as recognized by international law, the sole exception being the conduct of warfare against the enemy trade carried on enemy freight ships that are encountered in the war zone surrounding Great Britain; with regard to these no assurances have ever been given to the Government of the United States; no such assurance was contained in the declaration of February 8, 1916.1 After expressing the hope that the diplomatic relations between the United States and the Imperial German Government would not be severed, as was more than intimated in Secretary Lansing's note in the Sussex case, dated April 18, 1916, to which the German note under consideration was a reply, the Imperial authorities, for the reasons stated, made what they were pleased to call a special concession for the balance of the war. Thus: The German Government, moreover, is prepared to do its utmost to confine the operations of war for the rest of its duration to the fighting forces of the belligerents, thereby also insuring the freedom of the seas, as principle upon which the German Government believes, now as before, to be in agreement with the Government of the United States. The German Government, guided by this idea, notifies the Government of the United States that the German naval forces have received the following orders: In accordance with the general principles of visit and search and destruction of merchant vessels recognized by international law, such vessels, both within and without the area declared as naval war zone, shall not be sunk without warning and without saving human lives, unless these ships attempt to escape or offer resistance. 2 It is to be observed that, by the express terms of this concession, enemy freight ships encountered in the war zone surrounding Great Britain were not to have the benefit of the general principles of visit and search and destruction of merchant vessels as recognized by international law, that other merchant ships were to be treated in accordance with the general principles of visit and search and destruction of merchant vessels recognized by international law; that, however, the benefit of international law was to be denied them should they "attempt to escape or offer resistance"; and in a passage previously quoted this concession-regarded only as such by the German Government-was not to be enjoyed by neutrals "if her enemy is permitted to continue to apply at will methods of warfare 'Official text, American Journal of International Law, Special Supplement, October, 1916, p. 196. 2 Ibid., p. 198. violating the rules of international law"; and that, finally, armed vessels (meaning by that term apparently any vessel armed with a gun sufficient to stop the submarine) were to be treated as auxiliary cruisers and sent to the bottom with crew and passengers. This may seem but a small result of constant and persistent negotiation extending over a period of well-nigh two years, for it merely amounted to the statement that Germany would conduct its maritime operations hereafter in accordance with the generally recognized principles of international law, which Germany should have done from the beginning of the war. Yet it was very important to procure a pledge of this kind, because it was a recognition on the part of Germany that its actions had been contrary to international law, as this relieved the United States of the burden of proof in the future. The reservation of the right to continue its conduct contrary to the generally recognized principles of international law during the remainder of the war if the enemy did not mend its ways was a claim on the part of the German Government to do wrong, at the expense of the neutral, if its enemy did not do right. This concession, therefore, judged by the past, was ominous for the future, as was also the pledge to be bound by the general principles "recognized by international law," because Germany reserved to itself the interpretation of the general principles recognized by international law, and in each statement visit and search are coupled with destruction, thus placing, apparently, visit, search, and destruction upon an equality. CHAPTER XIV THE ACCEPTED RULES OF MARITIME WARFARE SECTION 1. VIEWS OF GERMAN PUBLICISTS The contentions of the Imperial German Government and of the United States in regard to the conduct of Germany's warfare upon the high seas have been laid before the reader in the form in which they are to be found in the official correspondence between the two Governments, without reference, or with very slight or incidental reference, to the views of publicists whose writings are, according to the decisions of the Supreme Court of the United States, to be taken as evidence of the law of Nations. It is proposed in this place, therefore, to consider the contentions of the two Governments in the light of the law of Nations as expounded by publicists, and for this purpose, in order that the German conception of international law may be adequately represented, only the writings of German publicists of repute will be considered. For if the conduct of the Imperial German Government is in accordance with the views of its accredited publicists published before the war, and indeed before this war could be supposed to have been in contemplation of the Government and, in any event, beyond the knowledge of the publicists, it must be conceded that, although the views of our Government may differ from those expressed and acted upon by Germany, there is authority of no mean order for our Imperial antagonist, and that its actions, however contrary to what we may be pleased to consider the dictates of humanity, cannot be regarded as in violation of international law as the German Government conceives it to be. First, as to visit and search and the formalities required by the practice of Nations in the exercise of this belligerent right. The nature and extent of the right and the reason for its existence are admirably and fully stated by the distinguished Prussian publicist, August Wilhelm Heffter, a man of large learning, a lawyer by profession, a judge by position, and for many years professor of international law in the University of Berlin. His treatise entitled Das Europäische Völkerrecht der Gegenwart, first published in 1844, has frequently been reprinted and, enriched with Geffcken's notes, it occupies the position in German literature which Dana's edition of Wheaton's Elements of International Law holds in the English-speaking world. Indeed, a no less competent authority than the broad-minded and liberal publicist Robert von Mohl considered it from the legal standpoint by far the best in any language.' On the subject-matter in hand Heffter says: The means generally resorted to by the belligerents for the purpose of maintaining neutral commerce within the necessary or conventional limits, is called the right of visit. This right entitles the belligerents, either by national vessels, or by commissioned armed vessels, to stop other vessels which they encounter on the seas, to ascertain their nationality, to establish the nature of their cargo and their destination. . The right of search is granted in order that the belligerent may make good his title to certain rights with regard to the enemy and the neutral Nations. The belligerent may exercise the right of visit: 1. Within his own territory; 2. Within the territory of his adversary, that is to say, within the enemy roadways, ports, and territorial waters, even including the rivers; 3. Lastly, upon the high seas. But the visit may not be operated within neutral waters, nor within those of the friendly Powers, without the latter's express or tacit consent. The merchantmen encountered within the above-mentioned areas and whose peaceful destination, dissociated from the operations of the war, is not established by evident and incontrovertible signs, are subject to the visit. The neutral warships are not subject to visit, provided their nationality is undisputed. It should, however, be observed that the flag does not necessarily guarantee their nationality. The belligerents may, on the contrary, stop upon the high seas any kind of transports whose harmlessness is not sufficiently established, both with regard to their cargo and their owner, and with regard to the port whence they came and to which they are destined. The visit has for its special purpose: 1. To ascertain the ownership of the vessel and of the cargo and to establish if the one or the other may not belong to the enemy; 'Holtzendorff's Handbuch des Völkerrechts (Berlin, 1885-1889, 4 vols.), vol. 1, p. 486. 2. To ascertain if enemy persons may not be on board of the vessel visited; 3. To establish that the vessel does not carry articles of contraband or of prohibited assistance to the enemy; 4. To prevent the vessel from communicating with blockaded localities. In consequence, the visit must establish: 1. The nationality of the vessel; 2. The quality, the origin, and the destination of the cargo; 3. The nationality of the crew.1 After thus stating the general nature and extent of the right, the place where it may be exercised, its specific purposes and the facts to be established by visit and search, Heffter next indicates the agents of the belligerents by which the right may properly be exercised. Thus, on this point, he says: The right of visit of neutral vessels is exclusively reserved to the commanders of naval and military forces, especially to the war vessels and to all others provided with commissions issued by the belligerent sovereign, including privateers, provided piracy has not been abolished.2 But experience has shown, to speak only of times past, that belligerents are a law unto themselves, and that unless a right granted them be regulated and carefully safeguarded, it is likely to be abused. Because of this the formalities to be observed in the execution of this right are no less important than the right itself, and they are as clear and definite, well understood and recognized as is the right. Therefore, in the next passage to be quoted Heffter mentions the formalities to be followed in boarding the vessel to be visited and searched, if need be, the documents to be examined proving the character of the vessel, its cargo, and the venture in which it is engaged. Thus : 1 The exercise of the right of visit has been regulated, especially by the Treaty of the Pyrenees,' whose dispositions upon this 1 Heffter, Das Europäische Völkerrecht der Gegenwart (Berlin, 1888), 8th ed., pp. 372-374. Ibid., p. 374. The Treaty of the Pyrenees, concluded between France and Spain in 1659, and which is properly called by Heffter the leading treaty on the subject, affirms and incorporates the law of Nations upon this subject, in its seven. teenth article, which reads as follows: Que s'ils estoient entrez dans les Rades, ou estoient rencontrez en pleine mer, par quelques Navires dudit Seigneur Roi Catholique, ou d'Armateurs particuliers ses Sujets, lesdits Navires d'Espagne, pour éviter |