also barges propelled by sweeps and by poling and non-sea-going floating derricks or wrecking boats without means of propulsion, which are the property of private citizens.83

6. "When a cargo consigned to an enemy is captured on an enemy's vessel, title in a neutral claimant will not be sufficiently established by proof that he has made advances for the purchase of the cargo, and has paid drafts drawn on him for the amount of the advances, which drafts are accompanied by bills of lading endorsed in blank."

7. A vessel owned by a Spanish corporation, having a Spanish registry and sailing under a Spanish flag and a Spanish license, and being officered and manned by Spaniards, must be regarded as a Spanish ship, no matter if some individual stockholders are neutrals or if the vessel was insured against the risks of war by neutral underwriters.

8. No damages accrue to the claimants of a released vessel where probable cause for capture existed at time of seizure, even though the right to condemnation has been taken away by a subsequent proclamation.

9. Where a nation intervenes in an insurrection and allies itself with the insurgents, merchantmen belonging to the latter will be considered as enemy property. Citizenship and not individual sentiments will be regarded as the test of enemy or non-enemy character.

10. The transfer of vessels flagrante bello cannot be sustained if subjected to any condition by which the vender retains an interest in the vessel or its profits, a control over it or a right to its restoration. And the burden of proof in respect to the validity of the transfer is on the claimant.

83 U. S. v. Dewey, 188 U. S. 254.

II. Incidentally the decisions establish that the American courts regard the taking of prizes before a declaration of war by Congress as perfectly legal.s

The most important one showing an advance over general practice is the rule regarding fishing boats and small barges. It is noteworthy that in the execution of the proclamation the judiciary showed a greater liberality than the letter required, probably greater than the executive intended.

A great number of writers express regret that the United States did not go farther in the late war and deny to men-of-war the right to capture merchant vessels engaged in the peaceful pursuit of international trading as long as they carry strictly lawful goods and not contraband. They point to the state of almost complete inviolability of enemy private property on land, and to the steps that have been taken in the abolition of privateering, and to the well-known sympathy, expressed in 1856 and repeated since, for the immunity of private property at sea. As a matter of fact a movement was started in Congress to secure an application of the principle in the war with Spain. Mr. Gillett, of Massachusetts, proposed a resolution to that effect in Congress. It was referred to the Committee on Foreign Affairs, but failed owing to a belief that

84 Cf. articles on "The Law of Prize as affected by Decisions upon Captures made during the Late War between Spain and the United States," Columbia Law Review, Vol. I, p. 141. Also "Recent Development and Tendency of the Law of Prizes," Yale Law Review, Vol. XII, p. 306, March, 1906; “Maritime Law in the Spanish-American War," Political Science Quarterly, Vol. XV, p. 399; Review of Reviews, Vol. XIX, p. 563.

Spain would not reciprocate and to an unwillingness to enforce a self-denying ordinance.85

Le Fur, the French publicist, takes exception to the conduct of the United States navy at the bombardment of Manzanillo on July 18. Three Spanish merchant vessels and four gunboats were destroyed during the engagements. The destruction of the gunboats and of one of the merchant vessels, the Purisma Concepcion, which had been employed as a transport of arms and munitions of war, was admissible, but he regarded the destruction of the others as unjustified. "These vessels," he says, "may be seized but not destroyed, when their destruction had no other result than to inflict a damage upon an enemy subject; such an act will be no more legal than the destruction or burning of a house belonging to an enemy subject, a deed clearly contrary to international usage."8 The criticism would stand if the facts as to character were true. The United States authorities claimed, however, that three of the vessels destroyed were transports, one of them a harbor guard and storeship and the others gunboats.87

As a result of the legal controversies growing out of the captures during the war, Congress, by an act of March 3, 1899, abolished naval prizes and bounties for destroying enemy vessels.88

85

55 Congressional Record, April 25, 1898.

88 Le Fur, La guerre hispano-américaine, p. 116.

87

Message and Documents, 1898-1899, Vol. IV, p. 261. Wilson, The Downfall of Spain, p. 395.

88

30 Stat. U. S. 1904.

CHAPTER VII

RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS

It is customary for neutrals, on learning that a war has begun which is likely to affect their interests, to announce to their own subjects the altered condition and to inform them and the belligerents concerning the particular rules of neutral conduct they wish observed. The announcement takes the form of a declaration of neutrality. A declaration of neutrality is an express statement of an intention to remain neutral, and is usually accompanied by a more or less detailed statement of the attitude the neutral proposes to assume on the several subjects which concern neutrals in time of war. In the Spanish-American war the majority of the powers issued declarations of neutrality, the only noteworthy exceptions being Germany and Austria-Hungary. Germany had made it a practice to abstain from the formality for at least a quarter of a century. While the imperial authorities deny the necessity of a formal declaration of neutrality, they uniformly publish in the leading imperial papers official notes of an intention to observe strict neutrality in all relations with the belligerents.1 These notes have the effect of warning German subjects in a general way of their peculiar duties and obligations during the war. The importance of declarations of neutrality arises from the indefiniteness in international 1Le Fur, La guerre hispano-américaine, p. 126.

law of certain of the duties and rights of neutrality. It cannot be said that a declaration affects the status of the neutral, or increases or diminishes its rights and duties. In its main aspect the declaration announces to the world the particular state's municipal law of neutrality and interpretation of the law of nations upon those subjects where usage differs, is doubtful, or where a margin of liberty of action is admitted. Like a formal declaration of war, it has lost with increased facilities for communication much of its former significance and importance. Nevertheless, as long as there are great differences in the law of neutrality it has valid reasons for existence. It at least emphasizes for the benefit of subjects the effect of the war on their conduct, and makes clear the conditions under which they may expect protection in any conflict with a belligerent. It is true that the declarations of many states go no farther than a general prohibition upon non-neutral conduct without an attempt at special statement.

The declaration of neutrality does not in itself bring into life the law of neutrality. That, instead, dates from the first act of hostility committed by one of the belligerents. In the Spanish-American war the neutral status of the non-belligerents began April 22, while the declarations of neutrality bore dates all the way from April 23 to June 20.2

In general it may be said of the declarations of neutrality of 1898 that they differed little from those published on the occasion of other recent wars. The

2 Archives diplomatiques, Vol. 66, pp. 249-53, 360; Vol. 67, Pp. 209-11, 323 ff.