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vailed that Lord Wellesley announced that he would prohibit by military force the usual decoration on November fourth by the Orange Societies of William's statue in Dublin. This action naturally aroused the anger of the Orangemen. When, therefore, shortly afterwards, Lord Wellesley attended the theatre in state, the Orange fanatics were on hand in force to hoot his lordship. During the disturbance thereby created a bottle was thrown on the stage, and part of a child's rattle, pitched from the gallery, struck near the vice-regal box. The rioters were turned out, and Forbes and other ringleaders were arrested. That the hooting was preconcerted was plain, and if Forbes and his companions had been punished as common rioters the affair would have ended at once. But Wellesley and Plunkett persuaded themselves of the

advisability of filing a criminal information against Forbes and ten other members of the Orange lodges who had taken a prominent part in the disturbance, not only for riot and for intent to injure the lord-lieutenant, but for a preconcerted criminal conspiracy to effect such purposes-and this, too, after the grand jury had refused to find an indictment. The trial of the information was a ridiculous fizzle, utterly unworthy of the ability displayed in the prosecution. The testimony of a customs clerk and of another witness who was an applicant for government patronage, on which the prosecution relied to prove the intent to inflict personal injury, utterly failed, and the remainder of the evidence was equally trivial and improbable. The jury disagreed and the prosecution was finally dropped.

SOME QUESTIONS OF INTERNATIONAL LAW ARISING FROM THE RUSSO-JAPANESE WAR.

IV.

The Construction, Sale and Exportation by Neutral States and Individuals of War
Ships, Submarine Boats, and Other Vessels Adapted to Warlike
Use and Intended for Belligerent Service.

BY AMOS S. HERSHEY,

Associate Professor of European History and Politics, Indiana University.

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the fact that "the only serious charges of a violation of neutral duties on the part of a great European Power lie against Germany, viz., the failure of the German Government to prevent the sale to Russia of several transatlantic steamers belonging to its auxiliary navy, and the exportation of a number of torpedo boats to Russian territory." "These transactions," it was said, "raise some very difficult and delicate questions which are inseparably connected with a great historical controversy." These we shall now proceed to consider.

'See THE GREEN BAG for July, 1904.

The charge has been freely circulated in the newspapers, and has even been made on the floor of the German Reichstag2 that the Russian Government has purchased several vessels (notably the Füst Bismarch of the Hamburg-American Line), belonging to a great German transatlantic line, whose vessels are auxiliary cruisers of the German navy. In reply to the strictures of Herr

"By Herr Bebel, the famous leader of the Socialists. See N. Y. Times for Apr. 15, 1904. For other reported sales see, e.g., London Times (weekly ed.) for Apr. 15th and May 13th, and N. Y. Times for May 11th. It was also reported that Japan had bought eight steamers belonging to the North German Lloyd Co., but this report has been officially denied by the Japanese Govern

ment.

Bebel, who maintained that "such sales accomplish indirectly the reinforcement of the Russian navy," Chancellor von Bülow is reported to have defended them on the ground that, "according to the principles of International Law hitherto prevailing, the sale of the vessels of a private firm to a foreign State was admissable." "At any rate," he declared, "the question was a doubtful one." He admitted that "the principle of neutrality forbids a neutral State from giving direct or indirect support to either belligerent through furnishing ships for war transportation purposes." However, "in the case of the Russian transports, it was not to a State, but to private firms that the vessels were sold. There could not be any question of taking sides against Japan, since she also had full liberty to buy vessels from Germany."1

It has also been charged on the floor of the German Reichstag, as well as in the newspapers, that the German Government has permitted the exportation of a number of torpedo boats and destroyers for the use of the Russian navy. It is charged that, for the purpose of disguising these transactions, "the several parts of the vessels are being exported as half-finished manufactures and put together in Libau, Russia," whither, it is reported, a large number of German workmen have been sent. It is also asserted that these submarine boats were originally built for the German Government which refused to take them because the terms of the contract (i. e.. the stipulations as to time limit). under which they were built had not been strictly observed.

It appears, however, that Germany is not the only country in which Russian agents have been busy in making and soliciting contracts for the purchase or construction of vessels for the Russian navy or for the use of 'For reports of these somewhat puzzling utterances, see N. Y. Times and Chicago Tribune for Apr. 15, 1904.

By Herr Bernstein, the anti-Bebel Socialistic leader. See, e.g., N. Y. Times for May 5th, and editorials in N. Y. Tribune for May 14th and Hartford Courant for May 5th.

Russia in the present war, but that Russian agents have also been busy in other countries, and that the Japanese have also been active in a similar direction. Germany appears, however, to be the only State in which such acts have been defended, if not encouraged, by the official or responsible head of the Government.

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It is reported that Russia has ordered five armored cruisers to be built at Trieste, where Japan was said to be busy negiotiating for the purchase of a number of vessels at an earlier period of the war. Russia is also said to have purchased a number of fast cargo vessels in England. These, it is supposed, are to be altered so as to enable them to be used as transports. It is also stated that several new battleships had been ordered by Japan in England prior to the beginning of the war, and that these are now being built. The Russian and Japanese Governments are said to be competing sharply for the purchase of transports in Holland and Belgium, and we have heard repeated rumors to the effect that agents of both the Russian and Japanese Governments have been negotiating for the purchase of cruisers of several South American States, more particularly with the Government of the Argentine Republic. It has also been vaguely rumored that Turkey has been purchasing ships on Russia's account."

Nor is this all. It has even been asserted that Japanese (and possibly also Russian) agents have been at work in the United States. It is reported that a contract has been awarded the Newport News Shipbuilding Company of Newport News, Va., for the

'Chicago Tribune for June 1, 1904. This report has since been contradicted by the Vienna correspondent of the London Times.

'Ibid. for Apr. 14, 1904.

"N. Y. Times for May 28, 1904.

Chicago Record-Herald for Apr. 10, 1904., 'N. Y. Times for May 25, 1904.

See especially H. W. Wilson in London and N. Y. Times for May 26, 1904. It has recently (June 20th) been reported that the negotiations with Argentina have failed.

N. Y. Times for June 13, 1904.

construction of four Lake submarine boats destined for service in the Japanese Navy in the present war.1 A stockholder of the Lake Submarine Torpedo Boat Company of Bridgeport, Conn., is reported to have stated, in April, that negotiations had been practically completed for the sale of the submarine topedo boat Protector to representatives of the Japanese Government, the Japanese agent having outbid the agent of the Russian Government.2 This torpedo boat is since supposed to have been shipped as cargo on board the Norwegian steamer Fortuna, bound nominally for Cork, but really for Japan; and a Russian newspaper (the Novoe Vremya) has expressed the hope that the United States Government will make a detailed explanation of why the boat was allowed to leave the territory of the United States.*

These reports may be more or less wanting in accuracy and authenticity, but, assuming that they are substantially correct, they may serve to give a foreground of life to our discussion as to whether the construction, sale, and exportation on the part of neutral States and individuals, of warships, torpedo boats, and other vessels adapted to warlike use and intended for belligerent service constitute a violation of neutral obligations, and to what extent or under what circumstances a neutral State can be held responsible for such violation.

It, of course, goes without saying, that the direct sale of a war vessel by a neutral State to either belligerent would be a gross breach of neutrality, for which ample redress or reparation by the injured State ought at once to be demanded, and, if necessary, exacted. 1N. Y. Times for May 11. 1904.

AnChicago Record-Herald for Apr. 28, 1904. other stockholder has recently (June 15th) claimed that the Protector was sold to Russia.

N. Y. Sun for June 10 and 14, 1994. The Protector appears finally to have turned up in Kronstadt, Russia. See N. Y. Times for July 8, 1904. Several other lake sub-marine boats are since reported to have left the United States for Russia. 'Chicago Tribune for June 12, 1904.

Since the settlement of the famous "Alabama Case" by the Treaty of Washington in 1871, and the Geneva Award of 1872, there can scarcely be any more room for doubt but that the fitting out and departure from, as well as the arming and equipping in, a neutral port of a vessel intended for the use of either belligerent is a serious violation of neutrality, if knowingly permitted by a neutral government. The First Rule of the Treaty of Washington declares that "a neutral State is bound to use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace, and also like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction to warlike use."

Although the principles incorporated into this rule have not won the unreserved approval of all English publicists, and have

"The arming and equipping of such a vessel, as also the augmentation of the force of a war vessel in a neutral port, had been prohibited by International Law, as well as the British and American Neutrality Acts, many years before. "For the Three Rules of the Treaty of Washington, see, e.g., Wharton's Dig. III., p. 630.

'e.g., Hall (§225 and notes) and Lawrence (§§262 and 263). Hall, although he insists that this is not the law, was of the opinion that such a usage is in course of growth. He seems moreover to have looked upon. such a rule or usage as healthy and desirable, if not based upon the doctrine of intent in place of which he suggests the alternative principle of the character of the vessel. Lawrence thinks "the question is still far from settlement." He says that "the old prin ciples have been thoroughly discredited and the maritime Powers have come to no agreement upon new ones." That the First Rule of the Treaty of Washington is probably a rule of International Law is admitted by Walker (Manual, $65) "provided a fair interpretation be accorded to the phrase 'due diligence.' "The general consensus of opinions of publicists, with some dissent in England, is that they (the Three Rules of the Treaty of Washington) are a correct statement of existing International Law." Foster, American Diplomacy, p. 429.

not been formally accepted by the Powers,' they may now be regarded as forming an integral and important part of the correct practice of International Law. They have, generally speaking, found favor in the eyes of continental jurists, and they were adopted, although in somewhat altered language, by the Institute of International Law in 1875. They have long since been incorporated in the Neutrality and Foreign Enlistment Acts of the United States and Great Britain, and the British Foreign Enlistment

The United States and Great Britain agreed. according to the terms of the Treaty of Washington, to abide by these rules in their future relations with each other, and to invite other maritime Powers to accede to them, but this has never been done. The failure to invite or secure the adhesion of the maritime Powers does not, however, destroy their validity or impair the value and importance of the decision of the Geneva Board of Arbitration as a precedent. Additions to International Law are usually the result of a natural growth rather than of formal legislation, and if all such additions had to wait for the formal sanction of the Powers, there would be, comparatively speaking, little growth or progress. If the decisions of national prize courts constitute an important source of International Law, how much greater should be the value of the decisions of International Courts of Arbitration as precedents.

Although the value and importance of the decision of the Geneva Board of Arbitration as a precedent can scarcely be called into question, there is still some difference of opinion in regard to the correct meaning of the phrase "due diligence"; there are serious objections to the American doctrine of intent; and all of the decisions of the Geneva arbitrators (or rather the reasoning on which some of these decisions was based) have not been fully accepted on all sides.

2 See, e.g., Calvo in Revue de Droit International, VI., pp. 453 ff; Bluntschli in the same review, II.. pp. 452 ff; Calvo, Le Droit Int. IV., §2.623; Blunttoine's trans.) III., §1,555; Rivier, II., §68, pp. 405 ff.

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The United States Neutrality Acts of 1794 and 1818 and the British Foreign Enlistment Acts of 1819 and 1870. The British Act of 1819. like the United States Act of 1794 and 1818, prohibited the fitting out, as well as the arming, of any vessel with intent, etc.; but the administrative and preventative powers (viz., those requiring bond and authorizing detention for probable cause) of the tenth and eleventh sections of the United States Act of 1818 were omitted in the British Act of 1819. The evidence required in order to con

Act of 1870, which has been pronounced by a leading authority to be "perhaps the best and fairest expression of the modern rule anywhere to be found in public law," goes at least one step farther than our own Neutrality Act and the Treaty of Washington. It prohibits not only the commissioning, equipping, and dispatching, but also the building or construction, of "any ship with intent or knowledge or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State at war with any friendly State."

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True it is that there is a long line of American jurists and statesmen who have held, in the language of Judge Story," that "there is

vict under the British Act of 1819 had to be sufficient to satisfy a jury of the probable violation of the provisions of the statute, and such evidence was, of course, extremely difficult to obtain. The defects in the British Act of 1819, were probably due to lack of effective procedure or a want of proper administrative machinery rather than to any lack of good intention on the part of the legislature. To those administrative defects there was added a certain inertness or indifference in the execution of the law, if not of positive sympathy with the Southern Confederacy, on the part of the governing classes of England which lamed the energies of the British Government and caused its failure to strictly observe its obligations of neutrality during our Civil War.

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5 Snow's Cases, p. 438, Cf. Scott's edition, p. 720. §8 of the British Foreign Enlistment Act of 1879. See 33 and 34 Vict. 90. For a convenient abri ́gment of the British and American Neutrality Acts, see Scott's edition of Snow's Cases, pp. 692-95.

In the Santissima Trinidad, U. S. Supreme Court, 1827, 7 Wheat. 283. For a digest of leading American cases involving a breach of our neutrality laws, see Dana's Wheaton, note 215, pp. 543-557. For opinions of American statesmen and judges, see Wharton's Dig. III., §§393 ari 396. See especially the opinions of Sec. Clay and those of Judges Betts and Nelson in the case of the Meteor. Sec. Clay was of the opinion that “if the neutral show no partianty; if he is as ready to sell to one belligerent as the other; and if he take, himself, no nart in the war, he cannot be justly accused of any violation of his neutral obligations." But then Mr. Clay does not seem to have been absolutely sure that it was a violation of neutrality for the head of a State to sell, to a belligerent, ships of war completely equipped and armed for battle. Mr. Clay, Sec'y of State to Mr. Tacon, Wharton's Dig. III., p. 521.

nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit. and which only exposes the persons engaged in it to the penalty of confiscation." The American view that vessels built or sent out with the animus vivendi are mere contraband of war, but that any vessels fitted out or dispatched with the animus belligerandi constitute in effect a proximate hostile expedition which it is the duty of the neutral government to prevent, if possible, by the use of a reasonable diligence is one which was long insisted upon, especially by American statesmen, judges, and publicists. and which still holds a place in some important works on International Law.1 But this view can scarcely be maintained any longer in the face of the First Rule of the Treaty of Washington, and of the increasingly sensitive and ever-growing sense of neutral obligations on the part of modern nations. As one of our best American authorities, the late lamented Dr. Freeman Snow, has well said: "In considering this question, it should be remembered that, by the introduction of steam as the motive power of ships, and of iron and steel as the material of their construction, the conditions of maritime warfare have been very radically changed. What might have been a reasonable rule as applied in the time of sailing ships, might now, in the age of swift ironclads, be intolerably oppressive. In the cases of the Santissima Trindad, U. S. v. Quincy, and the Meteor, the courts were dealing with small sailing vessels, which had been converted into privateers, the possession of which by one or the other belligerent made very little differ

1 The best and most authoratative statement of this view is by Dana. See Dana's Wheaton, note 215. p. 563. A recent defence of this view may be found in Taylor. International Law, V., c. 2.

ence in the general result of the struggle: whereas, the possession of an ironclad ship might well turn the scale one way or the other, as indeed it did in the war between Chili and Peru, in 1880-1881. This great power of inflicting injury upon one of the belligerents, it is fair to say, ought not to be permitted to neutral citizens, and the neutral nation is alone in a position to restrain them. "In view of these facts, it is believed that the doctrine set up by the United States Neutrality Act and by the Federal Courts, that the 'intent' of the owner or shipbuilder is the criterion by which his guilt or innocence is to be judged, is wholly inadequate: it would not for a moment stand the test of the rule of due diligence,' as applied by the Geneva tribunal." 2

2 Snow's Cases, note on "The Three Rules of the Treaty of Washington" on pp. 437-38. This ncte has been reproduced, with the addition of a few references, in the recent enlargment and revision of Dr. Snow's work, entitled "Scott's Cases," p. 720. The value to the student of this otherwise excellent work is greatly impaired by the fact that it is impossible to distinguish in respect to the notes between the contributions of Dr. Snow and those of Dr. Scott except by a comparison of the two texts. We trust that this fault may be corrected in a subsequent edition.

The American doctrine of intent has also been justly and severely criticised by a number of English writers. Walker (The Science, etc., p. 500) points out that it "leaves open to fraud a wide and open door. Who may know the intent of crafty and secret mind? A thousand tricks and devices may be employed to disarm suspicion. An unarmed vessel may be dispatched from a neutral port, arms and men from another, and the intent with which these elements were prepared. and gathered together may only become apparent on their combination at some spot far beyond the bounds of the neutral jurisdiction." Lawrence (p. 548) says, "nothing is more difficult to prove than intentions. They have frequently to be inferred from actions of an ambiguous character. Moreover, the two intents-that of selling and that of making war-may co-exist in the same mind." Bernard (Neutrality, p. 389) declares. "In international wrongs the intent is not the thing chiefly or mainly regarded; and in international wrongs of this particular class the only intent and the only inadvertance which are really material are, first, that hostility in the persons who constitute or direct the expedition which makes it noxious instead of harmless; and secondly, that connivance or negligence on the part of the neutral Government which makes the nation

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