by civilization through centuries of effort to hold in check the ruthless destructiveness of war. The PRESIDENT. Professor Ellery C. Stowell, of Columbia University, will continue. THE STATUS OF ARMED MERCHANTMEN ADDRESS BY ELLERY C. STOWELL, Associate Professor of International Law in Columbia University, Professor STOWELL. I shall not attempt to cover the same ground [At this point the orchestra played the National Anthem, and the entire assemblage arose.] The PRESIDENT. This seems a delightful incursion. Professor STOWELL. That seemed almost the only fitting accompaniment for not what I shall say, but the thought which is back of what I wish to say, before I begin to discuss this question. It seems to me that this meeting is sanctified beyond all other meetings for the discussion of international law. The great epoch-making address of President Wilson set forth the fundamental principle of international law as it had never been set forth before. Great authorities, Westlake and others, had set it forth, but they were not speaking as a government. Several times during the war President Wilson has spoken that same thought, but this time it was both spoken and acted upon, and from that moment the league of nations for the enforcement of international law existed, and international law acquired the sanction to which it had a right the sanction which all societies of peoples must have wherever there be a law. I shall not attempt to go over the ground covered by Mr. Anderson, who so ably discussed this question. It makes it much easier to take up certain other points to which I should like to call attention. The question of armed merchantmen is one of the most difficult the world has ever known, and yet, if you separate it into its different elements, resolve it into the several parts of which it is composed, it becomes really very simple. The great difficulty is that this separation is not usually made, and I believe that certain diplomatic difficulties have resulted from a very natural effort to economize time and effort, and to combine several questions into one. For instance, the distinction between merchantmen armed for defense and merchantmen armed for aggression is really, it seems to me, an attempt to solve at the same time the question of the right to resist and the conversion of merchantmen into warships. The first question involved in the matter of the status of armed merchantmen is that of access to neutral ports. Now, it is well known that warships are not admitted to neutral ports except for a very short period, and are limited in the amount of coal and provisions they may receive; and so it becomes very important to know whether an armed merchantman is to be treated as an ordinary merchant vessel and be allowed to stay in port as long as it chooses, and take on as much provision as it chooses, or as a warship, with all the restrictions imposed upon warships. At the outbreak of the war there were a great many German liners in the ports of this country, and this Government was immediately notified by the British Government that it would be held responsible if it allowed these liners, which might be converted into cruisers on the high seas, to leave the American ports. That question seemed a very troublesome one, and when we consider the difficulties we had in the Alabama case and how much indemnity England eventually had to pay us for the damage the Alabama did to our commerce, it was very natural that our Government should be very wary of incurring responsibility. But, really, that question is the simplest of them all. Every nation may make its own regulations as to the stay of war vessels in its ports, and, strictly speaking, it might perhaps define the vessels that it considered warships. Such a statement, however, would not pass without opposition. But a nation must not change its regulations in the course of war, unless the change be required by some very great national need. The next question involved is the right of neutrals to travel on armed merchantmen. That has been very much discussed in this country, and there has been a great deal of talk at random. Of course, from an international point of view, neutrals have the right to travel on armed merchantmen. If this Government or any other Government should desire to prohibit its own citizens from traveling on the ships of any other country, it might do so, but that would not affect the international question. The important question is, What is the measure of protection of neutrals traveling on armed belligerent liners? By some authorities it is said that the measure of protection to be accorded to neutrals traveling on armed merchant vessels liners in this case is the same as the measure of protection of belligerent noncombatants. In other words, if a belligerent has a right to sink an enemy vessel or to do certain acts to the noncombatants on board that vessel, neutrals on such vessels under the enemy's flag may be subjected to the same treatment. If that is accepted, then we can pass over the question of the protection of neutrals traveling on armed liners and settle it when we discuss the rights of noncombatants in general on belligerent armed liners. But I am not willing to let that assertion pass without objection. It seems to me that the rights of neutrals traveling on the armed liners of a belligerent are not quite the same as the rights of belligerent noncombatants. In other words, Americans traveling on British liners before the entry of America into the war, I think, were in a different position from the British citizens on that liner not engaged in the war, and the reason I think this is that the international communications which were maintained by those liners were a right of this nation as a neutral. If the other belligerent Germany in this case wished to have recourse to reprisals against Great Britain, she might bring her reprisals to bear on the British passengers in return for alleged acts against German civilians or some other act which might justify reprisals, but I think she had no right to involve neutrals traveling on the high seas. Such travel is a neutral right, and it may not be brought within the scope of belligerent reprisals. Coming, now, to the question of the rights of noncombatants on belligerent armed vessels. This question may be divided from the historical point of view into two periods, the situation before the Declaration of Paris, when privateers existed, and the situation which has existed since the Declaration. In the day of privateers a different situation existed because the privateer was a privately-owned vessel that acted as a commerce raiding warship for private gain. I do not wish to take up that phase of the subject, interesting as it is, because of the limit of time, but I wish to take up the situation after the Declaration of Paris. If we examine that great Declaration, we find its general purpose was to benefit neutrals. But Great Britain, I think we may fairly say, accepted the Declaration of Paris and agreed to be bound by its provisions; in other words, agreed to the codification of neutrality, which she had never willingly agreed to before, because she wished formerly to keep the law liquid, so she might modify it, perhaps, to suit the situation. She accepted the Declaration in return for the doing away with privateering. The United States was not willing to give up the right of privateering unless the Powers went one step further and secured the immunity of private property at sea. So we see the United States did not at that time agree to abolish this right of private warfare. It is true that we have observed this Declaration, and I am willing to admit I do not think it is generally controverted that the lapse of time and general acceptance have made the Declaration of Paris international law. But what we have to examine very carefully is what was the real meaning of this abolition of privateering. I am not taking here a technical attitude. I am trying to take up the questions upon which I have heard the bitterest altercations and not spend time on the questions which the defendants of the other view accept. The effect of the Declaration of Paris as abolishing the right of privateering has been made the basis of the contention of those outside of Germany who defend certain of the German views in regard to the status of armed merchantmen. As I said, the characteristic of the privateer is private command and private gain. The auxiliary fleets of the present day and armed merchantmen bear absolutely no analogy, and they could not, by any stretch of the imagination, be included among the privateers that were supposed to be done away with and were done away with by the Declaration of Paris. I do not think we need any better proof of that than the interesting case which occurred in 1870, during the Franco-German War, when the Prussian Government wished to fit out certain auxiliary vessels, and France protested that that was a violation of this provision of the Declaration of Paris prohibiting privateering. It was the British law officers themselves who examined the question and found that there was a difference between this fitting out of merchant vessels with officers of the Prussian Navy, and the privateers which were covered by the first article of the Declaration of Paris. There are other reasons still more fundamental, I think, why merchantmen have the right to defend themselves. It is the most fundamental right we can think of for a man to defend his property unless somebody with authority comes to take it from him. A merchantman sailing the seas has a right to defend his property unless somebody under authority comes to take it from him. Certainly the enemy are not coming with authority to take it from him unless by international law they have been given that right; but to the present day that right has never been given. There is a further right of self-preservation, mentioned by Mr. Anderson, since if the merchantmen do not defend themselves their passengers and crew will be put in small boats when the submarine sinks the vessel. This brings me to another question which I think has not been sufficiently considered. The international law of the sea grew up at a time when there was almost no passenger travel, and there has been no war in which the passenger travel has been involved in the way this war has affected it. If submarines had taken all the passengers off of the vessels which they sank, and taken them on board, they would then have been complying technically with international law, but subjecting the passengers to the very great danger, while they continued their cruise of being sunk. Such a treatment is intolerable when imposed upon innocent noncombatants. I should like to go deeper in that question, but the time will not permit. In closing, I would say that this whole question of the right of defense of armed merchantmen goes again to the very vitals of the difference between the German idea and the idea of the other countries. The German idea has been to have a specialized force developed in fighting, and the other Powers want to preserve the rights, as far as possible, of civilians to make the necessary defense, so as to lessen the charges and the military burdens. The PRESIDENT. The subject of "The Status of Armed Merchantmen is now open for discussion from the floor. Any member of the Society who has any views to express upon that will be heard with appreciation. Mr. MAURICE LEON. The first speaker who was heard to-night on this subject referred to the faulty reasoning of various German contentions which had gradually brought the German Government to the point of claiming the right to sink every vessel of whatsoever kind, belligerent or neutral; to destroy all lives, whether those of belligerent noncombatants or neutrals. This idea of faulty reasoning has been brought to the fore in many discussions, and I would say that our jails are full of people who have shown faulty reasoning along similar lines. Now, when you come right down to it and when you go to the heart of it what do you find? You find that in the case of the use of the submarine, as in the case of the use of all other war vessels employed in destroying belligerent commerce, there are certain risks. These risks are greater or lesser according to whether the vessel employed is stronger or weaker. A submarine is indeed a fragile vessel, but so is a torpedo boat. It is conceded that a surface torpedo boat might be sunk by a shell of just about the same size as would sink a submarine, and on that account in past wars the use of surface torpedo boats was seldom if ever resorted to against armed merchantmen. Here a great deal of argument is put forth in behalf of the vulnerability of a vessel, truly vulnerable, somewhat more or somewhat less than others, but whoever heard before this war that, in order to avoid a risk which is necessarily inherent in warfare, acts of barbarism may be perpetrated; and it comes right down to this, quite apart from any faulty reasoning, that we find a navy in this war composed of men who, in order to avoid those risks which were ever necessarily inherent in warfare, have done the things which we all know about. So, I submit to you, the reasoning is faulty, and it might even be called vicious, and the instinct back. |