76. Prisoners can be set at liberty on parole, if the laws of their

country do not forbid it. The conditions of their parole must be clearly

stated. If so set at liberty, they are bound, on their honor, to fulfill

scrupulously the engagements which they have freely entered into. Their

government, on its part, must neither require nor accept from them any

service inconsistent with their pledged word.

77. A prisoner cannot be compelled to accept his liberty on parole. In

the same way the enemy government is not obliged to accede to a request

made by a prisoner to be released on parole.

78. Prisoners liberated on parole and retaken in arms against the

government to which they are pledged, can be deprived of the rights of

prisoners of war, unless they have been included among prisoners

exchanged unconditionally under a cartel of exchange negotiated

subsequently to their liberation.

IV. +Persons Interned in Neutral Territory+

It is universally admitted that a neutral State cannot lend

assistance to belligerents, and especially cannot allow them to make

use of its territory without compromising its neutrality. Humanity,

on the other hand, demands that a neutral State shall not be obliged

to repel persons who beg refuge from death or captivity. The

following rules are intended to reconcile these conflicting

requirements:

79. The neutral State within the territory of which bodies of troops or

individuals belonging to the armed force of the belligerents take

refuge, must intern them at a place as distant as possible from the

theater of war. It must do the same with persons using its territory as

a means of carrying on military operations.

80. Interned persons may be kept in camps, or may be shut up in

fortresses or other places of safety. The neutral State decides whether

officers may be left free on parole on an engagement being entered into

by them not to leave the neutral territory without authorization.

81. In default of special convention regulating the maintenance of

interned persons, the neutral State supplies them with rations and

clothes, and bestows care upon them in other ways to such extent as is

required by humanity.

It also takes care of the _matériel_ of war which the interned persons

may have had with them on entering the neutral territory.

On the conclusion of peace, or sooner if possible, the expenses

occasioned by the internment are repaid to the neutral State by the

belligerent State to which the interned persons belong.

82. The provisions of the Convention of Geneva of the 22d August, 1864

(see above, Articles 10 to 18, 35 to 40, and 74) are applicable to the

hospital staff, as well as to the sick and wounded who have taken refuge

in, or been carried into, neutral territory.

Especially,

83. Sick and wounded who are not prisoners may be moved across neutral

territory, provided that the persons accompanying them belong solely to

the hospital staff, and that any _matériel_ carried with them is such

only as is required for the use of sick and wounded. The neutral State,

across the territory of which sick and wounded are moved, is bound to

take whatever measures of control are required to secure the strict

observance of the above conditions.

PART III. PENAL SANCTION

When infractions of the foregoing rules take place, the guilty

persons should be punished, after trial, by the belligerent within

whose power they are.

84. Persons violating the laws of war are punishable in such way as the

penal law of the country may prescribe.

But this mode of repressing acts contrary to the laws of war being

only applicable when the guilty person can be reached, the injured

party has no resource other than the use of reprisals when the

guilty person cannot be reached, if the acts committed are

sufficiently serious to render it urgently necessary to impress

respect for the law upon the enemy. Reprisals, the occasional

necessity of which is to be deplored, are an exceptional practice,

at variance with the general principles that the innocent must not

suffer for the guilty, and that every belligerent ought to conform

to the laws of war, even without reciprocity on the part of the

enemy. The right to use reprisals is tempered by the following

restrictions:--

85. Reprisals are forbidden whenever the wrong which has afforded ground

of complaint has been repaired.

86. In the grave cases in which reprisals become an imperative

necessity, their nature and scope must never exceed the measure of the

infraction of the laws of war committed by the enemy.

They can only be made with the authorization of the commander in chief.

They must, in all cases, be consistent with the rules of humanity and

morality.

APPENDIX III

CONFERENCE AT BRUSSELS, 1874, ON THE RULES OF MILITARY WARFARE[498]

SECTION I

+Of the Rights of Belligerents One toward the Other+

+Chapter I.+ _Of Military Authority over the Hostile State_

+Article 1.+ A territory is considered as occupied when it is actually

placed under the authority of the hostile army.

The occupation only extends to those territories where this authority is

established and can be exercised.

+Art. 2.+ The authority of the legal power being suspended, and having

actually passed into the hands of the occupier, he shall take every step

in his power to reëstablish and secure, as far as possible, public

safety and social order.

+Art. 3.+ With this object he will maintain the laws which were in force

in the country in time of peace, and will only modify, suspend, or

replace them by others if necessity obliges him to do so.

+Art. 4.+ The functionaries and officials of every class who, at the

instance of the occupier, consent to continue to perform their duties,

shall be under his protection. They shall not be dismissed or be liable

to summary punishment unless they fail in fulfilling the obligations

they have undertaken, and shall be handed over to justice only if they

violate those obligations by unfaithfulness.

+Art. 5.+ The army of occupation shall only levy such taxes, dues,

duties, and tolls as are already established for the benefit of the

State, or their equivalent if it be impossible to collect them, and this

shall be done as far as possible in the form of and according to

existing practice. It shall devote them to defraying the expenses of the

administration of the country to the same extent as was obligatory on

the legal Government.

+Art. 6.+ The army occupying a territory shall take possession only of

the specie, the funds, and bills, etc., which are the actual property of

the state; the depots of arms, means of transport, magazines, and

supplies, and, in general, all the personal property of the State, which

may be of service in carrying on the war.

Railway plant, land telegraphs, steam and other vessels, not included in

cases regulated by maritime law, as well as depots of arms, and

generally every kind of munitions of war, although belonging to

companies or to private individuals, are to be considered equally as

means of aid in carrying on a war, which cannot be left at the disposal

of the enemy. Railway plant, land telegraphs, as well as the steam and

other vessels above mentioned, shall be restored, and indemnities be

regulated on the conclusion of peace.

+Art. 7.+ The occupying state shall only consider itself in the light of

an administrator and usufructuary of the public buildings, real

property, forests, and agricultural works belonging to the hostile

state, and situated in the occupied territory. It is bound to protect

these properties, and to administer them according to the laws of

usufruct.

+Art. 8.+ The property of parishes, of establishments devoted to

religion, charity, education, arts, and sciences, although belonging to

the State, shall be treated as private property.

Every seizure, destruction of, or willful damage to such establishments,

historical monuments, or works of art, or of science, should be

prosecuted by the competent authorities.

+Chapter II.+ _Of those who are to be recognized as Belligerents; of

Combatants and Non-combatants_

+Art. 9.+ The laws, rights, and duties of war are applicable not only to

the army, but likewise to militia and corps of volunteers complying with

the following conditions:

1. That they have at their head a person responsible for his

subordinates;

2. That they wear some settled, distinctive badge, recognizable at a

distance;

3. That they carry arms openly; and

4. That, in their operations, they conform to the laws and customs of

war.

In those countries where the militia form the whole or part of the army,

they shall be included under the denomination of "army."

+Art. 10.+ The population of a non-occupied territory, who, on the

approach of the enemy, of their own accord take up arms to resist the

invading troops, without having had time to organize themselves in

conformity with Article 9, shall be considered as belligerents, if they

respect the laws and customs of war.

+Art. 11.+ The armed forces of the belligerents may be composed of

combatants and non-combatants. In the event of being captured by the

enemy, both one and the other shall enjoy the rights of prisoners of

war.

+Chapter III.+ _Of the Means of injuring the Enemy; of those which are

permitted or should be forbidden_

+Art. 12.+ The laws of war do not allow to belligerents an unlimited

power as to the choice of means of injuring the enemy.

+Art. 13.+ According to this principle are strictly forbidden:

(_a_) The use of poison or poisoned weapons.

(_b_) Murder by treachery of individuals belonging to the hostile

nation or army.

(_c_) Murder of an antagonist who, having laid down his arms, or

having no longer the means of defending himself, has surrendered at

discretion.

(_d_) The declaration that no quarter will be given.

(_e_) The use of arms, projectiles, or substances which may cause

unnecessary suffering, as well as the use of the projectiles

prohibited by the declaration of St. Petersburg in 1868.[499]

(_f_) Abuse of the flag of truce, the national flag, or the military

insignia or uniform of the enemy, as well as the distinctive badges

of the Geneva Convention.

(_g_) All destruction or seizure of the property of the enemy which is

not imperatively required by the necessity of war.

+Art. 14.+ Stratagems and the employment of means necessary to procure

intelligence respecting the enemy or the country (subject to the

provisions of Art. 36), are considered as lawful means.

+Chapter IV.+ _Of Sieges and Bombardments_

+Art. 15.+ Fortified places are alone liable to be besieged. Towns,

agglomerations of houses or villages, which are open and undefended,

cannot be attacked or bombarded.

+Art. 16.+ But if a town or fortress, agglomeration of houses, or

village be defended, the commander of the attacking forces should,

before commencing a bombardment, and except in the case of surprise, do

all in his power to warn the authorities.

+Art. 17.+ In the like case all necessary steps should be taken to

spare, as far as possible, buildings devoted to religion, arts,

sciences, and charity, hospitals and places where sick and wounded are

collected, on condition that they are not used at the same time for

military purposes.

It is the duty of the besieged to indicate these buildings by special

visible signs to be notified beforehand by the besieged.

+Art. 18.+ A town taken by storm should not be given up to the

victorious troops to plunder.

+Chapter V.+ _Of Spies_

+Art. 19.+ No one shall be considered as a spy but those who, acting

secretly or under false pretenses, collect, or try to collect

information in districts occupied by the enemy with the intention of

communicating it to the opposing force.

+Art. 20.+ A spy, if taken in the act, shall be tried and treated

according to the laws in force in the army which captures him.

+Art. 21.+ If a spy, who rejoins the army to which he belongs, is

subsequently captured by the enemy, he is to be treated as a prisoner of

war, and incurs no responsibility for his previous acts.

+Art. 22.+ Military men who have penetrated within the zone of

operations of the enemy's army, with the intention of collecting

information, are not considered as spies if it has been possible to

recognize their military character.

In like manner military men (and also non-military persons carrying out

their mission openly), charged with the transmission of dispatches

either to their own army or to that of the enemy, shall not be

considered as spies if captured by the enemy.

To this class belong also, if captured, individuals sent in balloons to

carry dispatches, and generally to keep up communications between the

different parts of an army, or of a territory.

+Chapter VI.+ _Of Prisoners of War_

+Art. 23.+ Prisoners of war are lawful and disarmed enemies. They are in

the power of the enemy's Government but not of the individuals or of the

corps who made them prisoners.

They should be treated with humanity.

Every act of insubordination authorizes the necessary measures of

severity to be taken with regard to them.

All their personal effects, except their arms, are considered to be

their own property.

+Art. 24.+ Prisoners of war are liable to internment in a town,

fortress, camp, or in any locality whatever, under an obligation not to

go beyond certain fixed limits; but they may not be placed in

confinement unless absolutely necessary as a measure of security.

+Art. 25.+ Prisoners of war may be employed on certain public works

which have no immediate connection with the operations on the theater of

war, provided the employment be not excessive nor humiliating to their

military rank, if they belong to the army, or to their official or

social position if they do not belong to it.

They may also, subject to such regulations as may be drawn up by the

military authorities, undertake private work.

The pay they receive will go towards ameliorating their position, or

will be put to their credit at the time of their release. In this case

the cost of their maintenance may be deducted from their pay.

+Art. 26.+ Prisoners of war cannot be compelled in any way to take any

part whatever in carrying on the operations of the war.

+Art. 27.+ The Government in whose power are the prisoners of war,

undertakes to provide for their maintenance.

The conditions of such maintenance may be settled by a mutual

understanding between the belligerents.

In default of such an understanding, and as a general principle,

prisoners of war shall be treated, as regards food and clothing, on the

same footing as the troops of the Government who made them prisoners.

+Art. 28.+ Prisoners of war are subject to the laws and regulations in

force in the army in whose power they are.

Arms may be used, after summoning, against a prisoner attempting to

escape. If retaken, he is subject to summary punishment or to a stricter

surveillance.

If after having escaped he is again made prisoner, he is not liable to

any punishment for his previous escape.

+Art. 29.+ Every prisoner is bound to declare, if interrogated on the

point, his true names and rank; and in the case of his infringing this

rule, he will incur a restriction of the advantages granted to the

prisoners of the class to which he belongs.

+Art. 30.+ The exchange of prisoners of war is regulated by mutual

agreement between the belligerents.

+Art. 31.+ Prisoners of war may be released on parole if the laws of

their country allow of it; and in such a case they are bound on their

personal honor to fulfill scrupulously, as regards their own Government,

as well as that which made them prisoners, the engagements they have

undertaken.

In the same case their own Government should neither demand nor accept

from them any service contrary to their parole.

+Art. 32.+ A prisoner of war cannot be forced to accept release on

parole, nor is the enemy's Government obliged to comply with the request

of a prisoner claiming to be released on parole.

+Art. 33.+ Every prisoner of war liberated on parole, and retaken

carrying arms against the Government to which he had pledged his honor,

may be deprived of the rights accorded to prisoners of war, and may be

brought before the tribunals.

+Art. 34.+ Persons in the vicinity of armies, but who do not directly

form part of them, such as correspondents, newspaper reporters,

_vivandiers_, contractors, etc., may also be made prisoners of war.

These persons should, however, be furnished with a permit, issued by a

competent authority, as well as with a certificate of identity.

+Chapter VII.+ _Of Non-combatants and Wounded_

+Art. 35.+ The duties of belligerents, with regard to the treatment of

sick and wounded, are regulated by the Convention of Geneva of the 22d

August, 1864, subject to the modifications which may be introduced into

that Convention.

SECTION II

+Of the Rights of Belligerents with Reference to Private Individuals+

+Chapter I.+ _Of the Military Power with respect to Private Individuals_

+Art. 36.+ The population of an occupied territory cannot be compelled

to take part in military operations against their own country.

+Art. 37.+ The population of occupied territories cannot be compelled to

swear allegiance to the enemy's power.

+Art. 38.+ The honor and rights of the family, the life and property of

individuals, as well as their religious convictions and the exercise of

their religion, should be respected.

+Art. 39.+ Pillage is expressly forbidden.

+Chapter II.+ _Of Requisitions and Contributions_

+Art. 40.+ As private property should be respected, the enemy will

demand from parishes or the inhabitants, only such payments and services

as are connected with the necessities of war generally acknowledged in

proportion to the resources of the country, and which do not imply, with

regard to the inhabitants, the obligation of taking part in the

operations of war against their own country.

+Art. 41.+ The enemy, in levying contributions, whether as equivalent

for taxes (see Art. 5), or for payments which should be made in kind, or

as fines, will proceed, as far as possible, according to the rules of

the distribution and assessment of the taxes in force in the occupied

territory.

The civil authorities of the legal Government will afford their

assistance, if they have remained in office.

Contributions can be imposed only on the order and on the responsibility

of the General in chief, or of the superior civil authority established

by the enemy in the occupied territory.

For every contribution a receipt shall be given to the person furnishing

it.

+Art. 42.+ Requisitions shall be made only by the authority of the

commandant of the locality occupied.

For every requisition an indemnity shall be granted, or a receipt given.

SECTION III

+Of Relations between Belligerents+

+Chapter I.+ _Of Modes of Communication and Envoys_

+Art. 43.+ 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.

+Art. 44.+ The commander, to whom a bearer of a flag of truce is

dispatched, is not obliged to receive him under all circumstances and

conditions.

It is lawful for him to take all measures necessary for preventing the

bearer of the flag of truce taking advantage of his stay within the

radius of the enemy's position, to the prejudice of the latter; and if

the bearer of the flag of truce is found guilty of such a breach of

confidence, he has the right to detain him temporarily.

He may equally declare beforehand that he will not receive bearers of

flags of truce during a certain period. Envoys presenting themselves

after such a notification from the side to which it has been given,

forfeit their right of inviolability.

+Art. 45.+ The bearer of a flag of truce forfeits his right of

inviolability, if it be proved in a positive and irrefutable manner that

he has taken advantage of his privileged position to incite to, or

commit an act of treachery.

+Chapter II.+ _Of Capitulations_

+Art. 46.+ The conditions of capitulations shall be settled by the

contracting parties.

These conditions should not be contrary to military honor.

When once settled by a convention they should be scrupulously observed

by both sides.

+Chapter III.+ _Of Armistices_

+Art. 47.+ An armistice suspends warlike operations by a mutual

agreement between the belligerents. Should the duration thereof not be

fixed, the belligerents may resume operations at any moment, provided,

however, that proper warning be given to the enemy, in accordance with

the conditions of the armistice.

+Art. 48.+ An armistice may be general or local. The former suspends all

warlike operations between the belligerents; the latter only those

between certain portions of the belligerent armies, and within a fixed

radius.

+Art. 49.+ An armistice should be notified officially and without delay

to the competent authorities, and to the troops. Hostilities are

suspended immediately after the notification.

+Art. 50.+ It rests with the contracting parties to define in the

clauses of the armistice the relations which shall exist between the

populations.

+Art. 51.+ The violation of the armistice by either of the parties gives

to the other the right of terminating it.

+Art. 52.+ The violation of the clauses of an armistice by private

individuals, on their own personal initiative, only affords the right of

demanding the punishment of the guilty persons, and, if there is

occasion for it, an indemnity for losses sustained.

+Chapter IV.+ _Of Belligerents interned, and of Wounded treated, in

Neutral Territory_

+Art. 53.+ The neutral State receiving in its territory troops belonging

to the belligerent armies, will intern them, so far as it may be

possible, away from the theater of war.

They may be kept in camps, or even confined in fortresses, or in places

appropriated to this purpose.

It will decide whether the officers may be released on giving their

parole not to quit the neutral territory without authority.

+Art. 54.+ In default of a special agreement, the neutral State which

receives the belligerent troops will furnish the interned with

provisions, clothing, and such aid as humanity demands.

The expenses incurred by the internment will be made good at the

conclusion of peace.

+Art. 55.+ The neutral State may authorize the transport across its

territory of the wounded and sick belonging to the belligerent armies,

provided that the trains which convey them do not carry either the

_personnel_ or _matériel_ of war.

In this case the neutral State is bound to take the measures necessary

for the safety and control of the operation.

+Art. 56.+ The Convention of Geneva is applicable to the sick and

wounded interned on neutral territory.

APPENDIX IV

AMELIORATION OF THE CONDITION OF THE WOUNDED IN WAR

+Convention for the Amelioration of the Condition of the Wounded in

Armies in the Field between Switzerland, Baden, Belgium, Denmark,

Spain, France, Hesse, Italy, Netherlands, Portugal, Prussia,

Würtemburg, and acceded to by Sweden and Norway, Greece, Great

Britain, Mecklenburg-Schwerin, Turkey, Bavaria, Austria, Russia,

Roumania, Persia, Salvador, Montenegro, Servia, Bolivia, Chili,

Argentine Republic, Peru, and Japan.+

_Concluded August 22, 1864; ratifications exchanged at Geneva, June 22,

1865; acceded to by the United States, March 1, 1882; accession of

United States accepted by Switzerland, on behalf of the Powers, June 9,

1882; proclaimed as to the original convention, but with reserve as to

the additional articles, July 26, 1882._

After reciting the desire of the different governments "to soften, as

much as depends on them, the evils of warfare, to suppress its useless

hardships and improve the fate of wounded soldiers on the field of

battle," the Convention names the negotiators,

Who, after having exchanged their powers and found them in good and due

form, agree to the following articles:

+Article 1.+ Ambulances and military hospitals shall be acknowledged to

be neuter, and as such, shall be protected and respected by belligerents

so long as any sick or wounded may be therein.

Such neutrality shall cease if the ambulances or hospitals should be

held by a military force.

+Art. 2.+ Persons employed in hospitals and ambulances, comprising the

staff for superintendence, medical service, administration, transport of

wounded, as well as chaplains, shall participate in the benefit of

neutrality, whilst so employed, and so long as there remain any wounded

to bring in or to succor.

+Art. 3.+ The persons designated in the preceding article may, even

after occupation by the enemy, continue to fulfill their duties in the

hospital or ambulance which they serve, or may withdraw in order to

rejoin the corps to which they belong.

Under such circumstances, when these persons shall cease from their

functions, they shall be delivered by the occupying army to the outposts

of the enemy.

+Art. 4.+ As the equipment of military hospitals remains subject to the

laws of war, persons attached to such hospitals cannot, in withdrawing,

carry away any articles but such as are their private property.

Under the same circumstances an ambulance shall, on the contrary, retain

its equipment.

+Art. 5.+ Inhabitants of the country who may bring help to the wounded,

shall be respected and shall remain free. The generals of the

belligerent Powers shall make it their care to inform the inhabitants of

the appeal addressed to their humanity, and of the neutrality which will

be the consequence of it.

Any wounded man entertained and taken care of in a house shall be

considered as a protection thereto. Any inhabitant who shall have

entertained wounded men in his house shall be exempted from the

quartering of troops, as well as from a part of the contributions of war

which may be imposed.

+Art. 6.+ Wounded or sick soldiers shall be entertained and taken care

of, to whatever nation they may belong.

Commanders in chief shall have the power to deliver immediately to the

outposts of the enemy soldiers who have been wounded in an engagement,

when circumstances permit this to be done, and with the consent of both

parties.

Those who are recognized, after their wounds are healed, as incapable of

serving, shall be sent back to their country. The others may also be

sent back, on condition of not again bearing arms during the continuance

of the war.

Evacuations, together with the persons under whose directions they take

place, shall be protected by an absolute neutrality.

+Art. 7.+ A distinctive and uniform flag shall be adopted for hospitals,

ambulances, and evacuations. It must, on every occasion, be accompanied

by the national flag. An arm badge (brassard) shall also be allowed for

individuals neutralized, but the delivery thereof shall be left to

military authority.

The flag and the arm badge shall bear a red cross on a white ground.

+Art. 8.+ The details of execution of the present convention shall be

regulated by the commanders in chief of belligerent armies, according to

the instructions of their respective governments, and in conformity with

the general principles laid down in this convention.

+Art. 9.+ The high contracting Powers have agreed to communicate the

present convention to those Governments which have not found it

convenient to send plenipotentiaries to the International Conference at

Geneva, with an invitation to accede thereto; the protocol is for that

purpose left open.

+Art. 10.+ The present convention shall be ratified, and the

ratifications shall be exchanged at Berne in four months, or sooner if

possible.

[Additional articles, extending to naval forces the advantages of the

above convention, were concluded Oct. 20, 1868, by most of the powers of

Europe, and later acceded to by the United States; but they have never

been ratified. See U. S. Treaties, p. 1153.][500]

APPENDIX V

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 deplorable

disputes;

That the uncertainty of the law and of the duties in such a matter give

rise to differences of opinion between neutrals and belligerents which

may occasion serious difficulties, and even conflicts; that it is

consequently advantageous to establish a uniform doctrine on so

important a point;

That the Plenipotentiaries assembled in Congress at Paris cannot better

respond to the intentions by which their Governments are animated, than

by seeking to introduce into international relations fixed principles,

in this respect.

The above-mentioned Plenipotentiaries, being duly authorized, resolved

to concert among themselves as to the means of attaining this object;

and having come to an agreement, have adopted the following solemn

declaration:

1. Privateering is and remains abolished;

2. The neutral flag covers enemy's goods, with the exception of

contraband of war;

3. Neutral goods, with the exception of contraband of war, are not

liable to capture under enemy's flag;

4. Blockades, in order to be binding, must be effective--that is to say,

maintained by a force sufficient really to prevent access to the coast

of the enemy.

The Governments of the undersigned Plenipotentiaries engage to bring the

present Declaration to the knowledge of the States which have not taken

part in the Congress of Paris, and to invite them to accede to it.

Convinced that the maxims which they now proclaim cannot but be received

with gratitude by the whole world, the undersigned Plenipotentiaries

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 VI

THE LAWS AND USAGES OF WAR AT SEA

A NAVAL WAR CODE

+General Orders+, } NAVY DEPARTMENT,

No. 551. } _Washington, June 27, 1900_.

The following code of naval warfare, prepared for the guidance and use

of the naval service by Capt. Charles H. Stockton, United States Navy,

under the direction of the Secretary of the Navy, having been approved

by the President of the United States, is published for the use of the

Navy and for the information of all concerned.

JOHN D. LONG,

_Secretary_.

THE LAWS AND USAGES OF WAR AT SEA

SECTION I

+Hostilities+

+Article 1.+ The general object of war is to procure the complete

submission of the enemy at the earliest possible period, with the least

expenditure of life and property.

The special objects of maritime war are: The capture or destruction of

the military and naval forces of the enemy; of his fortifications,

arsenals, dry docks, and dockyards; of his various military and naval

establishments, and of his maritime commerce; to prevent his procuring

war material from neutral sources; to aid and assist military operations

on land, and to protect and defend the national territory, property, and

sea-borne commerce.

+Art. 2.+ The area of maritime warfare comprises the high seas or other

waters that are under no jurisdiction, and the territorial waters of

belligerents. Neither hostilities nor any belligerent right, such as

that of visitation and search, shall be exercised in the territorial

waters of neutral States.

The territorial waters of a State extend seaward to the distance of a

marine league from the low-water mark of its coast line. They also

include, to a reasonable extent, which is in many cases determined by

usage, adjacent parts of the sea, such as bays, gulfs, and estuaries

inclosed within headlands; and where the territory by which they are

inclosed belongs to two or more States, the marine limits of such States

are usually defined by conventional lines.

+Art. 3.+ Military necessity permits measures that are indispensable for

securing the ends of the war and that are in accordance with modern laws

and usages of war.

It does not permit wanton devastation, the use of poison, or the doing

of any hostile act that would make the return of peace unnecessarily

difficult.

Noncombatants are to be spared in person and property during

hostilities, as much as the necessities of war and the conduct of such

noncombatants will permit.

The launching of projectiles and explosives from balloons, or by other

new methods of a similar nature, is prohibited for a term of five years

by the Declaration of the Hague, to which the United States became a

party. This rule does not apply when at war with a noncontracting power.

+Art. 4.+ The bombardment, by a naval force, of unfortified and

undefended towns, villages, or buildings is forbidden, except when such

bombardment is incidental to the destruction of military or naval

establishments, public depots of munitions of war, or vessels of war in

port, or unless reasonable requisitions for provisions and supplies

essential, at the time, to such naval vessel or vessels are forcibly

withheld, in which case due notice of bombardment shall be given.

The bombardment of unfortified and undefended towns and places for the

nonpayment of ransom is forbidden.

+Art. 5.+ The following rules are to be followed with regard to

submarine telegraphic cables in time of war, irrespective of their

ownership:

(_a_) Submarine telegraphic cables between points in the territory of an

enemy, or between the territory of the United States and that of an

enemy, are subject to such treatment as the necessities of war may

require.

(_b_) Submarine telegraphic cables between the territory of an enemy and

neutral territory may be interrupted within the territorial jurisdiction

of the enemy.

(_c_) Submarine telegraphic cables between two neutral territories shall

be held inviolable and free from interruption.

+Art. 6.+ If military necessity should require it, neutral vessels found

within the limits of belligerent authority may be seized and destroyed

or otherwise utilized for military purposes, but in such cases the

owners of neutral vessels must be fully recompensed. The amount of the

indemnity should, if practicable, be agreed on in advance with the owner

or master of the vessel. Due regard must be had to treaty stipulations

upon these matters.

+Art. 7.+ The use of false colors in war is forbidden, and when

summoning a vessel to lie to, or before firing a gun in action, the

national colors should be displayed by vessels of the United States.

+Art. 8.+ In the event of an enemy failing to observe the laws and

usages of war, if the offender is beyond reach, resort may be had to

reprisals, if such action should be considered a necessity; but due

regard must always be had to the duties of humanity. Reprisals should

not exceed in severity the offense committed, and must not be resorted

to when the injury complained of has been repaired.

If the offender is within the power of the United States he can be

punished, after due trial, by a properly constituted military or naval

tribunal. Such offenders are liable to the punishments specified by the

criminal law.

SECTION II

+Belligerents+

+Art. 9.+ In addition to the armed forces duly constituted for land

warfare, the following are recognized as armed forces of the State.

(1) The officers and men of the Navy, Naval Reserve, Naval Militia, and

their auxiliaries.

(2) The officers and men of all other armed vessels cruising under

lawful authority.

+Art. 10.+ In case of capture, the personnel of the armed forces or

armed vessels of the enemy, whether combatants or noncombatants, are

entitled to receive the humane treatment due to prisoners of war.

The personnel of all public unarmed vessels of the enemy, either owned

or in his service as auxiliaries, are liable, upon capture, to detention

as prisoners of war.

The personnel of merchant vessels of an enemy who, in self-defense and

in protection of the vessel placed in their charge, resist an attack,

are entitled, if captured, to the status of prisoners of war.

+Art. 11.+ The personnel of a merchant vessel of an enemy captured as a

prize can be held, at the discretion of the captor, as witnesses, or as

prisoners of war when by training or enrollment they are immediately

available for the naval service of the enemy, or they may be released

from detention or confinement. They are entitled to their personal

effects and to such individual property, not contraband of war, as is

not held as part of the vessel, its equipment, or as money, plate, or

cargo contained therein.

All passengers not in the service of the enemy, and all women and

children on board such vessels should be released and landed at a

convenient port, at the first opportunity.

Any person in the naval service of the United States who pillages or

maltreats, in any manner, any person found on board a merchant vessel

captured as a prize, shall be severely punished.

+Art. 12.+ The United States of America acknowledge and protect, in

hostile countries occupied by their forces, religion and morality; the

persons of the inhabitants, especially those of women; and the

sacredness of domestic relations. Offenses to the contrary shall be

rigorously punished.

SECTION III

+Belligerent and Neutral Vessels+

+Art. 13.+ All public vessels of the enemy are subject to capture,

except those engaged in purely charitable or scientific pursuits, in

voyages of discovery, or as hospital ships under the regulations

hereinafter mentioned.

Cartel and other vessels of the enemy, furnished with a proper

safe-conduct, are exempt from capture, unless engaged in trade or

belligerent operations.

+Art. 14.+ All merchant vessels of the enemy, except coast fishing

vessels innocently employed, are subject to capture, unless exempt by

treaty stipulations.

In case of military or other necessity, merchant vessels of an enemy may

be destroyed, or they may be retained for the service of the government.

Whenever captured vessels, arms, munitions of war, or other material are

destroyed or taken for the use of the United States before coming into

the custody of a prize court, they shall be surveyed, appraised, and

inventoried by persons as competent and impartial as can be obtained;

and the survey, appraisement, and inventory shall be sent to the prize

court where proceedings are to be held.

+Art. 15.+ Merchant vessels of the enemy that have sailed from a port

within the jurisdiction of the United States, prior to the declaration

of war, shall be allowed to proceed to their destination, unless they

are engaged in carrying contraband of war or are in the military service

of the enemy.

Merchant vessels of the enemy, in ports within the jurisdiction of the

United States at the outbreak of war, shall be allowed thirty days after

war has begun to load their cargoes and depart, and shall thereafter be

permitted to proceed to their destination, unless they are engaged in

carrying contraband of war or are in the military service of the enemy.

Merchant vessels of the enemy, which shall have sailed from any foreign

port for any port within the jurisdiction of the United States before

the declaration of war, shall be permitted to enter and discharge their

cargo and thereafter to proceed to any port not blockaded.

+Art. 16.+ Neutral vessels in the military or naval service of the

enemy, or under the control of the enemy for military or naval purposes,

are subject to capture or destruction.

+Art. 17.+ Vessels of war of the United States may take shelter during

war in a neutral port subject to the limitations that the authorities of

the port may prescribe as to the number of belligerent vessels to be

admitted into the port at any one time. This shelter, which is allowed

by comity of nations, may be availed of for the purpose of evading an

enemy, from stress of weather, or to obtain supplies or repairs that the

vessel needs to enable her to continue her voyage in safety and to reach

the nearest port of her own country.

+Art. 18.+ Such vessel or vessels must conform to the regulations

prescribed by the authorities of the neutral port with respect to the

place of anchorage, the limitation of the stay of the vessel in port,

and the time to elapse before sailing in pursuit or after the departure

of a vessel of the enemy.

No increase in the armament, military stores, or in the number of the

crew of a vessel of war of the United States shall be attempted during

the stay of such vessel in a neutral port.

+Art. 19.+ A neutral vessel carrying the goods of an enemy is, with her

cargo, exempt from capture, except when carrying contraband of war or

endeavoring to evade a blockade.

+Art. 20.+ 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 such 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 remuneration, are not liable to seizure and

should not be detained, except upon clear grounds of suspicion of a

violation of the laws of war with respect to contraband, blockade, or

unneutral service, in which case the mail bags must be forwarded with

seals unbroken.

SECTION IV

+Hospital Ships--The Shipwrecked, Sick, and Wounded+

+Art. 21.+ Military hospital ships--that is to say, vessels constructed

or fitted out by the belligerent States for the special and sole purpose

of assisting the wounded, sick, or shipwrecked, and whose names have

been communicated to the respective Powers at the opening or in the

course of hostilities, and in any case before they are so employed,

shall be respected, and are not liable to capture during the period of

hostilities.

Such ships shall not be classed with warships, with respect to the

matter of sojourn in a neutral port.

+Art. 22.+ Hospital ships fitted out, in whole or in part, at the

expense of private individuals, or of officially recognized relief

societies, shall likewise be respected and exempt from capture, provided

the belligerent Power to whom they are subject has given them an

official commission and has notified the hostile Power of the names of

such ships at the beginning or in the course of hostilities, and in any

case before they are employed.

These ships should be furnished with a certificate, issued by the proper

authorities, setting forth that they were under the control of such

authorities during their equipment and at the time of their final

departure.

+Art. 23.+ The vessels mentioned in Articles 21 and 22 shall afford

relief and assistance to the wounded, sick, and shipwrecked of the

belligerents without distinction of nationality.

It is strictly forbidden to use these vessels for any military purpose.

These vessels must not in any way hamper the movements of the

combatants.

During and immediately after engagements they act at their own risk and

peril.

The belligerents have the right to control and visit such vessels; they

may decline their coöperation, require them to withdraw, prescribe for

them a fixed course, and place a commissioner on board; they may even

detain them, if required by military necessity.

When practicable, the belligerents shall enter upon the log of hospital

ships such orders as they may give them.

+Art. 24.+ Military hospital ships shall be distinguished by being

painted white outside, with a horizontal band of green about 1-1/2

meters wide.

The ships designated in Article 22 shall be distinguished by being

painted white outside, with a horizontal band of red about 1-1/2 meters

wide.

The boats of hospital ships, as well as small craft that may be devoted

to hospital service, shall be distinguished by being painted in the same

colors.

Hospital ships shall, in general, make themselves known by hoisting,

with their national flag, the white flag with a red cross prescribed by

the Geneva Convention.

+Art. 25.+ Merchant vessels, yachts, or neutral vessels that happen to

be in the vicinity of active maritime hostilities, may gather up the

wounded, sick, or shipwrecked of the belligerents. Such vessels, after

this service has been performed, shall report to the belligerent

commander controlling the waters thereabouts, for future directions,

and while accompanying a belligerent will be, in all cases, under his

orders; and if a neutral, be designated by the national flag of that

belligerent carried at the foremasthead, with the red cross flag flying

immediately under it.

These vessels are subject to capture for any violation of neutrality

that they may commit. Any attempt to carry off such wounded, sick, and

shipwrecked, without permission, is a violation of neutrality. They are

also subject, in general, to the provisions of Article 23.

+Art. 26.+ The religious, medical, and hospital personnel of any vessel

captured during hostilities shall be inviolable and not subject to be

made prisoners of war. They shall be permitted, upon leaving the ship,

to carry with them those articles and instruments of surgery which are

their private property.

Such personnel shall continue to exercise their functions as long as may

be necessary, whereupon they may withdraw when the commander in chief

deems it possible to do so.

The belligerents shall insure to such personnel, when falling into their

hands, the free exercise of their functions, the receipt of salaries,

and entire freedom of movement, unless a military necessity prevents.

+Art. 27.+ Sailors and soldiers, embarked when sick or wounded, shall be

protected and cared for by the captors, no matter to what nation they

may belong.

+Art. 28.+ The shipwrecked, wounded, or sick of the enemy, who are

captured, are considered prisoners of war. The captor must decide,

according to circumstances, whether it is expedient to keep them or send

them to a port of his own country, to a neutral port, or even to a port

of the enemy. In the last case, the prisoners thus returned to their

country can not serve again during the period of the war.

+Art. 29.+ The shipwrecked, wounded, or sick, who are landed at a

neutral port with the consent of the local authorities, shall, unless

there exist an agreement to the contrary between the neutral State and

the belligerent States, agree that they will not again take part in the

operations of war.

The expenses of hospital care and of internment shall be borne by the

State to which such shipwrecked, wounded, or sick belong.

SECTION V

+The Exercise of the Right of Search+

+Art. 30.+ The exercise of the right of search during war shall be

confined to properly commissioned and authorized vessels of war. Convoys

of neutral merchant vessels, under escort of vessels of war of their own

State, are exempt from the right of search, upon proper assurances,

based on thorough examination, from the commander of the convoy.

+Art. 31.+ The object of the visit or search of a vessel is:

(1) To determine its nationality.

(2) To ascertain whether contraband of war is on board.

(3) To ascertain whether a breach of blockade is intended or has been

committed.

(4) To ascertain whether the vessel is engaged in any capacity in the

service of the enemy.

The right of search must he exercised in strict conformity with treaty

provisions existing between the United States and other States and with

proper consideration for the vessel boarded.

+Art. 32.+ The following mode of procedure, subject to any special

treaty stipulations, is to be followed by the boarding vessel, whose

colors must be displayed at the time:

The vessel is brought to by firing a gun with blank charge. If this is

not sufficient to cause her to lie to, a shot is fired across the bows,

and in case of flight or resistance force can be used to compel the

vessel to surrender.

The boarding vessel should then send one of its smaller boats alongside,

with an officer in charge wearing side arms, to conduct the search.

Arms may be carried in the boat, but not upon the persons of the men.

When the officer goes on board of the vessel he may be accompanied by

not more than two men, unarmed, and he should at first examine the

vessel's papers to ascertain her nationality, the nature of the cargo,

and the ports of departure and destination. If the papers show

contraband, an offense in respect of blockade, or enemy service, the

vessel should be seized; otherwise she should be released, unless

suspicious circumstances justify a further search. If the vessel be

released, an entry in the log book to that effect should be made by the

boarding officer.

+Art. 33.+ Irrespective of the character of her cargo, or her purported

destination, a neutral vessel should be seized if she:

(1) Attempts to avoid search by escape; but this must be clearly

evident.

(2) Resists search with violence.

(3) Presents fraudulent papers.

(4) Is not supplied with the necessary papers to establish the objects

of search.

(5) Destroys, defaces, or conceals papers.

The papers generally expected to be on board of a vessel are:

(1) The register.

(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.

SECTION VI

+Contraband of War+

+Art. 34.+ The term "contraband of war" includes only articles having a

belligerent destination and purpose. Such articles are classed under two

general heads:

(1) Articles that are primarily and ordinarily used for military

purposes in time of war, such as arms and munitions of war, military

material, vessels of war, or instruments made for the immediate

manufacture of munitions of war.

(2) Articles that may be and are used for purposes of war or peace,

according to circumstances.

Articles of the first class, destined for ports of the enemy or places

occupied by his forces, are always contraband of war.

Articles of the second class, when actually and especially destined for

the military or naval forces of the enemy, are contraband of war.

In case of war, the articles that are conditionally and unconditionally

contraband, when not specifically mentioned in treaties previously made

and in force, will be duly announced in a public manner.

+Art. 35.+ Vessels, whether neutral or otherwise, carrying contraband of

war destined for the enemy, are liable to seizure and detention, unless

treaty stipulations otherwise provide.

+Art. 36.+ Until otherwise announced, the following articles are to be

treated as contraband of war:

_Absolutely contraband._--Ordnance; machine guns and their appliances

and the parts thereof; armor plate and whatever pertains to the

offensive and defensive armament of naval vessels; arms and instruments

of iron, steel, brass, or copper, or of any other material, such arms

and instruments being specially adapted for use in war by land or sea;

torpedoes and their appurtenances; cases for mines, of whatever

material; engineering and transport materials, such as gun carriages,

caissons, cartridge boxes, campaigning forges, canteens, pontoons;

ordnance stores; portable range finders; signal flags destined for naval

use; ammunition and explosives of all kinds and their component parts;

machinery for the manufacture of arms and munitions of war; saltpeter;

military accouterments and equipments of all sorts; horses and mules.

_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 actually

destined for the enemy's military or naval forces.

SECTION VII

+Blockade+

+Art. 37.+ Blockades, in order to be binding, must be effective; that

is, they must be maintained by a force sufficient to render hazardous

the ingress to or egress from a port.

If the blockading force be driven away by stress of weather and return

without delay to its station, the continuity of the blockade is not

thereby broken. If the blockading force leave its station voluntarily,

except for purposes of the blockade, or is driven away by the enemy, the

blockade is abandoned or broken. The abandonment or forced suspension of

a blockade requires a new notification of blockade.

+Art. 38.+ Neutral vessels of war must obtain permission to pass the

blockade, either from the government of the State whose forces are

blockading the port, or from the officer in general or local charge of

the blockade. If necessary, these vessels should establish their

identity to the satisfaction of the commander of the local blockading

force. If military operations or other reasons should so require,

permission to enter a blockaded port can be restricted or denied.

+Art. 39.+ The notification of a blockade must be made before neutral

vessels can be seized for its violation. This notification may be

general, by proclamation, and communicated to the neutral States through

diplomatic channels; or it may be local, and announced to the

authorities of the blockaded port and the neutral consular officials

thereof. A special notification may be made to individual vessels, which

is duly indorsed upon their papers as a warning. A notification to a

neutral State is a sufficient notice to the citizens or subjects of such

State. If it be established that a neutral vessel has knowledge or

notification of the blockade from any source, she is subject to seizure

upon a violation or attempted violation of the blockade.

The notification of blockade should declare, not only the limits of the

blockade, but the exact time of its commencement and the duration of

time allowed a vessel to discharge, reload cargo, and leave port.

+Art. 40.+ Vessels appearing before a blockaded port, having sailed

before notification, are entitled to special notification by a

blockading vessel. They should be boarded by an officer, who should

enter upon the ship's log or upon its papers, over his official

signature, the name of the notifying vessel, a notice of the fact and

extent of the blockade, and of the date and place of the visit. After

this notice, an attempt on the part of the vessel to violate the

blockade makes her liable to capture.

+Art. 41.+ Should it appear, from the papers of a vessel or otherwise,

that the vessel had sailed for the blockaded port after the fact of the

blockade had been communicated to the country of her port of departure,

or after it had been commonly known at that port, she is liable to

capture and detention as a prize. Due regard must be had in this matter

to any treaties stipulating otherwise.

+Art. 42.+ A neutral vessel may sail in good faith for a blockaded port,

with an alternative destination to be decided upon by information as to

the continuance of the blockade obtained at an intermediate port. In

such case, she is not allowed to continue her voyage to the blockaded

port in alleged quest of information as to the status of the blockade,

but must obtain it and decide upon her course before she arrives in

suspicious vicinity; and if the blockade has been formally established

with due notification, sufficient doubt as to the good faith of the

proceeding will subject her to capture.

+Art. 43.+ Neutral vessels found in port at the time of the

establishment of a blockade, unless otherwise specially ordered, will be

allowed thirty days from the establishment of the blockade, to load

their cargoes and depart from such port.

+Art. 44.+ The liability of a vessel purposing to evade a blockade, to

capture and condemnation, begins with her departure from the home port

and lasts until her return, unless in the meantime the blockade of the

port is raised.

+Art. 45.+ The crews of neutral vessels violating or attempting to

violate a blockade are not to be treated as prisoners of war, but any of

the officers or crew whose testimony may be desired before the prize

court should be detained as witnesses.

SECTION VIII

+The Sending in of Prizes+

+Art. 46.+ Prizes should be sent in for adjudication, unless otherwise

directed, to the nearest suitable port, within the territorial

jurisdiction of the United States, in which a prize court may take

action.

+Art. 47.+ The prize should be delivered to the court as nearly as

possible in the condition in which she was at the time of seizure, and

to this end her papers should be carefully sealed at the time of seizure

and kept in the custody of the prize master.

+Art. 48.+ All witnesses whose testimony is necessary to the

adjudication of the prize should be detained and sent in with her, and

if circumstances permit, it is preferable that the officer making the

search should act as prize master.

The laws of the United States in force concerning prizes and prize cases

must be closely followed by officers and men of the United States Navy.

+Art. 49.+ The title to property seized as prize changes only by the

decision rendered by the prize court. But if the vessel or its cargo is

needed for immediate public use, it may be converted to such use, a

careful inventory and appraisal being made by impartial persons and

certified to the prize court.

+Art. 50.+ If there are controlling reasons why vessels that are

properly captured may not be sent in for adjudication--such as

unseaworthiness, the existence of infectious disease, or the lack of a

prize crew--they may be appraised and sold, and if this can not be done,

they may be destroyed. The imminent danger of recapture would justify

destruction, if there should be no doubt that the vessel was a proper

prize. But in all such cases all of the papers and other testimony

should be sent to the prize court, in order that a decree may be duly

entered.

SECTION IX

+Armistice, Truce, and Capitulations, and Violations of Laws of War+

+Art. 51.+ A truce or capitulation may be concluded, without special

authority, by the commander of a naval force of the United States with

the commander of the forces of the enemy, to be limited, however, to

their respective commands.

A general armistice requires an agreement between the respective

belligerent governments.

+Art. 52.+ After agreeing upon or signing a capitulation the capitulator

must neither injure nor destroy the vessels, property, or stores in his

possession that he is to deliver up, unless the right to do so is

expressly reserved to him in the agreement or capitulation.

+Art. 53.+ The notice of the termination of hostilities, before being

acted upon, must be officially received by a commander of a naval force.

Except where otherwise provided, acts of war done after the receipt of

the official notice of the conclusion of a treaty of peace or of an

armistice, are null and void.

+Art. 54.+ When not in conflict with the foregoing the regulations

respecting the laws of war on land, in force with the armies of the

United States, will govern the Navy of the United States when

circumstances render them applicable.

+Art. 55.+ The foregoing regulations are issued with the approval of the

President of the United States, for the government of all persons

attached to the naval service, subject to all laws and treaties of the

United States that are now in force or may hereafter be established.

APPENDIX VII

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

jurisdiction 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 arms, 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

jurisdiction 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 than three years. And every such vessel, her tackle, apparel,

and 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 increased or

augmented, or knowingly is concerned in increasing or augmenting, the

force of any ship of war, cruiser, or other armed vessel, which, at the

time of her arrival within the United States, was a ship of war 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, district, 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 jurisdiction of

the United States, begins or sets on foot, or provides, or prepares the

means for, any military expedition or enterprise, to be carried on from

thence against the territory or dominions of any foreign prince or

state, or of any colony, district, or people, with whom the United

States are at peace, shall be deemed guilty of a high misdemeanor and

shall be fined not exceeding three thousand dollars and imprisoned not

more than three years.

+Sec. 5287.+ The district courts shall take cognizance of all

complaints, 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 military 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, district,

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

adjudged; and also for the purpose of preventing the carrying on of any

such expedition or enterprise 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.

+Sec. 5290.+ Collectors of customs are to detain vessels built for

warlike purposes and about to depart the United States until the

decision of the President, or until the owner gives bond.

+Sec. 5291.+ This applies to the construction of the Title.[501]

APPENDIX VIII

PROCEDURE IN PRIZE COURT

DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT 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 attachment

of Prize causes may issue against the said vessel her tackle, apparel,

furniture, and cargo, that Monition may issue citing all persons, 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 final hearing of this

cause, by the definitive sentence of this Court, be condemned,

forfeited, and sold, and the proceeds distributed according to law.

C. D.

_U. S. Attorney, So. Dist. of Florida_.

Key West, Fla. April 23d, 1898.

Let attachment and monition issue as prayed returnable on Monday 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 said 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._

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.

I. 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.

Wherefore the said O. 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.

O. P. being duly sworn, deposes and says:--

1. I am the claimant herein and have verified the claim on knowledge

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 command

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 vessel was

cleared coastwise from Scranton for Norfolk, in the State of 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 conformed 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 Proclamation 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

this 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 President

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 President

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.

O. P.

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_.

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

pronounced 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,--

Marshal'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.[502]

_____________________

_Judge of the District Court of the United States,

for the Southern District of Florida._

APPENDIX IX

DIGEST OF IMPORTANT CASES ARRANGED UNDER TITLES

15. +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 (Denmark being at

peace with France), it appeared that the court in which the Danish ship

was libelled declared her good and lawful prize. Held by Ellenborough C.

J., "that all sentences of foreign courts of competent 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 foreign 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 murder

committed on an American vessel on the high seas. He was indicted 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 until he had had an opportunity

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.

21. +Recognition of New States+

_Harcourt_ v. _Gaillard_, 12 Wheat. 523

This case is fully stated in the text, p. 42.

_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, 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 execution

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 appertaining 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.

55. +Vessels+

_Wildenhus's Case_, 120 U.S. 1

This case held that the Circuit Court of the United States has

jurisdiction 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

Convention of March 9, 1880, between Belgium and the United States was

considered.

64. +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.

101. +Non-Combatants+

_Alcinous_ 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 hostilities is

valid; and, when peace is restored, the plaintiff may enforce it in our

Courts. But, by the law of England, so long as hostilities prevail he

cannot sue here."

104. +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 hostilities with Great Britain could not be

condemned without a legislative act, and that the act of Congress

declaring 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.

110. +Privateers+

_United States_ v. _Baker_, 5 Blatchford, 6

This was an indictment in 1861 against Baker, the master of a private

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.

112. +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 residue 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.

113. +Postliminium+

_The Two Friends_, 1 C. Rob. 271

An American ship was taken by the French in 1799 when the relations

between France and America were strained. She was recaptured 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 England,

on recapture of property of allies, is the law of reciprocity; it adopts

the rule of the country to which the claimant belongs.

115. +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.

119. +Termination of War by Treaty of 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 affirmed. Sir

William 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 neutral purchasers."

126. +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_, owned

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 possessions. 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 assertion 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 controversy 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.[503] 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;[504] 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 can

not send boats beyond the line of division for the purpose of capturing

enemy vessels.

129. +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_;[505] 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 British

Government in regard to this vessel, its purchase in 1863 of two

iron-clad rams of the Messrs. Laird for the navy, the construction,

destination, and intended departure of which occasioned the now famous

correspondence between Lord Russell and Mr. Adams, the detention of the

_Pampero_, 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 doctrine laid

down in their law-courts and maintained in their dispatches."[506] 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 another

vessel which had sailed from the same port. For example, the _Alabama_

left Liverpool in 1862 ready for warlike use, but without warlike

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 purposes was unsound.[507]

The _Alabama_ case and kindred cases have produced much speculation as

to the establishment of a true and correct rule. After the enactment of

the American neutrality statutes in 1818, there were numerous 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 contraband, with the

risk of capture, to a belligerent's country for sale, the neutral

government had nothing to say, but if the purpose 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.[508]

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 purposes, 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.[509]

Regret has been expressed by many writers that the award of the

arbitrators appointed under 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 vessels

fitted out and equipped for the destruction of belligerent commerce.

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 applicable 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 like

diligence to prevent 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 military supplies or

arms, or the recruitment of men.

"Thirdly, to exercise due diligence in its own ports and waters, and, 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 foregoing

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 knowledge of

other maritime Powers, and to invite them to accede to them."[510]

The phrases "due diligence" 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 escaped, and afterwards as a

duly commissioned war-ship entered a British port, there was no

obligation to detain her.[511] The case of the _Schooner Exchange_ v.

_M'Faddon_[512] 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 libellants 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

necessity. Chief Justice Marshall decided that as a public vessel of war

coming into our ports and demeaning herself in a friendly manner she was

exempt from the jurisdiction of the country.

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

sovereignty, had been acknowledged.[513]

3. +The Award of 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 extra-territoriality 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 principles 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 can not 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."[514]

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 contracted to observe

them."[515]

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.

131. +Contraband+

_The Peterhoff_, 5 Wall. 28, 62

The _Peterhoff_, 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 contraband were also considered,

and Chief Justice Chase concluded, "Considering ... the almost certain

destination of the ship to a neutral port, with a cargo, for the most

part, neutral in character and destination, 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 Britain, 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 condemned.

132. +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.

_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.

133. +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 Baltimore

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

character traveling with them, and to restore them to their own country

in that character."

_The Orozembo_, 6 C. Rob. 430

An American vessel, having been ostensibly chartered by a merchant at

Lisbon "to proceed in ballast to Macao, and there to take a cargo to

America," was afterwards, by his directions, fitted up for 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.

137. +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

competent 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 Prussian one taken on a voyage from Rouen to Altona and

proceeded against for a breach of the blockade of Havre, was restored.

138. +Continuous Voyages+

_The Hart_, 3 Wall. 559, 560

"Neutrals who place their vessels under belligerent control and engage

them in belligerent trade; or permit them to be sent with contraband

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.

_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.

139. +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

Abrogation of treaties, 234.

Absolutely contraband, what articles are, 304.

Accretion, acquisition of territory by, 102.

Acquisition of territorial jurisdiction, 98.

Admiralty law, a basis of international law, 10.

Africa, partition of, 92, 103, 104.

_See_ Spheres of Influence.

Agreements. _See_ Treaties.

Aids to the memory, what they are, 171

Aix-la-Chapelle, treaty of, 21, 155, 167, 206.

Alabama case. _See_ Geneva Arbitration.

Alaska, sale of, to the United States, 101;

territorial waters of, 116.

Aliens, rights of, as to naturalization, 125, 126;

jurisdiction over, 130-133.

_Alternat_, use of, in signing treaties, 89, 169.

Amalfitan tables. _See_ Sea Laws.

Ambassadors, sending of, 13;

jurisdiction of Supreme Court as to, 31;

immunities of vessels carrying, 119;

office of, in early days, 153, 154;

rules as to, 154-159;

suite of, 160;

who may send, 160;

who may be sent as, 161, 162;

credentials, etc., of, 162 _et seq._;

ceremonial as to, 165-170;

functions of, 170-172;

termination of mission of, 172-175;

immunities and privileges of, 175-182.

Amnesty, treaty of peace as to, 273.

Angary, 307 _n._

Appeal from prize courts, 30, 325.

Arbitration as a means of settling disputes, 219.

_See_ Geneva Arbitration, Venezuela.

Armed neutralities of 1780 and 1800, 22, 278, 300, 315.

Armies, instructions for United States, 331-367.

Armistices. _See_ Flags of Truce.

Army, within the jurisdiction of another state, 137, 138.

Assassination, when forbidden, 253.

Asylum. _See_ Right of Asylum.

Austria, one of the Great Powers, 90;

attitude of, at the Congress of Troppau, 90;

relations of, to the Triple Alliance, 92;

convention of, as to the Suez Canal, 111;

jurisdiction of, over foreign-born subjects, 123.

Balance of power in Europe, 75, 76;

intervention to preserve, 83.

Balloons, launching of projectiles, etc., from, 253.

Base of operations, neutral territory as, 288.

Bays, as affecting jurisdiction, 108;

as affecting neutrality, 287.

Belgium, recognition of, 44, 47;

neutralization of, 52, 92, 211, 212, 278;

attitude of Great Powers as to, 92;

jurisdiction of, as to foreign-born subjects, 124;

marriage, 125.

Belligerency, recognition of, 59-63.

Belligerents, non-hostile relations of, 264-269;

carriage of, 309.

Bering Sea, controversy as to, 113, 116, 117.

Berlin Conference, attitude of, as to spheres of influence, 103;

Berlin Decree of Napoleon, 315.

Berlin, treaty of, 206.

Bessarabia, cession of a portion of, 100.

Blockade, in case of United States of Colombia, 58;

Pacific, 223-225;

visit and search in case of, 311;

history of, 314, 315;

conditions of existence of, 315, 316;

a war measure, 316;

declaration of, 316;

notification of, 316;

must be effective, 317, 318;

cessation of, 318, 319;

violation of, 319, 320;

continuous voyages in case of, 320-324.

Bombardment, 253.

Booty, 244.

Brazil, belligerency in case of, 58;

neutrality of, 293.

Briefs of the conversation, 171.

British Guiana, boundary line of, 78.

British Orders in Council of 1807, 222.

British South Africa Company, history of, 55.

Brussels conference, language used in, 206; provisions of, 384-394.

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