BIBLIOGRAPHY 172 American State Papers, Foreign Relations: I, 5, 21, 89, 167, 168, 589; III, 256; IV, 103, 215, 496, 539, 541, 545, 546. British and Foreign State Papers, XXVI, 1419 (Moore's Digest, II, 421). Diplomatic Correspondence of the United States: 1864, II, 346, 355, 750 et seq.; 1865, I, 37, 49, 69, 74, 91, 303; II, 103, 159, 161, 163, 166, 192; 1866, I, 25, 77, 126, 135, 166, 237, 238, 245, 275, 276, 280, 284; II, 536, 538, 543, 545; III, 62, 110, 133, 217; 1867, II, 621; 1868, I, 430. Foreign Relations of the United States: 1871, 785, 787; 1873, III, 329, 332; 1878, 5559; 1882, 396, 404-5; 1884, 493, 519; 1885, 138-144, 773, 774, 776; 1886, 57; 1887, 1027-1029; 1888, I, 990; 1892, 640-641; 1893, 424-435, 440-448, 456; 1894, 428-432; 1895, II, 867-876; 1899, 364–370. House Executive Documents: 25 Cong. 2 Sess. Nos. 64, 73, 74, 302, 3 Sess. No. 183; 26 Cong. 2 Sess. No. 33; 27 Cong. 2 Sess. No. 128; 34 Cong. 1 Sess. No. 103; 35 Cong. 1 Sess. Nos. 24, 64; 55 Cong. 2 Sess. No. 326 (Treasury Dept. Doc. No. 1989). House Reports: 26 Cong. 2 Sess. No. 162; 35 Cong. 1 Sess. No. 74. Madison's Writings, II, 218. Manuscript Domestic Letters: Vol. 8, p. 413 (Moore's Digest, VII, 1027); Vol. 44, p. 173 (Moore's Digest, VII, 924); Vol. 91, p. 356 (Moore's Digest, VII, 1056); Vol. 153, pp. 672, 673 (Moore's Digest, VII, 1021). Manuscript Notes to Argentine Republic: Vol. 6, p. 134 (Moore's Digest, VII, 1058). Moore, J. B.: History and Digest of International Arbitrations (1898), pp. 2419 et seq., 4028, 4029, 4040, 4042, 4054; Digest of International Law. (1906), VII, 908-934, 1002-1052, 1053-1084. Opinions of the Attorneys-General of the United States: VII, 367; VIII, 216, 375, 472, 541; XIII, 541; XXI, 267. 172 This bibliography contains only the documentary material bearing upon the points included in this study. Most text-writers in international law touch briefly upon some of the questions involved in the discussion in their chapters on "state responsibility" and "neutrality." To this extent their works will be found to be useful. Beyond this the literature of international law contains nothing important on the subject. The history of some filibustering expeditions has been imperfectly written in certain monographs; but these are of doubtful authority. Documents and cases marked by an asterisk (*) relate to matters discussed in the introductory chapter, and, therefore, bear only indirectly on the law of hostile expeditions. Papers Relating to the Treaty of Washington (1872): IV, 49, 298 et seq. Senate Executive Documents: 27 Cong. 3 Sess. No. 99; 31 Cong. 1 Sess. No. 57; 34 Cong. 1 Sess. No. 68; 35 Cong. 1 Sess. No. 13, 63; *41 Cong. 2 Sess. No. 112. Senate Reports: 35 Cong. 1 Sess. No. 20. Statutes of the United States: I, 381, 497; II, 54; III, 370, 447; V, 212; Revised Statutes, sec. 5281 et seq.; XXXV, 1080 (Act of March 4, 1909). Webster, Daniel: Works (12th ed.), VI, 250. Wharton, Francis: Treatise on the Criminal Law of the United States (9th ed.), secs. 1901, 1908; Digest of the International Law of the United States (2nd ed.), III, 549-551, 585–630. Wheaton, Henry: Elements of International Law: English edition by A. C. Boyd, 1889 (3rd ed.), sec. 439a, i, j, k, 1; Edition by R. H. Dana, 1886 (8th ed.), sec. 439, note. LIST OF CASES Chacon v. Eighty-nine Bales of Cochineal, 1 Brock. 478, Fed. Cas. No. 2568. Gill v. Oliver, 11 Howard, 529. Hart v. United States, 84 Fed. 799. *Murray v. The Schooner Charming Betsey, 2 Cranch, 64. Needham, Ex parte, 1 Pet. C. C. 487, Fed. Cas. No. 10080. *Respublica v. DeLongchamps, 1 Dallas, 111. *Ross v. Rittenhouse, 2 Dallas, 160. Stoughton v. Dimmick, 3 Blatchf. 356, Fed. Cas. No. 13500. *Talbot v. Seeman, 1 Cranch, 1. *Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191. United States v. Burr, Coomb's Trial of Aaron Burr, 377, Fed. Cas. No. 14694a. United States v. Hughes, 70 Fed. 972; same, 75 Fed. 267. United States v. Lumsden, 1 Bond, 5, Fed. Cas. No. 15641. United States v. The Mary N. Hogan, 18 Fed. 529. United States v. Murphy, 84 Fed. 609. United States v. Nunez, 82 Fed. 599. United States v. O'Brien, 75 Fed. 900. United States v. O'Sullivan, 9 N. Y. Legal Observer, 257, Fed. Cas. No. 15974; same, Fed. Cas. No. 15975. United States v. Pena, 69 Fed. 983. United States v. Quitman, 2 Amer. Law Reg. 645, Fed. Cas. No. 16111. United States v. Rand, 17 Fed. 142. United States v. Smith, 3 Wheeler Crim. Cas. 100, Fed. Cas. No. 16342; same, Fed. Cas. No. 16342a. United States v. The Conserva, 38 Fed. 431. United States v. The Itata, 49 Fed. 646. *United States v. The Paquete Habana, 175 U. S. 677. United States v. The Three Friends, 166 U. S. 1. United States v. Trumbull, 48 Fed. 99. United States v. Two Hundred and Fourteen Boxes of Arms, 20 Fed. 50. United States v. Ybanez, 53 Fed. 536. Wiborg v. United States, 163 U. S. 632. AERIAL-LAND AND AERIAL-MARITIME WARFARE Now that the conquest of the air has become an accomplished fact and the adaptability of aircraft to hostile operations has been fully demonstrated, the question of the necessary modifications of, or additions to the laws of warfare becomes a matter of present interest and importance. It would be as idle as presumptuous for any writer-no matter what his reputation or ability-to attempt the formulation of a complete code that takes into account a "law of the air." Such a work could be satisfactorily accomplished only by an international conference after an exhaustive discussion and a nice adjustment of belligerent and neutral interests. Possibly the Third Hague Conference, scheduled to meet in 1915, may undertake the work; but wars do not wait on conferences, and hence a study of the subject in the light of recent developments may serve a useful purpose. "Aerial warfare" is a term that some writers have used for what I prefer to call "aerial-land and aerial-maritime warfare." "Aerial warfare" is objectionable from a military point of view and ambiguous from any point of view. It appears to imply combat involving aircraft, but it is not clear whether combat exclusively between aircraft, or any form of hostilities in which one or more aircraft participate is intended. The principal objection to the term is that it implies that there is a warfare independent of the other two "elements," land and sea. Considering the three elements-land, sea and air-any kind of warfare must always involve at least two, one of which is the air; because the projectiles employed are hurled through that element, often at great altitudes. When aircraft participate in hostilities, most of the projectiles and all demolished matériel fall to the earth or the sea. Again, the air is such an unstable element that aircraft can sustain themselves in it for brief periods only, measured in hours. These considerations point to the conclusion that so-called "aerial-warfare" can not logically claim a separate field in international law, but should be treated as a branch of land or sea warfare, depending upon the subjacent element. Aircraft are at present employed almost exclusively for military and recreative purposes. While it is true that in Germany airships have been used for transporting a limited number of passengers and small quantities of freight, such projects have been undertaken for the purpose of encouraging popular interest in aeronautics and for the revenue to be derived from tourists who can afford the luxury of a new method of travel. The application of aerial navigation to international trade is nil. This is a significant fact, since it means that, in time of war, every aircraft approaching a zone of belligerent operations on land or sea may be treated as a war craft, unless the intruder can establish his nonbelligerent character and the fact that he was driven thither by stress of weather or by other form of vis major. Nearly all of the discussions on the law of the air in time of war are based upon judicial analogies and a consideration for the rights of an aerial commerce that does not now exist and may not exist for many years to come. As may be expected, there is considerable divergence of opinion. Meanwhile those Powers that pursue a policy of military preparedness have developed strong aerial fleets involving heavy expenditures in both life and money. The armament of these aircraft and their employment in war and military exercises-considered in connection with the discussions of military writers-form a more reliable guide to the law of the air in time of war than academic discussions. The experience of the past proves conclusively that a belligerent will employ all of his engines of war to the utmost advantage, so long as such employment does not involve deliberate cruelty or treachery, or transcend the laws of war. Furthermore, it is idle to expect an aerial Power to vote at an international conference for any proposition that clips its own wings. We shall find then that the most profitable way of studying our subject is to determine what belligerents probably will do, rather than what they ought to do. This method of approach necessitates first a brief résumé of military aeronautics. Aircraft are divided into three general classes: (1) Aerostats, or non-dirigible balloons. These are the old-type spherical balloons, free or captive. (2) Dirigible balloons. These are balloons of elongated form, driven and steered by machinery; they are also called dirigibles, or airships. |