960

ters in countries where the United States maintains consular courts may issue writs to prevent American citizens enlisting for service against any foreign country, and are authorized to use any military force of the United States available to carry this power into effect.55 Collectors of customs are required to detain vessels “manifestly built for military purposes” leaving ports of the United States when circumstances render an unneutral use probable,56 or, on order of the president, any vessel suspected of carrying arms or supplies to belligerent war vessels hovering outside of the port.57

Armed vessels owned in whole or in part by citizens of the United States, clearing out of ports of the United States, may be required to give bond that they will not be used by the owners themselves to commit hostilities.58 This provision was designed to prevent the use of American owned privateers in war. There would be no breach of the bond if vessels were sold to a belligerent and used by him to commit hostilities. 59

Federal courts are given "authority to hold to security of the peace and for good behavior in cases arising under the constitution and laws of the United States. This provision has been utilized to aid in the enforcement of neutrality obligations of prevention. In the case of United States vs. Quitman,61 arising in 1854, Quitman refused to answer certain questions of a Grand Jury which was investigating alleged violations of neutrality in connection with the Cuban revolution. For this refu

55 Act, June 12, 1860, 12 stat. 77, Rev. Stat. 4090. Consular courts are given jurisdiction over United States citizens promoting “insurrection or rebellion against the government” of the country where the court is located, with power to decree the death penalty provided the United States minister approves. Rev. Stat. sec. 4102. Supra pp. 39, 74.

58 Rev. Stat. 5290, Penal Code of 1910, sec, 17. This provision was suggested by Hamilton's "Instructions to the collectors of Customs of the United States” of Aug. 4, 1793. Am. St. Papers For. Rel., 1:40. The customs collector is liable for detention of vessels without probable cause, see Hendricks vs. Gonzales, 67 Fed. Rep. 351.

57 Act March 4, 1915, 38 stat. 1226.
58 Rev. Stat. sec. 5289, Penal Code of 1910, sec. 16.

59Because of the modern practice of converting merchantmen, although privateering is technically abolished, the provision is not obsolete. It seems probable, however, that it would be wise to extend its provisions to require bonding of vessels against sale to a belligerent, as this is now prohibited by international law. See Fenwick, op. cit. pp. 96, 154.

Bo Rev. Stat. sec. 727, Judicial Code, 1911, 36 stat. 1087, sec. 270. 61U. S. vs. Quitman, Fed. Cas. 16,111, (1854).

sal the court held that under this statute bonds should be required of him to observe the neutrality laws.

62

EXECUTIVE ACTION In addition to the authority given to administrative, judicial and executive officers by statute, much authority exists inherently in such officers to enforce neutrality obligations. The opinion has been expressed that the president as chief executive may perform acts necessary to enforce treaties in the absence of statutory authority. Such matters as preventing abuse of the privilege of asylum by belligerent warships, the passage of troops on neutral territory, and the unneutral use of radio-telegraph stations are prohibited by the Hague conventions as well as customary international law and may be enforced by executive action. Executive orders have provided for the supervision and censorship of radio-telegraph stations, 63 and the detention of vessels suspected of carrying supplies to belligerent warships, 64 on this basis. The shipping of submarines for sale to a belligerent power has also been prevented by executive action. The execu

65 tive disapproval of loans to belligerents, although not required by international law, is another illustration of inherent executive authority in these matters.66

Courts have held that jurisdiction of vessels fitted out in violation of neutrality, or prizes taken by them, is inherent in the admiralty and prize jurisdiction, and may be exercised in the absence of statute.67 A large range of discretionary power to prevent unneutral use of territory or unneutral acts by American citizens undoubtedly exists in revenue officers, marshals and other civil officers of the United States.

COMMERCIAL EMBARGOES

Another class of acts which relates somewhat to the enforcement of duties of prevention are the embargo acts passed at different times. The acts of 1898 and 1914 requiring an embargo on arms under certain conditions have already been mentioned. Of somewhat different character are commercial embargoes, 68 the most important of which were those passed during Jefferson's administration, while the United States was a neutral during the Napoleonic wars in Europe.

There is not and never was a rule of international law which requires a neutral state to prevent shipments of merchandise or of arms to a belligerent or to any one else. This is specifically stated in the Hague Conventions of 1907.69 The selfmade "international law” in the extraordinary Berlin and Milan decrees of Napoleon and the British order in council forbade neutral commerce with practically all of Europe, and it might be inferred that the American Embargo of 1807 to 1809 was in aid, of these decrees. It must be understood, however, that these decrees and orders did not assert that neutral states were under obligations to prevent their subjects engaging in such commerce. They simply asserted that the ordinary rule of self-help, by which belligerents can seize neutral vessels as prize, would be applicable to a much wider range of circumstances than permitted by the ordinary rules of blockade, contraband and unneutral service.

The embargo and non-intercourse acts are therefore to be regarded as rules of domestic policy, dictated by reasons entirely unrelated to international law. It was not to aid in the enforcement of its duties as a neutral either under international law or under the law asserted by Napoleon's decrees or the British orders in council that they were enacted. Their purpose was rather one of retaliation against these extensions of international

law. It is noteworthy that the enactment of the embargo by the United States permitted Napoleon to extend his view of international law even further by his Bayonne decree ordering the seizure of all United States vessels at sea on the ground that he was simply helping the United States enforce its own law. This view was of course unwarranted. No domestic law of the United States could add to the belligerent rights of either party to the

war.

INTEROCEANIC CANALS

The United States has recognized special obligations of prevention as encumbent upon it in relation to the Panama Canal, by treaty, and has provided for their enforcement by executive orders. In its treaties with New Granada, (now Colombia) of 1846,72 and with Nicaragua of 1867,13 the United States guaranteed the neutrality of any canal that might be constructed in either of these countries. In the Clayton-Bulwer treaty with Great Britain of 1850,74 the two countries agreed jointly to guarantee the neutrality of any interoceanic canal in the central American region, but it was provided that neither should exercise exclusive control of such a canal. The Hay-Pauncefote treaty of 190175 superseded this treaty. Great Britain accorded the United States the right to construct and maintain a canal and to provide regulations for managing it. The United States agreed to adopt substantially the rules of the Suez canal convention to ensure its neutralization. Specific regulations require the United States to prevent, in the canal or adjacent waters to

a three mile limit, blockades, the exercise of belligerent rights, hostile acts, the revictualing of belligerent vessels, the embarkation or disembarkation of troops or munitions of war except in case of accidental hindrance of transit. It must compel vessels to complete transit with the least possible delay and must enforce the twenty-four hour stay and twenty-four hour interval rules. To perform these duties the United States is authorized to use necessary military force.

In its treaty of 1903 with the Republic of Panama76 the United States guaranteed that country's independence and was

71 Bayonne Decree, Am. State Pap., For, Rel., 3;291.
72Treaty with Colombia, 1846, art. 35, Malloy, p. 312.
73Treaty with Nicaragua, 1867, art. 15, Malloy, p. 285.
74Treaty with Great Britain, 1850, Malloy, p. 660.
76 Treaty with Great Britain, 1901, Malloy, p. 782.
76Treaty with Panama, 1903, art. I, 18, 23, Malloy, p. 1349.

77

guaranteed complete sovereign rights in perpetuity over a strip of territory known as the Canal Zone, extending five miles either side of the canal route exclusive of the cities of Panama and Colon. The United States guaranteed the perpeutal neutrality of the canal and agreed to use armed force and if necessary erect fortifications in the canal zone for that purpose.

The canal was completed in 1914 and regulations for its operation and navigation were promulgated by executive order July 9, 1914. Following the outbreak of European war in August, 1914, the president promulgated supplementary rules under date of Nov. 13, 1914,78 designed to carry out treaty requirements for preventing unneutral acts in the canal. The regulations were based on the Hay-Pauncefote and Panama treaties, the Suez Canal convention of Oct. 29, 1888,79 the rule issued thereunder on Feb. 10, 190480 following the outbreak of the Russo-Japanese war, and the general requirements of neutrals as defined in the Hague conventions.81 These rules defined public armed vessels and auxiliary belligerent vessels, for both of which classes it prescribed the rules required by the treaties mentioned. The enforcement of these regulations was ensured by requiring vessels to give written assurances to obey them before entering the canal. In addition to the treaty requirements the regulations forbade the presence of more than six war vessels of one belligerent or its allies in the canal or adjacent waters at a time, and the passage of air craft over the Canal Zone. A protocol was concluded with the Republic of Panama in October, 1914,82 to ensure the cooperation of that republic in carrying out the neutrality requirements that a war vessel be prevented recoaling in the same country within a period of three months. For the purpose of this requirement, the Republic of Panama and the Canal Zone were considered the same country.

77 Rules and Regulations for the operation and navigation of the Panama Canal, July 9, 1914.

78 Proclamation prescribing rules and regulations for the use of the Panama Canal by belligerent vessels, Nov. 13, 1914. For text see Supp. Am. Jour. Int. Law., 9;126, Jan. 1915. See also editorial comment in Am. Jour. Int. Law., 9;167, Jan. 1915.

79 Convention of Constantinople, Oct. 28, 1888, Martens, Nouveau Reeil, ser. II; 15;557; British and Foreign State Papers, 78;18.

80 Rules for the use of the Suez Canal by belligerent vessels, Feb. 10, 1904, British and Foreign State Papers, 102;591.

81 Hague conventions, 1907, xiii, Malloy, p. 2352.

82 Protocol with Panama, 1914, Supp. Am. Jour. Int. Law., 9;128, Jan.