rice, enemy's property; but, in that case, the vessel, being American, was condemnable for traitorously aiding the enemy, and the form of condemnation was of little consequence.

(3) It is not an unneutral intervention, entailing a penalty, for a neutral to knowingly carry a despatch of a character recognized as diplomatic, in the international intercourse of States. Of this class, is a despatch passing either way between the enemy's home-government and its diplomatic agent in a neutral country, or between a neutral government and its diplomatic agent in an enemy's country; and consuls-general come within the privilege of this rule. But, if the despatches are placed in a private vessel of the nation with which the ambassador's nation is at war, and she is captured by a cruiser of the former nation, the despatches have no immunity. (Tulip, Washington's Rep. iii, 181.)

The above are the principles laid down by the English prize courts, and adopted by the British Government, which no other prize courts have overruled, and no national acts of other States, in the way of treaties or permanent orders, have disclaimed.

Dana's Wheaton, Note 228.

Not unlawful to carry invalid soldiers.

l'asse v. Ball, 2 Dallas, 270.-In this case, the court said he had "never heard of any law, in any civilized nation, that deemed it contraband or unlawful to carry a few, unarmed, invalid soldiers, to a neutral country, in pursuit of health and refreshment."

Carriage of ordinary correspondence from neutral ports not unlawful.

The "Calchas," Russian and Japanese Prize Cases, vol. 1, p. 118.— This was the case of a British vessel on a voyage from Tacoma to Liverpool, via Japanese ports and carrying a large amount of mail for Japan.

The Prize Courts said that in view of the Regulations of the Universal Postal Union, the carriage of ordinary correspondence from neutral ports would not alone be sufficient ground for regarding a neutral as having rendered assistance to one of the belligerents to the injury of the other. Moreover, the correspondence in question on being examined, proved to contain no information likely to influence the progress of the operations of the navy or fleet. Therefore, the Court held the vessel was not liable to condemnation for carrying correspondence to the enemy.

See also The St. Kilda, Russian and Japanese Prize Cases, vol. 1. p. 188.

The "Nigretia," Russian and Japanese Prize Cases, vol. 2, p. 201.In 1904, the British steamer Vigretia, while on a voyage to Vladivostock, carried as passengers two Russian officers, who had assumed German names. The captain of the vessel swore that he did not know that these passengers were Russian officers; but, on the other hand, the Japanese Prize Court found that both he and the charterer were privy to the carriage, and the court held that the ship "must be confiscated as the vessel was actually engaged in transporting contraband persons."

Cargo Ex "Nigretia," 2 Russian and Japanese Prize Cases, vol. 2, p. 213.-Cargo belonging to the charterer of a vessel condemned because of unneutral act of vessel for which he arranged.

CONDEMNATION OF NEUTRAL VESSEL AND GOODS OF OWNER BECAUSE OF SPECIFIED UN NEUTRAL SERVICE NOT COVERED BY ARTICLE 45, DECLARATION OF LONDON.

A neutral vessel will be condemned and, in a general way, receive the same treatment as would be applicable to her if she were an enemy merchant vessel:

(1) If she takes a direct part in the hostilities;

(2) If she is under the orders or control of an agent placed on board by the enemy Government;

(3) If she is in the exclusive employment of the enemy Government;

(4) If she is exclusively engaged at the time either in the transport of enemy troops or in the transmission of intelligence in the interest of the enemy.

In the cases covered by the present Article, goods belonging to the owner of the vessel are likewise liable to condemnation. Declaration of London, Article 46.

In the more serious cases which belong to the second class (art. 46), the vessel is again condemned: but further, she is treated not only as a vessel subject to condemnation for carrying contraband, but as an enemy merchant vessel, which treatment entails certain consequences. The rules governing the destruction of neutral prizes do not apply to the vessel, and as she has become an enemy vessel, it is no longer the second but the third rule of the declaration of Paris which is applicable. The goods on board will be presumed to be enemy goods; neutrals will have the right to claim their property on establishing their neutrality (art. 59). It would, however, be going too far to say that the original neutral character of the vessel is completely lost, so that she should be treated as though she had always been an enemy vessel. The vessel may plead that the allegation made against her has no foundation in fact, that the act of which she is accused has not the character of unneutral service. She has, therefore, the right of appeal to the international court in virtue of the provisions which protect neutral property.

The cases here contemplated are more serious than those in article 45, which justifies the severer treatment inflicted on the vessel, as explained above.

First case. The vessel takes a direct part in the hostilities. This may take different forms. It is needless to say that, in an armed conflict, the vessel takes all the risks incidental thereto. We suppose her to have fallen into the power of the enemy whom she was fighting, and who is entitled to treat her as an enemy merchant vessel.

Second case. The vessel is under the orders or control of an agent placed on board by the enemy government. His presence marks the relation in which she stands to the enemy. In other circum

stances the vessel may also have relations with the enemy, but to be subject to condemnation she must come under the third head.

Third case. The whole vessel is chartered by the enemy government, and is therefore entirely at its disposal; it can use her for different purposes more or less directly connected with the war, notably, as a transport; such is the position of colliers which accompany a belligerent fleet. There will often be a charter party between the belligerent government and the owner or master of the vessel, but all that is required is proof, and the fact that the whole vessel has, in fact, been chartered is enough, in whatever way it may be established.

Fourth case. The vessel is at the time exclusively devoted to the carriage of enemy troops or to the transmission of intelligence in the enemy's interest. The case is different from those dealt with by article 45, and the question is one of a service to which the ship is permanently devoted. The decision accordingly is that, so long as such service lasts, the vessel is liable to capture, even if, at the moment when an enemy cruiser searches her, she is engaged neither in the transport of troops nor in the transmission of intelligence.

As in the cases in article 45 and for the same reasons, goods found on board belonging to the owner of the vessel are also liable to condemnation.

It was proposed to treat as an enemy merchant vessel a neutral vessel making, at the time, and with the sanction of the enemy government, a voyage which she has only been permitted to make subsequently to the outbreak of hostilities or during the two preceding months. This rule would be enforced notably on neutral merchant vessels admitted by a belligerent to a service reserved in time of peace to the national marine of that belligerent-for instance, to the coasting trade. Several delegations formally rejected this proposal, so that the question thus raised remains an open one.

Report of committee which drafted Declaration of London.

The prize court cannot condemn enemy or neutral prizes except on the following grounds:

1. Prohibited transportation in time of war.

4. Participation in the hostilities of the belligerents by private

vessels.

Institute, 1887, p. 76.

In case where a private vessel participates in the hostilities of belligerents, it is necessary that the participation be proved and recognized as such.

3. In case of participation in the hostilities of belligerents. Institute, 1887, p. 77.

Any act of positive hostility on the part of a neutral state toward

one of the belligerents in a war, is deemed a breach of neutrality, and makes such a state a party in the war.

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The rule is

equally applicable to the citizens and subjects of a neutral state. So long as they faithfully perform the duties of neutrality, they are entitled to the rights and immunities of that condition. But for every violation of neutral duties, they are liable to the punishment of being treated in their persons or property as public enemies of the offended belligerent.

Halleck, pp. 628, 629.

If a neutral vessel is captured while in the employment of the enemy or his officers, for purposes immediately or mediately connected with the operations of the war, the owner is never permitted to assert his claim. The nature of the service or employment is very justly deemed, in such a case, conclusive evidence of its hostile character. While thus employed the neutral vessel is as truly a vessel of the enemy, as if she were such by documentary title; and the owner is not allowed, for his own protection, to divest her of the character which she has thus assumed. Nor will the prize court listen to the plea that the vessel was impressed into such service by duress and violence. The answer of Sir. Wm. Scott to such a defense, is most conclusive. When threats or force are employed for such a purpose by a belligerent, it is the duty of a neutral master, who has no means of resistance, to surrender his vessel, as a hostile seizure. He has no right, retaining his command, to navigate his vessel as a neutral. in the service and subject to the orders of the enemy. If he surrenders his vessel as a hostile seizure, he may appeal to his government for redress; but if he retain the command he will be treated as an enemy. and his vessel as the property of the belligerent.

Halleck, p. 641.

A neutral vessel becomes liable to the penalty appropriate to the carriage of persons in the service of a belligerent, when

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the latter has so hired it that it has become a transport in his service and that he has entire control over it:

Hall, p. 701.

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If a vessel is so hired by a belligerent that he has entire control over it to the extent of his special needs, the ship itself is confiscable as having acquired an enemy character,

Hall, p. 708.

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On July 25, 1894, about 7 a. m., a Japanese squadron, cruising off the Corean coast, before declaration of war, was attacked by Chinese warships which had been convoying reinforcements to Asan. About 9 a. m. the Kowshing, a British vessel, carrying further Chinese reinforcements for Asan, appeared on the scene. The Japanese cruiser Naniwa signaled her to stop and sent a boat aboard, and, finding that she was carrying 1,200 Chinese troops, with several generals. including the German major von Hanneken, asked the captain to follow the Naniwa to Japan. The captain assented, but the Chinese officers by force and threats restrained him. The Naniwa, then, after some parleying, warned those on board to quit the vessel, and afterwards fired into and sank her. Most of the Europeans were picked up by the boats of the Naniwa. As soon as the facts could be fully ascertained, Professors Holland and Westlake both took the ground,

in the face of much popular excitement, that at the time of the sinking of the Kowshing a state of war de facto existed between China and Japan; that the Kowshing, as a neutral ship engaged in the transport service of a belligerent, was liable to be visited and taken in for adjudication, with the use of so much force as might be necessary; that, as one of a fleet of transports and men-of-war engaged in carrying reinforcements to the Chinese troops on the mainland, she was clearly part of a hostile expedition, or one which might be treated as hostile, which the Japanese were entitled by all needful force to arrest; that the force used did not appear to be excessive, either for the capture of an enemy's neutral transport or for barring the progress of a hostile expedition, and that, as the rescued officers were duly set at liberty, no apology was due to the British Government and no indemnity to any person.

Holland, Studies in Int. Law, 126 et seq. Moore's Digest, Vol. VII, pp. 414, 415.

When a neutral ship is chartered by a belligerent government or its agent for the purpose of conveying men or despatches, she is subject to capture and confiscation as being in belligerent service, so that there is no need to invoke an analogy to the law of contraband, and the importance of the men or despatches conveyed is immaterial. Where the service of a neutral ship was obtained under duress applied by a belligerent, Lord Stowell equally condemned her; but it is widely, and in my opinion justly, thought that this was wrong, since the condemnation cannot operate as a lesson to neutrals in a similar case.

Westlake, vol. 2. p. 302.

Scope of Case I.

The first case arises when she takes "a direct part in hostilities." The phrase is broad and wide in order that it may cover many eventualities. It is possible to take part in hostilities without firing a shot. A neutral fishing vessel might show the channel to a fleet advancing to the attack of an enemy squadron, or lay mines or remove them or allow herself to be used for the discharge of torpedoes, or reconnoitre for the enemy, or block wireless messages in his interest. If she did these things under fire, and was injured or destroyed, she would richly deserve her fate. By behavior as an enemy she would forfeit the right to be treated as a neutral. Indeed, it may be questioned whether the penalty of being treated as an enemy merchantman is not too light for some of the possible cases. Ought not, for instance, the whole crew of a fishing boat seized while laying mines for the enemy be detained as prisoners of war, if not shot as unlawful combatants? They must have known that they were performing an act of pronounced hostility, likely to be more beneficial to the side which employed them than any deed of valor done in the course of actual combat.

Lawrence, p. 730, 731.

In these four cases [set forth in Article 46. Declaration of London]. as we have already seen, the delinquent vessel is placed in the position of a captured enemy merchantman, which means that all enemy goods will be confiscated, and all goods will be presumed to be enemy