was accumulated and constructed under the terms of the concession, to be vested in and owned by the Republic, to the extent of the interests of such American citizens in said concession and such property. * * * We have not discussed the question of the right of the United States. under international law to make reclamation for these shareholders in El Triunfo Company, a domestic corporation of Salvador, for the reason that the question of such right is fully settled by the conclusions reached in the frequently cited and well-understood Delagoa Bay Railway Arbitration.46 The particulars and items of the damages found are definitely stated in the formal award and its schedule this day signed. THE NORTH SEA or DOGGER BANK CASE,“ between GREAT BRITAIN and RUSSIA. (The Hague Commission of Inquiry, 1905. 99 British and Foreign State Papers, 921, English Translation, 2 American Journal of Inter national Law, 929.) In October, 1904, during the Russo-Japanese war, the Admiral of the Russian Baltic fleet, then coaling off the coast of Norway, received rumors from several sources of the presence of Japanese torpedo boats in the vicinity, and on this account the fleet set sail for the Far East twenty-four hours ahead of schedule. As the last division of the fleet, in immediate charge of the Admiral, was passing through the North Sea in the early hours of the morning of October 9, 1904, it came upon what afterwards proved to be an English fishing fleet from Hull, England. The Russians, under a misapprehension that the English vessels were the Japanese torpedo boats, opened fire, with the result that one fishing boat was sunk and others damaged, while two fishermen were killed and six injured. In order to prevent serious results from this incident, France suggested resort to an international commission of inquiry, as provided for in the convention for the pacific settlement of international disputes, adopted by the Hague Conference of 1899. The suggestion was accepted by Great Britain and Russia, and an agreement was signed on November 25, 1904, which invested a commission composed of admirals from the British, Russian, United States, French and Austrian navies with authority to find the facts in dispute and to fix responsibility. The commission held sessions at Paris from December 22, 1904, to February 26, 1905, on which date its report was rendered.*8 46 2 Moore, International Arbitrations, 1865-1899. 47 This case is also known as "The Hull Incident." 48 This statement of facts is taken from The Hague Court Reports (J. B. Scott, Ed., 1916) 403. SCOTT INT.LAW Report of the Commission. 1. The commissioners, after a minute and prolonged examination of the whole of the facts brought to their knowledge in regard to the incident submitted to them for inquiry by the declaration of St. Petersburg of the 12th (25th) November, 1904, have proceeded to make, in this report, an analysis of these facts in their logical sequence. By making known the prevailing opinion of the commission on each important or decisive point of this summary, they consider that they have made sufficiently clear the causes and the consequences of the incident in question, as well as the deductions which are to be drawn from them with regard to the question of responsibility. * * * 9. Toward 1 o'clock in the morning of the 9th (22d) October, 1904, the night was rather dark, a slight, low fog partly clouding the air. The moon only showed intermittently between the clouds. A moderate wind blew from the southeast, raising a long swell, which gave the ships a roll of 5° on each side. The course followed by the squadron toward the southwest would have taken the last two divisions, as the event proved, close past the usual fishing ground of the fleet of Hull trawlers, which was composed of some thirty of these small steamboats, and was spread over an area of several miles. It appears from the concordant testimony of the British witnesses. that all these boats carried their proper lights, and were trawling in accordance with their usual rules, under the direction of their “admiral," and in obedience to the signals given by the conventional rockets. 10. Judging from the communications received by wireless telegraphy, the divisions which preceded that of Admiral Rojdestvensky across these waters had signaled nothing unusual. It became known afterward, in particular, that Admiral Folkersam, having been led to pass round the fishing fleet on the north, threw his electric searchlight on the nearest trawlers at close quarters, and, having seen them to be harmless vessels, quietly continued his voyage. 11. A short time afterwards the last division of the squadron, led by the Souvoroff flying Admiral Rojdestvensky's flag, arrived in its turn close to the spot where the trawlers were fishing. The direction in which this division was sailing led it nearly toward the main body of the fleet of trawlers, round which and to the south of which it would therefore be obliged to sail, when the attention of the officers of the watch on the bridges of the Souvoroff was attracted by a green rocket, which put them on their guard. This rocket, sent up by the “admiral” of the fishing fleet, indicated in reality, according to regulation, that the trawlers were to trawl on the starboard tack. 49 Dogger Bank. Almost immediately after this first alarm, and as shown by the evidence, the lookout men, who, from the bridges of the Souvoroff, were scanning the horizon with their night glasses, discovered “on the crest of the waves on the starboard bow, at an approximate distance of eighteen to twenty cables," a vessel which aroused their suspicions because they saw no light, and because she appeared to be bearing down upon them. When the suspicious-looking vessel was shown up by the searchlight, the lookout men thought they recognized a torpedo boat proceeding at great speed. It was on account of these appearances that Admiral Rojdestvensky ordered fire to be opened on this unknown vessel. The majority of the commissioners express the opinion, on this subject, that the responsibility for this action and the results of the fire to which the fishing fleet was exposed are to be attributed to Admirai Rojdestvensky. 12. Almost immediately after fire was opened to starboard, the Souvoroff caught sight of a little boat on her bow barring the way, and was obliged to turn sharply to the left to avoid running it down. This boat, however, on being lit up by the searchlight, was seen to be a trawler. To prevent the fire of the ships being directed against this harmless vessel, the searchlight was immediately thrown up at an angle of 45°. The admiral then made the signal to the squadron "not to fire on the trawlers." But at the same time that the searchlight had lit up this fishing vessel, according to the evidence of witnesses, the lookout men on board the Souvoroff perceived to port another vessel, which appeared suspicious from the fact of its presenting the same features as were presented by the object of their fire to starboard. Fire was immediately opened on this second object, and was, therefore, being kept up on both sides of the ship, the line of ships having resumed their original course by a correcting movement without changing speed. 13. According to the standing orders of the fleet, the Admiral indicated the objects against which the fire should be directed by throwing his searchlight upon them; but as each vessel swept the horizon in every direction with her own searchlights to avoid being taken by surprise, it was difficult to prevent confusion. The fire, which lasted from ten to twelve minutes, caused great loss to the trawlers. Two men were killed and six others wounded: the Crane sank; the Snipe, the Mino, the Moulmein, the Gull, and the Majestic were more or less damaged. On the other hand, the cruiser Aurora was hit by several shots. The majority of the commissioners observe that they have not sufficiently precise details to determine what was the object fired on by the vessels; but the commissioners recognize unanimously that the vessels of the fishing fleet did not commit any hostile act; and, the majority of the commissioners being of opinion that there were no torpedo boats either among the trawlers nor anywhere near, the opening of the fire by Admiral Rojdestvensky was not justifiable. The Russian commissioner, not considering himself justified in sharing this opinion, expresses the conviction that it was precisely the suspicious-looking vessels approaching the squadron with hostile intent which provoked the fire.50 * * 50 The Russian government accepted the facts as found by the Commission, assumed responsibility for its admiral's action, and paid damages to Great Britain amounting approximately to $300,000. The Hague Court Reports (J. B. Scott, Ed., 1916) 408. CHAPTER II NATIONALITY SECTION 1.—ALLEGIANCE CASE OF ÆNEAS MACDONALD, alias ANGUS MAC- (King's Bench, 1747. Foster's Crown Law, 59.) In the year 1747, a bill of indictment was found against him, under the special commission in Surry, for the share he had in the late rebellion. The indictment ran in the same form as those against the other prisoners, without any averment that he was in custody before the 1st of January, 1746. But the counsel for the Crown were aware of the exception taken in the case of Mr. Townly and others, and that since the whole proceeding against the prisoner was subsequent to January, 1746, the answer then given would not serve the present case. That bill was therefore, withdrawn before the prisoner pleaded to it; and a new bill concluding with an averment that he was apprehended and in custody before the 1st of January, 1746, was preferred and found against him. On that bill he was arraigned in July, 1747, and his trial came on the 10th of December following. The overt acts charged in the indictment were sufficiently proved: and also that the prisoner was apprehended and in custody before the 1st of January, 1746. The counsel for the prisoner insisted that he was born in the dominions of the French King, and on this point they put his defence. But apprehending that the weight of the evidence might be against them, as indeed it was, with regard to the place of the prisoner's birth, they endeavored to captivate the jury and bystanders, by representing the great hardship of a prosecution of this kind against a person, who, admitting him to be a native of Great Britain, had received his education from his early infancy in France; and spent his riper years in a profitable employment in that kingdom, where all his hopes centered: and speaking of the doctrine of natural allegiance, they represented it as a slavish principle, not likely to prevail in these times; especially as it seemed to derogate from the principles of the revolution. Here the court interposed; and declared, that the mentioning the case of the revolution as a case any way similar to that of the prisoner, supposing him to have been born in Great Britain, can serve no purpose but to bring an odium on that great and glorious transaction. |