"(8) The exercise of the right of capture is limited, nevertheless, by certain accepted rules of conduct based on the principles of humanity and regard for innocent property, even if there is definite knowledge that some of the property, cargo, as well as the vessel, is of enemy character. As a consequence of these limitations, it has become the established practice for warships to give merchant vessels an opportunity to surrender or submit to visit and search before attempting to seize them by force. The observance of this rule of naval warfare tends to prevent the loss of life of noncombatants and the destruction of innocent neutral property, which would result from sudden attack.

"(9) If, however, before a summons to surrender is given, a merchantman of belligerent nationality, aware of the approach of an enemy warship, uses its armament to keep the enemy at a distance, or after it has been summoned to surrender it resists or flees, the warship may properly exercise force to compel surrender.

"(10) If the merchantman finally surrenders, the belligerent warship may release it or take it into custody. In the case of an enemy merchantman it may be sunk, but only if it is impossible to take it into port, and provided always that the persons on board are put in a place of safety. In the case of neutral merchantman, the right to sink it in any circumstance is doubtful.

"(11) A merchantman entitled to exercise the right of self-protection may do so when certain of attack by an enemy warship, otherwise the exercise of the right would be so restricted as to render it ineffectual. There is a distinct difference, however, between the exercise of the right of self-protection and the act of cruising the seas in an armed vessel for the purpose of attacking enemy naval vessels.

"(12) In the event that merchant ships of belligerent nationality are armed and under commission or orders to attack in all circumstances certain classes of enemy naval vessels for the purpose of destroying them, and are entitled to receive prize money for such service from their Government, or are liable to a penalty for failure to obey the orders given, such merchant ships lose their status as peaceable merchant ships and are to a limited extent incorporated in the naval forces of their Government, even though it is not their sole occupation to conduct hostile operations.

"(13) A vessel engaged intermittently in commerce and under a commission or orders of its Government imposing a penalty, in pursuing and attacking enemy naval craft, possesses a status tainted with a hostile purpose which it can not throw aside or assume at will. It should, therefore, be considered as an armed public vessel and receive the treatment of a warship by an enemy and by neutrals. Any person taking passage on such a vessel can not expect immunity

other than that accorded persons who are on board a warship. A private vessel, engaged in seeking enemy naval craft, without such a commission or orders from its Government, stands in a relation to the enemy similar to that of a civilian who fires upon the organized military forces of a belligerent, and is entitled to no more considerable treatment.'

These are so clear that further comment of mine is useless, and in concluding this brief treatment of the attitude of the United States on the subject of armed merchantmen, only one consideration need be stressed. Nothing has been said here about the German claim that British merchant vessels were armed for offense against submarines. If true, the situation would be altered, but in no case has Germany been able to relieve herself of liability to the United States on the basis of her plea that a defensively armed vessel is not undefended territory. She has, to be sure, claimed, as she did in the Lusitania case, that the ship sunk carried a gun, but the United States has had no difficulty in traversing these contentions. The German decree of January 31, 1917, furthermore, does not confine the operations of submarines

to armed vessels and thus America's case against Germany is firmly established without the necessity of rebutting the German plea that an armed vessel can be sunk without warning.

CHAPTER IX

THE "SUSSEX" AND THE PLEDGES CONDITIONALLY

RENEWED

GERMAN submarine activities against shipping began on March 1st, the day the new campaign was to go into effect, but the sinkings were indiscriminate and were not confined to merchantmen that carried armament. Thus the status of armed merchant vessels was not introduced to embarrass the United States or to excuse Germany. The unarmed French liner Patria from Naples to New York was attacked by a submarine north of Tunis but was able to escape. The Norwegian bark Silius while lying at anchor in Havre Roads was torpedoed without warning on March 9th and of the seven Americans in the crew, one was injured. Of three Americans on board the Dutch liner Tubantia in the North Sea all were saved, but during this same period Ambassador Gerard