voyage." Two points of controversy arose: as to the manner of settling the amount of damages and as to the nature of Germany's liability.

The United States, in view of the fact that the treaty was involved, objected to adjudication by a German prize court but insisted on arbitration, and Germany agreed to this in principle. The other important difference was that the United States claimed that the sinking of the Frye violated the treaty, but Germany asserted that under the treaty the sinking was justified subject to the payment of compensation. In either event, however, the treaty provisions are applicable to submarine warfare and give the United States a claim for damages even in those cases where the destruction of a neutral prize would be justified by the Declaration of London. Whether the treaty permits destruction or simply imposes liability, it does prohibit any indiscriminate warfare which would be directed against American vessels, and more than that, it expressly denies the legality of sinking without

saving the noncombatants on board, for Article 15 provides:

"And to prevent entirely all disorder and violence in such cases, it is stipulated that when the vessels of the neutral party, sailing without convoy, shall be met by any vessel of war, public or private, of the other party, such vessel of war shall not send more than two or three men in their boat on board the said neutral vessel, to examine her passports and documents. And all persons belonging to any vessel of war, public or private, who shall molest or insult in any manner whatever the people, vessels, or effects of the other party, shall be responsible in their persons and property, for damages and interest, sufficient security for which shall be given by all commanders of private armed vessels before they are commissioned."

America's case against the use of submarines by Germany, however, was rested upon general principles of international law and the dictates of humanity, and in the correspondence these treaties are not stressed. But it may be remarked here that a submarine "blockade" applying to American ships cannot but violate these old instruments the binding character of which Germany admitted on her own initiative.

After the sinking of the Lusitania and before an American protest could be made, two communications were received from Germany. The first expressed "deepest sympathy at the loss of lives on board the Lusitania," but maintained that the responsibility rested with the British Government, which, through its plan of starving the civilian population of Germany, had forced Germany to resort to retaliatory measures. The practice of arming British vessels made it impossible to treat them as merchant ships; and Germany regretted "that Americans felt more inclined to trust to English promises than to pay attention to warnings from the German side." In the second communication, Germany explained her policy with respect to neutral ships in the "war zone." Instructions had been issued to avoid attacks on neutral vessels under all circumstances. "Even when such ships have contraband of war on board they are dealt with by submarines solely according to the rules of international law applying to prize warfare." In the event of an unfortunate accident regret would be expressed and damages afforded, and when

there was a dispute as to the facts, Germany was willing to submit the questions to an International Commission of Inquiry as provided by the Hague Convention for the Pacific Settlement of International Disputes.

The protest of the United States was sent to Germany on May 13th, after six days' deliberation by President Wilson. It referred in perhaps too fulsome terms to "the humane and enlightened attitude hitherto assumed by the Imperial German Government in matters of international right," and declared that

"having understood the instructions of the Imperial German Government to its naval commanders to be upon the same plane of humane action prescribed by the naval codes of other nations, the Government of the United States was loath to believe-it cannot now bring itself to believe that these acts, so absolutely contrary to the rules, the practices, and the spirit of modern warfare, could have the countenance or sanction of that great Government. It feels it to be its duty, therefore, to address the Imperial German Government concerning them with the utmost frankness and in the earnest hope that it is not mistaken in expecting action on the part of the Imperial German Government which will correct the unfortunate im

pressions which have been created and vindicate once more the position of that Government with regard to the sacred freedom of the seas."

Germany had already been informed that the United States could not consent to "an abbreviation of the rights of American shipmasters or of American citizens bound on lawful errands as passengers on merchant ships of belligerent nationality" through the adoption of "methods of retaliation which go much beyond the ordinary methods of warfare at sea," and that the Imperial German Government would be held "to a strict accountability for any infringement of those rights, intentional or incidental." The United States, the note continued,

"does not understand the Imperial German Government to question those rights. It assumes, on the contrary, that the Imperial Government accept, as of course, the rule that the lives of noncombatants, whether they be of neutral citizenship or citizens of one of the nations at war, can not lawfully or rightfully be put in jeopardy by the capture or destruction of an unarmed merchantman, and recognize also, as all other nations do, the obligation to take the usual precaution of visit and search to ascertain