EMPLOYMENT BY BELLIGERENT VESSELS OF NEUTRAL PILOTS. A neutral Power may allow belligerent war-ships to employ its licensed pilots.-Hague Convention XIII, 1907, Article 11. Professor Oppenheim justly points out that this must be understood as limited to pilotage in territorial waters. Westlake, vol. 2, p. 247. * * * There would certainly be no objection to a neutral allowing belligerent vessels to which asylum is legitimately granted, to be piloted into his ports, and likewise such vessels to be piloted through his maritime belt if their passage is not prohibited. But a belligerent might justly object to the men-of-war of his adversary being piloted on the Open Sea by pilots of a neutral Power, except in a case of distress. It is worth mentioning that Great Britain during the FrancoGerman War in 1870, prohibited her pilots from conducting German and French men-of-war which were outside the maritime belt, except when in distress. Oppenheim, vol. 2, pp. 432-433. Article 11, Hague Convention XIII, 1907, is substantially identical with section 131, Austro-Hungarian Manual, 1913. In March, 1885, Mr. Young, American minister at Peking, referring to the war then going on between France and China, cabled to his Government as follows: "Chinese object American pilots French men-of-war. Shall I forbid such service?" To this inquiry Mr. Bayard replied: "Although well disposed, we can not forbid our citizens serving under private contract at their own risk. Not prohibited by statutes or cognizable by consuls." Moore's Digest, vol. vii, p. 1051, For. Rel. 1885, 160. (217) LENGTH OF STAY OF BELLIGERENT VESSELS IN NEUTRAL PORTS, ROADSTEADS, OR WATERS. In the absence of special provisions to the contrary in the legislation of a neutral Power, belligerent war-ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for more than twenty-four hours, except in the cases covered by the present Convention. If a Power which has been informed of the outbreak of hostilities learns that a belligerent war-ship is in one of its ports or roadsteads, or in its territorial waters, it must notify the said ship to depart within twenty-four hours or within the time prescribed by local regulations.-Hague Convention XIII, 1907, Articles 12 and 13. Granting of asylum to belligerents in neutral ports, although depending upon the pleasure of the sovereign State and not required of it, shall be presumed, unless previous notification to the contrary has been given. With regard to war-ships, however, it shall be limited to cases of real distress, in consequence of: 1. defeat, sickness or insufficient crew; 2. perils of the sea; 3. lack of the means of subsistence or locomotion (water, coal, provisions); 4. need of repairs. Institute, 1898, p. 154. It is now the custom to fix a short time for the stay of such vessels [belligerent cruisers in neutral ports), after they have done what is permitted them, or the marine exigency has passed,-usually twentyfour hours. Note 208, Dana's Wheaton. In the case of ships of war running into neutral waters in order to escape from an enemy, to demand that they shall either be disarmed, like fugitive troops, or return to the high seas, seems to be a harsh measure, and unauthorized by the usages of nations. An instance of such harshness occurred in the war between Schleswig-Holstein and Denmark. A small war steamer, belonging to the former party, ran for safety, in July, 1850, into the waters of Lübeck, which was on friendly terms with both belligerents. The senate of Lübeck had given orders that vessels of war of either party, appearing within its jurisdiction, must lay down their arms or depart beyond cannonshot from the coast. The lieutenant commanding the steamer chose the latter alternative. In justification of its conduct, which was impartial, Lübeck only pleaded that the neutral, in regard to the rules of hospitality, must consult its own interests, and that small states, in order to have their character for neutrality respected, must "observe in everything which relates to war itself the stricter rules of neutrality". They would receive, they said, vessels of the belligerent parties only when escaping the perils of the seas, and then only whilst such perils lasted. The analogy from the practice of disarming fugitive troops does not hold here. If the ship is driven out at once, it goes where superior force is waiting for it; if it remains disarmed the expense and inconvenience are great. Woolsey, pp. 272, 273. It will probably be found necessary to supplement the twenty-four hours' rule [for the detention in a neutral port of a belligerent war vessel after the sailing of a hostile vessel] by imposing some limit to the time during which belligerent vessels may remain in a neutral port when not actually receiving repairs. The insufficiency of the twenty-four hours' rule, taken by itself, is illustrated by an incident. which occurred during the American Civil War. In the end of 1861, the United States corvette Tuscarora arrived in Southampton Water with the object, as it ultimately appeared, of preventing the exit of the Confederate cruiser Nashville, which was then in dock. By keeping up steam and having slips on her cable, so that the moment the Nashville moved, the Tuscarora could precede her, and claim priority of sailing, by moving and returning again within twentyfour hours, and by notifying and then postponing her own departure, the latter vessel attempted and for some time was able to blockade the Nashville within British waters. In order to guard against the repetition of such acts, it was ordered in the following January that during the continuance of hostilities, any vessel of war of either belligerent entering an English port should be required to depart and to put to sea within twenty-four hours after her entrance into such port, except in case of stress of weather, or of her requiring provisions, or things necessary for the subsistence of her crew, or repairs; ' in either of which cases the authorities of the port were ordered 'to require her to put to sea as soon as possible after the expiration of such period of twenty-four hours.' In 1870 the same rule was laid down; and the United States, unwilling to allow to others the license which she permitted to herself, adopted an identical resolution. It is perhaps not unlikely soon to become general. Hall. pp. 652, 653; Bernard, 270; Neut. Laws Commissioner's Rep., Appendix * * * * ** * France stands at the other extreme of the scale of advance in the definition of neutral duties, not even limiting the stay in her ports of belligerent ships of war not accompanied by prizes to 24 hours or any other time; We must therefore admit that the rule of 24 hours' stay, and the limits which as above mentioned have been set by many states to their supply of coal, are not yet a part of international law; but the amount of recognition which they have received would lend very great weight to any complaint which a belligerent might make on principle of conduct by a neutral power not in conformity with them. Westlake, vol. 2, p. 242. * We now pass on to a consideration of the duty incumbent on a neutral power to prevent an undue stay of belligerent war-ships and their prizes in its ports and waters. * *The question of length of stay is far more important, and must receive more detailed treatment. Not till 1862 was it made matter of formal regulation published beforehand, and then by one power only. In that year Great Britain, being neutral in the American Civil War, announced that no belligerent war-ship might remain in one of her ports longer than twenty-four hours, unless special permission was obtained for such a purpose as coaling or effecting repairs. Many other powers have since followed the British example; but France has never adopted it save in the case of a cruiser accompanied by a prize, and Germany has desired to confine a definite period to ports situated within the theatre of war, leaving neutrals at liberty to fix their own time with regard to more distant harbors. In 1907 the Second Hague Conference agreed after long discussion on the twenty-four hours rule for all ordinary cases "in default of special provisions to the contrary in the laws of a neutral power.' It thus indicated that the British practice might with advantage become undoubted law, but provided a means of escape from it in deference to the objections of a few powers. Even so Germany was not satisfied, and entered a reservation against the article. Lawrence, p. 639–640. Asylum can, secondly, be abused by wintering in a port in order to wait for other vessels of the same fleet, or by similar intentional delay. There is no doubt that neutrals must prohibit this abuse by ordering such belligerent men-of-war to leave the neutral ports. Following the example set by Great Britain in 1862, several maritime States have adopted the rule of not allowing a belligerent manof-war to stay in their neutral ports for more than twenty-four hours, except on account of damage or stress of weather. Oppenheim, vol. 2, pp. 421-422. A neutral would certainly violate his duty of impartiality if he were to allow belligerent men-of-war to winter in his ports or to stay there for the purpose of waiting for other vessels of the fleet or transports. Oppenheim, vol. 2, p. 404. Asylum can, lastly, be abused by remaining in a neutral port an undue length of time in order to escape attack and capture by the other belligerent. Neutral territorial waters are in fact an asylum for men-of-war which are pursued by the enemy, but, since nowadays a right of pursuit into neutral waters, as asserted by Bynkershoek, is no longer recognised, it would be an abuse of asylum if the escaped vessel were allowed to make a prolonged stay in the neutral waters. A neutral who allowed such abuse of asylum would violate his duty of impartiality, for he would assist one of the belligerents to the disadvantage of the other. Oppenheim, vol. 2, p. 422. ** ** when after the battle of Port Arthur in August 1904, the Russian battleship Cesarewitch, the cruiser Novik, and three de stroyers escaped, and took refuge in the German port of Tsing-Tau in Kiao-Chau, the Norik, which was uninjured, had to leave the port after a few hours. Oppenheim, vol. 2, p. 423. If any ship of war or privateer of either belligerent shall, after the time this notification takes effect, enter any port, harbor, roadstead, or waters of the United States, such vessel shall be required to depart and to put to sea within twenty-four hours after her entrance into such port, harbor, roadstead, or waters, except in case of stress of weather or of her requiring provisions or things necessary for the subsistence of her crew, or for repairs; in either of which cases the authorities of the port or of the nearest port (as the case may be) shall require her to put to sea as soon as possible after the expiration of such period of twenty-four hours, without permitting her to take in supplies beyond what may be necessary for her immediate use; * * * Proclamation of President Grant, October 8, 1870, For. Rel. 1870, 48. See also Proclamation of President Roosevelt, February 11, 1904. The Pacific fleet, under Commodore George Dewey, had lain for some weeks at Hongkong. Upon the colonial proclamation of neutrality being issued and the customary twenty-four hours' notice being given, it repaired to Mirs Bay, near Hongkong, whence it proceeded to the Philippine Islands under telegraphed orders to capture or destroy the formidable Spanish fleet then assembled at Manila. President McKinley, annual message, December 5, 1898, For. Rel. 1898, LVIII. Articles 12 and 13. Hague Convention V, 1907, are substantially identical with section 132, 133, respectively, Austro-Hungarian Manual, 1913. Contra. Under Article XVII. of the treaty with France of 1778, the menof-war of the enemies of France were forbidden to bring their prizes into the ports of the United States, and a direction for the enforcement of this obligation was embraced in the instructions to collectors of customs of Aug. 4, 1793. But, with this exception, belligerent men-of-war were permitted to enter the ports of the United States by the letter of Sept. 9, 1793, "which concedes to them our ports as a refuge in case of necessity and a resort for comfort or convenience, without limiting the time of their stay." Moore's Digest, vol. vii, p. 985; Mr. Randolph, Secretary of State, to governor of Virginia, May 8, 1795. Contra as to time. During the American Civil War the Dutch Government issued in-structions permitting men-of-war of the belligerents to remain in the ports of the Dutch West Indies not more than 48 hours. Baron Van Zuylen, Dutch minister of foreign affairs to Mr. Pike, American minister at The Hague, October 29, 1861. Effect of armistice. "I have the honor to inform you that on the 22nd ultimo I received the following telegram of that date from Mr. Harris, United States |