as the Open Door Policy. An identical note has been transmitted to the Japanese Government.

It is for careful students of diplomacy and international law to determine whether or not the treaties and exchanges of notes involve any violations of these treaty rights, the political or territorial integrity of China or the Open Door Policy. We have included here all the printed documents which appear to be necessary for such a study.

That the general tenor of the original Japanese demands upon China, in which we include Group Five, involved a violation of the RootTakahira agreement of November 30, 1908, would appear to be the case, upon perusal of the five stipulations of this memorable exchange of notes; these stipulations were as follows:

1. It is the wish of the two governments to encourage the free and peaceful development of their commerce on the Pacific Ocean.

2. The policy of both governments, uninfluenced by any aggressive tendencies, is directed to the maintenance of the existing status quo in the region above mentioned, and to the defense of the principle of equal opportunity for commerce and industry in China.

3. They are accordingly firmly resolved reciprocally to respect the territorial possessions belonging to each other in said region.

4. They are also determined to preserve the common interests of all Powers in China by supporting by all pacific means at their disposal the independence and integrity of China and the principle of equal opportunity for commerce and industry of all nations in that Empire.

5. Should any event occur threatening the status quo as above described or the principle of equal opportunity as above defined, it remains for the two governments to communicate with each other in order to arrive at an understanding as to what measures they may consider it useful to take.

In the meanwhile it may be added that the attitude of Japan, as revealed in the extracts above printed, was imperative throughout, while that of China revealed her realization of the helplessness of her position. It is safe to say that China would have consented to none of the Japanese demands, had she not felt powerless to refuse them.

The future of China is dark, and the situation in the Far East is complicated by the uncertainties which surround that country. The unfortunate yielding of President Yuan Shih-Kai to the pressure upon him for the conversion of the Republic into an Empire, led to the rebel

lion in Yunnan, to the reported vetoing of the whole scheme for an empire by Japan, Great Britain, and France, to the rescinding of all steps taken to inaugurate the Empire, and finally to the demand that the President resign. Thus at the moment of this writing, a state of uncertainty exists in China, the outcome of which cannot be foreseen, but may culminate at any moment.

S. N. D. NORTH.

SOME QUESTIONS OF INTERNATIONAL LAW IN THE

EUROPEAN WAR1

X

TREATMENT OF ENEMY MERCHANT VESSELS IN BELLIGERENT PORTS AT THE OUTBREAK OF WAR

The outbreak of the European War found hundreds of merchant vessels of belligerent nationality in enemy ports or on the high seas bound to or from such ports in ignorance of the existence of hostilities, having left their last port of departure before the outbreak of war. The short period antedating the outbreak of the war, during which hostilities may be said to have been imminent, and the suddenness with which the war burst out afforded little opportunity to such vessels to escape, and consequently large numbers were caught either in enemy ports or on the high seas proceeding innocently thereto or therefrom.

The exact number of British, French, and Russian merchant vessels which were found in German ports on the outbreak of hostilities is not known, but it appears that the number was not inconsiderable. According to a statement issued by the British Navy League on July 3, 1915, 119 German, 20 Austrian, and 11 Turkish ships were detained in British ports after the outbreak of war, while 18 German and 3 Austrian ships were detained in Egyptian ports. In addition, 119 German, 7 Austrian, and 5 Turkish ships were seized while entering British or colonial ports, or while on the high seas, making a total of 302 enemy vessels which were in the possession of the British Government at the time the Navy League report was published. According to the old

2

1 Continued from previous numbers of this JOURNAL.

2 The figures given by the London Weekly Times were somewhat different. In its issue of Sept. 4, 1915, the Times stated that 225 enemy ships had been detained or captured at sea, aggregating a total of about 550,000 tons. According to the list published by officials of the Prize Court in September, 1915, there were 97 German prizes in the custody of the British Prize Court. Owing to the disappearance of the German navy and merchant marine from the ocean, few captures were made by Great Britain except during the early weeks of the war.

practice, all enemy merchant vessels found in port at the outbreak of war or captured on the high seas while proceeding to or from such ports whether ignorant of the outbreak of hostilities or not, were liable to capture as "droits of admiralty," and in practice such vessels were usually condemned as good prize.3 This liability to capture existed in fact long after the practice of appropriating enemy private property on land had generally been abandoned, and frequently embargoes on vessels in port were laid in anticipation of war, so that in the event of hostilities they might be confiscated. But, says de Boeck, the practice of seizing without previous notice and on the very day of the declaration of war merchant ships and goods belonging to peaceable citizens who were carrying on their trade under the faith of treaties was too severe.5 Bluntschli adds that "modern juridical sentiment revolted against the particularly brutal application of the old principle that a belligerent may lay his heavy hand upon enemy merchant ships and the cargoes which they carry." Accordingly a new practice known as the indult or délai de faveur was introduced, by which enemy merchant vessels in ports at the outbreak of war were allowed a certain period to depart without molestation. This favor was first accorded in practice during the Crimean War, when the Porte granted to Russian vessels in Ottoman ports the privilege of departing within a fixed period. France and Great Britain followed the action of the Porte and allowed Russian ships of commerce in their ports at the outbreak of the war six weeks to load their cargoes and depart. Moreover, Russian merchant ships which had left their port of departure before the outbreak of war were allowed

3 "It was the general usage of Europe," says Merlin in the beginning of the nineteenth century, "that whenever one Power declared war against another he seized instantly all ships belonging to the enemy or his subjects, which were found in his ports." Cited by Pistoye et Dunerdy, Traité des Prises Maritimes, T. I, p. 122. Concerning the old practice see also de Boeck, de la Proprieté Privée Enemie sous Pavillon Enemie, sec. 234; Dupuis, Le Droit de la Guerre Maritime d'après les Conférences de la Haye et de Londres, p. 163; Scott, Status of Enemy Merchant Ships, American Journal of International Law, Vol. II, pp. 260-261.

Westlake, International Law, pt. II, p. 42; and Moore, Digest of International Law, Vol. VII, sec. 1196.

1 Op. cit., sec. 234. For the same view see Bonfils, Droit International Public, sec. 1399.

Droit International Codifié, Trans. by Lardy, Art. 669.

to enter the ports of Great Britain and France, discharge their cargoes, reload, and to depart without molestation." Russia accorded a similar délai to British and French ships.8 In the war of 1866 Prussia allowed a délai of six weeks to Austrian ships in Prussian ports, and to those proceeding to Prussian ports in ignorance of the war, but it was conditioned on reciprocity of treatment by Austria. At the outbreak of the Franco-German War of 1870-71, France gave German merchant vessels a period of thirty days in which to depart, and allowed those which entered a French port after the declaration of war in ignorance of the existence of hostilities a similar privilege. The King of Prussia on January 19, 1871, revoked the ordinance of July 18, 1870, which exempted French merchant vessels from capture, but with the stipulation that it was not to take effect until February 10th following. During the RussoTurkish War of 1877-78 délais were accorded by both belligerents, and at the outbreak of the war between Greece and Turkey in 1897 the Sultan allowed a period of fifteen days during which Greek merchant vessels might depart from Ottoman ports.

Upon the outbreak of the war between Spain and the United States in 1898 the Spanish Government accorded a délai of five days to American ships in Spanish ports to depart, but did not expressly prohibit their subsequent capture on the high seas, nor did it provide for the entrance and departure of American ships which had sailed for Spanish ports before the war. The American Government granted a délai of thirty days (from April 21 to May 21) to Spanish vessels in American ports. The American proclamation further exempted Spanish vessels which prior to April 21 (the date of the beginning of actual hostilities) had sailed from a foreign port bound for a port in the United States, and allowed these to enter such port, discharge their cargoes, and depart without molestation. Under an interpretation by the Supreme Court this liberal privilege was extended to cover the case of a Spanish merchant vessel which had sailed from an American port before the beginning of hostilities. 10 During the Russo-Japanese War, the Japanese Govern

7 See the texts of the French decree and the British Order in Council, in International Law Situations, 1906, pp. 48-49.

8 Ibid., Bonfils, sec. 1399.

Bonfils, sec. 1399.

10 The Buena Ventura, 175 U. S. 388. The American proclamation, however, ex