in a difficulty with a third party. To intern the offending ship without insisting on her forfeiture would seem to conciliate as far as possible the duty of stopping her career with respect to a foreign flag.

Westlake, vol. 2, pp. 244, 245.

Unless a neutral expressly forbids the entry of belligerent warships, they may freely enjoy the hospitality of its ports and waters. Permission is assumed in the absence of any notice to the contrary, but nevertheless it is a privilege based upon the consent of the neutral, and therefore capable of being accompanied by conditions or withdrawn altogether as a punishment for illegal conduct. Moreover, a rule of absolute exclusion may be adopted as long as it is applied to each of the combatants, the latest instance being that afforded by the Scandinavian powers in the Russo-Japanese War. Belligerent commanders can demand that they shall not be asked to submit to unjust and unreasonable restraints, and that whatever rules are made shall be enforced impartially on both sides. But further they cannot go.

Lawrence, p. 623-624.

Although a neutral may grant asylum to belligerent men-of-war in his ports, he has no duty to do so. He may prohibit all belligerent men-of-war from entering any of his ports, whether these vessels are pursued by the enemy or desire to enter for other reasons. However, his duty of impartiality must prevent him from denying to the one party what he grants to the other, and he may not, therefore, allow entry to men-of-war of one belligerent without giving the same permission to men-of-war of the other belligerent. Neutrals as a rule admit men-of-war of both parties, but they frequently exclude all men-of-war of both parties from entering certain ports. Oppenheim, vol. 2, pp. 417-418.

This contest [between Spain and her colonies] was considered at an early stage by my predecessor a civil war in which the parties were entitled to equal rights in our ports. This decision, the first made by any power, being formed on great consideration of the comparative strength and resources of the parties, the length of time, and successful opposition made by the colonies, and of all other circumstances on which it ought to depend, was in strict accord with the law of nations. Congress has invariably acted on this principle, having made no change in our relations with either party. Our attitude has therefore been that of neutrality between them, which has been maintained by the government with the strictest impartiality. No aid has been afforded to either, nor has any privilege been enjoyed by the one which has not been equally open to the other party, and every exertion has been made in its power to enforce the execution of the laws prohibiting illegal equipments with equal rigor against both.

By this equality between the parties their public vessels have been received in our ports on the same footing; they have enjoyed an equal right to purchase and export arms, munitions of war, and every other supply, the exportation of all articles whatever being permitted under the laws which were passed long before the commencement of the contest; our citizens have treated equally with

both, and their commerce with each has been alike protected by the Government.

President Monroe, Second inaugural address, March 5, 1821, Richardson's Messages of the Presidents, II, 88.

whatever privileges shall be accorded to one belligerent within the ports of the United States shall be in like manner accorded to the other.

President Grant's neutrality proclamation, August 22, 1870, For. Rel. 1870, 45.

Article 9, Hague Convention XIII, 1907, is substantially identical with section 129, Austro-Hungarian Manual, 1913.

The Santissima Trinidad," 7 Wheaton, 283.-In this case the court held that as the Government of the United States had recognized the existence of a civil war between Spain and Buenos Ayres and avowed a determination to remain neutral between the parties and to allow to each the same rights of asylum and hospitality and intercourse, each party was to be deemed a belligerent nation, having sovereign rights of war, and that all the immunities which might be claimed by public ships in the ports of the United States, under the law of nations, must be considered by the courts as equally the right of each.

PASSAGE OF BELLIGERENT VESSELS OR PRIZES THROUGH NEUTRAL WATERS.

The neutrality of a Power is not affected by the mere passage through its territorial waters of war-ships or prizes belonging to belligerents.-Пague Convention XIII, 1907, Article 10.

* * *

All ships without distinction have the right of innocent passage through the territorial sea, saving to neutrals the right of regulating the passage of ships of war of all nationalities through the said sea.

Institute, 1894, p. 114.

If a belligerent cruiser inoffensively passes over a portion of water lying within neutral jurisdiction, that fact is not usually considered such a violation of the territory as to affect and invalidate an ulterior capture made beyond it. The passage of ships over territorial portions of the sea is a thing less guarded than the passage of armies on land, because less inconvenient, and permission to pass over them is not usually required or asked.

Kent, vol. 1, p. 126.

* *

This exemption [of neutral territory from hostilities] extends to the passage of * [a] fleet through the limits of the territorial jurisdiction, which can hardly be considered an innocent passage, such as one nation has a right to demand from another; and, even if it were such an innocent passage, is one of those imperfect rights, the exercise of which depends upon the consent of the proprietor, and which cannot be compelled against his will. It may be granted or withheld, at the discretion of the neutral State; but its being granted is no ground of complaint on the part of the other belligerent power, provided the same privilege is granted to him, unless there be sufficient reasons for withholding it.

Dana's Wheaton, p. 520.

If a belligerent cruiser, in acting offensively, passes over a portion of water within neutral jurisdiction, that fact is not usually considered such a violation of the territory as to invalidate an ulterior capture made beyond it. Permission to pass over territorial portions of the sea is not usually required or asked, because not supposed to result in any inconvenience to the neutral power. For example, in a war between England and Russia, belligerent vessels must pass the sound over which Denmark claims and exercises imperial rights. So in a war between France and Russia, armed vessels might be obliged to pass through the neutral waters of the Dardanelles; but in neither of these cases would the passage be deemed a violation of neutral rights, nor would a capture by either power be invalidated

by the fact of such passage, animo capiendi, to the place where his right of capture could be exercised.

Halleck, p. 527.

Contra.

It was formerly thought that the neutral might allow

waters

*

*

the passage of ships engaged in the service of war through his if he granted the same to both sides. All now admit that the neutral ought to refuse any of these privileges, and must be the sole judge in the case.

Woolsey, pp. 278, 279.

We have already seen that the right of innocent passage through the littoral waters of a neutral state extends to belligerent ships of war, subject to the neutral's right to regulate it, and so long as it is used truly for passage and not for anchoring or hovering. To that extent the neutral power makes no concession to the belligerent by not interfering with his right of passage, but the regulations which the neutral has to make in order to prevent the abuse of that right are substantially the same as those required for ports and roadsteads, although their enforcement may not be always practicable. Westlake, vol. 2, pp. 234, 235.

The question is on a very different footing as far as marginal waters are concerned. In discussing rights over them we came to the conclusion that territorial powers were bound to allow passage, to all vessels of states with which they were at peace, when such waters were channels of communication between two portions of the high seas. This right of innocent passage belongs to war-ships as well as to private vessels. But it is maintained in some quarters that the right of a neutral government to exclude the fighting vessels. of belligerents from its ports and waters involves a right to deny them even innocent passage. The only point absolutely clear is that a neutral power may not close a narrow strait uniting two open seas, even though it possesses territorial sovereignty over the entire passage.

Lawrence, pp. 635–636.

* * **

In contradistinction to passage of troops through his territory, the duty of impartiality incumbent upon a neutral does not require him to forbid the passage of belligerent men-of-war through the maritime belt forming part of his territorial waters. Since, as stated above in Vol. I, Sec. 188, every littoral State may even in time of peace prohibit the passage of foreign men-of-war through its maritime belt provided such belt does not form a part of the highways for international traffic, it may certainly prohibit the passage of belligerent men-of-war in time of war. However, no duty exists for a neutral to prohibit such passage in time of war. * The reason is that such passage and contain very little assistance indeed, and are justified by the character of the sea as an international high road.

*

*

Oppenheim, vol. 2, pp. 393–394.

* * *

But he [the Commander] may pass over Neutral Territorial Waters in order to effect a Capture beyond, provided they are not

Waters which cannot usually be passed through without express permission.

Holland, p. 2.

Article 10, Hague Convention XIII, 1907, is apparently identical with section 130, Austro-Hungarian Manual, 1913.

Early in April, 1898, the Canadian Government, acting upon a request presented by the Department of State to the British ambassador at Washington, granted permission for four United States revenue cutters to pass through the canals under Canadian control from the Great Lakes to the Atlantic coast, two of the vessels being armed revenue cutters, while the other two were under construction and were not to be delivered by the builders to the United States till they reached the sea. April 27, 1898, war between the United States and Spain having meanwhile begun, a memorandum was left at the Department of State by the British Ambassador. in which, referring to the fact that the four vessels were in Lake Ontario awaiting the opening of navigation, he stated that Her Majesty's Government were of opinion that the permission given before the outbreak of war should not be withdrawn, "provided that the United States Government are willing to give an assurance that the vessels in question will proceed straight to a United States port without engaging in any hostile operation." The opinion was further expressed "that the vessels should not be furnished with more coal and stores than are necessary to take them to New York or some other United States port within easy reach." The hope was expressed that assurances to that effect would at once be given, "in order that the facilities granted before the outbreak of war * * * may still be extended without any breach of neutrality." The Department of State replied that instructions would be sent to the commanders of the vessels to observe the conditions above expressed, but added: "It is, of course, understood that the prohibition of engaging in any hostile operation would not preclude resistance to a hostile attack." On the 4th of May the British Ambassador was advised that the proper orders had been issued to the commanding officers of two vessels which were then on their way to the Atlantic coast, and that similar orders would be given to the others whenever they should follow.

Moore's Digest, vol. 1, p. 938, For. Rel. 1898, 968-970.

The "Twee Gebroeders," 3 C. Rob., 354.—The Court said: “Where a free passage is generally enjoyed, notwithstanding a claim of territory may exist for certain purposes, no violation of territory is committed, if the party, after an inoffensive passage, conducted in the usual manner, begins an act of hostility in open ground. In order to have an invalidating effect, it must at least be either an unpermitted passage, over territory where permission is regularly requested; or a passage under a permission obtained on false representation, and suggestions of the purpose designed. In either of these cases there might be an original misfeasance, and trespass, that trav elled throughout and contaminated the whole; but if nothing of this sort can be objected, I am of opinion, that a capture, otherwise legal. is in no degree affected by a passage over territory, in itself otherwise legal and permitted."