Whatever may be the ultimate issue of the particular controversy raised by the treaty under discussion, we may be confident that the United States, in its championship of generous, progressive principles in international affairs, will not fail to stand always for a liberal interpretation and development of the law of nations on this continent. PHILIP MARSHALL BROWN

THE RIGHT TO ATTACK UNARMED SUBMARINE MERCHANTMEN

THE arrival at Baltimore, in July last, of the S. S. Deutschland, an unarmed submarine merchantman, with a valuable cargo for sale in the United States, and the subsequent departure of the vessel from that port for Bremen, raised inquiry whether principles established for the regulation of attacks upon surface craft of a belligerent could be applied with equal justice with respect to merchantmen capable of taking refuge within the depths of the sea.

The unarmed submersible merchantman, like that which is obliged to remain on the surface, obviously cannot open fire upon an enemy ship. It serves also a useful purpose as a carrier of persons and property. It is unique, however, with respect to its mode of and facility in eluding pursuit as well as signals to surrender. It may be doubted whether this circumstance alone suffices to place the submarine in a less favorable position. A surface craft of extraordinary speed, enabling it to outdistance every pursuer and to keep beyond the range of signals, would not for that sole reason be exposed to attack at sight. Refusal to obey a reasonable signal to come to should doubtless subject an undersea vessel to the same penalties as a surface craft. The peculiar ability of the former to disregard such a signal with impunity does not, however, justify the failure to make one, unless it can be shown that the right of capture is an absolute one unfettered by the dictates of humanity. Such is not the case in the normal situation where the merchantman is not primarily devoted to the public service, or until guilty of reprehensible conduct.

At the present time an unarmed enemy surface craft, such as a trans-Atlantic liner, of great tonnage and high speed, although designed and employed primarily for the transportation of passengers and mail, is still capable of rendering incidentally substantial military service as a carrier of war material. Its speed may enable the vessel to outdistance any pursuer and to keep beyond range of a

signal to lie to. Wireless telegraphic equipment may offer means of summoning aid whenever needed. The instant destruction of the ship without warning may thus offer the sole means of preventing its escape and the delivery of contraband articles at their destination. Doubtless the success of the voyage, despite its principal purpose, serves to prolong the war by adding to the resources of the state to which the vessel belongs. It is not believed, however, that the indirect harm to be wrought in consequence of escape equals that to be anticipated from the deliberate destruction of the lives of the occupants of the ship by an opposing war vessel. Claims of military necessity fail to turn the scales of justice.

The submersible merchantman when observed on the surface, if its harmless character is then ascertainable, would seem to be entitled to such a warning as it might justly claim if it could not submerge. Greater excuse for attack at sight may exist when an enemy warship upon first encountering a submarine is in fact unable to distinguish it from an armed undersea vessel known to be employed as a weapon. of offense. To remove occasion for such mistakes, it is believed that the unarmed submersible should undertake the burden of exhibiting some distinctive token or proof of its peaceful character, which by general convention maritime Powers should agree both to respect and refrain from abusing.

It may be urged that the sheer ability of a craft to submerge betokens such special adaptability for engagement in hostile operations that the military necessity to the enemy to destroy or capture it should be recognized as paramount to every other consideration. The treatment of surface craft affords perhaps a parallel. An unarmed passenger liner, built with special reference to its use in time of war as a transport or as a scout cruiser, with decks constructed so as to admit of the easy addition of armament, does not lose its quality as a merchantman, if designed primarily as a carrier of persons and property, and while employed in fact as a vehicle of commerce. To justify attack at sight upon an unarmed submarine merchantman, the fact should be known, not merely that the vessel is readily capable of transformation in port into a warship, but also that it is either designed primarily for use as such, or that when encountered it is a direct participant in the prosecution of the war.

CHARLES CHENEY HYDE

PROPERTY IN NAVAL CAPTURES

There is so much confusion in the public mind as to procedure in prize cases that it seems advisable, without, however, entering into details, to offer some observations on the subject of a kind calculated to put it in its true light.

The law of nations allows enemy property upon the high seas to be taken wherever found. A man-of-war or a public vessel, unless it be engaged in scientific pursuits, is liable to capture. Private property of the enemy, that is to say, property on the high seas owned by citizens or subjects of the enemy, may likewise be captured; and the neutral property of neutral citizens or subjects directed to a blockaded port or of the kind known as contraband in voyage to a neutral port from which it may be transferred to the enemy, is liable to capture under certain conditions.

Now, there is a very essential difference between these different cases. The enemy man-of-war or public vessel may be captured, and it is not necessary, so far as the question of title is concerned, to pass it before a prize court of the captor, because the capture of enemy property passes title. Municipal statute may indeed require for certain purposes that the capture may be passed upon by a prize court, but this is a purely municipal, not an international, regulation, in order to entitle the captors, according to the municipal law of most countries, to share in the prize. In the case of a man-of-war or of a public vessel, neutral interests are not involved.

The case, however, is different when property belonging to private owners is captured, because in this case neutral interests may be involved, and for the protection of neutral interests in such cases it has become the practice of nations to have the capture passed upon by a prize court of the captor, even although the vessel or property may have been destroyed or sold by the captor or for some other reason is not brought before the court.

As between the enemy governments or the enemy citizens or subjects, the decision of a prize court is not necessary, because the law of nations allows innocent unoffending property belonging to enemy citizens or subjects, that is to say, enemy property that cannot be used for a warlike purpose, to be captured. Thus Mr. Hall says, in his masterly treatise on international law, 4th edition, pp. 474-475:

As the property in an enemy's vessel and cargo is vested in the state to which the captor belongs so soon as an effectual seizure has been made, they may in strictness be disposed of by him as the agent of his state in whatever manner he chooses. So long as they were clearly the property of the enemy at the time of capture, it is immaterial from the point of view of international law whether the captor sends them home for sale, or destroys them, or releases them upon ransom. But as the property of belligerents is often much mixed up with that of neutrals, it is the universal practice for the former to guard the interests of the latter, by requiring captors as a general rule to bring their prizes into port for adjudication by a tribunal competent to decide whether the captured vessel and its cargo are in fact wholly, or only in part, the property of the enemy. And though the right of a belligerent to the free disposal of enemy property taken by him is in no way touched by the existence of the practice, it is not usual to permit captors to destroy or ransom prizes, however undoubted may be their ownership, except when their retention is difficult or inconvenient.

In this case, it is not necessary to discuss the policy of destroying prizes in which neutral persons are interested, because wanton destruction of the property does not free the captor from liability to the neutral if his property was unlawfully destroyed. In the case of an enemy ship or property, the prize proceeding is required in the interest of the neutral. In the case of neutral vessel or neutral property upon such a vessel, the necessity for a judicial proceeding is all the more evident because the enemy possesses but a limited right to seize a neutral ship or neutral property, and the decision of a prize court is requisite in order clearly to ascertain that the seizure of neutral property was in accordance with the law of nations, and therefore justifiable.

It will be observed that the court to which the validity of the capture is submitted is the court of the captor, and the question arises whether this tribunal is to be considered as a municipal court or as a court of international law, because, although sitting within the jurisdiction of the captor, it is supposed to administer the law of nations, or at least it is by virtue of a principle of international law that the capture of enemy property or the seizure of neutral property upon the high seas is permitted. It is frequently said, and maintained, that the prize court, although sitting within the captor's country, is international-not municipal; and it becomes necessary to consider this question with some care, because if it should turn out that the court sitting within a particular country is municipal, it would follow that its judges are municipal judges, and that as such they are bound by municipal law and that in fact they administer

municipal law when it differs from the law of nation. Now, it would appear that if a court is created by a particular nation, if that court sits within the jurisdiction of this nation, and if the judges, like other judges, are appointed by this nation, and, like other judges, take the oath of allegiance to the nation appointing them, it would seem that such courts are municipal in fact, although they may be international in theory.

JAMES BROWN SCOTT