of the Second Hague Conference, as yet unratified, an international prize court to serve as a court of appeal from decisions of national prize courts was provided for.1

A captured merchant vessel may not as a rule be destroyed instead of being conducted to a port of a prize court, since the transfer of title only becomes final after adjudication by a prize court. The few exceptions to this rule are based upon necessity, each country having its own regulations. A frequent justification for destruction is the unseaworthy condition of the prize which prevents sending her in for adjudication, or the inability of the captor to spare a prize crew. If the capture is subsequently held by a prize court to have been lawful, the neutral owner of goods on the destroyed vessel appears to have no claim to indemnity.3

The seizure by a belligerent of any enemy or neutral vessel or cargo within the territorial waters of a neutral Power has given rise to numerous cases before prize courts. It is clear that such violation of neutral territory renders the belligerent liable to the neutral, and the latter may rightfully demand the restitution of the captured vessel.

Lord

Brazil, Aug. 21, 1828, 15 St. Pap. 1242; United States and Portugal, Jan. 19, 1832, 19 St. Pap. 1379; Great Britain and Brazil, May 5, 1829, 18 St. Pap. 689; France and United States, July 4, 1831, Moore's Arb. 4447-4485.

1 Oppenheim, § 192; Scott, J. B., The Hague Peace Conferences, ch. X, pp. 465511.

2 See Oppenheim, § 194, in which numerous grounds are stated which have justified destruction. Under the Oxford rules of the Institute of International Law (1913), destruction is only permitted if the safety of the captor ship or the success of actual present military operations requires it (Art. 104). In Arts. 107, 113 and 114 indemnities are provided for in case the capture, seizure or destruction is held unwarranted. See article by C. H. Huberich, The destruction of neutral prizes and the German prize code, 10 Illinois L. Rev. (1915), 5–10.

3

Oppenheim, § 194, and the Glitra, Hamburg prize court, Jan. 29, 1915 (note in 10 Ill. L. Rev. [1915], 10). But see probable effect of Art. 3 of Convention XII, Scott, 485. The leading authorities on German prize law are of the opinion that compensation is due to the neutral owner of goods on the destroyed vessel. Citations by C. H. Huberich in 10 Illinois L. Rev. (1915), 10.

4 Art. 3 of Convention XIII of the Second Hague Conference makes it obligatory upon such neutral Power to "employ the means at its disposal to release the prize with its officers and crew." Oppenheim, II, § 360; Scott, I, 620 et seq. See The Florida, 101 U. S. 37, a Confederate cruiser seized by United States in territorial waters of Brazil. On the reparation made to Brazil, see Moore's Dig. VII, 1090. See

Stowell and Justice Story in several prize cases decided in the early part of the nineteenth century, held that the claim for restitution could be made by the neutral government only,' and not by the captured vessel, for as between the belligerents the capture was rightful.2 However, the British-American Mixed Commission of 1871, in passing upon the claim of the Sir William Peel, which was decided adversely to the vessel by the United States Supreme Court, held that a neutral vessel could institute a claim for capture in neutral waters, regardless of any protest by the territorial neutral.3 Affirmative duties are now incumbent upon a neutral to prevent any violation of his neutrality by a belligerent seizure in his territorial waters, for a breach of which his own responsibility may properly be invoked. In land warfare, injuries inflicted by belligerents in permitting bullets to fall into neutral territory, constitute a violation of the territorial sovereignty of the neutral and justify international reclamation against the wrongdoing belligerents. Violation of a nation's neutrality by a belligerent entails international responsibility.

§ 107. Neutral Obligations.

The state of war casts upon neutrals numerous duties incident to the maintenance of neutrality, for a violation of which duties liability is incurred either toward the belligerent or toward neutrals who sustain injury thereby.5 A neutral must prevent a belligerent from setting

also The Chesapeake, Moore's Dig. VII, 937, and cases mentioned in same volume, § 1334.

1 The Diligentia, 1 Dodson, 412; Eliza Anne, 1 Dodson, 244 (dictum); The Anna, 5 Rob. 373; The Sir William Peel, 5 Wall. 517; The Anne, 3 Wheat. 447. See also Dana's Wheaton, § 430 and note; the Twee Gebroeders, 3 Rob. 162, and Oppenheim, II, § 362.

2 The Anne, 3 Wheat. 447; The Sir William Peel, 5 Wall. 517.

3 The Sir William Peel (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3948; Lawrence's Wheaton, 2nd ed., 716.

Oppenheim, II, §§ 360-363. See Commodore Stewart's case, 1 Ct. Cl. 113.

It will not be possible to refer to these duties in any detail. These obligations of neutrals are now largely codified in Convention V of the Second Hague Conference respecting the rights and duties of neutral powers and persons in war on land and in Convention XIII concerning the rights and duties of neutral powers in maritime war. See Scott, Hague Peace Conferences, I, 541 et seq., 620 et seq.; Oppenheim, II, § 313 et seq.; Westlake, II, 117-119, 284–287, 321-331; Moore's Dig. VI, § 1050; Dupuis,

up prize courts on his neutral territory. This practice was not considered illegitimate in the eighteenth century, but after the United States in 1793 had refused permission to France to set up prize courts in United States territory, it became the recognized rule that such a use of neutral territory by belligerents is a violation of neutrality and entails responsibility on the part of the neutral.' This rule is confirmed by Article 4 of Convention XIII of the Second Hague Conference.2

So far as lies in his power, a neutral must prevent a belligerent manof-war from cruising within his territorial waters for the purpose of capturing enemy vessels leaving his ports. It has already been observed that a neutral must use diligence to prevent hostilities being carried on in his territorial waters, and that an enemy attacked may invoke this neutral protection, for a failure to extend which the neutral is liable.3

One of the most important duties which the obligation of impartiality makes incumbent upon neutrals is the use of "due diligence"-in Articles 8 and 25 of Convention XIII, it reads "the means at [their] disposal"-to prevent their subjects from building and fitting out vessels within their jurisdiction or the departure of vessels intended

Le droit de la guerre maritime, Paris, 1912, ch. 12. On Convention V, see A. S. de Bustamente in 2 A. J. I. L. (1908), 95–120; Einicke, P., Rechte and Pflichten der neutralen Mächte im Seekrieg, Tübingen, 1912.

1 Wheaton, as representative of the United States, obtained heavy indemnities from Denmark for such breaches of neutrality during the Napoleonic Wars. Treaty of March 28, 1830, Moore's Arb. 4549-4573. Spain was similarly held liable under the Florida treaty of Feb. 22, 1819, Moore's Arb. 4487, 4513. The United States assumed heavy liabilities under Art. 7 of the Jay treaty of Nov. 19, 1794, for such use of its territory by France. Moore's Arb. 3967 et seq., 3981; Moore's Dig. VI, § 1050. 2 Oppenheim, II, § 327.

3 But where the claimant vessel began the hostilities upon her captor, she forfeits neutral protection. The Anne, 3 Wheat. 435. The claim of the Brig General Armstrong (U.S.) v. Portugal, attacked by a British vessel in Fayal, was dismissed because the brig had failed to notify the Portuguese authorities of the necessity of protection and because they were not physically in a position to protect. Moore's Arb. 1071-1132; Moore's Dig. VI, 1000 and authorities there cited. The decision has been severely criticized. Lapradelle and Politis, Recueil, I, 650 et seq. If the recent report of the sinking of the German cruiser Dresden by a British war-vessel in territorial waters of Chile proves true, it is possible that Germany will make a claim upon Chile, and it seems certain that Chile would have a good claim against Great Britain.

for warlike purposes, and to prevent either belligerent from making use of neutral ports as a base of naval operations.1

While a neutral Power incurs no responsibility from the fact that individuals leave its territory to enlist in the service of a belligerent, it is responsible if it permits enlistment on its territory by either of the belligerents. It is also bound to use due diligence to prevent hostile expeditions from being organized in its territory to operate against either belligerent. A neutral Power, however, is not bound to prevent the export or transit of arms or anything which may be of use to an army or fleet. Such trade is merely subject to the belligerent rights of capture as contraband, the neutral state incurring no responsibility in the matter.

3

§ 108. State Indemnity.

It remains merely to note that it is becoming a growing practice for nations to alleviate the individual losses sustained during war, for which no legal liability is incurred, by making voluntary awards of indemnity as a matter of grace and favor, in order to distribute the loss equally over the whole nation. This beneficent practice was begun by France in 1792 and other states have from time to time followed this worthy example. The statute making the appropriation may limit the classes

5

1 These obligations had their origin in the Three Rules of Washington, applied in the Geneva Arbitration, Moore's Arb. 4057-4178. See Convention XIII, 2nd Hague Conference, Arts. 6 et seq.; Hershey, ch. XXXI.

2 Arts. 4 and 6 of Convention V. The United States and British neutrality laws which prohibit citizens and subjects from enlisting within the jurisdiction (or by British law, even without his Majesty's Dominions) exceed the requirements of international law.

* But its negligence must be clearly proved. See cases in Moore's Arb. 4027–4056. 4 Art. 7 of Convention V.

France, law of Aug. 11, 1792, Feb. 27, 1793, Nys, III, 456, 458; Law of Sept. 6, 1871, July 28, 1874 and Aug. 16, 1876, 65 St. Pap. 71 and 621; For. Rel., 1884, 357. Bentwich, pp. 42-43, cites various cases of voluntary indemnities in France, Germany, Italy and Great Britain. Germany in 1871 extended the indemnity to Germans and, in the case of movables, to subjects of such neutral states only as promised reciprocal treatment in a similar case. Moore's Dig. VI, 905, and especially Kirchenheim, s. Vo Kriegsschäden, in Stengel-Fleischmann's Wörterbuch, Tübingen, 1913. Bentwich cites England's generous conduct after the South-African War (p. 44). Great Britain also made compensation to deported neutrals. 26 Law Mag. and Rev., 486; For. Rel., 1903, 479–480; 28 Clunet (1901), 189. See also U. S. Act of April 9,

of the beneficiaries as the state deems best, so that occasionally foreigners have not been included among those indemnified. By treaty, diplomatic arrangement or arbitral convention the Latin-American states and certain others among the weaker countries have at times been compelled by the nations of Europe to assume a heavy liability, beyond that required by the strict rules of law, for injuries sustained by aliens during war.1

The war indemnities which are often exacted from the conquered nation by the victor at the end of a war frequently have been used in part to compensate subjects who have sustained injury during the war.2 The growing tendency to impose upon belligerents and neutrals a strict compliance with the rules of war in the interests of private property, under penalty of pecuniary liability, and to regard war as a national disaster, the burdens of which shall be distributed equally over the whole nation, should not be permitted to be interrupted or impaired. 1816, supra, and Abandoned or Captured Property Act; Briggs v. U. S., 143 U. S. 346. Latin-American states often establish claims commissions after a civil war for deciding claims arising out of war injuries. See also treaty between United States and Switzerland, Nov. 25, 1850, Art. 2, Malloy, II, 1765, providing for equality with natives with respect to war indemnities.

1 Many European countries pressed claims against Chile arising out of her war of 1879-1883 with Bolivia and Peru. Large indemnities were paid. Moore's Arb. 4916 (Germany). Some were submitted to arbitration. Seijas, V, 544-551; 73 St. Pap. 1211; 79 ibid. 670 (Italy); Martens, Nouv. rec. gén., 2 ser., 11, 638 (Belgium); 74 St. Pap. 128, 131, and 79 ibid. 671 (France); 77 St. Pap. 826 (Switzerland); 82 St. Pap. 1292 (Portugal); 76 St. Pap. 98; Martens, Nouv. rec. gén., 2o ser., 12, pp. 507–509 (Austria-Hungary). See also For. Rel., 1883, 97 and For. Rel., 1896, 42. See also claims conventions between Italy and Uruguay, Apr. 5, 1873, 63 St. Pap. 1322; Sardinia and Argentine, August 31, 1858, 49 St. Pap. 477, 480; Great Britain-France and Uruguay, June 28, 1862, 63 St. Pap. 1063; France and New Granada, Ecuador and Venezuela, 49 St. Pap. 1301; Great Britain and Nicaragua (seizures of neutral property and personal injuries) For. Rel., 1894, App. I, 234-363; Moore's Arb. 4966; Great Britain and China, 1899 (Kowshing case), Parl. Pap. (Cd. 93) China, No. 1, 1900.

2 E. g., France v. China, treaty of Oct. 25, 1860, Art. V, Hertslet's China Treaties, 3rd ed., London, 1908, I, 289; France and Madagascar, French domestic commission, March 18, 1886, 77 St. Pap. 801, 78 St. Pap. 708; Great Britain and South African Republic, Aug. 3, 1881, 72 St. Pap. 900; Brazil and Paraguay, Jan. 9, 1872, La Fontaine, 167-170; Chile and Peru, Oct. 20, 1883, Art. 12, La Fontaine, 592, 593.