stated by Mr. Fish. Did any further instance exist the attention of this Government would have been called to it.

With equal clearness, Mr. Fish has stated in the same note the things which a friendly government may do and permit under the circumstances set forth.

"But a friendly government violates no duty of good neighborhood in allowing the free sale of arms and munitions of war to all persons, to insurgents as well as to the regularly constituted authorities, and such arms and munitions, by whichever party purchased, may be carried in its vessels on the high seas without liability to question by any other party. In like manner its vessels may freely carry unarmed passengers, even though known to be insurgents, without thereby rendering the government which permits it liable to a charge of violating its international duties. But if such passengers, on the contrary, should be armed and proceed to the scene of insurrection as an organized body, which might be capable of levying war, they would constitute a hostile expedition which may not be knowingly permitted without a violation of international obligation."

Little can be added to this succinct statement of Mr. Fish. It has been repeatedly affirmed by decisions of our courts, notably by the Supreme Court of the United States. In the case of Wilborg v. The United States, 163 U. S. Reports, p. 632, Mr. Chief Justice Fuller repeats, with approval, the charge of the trial court, in which it was said (p. 653):

"It was not a crime or offense against the United States under the neutrality laws of this country for individuals to leave the country with intent to enlist in foreign military service, nor was it an offense against the United States to transport persons out of this country and to land them in foreign countries, when such persons had an intent to enlist in foreign armies; that it was not an offense against the laws of the United States to transport arms, ammunition, and munitions of war from this country to any foreign country, whether they were to be used in war or not, and that it was not an offense against the laws of the United States to transport persons intending to enlist in foreign armies and munitions of war on the same trip. But (he said) that if the persons referred to had combined and organized in this country to go to Cuba and there make war on the Government, and intended when they reached Cuba to join the insurgent army and thus enlist in its service, and the arms were taken along for their use, that would constitute a military expedition, and the transporting of such a body from this country for such a purpose would be an offense against the statute."

These principles sufficiently define the neutral duties of the United States, which have been faithfully observed at great expense and with much care by this Government. (U. S. Foreign Relations, 1898, p. 609.)

CASE OF SOUTH PORTLAND.

135

Case of the South Portland.-There are many cases in which United States authorities have been asked by states to prevent the sale, carriage, or other dealings in war material when insurrections existed in certain states. Requests have come from both the parent states and the insurgents.

Such reports as the following are not uncommon:

LEGATION OF THE UNITED STATES,

Caracas, September 24, 1892.
(Received September 24.)

Mr. Scruggs reports that the situation remains unchanged, nothing new having occurred, and transmits a request of the Government of Venezuela that the steamer South Portland, laden with munitions of war in New York, be prevented from entering Puerto Cabello by the naval forces of the United States.

Replying to the request that the United States naval force interfere to prevent the entrance to a Venezuelan port during insurrection of a private vessel of the United States with contraband, Minister Scruggs reports:

I pointed out that the mere exportation of arms and munitions of war from the United States had never been held an offense against our neutrality laws; that as all the belligerents in Venezuela enjoyed this right equally, none of them could justly complain; that his Government had the right, under the law of nations, to seize contraband of war on its transit to the enemy, and we would not be likely to complain, should this right be exercised in a legitimate and proper manner; but that, as neutrals, we could hardly be expected to employ our naval force to make the blockade of Puerto Cabello effective, nor to police the high seas in the interest of one belligerent against another. (U. S. Foreign Relations, 1892, p. 626.)

English opinion. The court maintained in the case of the Helen, commerce which was lawful for the neutral with either belligerent country before the war is not made by the war unlawful or capable of being prohibited by both or either of the belligerents. (13 Law Times Reports, 305.) What is lawful trade in times of war would certainly be lawful when no war existed and insurgency only existed.

Such opinions do not imply that the foreign state should aid or protect those who engage in such commerce

with a party to a civil conflict. Such trade is liable to be prevented by force within the jurisdiction of the disturbed state.

Belgian opinion.-Regarding the trade in arms and ammunition and other contraband objects, the Government of the King, looking to the strict observance of the duties prescribed by neutrality, does not intervene either to protect or prohibit it. No law prohibiting the exportation of these products of national industry, the trade in question is carried on freely in the country, but outside the territory, at the risks and perils of those who carry it on. (Belgian minister of foreign affairs to Mr. Storer, September 6, 1898; 7 Moore International Law Digest, p. 747.)

Professor Moore's Opinion. The right of foreigners to supply war materials to those engaged in civil conflict is limited, as Professor Moore states:

From what has been shown it may be argued that, without regard to the recognition or nonrecognition of belligerency, a party to a civil conflict who seeks to prevent, within the national jurisdiction and at the scene of hostilities, the supply of arms and munitions of war to his adversary commits not an act of injury, but an act of self-defense, authorized by the state of hostilities; that, the right to carry on hostilities being admitted, it seems to follow that each party possesses, incidentally, the right to prevent the other from being supplied with the weapons of war; and that any aid or protection given by a foreign government to an individual to enable him with impunity to supply either party with such articles is to that extent an act of intervention in the contest. (7 International Law Digest, p. 752.)

Trade in contraband.-While in time of recognized belligerency either belligerent has a right to seize on the high seas contraband bound for the enemy, this right does not exist in time of an insurrection which has not yet been recognized as a state of war. Yet the nonrecognition of belligerency does not change the character of the act. Citizens of foreign states engaged in the carriage of articles which would be regarded as contraband if belligerency was recognized are liable to the consequences of their act if taken within the jurisdiction of the state where the insurrection exists. In time of recognized belligerency a state is not under obligation to prevent its subjects from engaging in contraband trade. No more would it be under obligation to prevent such

trade at a time when no recognition of belligerency had been granted.

It is equally well established that trade in arms and munitions of war in the time of actual hostilities is at the risk of the one engaged in the trade and may be prevented by either party within national jurisdiction.

Any aid to a revolting party in the carrying out of domestic hostilities would be an unfriendly act to the parent state which the parent state could oppose by such means as were within its power.

Under the circumstances, as presented in Situation VII, a port of State X is in the hand of insurgents.

Strictly speaking, there is no contraband until there is war, but the United States has often put into operation its neutrality laws during a period of insurrection in a foreign state and has admitted its obligation to restrain certain actions on the part of its citizens. The carriage of contraband has never been regarded as a violation of neutrality in the sense that a neutral state must prevent such action, as it is evident that a neutral state could not prevent such action in all instances even if it should regard it as expedient. The penalty for the carriage of contraband is the seizure of the goods by the belligerent. The naval forces of a neutral are under no obligation to assist in enforcing this penalty.

In the case under consideration the authorities of State X may take such action within their own jurisdiction. as may be necessary to prevent the entrance of the merchant vessel of the United States.

Conclusion. The commander of the United States war vessel should decline to interfere to prevent the carriage of goods by a merchant vessel of the United States even though the goods are bound to a port in the hands of an insurgent and he is requested to interfere by the authorities of the parent state.

SITUATION VIII.

There is war between States X and Y. State Z is neutral. A commander of a war vessel of State X maintains that a private vessel of neutral State Z which has aided State Y by transmitting wireless telegraph messages is liable to capture as guilty of unneutral service. He also maintains that neutral State Z should assume some responsibility for the use of wireless telegraph within its own jurisdiction.

The commander is asked for a brief statement of the restrictions which might well apply to the use of wireless telegraphy in time of war.

Under present conditions, what statement might he make?

SOLUTION.

(a) A belligerent may regulate or prohibit the use of wireless telegraph within the area of hostilities.

(b) A neutral state should use reasonable care to prevent within its jurisdiction the unneutral use of wireless telegraph.

(c) Unneutral use of wireless telegraph on board a vessel makes the vessel liable to the penalty of capture by a belligerent, or to confiscation or sequestration of the apparatus, or of the vessel, or of both by a neutral.

(d) A vessel intentionally aiding a belligerent by the use of wireless telegraph is liable to the penalty until the end of the war.

NOTES ON SITUATION VIII.

Nature of service. The usefulness of wireless telegraphy, which a few years ago was problematical, is now amply proven. This was shown in the South African war, some of the German wars in Africa, and in the Russo-Japanese war.

The general principle of wireless telegraphy is based on the fact that the oscillation of an electric spark generates ether waves, usually called, from the discoverer,