marks of a war ship and should observe the laws and customs of war, and the belligerent making such conversion should immediately make it public. 116. Armed Merchant Vessels (a) During the World War resort to the use of armed merchant vessels was common. In the case of the Nereide, 1815, which was frequently cited, it was said, "A belligerent has a perfect right to arm in his own defence." 1 On March 26, 1913, Mr. Churchill, representing the British Admiralty, said in the House of Commons," Hostile cruisers, wherever they are found, will be covered and met by British ships of war, but the proper reply to an armed merchantman is another merchantman armed in her own defence."2 And on March 17, 1914, he said, "They are not allowed to fight with any ships of war.' British attitude. In August and September, 1914, the United States and Great Britain exchanged numerous notes on the subject of armed merchant vessels. The note of August 25, 1914, gave "the United States Government the fullest assurances that British merchant vessels will never be used for purposes of attack, that they are merely peaceful traders armed only for defence, that they will never fire unless first fired upon, and that they will never under any circumstances attack any vessel." 5 Attitude of (b) On September 19, 1914, the State Department of the United States made known its attitude in a memorandum on "The status of armed merchant vessels," admitting defensive armament and trying to fix its limit by physical description and evidence "as to the intended use." "6 This memorandum allowed six-inch guns astern, etc. The attitude taken in this memorandum became the sub 19 Cr., 388. 3 59 Ibid., 1925. Ibid., p. 230. 250 Parliamentary Debates (1913), 1776. Special Sup. A. J., July, 1915. Ibid., p. 312. ject of much note-writing, and on January 18, 1916, the United States attempted to obtain a modus vivendi in accordance with which submarines should conform to rules for surface vessels of war in exercising the right of visit, search, and capture, and merchant vessels should carry no armament whatsoever. The State Department said, after discussing the changed conditions on the seas, owing to the disappearance of pirates and other dangers, "consequently, the placing of guns on merchantmen at the present day of submarine warfare can be explained only on the ground of a purpose to render merchantmen superior in force to submarines and to prevent warning and visit and search by them. Any armament, therefore, on a merchant vessel would seem to have the character of an offensive armament."1 The belligerents did not agree upon the suggested modus vivendi. (c) The Netherlands Government issued its neutrality proclamation on August 5, 1914, and Article 4 provides "No warships or ships assimilated thereto belonging to any of the Attitude of belligerents shall have access to said (Netherlands) Netherlands. territory." Under this Article armed merchant vessels were excluded from Dutch waters. The Dutch Government stated that since these vessels were armed to perform, in case of need, an act of war, the Government was obliged to consider armed merchant vessels assimilated to vessels of war, and the Dutch Government maintained its position in spite of protests from both belligerent parties. Limitation of (d) The Conference on Limitation of Armament by the Treaty in relation to the Use of Submarines and Noxious Gases in Warfare, February 6, 1922, aimed to regularize Armament Con- the use of submarines,2 but apparently expected the use of armed merchant vessels to continue, as there was inserted as Article 14 of the Treaty Limiting Naval Armament a provision for stiffening the decks of mer1 Special Sup. A. J., July, 1915, p. 312. 2 Appendix, p. cvii. ference. chant vessels "for the mounting of guns not exceeding 6 inch calibre." Many of the problems involved in the use of armed merchant vessels still remain unsolved. It would seem that the ultimate and logical conclusion will be that vessels of war, whether surface or under-sea vessels, must conform to the laws of war, and merchant vessels must remain merchant vessels and conduct themselves accordingly. 117. Capture, Destruction, and Ransom Prior to the World War, 1914, for more than one hundred years the capture of private property at sea was regarded with disfavor both on the continent of Europe and in America. The exemption (a) The attitude of the United States is shown by the provision in the Treaty with Prussia of 1785, whereby merchant vessels of either state are to pass free and unmolested." 2 John Quincy Adams, in 1823, asked England, France, and Russia to exempt hostile private property from capture. The proposition was not accepted.3 The United States withheld its approval of the Declaration of Paris of 1856 because private property was not exempted from capture. The resolution in the United States House of Representatives of Mr. Gillett of Massachusetts, of April 25, 1898, exempting merchant ships from capture, failed to pass, the argument being advanced that Spain had shown a lack of reciprocity. On April 28, 1904, the United States Congress passed a resolution favorable to the exemption of innocent private property at sea. States in practice have attempted to introduce the principle of exemption of private property from capture, as at the inception of the Franco-German War in 1870. The American delegates to the Second Peace Conference at The Hague strenuously endeavored, 12 Hyde, pp. 402, 466. 37 Moore, § 1198. 22 Treaties, 1477. but without success, to induce the powers represented to exempt private property at sea from capture. In recent years the principle of exemption of private property from capture has received decreasing support. Late declarations and regulations provided that officers and crews of captured enemy merchant vessels might be made prisoners of war, if by training or enrollment they would be immediately available for naval service.1 Passengers on such vessels were to be given all convenient consideration.2 Any person might be detained as a witness. At The Hague in 1907, by Convention ratified only by about one half of the states, more general rules were proposed.3 (b) Capture is complete when the hope of recovery has ceased and surrender has taken place. It was long held that twenty-four hours of possession constituted valid capture. In earlier times the capture was com Valid capture. plete when the property seized was brought within the firm possession of the captor, as within a camp, fortress, fleet, etc. This rule seems to be more equitable, as the effective possession is a better ground than the lapse of time. The evidence of intention to capture must be shown by some act, such as the placing of a prize crew or prize master on board a captured vessel, though the vessel has been held to be under the control of the captor, even when by reason of the weather no one has been placed on board.1 (c) The captor should bring his enemy prize into port for adjudication by the court because there may be neutral property or rights involved. The prize is to be disposed of only by state authority. Captured vessel as a prize. (d) However, an enemy's vessel may be destroyed when it is no longer seaworthy, when it impedes. 1 Japanese Regulations, 1904, Art. 50. Appendix, p. lxxxiv, Ch. III. 2 Ibid., Art. 69. 4 The Grotius, 9 Cr., 368, 370. unduly the progress of the capturing force, when its recapture is threatened by the enemy, when the capturing force is unable Destruction of to place a sufficient prize crew on board without prize. impairing too much its own efficiency, and when a port of the capturing force to which the prize may be brought is too far away.1 Before destruction the personnel must be placed in safety. The United States, in the War of 1812, directed its officers to destroy all the enemy's vessels captured, unless very valuable and near a port. This was necessary on account of its lack of forces. During the World War destruction of vessels without due regard to law was common.3 66 (e) Sometimes the original owner was allowed to ransom by repurchase, property which had been captured. In such case the transaction was embodied in a ransom bill," by which the master agreed that the owner would pay to the captor a certain sum of money. Practice in regard to ransom. A duplicate copy of this bill served as a safe-conduct for the ransomed vessel so long as there was no departure from its terms in regard to the course to be sailed, the ports to be entered, the time of sailing, etc. The contract was not violated when the ransomed vessel was driven from her course by stress of weather or by circumstances beyond her control. The captor might take from the captured vessel a hostage for the fulfillment of the ransom contract. Should the captor's vessel be taken with the hostage and ransom bill on board by a vessel of the enemy, the ransom bill is discharged. Some of the European states forbid the practice, others limit it, and others, like the United States, no longer resort to ransom. 118. Aerial Warfare (a) Balloons were used in war in the eighteenth and nine 64 1 See rules of the "Inst. of Int. Law," 1882, Annuaire," 1883, p. 221; ibid.. 1913, p. 669. 2 See Sec. 136 (h) for destruction of neutral prizes, p. 328. Fauchille, 1383. |