Nevertheless, the case is different. Aside from the material difficulties which seem to distinguish property which once belonged to the interned army and now belongs to its enemy, it is important not to overlook that right of capture in war grants to each belligerent absolute and unrestricted ownership of the armaments and military effects which it captures from the enemy. The neutral state might impose a sort of rescission of title perhaps long antecedent to the moment of intervention.

There is another consideration — a practice in civil law which should not be lost sight of, because it goes further than international rule. Even those tribunals in which the recovery of personal property has the greatest latitude hold that for third parties possession is equal to title. Only a judge has sufficient authority to intervene between interested parties and deprive one of them of possession, granting it to the other. It is not proper for a neutral state to take unto itself judicial functions and decide between the belligerents with respect to the rights of either to confiscated material of war. A written regulation upon the matter in these conventions would completely deprive the contending nations of their liberty to decide at the close of the war as to the destination of that material. Rightly, then, the authors of the proposition refrained from insisting upon the amendment and kept silent regarding the regulations which the conference should adopt.

11. Neither was it thought necessary to expressly include the Danish proposition concerning the mobilization of military forces by a neutral state. It deals with an undeniable right, but subordinated in its exercise to numerous political exigencies. It might also happen that the defense of neutrality might serve as a pretext for mobilization with really other intentions. It was expedient not to mention explicitly such a contingency, which the plenary conference did not discuss.

12. The result of the amendments to which we have referred, and of the study of the problems alluded to, was a draft of a declaration concerning the rights and duties of neutral states in land warfare, which the conference approved unanimously and without any reservation at the plenary session, September 7, 1907. The text is as follows:

ARTICLE 1. The territory of neutral powers is inviolable. ARTICLE 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral power.

ARTICLE 3. Belligerents are likewise forbidden to

(a) Erect on the territory of a neutral power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;

(b) Use any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes, and which has not been opened for the service of public messages.

ARTICLE 4. Corps of combatants can not be formed nor recuiting agencies opened on the territory of a neutral power to assist the belligerents.

ARTICLE 5. A neutral power must not allow any of the acts referred to in articles 2 to 4 to occur on its territory.

It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory.

ARTICLE 6. The responsibility of a neutral power is not engaged by the fact of persons crossing the frontier separating to offer their services to one of the belligerents.

ARTICLE 7. A neutral power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.

ARTICLE 8. A neutral power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.

ARTICLE 9. Every measure of restriction or prohibition taken by a neutral power in regard to the matters referred to in articles 7 and 8 must be impartially applied by it to both belligerents.

A neutral power must see to the same observation being observed by companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus.

ARTICLE 10. A neutral power which receives escaped prisoners of war shall leave them at liberty. If it allows them to remain in its territory it may assign them a place of residence.

The same rule applies to prisoners of war brought by troops taking refuge in the territory of a neutral power.

ARTICLE 11. The fact of a neutral power resisting, even by force, attempts to violate its neutrality can not be regarded as a hostile act.

13. The conference of 1899, in drawing up the declaration concerning the laws and customs of war on land, included four articles which properly did not belong to the subject, and which are grouped

at the end in a chapter relating to interned belligerents and wounded tended in neutral territory.

One of these articles, the fifty-seventh, declares that a neutral power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theater of war.

It may keep them in camps and even confine them in fortresses or in places set apart for this purpose; and it shall decide whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission.

By article 58, in the absence of a special convention to the contrary, the neutral power shall supply the interned with the food, clothing, and relief required by humanity.

At the conclusion of peace the expenses caused by the internment shall be made good.

By articles 59 and 60 a neutral state may authorize the passage into its territory of the sick and wounded belonging to the belligerent armies, on condition that the trains bringing them shall carry neither personnel nor war material. In such a case, the neutral power is bound to take whatever measures of safety and control are necessary for the purpose.

The sick or wounded brought under these conditions into neutral territory by one of the belligerents, and belonging to the hostile party, must be guarded by the neutral power so as to insure their not taking part again in the military operations. The same duty shall devolve on the neutral state with regard to wounded or sick of the other army who may be committed to its care, the Convention of Geneva being applicable to all the interned under such conditions.

We mention these articles because they form part of the new declaration of the rights and duties of neutral powers in land warfare, adopted at the Second Peace Conference, and because article 57 was the subject of two Japanese amendments given below.

The following is the text of the two amendments in their final form, after modification in the first subcommission of the second commission, on July 10, 1907:

(1) Officers or other individuals connected with the armed forces of a belligerent, interned in a neutral state, can not be given their liberty or authorized to return to their country, except with the consent of the other side, and under the conditions which the latter shall stipulate; and

(2) The parole given to a neutral state by the individuals mentioned in the foregoing article shall be deemed equivalent to a pledge given to the enemy.

These propositions appeared to the comité d'examen too restrictive. If an imminent family misfortune or other unforeseen analogous circumstance imposed the humanitarian duty of authorizing the interned officer to journey temporarily to his country, there might not be opportunity nor sufficient time to consult the enemy, nor should the charity which should inspire the neutral state be affected by the severity of the belligerents.

The report of the committee, without going into these considerations, confined itself to stating that, on account of its exceptional character, the case was among those which do not require any regulation in fixed terms, although the Japanese proposal, inspired by modern precedents, contained a useful suggestion for neutral states who wished to be free from any responsibility.

Accordingly, the text of the declaration of 1899 remained in that particular without modification, leaving the neutral powers at liberty to be guided by circumstances. The four articles to which we have adverted since no amendments were proposed respecting the other three were therefore complete, together with the new regulations, all of which, in fulfillment of this part of the program, were accepted by the Second Peace Conference.

14. In the first and second chapters of the convention an important omission is noted. The rights and duties of neutral powers with respect to the states at war properly include (first) their own territory, (second) foreign territory, and (third) the high seas. Only declarations touching the activity of a state in conducting operations within its own territory are included in the draft convention. There is absolute silence as to the second, and the third has no relation to a convention for rules governing land warfare.

Even with regard to the territory proper of each neutral state,

it can not be said that the rules agreed upon are a perfect code of neutrality. They seem to us, nevertheless, to be of indisputable utility. Even excepting those cases which are omitted and left for settlement in a future conference, certain generally recognized principles are admitted which do not lose anything by being incorporated into an obligatory treaty, and certain cases concerning which controversy was possible and even frequent are settled with precision and good sense.

Moreover, the conference of 1907 did not adopt any rule which entailed a retrocession from established practice or which wounded. the interests or rights of weaker nations. We have observed that in all doubtful cases it was inclined to the most generous and liberal solution. Public opinion should, under the circumstances, be satisfied with this partial codification of the rights and duties of neutral states in land warfare.

For neutral states it has substituted a set of rules in place of the present arbitrary decisions, and states, like citizens in private life, will be the more tranquil and secure the more complete and precise are the laws to which they are subject. More particularly the smaller powers must feel tranquil and gratified each time their duties and functions are made more concrete by international treaty. They are not at the mercy of selfish interests or foreign humor, and are not exposed to difficult complications should they defend their conduct or their duties. They can show a text which is obligatory upon all and before which all must bow.

15. The third chapter of the convention which we shall now consider refers to neutral persons, and the fourth to railway material. Their genesis was different and much more laborious than the first two. They originated in a project presented by the German delegation on the 29th of July, 1907.

We will quote it in full, taking note of the fate it met and of the fact that out of its twelve articles only three slightly modified succeeded in obtaining the definitive acceptance of the conference. Their discussion, nevertheless, caused most interesting debates, which it seems appropriate and opportune to consider.