As a weapon of naval warfare the submarine has come to stay, until superseded by a superior instrument of destruction. It only remains to determine whether its operations are to be restricted in any, and if so, in what respect, or whether it is to be invested with unlimited powers of offense and with exceptional privileges of immunity from attack. If the latter alternative be accepted, civilization will be confronted with the gravest menace to its existence. It would mean, in the first place, that every State would endeavor to be as self-contained as possible. In so far as this contributed to the full development of each State's natural resources, such a policy would be advantageous. But the fullest possible development of a State's natural resources forms a mere fragment of its whole trade and commerce. Few States could carry on, much less prosper, without entry into the world's markets. The mere possibility of unrestricted submarine warfare would compel every State to produce and to manufacture many articles for which its natural resources were totally inadequate, and where such resources were lacking, to provide substitutes. This policy, in its turn, would necessitate the creation of tariff walls-the adoption of the fullblooded "New Protection." For the consumer the inevitable sequence would be higher prices and inferior goods. For the producer, reduction in trade and less employment. the State, reduced revenues and curtailed activities. To eke out a diminishing home trade the struggle for the control of trade routes would be renewed, and competition for exclusive spheres of influence in backward countries would be increased. As of old, international jealousies and in

For

trigues would result in war, or preparedness for war, and all alike would be involved in the crushing burden of militarism.

It is urged, however, in some quarters that Great Powers with small navies or small maritime States will not willingly forego such a powerful commerce-destroyer as the submarine. It is urged, further, that even if by general assent its operations were curtailed, any rules limiting its use would be cast to the winds by a State fighting for its existence. The action of the Central Powers would appear to support both allegations. But it is too early to accept this as conclusive. The end is not yet determined. One after another neutrals are entering the field against them. Will the experience of Germany in creating a world-wide opposition encourage even a Great Power, much less a small maritime State, whatever its critical position, to adopt a similar practice? Not, I think, unless it succeeds.

It appears unnecessary here to prove the illegality of the German practice. It is agreed that unrestricted submarine warfare is contrary to the laws and usages of war. But it is essential to refute the German doctrine that since it is impossible for a submarine to conform to the obligations imposed upon a surface warship if it is to be an effective weapon of offense, it is therefore to be released from such obligations. Because it is a new weapon for which no rules have been made, it should not, runs the argument, be bound by rules made for a different class of vessel. New rules must therefore be made in order that it may fulfil its mission in accordance with the law. The same claim was made for torpedo-boats in view of their vulnerability. The true answer was

given by Admiral Bourgois: "The advent of the torpedo, whatever its influence on naval matériel, has in no way changed international treaties, the laws of nations, or the moral laws which govern the world. It has not given the belligerent the right of life and death over the peaceful citizens of the enemy State or of neutral States."

We are not here concerned with the use of forbidden weapons against combatants. There is no objection to the use of submarines against warships, but to its improper use against enemy non-combatants and neutrals. If new rules are to be made, they must be based upon legal principles. What, then, are the principles underlying the law of commerce destroying? By long-established usage merchantmen must submit to visit and search, and it is incumbent upon a captor to bring in for adjudication his prize, whether enemy or neutral. The reason for this rule rests upon the principle that the subject of even an enemy should not be deprived of his property without due process of law. As Lord Stowell pointed out, justice demands that acts of war shall be open to public review, and that private property shall not be converted without the sentence of a competent court. For this purpose the property must be brought into the country of the captors.† To this general rule that a captured merchant vessel must be brought within the jurisdiction of the captor's prize court for adjudication, there are certain exceptions. It will be more convenient to deal with these separately.

The destruction of an enemy merchantman wholly belligerent-ship, cargo, crew, and passengers-forms the first exception. Juristic opinion, municipal regulations, and interna

*This right was recognized as early as the twelfth century.

†The Henrick and Maria, 4 Rob. 43.

tional usage are all united in agreeing that under certain circumstances, such as the dangerous condition of the prize, the possibility that if released it might give assistance or information to the enemy, the inability to furnish a prize crew, the distance from a national port of the captor, the lack of provisions or water or the presence of disease, the prize may be sold, ransomed,* retained and used as a tender to the captor's ship, or destroyed. Thus, during the Anglo-American War of 1812, the United States instructed their naval officer to destroy all prizes which could not safely be sent in. In the American Civil War, Captain Semmes, of the Alabama, burned most of his captures, since the Confederate ports were blockaded and all neutral ports were closed to his prizes. In the Russo-Japanese War, a number of Japanese merchantmen were sunk by the Russians. Other illustrations might be given of this practice, but in no instance can the exception be said to have been more than an exception, much less to have eaten up the rule.

But in case of destruction, a rule has, until the present war, obtained universal acceptance from all civilized nations and has been observed in practice, to the effect that the crew and passengers on board, if any, must first be removed to a place of safety, together with the ship's papers, so that the necessary witnesses and documents may be sent to a national port, when the validity of the capture and destruction may be determined by a Prize Court. This rule also finds full recognition in the naval regulations of all maritime Powers. To cite only one, by the Naval Regulations of the German Empire, before the destruction of a prize, a German commander must "ensure the safety of

*Ransom is forbidden by the British Prize Regulations.

persons on board and, as far as possible, of their effects, together with the ship's papers." The destruction of an enemy merchantman with the cargo wholly or partly neutral, and with the crew and passengers, if any, wholly or partly neutral, forms the second exception.

The old doctrine embodied in the Consolato del mare, that neutral goods on board enemy ships were immune from capture, was universally accepted in Western Europe up to and during the sixteenth century. From this period, however, a competing doctrine arose, crystallized in the phrase "Enemy's ships, enemy's goods." Great Britain and the United States became the exponents of the former, whilst France and Spain, with some relapses, upheld the latter. Russia was only consistent in her inconsistency, adopting whichever doctrine suited her character at the moment. Upon these conflicting doctrines a compromise was effected by the Declaration of Paris, 1856, whereby: "Neutral goods, with the exception of contraband of war, are not subject to capture under the enemy's flag." This provision has since been generally recognized as a rule of International Law.

Some States, it is true, still adhere to the doctrine, "Enemy's ships, enemy's goods." In such case the captor, in circumstances of grave necessity, is entitled to destroy the goods with the ship, and the neutral owner has no ground of complaint. But where this is not the case, neutral goods on board an enemy ship are immune from condemnation and must be forwarded by the captor to their destination on payment of freight. If, however, owing to the military operations of the captor they are unavoidably destroyed with the vessel, the practice varies. In the case of the Ludwig and the Vorwärts, which were

destroyed with neutral goods on board by the French in the war of 1870, the French Prize Court decided that, although by the Declaration of Paris such goods could not be confiscated, and that the neutral owner was entitled to restitution, or, in case of sale, to the purchase money, yet if destroyed as a justifiable act of war, all claim to indemnity was barred. This decision has been followed by the German Prize Court in the present war. On the other hand, compensation has been decreed by the British Prize Court to the neutral owners of innocent cargoes.

The better opinion would appear to be that the Declaration of Paris means what it says. If neutral goods cannot lawfully be captured, they ought not to be destroyed. Sir Walter Phillimore, indeed, goes so far as to assert that no parcel of cargo belonging to a neutral can be destroyed or injured except according to law.* If the cargo is innocent and it is impossible to remove it, the prize should be released. If the destruction of the ship is held to be justified by military necessity— which can always be called in aid by a belligerent in a hurry-full compensation with damages and costs for the goods destroyed should be at least granted. Owing to the extension of the list of contraband articles, this point has lost much of its importance. The tendency during the last half century has been in the direction of widening the scope of the doctrine of contraband. Under the circumstances of the present war, in which the German Government took over the control of food supplies and raw materials, it became impossible for the Entente Powers to distinguish between those commodities which were formerly regarded as contraband-those articles which in Dr. Baty's phrase "smell of *The Grotius Society. Vol. II., p. 176. †Sir F. E. Smith: Destruction of Merchant Ships, p. 57.

war" and those which indirectly assist the enemy in the prosecution of the war. Under the latter category almost every conceivable commodity may rightly be regarded as contraband, and is in fact so regarded by the British Government and its Allies.

The case, however, is far different if neutral crews and passengers be on board an enemy merchant vessel. They are present where they are entitled to be. "No nation," as Sir Walter Phillimore rightly declares, "has yet said that neutrals may not take passage on perhaps the only ships which can carry them home, or about on their lawful business."* If for reasons of real military necessity it is imperative to destroy the vessel, they are entitled at least to be carried to a port whence they may reach their destination. The high seas are free to the ships of all nations, whether neutral or belligerent, and neutrals have always been considered entitled to take passage on belligerent merchantmen without greater inconvenience than carriage to a belligerent port. The contention of the German Government that if a belligerent gives public notice that enemy merchantmen will be destroyed, the blood of neutral passengers will lie on their own heads, is puerile.

The destruction of neutral merchantmen forms the third exception to the general rule. Yet such destruction is not really an exception, since the right to destroy without restriction has never been generally recognized. It is only when a neutral ship identifies herself with the enemy that a right to destroy arises. And it is not every act of un-neutral service which will justify the destruction of a neutral vessel. A right to destroy neutral vessels and cargoes has, in fact, no existence in international law. If it is impossible to bring a neutral prize

*The Grotius Society, Vol. II., p. 176.

within the jurisdiction of the captor's prize court, he must be released. The reason for this rule is that the property of the subjects of a neutral State is not divested by capture. Only by due process of law can it be transferred to the captor or to the captor's government. In the Anglo-American War of 1812, four merchantmen were destroyed by British cruisers. They were American ships and held British permits to trade, known as Sidmouth licenses. In the cases of the Actœon and the Rufus, Lord Stowell awarded full compensation with heavy damages and costs. In the case of the William, where the license was in doubt, he awarded mere restitution, and in the case of the Felicity, where the license was not produced to the captor until too late, indemnity was refused. It must be noted that these vessels were enemy ships. They were protected, however, by a British license which rendered it improper to treat them as enemy ships to be destroyed in case of necessity. But they were not neutral ships. There is not a single case on record in which a neutral ship has been destroyed by Great Britain. Neither so far as I know is there an instance of such a case of destruction by the United States or Japan. As long ago as 1905* I pointed out that the fact that Lord Stowell awarded compensation to some of the vessels destroyed did not prove the existence of any right to destroy. These cases only prove that if a protected or a neutral vessel is destroyed, the captor is liable not merely to make restitution, but also to pay a penalty in the shape of damages and costs, since he has committed an offense against international law. Some jurists, British and American, have represented these cases as precedents for the proposition that a cruiser may sink any vessel she pleases, provided she is prepared to *Law Times, Vol. CXIX, p. 194.