capture because such vessels are primarily engaged in commercial ventures, and the shore population is not immediately dependent upon them. This position is fully discussed in the case of the Paquete Habana (175 U. S., 677), with the following conclusions:

The review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast-fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in any such way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce.

(c) Should the words "or other" in line 5 of Article 14 be stricken out? Why?

The words "or other" should not be stricken out. The action following could be justified not only on the ground of military necessity, but also on other grounds, as in case of dangerous epidemic on a captured ship, etc.

Article 15.

Merchant vessels of the enemy that have sailed from a port within the jurisdiction of the United States, prior to the declaration of war, shall be allowed to proceed to their destination, unless they are engaged in carrying contraband of war or are in the military service of the enemy.

Merchant vessels of the enemy, in ports within the jurisdiction of the United States at the outbreak of war, shall be allowed thirty days after war has begun to load their cargoes and depart, and shall thereafter be permitted to proceed to their destination, unless they are engaged in carrying contraband of war or are in the military service of the enemy.

Merchant vessels of the enemy, which shall have sailed from any foreign port for any port within the jurisdiction of the United States before the declaration of war, shall be permitted to enter and discharge their cargo and thereafter to proceed to any port not blockaded.

(For the discussion and final opinion of the Conference upon Article 15 as a whole, see page 57 and page 63. It was as set forth in the form of an amended article of the code as follows:

"In absence of treaty governing the case, the treatment to be accorded private vessels of an enemy sailing to or from a port of the United States prior to the beginning of a war, or sojourning in a port of the United States at the beginning of a war will be determined by special instructions from the Navy Department.")

(a) Should the word "private" be inserted for the word "merchant" in all instances in Article 15?

The word "private" should be inserted in the place of the word "merchant" in line 1, of Article 15. In other cases the word "merchant" may remain. There should be some provisions in the code for the sojourn, etc., of private vessels other than merchant vessels.

(b) Is not the first paragraph of Article 15 too liberal in its provisions?

The first paragraph of Article 15 is more liberal than has been admitted generally in earlier practice and from the point of view of many well qualified to give an opinion is too liberal, even considering the fact that the United States has uniformly been a leader in favoring the freedom of commerce. (See Questions on Article 15, page 57 ff.)

(c) How should the words, "war has begun," line 9, of Article 15, be interpreted?

The words "war has begun" must be interpreted, in case a declaration is issued, as from the date of the declaration, and in case of no declaration, as from the first outbreak of hostilities.

(d) Should a vessel of the enemy under the rule of the last paragraph of Article 15 be allowed to enter and discharge its cargo at a port for which it had regularly sailed before the declaration of war, even though that

port is blockaded, and thence "proceed to any port not blockaded?"

I. This case supposes that a port within the jurisdiction of the United States before the declaration of war has passed into the jurisdiction of the enemy and is blockaded by the United States, and that a merchant vessel of the enemy sailed for the port before the declaration of war.

II. Or, again, it is assumed that this rule allows free trade with the territory which has passed from the United States jurisdiction into the hands of the enemy, provided the merchant vessel of the enemy shall have sailed from the foreign port before the declaration of

war.

III. Or, again, would this rule not apply to ports within the jurisdiction of the enemy at the time of sailing before the declaration of war but within the jurisdiction of the United States at the time of arrival of the vessel?

While the rule as it stands possibly might provide for such a case or such cases, manifestly such is not the intent of the rule.

The rule as it should read would provide for that class of enemy vessels which before the declaration sail for ports within the jurisdiction of the United States. The clause should therefore read: "Merchant vessels of the enemy, which before the declaration of war shall have sailed from any foreign port for any port within the jurisdiction of the United States." In regard to the last clause of the last paragraph, however, a question may be raised. This clause permits the vessel to proceed to any port not blockaded. The wording would naturally prohibit departure to a port of the United States blockaded by the enemy as well as to ports of the enemy blockaded by the United States forces. This requirement may not always be advisable. Further, it allows the departure to certain other ports to which it might be advisable to prohibit sailing either from the nature of the port or from the nature of the service rendered by the vessel.

This clause seems too liberal and it would be advisable to retain the naming of the port of destination within the power of the United States, as the United States has permitted the entrance and departure of the vessel. The clause may therefore better read "thereafter to proceed to any port which the United States shall permit;" also in second line from end change "permitted" to "allowed."

The aim of this change is to retain for the United States fuller jurisdiction of enemy vessels in port during war, while not depriving them of reasonable freedom. (e) Should this article be rewritten? If so, how should it read?

QUESTIONS ON ARTICLE 15.

The first question is raised in regard to the vessels that are known as auxiliary or volunteer navy. Should these while still engaged in mercantile transactions be treated as private vessels under Article 15 or shall they be regarded as public vessels? There is a considerable difference of opinion in regard to the character of these vessels. Some regard such vessels within the prohibited class under the Declaration of Paris; and others regard them as legitimate and necessary under the present system.

Hall speaks of the volunteer navy as follows: "The sole real difference between privateers and a volunteer navy is then that the latter is under naval discipline, and it is not evident why privateers should not also be subjected to it. It can not be supposed that the Declaration of Paris was merely intended to put down the use of privateers governed by the precise regulations customary up to that time. Privateering was abandoned because it was thought that no armaments maintained at private cost, with the object of private gain, and often necessarily for a long time together beyond the reach of the regular naval forces of the state, could be kept under proper control. Whether this belief was well founded or not is another matter. If the organization intended to be given to the Prussian volunteer navy did not possess sufficient safeguards, some

analogous organization no doubt can be procured which would provide them. If so, there could be no objection on moral grounds to its use; but unless a volunteer navy were brought into closer connection with the state than seems to have been the case in the Prussian project it would be difficult to show as a mere question of theory that its establishment did not constitute an evasion of the Declaration of Paris.

"The incorporation of a part of the merchant marine of a country in its regular navy is, of course, to be distinguished from such a measure as that above discussed. A marked instance of incorporation is supplied by the Russian volunteer fleet. The vessels are built at private cost, and in time of peace they carry the mercantile flag of their country; but their captain and at least one other officer hold commissions from their sovereign, they are under naval discipline, and they appear to be employed solely in public services, such as the conveyance of convicts to the Russian possessions on the Pacific. Taking the circumstances as a whole, it is difficult to regard the use of the mercantile flag as serious; they are not merely vessels which in the event of war can be instantaneously converted into public vessels of the state, they are properly to be considered as already belonging to the imperial navy. The position of vessels belonging to the great French mail lines is different. They are commanded by a commissioned officer of the navy, but so long as peace lasts their employment is genuinely private and commercial; means is simply provided by which they can be placed under naval discipline and turned into vessels of war so soon as an emergency arises. They are not now incorporated in the French navy, but incorporation would take place on the outbreak of hostilities." (Internațional Law, 4th ed., p. 549.)

Of volunteer and auxiliary navies briefly it may be said: "The relationship of private vessels to the state in time of war, which had been settled by the Declaration of Paris in 1856, was again made an issue by the act of Prussia in the Franco-German war. By a decree of July 24, 1870, the owners of vessels were invited to