it is not lawful for a belligerent to take off persons known as reservists and make prisoners of war of them.

§ 543. Practice of the Past. In 1870 large numbers of French and German subjects left the United States and returned to their respective countries in order to perform their military obligations. In one instance as many as twelve hundred Frenchmen embarked in two vessels sailing from New York, but inasmuch as they travelled as ordinary passengers, unarmed and not under military discipline, secretary of state Fish took the position that they were not a part of the armed forces, and consequently there was no violation of American neutrality in permitting them to depart. Neither belligerent made any attempt to intercept their return, although Lawrence thinks they could have been made prisoners of war had they been captured by the enemy during the course of the voyage.1

In the controversy between Great Britain and Germany over the detention by British cruisers of the Bundesrath, the General, and the Herzog during the Boer war, it appears that one of the grounds alleged by Great Britain in justification of the seizure of the Bundesrath was that she carried a number of Dutch, Austrians, and Germans, all believed to be intending combatants. Replying to the request of the German government for the release of the vessel, Lord Salisbury stated among other things that "she had on board a number of passengers believed to be volunteers for service with the Boers."2 The Bundesrath, like the China in the recent war, it may be added, was plying between neutral ports, the only difference between the two cases being that the Bundesrath was bound for a neutral port in close geographical proximity to the territory of the enemy, so that traband. An article was proposed providing that a ship which had on board formations de troupes should be liable to condemnation if the owner or captain had knowledge of their military character. Like penalty was to be inflicted on ships which carried individual passengers who belonged to the armed forces of the enemy if the voyage was especially undertaken for their conveyance. During the course of the discussion of the proposed article Captain Otley asked what was meant by formations de troupes. Professor Renault replied that they were bodies of men bound by discipline and subject to the authority of a commander (Actes et Documents, Vol. III, p. 1123). General Amourel then inquired whether reservists, returning home to be incorporated in the army were included. Herr Kriege replied in the negative. They were, he said, simple passengers and not military persons. Count Tornielli agreed with Renault and Kriege that formations de troupes did not include reservists travelling as individual passengers.

1

1 Op. cit., p. 621.

2 Moore, Digest, Vol. VII, p. 765.

CASE OF THE FREDRICO

371 the application of the doctrine of continuous voyage would have been more justifiable than in the case of the China. Nevertheless, it was not alleged that any of the suspected persons were soldiers in the actual service of the enemy; their seizure rather appears to have been based on the theory that they were contraband by analogy. Professor Holland at the time expressed the opinion that "the carriage by a neutral ship of enemy troops or even of a few military officers and also of enemy despatches was an "enemy service of so important a kind as to involve the confiscation of the vessel concerned, a penalty which under ordinary circumstances is not imposed upon carriage of contraband properly so called." 1

§ 544. The Case of the Fredrico. The question of the liability to capture of a neutral vessel carrying military persons arose during the recent war in the case of the Fredrico, decided by the French prize council in May, 1915.2 The Fredrico was a Spanish steamer captured on the high seas October 10, 1914, by a French torpedo destroyer and taken to Toulon. It had on board a number of German and Austro-Hungarian mobilisés, the exact number of whom is not stated, who were returning home to join the colors of their respective regiments. The owner of the steamer asked for its release on the ground that the passengers in question were not "incorporated" in the armed forces of their respective countries, and that the voyage of the vessel had not been undertaken with a view to the transportation of such persons. The prize council, however, condemned the ship as good prize on the ground that a neutral vessel engaged in the transporting of "numerous passengers" of this nature, even when proceeding from one neutral port to another, is liable to capture and confiscation. The passengers in question, the prize council held, must be considered as being "incorporated," within the meaning of article 47 of the Declaration of London, in the armed forces of their respective governments. Finally, the Declaration of London never having been ratified by the powers and the French government having put it into effect with certain modifications and additions, it must

1 London Times, January 3, 1902.

2 Text in 22 Rev. Gén. de Droit Int. Pub. (1915), Jurisprudence, pp. 17 ff. Cf. also the decree of the President of the French Republic rejecting an appeal from the decision of the prize court, ibid., 1917, Jurisprudence, p. 11.

be considered as a unilateral act, the interpretation of which belonged to the French prize council.

It is generally admitted that a neutral vessel engaged in the carriage of military persons is liable to condemnation when the vessel has been hired as a transport, or when the persons are such in number, importance, or destination, and at the same time when the circumstances of their reception are such as to create a reasonable presumption that the owner or his agent intended to aid the belligerent in his war. But it does not follow from this admitted principle that neutral vessels engaging in the ordinary course of trade, and which carry military persons as regular passengers and without any intention of aiding one of the belligerents, are equally liable to condemnation. Hall remarks that when "belligerent persons, whatever their quality, go on board a neutral vessel as simple passengers, the ship remains neutral and covers the persons on board with the protection of her neutral character."

The line of demarcation between the transportation of persons for the aid of a belligerent and their transportation in the ordinary course of commerce is not always easy to draw. In any case, from the point of view of the belligerent, the importance of the act consists not in the manner in which it is done, nor in the motive which may animate the carrier, but in the effect. Whether the circumstances of the transportation may or may not be such as to render the vessel liable to confiscation, it is reasonable to hold that it is the right of a belligerent to take proper measures to prevent the enemy from receiving military aid under the protection of a neutral flag. No rule can be laid down as to the number of military persons on board which may be necessary to render the vessel liable to confiscation. The transportation of a single general or admiral might under some circumstances be a more noxious act than the conveyance of a large number of ordinary soldiers. It would seem, however, that the confiscation by the French prize council of the Fredrico was a somewhat extreme application of the rule. It does not

1 Hall, Int. Law, 4th ed., p. 701. Cf. also Smith and Sibley, Int. Law as Interpreted during the Russo-Japanese War, p. 249, who says the liability of the vessel to capture depends on whether it is hired by the belligerent for the purposes of a transport. Montagne Bernard (Neutrality of Great Britian during the American Civil War, p. 223) held the same opinion.

* Cf. Moore, Digest, Vol. VII, p. 756, and Lawrence's Wheaton, ed. of 1863, p. 802.

BRITISH AND FRENCH POLICY REVIEWED 373

appear that the vessel was hired as a transport by the enemy government; on the contrary, it was engaged in the regular course of trade and carried the German and Austrian mobilisés as ordinary passengers. They were unorganized reservists and were not incorporated in the armed forces in accordance with article 47 of the Declaration of London, as that article has usually been interpreted. Nevertheless, as the Declaration of London was not binding on the prize council, it was free, as it asserted, to place its own interpretation on the meaning of the article in question.

It is certain that Great Britain and France in taking from neutral vessels persons of enemy nationality who were not actually incorporated in the armed forces, and who in some cases appear not even to have been reservists returning home in response to a summons from their governments, and detaining them as prisoners of war, did not conform to the general usage of the past nor to the terms of the Declaration of London.1 As already stated, they conformed their action in the beginning to the general interpretation that has been placed on article 47 and confined their seizures to persons actually incorporated in the armed forces of the enemy; but in November, 1914, in consequence of the German policy of deporting able-bodied men of military age from the occupied regions of Belgium and of Northern France, this policy was altered, and enemy reservists and apparently, indeed, all persons subject to military service were declared liable to seizure. This decision was avowedly an act of reprisal against Germany and was not without justification, although its enforcement involved infringements on the rights of neutrals, like various other acts of reprisal during the recent war.

$545. Status of Despatch Bearers on Neutral Steamers. In December, 1914, a German or Austrian submarine stopped a Greek steamer near Messina and took off Colonel Napier and Captain Arthur Wilson, the latter a member of the British Parliament, and detained them as prisoners of war. At the time of their seizure they were conveying letters of a military or naval character from the eastern Mediterranean to London. The views of text writers as well as judicial authority seem to

1 Their action in this respect is criticised by the French writer Perrinjaquet in 22 Rev. Gen. de Droit Int. Pub. (1915), p. 184.

be in agreement that diplomatic despatches written for a belligerent purpose and addressed to the civil or military authorities of the enemy are analogous to contraband, and they, with the persons bearing them, may be taken from a neutral steamer on the high seas. In the above-mentioned case the steamer was allowed to continue her voyage unmolested, and no proceedings were instituted looking toward her condemnation. Sir Edward Grey in reply to a question addressed to him by a member of the House of Commons admitted that the removal of Colonel Napier and Captain Wilson from the steamer was not in contravention of the generally accepted rules of international law.2

1 Cf. Hall, op. cit., 3d ed., p. 678, and Rivier, Principes, Vol. II, p. 389; also the review of the cases of the Atalanta, the Constantia, the Susan, the Hope, the Caroline, the Madison, and Rapid in Moore's Digest, Vol. VII, pp. 761-763; also Atherley-Jones, Commerce in War, p. 79, and pp. 304-309, where most of these cases are analyzed.

2 Sir Edward had stated the view of the British government in his instructions to Lord Desart, president of the British delegation to the International Naval Conference in 1909, when he said: "The carriage of enemy despatches and the conveyance of military detachments or of individual officers or civil agents of the enemy have generally been admitted to render the ship liable to seizure and possibly to confiscation. But," he added, "it would be desirable to arrive at some understanding that in admitting conveyance by neutral vessels of a few individuals having the character of analogues of contraband it should not entail on such vessels more than the minimum amount of interference necessary for preventing the contraband persons from reaching their destination." House of Commons Sessional Papers, Vol. 54, No. 4 (1904), P. 30.