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.