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On August 12, 1904, the Russian cruiser Askold and the Russian torpedo-boat destroyer Grozoroi, which had escaped from Port Arthur, arrived at Shanghai, where they sought to obtain repairs. On the 17th of August they were visited by Chinese officials, who reported that the repairs of the Grozovoi would consume eighteen days and those of the Askold twenty-eight. On the 19th of August the taotai notified the Russian consul-general that the vessels had been in Shanghai seven days, and that he would require the Grozovoi to leave within twenty-four hours and the Askold to complete her repairs within forty-eight hours, and to go out within twenty-four thereafter. This demand the Russian consul-general refused. Meanwhile, the Standard Oil Company had asked protection for their plant, near which the Askold lay, in case the latter should be attacked by the Japanese. On the 20th of August the taotai wrote to the senior consul and disclaimed further responsibility for anything that might happen. The consul-general of the United States called a meeting of the consular body to consult what action the neutral powers should take. Meanwhile, he was instructed by his Government that, although he was to protest against any act endangering neutral interests, he was not competent, in union with the consular body, to give effect to China's neutrality; that he was to safeguard only, as far as possible, American neutral interests if threatened, but was not to commit himself to any theory that the United States could be called upon by China or by the foreign consuls. to guarantee Chinese neutrality. At the same time, the American minister at Peking was directed to use his influence to support the Government of China in its demand for the neutrality of its waters. The taotai at Shanghai subsequently notified the Russian consulgeneral that both boats must complete their repairs by noon of the 23d of August and leave immediately thereafter. The Russian consul-general again refused to comply with the taotai's demand, and, as the repairs were being executed by a British company, over which the taotai had no control, the latter applied to the British consulgeneral, in order that the work might be stopped. The British consul-general, after consultation with the Russian consul-general, gave notice that work would stop on the 24th of August. On that day the taotai received a dispatch from the Russian consul-general to the effect that both vessels were to be disarmed. On the 27th of August Prince Ch'ing informed the American minister at Peking that the commanders of the Russian vessels had agreed to lower their flags on the evening of the 25th of August; that this was to be considered as equivalent to disarmament, and that the soldiers would be withdrawn and the sailors sent home, in accordance with the precedent established in the case of the Mandjur. Prince Ch'ing further stated that a telegram had at once been sent to the taotai to

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see that this was carried out, with the result that there would be no damage to the property of the Standard Oil Company or other foreign interests at Shanghai.

For. Rel. 1904, 137-146.

It appears that in the case of the Russian cruiser Askold and the destroyer Grozovoi the Japanese Government on the 19th of August notified Peking that the Russian ships should be required to leave. Shanghai, either immediately or, if necessary, after two days' repairs to make them seaworthy; and that, if they were unwilling to leave Shanghai, they should be disarmed without making any repairs and detained in port till the conclusion of the war. In the event of China's failure to enforce either of these three alternatives, the Japanese Government reserved the right to take such self-protective measures as it might deem necessary, reponsibility for the consequences to rest with China. Subsequently, in view of the difficult. position of the Chinese Government, Japan consented to a delay till the 21st of August; and when the Chinese Government granted on the 23d of August an extension for repairs and for the departure of the ships till noon of the 28th, the Japanese Government again protested.

For. Rel. 1904, 426.

In connection with the arrival at Shanghai of the Russian cruiser Askold, the American consul-general was instructed that he was not to commit himself to any theory that the United States could be called on by China or by the foreign consuls to guarantee Chinese neutrality; that he was to safeguard only, as far as possible, American neutral interests if threatened, and to avoid all indications of general policy, and that the utmost circumspection was required.

Mr. Adee, Act. Sec. of State, to Mr. Conger, min. to China, tel., Aug. 23, 1904, For. Rel. 1904, 137.

The American minister at Peking was at the same time directed to use his influence to support the Chinese Government in its demand for the neutrality in Chinese waters, since an abuse of her neutrality by one of the belligerents would naturally provoke reprisals by the other. (Mr. Hay, Sec. of State, to Mr. Conger, tel., Aug. 26, 1904, For. Rel. 1904, 137.)

In August, 1904, Dr. von Mühlberg, imperial acting secretary of state for foreign affairs, stated that the Russian ships which had taken refuge at Tsingtau, including the battle ship Cesarevitch and three torpedo boats, had been disarmed by the German authorities and would not be allowed to repair. Dr. von Mühlberg remarked that the principles of international law with regard to the repair of belligerent ships in neutral ports were very difficult of application,

but that, while it could not be laid down that Germany would under no circumstances allow belligerent ships to repair in her ports, it had been decided in the present instance not to allow it to be done, and that he had reason to believe that the British Government would act in a similar case as the German Government had done. As to the officers and men belonging to the Russian ships, and numbering about 1,000, the Japanese Government had been asked whether it objected to their being sent to Russia under proper safeguards.

Mr. Dodge, chargé at Berlin, to Mr. Hay, Sec. of State, No. 440, Aug. 17, 1904, For. Rel. 1904, 323.

September 13, 1904, the Russian ambassador and the Japanese minister at Washington both advised the Department of State of the arrival at San Francisco of the Russian transport or auxiliary cruiser Lena, with a crew of 500 men and an armament of 27 quickfiring guns. The Russian ambassador stated that the vessel was in an unseaworthy condition, and asked that she might receive all aid compatible with neutrality. The Japanese minister asked that “appropriate measures" be taken. On September 14 the Russian ambassador was advised that if the vessel was repaired, only such bare repairs could be allowed as might be necessary to render the vessel seaworthy and enable her to reach the nearest home port, and that even such repairs could be permitted only on condition that they should not prove to be too extensive; that an inspection made by United States officers at San Francisco showed that the repairs asked for included a complete outfit of new boilers and the reconstruction of engines, which would consume at least four or five months, or, according to the captain's estimate, eight months, and amount to a renovation of the vessel. It was declared that this could not be allowed with a due regard to neutrality, and an immediate answer was desired as to whether the Russian Government preferred to have the limited repairs made or to have the vessel laid up at the Mare Island Navy-Yard. On the 15th of September the Russian ambassador asked for a delay of forty-eight hours, in order that he might receive the instructions of his Government, but he was advised in reply that the captain of the Lena had informed the American naval authorities at San Francisco that the ship, being unseaworthy, must disarm, and had asked that she be allowed to make needed repairs. In view of this formal application of the captain of the vessel, the President, on the afternoon of the 15th of September, issued an order directing that the Lena be taken into custody by the naval authorities of the United States and disarmed under the following conditions: (1) That the vessel be taken to the Mare Island Navy-Yard and there disarmed by removal of small guns, breechblocks, small arms, ammunition, and ordnance stores, and such other dismantlement as might H. Doc. 551-vol 7-64

be prescribed by the commandant of the navy-yard; (2) that the captain of the Lena should give a written guarantee that she should not leave San Francisco till peace had been concluded, and that the officers and crew should be paroled not to leave San Francisco till some other understanding as to their disposal might be reached between the United States and both belligerents; (3) that, after disarmament, the vessel might be removed to a private dock for such reasonable repairs as would make her seaworthy and preserve her in good condition during detention, or be so repaired at the navy-yard, should the Russian commander so elect, and that while at the private dock the commandant of the navy-yard should have the custody of the ship, and that the repairs should be overseen by an engineer officer to be detailed by him; (4) that the cost of repairs, of private docking, and of maintenance of the ship, officers, and crew while in custody should be borne by the Russian Government, but the berthing at Mare Island and the custody and surveillance of the vessel by the United States; (5) that the vessel, when repaired, if peace had not then been concluded, should be taken back to Mare Island and there held in custody till the end of the war. The Russian ambassador expressed the adherence of his Government to these conditions, but asked that the officers and crew of the vessel, except 5 officers and 100 seamen, who were necessary for her care, might be permitted to leave the United States. The Japanese Government, on the other hand, asked that all the officers and crew be detained in the United States till the termination of hostilities. The President decided that it would not be consistent with neutrality to grant the request for the repatriation of any of the officers or crew of the Lena, unless both the belligerents agreed to it. Without such an agreement he regarded the position of the men as being identical in principle with that of a military force entering neutral territory and there necessarily held by the neutral.

December 10, 1904, the Russian ambassador asked that the captain and crew of the Lena might be permitted to celebrate the name day of the Emperor on the 19th of the month, by hoisting the national flag over the vessel, dressing the ship, and firing the imperial salute. The United States assented to the display of the national standard and the dressing of the ship, but found it impracticable to agree to the firing of the salute, in view of the fact that, as the Lena was not in commission, but was lying in a friendly port completely disarmed and in the custody of the United States till the end of the war, her character as a warship, including the function of saluting and the right to receive salutes, was in abeyance.

For. Rel. 1904, 428-430, 785-790.

See, particularly, Mr. Adee, Act. Sec. of State, to Count Cassini, Russian amb., tels., Sept. 14 and 15, 1904; Mr. Loomis, Act. Sec. of State, to

Count Cassini, Sept. 24, 1904; Mr. Hay, Sec. of State, to Count
Cassini, No. 252, Dec. 14, 1904; For. Rel. 1904, 785-786, 787, 788, 789.

"It shall be lawful for the President, or such person as he shall empower for that purpose, to employ such part of the land or naval. forces of the United States, or of the militia thereof, as shall be necessary to compel any foreign vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, she ought not to remain within the United States." Sec. 5288, Revised Statutes.


§ 1318.

Although a neutral must not lend his territory for purposes of war, he may receive a beaten army or individual fugitives, provided he disarms them and does not allow them again to engage in the war. But as he can not be expected to provide for them himself, and as to require either belligerent to pay for their support would be indirectly aiding the other, " 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, Int. Law, 650; 5th ed. 626.

When belligerent troops, in order to escape the other belligerent, take refuge in neutral territory, if they do not lay down their arms they should be compelled to do so by the neutral sovereign. In such case they are protected by the law of nations from the opposing belligerent. This, it is true, is contested by Bynkershoek. "But Bynkershoek is not supported by the practice of nations. Some writers on public law maintain the sounder doctrine, that when the flying enemy has entered neutral territory, he is placed immediately under the protection of the neutral power, and that there is no exception to the rule that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. The Government of the United States has invariably claimed the absolute inviolation of neutral territory."

2 Halleck's Int. Law (3d ed., by Baker), 148.

"ARTICLE LVII. A neutral State which receives in its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war.

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