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but that, while it could not be laid down that Germany would under no circumstances allow belligerent ships to repair in her ports, it had been decided in the present instance not to allow it to be done, and that he had reason to believe that the British Government would act in a similar case as the German Government had done. As to the officers and men belonging to the Russian ships, and numbering about 1,000, the Japanese Government had been asked whether it objected to their being sent to Russia under proper safeguards.

Mr. Dodge, chargé at Berlin, to Mr. Hay, Sec. of State, No. 440, Aug. 17, 1904, For. Rel. 1904, 323.

September 13, 1904, the Russian ambassador and the Japanese minister at Washington both advised the Department of State of the arrival at San Francisco of the Russian transport or auxiliary cruiser Lena, with a crew of 500 men and an armament of 27 quickfiring guns. The Russian ambassador stated that the vessel was in an unseaworthy condition, and asked that she might receive all aid compatible with neutrality. The Japanese minister asked that "appropriate measures" be taken. On September 14 the Russian ambassador was advised that if the vessel was repaired, only such bare repairs could be allowed as might be necessary to render the vessel seaworthy and enable her to reach the nearest home port, and that even such repairs could be permitted only on condition that they should not prove to be too extensive; that an inspection made by United States officers at San Francisco showed that the repairs asked for included a complete outfit of new boilers and the reconstruction of engines, which would consume at least four or five months, or, according to the captain's estimate, eight months, and amount to a renovation of the vessel. It was declared that this could not be allowed with a due regard to neutrality, and an immediate answer was desired as to whether the Russian Government preferred to have the limited repairs made or to have the vessel laid up at the Mare Island Navy-Yard. On the 15th of September the Russian ambassador asked for a delay of forty-eight hours, in order that he might receive the instructions of his Government, but he was advised in reply that the captain of the Lena had informed the American naval authorities at San Francisco that the ship, being unseaworthy, must disarm, and had asked that she be allowed to make needed repairs. In view of this formal application of the captain of the vessel, the President, on the afternoon of the 15th of September, issued an order directing that the Lena be taken into custody by the naval authorities of the United States and disarmed under the following conditions: (1) That the vessel be taken to the Mare Island Navy-Yard and there disarmed by removal of small guns, breechblocks, small arms, ammunition, and ordnance stores, and such other dismantlement as might H. Doc. 551-vol 7—64

be prescribed by the commandant of the navy-yard; (2) that the captain of the Lena should give a written guarantee that she should not leave San Francisco till peace had been concluded, and that the officers and crew should be paroled not to leave San Francisco till some other understanding as to their disposal might be reached between the United States and both belligerents; (3) that, after disarmament, the vessel might be removed to a private dock for such reasonable repairs as would make her seaworthy and preserve her in good condition during detention, or be so repaired at the navy-yard, should the Russian commander so elect, and that while at the private dock the commandant of the navy-yard should have the custody of the ship, and that the repairs should be overseen by an engineer officer to be detailed by him; (4) that the cost of repairs, of private docking, and of maintenance of the ship, officers, and crew while in custody should be borne by the Russian Government, but the berthing at Mare Island and the custody and surveillance of the vessel by the United States; (5) that the vessel, when repaired, if peace had not then been concluded, should be taken back to Mare Island and there held in custody till the end of the war. The Russian ambassador expressed the adherence of his Government to these conditions, but asked that the officers and crew of the vessel, except 5 officers and 100 seamen, who were necessary for her care, might be permitted to leave the United States. The Japanese Government, on the other hand. asked that all the officers and crew be detained in the United States till the termination of hostilities. The President decided that it would not be consistent with neutrality to grant the request for the repatriation of any of the officers or crew of the Lena, unless both the belligerents agreed to it. Without such an agreement he regarded the position of the men as being identical in principle with that of a military force entering neutral territory and there necessarily held by the neutral.

December 10, 1904, the Russian ambassador asked that the captain and crew of the Lena might be permitted to celebrate the name day of the Emperor on the 19th of the month, by hoisting the national flag over the vessel, dressing the ship, and firing the imperial salute. The United States assented to the display of the national standard and the dressing of the ship, but found it impracticable to agree to the firing of the salute, in view of the fact that, as the Lena was not in commission, but was lying in a friendly port completely disarmed and in the custody of the United States till the end of the war, her character as a warship, including the function of saluting and the right to receive salutes, was in abeyance.

For. Rel. 1904, 428-430, 785-790.

See, particularly, Mr. Adee, Act. Sec. of State, to Count Cassini, Russian amb., tels., Sept. 14 and 15, 1904; Mr. Loomis, Act. Sec. of State, to

Count Cassini, Sept. 24, 1904; Mr. Hay, Sec. of State, to Count
Cassini, No. 252, Dec. 14, 1904; For. Rel. 1904, 785-786, 787, 788, 789.

"It shall be lawful for the President, or such person as he shall empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, as shall be necessary to compel any foreign vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, she ought not to remain within the United States."

Sec. 5288, Revised Statutes.

(3) INTERNMENT OF FUGITIVE TROOPS.

§ 1318.

Although a neutral must not lend his territory for purposes of war, he may receive a beaten army or individual fugitives, provided he disarms them and does not allow them again to engage in the war. But as he can not be expected to provide for them himself, and as to require either belligerent to pay for their support would be indirectly aiding the other," perhaps the equity of the case and the necessity of precaution might both be satisfied by the release of such fugitives under a convention between the neutral and belligerent states, by which the latter should undertake not to employ them during the continuance of the war."

Hall, Int. Law, 650; 5th ed. 626.

When belligerent troops, in order to escape the other belligerent, take refuge in neutral territory, if they do not lay down their arms they should be compelled to do so by the neutral sovereign. In such case they are protected by the law of nations from the opposing belligerent. This, it is true, is contested by Bynkershoek. "But Bynkershoek is not supported by the practice of nations. Some writers on public law maintain the sounder doctrine, that when the flying enemy has entered neutral territory, he is placed immediately under the protection of the neutral power, and that there is no exception to the rule that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. The Government of the United States has invariably claimed the absolute inviolation of neutral territory."

2 Halleck's Int. Law (3d ed., by Baker), 148.

"ARTICLE LVII. A neutral State which receives in its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war.

"It can keep them in camps, and even confine them in fortresses or locations assigned for this purpose.

"It shall decide whether officers may be left at liberty on giving their parole that they will not leave the neutral territory without authorization.

"ARTICLE LVIII. Failing a special Convention, the neutral State shall supply the interned with the food, clothing, and relief required by humanity.

"At the conclusion of peace, the expenses caused by the internment shall be made good.

"ARTICLE LIX. A neutral State may authorize the passage through its territory of wounded or sick belonging to the belligerent armies, on condition that the trains bringing them shall carry neither combatants nor war material. In such a case, the neutral State is bound to adopt such measures of safety and control as may be necessary for the purpose.

"Wounded and sick brought under these conditions into neutral territory by one of the belligerents, and belonging to the hostile party, must be guarded by the neutral State, so as to insure their not taking part again in the military operations. The same duty shall devolve on the neutral State with regard to wounded or sick of the other army who may be committed to its care.

"ARTICLE LX. The Geneva Convention applies to sick and wounded interned in neutral territory."

Convention respecting the Laws and Customs of War on Land, signed
at The Hague, July 29, 1899, Annex, Regulations, Section IV., on the
Internment of Belligerents and the Care of the Wounded in Neutral
Countries, 32 Stat. II. 1824.

VI. ENFORCEMENT OF NEUTRAL DUTIES.

1. PROCLAMATIONS.

§ 1319.

"Whereas it appears that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands of the one part, and France on the other, and the duty and interests of the United States require, that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers:

"I have therefore thought fit by these presents to declare the disposition of the United States to observe the conduct aforesaid toward these powers respectively; and to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition.

"And I do hereby also make known, that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing, aiding, or abetting hostilities against any of the said powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States, against such punishment or forfeiture; and further, that I have given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the powers at war, or any of them."

President Washington's Neutrality Proclamation, April 22, 1793, Am.
State Papers, For. Rel. I. 140.

See Moore, Int. Arbitrations, I. 310; V. 4406.

“I particularly recommend to your consideration the means of preventing those aggressions by our citizens on the territory of other nations, and other infractions of the law of nations, which, furnishing just subject of complaint, might endanger our peace with them." (President Washington, annual address to Congress, Nov. 6, 1792, Richardson's Messages, I. 128.)

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"You may on every occasion give assurances, which cannot go beyond the
real desires of this country, to preserve a fair neutrality in the pres-
ent war, on condition that the rights of neutral nations are respected
in us as they have been settled in modern times either by the express
declarations of the powers of Europe, or their adoption of them on
particular occasions. From our treaties with France and Holland,
and that of England and France, a very clear and simple line of con-
duct can be marked out for us, and I think we are not unreasonable
in expecting that England will recognize towards us the same prin-
ciples which she has stipulated to recognize towards France in a state
of neutrality." (Mr. Jefferson, Sec. of State, to Mr. Pinckney, min.
to England, April 20, 1793, MS. Inst. U. States Ministers, I. 272.)
The public papers giving us reason to believe that the war is becoming
nearly general in Europe, and that it has already involved nations
with which we are in daily habits of commerce and friendship, the
President has thought it proper to issue the proclamation of which I
inclose you a copy, in order to mark out to our citizens the line of
conduct they are to pursue. That this intimation, however, might
not work to their prejudice, by being produced against them as con-
clusive evidence of their knowledge of the existence of war and of the
nations engaged in it, in any case where they might be drawn into
courts of justice for acts done without that knowledge, it has been
thought necessary to write to the representatives of the belligerent
powers here the letter, of which a copy is also inclosed, reserving to
our citizens those immunities to which they are entitled till authentic
information shall be given to our Government by the parties at war,
and be thus communicated with due certainty to our citizens." (Mr.
Jefferson, Sec. of State, to Messrs. Morris, Pinckney, and Short, Apr.
26, 1793, MS. Inst. U. States Ministers, I. 275.)

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