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of American vessels, on delivery of their papers, that, in order to prevent the occasion of embarrassment on their arrival in this country, it is necessary that each and every passenger, other than emigrants, and the wife and minor children of any gentleman, accompanied by said gentleman, should be protected by passport duly issued or countersigned, should such passenger be a citizen of this country, by a diplomatic agent or consul of the United States; but otherwise to be issued by the proper authority of the country of which they are citizens, and countersigned by a United States diplomatic agent or consular officer.

"Instructions have been issued to the collectors of the several ports of entry in the United States, advising them that in all cases where passengers arrive at any port in the United States without a proper passport, such passengers shall not be permitted to land, nor any permit be given for the landing of their baggage, until notice shall have been duly given to the United States military authorities within the district, who will dispose of such passengers and baggage under instructions from the War Department."

Moore's Digest, vol. III, pp. 1020, 1021; Circular No. 56, March 15, 1865, MS. Circulars, I. 282.

In reply to a request made by a gentleman at the University of Virginia for a passport for himself and his family, Mr. Seward, in enclosing a copy of the passport regulations, said: "As it is presumed that you have been a colonel in the service of the insurgents, pursuant to a recent order of the President, any passport which may be issued to you will contain the condition that you do not return to the United States without the President's permission. If you are a paroled prisoner, no fee will be required for the passport.'

Moore's Digest, vol. III, p. 1021; Mr. Seward, Sec. of State to Mr.
Maury, Sept. 5, 1865, 70 MS. Dom. Let., 307.

"Lord Hawkesbury presents his compliments to Mr. Gore, and has the honor to inform him that it will be requisite for such citizens of the United States of America as may be desirous of proceeding from this country to France to apply for passports at the alien office, which passports will be granted gratis on their producing one from Mr. Gore."

Moore's Digest, vol. III, p. 1021; Lord Hawkesbury, for. sec., to Mr. Gore, Am. commissioner, circular, Downing Street, Friday, June 10, 1803, Papers relative to the Commissioners under the 7th article of the Treaty with England, 1794, III., MSS. Dept. of State.

Early in December, 1901, the British War Office gave notice that, "in consequence of the establishment of martial law in all South African ports," no person would, except under special circumstances,

be allowed, on and after Jan. 1, 1902, to land in that country without a permit. This permit, in the case of persons proceeding from ports in the United Kingdom, was to be obtained from the Permit Office, 39 Victoria Street, S. W., London; and each applicant was required to produce a certificate, signed by the agent general for the Cape Colony or Natal, a Member of Parliament, Justice of the Peace, Banker, Parish Priest or Minister, or Officer of H. M. forces, that he possessed at least 100 pounds or was in a position to maintain himself on arrival. in South Africa; but subjects of foreign powers were allowed to produce satisfactory evidence to the same effect from their respective embassies or legations in London. Persons proceeding from British colonial ports were required to obtain like permits from the Colonial Secretary or from some officer appointed by the Colonial Government; while persons sailing from a foreign port were to obtain them from the British consular officer there. In the case of a family a separate permit was required from each son or daughter over 16 years of age. The foregoing permits, it was expressly stated, were "available only to enable passengers to land in South Africa, and are no guarantee that they will be allowed to proceed inland." Permits to proceed inland were to be applied for at the port of disembarcation: and warning was given that there were "still thousands of persons waiting at the coast ports for an opportunity to return to their homes," who would "probably have precedence over later arrivals."

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Moore's Digest, vol. III, pp. 1021, 1022; The London Times, weekly ed..
Dec. 6, 1901, p. 778, column 4; U. S. Consular Reports, LXVIII.

Your despatch No. 177, of the 12th ultimo, has been received. It relates to passports for United States citizens in Guatemala, which, it appears, even when issued at the legation, are required to be countersigned at the foreign office. This, no doubt, for the reasons which you assign, is an inconvenient regulation for the holders, and abstractly may scarcely be warrantable in time of peace. It seems. however, that that condition had not technically been reached at Guatemala, for even the minister for foreign affairs, in his note to you of the 10th ultimo, speaks of a decree ready for the press, raising the state of siege, or, in other words, abolishing martial law. If circumstances had required that state to continue, its usual incidents. including the countersigning of passports, may scarcely be regarded as unreasonable. If, however, the regulation should in your judg ment be unnecessarily continued or vexatiously required, you will temperately protest against it as unpalatable to your Government."

Mr. Fish, Sec. of State, to Mr. Williamson, No. 97. July 24, 1874. MS.
Inst. Costa Rica, XVII, 190.

Moore's Digest, vol. III, p. 1022.

WIRELESS TELEGRAPHY IN TIME OF WAR.

PRELIMINARY PROVISIONS.

ARTICLE 1. The air is free. States have over it, in time of peace and in time of war, only the rights necessary for their preservation. ARTICLE 2. In the absence of special provisions, the rules applicable to ordinary telegraphic correspondence are applicable to wireless telegraphic correspondence.

PART I.-TIME OF PEACE.

ARTICLE 3. Each State has the right, in the measure necessary to its security, to prevent, above its territory and its territorial waters, and as high as need be, the passage of Hertzian waves whether they issue from a government apparatus or from a private apparatus situated on land, on a vessel, or on a balloon.

ARTICLE 4. In case of prohibition of correspondence by wireless telegraphy, the government must immediately notify the other governments of the prohibition which it decrees.

PART II.-TIME OF WAR.

ARTICLE 5. The rules accepted for time of peace are, in principle, applicable to time of war.

ARTICLE 6. On the high sea, in the zone corresponding to the sphere of action of their military operations, belligerents may prevent the emission of waves even by a neutral subject.

ARTICLE 7. Individuals are not considered as war spies, but should be treated as prisoners of war if captured when, in spite of the prohibition of the belligerent, they transmit or receive wireless dispatches between the different parts of an army or of a belligerent territory. The contrary should be the case if the correspondence is had under false pretenses.

The bearers of dispatches sent by wireless telegraphy are assimilated to spies when they employ dissimulation or ruse.

Neutral vessels and balloons which, through their communication with the enemy, can be considered as placed at its service may be confiscated as well as their dispatches and apparatus. Neutral subjects, vessels, and balloons, if it is not established that their corre

spondence was intended to furnish the adversary with information relating to the conduct of hostilities, may be removed from the zone of operations and their apparatus seized and sequestered.

ARTICLE 8. A neutral State is not obliged to oppose the passage above its territory of Hertzian waves destined for a country at war. ARTICLE 9. A neutral State has the right and the duty to close or take under its administration an establishment of a belligerent State which it had authorized to operate upon its territory.

ARTICLE 10. Every prohibition of communicating by wireless telegraphy formulated by belligerents should be immediately brought by them to the notice of the neutral governments.

Institute (1906), pp. 164-166.

Russian declaration, 1904.

During the Russo-Japanese war in 1904, in April, there was issued by Admiral Alexieff a circular in regard to the use of new means of communication by newspaper correspondents. This was particularly aimed at certain neutral press boats which were using wireless telegraph in transmitting news of the war. The circular handed by the Russian diplomatic agents to the foreign offices of various states was reported as follows:

"I am instructed by my Government, in order that there may be no misunderstanding, to inform your excellency that the lieutenant of His Imperial Majesty in the Far East has just made the following declaration: In case neutral vessels, having on board correspondents who may communicate news to the enemy by means of improved apparatus not yet provided for by existing conventions, should be arrested off Kwangtung, or within the zone of operations of the Russian fleet, such correspondents shall be regarded as spies, and the vessels provided with such apparatus shall be seized as lawful prizes." It should be observed that the Russian Government merely informs other governments that Admiral Alexieff has issued this Declaration. The Russian Government does not assert that it proposes permanently to support the position taken by its lieutenant.

The French text of the Declaration was as follows:

Dans le cas où des vapeurs neutres, ayant à bord des correspondants qui communiqueraient à l'ennemi des nouvelles de guerre au moyen d'appareils perfectionnés n'étant pas encore prévus par les conventions existantes-seraient arrêtés auprès de la côte du Kuantoung où dans la zone des opérations de la flotte russe-les correspondants seront envisagés comme espions et les vapeurs, munis d'appareils de télégraphie sans fil-saisis en qualité de prise de guerre. Considering the provisions of this circular in the reverse order of their statement, the first matter is the treatment of the vessels. The implication is that the equipment with wireless telegraphic outfit by

a neutral vessel "within the zone of operations" is sufficient ground for the seizure of the vessel as lawful prize. If this means that the ordinary rules of prize courts hold for such a vessel, it is difficult to understand how an adjudication can be made. If the circular means that such vessels, when actually engaged in communicating information of a military character to the enemy, are guilty of unneutral service and are liable to the penalties consequent upon such service, the provision is clear, for such would be the offense, and the regular penalty would be confiscation of vessels and equipment.

The attempt to bring under the rules of contraband and violation. of blockade many forms of action in time of war which have only a remote relation to either has led to confusion, which shows the need of further elucidation of the principles of unneutral service which involves actual participation by service in behalf of the enemy.

Spies. The treatment of the correspondents using wireless telegraphy as spies raises further questions.

The treatment of a captured spy is usually summary and extreme, and while article 30 of the Hague Convention respecting the Laws and Customs of War on Land prescribes that "a Spy taken in the act can not be puninshed without previous trial," yet, the penalty is usually extreme. If, then, the proclamation of the Russian admiral is admitted as in accord with practice, the position of a newspaper correspondent would be exceedingly dangerous when news is communicated to the enemy, since he might become liable to treatment as a spy.

Both Russia and Japan are, however, parties to the above-mentioned convention, which defines the term "spy," in article 29, as follows:

An individual can only be considered a spy if, acting clandestinely, or on false pretenses, he obtains, or seeks to obtain, information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.

Thus, soldiers not in disguise, who have penetrated into the zone of operations of a hostile army to obtain information, are not considered as spies. Similarly the following are not considered as spies: Soldiers or civilians, carrying out their mission openly, charged with the delivery of dispatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver dispatches, and generally to maintain communication between the various parts of an army or territory.

This rule is in accord with general practice, both for land and naval warfare. There is no basis upon which an officer in the military service can set up a new definition. The fact that a news correspondent uses in transmitting communications "improved apparatus not vet provided for by existing conventions" does not constitute him a spy. It is not the means of communication but the nature of the act

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