PROCLAMATION OF 1870.

69

the waters within the territorial jurisdiction of the United States by the armed vessels of either belligerent, whether public ships or privateers, for the purpose of preparing for hostile operations, or as posts of observation upon the ships of war or privateers or merchant vessels of the other belligerent lying within or being about to enter the jurisdiction of the United States, must be regarded as unfriendly and offensive and in violation of that neutrality which it is the determination of this Government to observe; and to the end that the hazard and inconvenience of such apprehended practices may be avoided, I further proclaim and declare that, from and after the 12th day of October instant, and during the continuance of the present hostilities between France and the North German Confederation and its allies, no ship of war or privateer of either belligerent shall be permitted to make use of any port, harbor, roadstead, or other waters within the jurisdiction of the United States as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities of warlike equipment; and no ship of war or privateer of either belligerent shall be permitted to sail out of or leave any port, harbor, or roadstead or waters subject to the jurisdiction of the United States from which a vessel of the other belligerent (whether the same shall be a ship of war, a privateer, or a merchant ship) shall have previously departed, until after the expiration of at least twenty-four hours from the departure of such last-mentioned vessel beyond the jurisdiction of the United States.

If any ship of war or privateer of either belligerent shall, after the time this notification takes effect, enter any port, harbor, roadstead, or waters of the United States, such vessel shall be required to depart and to put to sea within twenty-four hours after her entrance into such port, harbor, roadstead, or waters, except in case of stress of weather or of her requiring provisions or things necessary for the subsistence of her crew, or for repairs; in either of which cases the authorities of the port or of the nearest port (as the case may be) shall require her to put to sea as soon as possible after the expiration of such period of twenty-four hours, without permitting her to take in supplies beyond what may be necessary for her immediate use; and no such vessel which may have been permitted to remain within the waters of the United States for the purpose of repair shall continue within such port, harbor, roadstead, or waters for a longer period than twenty-four hours after her necessary repair shall have been completed, unless within such twenty-four hours a vessel, whether ship of war, privateer, or merchant ship of the other belligerent, shall have departed therefrom, in which case the time limited for the departure of such ship of war or privateer shall be extended so far as may be necessary to secure an interval of not less than twenty-four hours between such departure, and that of any ship of war, privateer, or merchant ship of the other belligerent which may have previously quit the same port, harbor, roadstead, or waters.

No ship of war or privateer of either belligerent shall be detained in any port, harbor, roadstead, or waters of the United States more than twentyfour hours, by reason of the successive departures from such port, harbor, roadstead, or waters, of more than one vessel of the other belligerent. But if there be several vessels of each or either of the two belligerents in the same

port, harbor, roadstead, or waters, the order of their departure therefrom shall be so arranged as to afford the opportunity of leaving alternately to the vessels of the respective belligerents, and to cause the least detention consistent with the objects of this proclamation. No ship of war or privateer of either belligerent shall be permitted, while in any port, harbor, roadstead, or waters within the jurisdiction of the United States, to take in any supplies except provisions and such other things as may be requisite for the subsistence of her crew, and except so much coal only as may be sufficient to carry such vessel, if without sail power, to the nearest European port of her own country; or in case the vessel is rigged to go under sail, and may also be propelled by steam power, then with half the quantity of coal which she would be entitled to receive if dependent upon steam alone; and no coal shall be again supplied to any such ship of war or privateer in the same or any other port, harbor, roadstead, or waters of the United States, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within the waters of the United States, unless such ship of war, or privateer shall, since last thus supplied, have entered a European port of the government to which she belongs.

In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the city of Washington this 8th day of October, in the year of our Lord 1870, and of the independence of the United States of America the ninety-fifth.

[SEAL.]

By the President:

HAMILTON FISH,

Secretary of State.

(Foreign Relations U. S. 1870, p. 48.)

U. S. GRANT.

Domestic law. The position of the Government of the United States, so far as domestic law is concerned, is set forth in the following statute:

SEC. 5285. Every person who, within the territory or jurisdiction of the United States, increases or augments, or procures to be increased or augmented, or knowingly is concerned in increasing or augmenting, the force of any ship of war, curiser, or other armed vessel which, at the time of her arrival within the United States, was a ship of war or cruiser or armed vessel in the service of any foreign prince or state or of any colony, district, or people, or belonging to the subjects or citizens of any such prince or state, colony, district, or people, the same being at war with any foreign prince or state or of any colony, district, or people with whom the United States are at peace, by adding to the number of the guns of such vessel or by changing those on board of her for guns of a larger caliber or by adding thereto any equipment solely applicable to war, shall be deemed guilty of a high misdemeanor and shall be fined not more than one thousand dollars and be imprisoned not more than one year.

(U. S. Revised Statutes.)

BRITISH PORT REGULATIONS.

71

British regulations. The British regulations show the position of a great maritime power toward the control of the general conduct of war vessels in a foreign port by the authorities of that port.

Queen's Regulations and Admiralty Instructions, 1899, provide for Great Britain as follows:

592. Subject to any limit which the neutral authorities may place upon the number of belligerent cruisers to be admitted to any one of their ports at the same time, the captain, by the comity of nations, may enter a neutral port with his ship for the purpose of taking shelter from the enemy or from the weather or for obtaining provisions or repairs that may be pressingly necessary.

593. He is bound to submit to any regulations which the local authorities may make respecting the place of anchorage, the limitation of the length of stay in the port, the interval after a hostile cruiser has left the port before his ship may leave in pursuit, etc.

594. He must abstain from any acts of hostility toward the subjects, cruisers, vessels, or other property of the enemy which he may find in the neutral port.

595. He must also abstain from increasing the number of his guns, from procuring military stores, and from augmenting his crew even by the enrollment of British subjects.

Thus it is seen that the decision of the courts, proclamations, domestic laws, and regulations alike agree upon the growing tendency to prescribe more and more definitely the exact range of action which may be permitted to a belligerent war vessel in a neutral port. In no case is there a doubt that the neutral state has a right to make regulations upon this subject. The proclamations of neutrality issued in recent wars also show a tendency to become explicit in outlining belligerent rights in neutral ports. This has been particularly the case since the civil war in the United States and the adjustment of the Alabama claims.

Neutrality proclamations. The neutrality proclamations issued by various governments during the SpanishAmerican war of 1898 show the tendency toward specific restriction of belligerent action so far as it affects neutrals. The proclamations issued during the RussoJapanese war in 1904 are even more specific in many instances than those issued in 1898.

The British neutrality proclamation of April 23, 1898, following the treaty of May 8, 1871, provides that

A neutral government is bound

*

*

*

*

Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms or the recruitment of men.

The circular letter from the foreign office of February 10, 1904, gives the full and latest statement of the British position upon this subject:

RULE 3. No ship of war of either belligerent shall hereafter be permitted, while in any such port, roadstead, or waters subject to the territorial jurisdiction of Her Majesty, to take in any supplies, except provisions and such other things as may be requisite for the subsistence of her crew, and except so much coal only as may be sufficient to carry such vessel to the nearest port of her own country or to some nearer named neutral destination, and no coal shall again be supplied to any such ship of war in the same or in any other port, roadstead, or waters subject to the territorial jurisdiction of Her Majesty, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within British waters as aforesaid. (The London Gazette Extraordinary, February 11, 1904.)

Articles IX and X of the decree of April 6, 1864, revised in 1895, provided that for Italy

In no case can a belligerent ship make use of an Italian port for purpose of warfare or to supply itself with arms or ammunition. It can not, under pretext of repairs, execute works in any way adapted to increase its warlike force.

Nothing shall be supplied to belligerent ships of war or cruisers excepting provisions, commodities, and things for repairs simply necessary for their crews and the safety of their voyage. Such belligerent ships of war or cruisers as wish to resupply themselves with coal shall not receive that supply until twenty-four hours after their arrival.

The mercantile marine code of Italy also makes pro vision on this matter:

ART. 248. In no case can a belligerent ship make use of an Italian port for war purposes or to provision itself with arms or munitions. No work can be executed under the pretext of repairs which in any way could add to the fighting strength of the vessel.

The circular letter of the Brazilian ministry of foreign affairs of April 29, 1898, is even more explicit in its terms

RIGHTS OF VESSELS IN PORT.

73

upon the subject of supplying belligerent vessels in its ports. Section XII of this letter reads:

It will not be permitted to either of the belligerents to receive in the ports of the Republic goods coming directly for them in the ships of any nation whatever.

This means that the belligerents may not seek ports en route and on account of an unforeseen necessity while having the intention of remaining in the vicinity of the coasts of Brazil, taking thus beforehand the necessary precautions to furnish themselves with the means of continuing their enterprises. The tolerance of such an abuse would be equivalent to allowing our ports to serve as a base of operation for the belligerents.

The Netherlands proclamation of neutrality in the Russo-Japanese war, issued in February, 1904, enters even more into details in prescribing the treatment of belligerent ships in its port than was the case at the time of the Spanish-American war of 1898. This may be in part due to the nearness of some of its colonial possessions to the seat of hostilities.

Such provisions as the following occur:

ARTICLE IV. It is prohibited within the Kingdom to provide ammunition or arms to war ships or either of the belligerent parties to assist them in any way toward the increase of their men, arms, or equipment and to the making of repairs, as also toward the providing of the material or implements necessary thereto.

The same prohibition is made in regard to every vessel that is evidently destined for the direct conveyance to a war ship of either of the belligerent parties of the assistance or goods above mentioned in the first clause.

ARTICLE V. It is prohibited without the previous sanction thereto from the proper authority to afford within the territory of the Kingdom to any war ship of the belligerent parties provisions or fuel.

Rights of vessels in port. From various points of view it is evident that belligerent war vessels in neutral ports in time of war have, aside from the customary right of entrance in case of stress of weather or other absolute necessity, no rights beyond such as the neutral state may concede.

Entrance for purposes having no bearing upon the conduct of hostilities is generally conceded to war vessels. This is, however, in most instances now denied to privateers and to armed vessels with prizes and to vessels captured as prize.