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THE GREEN BAG

weight on the score of impartiality, and it is certainly not supported by any reputation for learning in the law of nations on the part of the arbiter. Our own writers have by no means ac ceded to the doctrine of the award or to the assumed facts on which it was based. Thus Hon. Hannis Taylor ("International Law," page 701) says most convincingly the doc trine of the award "should certainly be modified in one particular. There can be no doubt that when a belligerent is attacked by another in neutral territory his primary duty is to appeal to the neutral sovereign for protection and to rely on him for it, provided time suffices, and such sovereign has the will and the power to respond to it effectively. If either of these conditions are wanting the unjustly assaulted belliger ent should be permitted to exercise his natural right of self-defense without freeing the neutral from responsibility." He sup ports this view by the opinion of Judge Story in the Anne (3 Wheeler, 447) and by the potent names of Dana and Lawrence. The precedent of the Armstrong revived its interest from an incident in the recent Russian-Japanese war. On the night of August n, 1904, a lieu tenant and party of men from the Japanese destroyers Asashio and Kasumi boarded the Russian destroyer Reshitelni in the neu tral Chinese harbor of Chifu, demanding that the Russians leave the port before dawn or surrender. The Russians instead assaulted the boarding party and sought to destroy their own ship. The Reshitelni was cap tured and towed from the port by the Japa nese. Japan replying to strictures on this viola tion of a neutral port cited, as a principal authority, the case of the General Armstrong, where a belligerent injured by such a breach was denied compensation from the neutral

because he (the claimant) was the aggres sor. On this Messrs. Smith & Sibley observe "It is, further, mere refinement to insist that the Russians were the aggressors in the Reshitelni incident, because the Russians offered resistance after the Japanese had boarded their vessel. So far as the Reshi telni incident is a question between the bel ligerents it is difficult, on any construction of the case of the General Armstrong, to defend the action of Japan, which was clearly the aggressor. That case, further, seems no less clearly to show that China has incurred some liability to Russia. If anything is certain in the matter, it is that the Russian commander had previ ously applied to the Chinese commanders for protection. But this circumstance decisively distinguishes the Reshitelni incident from the case of the General Armstrong where the neutral was held not, liable." This opinion from British sources cannot be suspected of unfriend liness to Japan. See "International War" as interpreted during Russian-Japanese war, by Smith & Sibley, pp. 120 et seq. Mr. Hall, after stating the case of the Armstrong, lays down a broad rule thus: "A neutral state which overlooks such violation of its neutrality as it can rightly be expected to prevent, or which neglects to demand reparation in the appropriate cases, becomes itself an active offender. It is bound, therefore, to give satisfaction in some form, if satisfaction be required, to the belligerent whose interests have been prejudiced by its laches. The nature of this satisfaction is, of course, a matter for agreement between the parties."

Hall's " International Law" (fifth ed.) p. 625. IOWA CITY, IOWA, May, 1906.