the prize is still within its jurisdiction, the means at its disposal to release the prize, with its officers and crew, and to intern the prize crew.

"If the prize is not in the jurisdiction of the neutral power, the captor government, on the demand of that power, must liberate the prize, with its officers and crew.

"Article IV. A prize court cannot be set up by a belligerent on neutral territory or on a vessel in neutral waters.

"Article V. Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea."

The Hague Convention of 1907 Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land provides that:

"Article I. The territory of neutral powers is inviolable.

"Article II. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral power.

"Article III. Belligerents are likewise forbidden to:

"(a) Erect on the territory of a neutral power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;

"(b) Use any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes, and which has not been opened for the service of public messages.

"Article IV. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral power to assist the belligerents."

Formerly some of these acts were sometimes allowed. Later the burden of prevention of such acts was thrown upon the neutral. The present tendency is to throw the obligation of refraining from such acts upon the belligerent.

NEUTRAL DUTY OF ABSTENTION.

104. In general, the neutral state is under obligation to refrain from all acts which would involve direct or indirect participation in the hostilities.

Such acts include:

(a) Furnishing military assistance.

(b) State loans.

While the belligerent is under obligation to respect the neutrality of states taking no part in the war, such states are under obligation to refrain from all acts which would involve participation. A state cannot be at peace, and at the same time be engaged in the war, or undertake acts in furtherance of the hostilities.

(a) Formerly it was common, under treaty stipulations or other agreements, for a neutral to furnish troops or other military assistance to a belligerent. This practice has been disapproved by late writers, and has been abandoned in practice and prohibited by the Hague Convention of 1907.2

Similiarly neutral states have at the outbreak of war sold arms or war material from the public supply. Sale of ordnance stores was made by the United States in 1870 to persons who were said to be agents of the French government. A committee of the United States Senate held these sales to be lawful, saying: "If they had been such agents, and if that fact had been known to our government, or if, instead of sending agents, Louis Napoleon or Frederick William had personally appeared at the War Department to purchase arms, it would have been lawful for us to sell to either of them, in pursuance of a national policy adopted by us prior to the commencement of hostilities." 3 Such a position is now generally opposed, and the Hague Convention of 1907 declares that: "The supply, in any manner, directly, or indirectly, by a neutral power to a belligerent power, of war ships, ammunition, or war material of any kind whatever, is forbidden." This

2 Hague Convention, 1907, Rights and Duties of Neutral Powers and Persons in Case of War on Land, art. v, Appendix, p. 546. 37 Moore, 973.

4 Rights and Duties of Neutral Powers in Naval War, art. VI, Appendix, p. 564.

does not imply any obligation of the neutral to interfere with the ordinary traffic of its nationals in war supplies.

(b) The former practice of making or guaranteeing loans by neutral states in aid of belligerents is now generally regarded as contrary to the principles of neutrality. The making of loans by private citizens is not prohibited. In 1904 the United States decided it undesirable to become remotely connected with an attempt to raise subscriptions through men enlisted in the navy."

By the Hague Convention of 1907 Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (article 18) it was declared that "supplies furnished or loans made to one of the belligerents, provided that the person who furnishes the supplies or who makes the loans lives neither in the territory of the other party nor in the territory occupied by him, and that the supplies do not come from

Appendix, art. XVIII, p. 548.

6 "Mr. Hay to Mr. Takahira:

"Department of State, Washington, May 5, 1904. "My Dear Mr. Minister: In a communication dated the 14th ultimo the Secretary of the Navy inclosed a letter from the commandant of the Mare Island Navy Yard, transmitting copies of circulars received in an envelope from the consulate general of Japan at New York City, addressed 'to the Japanese Serving in the United States Navy,' soliciting subscriptions to Japanese bonds, contributions to the relief fund for Japanese soldiers and sailors, and in aid of the Red Cross Society of Japan. In view of the President's proclamation of neutrality, the Secretary of the Navy asked whether the circulars should be forwarded.

"While Japanese in the United States doubtless have a right to subscribe to Japanese bonds, or to contribute to relief and Red Cross Society funds of Japan, yet it is undesirable that such contributions should be sought through the naval official channels of this government.

"Pursuant to these views, the commandant of the Mare Island Navy Yard has been instructed not to forward to the Japanese serving in the United States any circulars of the character above described.

"I now bring the matter to your attention, with the request that you will inform the consular officers of Japan in the United States of the attitude of this government in the matter.

"I am, etc.,

WILS. INT.L.-17

John Hay."

Foreign Relations U. S. 1904, p. 427.

these territories," should not be considered acts which would deprive the neutral person of the right to be treated as a neutral.

NEUTRAL DUTY OF PREVENTION.

105. The neutral state is under obligation to use "the means at its disposal" to prevent certain acts, both on the part of its own nationals and on the part of the belligerents.

The degree of care which a neutral should use to prevent acts which would be in violation of neutrality cannot always be determined. The interpretation of the term "due diligence" has given rise to much difference of opinion. The interpretation adopted in the award of the Geneva Convention of 1871 was that: "The due diligence referred to in the first and third of the said rules ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfil the obligations of neutrality on their part."

A neutral state is under obligation not to allow its territory to be violated and not to allow it to be used for belligerent purposes, as by the establishing of a wireless telegraph station or the use of one established by the belligerent before the war for military purposes.

"A neutral government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a power with which that government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war." In general, a neutral state is bound to exercise due care, "such surveillance as the means at its disposal allow," to prevent the violation of

9

77 Moore, pp. 1053-1076. See, also, 1 Moore, Int. Arbitrations, 572 et seq.; 4 Id., 4057 et seq.

8 Hague Convention, 1907, Rights and Duties of Neutral Powers and Persons in Case of War on Land, arts. I-III, Appendix, p. 546. Id., Rights and Duties of Neutral Powers in Naval War, art. VIII, Appendix, p. 564.

its neutrality, and the use of such means of prevention cannot be considered an unfriendly act.10

There have been many claims made as to what acts a neutral was bound to prevent. Before the nineteenth century, the neutral state had not many rights, and it had not many duties. Belligerents made captures in neutral waters during the wars at the end of the eighteenth century. In 1814, during the war between the United States and Great Britain, the American privateer General Armstrong was after resistance captured by the British in the Portuguese harbor of Fayal. The United States made claims against Portugal. At length, in 1852, Louis Napoleon, as arbitrator, decided that, although the attack by the British constituted violation of neutrality, the American vessel should not have resisted, but should have demanded Portuguese protection.11

The attacks by one belligerent upon the vessels of the other in Korean and Chinese harbors during the Russo-Japanese war have given rise to much discussion. Korea, like Manchuria, is generally regarded as having been through exceptional circumstances within the area of hostilities, though neither, strictly speaking, was under the sovereignty of the belligerent at the time of the war. The capture of the Russian destroyer Ryeshitelni by Japanese destroyers in the Chinese harbor of Chifu is not on the same basis. Japan had agreed to respect the neutrality of China. The accounts of the case vary; but the general opinion seems to be that the action of the Japanese was in excess of proper belligerent rights, and that it constituted a violation of neutrality.12

10 Id. arts. XV-XVI, Appendix, p. 565. 112 Moore, Int. Arbitrations, 1071.

12 The Japanese government issued a note justifying this action, which said: "The Japanese government has no intention of disregarding the neutrality of China so long as it is respected by Russia; but they cannot consent that Russian warships, as the result of broken engagement and violated neutrality, shall, unchallenged, find in the harbors of China a safe refuge from capture or destruction." Takahashi says that: "He firmly believes that the peculiar disposition of Chefoo amply justified the conduct of the Japanese, where the naval operations made it entirely impossible to deal with the Ryeshitelni in the same way as with the Mandjur at Shanghai, and that a belligerent is entitled by virtue of jus angaria to resort to a decisive