In default of a special agreement, the neutral state which receives the belligerent troops will furnish the interned with provisions, clothing, and such aid as humanity demands.

The expenses incurred by the internment will be made good at the conclusion of peace.

Project of Brussels Conference, 1874, Article LIV.

A neutral State on whose territory troops or individuals belonging to the armed forces of the belligerents take refuge should intern them, as far as possible, at a distance from the theater of war.

It should do the same towards those who make use of its territory for military operations or services.

The interned may be kept in camps or even confined in fortresses or other places.

The neutral State decides whether officers can be left at liberty on parole by taking an engagement not to leave the neutral territory without permission.

In the absence of a special convention concerning the maintenace of the interned, the neutral State supplies them with the food, clothing, and relief required by humanity.

It also takes care of the matériel brought in by the interned.

When peace has been concluded, or sooner if possible, the expenses caused by the internment are repaid to the neutral State by the belligerent State to which the interned belong.

Institute, 1880, pp. 40, 41.

It is, consequently, the duty of the neutral to order the immediate disarming of all belligerent troops which enter neutral territory as an asylum, to cause them to release all their prisoners, *

Halleck, p. 524.

*

Publicists make a marked distinction between the duties of neutrals, with respect to the asylum which may be afforded to belligerent ships, and that which may be afforded to belligerent forces on land. This difference; says Heffter, results from the immunity of the flag, and the principle that ships are considered as a portion of the territory of the nation to which they belong. Hence the allowable custom of asylum in neutral waters, and the want of power in the neutral to interfere with internal organization of such vessels, when not armed or equipped within its jurisdiction. On the other hand, troops are not a part of the territory of the nation to which they belong, nor has their flag any immunity on neutral soil. While, therefore, individuals, as such, are entitled, by the laws of humanity, to the right of asylum in neutral territory, such asylum can not be demanded by, nor can it be granted, without a violation of neutral duty, to an army as a body. It is, consequently, the duty of the neutral to order the immediate disarming of all belligerent troops which enter neutral territory as an asylum, to cause them to release all their prisoners, and to restore all booty which they may bring with them. If he neglect to do this, he makes his own territory the theater of war, and justifies the other belligerent in attacking such refugees within such territory, which is no longer to be regarded as neutral.

Halleck, p. 524.

55565-18- -7

* **

So asylum is allowed within neutral territory to a defeated or fugitive belligerent force, and the victor must stop his pursuit at the borders. The conditions, however, according to which refugees shall be received, are not absolutely settled. In the case of troops fleeing across the borders, justice requires that they shall be protected, not as bodies of soldiers with arms in their hands, but as individual subjects of a friendly state: they are, we believe, in practice generally disarmed, and supported in their place of shelter at the expense of their sovereign. The other course would be unfriendly, as protected soldiers might issue forth from a friend's territory all ready for battle; and would also tend to convert the neutral soil into a theatre of war.

Woolsey, p. 272.

Perhaps the only occasion which hostilities on land afford to the neutral of extending his hospitality to belligerent persons other than those who resort to his country for commercial or private reasons, and who have therefore no relation to the war, is when a beaten army or individual fugitives take refuge in his territory from the pursuit. of their enemy. Humanity and friendship alike recommend him to receive them, but his duty to the other belligerent requires that they shall not again start from his soil in order to resume hostilities; and it has been the invariable practice in late wars to disarm troops crossing the neutral frontier and to intern them till the conclusion of peace.

Hall, pp. 649, 650.

Contra, to some extent.

It would be intolerably burdensome to a neutral state to maintain as guests for a long time any considerable body of men; on the other hand, by levying the cost of their support upon the belligerent an indirect aid is given to his enemy, who is relieved from the expense of keeping them and the trouble of guarding them as prisoners of war, while he is as safe from the danger of their reappearance in the field as if they were in his own fortresses. Perhaps the equity of the case and the necessity of precaution might both be satisfied by the release of such fugitives under a convention between the neutral and belligerent states by which the latter should undertake not to employ them during the continuance of the war.

Hall, p. 650.

The expenses to which it [a neutral state] is put in consequence of their presence interned troops] should be repaid by their own gov

ernment.

Lawrence, p. 623.

The only other case in which bodies of soldiers may be permitted to cross neutral borders occurs when they are driven over them by the enemy. In such circumstances humanity forbids that they should be forced back to captivity or death by lines of neutral bayonets; but at the same time impartiality demands that they shall not be allowed to use the territory they have entered as a place of refuge, in which, safe from pursuit, they can reorganize their shattered forces, and from which they can sally forth to renew the conflict when occa

sion offers. The two are reconciled by the practice of disarming them as soon as they cross the frontier and retaining them in honorable detention till the conclusion of the war. This is called interning, and the troops so treated are said to be interned. They are bound to submit to the process and to make no attempt to compromise the neutrality of the state in which they find asylum.

Lawrence, pp. 622-623.

On occasions during war large bodies of troops, or even a whole army, are obliged to cross the neutral frontier for the purpose of escaping captivity. A neutral need not permit this, and may repulse them on the spot, but he may also grant asylum. It is, however, obvious that the presence of such troops on neutral territory is a danger for the other party. The duty of impartiality incumbent upon a neutral obliges him, therefore, to disarm such troops at once, and to guard them so as to insure their not again performing military acts against the enemy during the war.

Oppenheim, vol. 2, pp. 413-414.

It is usual for troops who are not actually pursued by the enemyfor if pursued they have no time for it to enter through their commander into a convention with the representative of the neutral concerned, stipulating the conditions upon which they cross the frontier and give themselves into the custody of the neutral. Such conventions are valid without needing ratification, provided they contain only such stipulations as do not disagree with International Law and as concern only the requirements of the case.

Oppenheim, vol. 2, p. 414.

*

Stress must be laid on the fact that, although the detained troops. are not prisoners of war captured by the neutral, they are nevertheless in his custody, and therefore under his disciplinary power, just as prisoners of war are under the disciplinary power of the State which keeps them in captivity. * * As the neutral is required to prevent them from escaping, he must apply stern measures, and he may punish severely every member of the detained force who attempts to frustrate such measures or does not comply with the disciplinary rules regarding order, sanitation, and the like.

Oppenheim, vol. 2, pp. 414-415.

The most remarkable instance known in history is the asylum granted by Switzerland during the Franco-German war to a French army of 85,000 men with 10,000 horses which crossed the frontier on February 1, 1871. France had, after the conclusion of the war, to pay about eleven million francs for the maintenance of this army in Switzerland during the rest of the war.

Oppenheim, vol. 2, p. 415.

If the frontiers of the neutral State march with those of the territory where the War is being waged, its Government must take care to occupy its own frontiers in sufficient strength to prevent any portions of the belligerent Armies stepping across it with the object of marching through or of recovering after a Battle, or of withdrawing from War captivity. Every member of the belligerent Army

who trespasses upon the territory of the neutral State is to be disarmed and to be put out of action till the end of the War. If whole detachments step across, they must likewise be dealt with. They are, indeed, not prisoners of War, but, nevertheless, are to be prevented from returning to the seat of War. A discharge before the end of the War would presuppose a particular arrangement of all parties concerned.

If a convention to cross over is concluded, then, according to the prevalent usages of War, a copy of the conditions is to be sent to the Victor. If the troops passing through are taking with them prisoners of War, then these are to be treated in like fashion. Obviously, the neutral State can later demand compensation for the maintenance and care of the troops who have crossed over, or it can keep back War material as a provisional payment. Material which is liable to be spoilt, or the keeping of which would be disproportionately costly, as, for example, a considerable number of horses. can be sold, and the net proceeds set off against the cost of internment.

German War Book, pp. 189, 191.

It is the business of the neutral State to prevent troops crossing over in order to reassemble in the chosen asylum, reform, and sally out to a new attack.

German War Book. p. 197.

Articles 11 and 12, Hague Convention V, 1907, are substantially identical with sections 238, 239 respectively, Austro-Hungarian Manual, 1913.

Applies to troops of a faction engaged in civil war.

Er parte Tascano et. al., 208 Fed. Rep. 938.-The petitioners in this case were members of the so-called Federalist forces in Mexico, and on April 13, 1913, they were defeated by the so-called Constitutionalist forces, and to avoid capture, fled with their arms to United States territory, voluntarily surrendered themselves to the armed forces of the United States and were disarmed and interned.

The Court held: "First, that the petitioners are completely within the provisions of Chapter 2, art. 11, of the Hague Treaty; second, that said article violates no provision of the constitution of the United States, requires no legislation to render it effective; and is accordingly the law of the land; and third, that the President has full authority, and it was and is his duty to enforce said treaty provisions."

RIGHTS AND DUTIES OF NEUTRAL WITH RESPECT TO PRISONERS OF WAR ON ITS

TERRITORY.

A neutral Power which receives escaped prisoners of war shall leave them at liberty. If it allows them to remain in its territory it may assign them a place of residence.

The same rule applies to prisoners of war brought by troops taking refuge in the territory of a neutral Power.-Hague Convention I, 1907, Article 13.

For the application of the modern postliminy is quite different from that of the Roman. * It is true, indeed, that a prisoner of war escaping from a vessel in a neutral port, is protected against recapture by this right, as he would be among the Romans. But two nations might, if they pleased, agree to give up such escaped captives; and that this is not done may be best explained on the ground that the laws of one country do not extend into the territory of another, and especially that the laws of a war in which I have no part, ought not to affect my friend or subject within my borders, the principle in short which makes express conventions of extradition necessary.

Woolsey, pp. 249, 250.

The jurisdiction of a sovereign being exclusive, upon him necessarily depends the liberty of the person and the ownership of property within his dominions. If any one is retained in captivity there, he is identified with the act; and therefore, as it has always been held, with obvious reason, that it is a continuation of hostilities to bring prisoners of war into neutral territory, its sovereign cannot allow subjects of a state with which he is in amity to remain deprived of their freedom in places under his control. If they touch his soil they cease to be prisoners. An exception from this general rule is made in the case of prisoners on board a commissioned ship of a belligerent power, since the act of retaining them in custody falls under the head of acts beginning and ending on board the ship, and not taking effect externally to her, and is therefore one in respect of which a ship of war, under its established privileges, is independent of the jurisdiction of a foreign state within the waters of which it may be.

Hall, p. 641.

Prisoners who escape to neutral territory, and prisoners who are brought by troops taking refuge there, are to be left at liberty; but if the neutral power allows them to remain, it may assign them a place of residence.

Lawrence, p. 401.