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KNIGHT COMMANDER CASE.

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It may be noted that the articles mentioned, such as rails, railway material, wire, acids, wheels, clothing, hardware, perfumery, soap, etc., are generally regarded as contraband only when destined for the enemy's military or naval use. The simple destination of such articles of conditional contraband nature to the ports of an enemy does not necessarily make them liable to capture.

The absence, loss, or destruction of certain of the proper ship's papers which was set forth before the court is not a ground for destruction, but may be ground for seizure of a vessel.

The destination was not proven beyond a doubt, though supposed for a part of the cargo to be Chemulpo, which, though in Korea, the Russian report names as "the theater of war."

That the owner of the vessel was involved in the transaction other than as a carrier is not affirmed.

The amount of goods of various classes is admittedly in doubt. The nature of the cargo was bulky and of such character as to make it impossible for the visiting party of two or three to make sure it was conditional contraband.

In Attorney Bagenoff's appeal from the decision of the Vladivostok court it is claimed that the trial was illegal because

1. The procedure was irregular and the evidence insufficient and ex parte.

2. The absence of certain of the ship's papers would, according to Russian instructions 18 and 20, permit only search and detention of the vessel.

3. The examination of the cargo was superficial and indefinite by looking through the hatchways into the holds, and the testimony of the examining officers was not in agreement.

Professor Woolsey's opinion.-In the discussion of the case of the Knight Commander, Professor Woolsey, in an article appearing since this Situation was prepared, says:

These are the considerations involved:

(1) The injustice of penalizing a ship not shown to be guilty.

(2) The insufficiency of an ex parte examination of cargo at

sea.

(3) Validity of excuses for destruction.

(4) The doctrine of conditional contraband; its application to this cargo.

(5) Is destruction ever permissible?

(6) Is destruction lawful subject to compensation?

So far as I am aware the injustice of destruction attaching as a penalty to the neutral ship, even granting that it is carrying contraband, has not been sufficiently emphasized in the Knight Commander case.

The argument is this: To condemn a ship carrying contraband it must be shown that it belonged to the owner of the contraband or that the contraband formed so large a part of the cargo.as to prove complicity. This is an intricate business of a highly judicial nature, demanding the production of papers and examination of witnesses. It will be later shown what grave doubt existed as to the really contraband character of the cargo in question. But, laying this aside, the case in point shows us a penalty, namely, the loss of the ship, which according to the accepted rules governing contraband would not have been inflicted by any well-regulated prize court, unless the owner of the ship was shown to be the owner of the cargo as well, as to which there is no proof that the searching officer made inquiry. Thus we find the case to involve an enlargement of the accepted penalties for carrying contraband.

2. The vast difference between the cursory ex parte judgment upon all the facts in a ship's case and the judicial examination of the same is also to be noted as a sound reason against the practice we are considering. In port the cargo can be landed, its character ascertained, its destination learned, and witnesses summoned in proof of all, beside that evidence which the ship's papers give. This trial, before a court trained to judge the credibility of evidence, if properly conducted, creates so strong a presumption of guilt or innocence that few governments will venture to challenge the verdict. It must be admitted that the prize court of first instance sitting at Vladivostok seems to have been scarcely a judicial body it seems to have existed for condemnation only.

After discussing other questions raised by the destruction of the Knight Commander, Professor Woolsey refers to the distinction between "compensation paid for a destroyed neutral ship as implying a penalty for an unlawful act and compensation interpreted as the price to

CASE OF KOW-SHING.

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be paid by the belligerent for destruction as a military necessity acting within its rights." He says:

With this distinction clearly in mind and the jus angariae to justify destruction on account of the military necessity alluded to by Professor Holland, it is contended that the only reason for exceptions to the rule disappears, and that we are justified in laying down as probably the usage of to-day-with the sole exception of Russia-that neutral ships which can not be taken before a court for trial must be released. If military necessity demands, they may be appropriated or destroyed subject to full payment.

In defense of this rule are the following considerations: This is substantially the usage of to-day except in Russia. This is the opinion almost unanimous of British and American writers. Continental publicists, while not unanimous, are fairly favorable to this rule. Neutral states demand it as a reasonable measure, in their interest. It is a logical rule, because otherwise you are enlarging the penalty of carrying contraband, making ship liable with goods, and conferring improper judicial authority upon a naval officer not trained for it. If this is not the rule, yet it is a reasonable rule, and as it is the fashion now-a-days to say, the next Hague Conference should make it a rule. (16 Yale Law Journal, p. 567 ff.)

Later Russian regulations.-The protests in regard to the sinking of the Knight Commander led to the issue of new orders.

The Russian instructions of August 5, 1905, leave some doubt by making a distinction between " direct necessity " and "emergency."

Russian vessels were not to sink neutral merchantmen with contraband on board in the future, except in case of direct necessity, but in case of emergency to send prizes into neutral ports.

Case of the Kow-Shing.-On July 25, 1894, the KowShing, a British vessel, engaged in Chinese transport service in the Chino-Japanese war, and having on board about 1,100 troops, was stopped and ordered to follow a Japanese war ship to port. The Chinese on board the transport refused to allow this. The Japanese war ship sunk the Kow-Shing. The action of the Japanese war ship has been generally supported as an act of war, the transport being engaged in the military service

of the enemy. (Takahashi, International Law during the Chino-Japanese War, p. 24.)

Professor Holland's opinion.-Professor Holland, in a letter to the London Times, says of the sinking of the Kow-Shing:

The Kow-Shing, therefore, before the first torpedo was fired, was, and knew that she was, a neutral ship engaged in the transport service of a belligerent. (Her flying the British flag, whether as a ruse de guerre or otherwise, is wholly immaterial.) Her liabilities as such a ship were twofold:

1. Regarded as an isolated vessel, she was liable to be stopped, visited, and taken in for adjudication by a Japanese prize court. If, as was the fact, it was practically impossible for a Japanese prize crew to be placed on board of her, the Japanese commander was within his right in using any amount of force necessary to compel her to obey his orders.

2. As one of a fleet of transports and men-of-war engaged in carrying reinforcements to the Chinese troops on the mainland, the Kow-Shing was clearly part of a hostile expedition, or one which might be treated as hostile, which the Japanese were entitled, by the use of all needful force, to prevent from reaching its destination. The force employed seems not to have been in excess of what might lawfully be used, either for arrest of an enemy's neutral transport or for barring the progress of a hostile expedition. The rescued officers also having been set at liberty in due course, I am unable to see that any violation of the rights of neutrals has occurred. No apology is due to our Government, nor have the owners of the Kow-Shing or the relatives of her European officers who may have been lost any claim for compensation. I have said nothing about the violation by the Japanese of the usages of civilized warfare (not of the Geneva Convention, which has no bearing upon the question) which would be involved by their having fired upon the Chinese troops in the water; not only because the evidence upon this point is as yet insufficient, but also because the grievance, if established, would affect only the rights of the belligerents inter se; not the rights of neutrals, with which alone this letter is concerned. I have also confined my observations to the legal aspects of the question, leaving to others to test the conduct of the Japanese commander by the rules of chivalrous dealing or of humanity. Your obedient servant,

ATHENÆUM CLUB, August 6.

T. E. HOLLand.

(Reprinted in Takahashi, International Law during the ChinoJapanese War, p. 41.)

OPINION OF UNITED STATES COURT.

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United States opinion as to court and prize. In 1851 the case of Jecker v. Montgomery in the Supreme Court of the United States gave rise to several questions.

This case arises upon the capture of the ship Admittance during the late war with Mexico by the United States sloop of war Portsmouth, commanded by Captain Montgomery.

The Admittance was an American vessel, and after war was declared sailed from New Orleans, with a valuable cargo, shipped at that place. She cleared out for Honolulu, in the Sandwich Islands, and was found by the Portsmouth at Saint Jose, on the coast of California, trading, as it was alleged, with the enemy.

Before this capture was made, a prize court had been established at Monterey, in California, by the military officer exercising the functions of governor of that province, which had been taken possession of by the American forces. A chaplain belonging to one of the ships of war on that station was appointed alcalde of Monterey, and authorized to exercise admiralty jurisdiction in cases of capture. The court was established at the request of Commodore Biddle, the naval commander on that station, and sanctioned by the President of the United States, upon the ground that prize crews could not be spared from the squadron to bring captured vessels into a port of the United States, and the officers of the squadron were ordered to carry their prizes to Monterey and libel them for condemnation in the court above mentioned, instead of sending them to the United States.

In pursuance of this order the Admittance was carried to Monterey and condemned by the court as lawful prize, and the vessel and cargo sold under this sentence. The seizure at Saint Jose was made on the 7th of April, 1847, and the ship and cargo condemned on the 1st of June, in the same year.

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All captures jure belli are for the benefit of the sovereign under whose authority they are made, and the validity of the seizure and the question of prize or no prize can be determined in his own courts only, upon which he has conferred jurisdiction to try the question, and under the Constitution of the United States the judicial power of the General Government is vested in one Supreme Court and in such inferior courts as Congress shall from time to time ordain and establish. Every court of the United States, therefore, must derive its jurisdiction and judicial authority from the Constitution or the laws of the United States, and neither the President nor any military officer can establish a court in a conquered country, and authorize it to decide upon the rights of the United States or of individuals in prize cases, nor to administer the laws of nations.

The courts established or sanctioned in Mexico during the war by the commanders of the American forces were nothing more

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