of the existence of war, is not a hostile act. By long custom a belligerent war ship has a right of visit and search of all neutral merchant vessels, and this right is exercised in order to ascertain whether a vessel is in fact neutral, and not engaged in any acts such as attempting to break blockade, the carriage of contraband or the performance of any unneutral service which would justify its detention and condemnation. "It has been truly denominated a right growing out of, and ancillary to the greater right of capture. Where this greater right may be legally exercised without search [as in the case of enemy ships] the right of search can never arise or come into question." 25 A belligerent war ship has a right to capture an enemy merchant ship, and the latter is under no duty to submit; it has a corresponding right to resist capture, which is an act of violence and hostility. By resisting, the belligerent violates no duty, he is held by force and may escape if he can. But forcible resistance, as distinct from flight, on the part of a neutral merchant ship is universally admitted as a just ground for the condemnation of the ship, 26 for a neutral is under a duty to submit to belligerent visit.

(2) Position of Crews of Captured Merchant Ships

Another important point differentiates the neutral from the belligerent merchant ships, namely the position of their crews when the ships are detained. The officers and crew of an enemy merchant ship, even if they offer no resistance to capture, become prisoners of war, while the officers and crew of a neutral do not.

The United States Naval War Code in the passage already cited (Article 10) recognizes that the personnel of merchant vessels of an enemy who in self-defence and in protection of the vessel placed in their charge, resist an attack, are entitled, if captured, to the status of prisoners of war, and Dr. F. Perels, who was formerly legal adviser to the German Admiralty, quotes this with approval.27 But this view is

25 Marshall, C. J., in the Nereide, 9 Cranch, 388.

26 See Declaration of London, Art. 63.

27 "Gegen das Personal der Schiffsbesatzung soll im übrigen eine vorläufige Zurückhaltung an Bord soweit zulässig sein, als dessen Vernehmung für die Feststellung des Tatbestandes erforderlich erscheint, und es soll diesen Leuten eine anständige Behandlung zu teil werden. Dem entsprechen auch die folgenden Festsetzungen in den Artikeln 10 und 11 des N. W. C: (Das Internationale Seerecht, ed. 1903, p. 191).

based, according to Dr. Schramm, on a complete misunderstanding of the modern conception of the legal regulations of war as an armed conflict between states. Enemy merchant seamen have, however, for centuries been liable to this treatment, whether they resist capture or not, in consequence of their fitness for use on ships of war, 28 and this fact has an important bearing on the question of their resistance to capture. It may, however, be truly said that by virtue of the Eleventh Hague Convention of 1907, officers and members of the crew of a captured enemy merchant ship who are subjects of the enemy state, are entitled to be released if they give a written promise not to engage while hostilities last, in any service connected with the operations of war (Article 6). But if they refuse to give their parole, and by the laws of some states, such as Spain, they were formerly, at any rate, forbidden to give such promises, 29 they remain prisoners of war; therefore, the crew in defending their ships are defending themselves and their liberty, for release on the terms of the convention is but a modified liberty. The Eleventh Hague Convention recognizes that the crews of merchant ships are liable to be made prisoners of war by providing for their liberation on parole, but Article 8 states that the provisions of the preceding articles allowing release on parole, "do not apply to ships taking part in hostilities." Crews who forcibly resist visit and capture cannot therefore claim to be released they remain prisoners of war. If an enemy merchant ship is called on to stop, the crew can, if they wish, "submit to capture and thereby have their freedom restricted, or they may resist and as a result be overpowered. In case they choose the latter course, their potential membership turns into actual membership in the armed forces of their state, and if overpowered they become prisoners of war. In case they choose the former course, their merely potential membership in the armed forces of their state remains intact, and they must either give parole or become prisoners of war." 30

It would appear, however, that this Convention "is only applicable

28 W. E. Hall, International Law (5 ed.) 407. Hall's note on Bismarck's denial of the right to treat merchant sailors as prisoners of war is emphatic, but, in my opinion by no means too strong. See F. Perels, Das Internationale Seerecht, 191.

29 J. B. Moore, Digest of International Law, VII, 371.

30 L. Oppenheim, op. cit., 164.

between the contracting Powers, and only if all the belligerents are parties to the Convention" (Art. 9). Among the Great Powers, Russia has not signed, and Italy has not ratified the Convention, and many of the other Powers, e. g., Bulgaria, Greece, Montenegro and Servia have not ratified it. When such a Convention is not legally applicable, any of the belligerents may, of course, mutually agree to its terms being carried into effect.

(3) Crews of Armed Merchant Ships are Lawful Belligerents

The chief reason why in land warfare special requirements and organization are necessary to confer the privileges of lawful combatants on armed bodies of men, is to ensure that the peaceful artisan or agricultural laborer shall not change his character from day to day. If he is to have the immunities of a non-combatant, that character must be clear and unequivocal. But even in land warfare, Article 2 of the Hague Regulations makes provision for the exceptional case of the spontaneous resistance of the inhabitants of a territory who rise at the approach of an invader, and grants them belligerent rights if they do not comply with all the requirements of Article 1, but only "carry arms openly and respect the laws and customs of war." The crew of a merchant ship is a body of men acting together in defence of their ship and their liberty, a body of identifiable individuals who by the customary law of nations have received combatant privileges when resisting capture by an enemy war ship. They offer a striking analogy to the spontaneous rising of the inhabitants of an unoccupied territory, who have now received by convention the right which merchant sailors have had for centuries.

IV

A DEFENSIVELY ARMED MERCHANT SHIP, IF ATTACKED, MAY LAWFULLY CAPTURE ITS ASSAILANT

Should the resistance of the crew of a defensively armed, uncommissioned merchant ship be so successful as to enable them to effect the capture of their assailant, such captured ship is good prize as between the belligerents. But the right of the captors to prize money in respect

thereof, is a matter of municipal legislation. The general rule of English law, as stated by an Order in Council of 4 January 1666, was that all ships and goods casually met at sea and seized by any vessel not commissioned do belong to the Lord High Admiral. Some four years later, in order to encourage masters to fight their ships more stoutly against pirates, a statute was passed [22 & 23 Car. II, cap. 9 (1)] modifying this rule and providing that "in case the company belonging unto any English merchant ship shall happen to take any ship, which ship shall first have assaulted them, the respective officers and mariners belonging to the same, shall after condemnation of such ship and goods have and receive to their own proper use such part and share thereof, as is usually practised in private men of war."

The rule of law laid down by the Order in Council of 1666 has been observed in England since that date; such goods and ships taken by uncommissioned ships belong to the Crown as Droits of Admiralty. The present law is contained in the Naval Prize Act, 1864, section 39: "Any ship or goods taken as prize by any of the officers and crew of a .ship other than a ship of war of Her Majesty shall, on condemnation, belong to Her Majesty in Her office of Admiralty." The Naval Prize Bill introduced in 1911, and rejected by the House of Lords, contained a similar clause.

The law of France was formerly the same as that of England, but to-day the prize is given to the captor. A similar rule prevails in Holland.31

31 En France, sous l'ancien régime, les prises faites en se défendant étaient acquises à l'amiral "dont la générosité le portait, la plupart du temps, à en faire don au capteur, en récompense de sa bravoure," au témoignage de Valin et d'Emerigon. Aujourd'hui, aux termes de l'art. 34 de l'arrêté du 2 prairial an xi, la prise faite par un bâtiment attaqué qui parvient à s'emparer de l'aggresseur est acquise au capteur; l'art. 34 a été assez fréquemment appliqué par le Conseil des Prises dans les guerres de l'Empire. La même règle est admise, notamment en Hollande." C. De Boeck, Propriété privée, § 212. Prof. de Boeck adds the following footnote: "Quant à la prise qu'un navire non commissionné et armé pour sa défense aurait faite en attaquant, elle est bonne quant à l'ennemi, mais confisquée au profit de l'Etat; l'auteur pourra même être poursuivi et condamné comme pirate."

See also Abdy's edition of Kent's International Law, 246; E. Nys, Le Droit International (1906), III, 181.

V

THE POSITION OF NEUTRAL GOODS ON BOARD DEFENSIVELY ARMED MERCHANT SHIPS

The re-introduction of the armed merchant ship raises another question which is of importance to neutrals, viz., how far a neutral merchant has a right to lade his goods on board an armed enemy vessel, and what will be the consequence of resistance on the part of the enemy master. This question was discussed by the prize courts of Great Britain and the United States during the war of 1812-14. The cases dealing with this matter are the Fanny 32 in England and the Nereide 33 and the Atalanta 34 in the United States. In the Fanny neutral goods were laded on an armed merchant ship furnished with letters of marque, the neutral having knowledge of the facts. Sir W. Scott held that a ship furnished with a letter of marque was manifestly a ship of war, and could not be otherwise considered though she acted in a commercial capacity. The mercantile character being superadded did not predominate over or take away the other. A neutral subject was entitled to put his goods on a belligerent merchant vessel, subject to the right of the enemy, who might capture the vessel but who had no right, under the modern practice of civilized states, to condemn the neutral property. Neither would the goods of the neutral be subject to condemnation, although a rescue should be attempted by the crew of the captured vessel, for that was an event which the merchant could not have foreseen. But if he put his goods on board a ship of force, which he had every reason to presume would be defended against the enemy by that force, the case then became very different. It was clear, he held, that if a party acted in association with a hostile force, and relied upon that force for protection, he was pro hoc vice to be considered as an enemy. In the American case of the Nereide, which was subsequently affirmed in the Atalanta, the court was divided. Five judges sat, two (one of whom was Chief Justice Marshall) decided in favor of the neutral claimant; two (one of whom was Mr.

32 1 Dod. 448.

33 9 Cranch, 387.

343 Wheaton Rep. 400. See on this subject Wheaton, Elements, § 529 and Dana's note; R. Wildman, Institutes of International Law, II, 126.