been repeatedly and most grossly violated. Hospital ships duly marked and bearing all the evidences of their character in accordance with the convention relating to them have been ruthlessly sunk, and the sick and wounded, the surgeons and nurses on them exposed to all the perils of the sea in open boats, or even intentionally fired upon, and killed, wounded or drowned. The convention relative to the right of capture in naval war deals only with a few points. The Hague Conference did not succeed in covering the field of naval warfare owing to diverse views in some respects. The duty of the captor to secure the ship's papers and the witnesses needed to prove the character of the vessel and cargo, and to take the ship into a port for adjudication, and all the procedure relating to such adjudication and the disposition of the proceeds of the confiscated property is very fully regulated by Title LIV of the Revised Statutes of the United States. In the Articles for the Government of the Navy it is provided: "If any person in the Navy strips off the clothes of, or pillages, or in any manner maltreats, any person taken on board a prize, he shall suffer such punishment as a court-martial may adjudge."25 Wanton injuries to the captured crew are grounds for civil damages.26 Captors are under obligations to show due respect to the persons and property of neutrals, and to bring in the prize in as good condition as possible.27 These rules are the generally accepted law of all civilized countries and have been for more than a century. There were however various matters connected with naval warfare as to which there were differences in the customs and adjudications of the prize courts of different nations. Most if not all of these were considered and provided for in the Declaration of London. But this Declaration was never ratified by the parties to it and therefore has no binding effect as an agreement. It may also be said that all the Hague conventions contain a provision that"The provisions of the present convention do not apply except between the contracting powers, and then only if all the 25 Compiled Statutes of the United States 1918, §2977. 26 The Lively, 15 Fed. Cas. No. 8403. 27 Del Col v. Arnold, 3 Dallas (U.S.) 333. belligerents are parties to the convention." The course of events in the war sustains von Moltke's assertion that belligerents will be influenced in their conduct by the circumstances with which they are surrounded rather than by any set of rules agreed to before the conflict. War having been declared, Germany deemed it of vital importance to crush France at once. The best road to France was through Belgium. Germany therefore asked permission to move her army through Belgium. This request was refused. Germany, France and Great Britain guaranteed the neutrality of Belgium in the general treaty of 1839,28 and afterward by separate treaties. Under these treaties it was the plain duty of Belgium to remain neutral and prevent the passage of the German troops over her territory. To respect this neutrality and attack France only across the boundary of the two countries would cause delay and unfavorable military situations. Germany therefore disregarded her treaty and violated the most fundamental principles of good faith as well as of international law. This conduct shocked the moral sense of neutral nations. The slaughter of civilians who attempted to defend their homes and the destruction of Louvain and other Belgian towns, appeared as almost incredible exhibitions of savagery. Great Britain entered the war to perform its treaty obligations and defend Belgium. Having the greatest navy in the world, but a very small army, it used the weapon it had. The most vulnerable place in Germany's armor seemed to be in its commerce and dependence on other nations for supplies. England therefore blockaded its ports. But a mere blockade of such ports as could be reached would not avail because the ports of neutral neighbors afforded ample facilities for shipments from and to foreign countries. To make the blockade effective it was necessary to blockade the ports of Holland, Denmark, Norway and Sweden. Article I of the Declaration of London reads- "A blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy," and Article 18 "The blockading forces must not bar access to neutral ports or coasts." Great Britain did not bar all access 28 Taylor Int. Law 119. Wheaton Hist. Pt. iv. 526 to the ports of the neutral nations, but did bar the entry of merchandise into such ports of such kinds and to such extent as it deemed best, without regard either to the rights or the wishes of such neutral nations. Ships and cargoes from America, then also neutral, were stopped and held as contraband. The rules for determining what articles are to be deemed contraband have not been altogether clear or well settled. The Declaration of London defines three classés, absolute contraband, including arms, munitions and military supplies of all kinds, warships, their equipments and component parts, and implements and apparatus for the manufacture of munitions; conditional contraband:-foodstuffs, forage and grain, clothing, vehicles, vessels, railway material and rolling stock, balloons and flying machines, fuel, and other articles mentioned and articles not to be declared contraband including raw cotton, wool, silk, jute, flax, hemp, and yarns of the same, rubber, resins, gums, and lacs, hops, nitrates and phosphates for agricultural purposes and metallic ores. Full lists of each class are given respectively in Articles 22, 24 and 28 of the Declaration. Concerning the absolute contraband the definition accords with the generally accepted principles of international law as they have been understood for a long time. Under the provisions of Article 25 articles susceptible of use in war other than those enumerated may be added to the list of contraband on notice to the neutral powers. Prior to this Declaration Great Britain, the United States and Japan, following the classification of Grotius, made three classes as above,29 but the nations of continental Europe made only two, contraband and free." The rule with reference to conditional contraband before the Declaration of London was that it could only be seized if destined for the military or naval forces of the enemy. 31 Article 33 of the Declaration reads"Conditional contraband is liable to capture if it is shown to 30 29 Grotius, b. 3, c. 1, § 5. Moore Int. L. Dig. § 1250. The Brig Juneau, 38 Ct Cl. 465. 30 40 Cvc 357. Moore Int. L. Dig. § 251. 31 The Commercen, 1 Wheat. 283. be destined for the use of the armed forces or of a government department of the enemy state, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress." To warrant the seizure of conditional contraband the burden rests on the captor to show that it is destined for hostile military uses. Not only did Great Britain intercept conditional contraband destined for German ports which was not consigned to the authorities and which could not be shown to be intended for military uses, but it intercepted all supplies of food, clothing, manufacturers' raw material needed for the sustenance of the civilian population and the peaceful industries of all kinds of the Central Powers. Cotton, wool, and other fibres, expressly declared by the Declaration of London not to be contraband even when destined for enemy use, were intercepted and seized when consigned to neutral nations in such quantities as to indicate that their ultimate destination was Germany. The general policy of cutting off all commerce to and from the Central Powers by sea was rigorously pursued without regard to the principles of international law or the Declaration of London. Germany protested without avail. The United States protested against the interruption of its lawful commerce, as also did the neutral nations of Europe, without avail. Seizures extended to postal correspondence expressly declared to be inviolable by the Hague Convention relative to capture in naval warfare. The exigencies of war induced the British Government to disregard international law and treaty obligations owing to both belligerents and neutrals. The excuse for this attitude was that Germany was waging bloody war on Belgium and France in violation of its solemn obligations and with cruel violations of the laws of war on land. The purpose of Great Britain was to strangle Germany and thus prevent her warlike activities. The effects of the blockade were keenly and continually felt throughout Germany and Austria-Hungary. These belligerents had ample supplies for all their military and naval forces, but not for them and their civilian population also. Women, children and male non-combatants were the actual sufferers from the blockade. Having failed to induce the British to observe international law, Germany resorted to retaliation. The British navy ruled the surface of the sea, but Germany had submarines. The British Isles were dependent on merchant ships for food and other necessary supplies. The submarines could not destroy the navy, but they could sink merchant ships. Owing to their construction and manner of operation it was not practicable for them to make prizes of surface vessels and send them into their ports for condemnation in accordance with the rules of international law, for to attempt to do so would have resulted in most cases in the recapture of the vessel with its prize crew by the British. Article 50 of the Declaration of London accords with the generally accepted principles of naval warfare and provides:- "Before the vessel is destroyed all persons on board must be placed in safety, and all the ship's papers and other documents which the parties interested consider relevant for the purpose of deciding on the validity of the capture must be taken on board the warship." Lack of space and accommodations for the passengers and crew of a large merchant-ship on a small submarine rendered it impracticable for submarines to provide for their safety in the manner contemplated by international law. It was impossible for a submarine to take along with it other vessels for the accommodation of the people on the merchant-ships. Its only effectual use was as a destroyer. All the great powers had submarines adapted to the same uses. had been adopted by all great nations. that this weapon should be used in the way that it would accomplish the greatest results, that if they could destroy the ships and supplies on which England depended the war would be won, and that they were justified by the necessities of their situation in disregarding the laws of war, especially as against Great Britain which had itself violated them openly and flagrantly in so many particulars. Acting in accordance with this line of reasoning the Germans determined to make full use of their submarines, to destroy enemy ships, cargoes, crews, and such passengers as ventured to disregard their warning of danger. As naval weapons they |