In view of the recognized position of Shanghai as a great center of international commerce, and of the right to trade there secured by treaties with the titular Government, the request of Mr. Wu Ting Fang, that foreign vessels should not anchor in the usual anchorage on account of being in the line of fire of the forts, appears to needlessly entail inconvenience on American shipping. In the case of actual hostile operations every precaution would of course be taken to prevent any inconvenience to the combatants, but at other times United States vessels should be allowed to enter and leave Shanghai, and carry on their trade in the usual manner. The fact that, to the best of my knowledge, there are no men-of-war in China bearing the flag of the titular Government, effectually removes the necessity of the Woosung Forts having its line of fire cleared for hostilities against nonexistent foes. Very respectfully,

J. B. MURDOCK,

Rear Admiral, U. S. Navy, Commander in Chief, U. S. Asiatic Fleet.

AMERICAN CONSUL GENERAL,

American Consulate General, Shanghai, China.

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Conclusions. From the orders, precedents, and opinions it is evident that foreign States should refrain from interference in domestic political struggles. It is, however, incumbent upon the naval forces to afford such protection to the property and persons of nationals of their own country as may be possible without intervening in the insurrection. They are properly authorized to prevent wanton destruction of the property of nationals or other unnecessarily severe treatment which is not incident to the actual conduct of the hostilities.

Action by insurgents in the line of restraint of the freedom or restriction of the right to exercise ordinary privileges possessed by foreigners must be confined to immediate requirements. Such action can not be taken on the basis of some contingent danger which may or may not materialize.

As the merchant vessel of the United States has on board war material, the insurgents would, under the accepted principles, have the right to keep it from reaching their domestic enemy. This is a right of prevention and not a right which would authorize the insurgents to seize the war material for themselves. As Mr. Hay said in 1902:

No right of confiscation or destruction of foreign property in such circumstances could well be recognized, and any act of injury so committed against foreigners would necessarily be at the risk of the insurgents.

There is, therefore, a question as to where the line of right would run. It certainly would not allow wanton destruction or seizure. It would permit the insurgents to take the action necessary to protect themselves within the area over which they have authority.

The commander of the cruiser of the United States should endeavor to protect the rights of nationals of the United States. At the same time the interests of the United States inay be more important than those of an individual. If the war material is brought to the port simply as a commercial venture, it may be easy to sell the material to the insurgents. If it is brought with view to aid the other party, the insurgents may properly demand that it be taken away or turned over to them on payment of adequate compensation.

Solution I (c).-The commander of the cruiser of the United States should inform the master of the merchant vessel that, while he would endeavor to prevent any wanton seizure of his cargo, he would not interfere with proper action which the insurgents might take to prevent the war material from reaching their opponents.

SOLUTION.

(a) The commander of the cruiser of the United States should, if possible, afford the merchant vessel the necessary protection from visit and search.

(b) If the only reason for the seizure of the merchant vessel is that it was about to enter a port which the insurgents have declared blockaded, the commander should grant the master's request, though the commander might require that the merchant vessel proceed to some other port.

(c) The commander of the cruiser of the United States should inform the master of the merchant vessel that, while he would endeavor to prevent wanton seizure of his cargo, he would not interfere with proper action which the insurgents might take to prevent the war material from reaching their opponents.

SITUATION II.

AIR CRAFT IN WAR.

There is war between X and Y. All other States are neutral. Airships and balloons are in common use. State X has not signed the convention prohibiting the launching of projectiles from balloons.

(a) X brings a balloon to State Z and fills it with gas preparatory to a flight with view to destroying a part of the fleet of Y by dropping explosives from above. The authorities of Y protest that this is a violation of neutrality. What action should be taken?

(b) X so maneuvers a balloon that if it is shot at, the projectile will fall within the territory of State B. What may Y do?

(c) An air craft of State C flies over State X in direction of State Y and easily discerns the location of the naval and military forces of State X.

What action may State X take if the air craft land on its territory?

What may be done if it does not land?

(d) A fleet of Y is maintaining an effective blockade before port O of State X. An aeroplane apparently from a neighboring neutral State flies over the blockading line, enters port O, lands, returns to the neutral State and later on a flight in another direction falls within the three-mile limit of State Y. The aeroplane and occupants are picked up by a vessel of the blockading

force.

How should the aeroplane and occupants be treated?(e) Would the treatment be different if they were picked up from the high sea?

(f) Would the treatment be different if they were picked up within neutral waters?

SOLUTION.

(a) The protest of belligerent State Y should be heeded by neutral State Z.

(b) Y may take any action which would not involve violation of neutral jurisdiction, as would be the case if the projectile should fall in the territory of State B.

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(c) When the neutral air craft lands within belligerent territory it may be detained or other measures may be taken to prevent the disclosure of military move

ments.

While the neutral air craft is still in the air, the belligerent may take such measures as possible to prevent disclosure of his military movements.

(d) If the aeroplane is neutral it should be sent to a prize court for adjudication.

If the aeroplane is belligerent it may be treated as an enemy vessel taken under similar conditions.

(e) The treatment would be the same if picked up from the high sea.

(f) The belligerent would have no military rights over an aeroplane picked up in neutral waters.

NOTES.

Early recognition of military value of balloons.—During the last quarter of the eighteenth century the military value of balloons was recognized and various experiments were made. Giroud de Vilette, about 1783, wrote that from the beginning of his experiments he was convinced that the balloon would be an economical and very useful instrument for observing the position, maneuvers, march, and disposition of the enemy's forces, and for signaling this information to his own troops.

A balloon was used for observation purposes at the battle of Fleurus June 26, 1794. Balloons at the siege of Venice in 1849 were not found satisfactory for the discharge of projectiles. Balloons were used to a considerable extent during the Franco-Prussian War, and von Moltke had confidence in the military usefulness of air craft.

The captive balloon used particularly for observation and signaling purposes offers few problems as to its treatment in time of war, because the identity of the party which it serves or may serve is ordinarily easily determined. Kites and other captive air craft are subject to the same limitations.

Free balloons offer a greater number of problems because it is frequently difficult to determine whether there

is any element of hostility in a balloon which may be passing over. During the Franco-Prussian War persons who had passed the German frontier in balloons were imprisoned and severely treated, and a threat was made that they would be regarded as spies. None were, however, executed, and a few years later it came to be generally recognized that balloonists under such conditions were liable to be made prisoners of war, but were not liable to more severe treatment.

Hague conventions.-The Hague convention, with respect to the Laws and Customs of War on Land of 1899, in article 29, relating to spies, said:

An individual can only be considered a spy if, acting clandestinely or on false pretenses, he obtains or seeks to obtain information in the zone of operations of a belligerent with the intention of communicating it to the hostile party.

Thus soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly the following are not considered spies: Soldiers or civilians carrying out their mission openly charged with the delivery of dispatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver dispatches, and generally to maintain communication between the various parts of an army or a territory.

This article was reaffirmed in the convention upon the same subject at The Hague conference of 1907. A limited. use of balloons is thus permitted.

The discharge of projectiles from balloons was prohibited for a term of five years from 1899 by a declaration agreed upon at the First Hague Peace Conference. The prohibition was extended to analogous methods of discharge. When this convention came up for renewal at the Second Hague Conference in 1907 it was found that the development of the service of aerial navigation had made such progress since 1899 that States which approved the declaration of 1899 were not prepared to renew their adherence. Certain States, however, favored it, and the declaration was again submitted for approval, though only about one-half the States represented at the conference signed at the time.