It is prohibited to employ poison; to refuse quarter; to employ means of destruction calculated to cause unnecessary suffering-explosive bullets, for instance; to make improper use of a flag of truce or the badges of the Geneva Convention; to destroy enemy's property, unless imperatively demanded by the necessities of war; to attack or bombard by whatever means, towns, villages, dwellings, or buildings which are undefended; to pillage, even when a place is taken by assault; to use projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases; to use bullets which expand or flatten easily in the human body; to foree information from the inhabitants of occupied territory..

I add two significant articles verbatim:

Art. 46. Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property can not be confiscated.

Art. 50. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they can not be regarded as jointly and severally responsible.

And finally comes Art. 56:

The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.

All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.

As to the use of expanding bullets, there is no convincing and overwhelming evidence of it on the part of either belligerent. Our own country did not sign that agreement and therefore can not claim protection under it. Probably soldiers in every army occasionally whittle their cartridge tips and make them soft-nosed.

But barring this prohibition, every other rule which has been cited, according to a mass of evidence which has been gathered, has been violated by the German Army apparently with the connivance or at the order of its high officers. Except in retaliation, there is no proof of the breach of these rules by the Entente Powers.

And then as to war on the sea.

The very first act of naval war in the contest was the laying of floating contact mines in the high seas by the Germans, presently imitated by the Entente Powers. The Hague Convention VIII, 1907, thus legislates in this matter:

It is forbidden "to lay unanchored automatic contact mines, except when they are so constructed as to become harmless one hour at most after the person who laid them ceases to control them;" "to lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings;" "to lay automatic contact mines off the coast and ports of the enemy, with the sole object of intercepting commercial shipping."

Germany signed the Convention, subject to a reservation of this last provision. But from August 7th she relied largely upon mines of the two earlier classes to keep the British fleet in check, without observing the rule as to such construction as made them innocuous when unwatched or drifting. This was the entering wedge of the mined area or war zone practice, which grew to great proportions in the hands of both belligerents in the course of the war. The laying of mines in the high seas area is not alone a violation of the convention just cited; it is also an exercise of sovereign control over waters outside those territorially owned, which violates neutral rights. The United States Government, the strongest neutral then existing, naturally protested against British as well as German action, not accepting the theory that retaliation in kind at the cost of the neutral could be justified. This is perhaps the only limitation of "the freedom of the seas" which this war has shown to be clearly open to criticism. To make this clear it may be well at this point in the narrative to group together the other complaints which our government while neutral pressed against the Entente Powers. They relate to blockade, to methods of search, to the enlargement of the contraband list, to extraction of enemy persons from neutral ships on the high seas, and to a limitation of trade with other neutrals or rationing. When we became belligerents we shared in applying the last named restriction. It was a novel and unpleasant though perhaps unavoidable feature of the war.

Our criticism of the British blockade of German ports was two

fold: first, that on account of the submarine menace it was conducted so far from the German coast as to bring its legality in question; second, that it was not applied to the trade between Sweden and Germany's Baltic ports and was therefore discriminatory, whereas the first essential of a legal blockade is that it must affect all neutrals alike.

As to contraband, there was constant enlargement of the list, there was constant shifting of commodities from the class of what is only occasionally or exceptionally contraband to that which is absolute. Owing to the growth of scientific adjuncts to modern war, there is scarcely an article or substance which may not have relation to it. Contraband is not covered by any Hague Convention; moreover, the Declaration of London, which attempted to lay down the rules of naval war, was not ratified by Parliament and was, therefore, in this war not in effect. One must resort to the naval prize codes of the various states to learn its definition. Thus the German Prize Code in force in 1915, Arts. 22 and 24, declares that "to the list of absolute and of conditional contraband must be added such other articles and materials as have been expressly declared" to belong in these classes by the German Empire. The British Admiralty went on the same principle. Though exasperating this enlargement of the contraband list from time to time is not unfair, because new methods or substances come into use. Thus, rubber was placed as late as 1909 amongst commodities which could not be called contraband in the abortive Declaration of London, and by 1914 on truck, ambulance and airplane wheels it had become of first rate importance in war.

There were a few cases of the removal of German reservists and other subjects from neutral ships on the high seas, the offense which in the Trent affair during our Civil War led so nearly to a break with England. This practice was so clearly illegal, however, that it was not persisted in and in most cases the captives were surrendered.

The British right to search we did not question, but the delays incident to this were complained of, often including the landing and investigation of the entire cargo on mere suspicion. So likewise was the assumption that much of our trade with Holland and with Sweden and Norway was really with Germany, on the theory of the con

tinuous voyage. To avoid this suspicion, Holland devised a system by which all imports were billed to a single agency which guaranteed non-exportation. And yet the home-grown equivalent of the importation might be exported, and trouble resulted. Switzerland and Holland were dependent very largely upon Germany for coal, and Germany drove a hard bargain, compelling foodstuffs in exchange. Then, as all supplies the world over grew scarce, the Entente demanded its share of any exportable food. And, finally, when the United States entered the war, it supplied the needs of its partners before it fed the neutral, and had only a meager allowance for the latter, thus between two millstones.

The various causes of complaint which have been mentioned led to animated diplomatic interchanges, too long deferred by Mr. Bryan, but pushed with skill by Mr. Lansing. They might easily have grown into a serious situation. For when the British authorities said, if you think yourselves wronged, appeal to our courts, we replied, "Your courts are bound by Orders in Council and are not free therefore to do exact justice. You are governed by military necessity at sea just as fully as the Germans are on land." Then the air was cleared by the judgment of the British court in the Zamora case, the Judicial Committee of the Privy Council, the highest court having jurisdiction in Admiralty. This is a matter of such importance as to warrant a moment's notice, for it showed the real gulf existing between German and British standards of justice.

The Zamora was a Swedish vessel loaded with copper which, under the circumstances, was contraband. But instead of trying the case and condemning the cargo, the authorities, acting under an Order in Council, which represents naval necessity, requisitioned it. Thus there came about a conflict between international law and an executive order. As to this the court declared repeatedly in no uncertain voice that international law was paramount.

The idea that the King in Council, or indeed any branch of the Executive, had power to prescribe or alter the law to be administered by courts of law in this country was not in harmony with the principles of our Constitution.

A prize court must of course deal judicially with all questions which come before it for determination, and it would be impossible

for it to act judicially if it were bound to take its orders from one of the parties to the proceedings.

If the court is to decide judicially in accordance with what it conceives to be the law of nations, it can not, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings. It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order. Only in this way can it fulfill its function as a prize court, and justify the confidence which other nations have hitherto placed in its decisions.

It will be noticed that none of the British acts of which our government complained affected the life or limb of any American citizen; property alone was involved, owing to what we held to be a mistaken idea of a belligerent's rights as against neutral trade. Far otherwise was it with German methods at sea. Except for occasional forays, her surface fleet was kept behind barriers. Her raiders and Pacific squadron in time were wiped out. There remained only her under-water boats to blockade, to search for contraband, to prey upon enemy's commerce and repress the neutral.

The U-boat is flimsily built, of small stowage capacity, and necessarily handicapped in doing cruiser work. Consequently, it has claimed a preferential position, enjoying all the rights of a cruiser without its obligations. This the neutral has denied. If it is used for blockade, such blockade must be made effective by the continuous presence of sufficient ships to make access to the ports or coasts blockaded extremely difficult. This was never the case. The occasional appearance of a submarine, coupled with dire threats of sinking if neutral ships resort to certain specified areas, does not constitute a valid blockade.

So with contraband. Visitation, search, seizure, safe disposal of the personnel, this orderly sequence of events must precede condemnation by a court. In only a few cases before this war have neutral ships carrying contraband been destroyed.

Destruction of the enemy's merchantmen for want of ports open to prizes is a harsh but legitimate penalty, always subject, however, to such disposition of passengers and crew as humanity demands. Otherwise the act of sinking is murder. That happened in the case of the