we have decided and we declare that the claim presented by the Government of the United States against Her Most Faithful Majesty has no foundation, and that no indemnity is due by Portugal in consequence of the loss of the American brig, the privateer General Armstrong " (b). This case is commonly treated as supporting the conclusion that if a belligerent who is attacked in neutral waters elects to defend himself, instead of trusting to neutral protection, he will free the neutral State from any further responsibility (c). And this is no doubt true, so long as it is understood that there was a genuine election on the part of the belligerent, in circumstances where an appeal for local protection was both possible and not manifestly useless. But neither the facts nor even the terms of the award, notwithstanding some ambiguities of expression, appear to warrant the conclusion that the mere engaging in hostilities in self-defence, in other circumstances, will produce this result. Where, indeed, a belligerent himself commences hostilities in neutral waters, it is clear that he will forfeit all claim to neutral protection or possible indemnity. But neither principle nor analogy sanction the view that the mere warding off of a hostile attack, under circumstances where an appeal for local protection was either impossible or unlikely to be effectual, would deprive a belligerent either of his right to protection, if that subsequently became available, or of his right to indemnity, if such protection were improperly withheld (d). If, however, the property of one belligerent, who was himself not in fault, has been captured by the other in violation of neutral territory, and no restitution has been made by the State or Courts of the captor (e), then a duty of restitution, or, failing this, a duty of seeking or in certain circumstances even of making reparation, will, under the customary law, devolve on the neutral State itself. This may take one of several forms: (1) If the property in question is subsequently brought within the neutral jurisdiction, then the neutral State ought on proof of the delinquency to cause restitution to be made either administratively, or through its Courts (f); the latter, although not ordinarily competent to decide on the validity of belligerent captures, having in such a case jurisdiction to decree restitution, although not to award damages (g). Nor would the neutral jurisdiction in such a case be ousted by the fact of the property having been condemned by the Courts of the captor, or even by its having passed into the hands of a transferee (h); although it would be otherwise if the vessel illegally captured had previously been commissioned as a public vessel (i). (2) If the property in question is not brought within the neutral jurisdiction, then under the customary law, at any rate, the neutral State whose territory has been violated will be bound, at the instance of the aggrieved belligerent, to prefer a claim for redress against the State of the captor; and, failing redress by diplomatic means, to prosecute the claim by such ulterior methods as may reasonably be expected from a State in its position (k). (3) Finally and especially if there was a breach of duty on the part of the neutral State in providing protection when appealed to it will be incumbent on it to afford compensation to the injured belligerent (1). At the same time, the obligation as regards protection is not, it is conceived, an absolute one, but is limited to an honest use of such means as were then available for the purpose of avoiding the injury complained of (m). But as between States that are parties to the H. C. XIII. 1907, these obligations are, as we shall see, degree modified (n). in some (iii) THE QUESTION OF SELF-REDRESS WHERE NEUTRAL HOSPITALITY IS ABUSED. THE RYESHITELNI. [Takahashi, 437; Smith and Sibley, 116 (1904).] The Seizure.] ON the 10th of August, 1904, during the RussoJapanese war, the Russian destroyer Ryeshitelni, having escaped from Port Arthur and being pursued by the enemy, took refuge. in the Chinese port of Chefoo, which was outside the region of the war. On the 11th of August, the Japanese destroyers Asashiwo and Kasumi, having discovered this fact, also entered Chefoo. On the following day, finding that no steps had been taken to dismantle the Ryeshitelni, a Japanese officer and (h) The transfer in such a case not being binding on the neutral: see Westlake, ii. 199; Hall, § 227; but see also Wheaton (Dana), § 531, n. (a). (i) As to which cf. vol. i. 271; and infra, p. 477. (k) See Hall, § 227. A minor Power, that is, would scarcely be expected to prosecute the claim by force of arms against a major Power, I.L. under pain of indemnifying the injured party, except in a case where there had been some positive breach of duty. (1) This was the basis of the claim made by the United States against Portugal in the case of The General Armstrong. (m) See H. C., XIII., 1907, Arts. 3, 8, 25; and Westlake, ii. 203. (n) See p. 422, and n. (g), infra. 27 escort waited on the Russian commander and offered him the alternative of either quitting Chefoo or surrendering to the Japanese. The Russian commander refused to accept either alternative, and, whilst the discussion was proceeding, ordered his men to destroy the engines and to fire the magazine, with the result that an explosion took place which damaged the fore part of the vessel and caused some casualties amongst the Japanese (o). Hostilities then ensued, in the course of which the Ryeshitelni was captured by the Japanese destroyers and towed out of port. According to the Russian official report, the Ryeshitelni had lowered her flag and been dismantled before she was attacked by the Japanese; the action of the Russian commander being attributed to the fact that he was defenceless and desired to destroy his vessel in order to prevent her from falling into the hands of the enemy. A Chinese report, made before the attack, states that the Russian commander had agreed to disable his engines and to disarm the vessel; but it does not state that this had been actually done, whilst the fact of the magazine having exploded in the course of her seizure serves, at any rate, to show that the ammunition had not been removed from the vessel at the time of attack. The Justificatory Memorandum issued by the Japanese Government.] A protest against the seizure was subsequently made by Russia through the French Minister at Tokio; but this Japan refused to receive on the ground that, as between States already at war, such a protest was nugatory. China also made. a protest to the Japanese Government, and demanded the restitution of the captured vessel; this demand being also refused. But in view of the gravity of the occurrence Japan drew up and circulated a memorandum justifying her action. This was, in effect, as follows: The position occupied by China in relation to the war was really anomalous. The war was being waged in part, at any rate, in and about territory belonging to China. Japan had, indeed, engaged, in the interest of foreign intercourse, to respect the neutrality of China outside the actual region of the war, but only on condition that Russia did the same. Such (0) He is also said to have seized the Japanese officer and jumped over board, carrying the latter with him. territory had accordingly become conditionally neutral; but a failure on the part of Russia to comply with this condition, and the occupation or use as an asylum by the Russian forces of any place within it, had the effect of nullifying this neutrality. The very fact of the Ryeshitelni taking shelter from attack in Chefoo constituted a breach of the neutrality of China as established by the agreement of the belligerents; and Japan was therefore justified in regarding that place as belligerent quoad hoc. This was, moreover, only one of a number of instances in which Russia had violated Chinese neutrality (p). Japan could not consent that Russian warships should, as the result of her breach of engagement, find in the harbours of China a refuge from capture and destruction. The Ryeshitelni, moreover, was fully armed and manned when visited by the Japanese. The case had no analogy to that of the Florida (q), for the reason that Brazil's neutrality was unconditional and complete and the port of Bahia far from the seat of war. The Ryeshitelni was also the first to commence hostilities; and the case therefore resembled rather that of the General Armstrong. Experience had shown that China would take no adequate steps to enforce her neutrality laws; and if the Ryeshitelni, then other and larger Russian warships might well have sought shelter in Chefoo and have issued thence to attack Japan. Japan based her defence mainly on the contention that Chinese territory, even outside the region of the war, was only conditionally neutral, and that the entry of the Ryeshitelni into Chefoo constituted at once a breach of engagement by Russia and a use of that port for military purposes, which nullified its neutrality. But in fact China was wholly neutral, save for the fact that the belligerents were fighting in and about a province filched from her; whilst the contention that the entry of a fugitive vessel into Chefoo constituted a military use of that place which nullified its neutrality, is on the face of it untenable (r). Chefoo was really outside the region of the war and in the same position as any other neutral port. Nor, having regard to the proceedings of the Japanese commander, can it be said that the (p) The establishment of a radiographic station by Russia at Chefoo, and the cases of The Mandjur, The Askold, and The Grozovoi are also referred to as to which, see pp. 480-1, 487-8, infra. (q) Supra, p. 410, (r) On the question of the use of neutral territory as an asylum, see infra, p. 488. Ryeshitelni was the aggressor. Hence the seizure of that vessel was an undoubted violation of Chinese neutrality. But the contention that China was either unable or unwilling to fulfil her neutral duties and that by her default she exposed Japan to serious danger, opens up a new and important question-which may need to be dealt with in the future-as to whether such a violation of neutral territory is under any circumstances legally admissible. By current usage, indeed, the only exception admitted to the usual immunity of neutral territory occurs in the case of self-defence against attack (s). Nevertheless, where a neutral Power has by its persistent infractions of neutrality shown itself unable or unwilling to discharge its neutral obligations and where the injury threatened by some immediate breach is grave and not otherwise remediable, it is conceived that an act of self-redress on the part of the belligerent whose interests are impugned, similar in its character to that which occurred in the case of the Ryeshitelni, would be legally admissible, as an alternative to war and on the analogy of those methods of self-redress falling short of war-often virtually measures of police-which have already been described (t). Viewed in this light, and assuming the Ryeshitelni not to have been disarmed, the action of Japan was not perhaps without some measure of justification, even though exceeding the limits of admitted usage (u). A similar incident occurred in March, 1915, when the German cruiser Dresden sought refuge in Cumberland Bay, in Mas-a-Tierra, within Chilean territorial waters, asking for permission to remain there for eight days for the purpose of repairing her engines. The Governor of the port refused, as he considered the reason unfounded, and ordered the Dresden to leave within twenty-four hours or to be interned. Nothing further happened until five days later a British squadron appeared and summoned the Dresden, which was still flying her colours and had her guns trained, to surrender. Upon refusal, the British opened fire, whereupon the captain of the Dresden blew up his ship. Upon protest by the Chilean Government Great Britain apologised, but pointed out that in view of the former abuse by the Dresden and other German vessels of Chilean neutrality and the inability in this instance of the Chilean Government to enforce its authority, which was being defied by the Dresden, the action of the British commander was not unwarranted (x). When, in August, 1915, a British submarine stranded in Danish territorial waters, she was granted twentyfour hours in which to refloat, Danish warships standing by. Within this period a German destroyer discharged a torpedo and also opened fire. The crew thereupon abandoned the submarine, but whilst in the water were fired upon by machine guns and shrapnel. Upon protest by the Danish Government, Germany apologised; but the attack on defenceless shipwrecked men was, as Pearce Higgins declares, inhumane and barbarous (y). (s) Supra, p. 416. (t) See vol. i. 360. (u) See Westlake, ii. 210; but, contra, Lawrence, War and Neutrality, 292. (x) Parl. Pap. 1915 (Cd. 1859); Garner, ii. § 562. Baty denies that |