CHANGES IN NAVY REGULATIONS.

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different in their tenor from those which have been issued since that time. There has been a marked limitation in the statements in regard to asylum. This may be taken as an indication of a change of attitude on the part of the Government. It is certainly sufficient evidence for the determination of the line of action for a naval officer of the United States.

The clauses relating to asylum are here printed. The difference between the clauses of 1893 and the clause of 1896 is such as to place the whole matter on a very different basis. There is but slight difference in the wording of the clauses of 1896 and 1900. The word "local" is omitted in the issue of 1900.

The clause as issued in 1900 most nearly accords with current opinion, as shown by writers upon international law:

Article 287, U. S. Navy Regulations, 1893.

1. In reference to granting of asylum, in the territorial waters of a foreign state, the ships of the United States shall not be made a refuge for criminals.

2. In the case of persons other than criminals they shall be afforded shelter whenever it may be needed, to United States citizens first of all, and to others, including political refugees, as the claims of humanity may require and the service upon which the ships are engaged will permit.

3. The obligation to receive political refugees and to afford them an asylum is in general one of pure humanity. It should not be continued beyond the urgent necessities of the situation, and should in no case become the means whereby the plans of contending factions or their leaders are facilitated. The captain of a ship of the Navy is not to invite or encourage such refugees to come on board his ship, but should they apply to him his action shall be governed by considerations of humanity and the exigencies of the service upon which he is engaged.

4. When a political refugee has embarked, in the territory of a third power, on board a merchant vessel of the United States as a passenger for purposes of innocent transit, and it appears upon the entry of such vessel into the territorial waters that his life is in danger, it is the duty of the captain of a ship of the Navy present to extend to him an offer of asylum.

Article 288, U. S. Navy Regulations, 1896.

The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, local usage sanctions the granting of asylum; but even in the waters of such countries officers should refuse all applications for asylum except when required by the

interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers must not directly or indirectly invite refugees to accept asylum.

Article 308, U. S. Navy Regulations, 1900.

The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions the granting of asylum; but even in the waters of such countries officers should refuse all applications for asylum except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers must not directly or indirectly invite refugees to accept asylum.

Article 308 of the United States Navy Regulations, which prescribes the duties of officers in regard to granting asylum, does not sanction any direct or indirect invitation to refugees to accept asylum.

The Government may of course permit, as Mr. Blaine says, its ships of war "to offer hospitality to political refugees," but without such authorization the naval officer is at present forbidden to make such offer.

In other cases where the matter of asylum is in question he is in general to remain passive.

The position taken in the Naval War College Manual of International Law seems to be the one most favored at present. In speaking of a political refugee, the Manual says: "When, instead of preserving the asylum and refuge gained by reaching a foreign country, he deliberately exposes himself to arrest and punishment by entering the territorial waters of the country in which he is considered an offender, he has no claim to the protection of any other State," (p. 30).

Conclusion.-From the above discussion it is evident that in judging of the action of State X the commander should seek to know:

(1) Whether the arrest was made in due form, so far as the exigiencies of the disturbed condition of State X permitted.

(2) Whether any treaty provisions between the United States and State X touched upon the case of Mr. Smith.

(3) Whether the trial for the offense, if permitted under the treaty and not otherwise prohibited, would be fairly conducted.

ATTITUDE OF STATE DEPARTMENT.

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To this extent Mr. Smith is entitled to the good offices of the official representatives of the United States Government.

Beyond this it is a general principle that representatives of the United States in a foreign harbor "can neither assist in nor resist the orderly operation of the law of the port."

(b) The question of intervention for the protection of those involved in insurrection who, after being sent out of the disturbed State, return to its jurisdiction upon a foreign merchant vessel.

The discussion thus far applies in the main to the general subject of asylum upon merchant vessels.

The situation under consideration involves the particular phase of asylum in a case where a United States citizen who has, after being sent out of State X because of implication in the insurrection, returned upon a merchant vessel to a port within the jurisdiction of State X.

Attitude of the Department of State. In the following quotation from a letter to the Secretary of the Navy from the Secretary of State, dated July 15, 1899, the position is taken that Americans, having been allowed to leave a foreign country in which they have been implicated in revolution, by returning to that foreign country place themselves beyond the power of intervention of their own government in their behalf:

SIR: I have the honor to acknowledge the receipt of your letter of the 12th ultimo, inclosing a copy of one to you from Lieutenant-Commander Kimball, U. S. Navy, commanding officer of the Vixen, at Bluefields, in which he requests general instructions as to the policy of this Government respecting the protection of such American citizens as, having taken part in the recent insurrection at that place, were allowed to leave the country, but who may again return thither and be apprehended and prosecuted by the Nicaraguan authorities.

You request to be advised of the views of this Department on the subject. In reply, I have the honor to inform you that an instruction, a copy of which is herewith inclosed, was sent to our consul at San Juan del Norte on May 13 last, informing him that Americans who were implicated in that insurrection, and who have returned to Nicaragua, have placed themselves beyond the power of this Government to intervene in their behalf should they be recaptured.

The cases thus foreshadowed do not come under either the Barrundia or the Gomez case referred to by Lieutenant-Commander Kimball. Those persons were natives of the country, in transit, and on board an American ship entering a port of the country without intent to land. The 33 men in question were expelled from Nicaraguan territory, and it is apprehended that they may attempt to reenter Nicaraguan jurisdiction. Many, if not most of them, are understood to be citizens of the United States.

Effort should be made to warn such persons in time of the risk they run in reentering Nicaragua, and, if occasion require, they might be temporarily received on an American vessel before they land and before any process of arrest under due warrant of law be attempted against them. If, however, they actually land, or are arrested by judicial authority on a merchant ship in port before endeavoring to land, the naval commander could not claim their release or delivery to him but would have to limit his action to the exercise of good offices, so far as possible, in conjunction with the consular representatives of the United States, to secure for them fair and open process of law, with every opportunity for defense, and, if convicted, leniency of treatment.

Conclusion. While from this letter there may be an implication that it applies only to persons who intend to land in the state from which they have been expelled, yet the right to arrest before landing is admitted. It becomes very clear, then, that it is not the province of representatives of the United States Government in foreign ports to interfere to hinder the due process of local judicial procedure.

It is however proper to use good offices to secure fair trial and "leniency of treatment." A naval officer may also receive on board temporarily such persons as Mr. Smith "before any process of arrest under due warrant of law be attempted against them," and "effort should be made to warn such persons of the risk they run in reentering" the state from which they have been sent.

The tendency seems to be toward the limitation of the so-called right of asylum to more narrow limits from year to year, and it may now be said in the language of the Regulations of the United States Navy "the right of asylum for political and other refugees has no foundation in international law."

Its exercise in advanced states is tolerated rarely, and only under very exceptional circumstances, but is somewhat more frequently tolerated in case of disturbed conditions in the less advanced states.

SITUATION IV.

War exists between the United States and State X. A war vessel of the United States enters a harbor of State Y, a neutral. In the harbor is a supply ship of the United States. The war ship is about to take on coal, oil, etc., from the supply ship, when the authorities of State Y protest against the action as a violation of neutrality and forbid the use of the port for such purposes, claiming that it would be equivalent to allowing the port to be used for the fitting out of an hostile expedition.

(a) Is the protest of State Y valid?

(b) What should the commander do?

(c) Would the case be different provided there was a fleet of war vessels of the United States with supply ships instead of the two vessels above mentioned?

SOLUTION.

(a) The protest of State Y is valid, as State Y has full right to regulate the conditions of entrance and sojourn of war vessels in her ports.

(b) The commander should heed the protest as valid. (c) The presence of a fleet of war vessels with supply ships would make it necessary for State Y to use greater care to see that there should be no violation of neutrality.

NOTES ON SITUATION IV.

Jurisdiction over public vessels.—(a) The matter of treatment of belligerent war vessels in neutral ports in time of war has received much attention. There has been a tendency toward uniformity in modern practice.

The question of jurisdiction of a foreign neutral state over a war vessel of a belligerent has been quite fully set forth in the opinion rendered by Chief Justice Marshall in the case of the Exchange v. M'Faddon. This case has been frequently cited as setting forth the fundamental principles of jurisdiction and as showing that the jurisdiction of a state can be limited only by self-imposed restriction, and, further, that the state is itself the