abled, by proclaiming a national emergency in case of actual or threatened war, insurrection, invasion, or other disturbance of the international relations of the country, to control and safeguard any foreign or domestic vessel within the territorial waters of the United States. Title 2 of the Act makes appropriate provision to that end, conferring ample power upon the President and subjecting to heavy penalties the owner, master, or other person in charge of or commanding any private vessel who willfully causes or permits its destruction or injury, or knowingly permits the vessel to be used as a place of resort for persons conspiring with one another to commit any offense against the United States or in violation of its treaties, or of its obligations "under the law of nations," or to defraud the United States, or who knowingly permits the vessel "to be used in violation of the rights and obligations of the United States under the law of nations." The President is, moreover, authorized to employ the land or naval forces of the United States to carry out the purposes of the title.

In order to simplify the prosecution and thereby facilitate the conviction of persons tampering with the motive power or instrumentalities of navigation of vessels engaged in foreign commerce, or of persons placing bombs or explosives on such ships, or of individuals setting fire to them, or of otherwise interfering with the safety on the high seas of American vessels with their occupants and cargoes, the provisions of the Criminal Code of 1909 were wisely amended and amplified. Again, interference with foreign commerce, that is, with the exportation to foreign countries of articles from the United States, by injuring or destroying, by fire or explosives, such articles, or the places where they might be while in such foreign commerce, was forbidden and made punishable.

It seems strange that important additions by way of amendment to the neutrality laws of the United States should have been made at a time when the nation itself was a belligerent. Title 5 embraces eleven sections respecting the "enforcement of neutrality." The first four of these are operative only "during a war in which the United States is a neutral nation." In this respect the title is unique; for it will be recalled that the Act of April 20, 1818, embracing the so-called neutrality laws of the United States, which are embodied in the Criminal Code of 1909 (§§ 9 to 18), made no mention of the word "neutrality," and have been repeatedly enforced for the purpose of preventing offenses against friendly Powers attempting to suppress insurgents not recog

nized by the United States as belligerents. (It should be observed, however, that the joint resolution of March 4, 1915, which was repealed by the present Act of June 15, 1917, contemplated likewise the existence of a war to which the United States was not a party as a condition precedent to its operation.)

The design of the present law with respect to the enforcement of neutrality was to enable the nation, when a neutral, better to respond to its obligations as such, especially as acknowledged in certain provisions of the Hague Convention of 1907 concerning the Rights and Duties of Neutral Powers in Naval War, and that by definitely enlarging the powers of the Executive. In the Act of 1818 these were somewhat vaguely expressed. Under the present law (in modification of § 15 of the Criminal Code), the President is empowered to employ such part of the land or naval forces of the United States, or of the militia thereof, as he may deem necessary to compel any foreign vessel to depart from the United States or any of its possessions, "in all cases in which, by the law of nations or the treaties of the United States, it ought not to remain, and to detain or prevent any foreign vessel from so departing in all cases in which, by the law of nations or the treaties of the United States it is not entitled to depart." This provision is not conditioned upon the existence of a war with respect to which the United States is a neutral.

When the United States is a neutral, the President is given broad powers, both by withholding clearance from a vessel requiring it, and by service of specified notice in the case of a vessel not requiring it, to forbid the departure from the United States of any ship which there is reasonable cause to believe is about to carry fuel, arms, ammunition, men, supplies, dispatches, or information to any warship, tender, or supply ship of a belligerent nation in violation of the laws, treaties, or obligations of the United States under the law of nations. Equally important and of greatest value is the provision enabling the President, "or any person thereunto authorized by him," to detain any armed vessel owned wholly or in part by American citizens, or any vessel, domestic or foreign (other than one which has entered the ports of the United States as a public vessel), which is manifestly built for warlike purposes or has been converted or adapted from a private vessel to one suitable for warlike use, until proof satisfactory to the President is given that the vessel will not be employed to commit hostilities upon the subjects, citizens, or property of any foreign prince or state, or of

any colony, district, or people with which the United States is at peace, and that the vessel will not be sold or delivered to any belligerent nation or agency thereof either within the jurisdiction of the United States, or, having left it, upon the high seas.

In case of a war in which the United States is a neutral, it is rendered unlawful to send out of its jurisdiction any vessel built, armed, or equipped as a vessel of war, or converted from a private vessel into one, with any intent or under any agreement or contract, written or oral, that the vessel shall be delivered to a belligerent nation or agency thereof, or with reasonable cause to believe that the vessel will be employed in such belligerent service after its departure.

In order to enable the nation better to comply with the requirements of international law with respect to the treatment of the crews of interned warships, provision is made for the arrest and confinement of interned members of belligerent forces who endeavor to leave or escape from the limits of internment without permission.

It should be observed that § 13 of the Criminal Code with respect to the organization of military expeditions against a friendly Power is somewhat modified and extended so as to be applicable to naval as well as to military expeditions.

Elaborate provisions are made under Title 6 to facilitate the seizure of arms and other articles intended for export, under circumstances when exportation is in violation of law. A procedure by judicial process is specified. In Title 7, power is conferred upon the President during the present war, upon finding that the public safety so requires, to render unlawful the exportation from the United States of articles which he may mention in a proclamation. His exercise of this power is appropriately facilitated by authority conferred upon collectors of customs to prevent the departure of vessels about to carry out of the United States articles in violation of the law.

Of much significance are the provisions of Title 8 respecting the disturbance of foreign relations. One, who willfully and knowingly makes an untrue statement in relation to a dispute between a foreign government and the United States, and that under oath before a person authorized to administer oaths, which the affiant has knowledge or reason to believe may be used to influence the measures or conduct of any foreign government or agent thereof, "to the injury of the United States," or with a view to influence any measure or action of the Government of the United States, or any branch thereof, to its

injury, shall be subjected to punishment. Again, it is wisely rendered punishable to impersonate for a fraudulent purpose a diplomatic or consular or other official of a foreign government duly accredited as such to the Government of the United States. In order to safeguard the transaction of diplomatic and consular business, it is provided that one who, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Secretary of State, shall be subjected to fine or imprisonment, or both. The words "foreign government" as used in the Act (and also in certain specified sections of the Penal Code), are said to embrace any government, faction, or body of insurgents within a country with which the United States is at peace, and whether or not recognized by the United States as a government. Of no small significance is § 5 of the same title, rendering criminal a conspiracy within the jurisdiction of the United States to injure or destroy specific property within a foreign country and belonging to a foreign government or to any political subdivision thereof, with which the United States is at peace, or any railroad, canal, bridge, or other public utility so situated. It is provided, moreover, that if a conspirator commits an act within the jurisdiction of the United States "to effect the object of the conspiracy," he shall be subjected to punishment.

Elaborate and sensible provisions are made for the safeguarding of the issuance of American passports, as well as for the punishment of those who make fraudulent use of passports or counterfeit the same. Lack of space forbids discussion of the titles relative to the counterfeiting of governmental seals, the issuance of search warrants, and the use of the mails.

No one outside of the Department of Justice can state authoritatively what titles of the Act, or what provisions thereof, are, or may be, most useful to the United States. Of special interest and of utmost significance are those sections designed to facilitate the effort of the state to fulfill by executive action its obligations as a neutral. It is believed that the procedure established greatly increases the efficacy of the means theoretically at the disposal of the nation to perform duties of prevention arising from maritime warfare, and acknowledged to be imposed by international law, if not by conventions supposedly declaratory of it.

CHARLES CHENEY HYDE.

THE CUSTODIAN UNDER THE TRADING WITH THE ENEMY ACTS

Anglo-American jurisprudence makes domicile the test of enemy character. Thus an American citizen, resident today in Germany and making no effort to withdraw, is legally an enemy. And vice versa, German subjects now domiciled in the United States, if they observe the laws and comply with such regulations for the national safety as the President may prescribe, are not regarded as enemies. Now, property follows the status of its owner. Therefore, the property of the American aforesaid in Germany is enemy's property. If captured at sea, for instance, on an enemy's ship, it is good prize. But there is an inconsistency in this rule. Though all the property of an enemy house of trade is enemy's property, even if certain of its partners are neutral, in a neutral house the share of an enemy subject is not exempt from capture. Nationality has replaced domicile in the determination of its character.

As we do not regard Germans here domiciled as enemies, their property likewise is not enemy's property and is not confiscable. But owing to the intricacies and complexities of modern commerce, there may be, nevertheless, enemy's property in great variety within our territory; their goods are here on sale; stocks and bonds evidence their share in our corporations; branches of their banks have been established here; their insurance companies for years have taken risks here; under their patents our licensees are operating; an American heiress marries an enemy subject and her income is in question. No government can permit its enemy to draw resources for the prosecution of the war from itself. All this makes a third class of property to be considered.

For a good part of a century, certain treaty provisions also were frequent which should be added to this summary of the usage as to enemy's property before the Great War. These gave time and privileges for the withdrawal of persons and property.

How does this usage compare with the rules under which we are living today? These rules are set forth in the Trading with the Enemy Act,1 approved October 6, 1917, which will be discussed in a later issue of the JOURNAL. This comment is confined to that provision of the Act which is comparatively new, as offering a solution of the problem

1 Printed in SUPPLEMENT to this JOURNAL, p. 27.