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port after such warning or after the various dates prescribed might be treated as having voluntarily assumed the risk of capture, and therefore properly exposed to it. The precedent of 1854 was followed in the Prussian-Austrian war of 1866. For example, the Prussian ministerial declaration, June 21, 1866, provided:

Austrian merchant vessels which are now in Prussian ports, or whose masters, unaware of the breaking out of the war, may enter Prussian ports, shall, on condition of reciprocity, have six weeks reckoned from the day of their entry into port to land their cargo and to go away with a new cargo, contraband of war excepted. On the expiration of this term they must leave port. Austrian merchant vessels whose masters are aware of the breaking out of the war are not permitted to enter a Prussian port.3

In the great war of 1870 France granted a leave of thirty days, as appears from the following:

Merchant vessels belonging to the enemy which were actually in the French ports, or which entered the ports in ignorance of the war, were allowed a delay of thirty days for leaving, and safe-conducts were given them to return to their port of despatch or of destination. Vessels which took in cargoes for France, or on French account, in enemies' or neutral ports before the declaration of war, were not subject to capture, but were allowed to disembark their freights in the French ports, and afterwards received safe-conducts to return to their ports of despatch.*

These European precedents were followed by the United States in the Spanish-American war of 1898. In the President's proclamation, dated April 25, 1898, for the government of the officers of the United States during the war with Spain the fourth rule read as follows:

4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term: Provided, That nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for

3 Moore, Inter. Law Digest, sec. 1196.

4 Halleck, Inter. Law (3d ed., by Baker), Vol. I, 532, note.

The Sublime Porte does not consider it just that, agreeab usage, an embargo should be laid upon Russian merchant cordingly, they will be warned to proceed within a peric hereafter to the Black Sea or to the Mediterranean, as t

The Christian governments did not lag behind : Mahomet, for the Russian Government granted full !' vessels in its ports to return to their destination t of November. For example, on March 27, 1854 following declaration :

ARTICLE 1. Six weeks from the present date. ships of commerce to quit the ports of France which are not actually in our ports, or which 11 Russia previously to the declaration of war, me and remain there for the completion of thei May, inclusive.

Great Britain issued a similar decla Further indulgences were afterward which had sailed for English and Fr 1854, and Russia on its part allowe six weeks from April 25, 1854, to l Russian ports in the Black Sea, th and six weeks from the opening of the White Sea.2

We thus see that the right of nized in the Crimean war, but fo' Government, the great maritim and Russia, while recognizing to free from capture and con in their respective ports and to to unload their cargo and Capture is always a harsh n capture and confiscate me could not know

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iberal and extensive interpretation e two or more interpretations were the belligerent in favor of whom the vision that "Spanish merchant vessels e United States shall be allowed until ng their cargoes and departing" might, 1 to include (1) only vessels in port on n was issued, namely, April 26, or (2) day on which war was declared by Connot only those then in port, but also any or before May 21, whether before or after ar or the issuing of the proclamation. The pretation. While the proclamation did not vessels which had sailed from the United ment of the war, such vessels were, said Mr. within its "intention," under the liberal cont felt bound to give it. In view of the fact, e of the capture the proclamation of April 25, el would have been liable to condemnation, had ion was awarded without damages or costs.

Japanese war likewise followed the enlightened n the Crimean war. For example, the Imperial e of February 9, 1904, provided that

ssian merchant ships which happen to be moored in at the time of the issue of the present rules may their cargo and leave the country not later than

sian merchant ships which have left Japan in acthe foregoing article and which are provided with a ate from the Japanese authorities shall not be captured rove that they are steaming back direct to the nearest or a leased port, or to their original destination; this however, not apply in case such Russian merchant ships uched at a Russian port or a leased port.

Imperial Russian order of February 14, 1904, provided

ese trading vessels which were in Russian ports or havens at the the declaration of the war are authorized to remain in such ports utting out to sea with goods which do not constitute articles of and during the delay required in proportion to the cargo of the but which in any case must not exceed forty-eight hours from the of the publication of the present declaration by the local authorities.

their voyage), or any other article prohibited or contraband of war, or any despatch of or to the Spanish Government.

The Spanish Government issued a royal decree, dated April 23, 1898, which permitted, five days from the date of publication, the departure of American ships from Spanish ports. It was not so liberal as the American proclamation, for the Spanish decree did not in terms prohibit the capture of the American merchantmen after their departure nor did it provide for the entrance and discharge of American ships sailing for Spanish ports before the war. As no captures were made by Spain, the exact nature and extent of the immunity were not tested before a prize court. The President's proclamation, however, was passed upon by the courts of the United States, and the interpretation thereof was liberal, in accordance with its spirit. The leading case on the subject is the Buena Ventura (1899, 175 U. S., 384). The vessel in question was a Spanish merchant ship captured on the morning of April 22, 1898, some eight or nine miles off the Florida coast. At the time of capture the vessel was on a voyage from Ship Island, Mississippi, to Rotterdam, by way of Norfolk, Va., with a cargo of lumber. She arrived at Ship Island March 31, 1898, and sailed for Rotterdam April 19, with a permit, obtained in accordance with the laws of the United States, to call at Norfolk for supply of bunker coal. When captured on April 22 she made no resistance, had on board no military or naval officer, and carried no arms or munitions of war. The question at issue was therefore whether the vessel could be brought within the exemption of the fourth rule of the proclamation of 1898 as to "Spanish merchant vessels, in any ports or places within the United States." In delivering the opinion of the Supreme Court, Mr. Justice Peckham observed, to quote the language of Professor Moore - 5

that the vessel in question, as a merchant vessel of the enemy carrying on an innocent commercial enterprise at or just prior to the time when hostilities began, belonged to class which the United States had always desired to treat with great liberality, and which civilized nations had in their later practice in fact so treated. The President's proclamation

5 Digest of Inter. Law, sec. 1196.

should therefore receive "the most liberal and extensive interpretation " of which it was capable, and where two or more interpretations were possible the one most favorable to the belligerent in favor of whom the proclamation was issued. The provision that "Spanish merchant vessels. in any ports or places within the United States shall be allowed until May 21, 1898, inclusive, for loading their cargoes and departing" might, said the learned justice, be held to include (1) only vessels in port on the day when the proclamation was issued, namely, April 26, or (2) those in port on April 21, the day on which war was declared by Congress to have begun, or (3) not only those then in port, but also any that had sailed therefrom on or before May 21, whether before or after the commencement of the war or the issuing of the proclamation. The court adopted the last interpretation. While the proclamation did not. in so many words include vessels which had sailed from the United States before the commencement of the war, such vessels were, said Mr. Justice Peckham, clearly within its "intention," under the liberal construction which the court felt bound to give it. In view of the fact, however, that at the time of the capture the proclamation of April 25, without which the vessel would have been liable to condemnation, had not been issued restitution was awarded without damages or costs.

The recent Russo-Japanese war likewise followed the enlightened practice dating from the Crimean war. For example, the Imperial Japanese ordinance of February 9, 1904, provided that

ARTICLE 1. Russian merchant ships which happen to be moored in any Japanese port at the time of the issue of the present rules may discharge or load their cargo and leave the country not later than February 16.

ART. 2. Russian merchant ships which have left Japan in accordance with the foregoing article and which are provided with a special certificate from the Japanese authorities shall not be captured if they can prove that they are steaming back direct to the nearest Russian port, or a leased port, or to their original destination; this measure shall, however, not apply in case such Russian merchant ships have once touched at a Russian port or a leased port.

And the Imperial Russian order of February 14, 1904, provided

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Japanese trading vessels which were in Russian ports or havens at the time of the declaration of the war are authorized to remain in such ports before putting out to sea with goods which do not constitute articles of contraband during the delay required in proportion to the cargo of the vessel, but which in any case must not exceed forty-eight hours from the time of the publication of the present declaration by the local authorities.

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