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marily in the principles of law to which prize courts have habitually adhered. These principles to which American prize courts have professed obedience are (1) the principle that title does not pass until decree of a prize court, (2) the law applied by prize courts is the law of nations, (3) statutes and orders should be interpreted if possible so as not to conflict with international law, (4) treaties, including law making international conventions, are to be applied as part of the law of the land. So long as these principles are adhered to by discreet courts the national duties of this character will undoubtedly be fulfilled. Yet on account of the inevitable tendency of even the most conscientious judges to be swayed by national partisanship the establishment of the international prize court with a final jurisdiction in cases involving neutrals would be a most important addition to these sanctions of neutral rights. The United States has signed the international prize court convention and the senate has recommended ratification. The same is true of the Declaration of the London naval conference designed to serve as a law to be applied by that court. It has therefore done the most in its power to add this sanction also for the enforcement of its duties as a belligerent. CHAPTER XII. OBLIGATIONS OF PREVENTION.


A belligerent state while acting in that capacity is for the most part represented by its army and navy. The part of international law defining the obligations of belligerents to neutrals therefore consists to a considerable extent of rules of conduct for such agencies of government. The land and naval forces may be controlled by municipal law. The obligations of prevention require a state to exercise this control and prevent infractions of international law by its armed representatives.

With the theory of territorial state sovereignty, neutral states have a right, in war as well as in peace, to exclusive control of their territory. As has been noted they are under an obligation to vindicate this right by interning armed forces of a belligerent violating their territory. The belligerent is under an equal obligation to respect this right by preventing such violations of neutral territory.

Although with a strict application of the theory of territorial sovereignty the state's interest in its citizens would vanish as soon as he leaves its frontiers, the actual law recognizes that states have a limited right to protect their citizens on the high seas and in foreign countries. Belligerents must respect this right and prevent injury to such persons and illegal destruction of their property. We may therefore classify the obligations here considered into those of preventing (1) violations of neutral territory, and (2) injury to neutral persons and property. Reserving this as a secondary classification, we will divide the obligations of prevention primarily into those relating to (1) acts by the land forces and (2) acts by naval forces.

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The probability of land forces violating neutral territory or injuring neutral individuals is much less than in the case of naval forces, yet the United States has recognized by treaty the duty of preventing its land forces performing certain acts. 1For exceptions to this general statement see supra p. 45 et seq.


(1) By the Hague conventions, a belligerent is forbidden to violate neutral territory by moving troops or convoys of military material across it, erecting wireless stations or other means of communication, or by recruiting corps of combatants thereon. It would therefore appear to be incumbent upon the United States to prevent its land forces performing any of these acts on neutral territory in time of war.

There appear to have been no cases of prosecution of army officers for violating neutral territory in time of war, but in an opinion of the judge advocate general in 19083 it was stated that the armed forces of the United States should not be permitted to penetrate neutral territory in the process of enforcing the neutrality laws. In the army regulations relating to garri. son inspection the inspectors are required to see that the commanding officer is properly executing the laws relating to neutrality and the regulations concerning international courtesy, so far as applicable to his post.*

(2) The United States has recognized its duty to prevent the injury of neutral persons through seizure of property on land, in the Hague Conventions. The general prohibitions relating to seizure of enemy property on land apply to neutrals in enemy territory, and special provisions are included requiring compensation in case railway material is requisitioned. By the principles of Anglo-American law the status of property depends upon its territorial location rather than the nationality of the owner; consequently neutral property on enemy territory is subject to the same consideration as enemy property in that situation. This question will be more fully considered in deal

2 Hague Conventions, 1907, Malloy, p. 2297, v, Art. 1-3.

3 Digest of Opinions of the Judge Advocates General of the Army, 1912, C. R. Howland, ed., p. 106.

*Army Regulations, 1913, sec. 889, p. 171-172.
5The Hague Conventions, v, Art. 19, Malloy, P. 2297.

On the enemy character of the produce of enemy soil see, Thirty Hogshead of Sugar vs. Boyle, 9 Cranch 191, The Prize Cases, 2 Black 635, 671. On the enemy character of property of citizens or neutrals domiciled in enemy territory, see, Chester vs. The Experiment, Fed. Court of Appeals, 2 Dall. 41, (1787); U. S. vs. Gillies, Pet. C. C. 159; The Venus, 8 Cranch 253, (1814); The Frances, 8 Cranch, 335, 363, (1814); The Mary and Susan, 1 Wheat. 46; Rogers vs. Amado, Newb. Adm. 400; The William Bagley, 5 Wall. 377; Gates vs. Goodloe, 101 U. S. 612; Mrs. Alexander's Cotton, 2 Wall. 404, 419. On the general subject see Moore's Digest, 7:424-434.


ing with the law of war. Suffice it to say here that the Instructions for the government of the armies? state, and the courts have reiterated that private property cannot be seized on land except by requisition in case of necessity, unless an act of congress especially permits.

In a number of treaties the United States has agreed not to draft resident subjects of the other contracting power for military service in case of war. With the exception of treaties relating to claims for injuries in specific cases, 10 these treaties * appear to contain the only formal provisions imposing duties upon the United States in reference to the injury of persons of neutral states in land warfare. Whether or not a belligerent state is responsible for injuries received by aliens resident in its territory, due to the exercise of martial law, or the conduct of actual hostilities, is not altogether clear in international law. 11 Undoubtedly a state is bound to prevent its armed forces unnecessarily and wantonly injuring neutral residents,12 but it seems clear that it is under no such duty when the actual prosecution of military movements creates a necessity.1 The neutral alien assumes the risk of his residence. No statutes, regulations or official opinions of the military law of the United States appear to bear on this point, if we except the provisions relating to the usual exemption of enemy private property contained in

?Instructions for the government of the armies of the United States in the Feld, Art. 38; Printed in The Military Laws of the United States, 1911, p. 1079; Naval War College, International Law Discussions 1903, p. 122,

8 Brown vs. U. S., 8 Cranch 110, (1814).

•Treaties with Argentine Republic, 1843, art. 10, Malloy, p. 23; Congo, 1891, art. 3, P. 329; Costa Rica, 1851, art. 9, p. 344; Dominican Republic, 1867-1868, art. 2, p. 404; France, 1788-1798, art. 14, p. 495; Hayti, 18641905, art. 8, p. 923; Honduras, 1864, art. 9, p. 955; Italy, 1871, art. 3, p. 970; Japan, 1894, art. I, p. 1029; Mexico, 1831-1881, art. 9, p. 1088; Paraguay, 1859, art. II, p. 1367; Servia, 1881, art. 4, p. 1703 ; Tonga, art. 9, p. 783; Two Sicilies, 1855-1861, art. 5, p. 1816; Venezuela, 1860-1870, art. 2, p. 1846.

10 Treaty of Washington, with Great Britain, 1871, art. 12, Malloy, p. 705. The commission provided allowed Great Britain $1,929,819 for injuries to British subjects during the Civil war. See note Malloy, p. 705. Treaty with France, 1880, Malloy, p. 535. France was awarded $625,566.35 for injuries to her subjects during the Civil war. Malloy, p. 539.

11 Moore's Digest, 6;883-926 12 Moore's Digest, 6;918-922. 13 Moore's Digest, 6;883-894.

Lieber's instructions.14 Military commissions undoubtedly have a jurisdiction to punish acts forbidden by the treaties mentioned, but the protection of resident neutrals during war is largely left within the discretion of the president as commander in chief of the army, and subordinate military authorities with delegated powers.

(3) As the actual enforcement of the state's duties of prevention in relation to the army depends upon the method of control exercised, some attention may be given to this point.1

13 The discipline of the army is to a large extent governed by formal rules, but these rules are to a considerable extent enforced by the discretionary authority of high military officers. In the field covered by constitutionally enacted congressional statutes, the army is bound beyond the authority of any executive or military officer to transcend, but in matters relating purely to the conduct of war it is doubtful whether congress has the power to control the army by statute.16

This does not, however, mean that the army is unregulated by law. It has a system of law of its own, known as military law, administered by its own officers and courts. The president as commander in chief has complete discretion as to the movements of the army except so far as limited by the constitution and acts of congress within the competence of that body.17 While the president's authority is discretionary and may be altered at will, as a matter of fact it is exercised by means of more or less permanent regulations and instructions issued as general orders. These regulations have the force of law while operative,18 and, together with statutes and constitutional provisions, their interpretations found in judicial decisions and

14 Lieber's Instructions, art. 38, Military Laws, 1911, p. 1079.

15The statutory laws relating to the control of the army, annotated with references to court decisions and opinions of attorneys general and judge advocates general, may be found in The Military Laws of the United States, 1901, ed. by G. B. Davis, with a supplement to 1911, ed. by J. B. Porter. The Digest of Opinions of the Judge Advocates General of the Army, published in 1912, also contains references to statutes, cases and opinions of attorneys general bearing on the various points.

16On the independence of the president see Military Laws, 1911, p. 5 and notes. See Kendall vs. U. S. 12 Pet. 524, 610; Marbury vs. Madison, i Cranch 137, 166.

17 Military Laws, 1911, p. 5, note 2.

18U. S. vs. Barrows, Fed. Cas. 14,529; Dig. of Op. of Judge Ad. Gen., 1912, p. 681.

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