Second. The relations of belligerents and neutrals as affected by the status of armed merchant vessels on the high seas.

(1) Innocent neutral property on the high seas can not legally be confiscated, but is subject to inspection by a belligerent. Resistance to inspection removes this immunity and subjects the property to condemnation by a prize court, which is charged with the preservation of the legal rights of the owners of neutral property.

(2) Neutral property engaged in contraband trade, breach of blockade, or unneutral service obtains the character of enemy property and is subject to seizure by a belligerent and condemnation by a prize court.

(3) When hostile and innocent property is mixed, as in the case of a neutral ship carrying a cargo which is entirely or partially contraband, this fact can only be determined by inspection. Such innocent property may be of uncertain character, as it has been frequently held that it is more or less contaminated by association with hostile property. For example, under the declaration of Londonwhich, so far as the provisions covering this subject are concerned, has been adopted by all the belligerents-the presence of a cargo which in bulk or value consists of 50 per cent contraband articles impresses the ship with enemy character and subjects it to seizure and condemnation by a prize court.

(4) Enemy property, including ships and cargoes, is always subject to seizure and condemnation. Any enemy property taken by a belligerent on the high seas is a total loss to the owners. There is no redress in a prize court. The only means of avoiding loss is by flight or successful resistance. Enemy merchant ships have therefore the right to arm for the purpose of self-protection.

(5) A belligerent warship is any vessel which, under commission or orders of its Government imposing penalties entitling it to prize money, is armed for the purpose of seeking and capturing or destroying enemy property or hostile neutral property on the seas. The size of the vessel, strength of armament, and its defensive or offensive force are immaterial.

(6) A belligerent warship has, incidental to the right of seizure, the right to visit and search all vessels on the high seas for the purpose of determining the hostile or innocent character of the vessels and their cargoes. If the hostile character of the property is known, however, the belligerent warship may seize the property without exercising the right of visit and search, which is solely for the purpose of obtaining knowledge as to the character of the property. The attacking vessel must display its colors before exercising belligerent rights.

(7) When a belligerent warship meets a merchantman on the high seas, which is known to be enemy owned, and attempts to capture the vessel, the latter may exercise its right of self-protection either by flight or by resistance. The right to capture and the right to prevent capture are recognized as equally justifiable.

(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 character 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 attacks 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.

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(13) A vessel engaged intermittently in commerce and under 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 considerate treatment.

On the 10th of April Germany made reply to our memorandum of the 25th of March, in which responsibility for the destruction of the Sussex was not admitted.

BERLIN, April 12, 1916.

The following is the text of the German note on the Sussex, dated April 10:

"The undersigned has the honor to inform your excellency, Ambassador Gerard, in response to communications of the 29th and 30th ultimo and the 3d instant regarding the steamers Sussex, Manchester

Engineer, Englishman, Berwindvale; and Eagle Point that the mentioned cases, in accordance with our notes of the 30th and 31st ultimo and the 4th and 5th instant, have been subjected to careful investigation by the admiral staff of the navy, which has led to the following results:

"First. The English steamer Berwindvale: A steamer, which was possibly the Berwindvale, was encountered on the evening of March 16 in sight of Bull Rock Light, on the Irish coast, by a German submarine. The steamer, as soon as she noticed the submarine, which was running unsubmerged, turned and steamed away. She was ordered to halt by a warning shot. She paid no attention, however, to this warning, but extinguished all lights and attempted to escape. The vessel was then fired upon until halted, and without further orders lowered several boats. After the crew entered the boats and received enough time to row away the ship was sunk.

"The name of this steamer was not established; it can not be stated with assurance, even with the help of the details which were furnished by the American Embassy, that the above-described incident concerns the steamer Berwindvale. Since, however, the steamer sunk was a tank steamer like the Berwindvale, the identity of the ships may be assumed. In this case, however, the statement made that the Berwindvale was torpedoed without warning would conflict with the fact.

"Second. The British steamer Englishman: This steamer March 24 was called upon to halt by a German submarine, through two warning shots, about 20 sea miles west of Islay (Hebrides). The vessel proceeded, however, without heeding the warning, and was therefore forced by the submarine by artillery fire to halt after an extended chase, whereupon she lowered boats without further orders.

"After the German commandant had convinced himself that the crew had taken to the boats and rowed from the ship, he sank the steamer.

"Third. The British steamer Manchester Engineer: It is impossible to establish through the investigation up to the present whether the attack on this steamer, which, according to the given description, occurred on March 27 in the latitude of Waterford, is attributable to a German submarine. The statement regarding the time and place of the incident gives no sufficient basis for investigation. It would therefore be desirable to have more exact statements of the place, time, and attendant circumstances of the attack reported by the American Government, in order that the investigation might thereupon be brought to a conclusion.

"Fourth. The British steamer Eagle Point: This steamer in the forenoon of March 28 was called upon to halt by a German submarine through signal and shot about 100-not 130 sea miles from the southwest coast of Ireland, but proceeded. She was thereupon fired upon until halted, and without further orders lowered two boats, in which the crew took their places. After the commandant convinced himself that the boats, which had hoisted sails, had gotten clear of the steamer, he sank the steamer.

"At the time of the sinking a north-northwest wind of the strength of two, not a storm wind,' and a light swell, not ‘ a heavy sea, as stated in the given description, prevailed. The boats therefore had.

every prospect of being picked up very quickly, because the place of the sinking lay on a much-used steamer path.

"If the crew of the steamer used only two small boats for saving themselves the responsibility falls upon themselves, since there were still upon the steamer, as the submarine could establish, at least four big collapsible boats.

Fifth. The French steamer Sussex: Ascertainment of the fact whether the channel steamer Sussex was damaged by a German submarine was rendered extremely difficult, because no exact details of time, place, and attendant circumstances of the sinking were known, and also because it was impossible to obtain a picture of the ship before April 6. Consequently the investigation had to be extended to all actions undertaken on the day in question-March 24 in the channel in the general region between Folkstone and Dieppe."

In that region, on March 24, a long, black craft without a flag, having a gray funnel, small gray forward works, and two high masts, was encountered about the middle of the English Channel by a German submarine. The German commander reached the definite conclusion that it was a war vessel, and, indeed, a mine layer of the recently built English Arabic class. He was led to the conviction by the following facts: First, by the plain, unbroken deck of the ship; second, the form of the stern, sloping downward and backward like a war vessel; third, she was painted like a war vessel; fourth, the high speed developed, about 18 knots; fifth, the circumstance that the vessel did not keep a course northward of the light buoys between Dungeness and Beachy Head, which, according to the frequent and unvarying observations of German submarines, is about the course of commercial vessels, but kept in the middle of the channel, on a course about in the direction of Le Havre.

Consequently he attacked the vessel at 3.55 in the afternoon, middle European time, 1 sea miles southeast of Bull Rock (Bullock?) Bank, the submarine being submerged. The torpedo struck and caused such a violent explosion in the forward part of the ship that the entire forward part was torn away to the bridge.

The particularly violent explosion warrants the certain conclusion that great amounts of munitions were aboard.

The German commander made a sketch of the vessel attacked by him, two drawings of which are inclosed. The picture of the steamer Sussex, two copies of which are also inclosed, is reproduced photographically from the English paper, the Daily Graphic of the 27th ultimo.

A comparison of the sketch and the picture shows that the craft attacked is not identical with the Sussex. The difference in the position of the stack and shape of the stern is particularly striking.

No other attack whatever by German submarines at the time in question for the Sussex upon the route between Folkestone and Dieppe occurred. The German Government must therefore assume that the injury to the Sussex is attributable to another cause than an attack by a German submarine.

For an explanation of the case the fact may perhaps be serviceable that no less than 26 English mines were exploded by shots by German naval forces in the channel on the 1st and 2d of April alone. The entire sea in that vicinity is, in fact, endangered by floating mines

and by torpedoes that have not sunk. Off the English coast it is further endangered in an increasing degree through German mines which have been laid against enemy naval forces.

Should the American Government have at its disposal further material for a conclusion upon the case of the Sussex, the German Government would ask that it be communicated, in order to subject this material also to an investigation.

In the event that differences of opinion should develop hereby between the two Governments, the German Government now declares itself ready to have the facts of the case established through mixed commissions of investigation, in accordance with the third title of The Hague agreement, for the peaceful settlement of international conflicts, November 18, 1907.

The undersigned, while requesting that you communicate the above to the Government of the United States, takes occasion to renew to the ambassador the assurance of his distinguished esteem.

JAGOW.

On the 18th day of April our Government addressed Germany the now famous note considered by many as an ultimatum:

TEXT OF THE AMERICAN NOTE TO GERMANY.

DEPARTMENT OF STATE,

Washington, April 18, 1916.

THE SECRETARY OF STATE TO AMBASSADOR GERARD.

You are instructed to deliver to the Secretary of Foreign Affairs a communication reading as follows:

"I did not fail to transmit immediately, by telegraph, to my Government Your Excellency's note of the 10th instant in regard to certain attacks by German submarines, and particularly in regard to the disastrous explosion which, on March 24 last, wrecked the French steamship Sussex in the English Channel. I have now the honor to deliver, under instructions from my Government, the following reply to Your Excellency:

"Information now in the possession of the Government of the United States fully establishes the facts in the case of the Sussex, and the inferences which my Government has drawn from that information it regards as confirmed by the circumstances set forth in Your Excellency's note of the 10th instant. On the 24th of March, 1916, at about 2.50 o'clock in the afternoon, the unarmed steamer Sussex, with 325 or more passengers on board, among whom were a number of American citizens, was torpedoed while crossing from Folkestone to Dieppe. The Sussex had never been armed, was a vessel known to be habitually used for the conveyance of passengers across the English Channel, and was not following the route taken by troopships or supply ships. About 80 of her passengers, noncombatants of all ages and sexes, including citizens of the United States, were killed or injured.

"A careful, detailed, and scrupulously impartial investigation by naval and military officers of the United States has conclusively