sidered as a subject of both, with regard to the transactions originating respectively in those countries." 23 To the extent to which the property is identified with the enemy, to that extent it would be treated as enemy property. Some other states consider that the nationality of the owner is the sole criterion in determining the character of goods.

Complications due to the changes in methods of business, by the introduction of partnerships and other forms of business organization, are not provided for in early precedents.

The London Naval Conference in 1908-09 considered the propriety of determining the neutral or enemy character of goods belonging to a country "according as the company had its headquarters in a neutral or enemy country." No decision was reached, however.

Some have maintained that the products of an enemy soil should be considered as enemy property, though the owner may be a neutral. The United States Supreme Court, following the British doctrine, announced that: "The opinion that the ownership of the soil does, in some degree, connect the owner with the property, so far as respects that soii, is an opinion which certainly prevails very extensively. It is not an unreasonable opinion. Personal property may follow the person anywhere; and its character, if found on the ocean, may depend on the domicile of the owner. But land is fixed. Wherever the owner of the country may reside, that land is hostile or friendly according to the condition of the country in which it is placed. It is no extravagant perversion to say that the proprietor, so far as respects his interest in this land, partakes of this character, and that the produce, while the owner remains unchanged, is subject to the same disabilities." ." 24 France and some of the other European states do not admit this position.

23 The Jonge Klassina, 5 C. Rob. 302.

24 Bentzon v. Boyle, 9 Cranch, 191, 3 L. Ed. 701; Scott, 598; Vrouw Anna Catharina, 5 C. Rob. 167. The Japanese doctrine is similar.

MEANS OF TELEGRAPHIC COMMUNICATION.

126. Means of telegraphic communication wholly within the jurisdiction of either belligerent may be seized, interrupted, or destroyed by the other belligerent. Means of telegraphic communication between either belligerent and a neutral may, outside of neutral jurisdiction, be seized, interrupted, or destroyed by the other belligerent as a military necessity, subject to liability for damages.

Communication by Wires.

Before the invention of wireless telegraphy, it had become fairly well established that telegraph lines, whether on land or submarine, connecting belligerent points, were, when beyond neutral jurisdiction, liable to such treatment as military expediency might suggest.

Submarine cables, connecting belligerent with neutral points, were liable to such treatment outside of neutral jurisdiction as the necessities of war might require, though at the close of the war damages might be assessed.25 The Hague Convention, 1907, Laws and Customs of War on Land (article 54), provides: "Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored, and compensation fixed when peace is made." 26 Communication without Wires.

Radio-telegraphy has for many purposes of war supplanted telegraphy by wires. The difference in range and nature of service of wireless telegraphy has brought about agreements among the states as to its use.27 The principles which should regulate the control of radio-telegraph in time of war are not yet fully established.28 Certain regulations were adopted

25 Wilson, Submarine Telegraphic Cables, Lectures U. S. Naval War College, 1901; Scholz, Krieg and Seekabel; Jouhannaud, Les câbles sous-marins.

26 Appendix, p. 544.

27 Berlin Agreement, 1903; International Wireless Telegraph Convention, Berlin, Nov. 3, 1906.

28 Scholz, Drahtlose Telegraphie und Neutralität; Thonier, De la Notion de Contrebande de Guerre, 334; Rolland, La Telegraphie

by the Hague Conference in 1907. By these belligerents are forbidden to

"(a) Erect on the territory of a neutral power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;

"(b) Use any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes, and which has not been opened for the service of public messages."

31

30

The neutral is not, however, called upon to restrict the use of apparatus belonging to it, or to companies or private individuals, though impartiality must be shown to both belligerents.3 In case of war on the sea, belligerents are likewise forbidden "to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea." 32

The Institute of International Law in 1906 adopted regulations which the members regarded as embodying the principles which should prevail in regard to wireless telegraphy. While enunciating the principle that the air is free, the Institute admitted that a state is entitled, both in time of peace and in time of war, to exercise such aërial jurisdiction as is necessary to its well-being. A neutral state may also become responsible to the extent of its ability for the regulation of the use for war purposes of its aërial domain.33

"From practice, as shown in various states, from the opinions of the courts and of writers, from the votes of conferences and from international agreements, it is evident that the state within whose jurisdiction a wireless telegraph apparatus is or passes is and will be authorized to exercise a degree

sans Fil et le Droit des Gens, 13 R. G. D. I. P. 86; Melli, Die Drahtlose Telegraphie im Internen Recht und Völkerrecht; Int. Law Situations, U. S. Naval War College, 1907, 138.

29 Article III, Rights and Duties of Neutral Powers and Persons in Case of War on Land.

80 Id. art. VIII.

31 Id. art. IX.

32 Hague Convention, 1907, Rights and Duties of Neutral Powers in Naval War, art. 5.

33 For Regulations of Institute, see ante, p. 122.

of control over its use. The responsibility resting upon such state will be large.

"In order to avoid possible complications in time of war, it will be expedient in time of war for states, whether neutral or belligerent, to exercise control over wireless telegraphy as circumstances seem to require." "34

It is admitted that a belligerent may prohibit or regulate the use of radio-telegraphy within the area of hostilities, that a neutral state must use reasonable care that its territory be not abused for military purposes, that it can make regulations accordingly, and that confiscation of wireless apparatus, and in some cases of a vessel upon which the apparatus is, may result from the unneutral use of wireless telegraphy.

84 Int. Law Situations, U. S. Naval War College, 1907, p. 175.

127. To constitute capture, there must be some act showing intention to take possession upon the part of the captor and submission on the part of the captured.

To constitute a capture at sea, there must be evidence of the animus capiendi and of submission. The act of taking physical possession is not absolutely necessary, because the surrender of the master and crew or vessel is complete when the flag is lowered, and the conditions may be such as to render actual taking of possession impracticable,2 and yet the continuance of hostilities under the circumstances may be uncalled for. The most usual method of showing intention to take possession is to place on board the vessel a prize crew sufficient to prevent an attempt at rescue.

The captor acquired property in the things captured, according to the ancient practice, when things seized by him were brought into his camp, fortress, port, or fleet. Later the arbitrary rule was laid down that possession for twenty-four

1 The Mary, 2 Wheat. 123, 4 L. Ed. 200; The Alexander, 8 Cranch, 169, 3 L. Ed. 524; The Grotius, 9 Cranch, 368, 3 L. Ed. 762.

2 "If by reason of rough weather or other circumstances this is impracticable, the commander should require the vessel to lower her flag, and to steer according to his orders." British Manual Naval Prize Law, No. 238. Edward and Mary, 3 Rob. 305.