos- tilities, or a neutral port after there had been made in sufficient time a notification of the opening of hostilities 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. APPENDIX XII 459 (3) If she is chartered entire by the enemy Government. (4) If she is at the time and exclusively either devoted to the trans- port of enemy troops or to the transmission of information in the in- terest 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. Art. 49. As an exception, a neutral vessel captured by a belliger- ent ship, and which would be liable to condemnation, 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 placed 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 neces- sity 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 destruction 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 hable to condemnation found on board a vessel which herself is not liable to condemnation, provided that the 460 APPENDIX XII circumstances are such as, according to Article 49, justify the de- struction 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 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 Flag 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, however, 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 effected more than thirty days before the opening of hostilities if it is absolute, complete, conforms to the laws of the countries concerned, and if its effect is such that the control of the vessel and the profits of her em- ployment do not remain in the same hands as before 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 -com- pensation. Art. 56. 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 blockaded port. (2) If there is a right of redemption or of revision. (3) If the requirements upon which the right to fly the flag depends, according to the laws of the country of the flag hoisted, have not been observed. APPENDIX XII 461 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 is entitled 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 exercises, 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. Neutral 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. Art. 62. If the commander of the belligerent ship of war has rea- son to suspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions to him. In such a case it is for the commander of the convoy alone to conduct an in- vestigation. He must state the result of such investigation in a re- port, of which 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. 462 APPENDIX XII 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 be- longing to the master or owner of the vessel are regarded as enemy- 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 in- divisible 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 authorities 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 possible. The ratifications shall be deposited in London. The first deposit of ratifications shall be recorded in a Protocol signed by the Representatives of the Powers taking part therein^ and by His Britannic Majesty's Principal Secretary of State for Foreign Affairs. The subsequent deposits of ratifications shall be made by means of a written notification addressed to the British Government, and 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 para- graph as well as of the instruments of ratification which accompany them, shall be immediately sent by the British Government, through the diplomatic channel, to the Signatory Powers. The said Govern- APPENDIX XII 463 ment shall, in the cases contemplated in the preceding paragraph, inform them at the same time of the date on which it received 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. 69. 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, beginning sixty days after the first deposit of ratifications, and, after that time, at the end of successive periods of six years, of which the first will be- gin 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 Confer- ence 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 accede to the present Declaration, They request the British Government to invite them to do so, A Power which desires to accede notifies its intention in writing to the British Government, in transmitting the act of accession, 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 accession, stating the date on which it received the notification. The accession takes effect sixty days after such date. The position of the acceding Powers shall be in all matters concern- ing this Declaration similar to the position of the Signatory Powers, Art. 71, The present Declaration, which shall bear the date of the 26th February, 1909, may be signed in London until the 30th June, 1909, by the Plenipotentiaries of the Powers represented at the Naval Conference. In faith whereof the Plenipotentiaries have signed the present Dec- laration, and have thereto affixed their seals. 464 APPENDIX XII 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. APPENDIX XIII UNITED STATES NEUTRALITY LAWS Sec. 5281. Every citizen of the United States, who within the territory or jurisdiction thereof, accepts and exercises a commission to serve a foreign prince, state, colony, district, or people, in war, by land or by sea, against any prince, state, 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 more than two thousand dollars, and imprisoned not more than three years. Sec. 5282. Every person, who, within the territory or jurisdiction of the United States, enlists or enters himself, or hires or retains another person to enlist or enter himself, or to go beyond the limits or juris- diction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or as a marine or seaman, on board of any vessel of war, letter of marque, or privateer, shall be deemed guilty of high misdemeanor, and shall be fined not more than one thousand dollars, and imprisoned not more than three years. Sec. 5283. Every person; who, within the limits of the United States, fits out and arras, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming, of any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, or who issues or delivers a commission within the territory or juris- diction of the United States, for any vessel, to the intent that she may be so employed, shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more thaij three years. And every such vessel, her tackle, apparel, and 465 466 APPENDIX XIII furniture; together with all materials, arms, ammunition, and stores; which may have been procured for the building and equipment thereof, shall be forfeited; one half to the use of the informer, and the other half to the use of the United States. Sec. 5284. Every citizen of the United States who, without the limits thereof, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly aids or is concerned in furnishing, fitting out, or arming any private vessel of war, or privateer, with intent that such vessel shall be employed to cruise, or commit hostilities, upon the citizens of the United States, or their property, or who takes the command of, or enters on board of any such vessel, for such intent, or who purchases any interest in any such vessel, with a view to share in the profits thereof, shall be deemed guilty of a high misdemeanor, and fined not more than ten thousand dollars, and imprisoned not more than ten years. And the trial for such offense, if committed without the limits of the United States, shall be in the district in which the offender shall be apprehended or first brought. Sec. 5285. Every person who, within the territory or jurisdiction of the United States, increases or augments, or procures to be in- creased or augmented, or knowingly is concerned in increasing or aug- menting, 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 or cruiser or armed vessel, in the service of any foreign prince or state or of any colony, district, or people, or belonging to the subjects or citizens of any such prince or state, colony, dis- trict, or people, the same being at war with any foreign prince or state or of any colony, district, or people, with whom the United States are at peace, by adding to the number of the guns of such vessel or by changing those on board of her for guns of a^ larger caliber or by adding thereto any equipment solely applicable to war, shall be deemed guilty of a high misdemeanor, and shall be fined not more than one thousand dollars and be imprisoned not more than one year. Sec. 5286. Every person, who, within the territory or jurisdic- tion of the United States, begins or sets on foot, or provides, or pre- pares the means for, any military expedition or enterprise, to be car- ried 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 misde- APPENDIX XIII 467 meaner and shall be fined not exceeding three thousand dollars and imprisoned not more than three years. Sec. 5287. The district courts shall take cognizance of all com- plaints, by whomsoever instituted, in cases of captures made within the waters of the United States or within a marine league of the coasts or shores thereof. [18 St. 320.] In every case in which a vessel is fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser, or other armed vessel is increased or augmented, or in which any miUtary expedition or enterprise is begun or set on foot, contrary to the provisions and prohibitions of this Title; and in every case of the capture of a vessel within the jurisdiction or protection of the United States as before defined ; and in every case in which any process issuing out of any court of the United States is disobeyed or resisted by any person having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, dis- trict, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, it shall be lawful for the President, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States or of the militia thereof, for the purpose of taking possession of and detaining any such vessel, with her prizes, if any, in order to the execution of the prohibitions and penalties of this Title, and to the restoring of such prizes in the cases in which restoration shall be ad- judged; and also for the purpose of preventing the carrying on of any such expedition or enteq^rise from the territories or jurisdiction of the United States against the territories or dominions of any foreign princes or state, or of any colony, district, or people with whom the United States are at peace. Sec. 5288. It shall be lawful for the President or such person as he shall empower for that purpose to employ such part of the land or naval forces of the United States or of the militia thereof, as shall be necessary to compel any foreign vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, she ought not to remain within the United States. Sec. 5289. The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall, before clearing out the same, give bond not to commit hostilities against any country with whom the United States are at peace. 468 APPENDIX XIII Sec. 5290. Collectors of customs are to detain vessels built for warlike purposes and about to depart the United States until the de- cision of the President, or until the owner gives bond. Sec. 5291. This applies to the construction of the Title.' ' The British Foreign Enlistment Acts of 1819 and 1870 may be found in 2 Lorimer, 476 et seq. APPENDIX XIV PROCEDURE IN PRIZE COURT DISTRICT COURT OF THE UNITED STATES, SOUTHERN DIS- TRICT OF FLORIDA The United States v. Str. X Prize LIBEL To the Honorable A. B., Judge of said Court. The libel of C. D., Attorney of the United States, for the Southern District of Florida, who libels for the United States and for all parties in interest against the steam vessel X, in a cause of prize, alleges : That pursuant to instructions for that purpose from the President of the United States, W. M. of the United States Navy, in and with the United States Commissioned ship of war, the N., her officers and crew, did on the 22d day of April, in the year of our Lord One thousand eight hundred and ninety-eight, subdue, seize, and capture on the high seas, as prize of war, the said steam vessel X, and the said vessel and her cargo have been brought into the port and harbor of Key West, in the state of Florida, where the same now are, within the jurisdiction of this Honorable Court, and that the same are lawful prize of war and subject to condemnation and forfeiture as such. Wherefore the said Attorney prays that the usual process of at- tachment of Prize causes may issue against the said vessel her tackle, apparel, furniture, and cargo, that Monition may issue citing all per- sons, having or claiming to have any interest or property in said Vessel and cargo to appear and claim the same; that the nature, amount, and value may be determined; that due and proper proofs may be taken and heard ; and that all due proceedings being had, the said vessel X, together with her tackle, apparel, furniture, and cargo may, on the 469 470 APPENDIX XIV final hearing of this cause, by the definitive sentence of this Court be condemned, forfeited, and sold, and the proceeds distributed accord- ing to law. C. D. TJ. S. Attorney, So. Dist. of Florida. Key West, Fla., April 23d, 1898. Let attachment and monition issue as prayed returnable on Mon- day the 9th day of May, 1898. Entered as of course. E. F., Clerk, by G. H., Dy. Clerk. Endorsed : Libel for Prize.— Filed Apr. 23d, 1898. E. F., Clerk. claimants' petition To the Honorable A. B., Judge of the District Court of the United States in and for the Southern District of Florida, in admiralty. The United States v. The S. S. X and cargo Prize And now comes into Court, I. J., and says that he is a citizen of Mobile, Ala., and agent in the United States for the firm of P. & P. of London, England, and that about 400,000 feet of pine lumber, being about one half of the cargo, is the sole and exclusive property of the said firm of P. & P., of London, England, and of no other person or persons, and that no person or persons whomsoever, enemies of the United States, have any right, title, or interest whatever in and to said cargo or any part thereof. That the said firm consists solely of [names] who are subjects of Great Britain, residing at London, England. And he further denies that the said cargo is lawful prize of war as alleged and set forth in the captor's libel exhibited and filed in this cause. Now therefore, the said I. J., comes into Court and claims the right to the possession of the said portion of the said cargo for the saia firm of P. & P.; and prays that upon a hearing of this cause the Court will award to them restitution thereof free from charges for costs and expenses, and of such other and further relief in the premises as is right and just, and he will ever pray, etc. I. J., Agent for P. & P. APPENDIX XIV 471 I. J., being duly sworn, deposes and says that he is the authorized agent in the United States of said P. & P, of London, where all the members of the firm are and reside ; that he knows the contents of the foregoing claim; that the matters and allegations therein contained are true as therein set forth ; and that his knowledge of said matters is absolute and acquired by means of his agency in the United States for the said P. & P. and by reason of his connection with the shipment of the said cargo. j j Sworn to and subscribed before me this 2nd day of May, 1898. [seal] K. L., Clerk of the United States District Court for the Southern District of Alabama. M. N. Proctor for Claimant. Endorsed: Claim for one half Cargo.— Filed May 6th, 1898, E. O., Clerk. (Another claim for the other half was filed by another claimant.) At a stated term of the District Court of the United States, for the Southern District of Florida, held in the United States Court Rooms at Key West, on the day of May, 1898. Present : — Honorable A. B., District Judge. Petition of Bailee of Owners of Vessel The United States v. The Steamship X and her cargo And now O. P., intervening as bailee for the interest of [names] in the said Steamship X, her engines, boilers, tackle, apparel, furniture and equipment, appears before this Honorable Court and makes claim to the said steamship, etc., as the same are attached by the Marshal, under process of this Court, at the instance of the United States of America, under a libel against said steamship, her cargo, etc., as a prize of war, and the said O. P. avers that before and at the time of the alleged capture of said steamship, her cargo, etc., the above named [names], residing in England, and [names] residing in Spain, all of whom are Spanish subjects, were true and bona fide owners of the said vessel, her engines, boilers, tackle, apparel and furniture; that no other person was the owner thereof, that he was in possession thereof for the said owners, and that the vessel, if restored, will belong to the said owners, and he denies that she was lawful prize. 472 APPENDIX XIV Wherefore the said 0. P., for and in behalf of the said owners, for whom he is duly authorized to make this claim, prays to be admitted to defend accordingly, and to show cause pursuant to the terms of the monition issued herein and served upon the said steamship, and upon the master thereof, as bailee, why the said steamship, her engines, etc., were not liable to be treated enemy's property at the time and place, and under the circumstances of the alleged capture, and why she should not be condemned as lawful prize of war, but should be restored with damages and costs. O. P. Sworn to before me this 18th day of May, 1898. [seal] G. H., Dy. Clerk. Q. R. Proctor for Claimant. Endorsed : Claim to X by O. P. Q. R., Proctor for Claimant.— Filed May 18th, 1898. E. F., Clerk. U. S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA The United States v. The Steamship X and her cargo Test Affidavit Southern District of Florida, S.S. 0. P. being duly sworn, deposes and says: — 1. I am the claimant herein and have verified the claim on knowl- edge derived from my position as master of the vessel about three and a half years and from my official communications with the ship owners and their representatives; the names and residences of the part owners I have learned since my examination in preparatorio, from cables to my counsel to the said owners. 2. The X is a Spanish merchant vessel, and since I have been in com- mand of her as aforesaid has traded between ports in England and Spain and the United States and West Indies; the vessel carries no passengers or mails, but is exclusively a cargo carrier. 3. In the ordinary course of her said business as a common carrier, the vessel, in the month of April, 1898, loaded a full cargo of lumber, at Ship Island, Miss., and on the 14th of April, 1898, the vessel and cargo were cleared at the Custom House in Scranton, Miss. The cargo was destined for Rotterdam, in the Kingdom of Holland, but the ves- sel was cleared coastwise from Scranton for Norfolk, in the State of APPENDIX XIV 473 Virginia, to which port the steamer was bound for coals. In the ordinary course of such a voyage the foreign clearance of a vessel for Rotterdam would have been obtained and issued from the Custom House in Norfolk. The vessel was laden at the loading port under the agency of W. S. K. & Co., an American firm as I am informed and believe, and con- formed there in all things to the laws and regulations of the United States and of said port. She was detained at Ship Island by the low water on the bar until April 19th, 1898, between 8 and 9 o'clock a.m., when she sailed from said place and proceeded on her voyage toward Norfolk, Va., as aforesaid. But for her capture and detentions as heretofore set forth, she would have reached Norfolk, and would have coaled and sailed from said port prior to May 21st, 1898, 4. It appeared from the ship's papers delivered to the captors, and was a fact, that her cargo was all taken on board prior to May 21st, 1898. And as I am informed and believe, the vessel was not otherwise excluded from the benefits and privileges of the President's Proclama- tion of April 26th, 1898. 5. At all times before the ship's seizure on April 22d, 1898, I and all my officers were ignorant that war existed between Spain and the United States, and the vessel was bound and following the ordinary course of her voyage. 6. While on the said voyage and in due prosecution thereof, at about 7 or 7.30 of the clock in the morning of April 22d, 1898, said steamship X being then about eight or nine miles from Sand Key Light, was seized and wrongfully captured by the United States ship of war N., under the command of a line officer of the United States Navy, and by means of a prize crew then and there placed on board, was forcibly brought into thds port of Key West. On being stopped by said United States ship of war, N., and being informed of the existence of war, the master and officers of the X submitted without resistance to seizure and to the placing of a prize crew on board of said vessel, proceeding therewith, under her own steam, into port. 7. Deponent is informed and believes that by the existing policy of the Government of the United States, as evidenced by the repeated declarations of its Executive, and by the Proclamation of the Presi- dent of the United States, issued and published April 26th, 1898, as well as upon principles in harmony with the present views of nations and sanctioned by recent practice, in accordance with which the Pres- 474 APPENDIX XIV ident has directed that the war should be conducted, the steamship X, at the time and place, and in the circumstances under which she was seized, was not liable to be treated as enemy's property, but on the contrary, having sailed from a port of the United States prior to the 21st of April, 1898, and being bound to another port of the United States, which in the ordinary course of her voyage she would have reached and left, with her coals, long prior to May 21st, 1898, was exempt from capture as prize of war. Sworn to before me this 18th day of May, 1898. [seal] G. H., Dy. Clerk. Endorsed: Test affidavit for X— Filed May 16th, 1898. E. F.; Clerk. IN THE DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA United States v. Spanish Steamer X and Cargo Prize. Decree This cause having come on to be heard upon the allegations of the libel, the claims of the master, and testimony taken in preparatorio, and the same having been fully heard and considered, and it appearing to the Court that the said steamer X was enemy's property, and was upon the high seas and not in any port or place of the United States upon the outbreak of the war, and was liable to condemnation and seizure, it is ordered that the same be condemned and forfeited to the United States as lawful prize of war; but it appearing that the cargo of said steamer was the property of neutrals, and not contraband or subject to condemnation and forfeiture, it is ordered that said cargo be released and restored to the claimants for the benefit of the true and lawful owners thereof. It is further ordered that the Marshal proceed to advertise and sell said vessel, and make deposit of the proceeds in accordance with law. A. B., Judge. Key West, Florida, May 27th, 1898. Endorsed : Decree.— Filed May 27th, 1898. E. F., Clerk. APPENDIX XIV 475 FORM OF DECREE OF DISTRIBUTION DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA The United States Prize V. Captured, 1898 A Final Decree of Condemnation of Vessel and Cargo having been pro- nounced in this Case, and no Appeal being taken, and it Appearing to the Court that the Gross Proceeds of the Sales are as follows, — to-wit, — Vessel, Cargo, Total, And the Costs, Expenses and Charges as taxed and allowed are as follows, — Marnhal's Fees and Charges including all expenses of Sales, Advertising, and Auctioneer's Commissions, District Attorney's Fees, Prize Commissioner's Fees and Expenses, Clerk's Fees, Leaving a Net Residue of ($ ) And it appearing to the Court upon the Report of the Prize Commissioner, that the U. S. S Commanding, was the sole Capturing Vessel, and entitled to share in the Prize, and was of Superior Force to the Captured Vessel, and it appearing that the Marshal has paid and satisfied the Bills of Costs and Charges as herein taxed, and allowed, it is Ordered that the same be paid to him out of the money on Deposit with the Assistant Treasurer of the United States subject to the Court in this case, and it is Further Ordered that the said Residue of the Gross Proceeds deposited with the Assistant Treasurer in this Case be paid into the Treasury of the United States, for Distribution, one half to the officers and crew of said and one half to the United States.* Judge of the District Court of the United States, for the Southern District of Florida. 1 See U. S. Statute cited in Sec. 141 (c), p. 344. APPENDIX XV DIGEST OF IMPORTANT CASES ARRANGED UNDER TITLES 16. Precedent and Decisions Bolton V. Gladstone, 5 East, 155 In an action on a policy of insurance in 1804 on a Danish ship and cargo warranted neutral and captured by a French ship of war (Den- mark being at peace with France), it appeared that the court in which the Danish ship was libeled declared her good and lawful prize. Held by EUenborough C. J., "that all sentences of foreign courts of compe- tent jurisdiction to decide questions of prize" were to be received "as conclusive evidence in actions upon policies of assurance, upon every subject immediately and properly within the jurisdiction of such for- eign courts, and upon which they have professed to decide judicially." United States v. Rauscher, 119 U. S. 407 The defendant was extradited from England on the charge of mur- der committed on an American vessel on the high seas. He was in- dicted in the United States Circuit Court, not for murder, but for a minor offense not included in the treaty of extradition. It was held that he could not be tried for any other offense than murder imtil he had had an op]:)ortunity to return to the country from which he was taken for the purpose alone of trial for the offense specified in the demand for his surrender. 22. Recognition of New States Harcourt v. Gaillard, 12 Wheat. 523 This case is fully stated in the text, p. 47. Williams v. The Suffolk Insurance Company, 13 Pet. 415 This case held that when the executive branch of the government, which is charged with the foreign relations of the United States shall, 476 APPENDIX XV 477 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. State of Mississippi v. Johnson, 4 Wall. 475, 501 This case held that "a bill praying an injunction against the execu- tion of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a state." Jones v. United States, 137 U. S. 202 This case held that the determination of the President, under U. S. Rev. Sts., § 5570, that a guano island shall be considered as apper- taining to the United States, may be declared through the Department of State, whose acts in this regard are in legal contemplation the acts of the President. 56. Vessels Wildenhus's Case, 120 U. S. 1 This case held that the Circuit Court of the United States has juris- diction to issue a writ of habeas corpus to determine whether one of the crew of a foreign vessel in a port of the United States, who is in the custody of the state authorities, charged with the commission of a crime, within the port, against the laws of the state, is exempt from local jurisdiction under the provisions of a treaty between the United States and the foreign nation to which the vessel belongs. The Con- vention of March 9, 1880, between Belgium and the United States was considered. 67. Extradition In the Matter of Metzger, 5 How. 176, 188 This case held that the Treaty with France of 1843 provides for the mutual surrender of fugitives from justice and that where a district judge decided that there was sufficient cause for the surrender of a person claimed by the French Government, and committed him to custody to await the order of the President of the United States, the Supreme Court had no jurisdiction to issue a habeas corpus for the purpose of reviewing that decision. 478 APPENDIX XV 103. NONCOMBATANTS Aldnous V. Nigreu, 4 Ellis and Blackburn, 217 This was an action for work and labor brought by a Russian against an Englishman during the Crimean war. Lord Campbell said: "The contract having been entered into before the commencement of hostil- ities is valid; and, when peace is restored, the plaintiff may enforce it in our Courts. But, by the law of England, so long as hostiUties pre- vail he cannot sue here." 106. Personal Property of Enemy Subjects Brown v. United States, 8 Cr. 110 It was held that British property within the territory of the United States at the beginning of hostiUties with Great Britain could not be condemned without a legislative act, and that the act of Congress de- claring war was not such an act. The property in question was the cargo of an American ship and was seized as enemy's property in 1813, nearly a year after it had been discharged from the ship. 112. Privateers United States v. Baker, 5 Blatchford, 6 This was an indictment in 1861 against Baker, the master of a pri- vate armed schooner, and a part of the officers and crew for piracy. They claimed to have acted under a commission from Jefferson Davis, President of the Confederate States of America. Nelson J. charged the jury at length; but they failed to agree on a verdict. 114. Capture and Ransom The Grotius, 9 Cr. 368 The question in this case, which was heard in 1815, was whether the capture was valid. The master, the mate, and two of the seamen swore that they did not consider the ship to have been seized as prize, and that the young man who was put on board by the captain of the privateer was received and considered as a passenger during the resi- due of the voyage. It was held that the validity of the capture of the vessel as a prize of war was sufficiently established by the evidence. APPENDIX XV 479 115. Postliminium The Two Friends, 1 C. Rob. 271 An American ship was taken by the French in 1799 when the rela- tions between France and America were strained. She was recap- tured by the crew, some of whom were British seamen. They were awarded salvage. The Santa Cruz, 1 C. Rob. 49 A Portuguese vessel was taken by the French in 1796 and retaken by English cruisers a few days later. It was held that the law of Eng- land, on recapture of property of allies, is the law of reciprocity; it adopts the rule of the country to which the claimant belongs. 117. Non-hostile Relations of Belligerents The Venus, 4 C. Rob. 355 A British vessel went to Marseilles, under cartel, for the exchange of prisoners, and there took on board a cargo and was stranded and captured on a voyage to Port Mahon. Held that the penalty was confiscation. The Sea Lion, 5 Wall. 630 This case held that a license from a " Special Agent of the Treasury Department and Acting Collector of Customs" in 1863 to bring cotton "from beyond the United States military lines" had no warrant from the Treasury Regulations prescribed by the President conformably to the act of 13th July, 1861. 121. Termination of War by Treaty op Peace The Schooner Sophie, 6 C. Rob. 138 A British ship, having been captured by the French, was condemned in 1799 by a French Consular Court in Norway. Other proceedings were afterwards had, on former evidence in the case, in the regular Court of Prize in Paris and the sentence of the Consular Court was af- firmed. Sir WiUiam Scott said: "I am of opinion, therefore, that the intervention of peace has put a total end to the claim of the British proprietor, and that it is no longer competent to him to look back to the enemy's title, either in his own possession, or in the hands of neu- tral purchasers." 480 APPENDIX XV 128. Neutral Territorial Jurisdiction The Caroline People V. McLeod, 25 Wendell, 483 During the Canadian rebellion of 1837-1838, a force was sent in the night by the British commander to capture the steamer Caroline, o^ed by an American. The steamer was engaged in transporting war material and men to Navy Island, in the Niagara River, through which runs the line separating the British from the American posses- sions. The vessel not being in her usual place in Canadian waters, the force went into American jurisdiction and seized and destroyed her. One Durfee, an American, was killed. To the American asser- tion that the proceeding was an outrage, the British Government replied that the insurgents had used American ground as the starting- point of their expeditions and as their base of supplies. The contro- versy was renewed by the arrest, in 1841, in the State of New York, of one McLeod, and his indictment for the murder of Durfee. Great Britain demanded the release of McLeod, stating that as he was an agent of the British Government engaged at the time in a public duty, he could not be held amenable to the laws of any foreign jurisdiction. Mr. Webster, then Secretary of State, admitted the correctness of the British contention, but seemed powerless to obtain the release of McLeod, on account of the inherent weakness of the Federal system.^ The Supreme Court of the State of New York held in People v. McLeod, that McLeod could be proceeded against individually on an indictment for arson and murder, though his acts had been subsequently averred by the British Government. This view was generally condemned by jurists ; ^ but the difficulty soon ended by the acquittal of McLeod. The British Government's contention was that the seizure of the Caroline was excusable on the ground stated by Mr. Webster himself as "a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation." The Twee Gebroeders, 3 C. Rob. 162 This case holds that a ship within three miles of neutral territory cannot send boats beyond the line of division for the purpose of cap- turing enemy vessels. » See 2 Moore, pp. 25 ff. ' See ibid., p. 26. APPENDIX XV 481 131. Positive Obligations of a Neutral State The Alabama Cases Up to the period of the American civil war the opinion obtained among many that a vessel of war might be sent to sea from a neutral port with the sole liability to capture as legitimate contraband, with the exception that, if she was ready to go in condition for immediate warlike use, it was the duty of the neutral to prevent her departure. In 1863 during the American civil war this view was practically taken by the British court in the case of the Alexandra; ' but the vessel after her release was taken on a new complaint at Nassau and held until after the end of the war. Lawrence says that the attitude of the Brit- ish Government in regard to this vessel, its purchase in 1863 of two iron-clad rams of the Messrs. Laird for the navy, the construction, des- tination, and intended departure of which occasioned the now famous correspondence between Lord Russell and Mr. Adams, the detention of the Fampero, which was seized in the Clyde, until the end of the American civil war, and the preventing the sale of "Anglo-Chinese gunboats against the advice of its own law officers," indicated that that government "had uneasy doubts as to the validity of the doc- trine laid down in their law-courts and maintained in their dispatches." ^ This doctrine would admit of a ship of war going to sea from a neutral port without arms, which she might receive on the high seas from an- other vessel which had sailed from the same port. For example, the Alabama left Liverpool in 1862 ready for warlike use, but without war- like equipment. This and her crew were received on the high seas from other vessels which had cleared from Liverpool; and her career as a Confederate cruiser then began. The cases of the Florida, the Georgia, and the Shenandoah were almost identical. The spoliations committed by these vessels led to the Alabama claims, the British maintaining that the American contention that it was the duty of a neutral to prevent the departure of all vessels that could reasonably be expected as about to be used for warlike puqDoses was unsound.' The Alabama case and kindred cases have produced much specula- 1 Attorney Gen'l v. Siliem et als, 2 Hurlstone v. Coltman, Exchequer Reports, 431. ^ Page 544. For the cases of the "Pampero" and the two iron-clad rams, see Wheat. D., note p. 572 et seq. 3 The American view may be found in Cushing's "Treaty of Washing- ton," and the British in Bernard's "Historical Account of the Neutrality of Great Britain during the American Civil War." 482 APPENDIX XV tion as to the establishment of a true and correct rule. After the en- actment of the American neutrality statutes in 1818, there were numer- ous decisions of the United States courts to the effect that the intent was to govern, that is, if the purpose was to send articles of contra- band, with the risk of capture, to a belligerent's country for sale, the neutral government had nothing to say, but if the purjDOse was to send out a vessel to prey on the commerce of a friendly power, then the neutral government should prevent her departure. It must be admitted that the rule is hardly satisfactory.' Hall contends that the true test should be "the character of the ship itself." If built for warlike use, the vessel should be detained; if for commercial purjjoses, she should be allowed to depart. This rule has at least one element of fairness and sense. It is not always possible to get at intent, but the character of the vessel is likely to reward observation and scrutiny.^ Regret has been expressed by many writers that the award of the arbitrators appointed imder the Treaty of Washington of 1871, upon the Alabama claims, has proved of so little value as a precedent upon the liability of a neutral power for the departure from its ports of ves- sels fitted out and equipped for the destruction of belligerent com- merce. Article VI of the Treaty provided that the Arbitrators should be " governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the Arbitrators shall determine to have been apphcable to the case. "A neutral Government is bound — "First to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace ; and also to use Uke dihgence to pre- vent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. "Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of miUtary supplies or arms, or the recruitment of men. "Thirdly, to exercise due diligence in its own ports and waters, and, » See Wheat. D., note p. 553 et seq. « Hall, p. 612. APPENDIX XV 483 as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties." The British Government declared that it "cannot assent to the fore- going rules as a statement of principles of international law which were in force at the time when the claims mentioned" arose but "in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that her Majesty's Government had undertaken to act upon the principles set forth in these rules. "And the high contracting parties agree to observe these rules as between themselves in the future, and to bring them to the knowl- edge of other maritime Powers, and to invite them to accede to them." » The phrases "due diHgence" and "base of naval operations" gave rise to a difference of opinion, as also the last part of paragraph " First " relative to preventing the departure of vessels intended to carry on war and adapted for warlike use. The contentions and the decision relative to the last point were as follows : 1. The British Contention This was that the only duty of Great Britain applied to the departure of the vessel originally, and that, if she escai)ed, and afterwards as a duly commissioned war-ship entered a British port, there was no obli- gation to detain her.^ The case of the Schooner Exchange v. M 'Fad- don ' was cited, in which a libel was filed in 1811 against that vessel, then in American waters, as an American vessel unlawfully in the custody of a Frenchman, the libelants contending that in December, 1810, while pursuing her voyage she had been forcibly taken by a French vessel at sea. The Attorney General suggested that she was a public armed vessel of France, visiting our waters as a matter of neces- sity. Chief Justice Marshall decided that as a public vessel of war com- ing into our ports and demeaning herself in a friendly manner she was exempt from the jurisdiction of the country. ' U. S. Treaties, 481. ' Argument of Sir R. Palmer in the "Argument at Geneva," published by the United States at p. 426 et seq. 3 7 Cranch, 116. 484 APPENDIX XV 2, The American Contention This was that if a Confederate cruiser, which had originally escaped, afterwards came into a British port, her commission was no protection, as it was given by a government whose belligerency only, not sover- eignty, had been acknowledged.* 3. The Award op the Tribunal This award exceeded the claim of the United States in deciding that "the effects of a violation of neutrality committed by means of the construction, equipment and armament of a vessel are not done away with by any commission which the Government of the belligerent power, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the ultimate step, by which the offense is completed, cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence," that "the privilege of extraterritoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the prin- ciples of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality," and that "the absence of a previous notice cannot be regarded as a failure in any consideration required by the law of nations, in those cases in which a vessel carries with it its own condemnation." ^ That the decision of the Tribunal has not become a precedent is quite generally conceded. Lawrence asserts that the award seems " to have been dictated more by a regard for equitable considerations than by reference to principles hitherto accepted among nations " ; that other nations have refused to accede to the "three rules" and "that it has been doubted whether they bind the two powers which originally con- tracted to observe them." ^ It is to be observed, however, that at the present time a cruiser is of such peculiar construction and depends for her efficiency on such a large outlay of money that an honest neutral is likely to have abundant proof of her character and hence the best reasons for detaining her, 1 Argument of Mr. Evarts in "Argument at Geneva," p. 448 et seq. 2 Decision and Award of the Tribunal of Arbitration in 3 Wharton, § 402 a. » Pp. 553, 554. APPENDIX XV 485 133. Contraband The Peterhojf, 5 Wall. 28, 62 The Peterhojf, a British steamer, bound from London to Matamoras in Mexico, was seized in 1863 by a United States vessel. It was held that the mouth of the Rio Grande was not included in the blockade of the ports of the Confederate states; that neutral commerce with Matamoras, a neutral town on the Mexican side of the river, except in contraband destined to the enemy, was entirely free; and that trade between London and Matamoras, even with intent to supply, from Matamoras, goods to Texas, then an enemy of the United States, was not unlawful on the ground of such violation. Questions of contra- band were also considered, and Chief Justice Chase concluded: "Con- sidering . . . the almost certain destination of the ship to a neutral port, with a cargo, for the most part, neutral in character and destina- tion, we shall not extend the effect of this conduct of the captain to condemnation, but we shall decree payment of costs and expenses by the ship as a condition of restitution." The Commercen, 1 Wheat. 382 In 1814, during the war between the United States and Great Brit- ain, a Swedish vessel bound from Limerick, Ireland, to Bilboa, Spain, with cargo of barley and oats, the property of British subjects, was seized and brought into an American port. The cargo was shipped for the sole use of the British forces in Spain. The cargo was con- demned. 134, Penalty for Carrying Contraband The Jonge Tobias, 1 C. Rob. 329 This was a case of a ship taken on a voyage from Bremen to Rochelle, laden with tar. The ship was claimed by one Schraeder and others. Schraeder, who was owner of the cargo, withheld his claim, knowing it would affect the ship. The cargo and his share of the vessel were condemned in 1799, and an attestation was required of the other part owners of the vessel that they had no knowledge of the contraband goods. 486 APPENDIX XV The Magnus, 1 C. Rob. 31 A ship laden with coffee and sugars was taken on a voyage from Havre to Genoa. The claimant of the cargo was a Swiss merchant. Held, that while interior countries are allowed to export and import through an enemy's ports, strict proof of property is required. The cargo was condemned. 135. Unneutral Service The Kow-Shing Affair, Takahashi, 24-51 On July 25, 1894, a Japanese war-ship stopped the Kow-Shing, a British transport engaged in carrying Chinese troops. After fruitless parleying, the Kow-Shing refusing to surrender as her British captain was overawed by the Chinese he was carrying, the Kow-Shing was sunk by the Japanese war-ship. The affair produced great excitement in England, and there was a demand of satisfaction from Japan on the ground that war had not been declared between that country and China. The facts appearing that a declaration of war is not necessary, and that the British captain of the transport was under compulsion, the affair was referred to Mr. Choate, the American Ambassador to Great Britain, as referee. The Friendship, 6 C. Rob. 420, 429 This was the case of an American ship bound on a voyage from Bal- timore to Bordeaux, with a light cargo and ninety French mariners as passengers, shipped by direction of the French minister in America^ In condemning the ship and cargo in 1807, Sir William Scott said: "It is the case of a vessel letting herself out in a distinct manner, under a contract with the enemy's government, to convey a number of persons, described as being in the service of the enemy, with their military char- acter traveling with them, and to restore them to their own country in that character." The Orozemho, 6 C. Rob. 430 An American vessel, having been ostensibly chartered by a mer- chant at Lisbon " to proceed in ballast to Macao, and there to take a cargo to America," was afterwards, by his directions, fitted up for APPENDIX XV 487 three military officers and two persons in civil departments in the government of Batavia, who had come from Holland to take their passage to Batavia, under the appointment of the Government of Holland. The vessel was condemned in 1807 as a transport, let out in the service of the government of Holland. The Atalanta, 6 C. Rob. 440 A Bremen ship and cargo were captured on a voyage from Batavia to Bremen, in July, 1807 having come last from the Isle of France, where a packet, containing dispatches from the government of the Isle of France to the Minister of Marine at Paris, was taken on board by the master and one of the supercargoes, and was afterwards found concealed in the possession of the second supercargo. Both ship and cargo were condemned. 139. Violation of Blockade The Juffrow Maria Schroeder, 3 C. Rob. 147 "Where a ship has contracted the guilt by sailing with an intention of entering a blockaded port, or by sailing out, the offense is not purged away till the end of the voyage ; till that period is completed, it is com- petent to any cruisers to seize and proceed against her for that offense." In this case the plea of remissness in the blockading force in permitting vessels to go in or out, was held to avail, and the ship, which was a Prus- sian one taken on a voyage from Rouen to Altona and proceeded against for a breach of the blockade of Havre, was restored. 140. Continuous Voyages The Hart, 3 Wall. 559, 560 " Neutrals who place their vessels under belligerent control and en- gage them in belligerent trade ; or permit them to be sent with contra- band cargoes under cover of false destination to neutral ports, while the real destination is to belligerent ports, impress upon them the character of the belligerent in whose service they are employed, and cannot complain if they are seized and condemned as enemy property." See the preceding case, The Bermuda, 3 Wall. 514. 488 APPENDIX XV The Maria, 5 C. Rob. 365 This was a case of a continuous voyage in the colonial trade of the enemy. The Court reviewed former cases and asked for further proof on the facts. On such further proof the court decreed restitution. See The William, 5 C. Rob. 385. 141. Prize and Prize Courts The Ship La Manche, 2 Sprague, 207 This case held that captors are not liable for damages where the vessel captured presents probable cause for the capture, even though she was led into the predicament involuntarily, and by the mistakes of the revenue officers of the captor's own government. INDEX INDEX Abrogation of treaties, 238. Absolutely contraband, what articles are, 316. Accretion, acquisition of territory by, 112. Acquisition of territorial jurisdic- tion, 108. Admiralty law, a basis of interna- tional law, 10. Aerial jurisdiction, 129. Africa, partition of, 100, 113, 114. Agreements. See Treaties. Aids to the memory, what they are, 176. Aix-Ia-Chapelle, treaty of, 21, 162, 174, 210. Alabama case. See Geneva Arbi- tration. Alaska, sale of, to the United States, 111; territorial waters of, 124, 125. Aliens, rights of, as to naturalization, 134-138; jurisdiction over, 138-140. Alternat, use of, in signing treaties, 98, 175, 203. Amalfitan tables. See Sea Laws. Ambassadors, sending of, 14; juris- diction of Supreme Court as to, 38; immunities of vessels carrjdng, 128; office of, in early days, 160, 161; rules as to, 162-166; suite of, 166, 167; who may send, 167; who may be sent as, 168; credentials, etc., of, 169 et seq.; ceremonial as to, 171-175; functions of, 176-177; termination of mission of, 178-180; immunities and privileges of, ISO- ISO. American policies, 85. Amnesty, treaty of peace as to, 203. 491 Angary, 320 n. Appeal from prize courts, 38, 342. Arbitration, Hague Convention, 222, 223; Permanent Court of, 224. See Courts of Arbitration, Geneva Ar- bitration, Venezuela. Argentine Republic, limitation of armaments, 86. Armed neutralities of 1780 and 1800, 21, 287, 312, 331. Armies, Instructions for United States, 349 et seq. Armistices.