Some Questions of International Law. and no moment for deliberation." And as our most eminent jurist1 has well said in a famous case, "if there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are sup posed to enter such ports and remain in them while allowed to remain, under the protection of the Government of the place." "It is the duty of the belligerent to refrain from the exercise of hostilities within the shelter of neutral territorial waters,2 and, if any vessel, whether belligerent or neutral, be assailed within such limits, it is incum bent on the neutral Government in the first instance to defend her against her assailant, and, if she be captured, to exert itself to the 'Chief Justice Marshall in Exchange r. McFacldon, 7 Cranch 116. 'See the opinion of Sir V. Scott (later Lord Srowell) in the case of the Anna (5 C. Rob. 373). where it was held that the capture of an enemy's ship in neutral waters is illegal, and that such a vessel must be restored by the prize court of the captor. Sir W. Scott gave it as his opinion that this would be so even if the vessel had been pursued into neutral waters. Instances of the vi olation of neutral territory have not been alto gether rare, even in the present century. They were perhaps the rule rather than the exception in the eighteenth century. The United States was guilty of at least two such violations during the Civil War—the Florida in Brazilian, and the Chesapeake in British waters; but in both these cases, the acts were disavowed and ample apology and reparation were made. The case of the General Armstrong (see Wharton's Digest, II., §¿27), in which Louis Napoleon acted as arbitrator in 1852, has been cited in sup port of the action of the Japanese, but the case is not at all analogous. Besides, although the decision was doubtless right, it appears to have been based on a wrong principle. In that case it was decided that the Portugese Government could not be held responsible for the destruction of the American privateer Central Armstrong in consequence of an attack by a British fleet in Portugese waters in 1814. inasmuch as the Ameri can vessel had begun the actual attack and be cause her captain had not applied "from the be ginning for the intervention of the neutral sov ereign." As Lawrence (Principles, p. 541,) points out. while this award was right, the principle of the decision was wrong in so far as it appears to support the broad doctrine laid down by some writers (see Hall, p. 628), that a "belligerent, who. when attacked in neu tral territory, elects to defend himself, instead of trusting for protection or redress to his host, by his own violation of sovereignty frees the
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neutral from responsibility." Whether we accept utmost to effect restitution or otherwise to secure redress for the injury."3 The Japanese Government refused to of fer any apology, disavowal or restitution for this gross violation of Chinese neutral ity, and it must be admitted that her conduct in this matter, although altogether excep tional, constitutes a blot upon a record which is, thus far, otherwise remarkably clean and spotless from the standpoint of International Law. Three of the escaped vessels of the Rus sian fleet at Port Arthur sought refuge at the German harbor of Tsing-Tau near the entrance of Kiao-Chow Bay (the German concession on the Shan-Tung peninsula) on the night of August n, riz.—the battleship Czarevitch, the protected cruiser Xovik and several torpedo-boat destroyers. The Novik, which was not seriously injured, was or dered to leave within twenty-four hours, in accordance with the instructions of the Ger man Government; but the Czarevitch and several of the torpedo-boat destroyers, being in an unseaworthy condition, were permitted to remain to the end of the war on condition that the vessels be disarmed and their crews kept in the custody of the German authorities until the end of the war/ On August 12 the Russian cruiser Askold and the destroyer Grosozvi arrived at Shang hai—the former vessel being badly dam aged, but the latter apparently in fairly good or reject the principle supposed to underly the decision of Napoleon in the case of the General Armstrong, it has no applicability in the case of the Ryeshilclni. In the latter case, Japan was clearly the actual as well as the real aggressor, and the Russian commander had placed himself under the protection of the Chinese Admiral who proved to be a weakling or a coward. "Walker, Seience, p. 451. 'See the London Times (weekly ed.) for Aug ust 19, 1004 The German Government is said to have taken the position that belligerent warships may repair damages for purposes of navigation in any neutral port, but that their armament must not be repaired or augmented. See New York Tinifs for August 14, 1934.
