CASE OF MALACCA.

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to Algiers and there released after "a purely formal examination," and an assurance from the British consul that the military stores were the property of the British Government, and that the rest of the cargo was innocent. These formalities were gone through on July 27. At sunset the Russian flag, which ought never to have been hoisted, was hauled down, and at sunrise the next morning the British flag took its proper place at the masthead. With regard to the Peterburg and the Smolensk, they "were no longer to act as cruisers," and any vessels captured by them were to be immediately released. This latter part of the agreement was carried out to the full by the liberation on July 27 of two British vessels, the Ardova and the Formosa, which had been seized in the Red Sea. No admission was made of the general principle that vessels of the volunteer fleet which had passed through the straits as merchantmen were legally incapable of acting as ships of war. Instead, it was asserted that the two steamers whose conduct was questioned had "received a special commission, the term of which had already expired;" and thus the cessation of their attacks on neutral commerce was accounted for without acceptance of the British contention.

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We may admit that a compromise was necessary, while at the same time we regret some of the conditions which were agreed upon. The examination of the Malacca at Algiers was contrary to the fundamental principle for which we contended. The Russian Government published an official statement on August 2, representing it as a fresh visit." It would be hard to argue that it was nothing of the kind, though, as it took place in a neutral port, it was absolutely irregular from beginning to end. The assurance of the British consul as to the innocence of the cargo implied that the arresting vessel had a right to inquire into the matter; whereas the head and front of our argument had been that the arrest, visit, and detention were wrongful acts, because the ship which performed them had no legal capacity to do so." (War and Neutrality in the Far East, 2d ed., p. 212.)

The attitude of the Russian Government on the seizure and release of the Malacca is indicated by a statement in the Official Messenger of August 2, 1904.

From the beginning of the Russo-Japanese war the Imperial Government took measures to prevent the transport of contraband of war to Japan by vessels of neutral countries. In the regulations sanctioned by the Czar on February 14, 1904, which Russia proposed to follow during the war, a list was given of articles regarded by us as contraband of war. It was also declared that the military and maritime authorities would reserve to themselves the right of rigidly executing the decision contained in the 25114-08

4

regulations for naval prizes sanctioned by the Czar on March 27, 1895, and in the instructions confirmed by the Council of Admiralty on September 20, 1900, regarding the procedure for stopping, visiting, and seizing, as well as for carrying off and delivering over, vessels and cargoes seized.

The vessels St. Petersburg and Smolensk, of the volunteer fleet, having received a special command, the term of which has already expired, on proceeding to their destination, acted in accordance with the above decisions, and while passing through the Red Sea stopped and visited all suspected vessels they encountered in those waters. It was under these conditions that the commander of the St. Petersburg stopped, among others, the British ship Malacca, the captain of which refused to show the ship's papers relating to the cargo, a refusal which led to the seizure of the vessel and the decision to send it to Port Alexander III, Libau, with a view to throwing light on the matter.

Nevertheless, in view of an official statement of the British Government that the Malacca was carrying British state cargo, the Imperial Government, acting in agreement with the British Government, decided that a fresh visit should be paid to the seized vessel at the nearest port on its route in the presence of a British consul. The visit took place at Algiers. The British Consul-General officially certified that the military stores on board the Malacca continued to be the property of the British Government, and that the rest of the cargo was not contraband of war. Taking this attestation into consideration, the Imperial Government decided to liberate the cargo and vessel.

This decision must not, however, be interpreted as a renunciation by the Imperial Government of its intention to dispatch alike cruisers and war ships in general to prevent the carrying of contraband of war for our enemy.

Seizure of enemy differs from seizure of neutral vessels.—The seizure of an enemy private vessel is an act very different in character and intent from that of seizure of a neutral private vessel. The enemy vessel is brought before the court to determine its disposition. The act of seizure, if made according to the recognized rules of international law, is not in question. The burden of proof rests upon the seized vessel.

The neutral, however, should be freed from all interference in prosecution of proper neutral activities. The presumptions are in favor of the neutral. The burden of proof of guilt rests on the belligerent seizing the neutral.

The seizure of a vessel is in effect an act of war. In case the vessel is the property of a belligerent it is re

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garded as legitimate. In case the vessel is the property of a neutral such vessel must be involved in the war in order to justify the seizure, otherwise it is an act of war against a neutral, and being without sanction renders the belligerent making the seizure liable to damages. Seizure of a neutral is justified to prevent an act which would involve participation in the hostilities, as to prevent the delivery of contraband or to penalize the neutral for complicity in the hostilities, as in seizure of a neutral vessel returning from a violation of blockade.

There is a reference to the seizing of enemy property and the general immunity of neutral territory in the case of the Vrow Anna Catharina:

The right of seizing the property of the enemy is a right which extends, generally speaking, universally wherever that property is found. The protection of neutral territory is an exception to the general rule only; it is not therefore to be considered as disrespectful to any government that the fact on which such claims are founded should be accurately examined. (5 C. Robinson's Admiralty Reports, 15.)

The exemption of neutral territory from all acts involving hostility is now most firmly maintained.

The object of searching ostensible neutrals is to get evidence as to the fact of neutrality and if the cargo be not enemy's property; or, if neutral, whether they are carrying contraband; or whether the vessels are in the service of the enemy in the way of carrying military persons or dispatches or sailing in prosecution of an intent to break blockade. (The Jane, 37 U. S. Court of Claims, 24, Dec. 2, 1901.)

These opinions and precedents show that neutral vessels are seized by one belligerent in order to determine whether their action has aided or is evidently to aid the opposing belligerent. The action of the seizing belligerent is justified to the extent that it may be necessary to ascertain these facts. All neutrals concerned, the seized neutral and others affected by the seizure, are entitled to exemption from the effects of war in which they have no participation.

Regulations as to seizure.-The regulations of various states and action under these regulations show the general tendency.

The Russian Regulations on Maritime Prize give the following as the method of conducting detained vessels into port:

22. Detained vessels and cargoes are conducted by the detaining vessel into Russian ports, and if there are none such in the vicinity, then into the ports of an allied power or to the active Russian fleet (the fleet engaged in operations). In case of storm or other extreme necessity the detaining vessel may, together with the detained vessel, seek shelter in the port of a neutral power. Regarding the period and conditions of remaining in port, the commander of the detaining vessel is obliged to submit to the rules established on this subject by the local government.

In the "Instructions concerning stopping, examining, etc.":

42. An imperial vessel, while conducting away detained vessels, may enter the ports of a neutral power which has not forbidden in its declaration of neutrality (or other official document) the visitation of ports by war vessels of the belligerent parties with prizes.

Similarly an imperial cruiser may seek refuge in a port of a neutral power, together with captured vessels, in the case of a storm or other extreme necessity (for instance, a breakdown in the engines, insufficiency of supplies, or in case of pursuit by an enemy of superior strength), in which case the commander of the imperial vessel must submit to the rules established by the local government with regard to the period and other conditions of the sojourn in the neutral port. (U. S. Foreign Relations, 1904, pp. 738, 753.)

The Russian Regulations on Maritime Prizes enunciate the following doctrine in regard to the nationality of a vessel:

The nationality of a vessel is determined according to the laws of the nation under whose flag it sails or to whose navy it claims to belong. Merchant vessels acquired from a hostile power or its subjects by persons of neutral nationality are acknowledged to be hostile vessels unless it is proven that the acquisition must be considered, according to the laws of the nation to whom the purchaser belong, as having actually taken place before the purchasers received news of the declaration of war, or that the vessels acquired in the manner mentioned, although after the receipt of such news, were acquired quite conscientiously, and not for the purpose of covering hostile property.

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In regard to the treatment of war vessels the Russian Regulations on Maritime Prizes provide:

27. The confiscation of detained war vessels and cargoes takes place by order of the proper naval authority. The confiscation of other vessels and cargoes subject to detention does not take place otherwise than by virtue of a decision of a prize court.

The instructions issued by Spain, April 24, 1898, prescribe that—

3. Seas subject to the sovereign jurisdiction of neutral powers are absolutely inviolable; right of visit may not, therefore, be resorted to within them, even if it be alleged that it was attempted to exercise such right in the open sea, and that, on chase being given, and without losing sight of the vessel pursued, the latter penetrated into neutral waters.

Neither may the violation of the rights attaching to such waters be justified under the pretext that the coast washed thereby was undefended and uninhabited.

9. The visit is not an act of jurisdiction of the part of the belligerent; it is a natural means of legitimate defense allowed by international law, lest fraud and bad faith should assist the enemy. The right should therefore be exercised with the greatest moderation by the belligerent, special care being taken to avoid causing the neutral any extortion, damage, or trouble that is not absolutely justifiable.

In consequence of this the detention of the ship visited should always be as short as possible, and the proceedings restricted as far as they can be, their exclusive object being, as explained, for the belligerent to ascertain the neutrality of the ship, and in case of neutrality (if bound for a port of the enemy) the inoffensive and neutral description of its cargo.

It is not necessary, therefore, to demand during the visit any other documents than those proving these two conditions, for what the belligerent requires is to prevent any damage, favoring or assisting the enemy; to prevent assistance and help being furnished to them now that may contribute directly to the prolongation of the war, and not to be assured that all ships belonging to neutral powers are provided with all the documents required by the laws of their country.

The British Admiralty Manual of Prize Law states. that

299. The Commander, however, must bear in mind that he cannot take the Vessel into a Neutral Port against the will of the Local authorities; and that under no circumstances can proceedings for Adjudication be instituted in a Neutral Country.