A vessel apparently owned by a neutral is not really so owned if acquired by a transfer from an enemy, or from a British or allied subject, made at any time during the war, or previous to the war but in contemplation of its breaking out, unless there is satisfactory proof that the transfer was bona fide and complete. (P. 16.)

The Japanese regulations resemble the British:

ART. VI. The following are enemy vessels:

4. Vessels, the ownership of which has been transferred before the war, but in expectation of its outbreak or during the war, by the enemy state or its subjects to persons having residence in Japan or a neutral state, unless there is proof of a complete and bona fide transfer of ownership.

In case the ownership of a vessel is transferred during its voyage, and actual delivery is not effected, such transfer of ownership shall not be considered as complete and bona fide. (Japanese Regulations Governing Captures at Sea, 1904.)

The rules in regard to maritime prize, adopted by the Institute of International Law in 1888, provide in regard to the transfer of an enemy's vessel in time of war:

SEC. 26. L'acte juridique constatant la vente d'un navire ennemi faite durant la guerre doit être parfait, et le navire doit être enregistré conformément à la registration du pays dont il acquere la nationalité, avant qu'il quitte le port de sortie. La nouvelle nationalité ne peut être acquise au navire par une vente faite en cours de voyage.

Summary. The nature of the decisions of the courts, the temptations to make transfers in transitu, the lack of uniformity in treaty provisions, the variation in practice as to what is necessary to constitute nationality or requisite for registry, the importance of transfer of flag on the conduct of war, the existing rules in regard to transfer of flag in time of war, all show the necessity of some regulation which shall be generally binding. It would seem that the following regulations would accord with reasonable demands for restrictions.

Conclusion. (a) The transfer of vessels, when completed before the outbreak of war, even though in anticipation of war, is valid if in conformity to the laws of the state of the vendor and of the vendee.

(b) The transfer of a private vessel from a belligerent's flag during war is recognized by the enemy as valid only

when bona fide and when the title has fully passed from the owner and the actual delivery of the vessel to the purchaser has been completed in a port outside the jurisdiction of the belligerent states in conformity to the laws of the state of the vendor and of the vendee.

TOPIC III.

What regulations should be made in regard to the treatment of vessels of one belligerent bound for or within the ports of the other belligerent at the outbreak of war?

CONCLUSION.

1. Each state entering upon a war shall announce a date before which enemy vessels bound for or within its ports at the outbreak of war shall under ordinary conditions be allowed to enter, to discharge cargo, to load cargo, and to depart, without liability to capture while sailing directly to a permitted destination. If one belligerent state allows a shorter period than the other, the other state may, as a matter of right, reduce its period to correspond therewith.

2. Each belligerent state may make such regulations in regard to sojourn, conduct, cargo, destination, and movements after departure of the innocent enemy vessels as may be deemed necessary to protect its military interests.

3. A private vessel suitable for warlike use, belonging to one belligerent and bound for or within the port of the other belligerent at the outbreak of war, is liable to be detained unless the government of the vessel's flag makes a satisfactory agreement that it shall not be put to any warlike use, in which case it may be accorded the same treatment as innocent enemy vessels.

DISCUSSION AND NOTES.

Early opinions.-Molloy, writing in the latter part of the seventeenth century, says:

If the ships of any nation happen to arrive in any of the King of England's ports, and afterwards, and before their departure, a war breaks out, they may be secured, privileged without harm of body or goods; but under this limitation, till it be known to the King, how the Prince or Republick of those, whose subjects the parties are, have used and treated those of our nation in their ports. But if any should be so bold as to visit our ports after a war is begun, they are to be dealt with as enemies. (De Jure Maritimo, Bk. I, c. I, XVII.)

The subjects of one of the belligerent states found within the jurisdiction of the other belligerent at the

outbreak of war were liable to be detained as prisoners of war in early times. Their property was also liable to seizure. Ayala, in 1579, approved the practice of detaining the persons. Grotius, in 1625, permitted it as a means of weakening the enemy. Bynkershoek, in 1737, however, mentions it as a right seldom used. Napoleon did detain some English tourists in 1803.

A treaty of the United States and Great Britain, ratified in 1795, provided:

ART. XXVI. If at any time a rupture should take place (which God forbid) between His Majesty and the United States, the merchants and others of each of the two nations residing in the dominions of the other shall have the privilege of remaining and continuing their trade, so long as they behave peaceably and commit no offense against the laws; and in case their conduct should render them suspected, and the respective Governments should think proper to order them to remove, the term of twelve months from the publication of the order shall be allowed them for that purpose, to remove with their families, effects, and property, but this favor shall not be extended to those who shall act contrary to the established laws.

Later practice as to persons.-The custom of allowing subjects of one of the belligerent states to sojourn in the other belligerent state during good behavior has now become quite generally recognized. For special reasons, however, the enemy subjects are sometimes expelled, as in the early days of the Boer war in 1899. At the commencement of the Russo-Japanese war a regulation which bore severely on many Japanese in the Far East was issued by Russia February 27, 1904:

1. Les sujets du Japon sont autorisés à continuer sous la protection des lois russes leur séjour et l'exercice de professions paisibles dans l'Empire de Russie à l'exception des territoires faisant partie de la Lieutenance Impériale en Extrême-Orient. (Journal de St. Pétersbourg, 16 (29) fevrier, 1904.)

This made possible the immediate expulsion of Japanese who had perhaps built up trade which could not be immediately discontinued without great hardship. The Japanese did not make similar regulations. Those Russians who remained in Japan were required to register, as were the Chinese during the Chino-Japanese war.

It may be said that as a general rule the belligerent does not drive out of his jurisdiction subjects of his opponent. Many treaties specifically provide for their sojourn. The treaty of the United States with Italy in 1871 reads as follows:

ART. XXI. If by any fatality which can not be expected, and which may God avert, the two contracting parties should be engaged in a war with each other, they have agreed, and do agree, now for then, that there shall be allowed the term of six months to the merchants residing on the coasts and in the ports of each other, and the term of one year to those who dwell in the interior, to arrange their business and transport their effects wherever they please with the safe conduct necessary to protect them and their property, until they arrive at the ports designated for their embarkation. And all women and children, scholars of every faculty, cultivators of the earth, artisans, mechanics, manufacturers and fishermen, unarmed and inhabiting the unfortified towns, villages, or places, and, in general, all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt, or otherwise destroyed, nor their fields wasted by the armed force of the belligerent in whose power, by the events of war, they may happen to fall; but if it be necessary that anything should be taken from them for the use of such belligerent, the same shall be paid for at a reasonable price.

And it is declared that neither the pretence that war dissolves treaties, nor any other whatever, shall be considered as annulling or suspending this article; but on the contrary, that the state of war is precisely that for which it is provided, and during which its provisions are to be sacredly observed, as the most acknowledged obligations in the law of nations.

Later practice as to vessels.-The French declaration of March 27, 1854, states:

ART. I. Six weeks from the present date are granted to Russian ships of commerce to quit the ports of France. Those Russian ships which are not actually in our ports, or which may have left the ports of Russia previously to the declaration of war, may enter into French ports, and remain there for the completion of their cargoes, until the 9th of May, inclusive.

The British order in council of March 29, 1854, stated that

Her Majesty, being compelled to declare war against His Imperial Majesty the Emperor of all the Russias, and being desirous to lessen as much as possible the evils thereof, is pleased, by and