fortress is stationary, whereas a fleet or vessel on the high seas is usually in motion, and therefore less liable to sudden and unforeseen attack. Besides, those who approach a fortress, as a rule, do so voluntarily and with full knowledge of its whereabouts, whereas the poor Hull fishermen were wholly innocent even of any knowledge of the proximity of the Russian fleet, which was considerably out of its course. The fishermen were pursuing their ordinary peaceable avocation in a place where they had a perfect right to be, when they were suddenly surrounded and attacked without any warning whatsoever.

63

In a letter to the London Times for May 25, 1904, Professor Holland thus states the law regarding belligerent and neutral rights on the high seas:

"It is beyond doubt that the theoretically absolute right of neutral ships, whether public or private, to pursue their ordinary routes over the high seas in time of war is limited by the right of belligerents to fight on those seas a naval battle, the scene of which can be approached by such ships only at their proper risk and peril. In such a case a neutral has ample warning of the danger to which he would be exposed did he not alter his intended course. It would, however, be an entirely different affair if he should find himself implicated in belligerent war risks, of the existence of which it was impossible for him to be informed, while pursuing his lawful business in waters over which no nation pretends to exercise jurisdiction."

This statement of the law, which we believe to be correct, certainly lends no support to the extravagant claims of belligerent rights on the high seas advanced in certain naval

63 Count Cassini admitted that a stranger approaching a fortress or sentinel is entitled to a warning. Such a warning at sea is given by means of a blank shot.

circles, or to the apparent assumption in Russia of the right of the Baltic Fleet to traverse the high seas in disregard of the rights of neutral vessels, forbidding them to approach at their peril. If such a view were to prevail every belligerent warship on the high seas might become a source of public danger and a menace to neutral commerce. It is to be hoped that at its next session, the Hague Peace Conference will take into consideration the matter of rights and duties of belligerent warships on the high seas, and frame satisfactory rules and regulations on this important subject.

CHAPTER IX

THE HAY NOTE AND CHINESE NEUTRALITY

One of the most important and difficult problems which confronted the world during the Russo-Japanese War was that of maintaining the neutrality and integrity of the Chinese Empire. In order to preserve the integrity and neutrality of China proper, as well as to restrict the area of hostilities as much as possible, Secretary Hay, acting, it is said, at the suggestion of Germany, sent the following instructions to our representatives at St. Petersburg, Tokio and Peking on February 10, 1904:

"You will express to the Minister for Foreign Affairs the earnest desire of the Government of the United States that in the course of the military operations which have arisen between Russia and Japan, the neutrality of China and in all practicable ways her administrative entity shall be respected by both parties and that the area of hostilities shall be localized and limited as much as possible, so that undue excitement and disturbance of the Chinese people may be prevented, and the

1

'The phrase “administrative entity" was thought by some to be ambiguous. It is not really so, for it must mean the administrative integrity of that portion of the Chinese Empire which was actually administered or governed by Chinese officials. It, at least, included China proper, i. e., the eighteen provinces south of the Great Wall and east of Thibet, and probably Mongolia. Manchuria and Korea were, of course, excluded, as also those portions of Chinese territory which had been leased to the Powers. On the phrase "administrative entity," see an article by Professor Moore on "Mr. Hay's Work in Diplomacy" in the American Review of Reviews for August, 1905 (Vol. 32, pp. 174–75), and a letter by the writer to the N. Y. Nation for April 27, 1905 (Vol. 80, p. 330).

least possible loss to the commerce and peaceful intercourse of the world may be occasioned."

At the same time all those Powers particularly interested in the fate of China were informed of this action on the part of our Government and invited to take similar action. Favorable replies were received from nearly all the leading European Powers, and the principles embodied in the Hay Note were also accepted by China, Russia and Japan.

The acceptance of Russia was, however, accompanied by certain reservations which threatened future troublesome complications. In its reply of February 19, the Russian Government signified a willingness to respect the neutrality of China on the following conditions: (1) that China herself "strictly observe all the duties of neutrality;" (2) that the Japanese Government "loyally observe" not only the "engagements entered into with the Powers," but, in addition, "the principles generally recognized by the law of nations;" and (3) that "neutralization be in no case extended to Manchuria." Japan, on the other hand, in her reply of February 13, merely stipulated that the "region occupied by Russia" be excluded from the neutral area, and that “Russia, making a similar engagement, fulfill in good faith the conditions and terms of such engagement."

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It will thus be seen that both Russia and Japan made their acceptance of the main principle of the Hay Note, viz.,

'For the text of the Hay Note and the replies of Japan and Russia, see House Doc. of 58th Congress, 3d session (Foreign Rel. 1904), p. 2. For the replies of the other Powers, see the same volume, passim. Of the Powers consulted-Austria-Hungary, Belgium, Denmark, France, Germany, Great Britain, Italy, the Netherlands, Portugal and Spain— the last alone made a distinctly unfavorable reply. The replies of several Powers, e. g., Austria-Hungary and Belgium, indicated a somewhat lukewarm or indifferent attitude.

the maintenance of the neutrality of China proper, conditional upon its observance by the other belligerent. This was entirely reasonable and proper; but Russia, in addition, stipulated for a strict observance of the duties of neutrality on the part of China and of the law of nations on the part of Japan. Several large loop-holes were thus carefully left open by Russia, as means of escape from her obligations in case such an attempt were deemed advisable. Inasmuch as numerous disputes regarding neutral rights and obligations as between neutrals and belligerents, as also charges and countercharges of violations of the law of nations between the belligerents themselves, are bound to arise in every war, and inasmuch as each party is its own judge in these matters, it was not difficult to see that the future contained possibilities of considerable complication and controversy. Pretexts infinite in number and variety would not be wanting to Russia, if she desired to avoid the natural consequences of her engagement.

The term "neutrality," as applied to China by the Hay Note, appears to have had a double meaning. In the first place, it meant that China was to be "neutralized" during the struggle, i. e., she was not to be permitted to become a party to the war. This might perhaps be called a temporary as opposed to a permanent neutralization like that of Belgium and Switzerland. It was neutralization under a sort of international guarantee of the Powers, although less formal and perhaps less effective than those of Belgium and Switzerland, which were the results of great international treaties. It might, however, under certain circumstances, prove to be a step in the direction of permanent neutralization. If such guarantees are to prove wholly successful, the guarantors must, of course, be ready and willing to resort