The sun., 1904-08-29
TIE MAKING or NEW INTERNA'
TIONAL Law.

To THE EpIToR OF The suN-ST: The
IFitish Prime Minister, speahing In the HOUSE
OF Commons on the disa asreement with hus-
sia over contraband, recently declared inter-
national law, in respect TO neutrality 10 have
been "in making during the years OF inc
great European war" The period can re
enlarged 80 as TO include the years OF revoit
Of che spanish American colonies and OF the
American civil war; the period OF time from
the first American neutrality law OF l7eA 70
the Treaty at Washin Rton OF 1871 from Ihomas
Jefferson TO Hamilton Fish In the Department
OF State.
Real neutrality had nowhere advanced
beyond the stage OF undeveloped theoty
when the United States. near the CLOSE OF the
eighteenth century, entered upon a career
Of honorable enort In its behalf.
jefferson, while Secretary OF state under
Washington, permanently fxed Its cehua'
point when he informed Genet the French
Minister. that 1T Is the right OF every natioh
to prohibit acts Of sovereignty from peine
exercised by any other within Its limits ana
the duly OF neutral nation to prohibit sucn
a. would injure one of the warning Powers.
Hamilton Fish. while Secretary OF staie
under President Grant. enlarged the oiroie
by a proclamation relating to beiligerent
vessels. issued on Oct. 8. 1870. during the
Franco-German war, and by the negotiation
which settled the Alabama claims.
Jeherson's declaration was, propaDiy.
the first proclamation by a Government that
oaptor must take hts prize before oourV
in his own country, the logical consequence
thereof being that q prize court cannot con-
denim and decree sale while the prize Is IN
neutral waters.
So intelligent and discriminating a modern
English writer on international law ss Mr.
Hall, who is in general quite stinted In praise
Of what the United States has accomplished
for neutral rights. nevertheless concedes
that the policy Of President Washington
constituted an epoch in the development
of the usages OF neutrality" and represented
by far the most advanced opinions then ex-
istng, going even beyond the then "authori-
tative international custom.
During the quarter Of a century, more or
less. of reciprocally vindictive wars between
Great Britain and France. when the former
was q belligeront and the United States q
neutral. and during the four years oil our war
of secession. when the attitude Of the two
nations was reversed. the British Ministry
was persistent in calling upon the United
States faithfully TO apply Its rule regarding
belligeYent acts In neutral waters in favor
Of Great Britain, The response was always
quick and honorable!
II now seems incredible that In the War OF
1912 violations OF neutral ports and waters oy
Great Britain. and the outing out OF American
vessels therefrom, were the rule rather than
the exception.
The American doctrine in relation to such
conduct was by Daniel Webster. when Secre-
tary Of State, declared in the case OF the
Caroline to be that nothing less than "a neces-
sity of self-dsfence, instant. overwhelming.
and leaving no choice Of means and no mo-
ment for deliberation. can excuse q belige-
rent for invading neutral waters in pursuit
of his enemy" Even then. and under all
circumstances. he must do no act OF unrea.
sonable or excessive hostility In neutral
port. and In every case must make atonement
for sovereignty violated.
1t ia now plain enough that by American
Observation-Disclosures executive and judi
oial--belligerent vessels OF war and their
prizes are on the score of humanity entitled,
when in distress from casualties. to tempo
rary refuge in neutral waters. and even when
there is no eXigency OF humanity they may
there enjoy asylum to obtain supplies. in
ouding GOALS. and make repairs. in the sole
discretion Of the neutral, who may-as Con-
gress legislated on the subject In ls:o-alto-
gsther refuse the asylum. or may grant it
on his own terms so as to cover his own safety
and protect his own sovereignty. 1t is also
plain that neutral IL entitled to forbid and
prevent in his Jurisdiction the commission
Of hostilities by belli gerent and that an Offend
ing belligerent must make reparation to the
neutral and return to him captured proper
ty: and the neutral must. on his part, use all
the means he can exert In his jurisdiction
to effect such reparation.
Our Supreme Court has adjudged that II
a capture Is made by belligerent In viola
ton of our neutrality. and the prize ever
comes voluntarily within our jurisdiction.
II must by us be restored to the original own
ers, although in the captor's prize court.
and solely between the owners and the cap
tors. the capture may be valid.
haa al 1Anv hat q
belligerent ship In neutral waters 10 bound to
abstain from exercising force. excepting in
self-defe ence, and II she begins hostilites she
will forfeit neutral protection.
But the law OF nations cannot, without the
consent Of the nations. be made by American.
any more than by Russian. or Japanese, or
English precedents, even when the American
precedsnts are declared and promulgated
by the Supreme Court. sitting In prize, with
whose decisions the Executive does not inter-
fere.
In the case OF the General Armstrong. the
arbitr ator, who was the President Of the French
Republic, decided that Portugal was not re-
sponsible as neutral for the British assault
on the privateer then In the harbor Of Fayal.
inasmuch as her captain. who had entered
the harbor to get water for his crew. did
not in the beginning" invoke Portuguese
protection against the British assailants. and
had recourse to armed force. The dispute
as to whether the General Armstrong or
the British boats began hostilitiea in the
harbor was never altogether cleared up.
Portugal, of course. refused rsparatlon after
the decision Of the arbitrator in 1859, and not
till iseS-nine years ago-was the claim,
after eighty years Of unexampled diplo-
matio, Congressional and judicial vicissitudee.
paid by the State Department under an act
OF Congress. The payment was not author
lied by Congress as demandable Of II by the
law of nations. but as a gift to the descend
ants OF the gallant commander. Capt Reid.
q native OF Connecticut. who died in New York
In 1851.
In the uncertainty In regard to many Of
the details Of international law which gov
ern the rights and duties OF neutrAls and bcl-
ligerents in circumstances now arising In the
Far East which no doubt directly involve
American property. there are many v. ible
dlficulties in the pathway of an American
Executive who would attempt to influence
China on the one hand and Russia or japan
on the other hand. The legal relation OF wire
less teleeraphy to neutrality. the placing OF
mines and the extent for that purpose Of
territorial waters, the treating newspaper
correspondents as spies. are yet to be con-