equip them for war and place them under the naval discipline. The officers and crews were to be furnished by the owners of the vessels, to wear naval uniform, to sail under the North German flag, to take oath to the articles of war, and to receive certain premiums for capture or destruction of the enemy's ships. The French authorities complained to the British that this was privateering in disguise and a violation of the Declaration of Paris. The law officers of the crown declared that there was 'a substantial difference' between such a volunteer navy and a system of privateering, and that the action of Prussia was not contrary to the Declaration of Paris. With this position some authorities agree, while others dissent. The weight of the act as a precedent is less on account of the fact that no ships of this navy ever put to sea. Similarly, the plan of Greece for a volunteer navy in 1897 was never put into operation.

"Russia, in view of possible hostilities with England in 1877-1878, accepted the offer of certain citizens to incorporate into the navy during the war vessels privately purchased and owned. Such vessels are still numbered in the 'volunteer fleet,' and, though privately owned and managed, are, since 1886, under the Admiralty. These vessels may easily be converted into cruisers, and are, so far as possible, favored with government service. There seems to be little question as to the propriety of such a relationship between the state and the vessels which may be used in war.

"Still less open to objection is the plan adopted by Great Britain in 1887 and by the United States in 1892, by which these governments, through agreements with certain of their great steamship lines, could hire or purchase at a fixed price certain specified vessels for use in case of war. The construction of such vessels is subject to government approval, and certain subsidies are granted to these companies. In time of war both officers and men must belong to the public forces. The plans of Russia, Great Britain, and the United States have met with little criticism." (Wilson and Tucker, International Law, 2d ed., p. 255.)

Lawrence declares his opinion as follows: "The legality of a volunteer navy must depend, like the legality of a volunteer army, upon the closeness of its connection with the state, and the securities it affords for a due observance of the laws of war." (Principles of International Law, p. 435.)

Article 9 of this code (which earlier was voted to be stricken out as unessential) certainly recognizes under the term “auxiliaries," the officers and men of such vessels as in the category of armed forces when commissioned and perhaps at all times of war.

The status of a private vessel which has assumed certain public obligations is in some respects shown in the decision in regard to the Panama, rendered by the United States Supreme Court on February 26, 1900. The résumé of the case is as follows:

The Panama was a steamship of 1,432 tons register, carrying a crew of seventy-one men, all told, owned by a Spanish corporation, sailing under the Spanish flag, having a commission as a royal mail ship from the Government of Spain, and plying from and to New York and Havana and various Mexican ports, with general cargoes, passengers, and mails. At the time of her capture, she was on a voyage from New York to Havana, and had on board two breechloading Hontoria guns of 9 centimeters bore, one mounted on each side of the ship, one Maxim rapid-firing gun on the bridge, twenty Remington rifles, and ten Mauser rifles, with ammunition for all the guns and rifles, and thirty or forty cutlasses. The guns had been put on board three years before, and the small arms and ammunition had been on board a year or more. Her whole armament had been put on board by the company in compliance with its mail contract with the Spanish Government (made more than eleven years before, and still in force), which specifically required every mail steamship of the company to "take on board, for her own defense," such an armament, with the exception of the Maxim gun and the Mauser rifles.

That contract contains many provisions looking to the use of the company's steamships by the Spanish Government as vessels of war. Among other things, it requires that each vessel shall have the capacity to carry 500 enlisted men; that that government, upon inspection of her plans as prepared for commercial and postal purposes, may order her deck and sides to be strengthened so as to support additional artillery; and that, in case of the suspension of the mail service by naval war, or by hostilities in any of the seas or ports visited by the company's vessels, the government may take possession of them with their equipment and supplies, at a valuation

to be made by a commission; and shall at the termination of the war return them to the company, paying 5 per cent on the valuation while it has them in its service, as well as an indemnity for any diminution in their value.

The Panama was not a neutral vessel; but she was enemy property, and as such, even if she carried no arms (either as part of her equipment, or as cargo), would be liable to capture, unless protected by the President's proclamation.

It may be assumed that a primary object of her armament, and in the time of peace, its only object, was for purposes of defense. But that armament was not of itself inconsiderable, as appears, not only from the undisputed facts of the case, but from the action of the district court, upon the application of the commodore commanding at the port where the court was held, and on the recommendation of the prize commissioners, directing her arms and ammunition to be delivered to the commodore for the use of the Navy Department. And the contract of her owner with the Spanish Government, pursuant to which the armament had been put on board, expressly provided that, in case of war, that government might take possession of the vessel with her equipment, increase her armament, and use her as a war vessel; and, in these and other provisions, evidently contemplated her use for hostile purposes in time of war.

She was, then, enemy property, bound for an enemy port, carrying an armament susceptible of use for hostile purposes, and herself liable, upon arrival in that port, to be appropriated by the enemy to such purposes.

The intent of the fourth clause of the President's proclamation was to exempt for a time from capture peaceful commercial vessels; not to assist the enemy in obtaining weapons of war. This clause exempts "Spanish merchant vessels" only, and expressly declares that it shall not apply to "Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government."

Upon full consideration of this case, this court is of the opinion that the proclamation, expressly declaring that the exemption shall not apply to any Spanish vessel having on board any article prohibited or contraband of war, or a single military or naval officer, or even a dispatch, of the enemy, can not reasonably be construed as including, in the description of "Spanish merchant vessels" which are to be temporarily exempt from capture, a Spanish vessel owned by a subject of the enemy; having an armanent fit for hostile use; intended, in the event of war, to be used as a war vessel; destined to a port of the enemy; and liable, on arriving there, to be taken possession of by the enemy, and employed as an auxiliary cruiser of the enemy's navy, in the war with this country.

The result is, that the Panama was lawfully captured and condemned, and that the decree of the district court must be affirmed. (176 U. S., 547.)

Such vessels are certainly potentially war vessels and are certainly designed and liable to conversion for use in war. In no case are such vessels purely private vessels because the Government has a prior right to convert them to its use under terms of their registration or by virtue of specific contract as the case may be. (27 Stat. L., act May 10, 1892.)

This being the case it would be for the Government to enunciate its policy at the time in regard to such vessels and to determine whether such vessels were actually "in the military service of the enemy" or not. The status of such auxiliary vessels being at present uncertain, it would be advisable to allow the wording of the code in Article 9 to stand as it is sufficiently broad to permit seizure should policy or act of the vessel require seizure while not throwing the responsibility upon the naval officer to decide in regard to a class of vessels whose status is uncertain. If such vessels are clearly in the military service of the enemy, they are not by Article 15 entitled to exemption. In any case the status of auxiliary vessels should be made clear.

Again, while it can not be said that the provisions of the first clause of Article 15 are absolutely established in international law, they are, however, so well established that the privilege of entry and departure of bona fide private vessels would be allowed by all nations. It was so allowed in the Crimean war, 1854; in the FrancoPrussian war of 1870, and Russo-Turkish war of 1877, and in the Spanish-American war of 1898 by the United States. It is proper that some provision upon this matter be made known to the officers of the Navy either in the code or elsewhere.

In regard to the "thirty days" allowance mentioned in the second clause of Article 15, it may be said that both longer and shorter times have been allowed, that it is now general to allow some time, and that probably the naval department of the Government is not competent to fix the length of time. Therefore it would be well to word the clause so as to read: "Merchant vessels of the enemy in ports within the jurisdiction of the United

States at outbreak of war when allowed a specified time after war has begun to load their cargoes and depart, shall thereafter be permitted to proceed to their destination, unless they are engaged in carrying contraband of war or are in the military service of the enemy. Thus the Government is not committed beyond what international law sanctions though taking a reasonably liberal position.

It should be observed that this whole Article 15 gives to commerce between the enemy and the United States a measure of exemption that is not given to the commerce between the enemy and a neutral. This is in one way illogical yet it is desirable to give the widest exemption to commerce as the destruction of commerce does not bring any commensurate military advantage.

OPINION OF COMMITTEE OF THE CONFERENCE.

In view of the objections raised upon various grounds to Article 15, it was voted by the Conference that a committee consider what changes should be made therein. This committee, after debating the merits of positive positions, decided that in view of disagreement among authorities, and in practice, and pending an international convention, Article 15 should read: "In absence of treaty governing the case, the treatment to be accorded private vessels of an enemy sailing prior to the beginning of a war, to or from a port of the United States or sojourning in a port of the United States at the beginning of a war, will be determined by special instructions from the Navy Department."

This was the action taken by the Navy Department in publishing General Order No. 492 on June 20, 1898. This order, "prepared by the Department of State" and "published for the information and guidance of the naval service," contains several clauses not so liberal toward neutrals as those in Article 15 of the Naval War Code, though very liberal in their provisions. This order states in section 17 that merchant vessels of the enemy "are good prize, and may be seized anywhere, except in neutral waters." To this rule, however, the