The fifth section of the Brazilian neutrality proclamation of 1898 states:

That it is prohibited, citizens or aliens residing in Brazil, to announce by telegraph the departure or near arrival of any ship, merchant or war, of the belligerents or to give to them any order, instructions, or warnings, with the purpose of prejudicing the enemy.

The last clause of this prohibition is of such a charac-. ter as to render its enforcement difficult, because it would by implication make necessary that hostile intent on the part of the person dispatching the message should be proved. Neutrality does not consist simply in absence of hostile intent or absence of "purpose of prejudicing the enemy." The quality of the act determines its character, and even though there may be no "purpose of prejudicing the enemy," an act may prejudice the enemy. The Treaty of Washington maintained that "due diligence" should be exercised in order that a neutral might not injure a belligerent. The general doctrine of neutrality imposes the obligation upon the neutral state that it shall be of neither party. If the last clause were omitted from the section of the Brazilian proclamation it would be more effective.

Further, it may be said that the prohibition applies to persons resident in Brazil only, if a strict interpretation is to be given to its first clause. It does not prohibit the use of the means of communication for the purposes specified, but prohibits certain persons from using the telegraph for certain purposes. It would apparently leave the telegraph open to the officers of vessels of either belligerent if they chanced to be in a harbor of Brazil, for they certainly could not be brought under the category of "citizens or aliens residing in Brazil" against whom prohibition runs. The Brazilian proclamation of 1898 is, however, indicative of an early attempt of a neutral to regulate the use of the telegraph in time of

war.

It is unquestionable that a single message sent from a neutral port may under certain circumstances be of greater service to a belligerent than a vessel equipped

CONTROL OF TELEGRAPH IN WAR.

155

within and sent from the same port to a belligerent. With the introduction of wireless telegraphy the possibility of use of a wireless station within neutral jurisdiction for belligerent purposes is increased. The method of control is complicated from the fact that wires are not necessary and direct evidence of transmission of messages is not easily obtainable.

In 1898, during the Sanish-American war, the British Government declared that it was "not at liberty to comply with the proposal of the Government of the United States to allow an American company to land a new cable to connect Manila and Hongkong. This decision has received general approval. If permission to establish a neutral terminal for a cable connecting with a belligerent should be refused, then similarly permission to establish a wireless station should be refused. The fact that the wireless station was within the Russian consulate at Chifu did not make the station at that point set up mainly for war purposes permissible.

The Dutch East Indian authorities during the RussoJapanese war of 1904-5 made regulations for the refusal at certain stations of telegrams—

the contents of which are unintelligible to the Dutch officials, or telegrams regarding the movements of ships or troops and which are of interest to the belligerent powers-Russia and Japan.

Telegrams in a language agreed upon, the words of which are taken from a commercial or other code, may be admitted, provided the code made use of is submitted to the Dutch officials, and that the text when translated into open language can cause no inconvenience.

Sir John Macdonell, writing in July, 1904, says:

The Institut de Droit International in 1879 adopted a resolution that in time of war cables connecting neutral countries were inviolable. At its meeting in Brussels the Institut passed a series of resolutions which probably express the general understanding as to what is right and proper. After reaffirming the inviolability of cables connecting neutral territories, the Institut added: "Le câble reliant les territoires de deux belligérants ou deux parties du territoire d'un des belligérants peut être coupé partout, excepté dans la mer territoriale et dans les eaux neutralisées dépendant d'un territoire neutre.

"Le câble reliant un territoire neutre au territoire d'un des belligérants ne peut en aucun cas être coupé dans la mer territoriale ou dans les eaux neutralisées dépendant d'un territoire neutre. En haute mer, ce câble ne peut être coupé que s'il y a blocus effectif et dans les limites de la ligne du blocus, sauf rétablissement du câble dans le plus bref délai possible. câble peut toujours être coupé sur le territoire et dans la mer territoriale dépendant d'un territoire ennemi jusqu'à une distance de trois milles marine de la baisse de basse-marée."

Ce

Few of those who discuss the subject dwell sufficiently upon the differences between contraband or quasi-contraband and vessels conveying the same and telegrams and submarine cables. Telegraphic communications may be called quasi-contraband. But you do not seize a vessel because it may be carrying contraband; you do not destroy it if it does; you do not confiscate it if the owner has acted innocently. Transmitting messages to belligerents may be likened to breaking a blockade. But the analogy is faint. You do not destroy vessels which may break it; you do not capture them, unless the blockade is effective. In a maritime war a cable is something sui generis. A belligerent can not exercise over it any right similar to that of search; it may be an instrument of war much more important than a cargo of contraband or a blockade runner; the fact to be recognized is that he may be safe only if he cuts it. The hesitation of States unable to foresee circumstances in which interruption to cable communications might be vital to them is natural. Looking to what may hang upon telegraphic communication-transports intercepted, a fleet destroyed, the fate of a campaign affected-it is too much to expect belligerents always to keep within the four corners of the rules which I have quoted. There will be circumstances, it may be anticipated, in which they will not suffer, if they can help it, a telegraphic cable, no matter who is the owner or what are its termini, to be used to their detriment. To whatever rules they assent will probably be added the sacramental formula, "So far as circumstances permit." (56 The Nineteenth Century, p. 148, International Questions and the Present War.)

Liability of vessels transmitting messages. The Japanese Regulations Governing Captures at Sea, 1904, give a general list of vessels liable to capture:

ART. XXXVII. Any vessel that comes under one of the following categories shall be captured, no matter of what national character it is:

1. Vessels that carry persons, papers, or goods that are contraband of war.

WIRELESS AT CHIFU.

157

2. Vessels that carry no ship's papers, or have willfully mutilated or thrown them away, or hidden them, or that produce false papers.

3. Vessels that have violated a blockade.

4. Vessels that are deemed to have been fitted out for the enemy's military service.

5. Vessels that engage in scouting or carry information in the interest of the enemy, or are deemed clearly guilty of any other act to assist the enemy.

6. Vessels that oppose visitation or search.

7. Vessels voyaging under the convoy of an enemy's man-of-war.

Later these regulations state:

ART. XLVI. Vessels that are recognized to have been fitted out for the enemy for military purposes, and the goods belonging to the owners of such vessels, shall be confiscated.

ART. XLVII. Vessels ascertained to have scouted or carried information to give benefit to the enemy or to have done any other acts to assist him, and all goods belonging to the owners of such vessels, shall be confiscated.

Section 5 of Article XXXVII makes liable to capture, regardless of nationality, "Vessels that engage in scouting or carrying information in the interest of the enemy, or are deemed clearly guilty of any other act to assist the enemy," and Article XLVII makes such vessels liable to confiscation. These regulations would certainly apply to vessels engaged in transmitting wireless messages of a character to assist the enemy. Such vessels would then be liable to capture and confiscation as would the portion of the cargo belonging to the owners of the vessel, together with the apparatus.

Wireless telegraphy at Chifu.-One of the cases of use of wireless telegraphy during war to which attention has been particularly given is that of the use of the station at Chifu during the Russo-Japanese war. The station at Chifu was within the grounds of the Russian consulate, which, according to the practice in China, was entitled to the right of extraterritoriality. The station communicated particularly with Port Arthur and was apparently mainly used for war purposes.

Professor Woolsey says:

Is the toleration of this practice by China an unneutral act? Precedent or analogy and reason are the lights to guide us in such an inquiry as this. Now the closest analogy is to be found in the international status, during war, of the world's submarine cable system. This, in great part, is equally out of a belligerent's reach; too deep in the sea to be grappled, it equally binds belligerent and neutral together. There is an international agreeinent concerning submarine cables, but this provides only for their protection in normal times. Article XV reads: "It is understood that the stipulations of this Convention shall in no wise affect the liberty of action of belligerents." What liberty of action does the belligerent claim? Here the only question in dispute relates to the right to cut a neutral-owned cable running between hostile and neutral points beyond the three-mile limit of the neutral state. But this does not bear upon the problem of the wireless, for the new method has no tangible apparatus except at the terminal points, which are by our supposition, the one hostile, the other neutral. As for the cable end in neutral waters or landed on neutral soil, it is absolutely beyond the reach of the belligerent. Though not subject to force, is it not subject to be scaled on demand of a belligerent on the ground of neutral obligation? In other words, is the neutral state bound to prevent one belligerent from using freely for all purposes a cable landed within the former's jurisdiction and which the other belligerent is unable to interrupt?

There seems to be a disposition to impose this burden upon the neutral. Yet to do so is surely at variance with the entire theory of neutral obligation hitherto recognized. To carry hostile dispatches, to serve as a belligerent transport, for instance, are unneutral services on the part of the neutral individual, punished by confiscation of the vehicle of offense. But it is the belligerent, not the neutral, by existing usage, who bears the onus of prevention. The neutral is bound to prevent the use of his territory as a base of operations, to forbid the fitting out of enemy ships of war in his ports, but not to restrain enemy's dispatches or diploInatic agents or financial agents, all having, it may be, a very direct influence upon the conduct of war. The distinction is between direct military preparation on neutral soil, like an armed expedition, and military news or orders, a difference as wide as the poles. Moreover, if the neutral is held bound to prevent a belligerent's use of a submarine cable between the twoalready in established use-or to allow it only under censorship, is he not equally bound to limit the belligerent's use of a land telegraph line establishing similar communication, and would not neutral censorship of belligerent mails be a duty also? If the established and safe principle be abandoned, that neutral com