that of an enemy vessel so far as the opposing belligerent was concerned. Until condemnation in a regular court its status is not changed and it should be made liable to the consequences of seizure only. Therefore it has the right to its own flag till condemned.

(4) Rights of war vessel of State X.-The war vessel of belligerent State X which made the capture has no rights except that of peaceable sojourn in a neutral port of State Z, which has admitted the war vessel with its prize. The forcible hauling down of the neutral flag is an act beyond those permitted in peaceful sojourn and is beyond the rights of the captain.

The neutral merchant vessel has a right to its flag as evidence of its nationality and for its protection till condemned. The merchant vessel is seized only in order that it may be brought before a court. It is regarded as innocent until condemned. Such use of force by the officers of State X against its flag would be an anticipation of the judgment of the prize tribunal. The captain of the merchant vessel is right in declining to haul down his flag.

As the neutral state is responsible for acts which take place within its jurisdiction, the proper authority to which the commander of the United States war vessel. should look is that of the neutral state. As the neutral merchantman of the United States is entitled to her flag until condemned and as the hauling down of the United States flag by force would be an evidence of transfer of jurisdiction which should not take place in a neutral port, the commander of the United States war vessel would be justified in taking action.

Conclusion.-The commander of the United States war vessel should protest to the neutral authorities of State Z against the action of the captain of the war vessel of State X in forcibly hauling down the flag of a seized merchant vessel of the United States while in a neutral port of Z and before the decision of a prize court. He should also report the facts to his home government for further action.

SITUATION IV.

In the time of war between the United States and State Z, a merchant vessel of State Z is overtaken by a war vessel of the United States. The merchant vessel resists capture and tries to escape, but is captured and found to have on board certain goods which the captors wish for immediate use, but which are said by the captain and seem in fact to belong to neutral parties.

Should these goods be treated as hostile? What action could be taken?

SOLUTION.

The goods should not be treated as hostile.

The goods should not be taken from the vessel except for better preservation thereof or unless such articles are absolutely needed for the use of vessels or armed forces of the United States. The appropriation of innocent neutral goods must be justified by military necessity, not by mere wish or desire.

NOTES ON SITUATION IV.

Status of merchant vessels as regards capture.-There is a wide difference between the capture of an enemy merchant vessel and the capture of a neutral merchant vessel. The enemy vessel is captured as a proper act in the conduct of the war. The presumption in the case of capture of an enemy vessel is that it is good. prize and the burden of proof of exemption rests upon the enemy. The presumption in the case of the capture of a neutral vessel is that it is exempt until proved good prize by the proper authorities. The liability to capture is the deterrent which is present to the neutral to cause him to refrain from becoming involved in the hostilities. The neutral vessel is, if innocent, liable only to inconvenience. Resistance by force. by a neutral vessel would be taken as evidence of guilt.

RESISTANCE TO CAPTURE.

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Resistance by force by an enemy vessel would be but a natural attempt to avoid certain penalties.

Resistance in general. It is not easy to determine what kind of resistance constitutes a sufficient ground for seizure, and the courts have therefore held that they can not so differentiate, but that any resistance will render a vessel liable to seizure. In the case of the Jane it was decided that an American merchant vessel attempting flight from an unknown vessel but heaving to on discovering that it was a French cruiser that was firing upon her, was guilty of resistance to search. (The Jane, 37 Court of Claims, U. S., 24.) Not even grave apprehension of illegal condemnation will justify a neutral merchant vessel in resisting the right of search by a belligerent. (The Rose, 37 Court of Claims, U. S., 290.) Regulations as to resistance.--The British regulations in regard to resistance in general are as follows:

RESISTANCE.

145. The Commander should detain any Vessel which forcibly resists Visit or Search.

146. A mere attempt at escape is, in itself, no ground for Detention, though the Commander will not be liable for injury which he may cause to the Vessel, or her Crew, in forcibly preventing her escape.

147. The Penalty for Resistance by the Master of a Neutral Vessel is the confiscation of the Vessel and the Neutral cargo. Resistance by the Master of an Enemy's private ship does not forfeit a Neutral cargo, which will, however, be condemned if found on board an armed Ship of the Enemy.

RESISTANCE BY NEUTRAL CONVOY.

148. Any resistance made by a Neutral Convoying Ship to the lawful Visit and Search of a Vessel under her escort will justify the Detention both of the Convoying Ship and of all Vessels convoyed by her.

149. If, upon the Visit and Search of a Vessel under Neutral Convoy, it shall appear that the Master set sail with instructions to make an armed resistance to Search, the Vessel should be Detained.

ENEMY CONVOY.

150. Vessels under Enemy Convoy are, from that circumstance alone, liable to Detention. (Admiralty Manual Prize Law, 1888, p. 44.)

The Japanese Regulations of 1904 state:

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.

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 carrying 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. Vessel's voyaging under the convoy of an enemy's man-of

war.

ART. XLVIII. Vessels that have opposed visit or search, and all the goods belonging to the owners of such vessels, shall be forfeited.

The instructions issued for the Spanish navy in 1898 provided:

In consequence of the visit the vessel is captured in the following cases:

*

*

*

if active resistance is offered to the visit, that is, if force is employed to escape it.

General Orders, No. 492, of the Navy Department, June 20, 1898, stated that

A vessel under any circumstances resisting visit, destroying her papers, presenting fraudulent papers, or attempting to escape should be sent in for adjudication.

Neutral goods on armed vessels.—In the case of the Fanny, neutral Portuguese property was placed on board a British armed ship which was captured by an American schooner and afterwards was retaken by a British war vessel. It was decided by the British court that neutral property thus shipped was, if captured, liable to condemnation, and if recaptured, subject to salvage. (1 Dodson's Admiralty Reports, 443.) An American decision of the same period (1815) maintained, though with strong dissent, that—

CASE OF THE MARIA.

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A neutral may lawfully employ an armed belligerent vessel to transport his goods, and such goods do not lose their neutral character by the armament, nor by the resistance made by such vessel, provided the neutral do not aid in such armament or resistance, although he charter the whole vessel, and be on board at the time of the resistance. (The Nereide, 9 Cranch, U. S. Supreme Court Reports, p. 388.)

This decision was affirmed in the case of the Atlanta in 1818. (3 Wheaton, U. S. Supreme Court Reports, 415.)

The British point of view, that neutral goods upon an armed vessel of a belligerent would be liable to confiscation, seems to be generally held at present, though such cases are little likely to arise.

Early British opinion as to merchant vessels.-The general subject of resistance to visit and search was considered quite fully in the case of the Maria. Sir William Scott mentions certain principles which he regards as incontrovertible. He maintains

that the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. I say, be the ships, the cargoes, the destinations what they may, because, till they are visited and searched, it does not appear what the ships, or the cargoes, or the destinations are; and it is for the purpose of ascertaining these points that the necessity of this right of visitation and search exists. The right is so clear in principle that no man can deny it who admits the legality of maritime capture; because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured it is impossible to capture. Even those who contend for the inadmissible rule that free ships make free goods must admit the exercise of this right, at least for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice, for practice is uniform and universal upon the subject. The many European treaties which refer to this right refer to it as preexisting, and merely regulate the exercise of it. All writers upon the law of nations universally acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges. In short, no man in the least degree conversant in subjects of this kind has ever, that I know of, breathed a doubt upon it. The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode