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There are various other reasons why the claim of the commander is not correct. (1) The enemy's ships must come within the power of the United States commander before they can be made prisoners of war. In this Situation while the enemy's ships are damaged they had not come under the power of the United States commander, and the crews had not, therefore, been made prisoners of war. At no time had the commander had the power to say what should be the disposition of the crews. Before the crews had deserted the vessels they had been under their own flag, and this was still the case after they had left the vessel, provided they had left in their own boats.

(2) On passing within the limits of neutral State Y, the field of belligerent action was passed. The only relations which the vessels of State X could maintain in the port would be peaceful relations. Hence the commander could not in port take prisoners of war without violating the neutrality of State Y.

(3) On going on board the war vessels of States A, B, and C, the crews of the vessels of State X passed within the jurisdiction of those States, and neither neutral State Y nor the United States could presume to exercise jurisdiction over those vessels because of their reception.

Neutral State Y would not interfere, because the crews of the vessels of State X were apparently under their own flag until they had passed under the flags of A, B, and C. Even if the crews had been compelled to enter the water without boats, and had been obliged to swim to the vessels of A, B, and C, though it might be held technically that while in the water and not under the organized control of their own officers the crews were under the jurisdiction of State Y because State Y was sovereign over the harbor waters, yet when they passed on board the war vessels of States A, B, and C, the crews passed out of the jurisdiction of State Y.

Public vessels in foreign ports.—Halleck, speaking of the general privileges of public vessels in foreign ports,

says:

Where there are no express prohibitions, the ports of one state are considered as open to the public armed and commissioned vessels of every other

nation with whom it is at peace. Such ships are exempt from the jurisdiction of the local tribunals and authorities, whether they enter the ports under express permission, stipulated by treaty, or a permission implied from the absence of prohibition. This exemption, which is termed "extraterritoriality," extends not only to the belligerent ships of war, privateers, and the prizes of either, who seek a temporary refuge in neutral waters from the casualties of the sea and war, but also to prisoners of war on board any prize or public vessel of her captor. Such vessels, in the command of a public officer, possess in the ports of a neutral the rights of extra-territoriality, and are not subject to the local jurisdiction. But whatever may be the nature and extent of the exemption of the public or private vessels of one state, from the local jurisdiction in the ports of another, it is evident that this exemption, whether express or implied, can never be construed to justify acts of hostility committed by such vessel, her officers and crew, in violation of the law of nations against the security of the state in whose ports she is received, or to exclude the local tribunals and authorities from resorting to such measures of self-defense as the security of the state may require. Therefore a public vessel would not hesitate to give up to the local authorities a person accused of a serious crime who might come aboard her, and it is probable that she might even do so in the case of a person evading conscription. (Halleck's Internat. Law, vol. 1, p. 215.)

As neutral State Y would not presume to exercise jurisdiction over the war vessels of States A, B, and C, under the circumstances, much less could the commander of a United States war vessel in a neutral port exercise any authority or even claim as prisoners the crews of the vessels of State X, which had never been in his power. This case also differs from a case in which the shipwrecked or wounded are picked up upon the scene of a naval engagement. These crews in the harbor of State Y are removed from the exercise of authority on the part of the United States commander: (1) by the fact that the succor was afforded in a neutral port, and (2) by the fact that the succor was afforded upon neutral vessels of other states temporarily within the neutral port of Y.

Conclusion. The claim of the United States commander that the rescued crews should be delivered to him as prisoners of war could not be sustained.

(b) There next arises the question of the disposition of these crews which have gone on board the war vessels of States A, B, and C.

Captain Mahan's position.-Captain Mahan, in a paper before the peace conference at The Hague, on June 20,

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1899, argued that some definite provisions should be made for crews shipwrecked in battle. He said:

* * * On a field of naval battle the ships are constantly in movement; not merely the movement of a land battle, but a movement of progress, of translation from place to place more or less rapid. The scene is here one moment; a half hour later it may be five miles distant. In such a battle it happens that a ship sinks; her crew become naufragés; the place of action shifts; it is no longer where these men are struggling for life; the light cruisers of their own side come to help, but they are not enough; the hospital ships with the neutral flag come to help; neutral ships other than hospital also arrive; a certain number of combattants naufragés are saved on board neutral ships. To which belligerent do these men belong? It may happen that the neutral vessel, hospital or otherwise, has been with the fleet opposed to the sunken ship. After fulfilling her work of mercy she naturally returns to that fleet. The combattants naufragés fall into the power of the enemy, although it is quite probable that the fleet to which they belong may have had the advantage.

I maintain that unless some provision is made to meet this difficulty much recrimination will arise. A few private seamen, more or less, a few sub-officers, may not matter, but it is possible that a distinguished general officer, or valuable officers of the lower grade may be affected. This will tend to bring into discredit the whole system for hospital ships; but further, while hospital ships, being regularly commissioned by their own government may be supposed to act with perfect impartiality, such presupposition is not permissible in the case of vessels named in Article 6. Unless the status of combattants naufragés saved by them is defined, the grossest irregularities may be expected-the notoriety of which will fully repay the class of men who would perpetrate them.

As many cases may arise, all of which it is impossible to meet specifically, I propose the following additional articles, based upon the single general principle that combattants naufragés, being ipso facto combatants hors de combat, are incapable of serving again during the war, unless recaptured or until duly exchanged.

Captain Mahan embodied his ideas in the following articles, which, however, were not adopted:

1. In the case of neutral vessels of any kind, hospital ships or others, being on the scene of a naval engagement, which may, as an act of humanity, save men in peril of drowning, from the results of the engagement, such neutral vessels shall not be considered as having violated their neutrality by that fact alone. They will, however, in so doing act at their own risk and peril.

2. Men thus rescued shall not be considered under the cover of the neutral flag, in case a demand for their surrender is made by a ship of war of either belligerent. They are open thus to capture or to recapture. If such demand is made, the men so rescued must be given up, and shall then have the same status as though they had not been under a neutral flag.

3. In case no such demand is made by a belligerent ship, the men so rescued, having been delivered from the consequences of the fight by neutral interposition, are to be considered hors de combat, not to serve for the rest of the war unless duly exchanged. The Contracting Governments engage to prevent, as far as possible, such persons from serving until discharged. (Holls. Peace Conference at The Hague, p. 504.)

Captain Mahan's first article is very general. It covers "neutral vessels of any kind, hospital or others, being on the scene of a naval engagement, which may, as an act of humanity, save men in peril of drowning from the results of the engagement." In the second article he maintains that "men thus rescued shall not be considered under the cover of the neutral flag, in case a demand for their surrender is made by a ship of war of either belligerent."

These provisions as he mentions would particularly apply to cases involving circumstances similar to those under which the yacht Deerhound saved men of the Alabama, of which Mr. Seward said to Mr. Adams in a letter of July 15, 1864:

I freely admit that it is no part of a neutral's duty to assist in making captures for a belligerent, but I maintain it to be equally clear that, so far from being neutrality, it is direct hostility for a stranger to intervene and rescue men who had been cast into the ocean in battle, and then carry them away from under the conqueror's guns.

The case under consideration in this situation, however, does not contemplate rescue by a private ship as in the case of the Deerhound, but by a ship of war not upon the scene of hostilities, but in a neutral port. The crews are received on board a neutral war vessel, and a war vessel from its very nature can not be subjected to the provisions of the above articles.

Lawrence's opinion.-Lawrence, in his "War and Neutrality in the Far East," page 71, which appears as this is written, says:

The Chemulpo incident shows, among other things, that provision will have to be made in future for assistance by neutral ships of war, as well as by neutral hospital ships and ordinary neutral vessels. The nature of such provision is still open to controversy. We may hope to see the rejec tion of Captain Mahan's idea that neutral rescuers should be bound to give up their unhurt refugees to the first belligerent war ship which demands

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them. Another project is that the neutral vessel which has gathered them up should report itself immediately to the belligerent commander controlling the scene of operations and take its orders from him, which would mean in most cases the surrender of the refugees as prisoners of war. This latter plan might sometimes be found difficult in practice. There have been cases when neither party controlled the scene after the action was over. The indecisive conflict between Sir Robert Calder and Villeneuve on July 22, 1805, is a case in point. Another instance may be taken from the battle of the Yalu, fought on September 17, 1894, at the close of which both the Japanese and the Chinese fleets left the waters in which they had contended. But quite apart from the fact that sometimes there may be no commander in control on the spot where the battle was fought, the principle underlying the proposals we have described seems inadmissible. It involves the deneutralization of humanity. If the rescued men are surrendered to their own side, they will again become combatants; if they are surrendered to the other side, they will be made prisoners of war. To assist in bringing about either of these consummations is surely inconsistent with neutrality. There remain the alternatives of "internment"-that is to say, keeping them in honorable detention under neutral guardianship for the rest of the war-or handing them over to their own friends in exchange for a solemn promise that they shall not serve again while hostilities continue. * * *

We interpret the obligations of neutrality and humanity more strictly than our fathers, but we need an international agreement to give symmetry and stability to our views. When it comes to be negotiated the precedent of Chemulpo will undoubtedly make for a very wide right of rescue on the part of neutral vessels, both public and private. But we may hope it will not be pressed in favor of anything approaching a right of interference in the struggle. It is one thing to save the life of a man struggling in the water, quite another to help him in keeping himself and his ship out of the hands of the victor.

Hague Conference Provisions.-Article VI of the "Convention Between the United States of America and Certain Powers for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864" (Hague Convention), ratified by the United States in 1900, provides that

“Neutral merchantmen, yachts, or vessels having or taking on board sick, wounded, or shipwrecked of the belligerents can not be captured for so doing, but they are liable to capture for any violation of neutrality they may have committed."

Article LVII of the "Convention Between the United States of America and Certain Powers, With Respect to the Laws and Customs of War on Land" (Hague Conven