plainly the duty of the officer to consider what would be the condition with respect to the successful continuance of hostilities after this vessel has arrived within the enemy port. There is no doubt that there would be potentially an increase in the possible naval resources of the enemy, for this vessel may be purchased or seized even if necessary. This being the case, under present conditions it is the duty of the United States officer to guard against such increase. Such a vessel may be contraband even under the classification of contraband made so early as in the days of Grotius. (De Jure Belli et Pacis, Bk. III, ch. 1, 5.)

"The law as regards the sale of ships to belligerents is in a state of transition, and, as was to be expected, the most severe restrictions in this respect are placed upon British shipbuilders and owners. Recently the state of law was summed up as follows: 'An international usage prohibiting the construction and outfit of vessels of war is in course of growth, but it is not yet old enough, or quite wide enough, to have become compulsory on those nations which have not yet signified their voluntary adherence to it.' The difficulty with regard to ships not built primarily as men-of-war lies in the fact that few fast steamers are altogether unfitted to receive an armanent of some kind. The extremes of practice with regard to Russia and Japan are to be found in the action of Great Britain and Germany. This country, having men-of-war under construction for Japan, has publicly announced in her declaration of neutrality that no ships will be allowed to be delivered until after the war. Germany, on the other hand, has sold to Russia one of the large and fast mail steamers of the Hamburg-American line, a ship fitted by her construction to be used as an 'auxiliary' cruiser, as well as other ships of less importance." (L. G. Carr Laughton, "Belligerents and neutrals," The United States Service Magazine, June, 1904, p. 231.)

Such vessels are of a comparatively late form of construction. Consequently, their status has not been settled by many precedents.

PROOF OF INNOCENT INTENT.

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From the nature of the construction the indications are that the vessel under consideration is fitted with a view to hostile use in case that it is advisable to so use the vessel. There is, therefore, evidence sufficient to warrant the commander of the cruiser in demanding further proof than the simple statement of the captain of the merchant vessel that he is upon his regular voyage. The burden of proof of innocent intent may properly be placed upon the merchant captain and should be thus placed in cases of this kind. This is not an undue hardship upon neutrals, as the vessel is of a character easily approximating contraband.

"As a general rule a neutral has a right to carry on such trade as he may choose with a belligerent. But the usages of war imply the assumption that the exercise of this right is subjected to the condition that the trade of the neutral shall not be such as to help the belligerent in prosecuting his own operations or in escaping from the effects of those of his enemy. When neutral commerce produces this result the belligerent who suffers from the trade is allowed to put it under such restraint as may be necessary to secure his freedom of action." (Hall, International Law, 5th ed., p. 505.)

The commander in protecting his country, if he has any ground for belief that sale might be made, could demand further evidence or even a guaranty that the vessel is not proceeding to the port of X for sale, or even might allow the vessel to proceed only on condition that it would not be sold to the enemy. This would not be an interruption of the peaceful commerce of the enemy, but only a proper measure to guard against the increase of the fighting power of the enemy. Should the captain of the merchant vessel be unwilling to give such guaranty as he is competent to give that the vessel will not be sold to the enemy at port X, this may be a ground for sending the vessel in for adjudication by a prize court.

It is certain that such vessels as are under hostile government contract or subsidy can not be allowed the same freedom as is allowed to ordinary commercial vessels.

It is also certain that there is a point at which the ordinary commercial vessel will merge into the vessel easily adapted for conversion into an auxiliary cruiser.

Some special considerations.-The commander of the visiting war vessel must decide on each case upon the evidence from all points of view, and in case of doubt it is safer to allow the courts to decide. He should take into consideration not only the construction of the vessel, but also such matters as the need of State X for such vessels, the practice of the State in regard to purchase and seizure of such vessels, the need for such vessels for warlike purposes in the port to which the vessel in question is sailing, the number of times this vessel has made this voyage to the port of X since the outbreak of hostilities, the responsibility and sincerity of the owners of the vessel, and the like.

In many instances it is wiser to incur the risk that the United States may have to pay indemnity for the delay of such a vessel rather than to incur the risk which would come from the addition of such a vessel to the navy of

an enemy.

It is certain that such vessels will become a subject for consideration and that they can not be regarded as other than contraband in some instances. When so regarded, an officer would be justified by international law in seizing the vessel as itself contraband. Whether it will be the policy of the United States to place such vessel in its list of contraband, and what the decisions of courts will be in regard to goods, etc., upon such vessels, is not here considered.

Russian declaration, 1904.-The position of Russia makes such vessels contraband, as shown in the "Rules which the Imperial Government will apply during the war with Japan," 1904.

VI. Sont consideres comme contrebande de guerre les objets suivants: . . . (6) Les bâtiments se rendant dans un port ennemi même sous pavillon de commerce neutre, si d'après leur construction, leur aménagement intérieur et d'autres indices, il y a évidence qu'ils sont construits dans un but de guerre et se dirigent vers un port ennemi pour y être vendus ou remis a l'ennemi.

RUSSIAN DECLARATION, 1904.

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This clause has been translated in the Official Notice of the British Board of Trade, March 18, 1904, as follows: The following articles are deemed to be contraband of war: (6) Vessels bound for an enemy's port, even if under a neutral commercial flag, if it is apparent from their construction, interior fittings, and other indications that they have been built for warlike purposes and are proceeding to an enemy's port in order to be sold or handed over to the enemy.

From the above it is evident that Russia would regard a vessel sailing, as is the vessel under consideration in the Situation, for its regular post of call, as free unless there is evidence that she is "proceeding to an enemy's port in order to be handed over to the enemy."

Doctor Lushington earlier took practically the same position in stating that British commanders are directed to detain as contraband a vessel "If she is fitted for purposes of war as well as commerce, and it appears that she is destined for the enemy's government to be used as a vessel of war." (Naval Prize Law, par. 207.)

Conclusion. If this vessel is destined to be sold to the enemy for warlike purposes, it is plainly the duty of the commander to seize the vessel. There is evidence that it may easily be converted to such purpose. The commander should therefore take such measures as will give to him reasonable assurance that the vessel, though easily adaptable to warlike uses, will not come into the hands of the enemy for such uses.

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SITUATION II.

War exists between States X and Y. The United States is neutral. A port of State X is placed under martial law. Mr. B, a citizen of the United States, residing and doing business at the port, is seized, imprisoned, and about to be deported without trial. He appeals to the commander of a United States war vessel who chances to be the only representative of the United States in the region.

What action, if any, is the commander justified in taking?

SOLUTION.

The commander of the United States war vessel would be justified in requesting that Mr. B be not arbitrarily deported without trial, that he have a prompt and fair trial by a military court or commission, and if the military exigencies make a trial impracticable, he would be justified in requesting that Mr. B be placed in his custody.

NOTES ON SITUATION II.

Nature of martial law.-Silent leges inter arma is a common dictum of municipal law. This has been repeatedly recognized by the Government of the United States. The ordinary courts refuse to interfere with the course of military judgment as enforced by courts-martial. As affirmed by the Supreme Court in the case of Dynes v. Hoover (20 How., 65), "With the sentences of courtsmartial which have been convened regularly, and have proceeded legally, and by which punishments are directed which are not forbidden by law, or which are according to the laws and customs of the sea, civil courts have nothing to do, nor are they in any way alterable by them." As Halleck says:

It is necessary to distinguish between military and martial law; for the two are very different. In Great Britain the former has only to do with the land forces mentioned in section 2 of the Mutiny Act-now the Army Act, 1881and the Articles of War. In the United States the Rules and Articles of

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