300. Both the Cruiser and, if admitted, her Prize are by the Comity of Nations exempt from the local jurisdiction. (Page 85.) Regulations in regard to use of flag.-The French "Instructions contemporaires" of 1870, article 3, state:

Les prises naviguent avec le pavillon et la flamme, insignes des bâtiments de l'État.

Under certain circumstances the commander of a war vessel may, according to the British Manual of Naval Prize Law, require the vessel seized as probably good prize to lower her flag.

As soon as the Commander has come to the determination to detain the Vessel, he should give notice to the Master, and may state to him the ground on which the Detention is made. The Commander should then without any delay secure possession of the Vessel, by sending on board one of his Officers and some of his Crew. If by reason of rough weather or other circumstances this is impracticable, the Commander should require the Vessel to lower her flag, and to steer according to his orders. (Page 69.)

Article LXVII of the Japanese Regulations of 1904 follows in the main the British Manual.

ART. LXVII. If the captain of the man-of-war decides to capture a vessel he shall inform her master of the reason, and shall take possession of the vessel by sending one officer and the required number of petty officers and men. If on account of bad weather or any other reason it is impossible to dispatch these officers and men, the captain of the man-of-war shall order the vessel to haul down her colors and to steer according to his direction. If the vessel does not obey the orders of the captain of the man-of-war, he may take any measures required for the occasion.

Certain clauses of the Danish proclamation of neutrality of April 27, 1902, show the modern attitude on the treatment of prize:

The belligerents must not commit hostile acts in Danish harbors or waters or make use of the same as base for operations at sea against each other or for the purpose of facilitating such operations. Nor must they use such harbors or waters for augmenting or renewing military equipment or for recruiting purposes.

Prizes must not be brought into a Danish harbor or roadstead except in evident case of stress, nor must prizes be condemned or sold therein.

In the Notice from the Danish Ministry of Foreign Affairs is the following:

ARTICLE 1. When a Danish merchant vessel at sea is hailed by an armed ship belonging to either belligerent, she has, at the request of the officer in command, without opposition, to produce the ship's papers, i. e., the certificate of nationality and registry (or in default of such a one, a provisional certificate of nationality delivered by a Danish consul), the crew list, the clearance papers, and the manifest. It is forbidden to conceal, to destroy, or to throw overboard papers concerning the ship or her cargo as well before as during the search. No Danish ship is allowed to have double papers or to fly another flag than the Danish flag.

The United States Navy Regulations of 1876, chapter 20, state that—

14. A neutral vessel seized is to wear the flag of her own country until she is adjudged to be a lawful prize by a competent court. The flag of the United States, however, may be exhibited at the fore, to indicate that she is, for the time, in the possession of officers of the United States.

This does not appear, however, in subsequent issues of the Navy Regulations.

Opinions as to use of flag.-Dupuis says:

L'envoi du vaisseau capturé à un port belligérant, avec tous les éléments propres à faire juger si la capture est légitime, est, en principe, obligatoire. L'intervention des cours de prises constitue une garantie nécessaire contre les abus du droit de capture; or, cette garantie ne saurait être pleinement efficace qu'autant que les documents et les objets saisis se trouvent à la disposition des cours appelées à statuer. (Le droit de la guerre maritime, No. 260, p. 331.)

Kleen, writing of the procedure in case of seizure, says:

Le navire, gardant son pavillon jusqu'au jugement, sera conduit au port du tribunal par un commandant et un équipage délégués du capteur et suffisants pour diriger et manoeuvrer le navire sous sa responsabilité. Pendant le trajet, rien ne peut être touché sans permission du capitaine et sans urgence pour la conservation des objets. (2 La Neutralité, § 213, p. 522.)

The procedure in visit, search, and seizure is so carefully prescribed that in the exercise of such a delicate. right there should be no action beyond that uniformly permitted and sanctioned by international law.

Oppenheim says in regard to the treatment of prize

that

As soon as a vessel is seized she must be conducted to a port where a prize court is sitting. As a rule the officers and crew sent on board the prize by the captor will navigate the prize to the port. This officer can ask the master and crew of the vessel to assist him, but if they refuse they can not be compelled thereto. The captor need not accompany the prize to port. In the exceptional case, however, where an officer and crew can not be sent on board and the captured vessel is ordered to lower her flag and steer according to orders, the captor must conduct the prize to port. (2 International Law, p. 198, § 193.)

In 1886 the flag of a fishing vessel was hauled down in a Canadian port on the ground that the fishing vessel had violated certain local regulations.

Mr. Bayard, in a letter to Mr. Phelps, says:

It seems hardly necessary to say that it is not until after condemnation by a prize court that the national flag of a vessel seized as a prize of war is hauled down by her captor. Under the fourteenth section of the twentieth chapter of the Navy Regulations of the United States the rule in such cases is laid down as follows:

"A neutral vessel, seized, is to wear the flag of her own country until she is adjudged to be a lawful prize by a competent court." But, a fortiori, is this principle to apply in cases of customs seizures, where fines only are imposed and where no belligerency whatever exists? In the port of New York, and other of the countless harbors of the United States, are merchant vessels flying the British flag which from time to time are liable to penalties for violations of customs laws and regulations. But I have yet to learn that any official, assuming, directly or indirectly, to represent the Government of the United States, would under such circumstances order down or forcibly haul down the British flag from a vessel charged with such irregularity; and I now assert that if such act were committed, this Government, after being informed of it, would not wait for a complaint from Great Britain, but would at once promptly reprimand the parties concerned in such misconduct and would cause proper expression of regret to be made. (For. Rel. U. S., 1886, p. 370.)

The principle that enemy goods and ships are liable to seizure being at present admitted, there can be little objection raised to placing the national flag of the capturing vessel over a seized vessel belonging to a belligerent. It does pass, if good prize, to the state of the captor upon capture. It is brought in for adjudication.

In regard to a neutral vessel, the principle is quite otherwise. The neutral is only seized and held pending the decision of the prize court.

The Austrian regulations seem, therefore, to be in accord with the best opinion. These are to the effect that if an enemy vessel is captured the imperial standard should be hoisted at once at the peak of the captured vessel.

If a neutral vessel is seized it should carry its own flag till it is declared good prize, although the Austrian colors may be hoisted at the fore to indicate that the vessel is under the direction of a war ship of Austria.

The position is similar to that in the United States Navy Regulations of 1876.

Summary.-In the situation under consideration there are several parties concerned: (1) The authorities of the neutral state into which the vessel has been brought; (2) the war vessel of the United States; (3) the seized merchant vessel of the United States, a neutral; (4) the war vessel making the seizure.

(1) Relations of the neutral state. The authorities of neutral states have full right to forbid the entrance of vessels with prize. They have the full right to regulate the conditions of entrance and sojourn of any vessels admitted with prize during war. As neutrals they are under obligation to see that no acts of war take place within their jurisdiction. The capture within neutral jurisdiction of a vessel of which the pursuit was begun outside of neutral territory is not allowed. The neutral is entitled to claim that its territory should not be the scene of any proximate act of war. The forcible hauling down of the flag of the merchant vessel of the United States is an act approximating war. The transfer of flag is an indication of the transfer of sovereignty. A forcible transfer of this kind is of the nature of capture which is forbidden in neutral territory. As ships of war with prize are generally admitted to neutral ports only on sufferance, it is proper for the neutral authorities to demand that the status of the prize be not changed by the use or threat of force or in any manner other than of its

own volition during the sojourn within port. As the hauling down of a neutral flag and the raising of a belligerent flag in its place under orders of the belligerent within a neutral port would be in the nature of evidence of transfer of authority, such a transfer would properly be an act to which the neutral would object.

The neutral, therefore, has a right to protest if a belligerent entering its port with prize performs any such act in derogation of his sovereignty. The forcible hauling down of any neutral flag would be an act of such character. Therefore the neutral would have cause for protest.

(2) Position of the war vessel of the United States.The war vessel of the United States is under the general restrictions as regards conduct in a foreign state. It may not take any action in derogation of the sovereignty of the neutral port of State Z. To use force to restore the flag of the merchantman of the United States would be an offense against State Z and would imply that State Z was unable to secure the enforcement of proper regulations in its ports. Both the war vessel of State X and its prize while in the neutral port of Z are within its jurisdiction, and any act of force would be an offense against the neutral state. Accordingly the commander of the United States war vessel would have no right to interfere other than by stating the facts and making protest against the action of the captain of the war vessel of State X. This protest should be made to the authorities of neutral State Z who have jurisdiction, and protest may be made also directly to the captain of the war vessel of State X by the captain of the United States war vessel, if he deems it expedient.

(3) Right of captured neutral vessel to flag.—The captured neutral merchant vessel of the United States has a right to carry its flag until condemned, and it is proper that it should do so in order that in case its captor should be attacked by the other belligerent the status of the prize may be known, or in case it is sent in under a prize crew that its status may similarly be evident. In flying the enemy's flag in place of its proper flag its status would be