The angary clause of the 1799 treaty was renewed as Article 12 in the treaty of 1828 between the same parties. With the exception of the Danish-Prussian Treaty of June 17, 1818, and two Italian treaties with San Domingo and Nicaragua, October 18, 1886, and June 25, 1906, all of the nineteenth and twentieth century treaties allow the exercise of the right of angary with full indemnity. Article 12 of the Danish-Prussian Treaty provides that no vessels of the subjects of the contractants shall "zum Kriegsdienste oder zu irgendeinem andern Transport wider seinem Willen, gezwungen werden." Article 5 of

the Italian-Nicaraguan Treaty provides:

I cittadini di ambe le Parti contraenti non potranno essere sottomessi rispettivamente a sequestri od embargos, per ragioni di Stato, ne per spedizioni militari ne per causa di uso pubblico di veruna sorte; ne potranno essere trattenuti coi loro bastimento, equipaggi, mercanzie od oggetti commerciale per equali motivi.13

This treaty does not allow the exercise of the right of angary for a military expedition or for any public purpose.

Having considered the conventional stipulations, relating to angary, a tabular comparison of the conventions for the different centuries, so far as they concern angary, is interesting and illuminating. It must be borne in mind that the seventeenth and eighteenth century treaties, excepting the United States-Prussian Treaty of 1799, relate to the old right. The classification of a treaty as favorable to the exercise of the right, means of course, favorable if adequate indemnity is paid.

Six of the nineteenth century treaties are between the United States and Central or South American Powers. In only one of these,

12 Gesetzsammlung für die preussischen Staaten (quoted by Albrecht, p. 39). 13 De Martens, Nouveau Recueil de Traités, XXXV, 270.

the treaty with Peru of 1874, is indemnity required in advance. Several of the French and German treaties with these Powers require indemnity in advance. A typical French treaty is that with Nicaragua, April 11, 1859, of which Article 7 provides:

Les sujets et citoyens de l'un et l'autre Etat ne pourront être respectivement soumis a aucun embargo, ni être retenus avec leurs navires, équipages et cargaisons et effets de commerce pour un expédition militaire quelconque, ni pour quelque usage public ou particulier que ce soit, sans qu'il soit immédiatement accordé aux intéresses une indemnite suffisante pour cet usage, et pour les torts et les dommages qui, n'étant pas purement fortuits, naîtront du service auquel ils son obligés.14

We may conclude without hesitation that the modern treaties recognize the right of angary for military and other urgent public purposes. The question arises, however, as to the status of the right in the absence of treaty stipulation. In this case is it exercisable at all, and if so, is compensation due? Speaking in the House of Commons, William Pitt said: "The very circumstance of making an exception by treaty proves what the law of nations would be if no such treaty were made to modify or alter it.''15

Considering 48 Powers in the world, there would be a possibility of 1,128 treaties on any given subject, provided each Power made a treaty with every other Power. As a matter of fact, only about 42 treaties have been made concerning the right of angary. Following Mr. Pitt's reasoning, we would have to conclude that, in the absence of treaties, the Law of Nations would permit a belligerent to seize neutral vessels, and even neutral subjects, for a military expedition or some other public or even private purpose without obligation as to compensation or indemnity, for which all the nineteenth and twentieth century treaties, with three exceptions, and possibly others, provide. We are thus driven into a dangerous position, for it would hardly be held by an authority on international law that a belligerent had such rights.

The reasoning just followed is unsound because it fails to recognize

14 De Clercq, Recueil des Traités, VII, 588.

15 Speeches, III, 327.

important factors which must enter. In the first place, it makes a tremendous amount of difference if the 42 treaty exceptions are made by Powers of small weight in international affairs or by some of the great Powers. Obviously, San Marino and Liberia when agreeing by treaty to do or not to do something, do not have as much weight in making or unmaking international law as when the United States and Great Britain are concerned. A second reason for the inadequacy of this method of reasoning is that conventional stipulations are often made, not as making an exception to international law, but in confirming it, that is, international law is declared but not amended. Such stipulations serve as abundant precaution. Thus it is very doubtful if a specific stipulation is necessary to prevent France, for example, from forcing subjects of the United States to take part in a French military expedition, or to provide for compensation in case American vessels were used, assuming of course that the United States was neutral.

Finally, then, the inevitable conclusion is reached that the right of angary exists, even in the absence of a treaty recognizing it, but that a treaty renders the position of the affected neutral more secure as regards indemnity or compensation which might be given without the treaty. This has indeed been the case in the three notable exercises of the right, viz., by Napoleon I in 1798, by Prussia in 1870, and by the United States, Great Britain and other Powers during the present war.

16

Some authorities touch upon this point. Perels holds that both merchant vessels and their crews belonging to a neutral Power may be used by a belligerent in the absence of a treaty to the contrary. (soweit solche nicht conventionell ausgeschlossen sind) 18 Hall believes that "it is possible that a right to compensation might be generally held to exist apart from treaties." It is certainly not to be concluded, says Dr. Albrecht, that the German treaties placed German vessels in a worse position with regard to the other contracting Powers than they were allowed by existing international law.18 Basdevant says of the nineteenth century treaties that they "n'ont évidemment pas eu

16 Das internationale offentliche Seerecht der Gegenwart, p. 236. 17 International Law, p. 813 (7th edition).

18 “Requisitionem von neutralem Privateigenthum," Zeitschrift für Völkerrecht und Bundesstaatsrecht (1912), Beiheft I, p. 44.

pour objet d'empirer les conditions de la navigation en créant un droit de réquisition qui n'existerait pas auparavant."'19

III. CLASSIFICATION OF AUTHORITIES.

A very interesting and illuminating phase of this study has been furnished by a classification of the opinions of writers on international law who have treated the subject of angary. Not only does it serve to clear up the uncertainty which has existed as to the strength of opinion which allows the right, but it also serves, when taken in connection with the classification of treaties, to give a fairly accurate estimate of the status of the right in international law.

In making this classification, two important points have been borne in mind. First, that those authorities who wrote before 1798 generally were writing of the old right which included the seizing of the personnel of the vessels, hence their opinions are not to be placed in the same category as those who wrote later. In the second place, a writer's view on a given subject must be weighed or tested in connection with all that he has to say on that subject in order that his true meaning may be ascertained. The subject under consideration is of such completeness in itself, however, that the various views admit of a rough classification. It cannot, of course, be absolute, but serves as a fairly accurate guide.

Grotius, writing in the early seventeenth century, believed that only the greatest necessity gives one neighbor or state preference in the use of the other's goods, and then such preference does not exist if the owner has an equal need for it; that if the custody of a thing suffices, it is not necessary actually to use it; that if the usage is sufficient, it is unnecessary to claim the right to dispose of the goods, but if a disposal is made the owner should be compensated.

Sed quia occasione belli multa in eos, finitimos præsertim patrari solent prætexta necessitate, repetendum hic breviter quod diximus alibi, necessitatem ut ius aliquod det in rem alienam summam esse debere: requiri præterea, ut in ipso domino par necessitas non subsit:

19 "La Réquisition des Navires Allemands," Revue de Droit International, XXIII (1916), 278.

etiam ubi necessitate constat, non ultra sumendum, quam exigit id est si custodia sufficiat, non sumendum usum, si usus, non sumendum abusum si abusu sit opus restituendum tamen pretium.20

It has been thought useful to divide the authorities into four classes: (1) those who admit the right of angary, provided indemnity is paid and it is exercised in case of urgent or extreme necessity. In this class also are placed those who admit the right without limitation of necessity but require indemnity. Writers in this category are classed as favorable.

(2) Writers who are less emphatic in admitting the right or who limit or qualify it; these are classed as favorable with qualifications. (3) Writers who oppose the right. Such authorities are classed as unfavorable.

(4) There is a fourth group of authorities who merely define the right or refer to other opinions. These are classed as non-committal.

On account of the exercise of the right by Prussia in 1870, a separate list is made of those writers who wrote before 1870 and those who came after that date.

With this explanation, we may proceed to group authorities as follows:

CLASSIFICATION OF AUTHORITIES

It is thus seen that of 79 authorities who treat the subject of angary, a good majority admit that the right may be exercised, if indemnity or compensation is paid. Even if those who admit the right with qualifications or limitations are classed with those who oppose, the number would still be only 26 as against 50 who are favorable. If then, the facts here shown are connected with those shown in the classification of treaties-in the nineteenth and twentieth centuries, it ap20 De Iure Belli ac Pacis, Book III, Ch. 17.