trammelled by any of the complications of an actual difficulty. The two earlier cases, 1, 6, are to the effect that asylum is improper if there be objection to its exercise. Then follows the long list of instances 17 which show the steady theoretical policy of the country (apart from the decision of actual cases) from 1868 to 1902. The meat of these instructions is that mentioned before (supra):

While discountenancing the custom, the United States is indisposed from obvious motives of humanity to deny temporary shelter to any unfortunates threatened with mob violence.

That the limitation contained in the term "mob violence" is a real one, witness Mr. Olney's savage utterance in case 34 and Mr. Hay's approval of Mr. Powell's action in refusing asylum in case 40 upon the ground that there was no evidence of lawless violence, as well as in the warning constantly given that any tender of protection in advance of actual necessity is to be discountenanced (cases 37 and 42).

HOW WILL ANY FUTURE Difficulty be disposed of?

The following statements possibly are indicative of our future policy, and, upon the whole, they perhaps summarize the true position of the Department of State in the past, when the occasional lapses, variations, and inconsistencies have been harmonized or forgotten:

(a) The United States refuses to recognize that there is any right of asylum by the law of nations.

(b) Yet, by long acquiescence and usage, in the countries of Spanish America, such a custom does exist.

(c) This government is unwilling, acting independently, to assent to its entire abolishment, but expects the same privileges, if demanded, that are accorded the other powers, and will not tolerate invasion of a legation or of a consulate whenever protection has actually been extended. However,

(d) It believes that this custom, as practiced in the past, is as bad in policy as it is erroneous in principle; that it tends to aggravate those conditions which called it into being; that it is subject to great abuse, whch is apparently inseparable from its existence; and that

17 Cases 10, 11, 23, 24, 25, 26, 27, 39, and 42.

(e) Its use must be limited to very narrow conditions within the careful discretion of the representative of this government,

(f) While a refusal to exercise the privilege will never be looked upon with disfavor.

(g) No tender of asylum should ever be made in advance of an actual emergency, and

(h) Asylum can be granted only in case (1) there is mob violence threatened and imminent, or (2) when the existing government has been overthrown and the local law has given way to license and riot, but no discrimination is to be made in favor of either former or prospective government officials;

(i) And it can never be invoked to harbor criminals and offenders against the laws when they are demanded in regular proceedings by proper authorities.

(j) Whenever the protection is granted, all munitions of war must be confiscated; the refugees must be kept within the limits of the legation premises; and all communication with outside parties must be strictly prohibited.

This seems to be about as far as it is possible to curtail the "right," or perhaps, until the civilization of the South American countries is farther advanced, about as far as is expedient. Within these narrow limits, if they are strictly adhered to, humanity and wisdom seem to have joined hands, and with a consistent course predicated upon the above gleaned principles, the so-called right of asylum should not in the future be the cause of any serious difficulty, although it is doubtful if it will for many years disappear entirely from the yearly records of the Department of State.

BARRY GILBERT.

THE INTERNATIONAL NAVAL CONFERENCE OF LONDON, 1908-19091

The cause for the creation of this conference and for its resultant codification of naval prize law can be found in the convention to establish an International Prize Court drawn up and signed at the Second Hague Conference by most of the powers in attendance. Article 7 of this convention reads as follows:

If a question of law to be decided is covered by a treaty in force between the belligerent captor and a power which is itself, or whose subject or citizen is a party to the proceedings, the court is governed by the provisions of the said treaty.

In the absence of such provisions, the court shall apply the rules of international law. If no generally recognized rule exists the court shall give judgment in accordance with the general principles of justice and equity.

The above provisions apply equally to questions relating to the order and mode of proof.

There was and has been considerable delay in obtaining signatures for this convention after it was agreed upon. On January 10, 1908, Germany, Brazil, China, Spain, Great Britain, Italy, Japan, Portugal, Russia, and Turkey among the greater powers had not signed, while practically there had been no ratifications. This delay was due to the vagueness of the article just quoted on the part of the great powers and also to the method of apportionment of representation upon the bench of judges on the part of the smaller powers. The state most concerned in the establishment of this prize court and in the questions of belligerent and neutral rights involved was unquestionably Great Britain, as the possessor not only of the greatest navy in the world, but also of the largest mercantile marine and seaborne trade. So essential is sea power and commerce to Great Britain that without it as a paramount influence she would shrink from a world-wide empire to an unimportant group of islands on the

1 Declaration is printed in the Supplement to this issue, p. 179.

western face of Europe with detached, heterogeneous and widely separated dependencies.

The Russo-Japanese war had recently made it evident to Great Britain not only how much a neutral trade could suffer and be interfered with vexatiously in a war whose area of operations was far removed from a home country; but also the disadvantages of the trial of her ships as prizes by foreign courts with rules at variance with her own usage and jurisprudence. It had long been well known that many of the continental doctrines of belligerent rights and duties were at variance with her own doctrines and those of the United States and Japan, but it had also become evident to keener minds of these latter countries that much of their own doctrine and practice had become obsolete since the time of the French and more especially the Napoleonic wars.

It was then natural that Great Britain, much as she desired a prize court of impartial bias, hesitated to sign the convention with its governing generalities and vague expressions of benevolent equity. Any court constituted by the convention would have been composed of judges, a large majority of whom would have been appointed by states whose geographical conditions, national interests and tradi tional doctrines would place them as members of a school opposed to much in theory and practice to that adopted by Great Britain, inherited by the United States of America, and from which Japan had drawn her text books and authorities. As a result of this situation and for the purpose of evolving order out of the chaos, the British government on the 28th of February, 1908, sent a circular note to various powers inviting them to join in a conference, the object of which should be to arrive at an agreement as to what were the generally recognized principles of international law referred to in the second paragraph of article 7 of the prize court convention. It became more and more evident that the greater the uncertainty was the greater and more unlimited became the power of the court, and the more dangerous and unsatisfactory might become its decisions.

In its call for a conference, the government of Great Britain stated, that the rules by which appeals from national prize courts would be decided affected the rights of belligerents in a manner

which would be far more serious to the principal naval powers than to others, and consequently His Majesty's Government at first communicated only with the governments of Austria-Hungary, France, Germany, Italy, Japan, Russia, Spain and the United States of America. To these powers the Netherlands were added as the home of the Hague Conferences and the seat of the proposed international prize court, thus making ten powers in all.

The original proposition named the time of the assembly of the conference as October 1, 1908, with the suggestion that it should meet in London. The time of the meeting was afterwards postponed until the first of December of that year, but the first actual session took place on the fourth of that month at the Foreign Office in London.

The questions which the British Government were particularly anxious to have considered and upon which they were desirous that an understanding should be reached "were those as to which divergent rules and principles have been enforced in the prize courts of different nations. It was therefore suggested that the following questions should constitute the programme of the conference: "

(a) Contraband, including the circumstances under which particular articles can be considered as contraband; the penalties for their carriage; the immunity of a ship from search when under convoy, and the rules with regard to compensation when vessels have been seized but have been found in fact only to be carrying innocent cargo;

(b) Blockade, including the questions as to the locality where seizure can be effected, and the notice that is necessary before a ship can be seized;

(c) The doctrine of continuous voyage in respect both of contraband and of blockade;

(d) The legality of the destruction of neutral vessels prior to their condemnation by a prize court;

(e) The rules as to neutral ships or persons rendering "unneutral service" ("assistance hostile ");

(f) The legality of the conversion of a merchant vessel into a warship on the high seas;

(g) The rules as to the transfer of merchant vessels from a belligerent to a neutral flag during or in contemplation of hostilities;

(h) The question whether the nationality or the domicile of the owner should be adopted as the dominant factor in deciding whether property is enemy property.