4. It is understood that the liberty f the neutral State to transmit dispatches does not imply the right to make use or permit use thereof manifestly for the purpose of lénding assistance to one of the belligerents.

5. In applying the preceding rules, no difference is to be made between State cables and cables owned by individuals, nor between cables which are enemy property and those which are neutral property.

Institute, 1902, p. 162.

In the conditions stated below, belligerent States are authorized to destroy or to seize only the submarine cables connecting their territories or two points in these territories, and the cables connecting the territory of one of the nations engaged in the war with a neutral territory.

The cable connecting the territories of the two belligerents or two points in the territory of one of the belligerents, may be seized or destroyed throughout its length, except in the waters of a neutral State.

A cable connecting a neutral territory with the territory of one of the belligerents may not, under any circumstances, be seized or destroyed in the waters under the power of a neutral territory. On the high seas, this cable may not be seized or destroyed unless there exists an effective blockade and within the limits of that blockade, on consideration of the restoration of the cable in the shortest time possible. This cable may be seized or destroyed on the territory of and in the waters belonging to the territory of the enemy for a distance of three marine miles from low-tide. Seizure or destruction may never take place except in case of absolute necessity.

In applying the preceding rules no distinction is to be made between cables, according to whether they belong to the State or to individuals; nor is any regard to be paid to the nationality of their

owners.

Submarine cables connecting belligerent territory with neutral territory, which have been seized or destroyed, shall be restored and compensation fixed when peace is made.

Institute, 1913, p. 188.

As the "International Convention for the Protection of Submarine Telegraph Cables" of 1884 expressly stipulates by article 15 that freedom of action is reserved to belligerents, the question is not settled how far belligerents are entitled to interfere with submarine telegraph cables. The only conventional rule concerning this question is article 54 of the Hague Regulations, inserted by the Second Peace Conference, which enacts that submarine cables connecting occupied enemy territory with a neutral territory shall not be seized or destroyed, and that, if a case of absolute necessity has compelled the occupant to seize or destroy such cable, it must be restored after the conclusion of peace and indemnities paid. There is no rule in existence which deals with other possible cases of seizure and destruction.

Oppenheim, vol. 2, p. 271.

The following rules are to be followed with regard to submarine telegraphic cables in time of war, irrespective of their ownership:

(a) Submarine telegraphic cables between points in the territory of an enemy, or between the territory of the United States and that of an enemy, are subject to such treatment as the necessities of war may require.

(b) Submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within the territorial jurisdiction of the enemy.

(c) Submarine telegraphic cables between two neutral territories shall be held inviolable and free from interruption.

U. S. Naval War Code, 1900, Article 5.

55565-183

INVIOLABILITY OF NEUTRAL TERRITORY.

The territory of neutral Powers is inviolable.-Hague Convention V, 1907, Article 1.

It is not lawful to make neutral territory the scene of hostility, or to attack an enemy while within it.

Kent, vol. 1, p. 124.

No use of neutral territory, for the purposes of war, can be permitted.

Kent, vol. 1, p. 125.

No act of hostility is to be commenced on neutral ground. No measure is to be taken that will lead to immediate violence.

Kent, vol. 1, p. 126.

There is no exception to the rule that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful.

Kent, vol. 1, p. 127.

The rights of war can be exercised only within the territory of the belligerent powers, upon the high seas, or in a territory belonging to no one. Hence it follows, that hostilities can not lawfully be exercised within the territorial jurisdiction of the neutral State, which is the common friend of both parties.

Dana's Wheaton, p. 520.

There is, then, no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful.

*

Dana's Wheaton, p. 524.

*

the government of the United States has invariably claimed the absolute inviolability of neutral territory.

This question was revived and elaborately discussed in the case of the steamboat "Caroline," which was captured and destroyed by British armed forces while in American territory, in the winter of 1838. This vessel had been employed by a body of Canadian insurgents, in conveying passengers and munitions of war from the frontier of the state of New York to the British ground of Navy Island. The commander of the expedition, from the Canada side, sent to capture this vessel, expected to find her within British territory, but on coming round the point of the island in the night, he first discovered that the vessel was moored on the American shore. He nevertheless proceeded to make the capture and to destroy the vessel, although then within the neutral territory, and his conduct was ap

proved by his government. This led to remonstrance on the part of the United States. It was said, that if, upon a full investigation of all the facts, it should appear that the owner of the vessel had been governed by a hostile intent, or had made common cause with the occupants of Navy Island, the United States would prosecute no claim to indemnity for the destruction of this boat; but that the lawfulness, or unlawfulness of the employment in which the "Caroline" was engaged, however settled, in no manner involved the higher consideration of the violation of territorial sovereignty and jurisdiction. In the discussion which followed, Mr. Webster, while claiming absolute immunity of neutral territory against aggression from either of the belligerents, admitted that the necessity of self-defense might justify hostility in the territory of a neutral power; but that it was required of the English government, as the aggressor in this case, "to show a necessity of self defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity and kept clearly within it." Lord Ashburton agreed · with Mr. Webster, on the inviolability of neutral or independent territory, and on the possible exception to which that principle was liable the necessity of self-defense, as the first law of our nature,— and that the suspension of that great principle "must be for the shortest possible period, during the continuance of an admitted overruling necessity, and strictly confined within the narrowest limits. imposed by that necessity." He, however, contended that there was "that necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation," which preceded the destruction of the Caroline while moored to the shore of the United States, that "it must be admitted that there was, in the hurried execution of the necessary seizure, a violation of territory," and that it was to be regretted that some explanation and apology for this occurrence was not immediately made" to the United States, by the British government. These acknowledgments and assurances were received as satisfactory by the United States, and the subject was not further discussed by the two governments.

Halleck, pp. 520-522; Webster, Dip. and Off. Papers, pp. 112-120; Phillimore, On Int. Law, vol. 3, sec. 38.

Neutrals have a right, 1. To insist that their territory shall be inviolate and untouched by the operations of war, and their rights of Sovereignty uninvaded. And if violations of their rights are committed, they have a right to punish the offender on account of them, or to demand satisfaction from his government. They are in a manner bound to do this, because otherwise their neutrality is of no avail, and one of the belligerents enjoys the privilege of impunity. Woolsey, p. 281.

Every nation is bound to pass laws whereby the teritory and other rights of neutrals shall be secured, and has a right to demand security for itself in the same manner.

Woolsey, pp. 283, 284.

Neutral land and neutral territorial waters are sacred. No acts of warfare may lawfully take place within them.

Lawrence, p. 608.

Difficulty, in some cases, of determining what is neutral territory.

There remains, however, a difficulty connected with the double or ambiguous character of sovereignty in certain cases. Fortunately these cases have tended to decrease in number with the simplification of the political condition of modern Europe, though it may well be doubted whether recent assumptions of protectorates in Africa will not add to them in the future. They occur when two or more powers can each claim authority over certain territory. If one of them be belligerent and the other neutral, it is difficult to tell how the territory is to be regarded for war purposes. The protectorate exercised by Great Britain over the Ionian Islands gave rise to such a difficulty during the early part of the Crimean War, when the Leucade, an Ionian vessel, was captured by a British cruiser and brought in for adjudication before a prize court on a charge of trading with Russia, the enemy of Great Britain in the war. It was contended that, since the Ionian Islands were under a British protectorate. they were parties to the war and their vessels were forbidden to engage in commerce with the enemy. But Dr. Lushington, who tried the case, held that the Ionian republic was not a party to the war. It had a commercial flag of its own, and, though Great Britain occupied its fortresses and had control of its diplomatic arrangements, it was not involved in the public acts of the British Government unless specially included. There had been no special inclusion in the case of the then existing war. British vessels had been forbidden to trade with Russia, but Ionian vessels had not. He, therefore, restored the vessel, but would not give costs against the captors on the ground that the point was a very difficult one and that they acted in perfect good faith. The cession of the Ionian Islands to Greece in 1864 has rendered a repetition of the case impossible, but we may venture to point out with regard to it that the judgment seemed to leave the determination of the status of the island republic exclusively in the hands of one of the belligerents. It is possible to imagine circumstances in which this would have operated unfairly towards the other. If, for instance, Great Britain had used the islands as a depot and base of naval operations and at the same time claimed immunity for their commerce as being neutral, Russia would have had good cause to complain. In discussing cases of double or ambiguous sovereignty, Hall lays down the rule that the use to which a place is put by the power that exercises de facto control over it determines whether it should be regarded as neutral or belligerent territory. This test is at once simple, effective, and fair as between the hostile powers; and we may hope that it will be adopted in all future cases.

Lawrence, pp. 385, 386; Spinks, Admiralty Reports, vol. 2, p. 212.

*

*** the duty of belligerents to treat neutrals in accordance with their impartiality excludes, firstly, any violation of neutral territory for military or naval purposes of the war.

Oppenheim, vol. 2, p. 384.