analogous to the warning England had given regarding the North Sea.1

This passage is of very considerable importance, as it is an admission, after months of practice, that the use of the submarine necessitated the restriction of the free movements of neutrals and constituted a danger for them. It is of importance for a further reason, as the reference to the North Sea seems to be a confirmation of the statement in the proclamation of February 4, 1915, that the declaration of the war zone was due to the action of Great Britain in making of the North Sea a military area. Without quoting the British declaration, it is sufficient for present purposes to quote the memorandum accompanying the German proclamation of February 4, 1915, which in this matter is a statement of British action and an interpretation of its consequences set forth as a justification of Germany's act. Thus:

Finally, they [Great Britain] have declared the North Sea in its whole extent to be the seat of war, thereby rendering difficult and extremely dangerous, if not impossible, all navigation on the high seas between Scotland and Norway, so that they have in a way established a blockade of neutral coasts and ports, which is contrary to the elementary principles of generally accepted international law.2

It is not material to the present question to consider whether the action of Great Britain in declaring the North Sea to be a military area did or did not in law or in fact blockade Germany or neutral ports and coasts, as Germany's contention was that the action of Great Britain, whatever its nature, was illegal and therefore a justification of Germany's act in declaring the waters surrounding the United Kingdom a war zone and in a state of blockade. It may be pointed out in passing that the essential difference between the two is that the British warning apparently prevented an indiscriminate sinking of neutral vessels and the loss of neutral passengers, crews, and cargoes, whereas neutral passengers, crews, and cargoes were indiscriminately sacrificed by the danger attending submarine warfare "which Germany intended to ward off by a special warning analogous to the warning England had given regarding the North Sea." Without indulging in further comment on this

Official text, American Journal of International Law, Special Supplement, October, 1916, p. 179. 2 Ibid., July, 1915, p. 84.

point, the warning seems to have been effective in the one case and ineffective in the other.

Whether the action of Great Britain in sowing the North Sea with mines, thus making of it a military area, was or was not a blockade of German ports or of neutral ports and coasts, it was never concurred in by the United States and it was declared to be illegal in Secretary Lansing's note to the British Ambassador dated February 19, 1917, which has been previously quoted. The United States, therefore, is not to be taken as acquiescing in the action of Great Britain in making of the North Sea military or dangerous areas. The Order in Council of March 15, 1915, subjecting trade with Germany, directly or indirectly, through neutral countries to restrictions imposed by Great Britain was declared by the British Secretary of State for Foreign Affairs to be a blockade. The blockade was declared by Germany to be illegal, and, in the memorandum of the Imperial German Ambassador of March 8, 1916, was cited in justification of the blockade of Great Britain by the submarine. The United States cannot be taxed with acquiescence in the action of Great Britain in this matter, because, in an elaborate and carefully reasoned note to Great Britain, dated October 21, 1915, Secretary Lansing, after examining the contentions of the British Government, notified that Government that "the blockade, which they claim to have instituted under the Order in Council of March 11, cannot be recognized as a legal blockade by the United States."1

We thus have the following situation: The Imperial German Government alleged that making of the North Sea a military area was in effect a blockade and was doubly illegal as it was a misuse of the high seas and an unlawful interference with the rights of neutrals. The British Government maintained that making a war zone of the waters surrounding the United Kingdom was illegal, as was also the employment of the submarine within those waters, and that Great Britain and its Allies were justified in retaliation to issue the order of blockade of March 11, 1915, which action on the part of Great Britain and its Allies the United States pronounced to be illegal. In a note of March 1, 1915, Great Britain sought to justify to the United States the measures which it subsequently took in the Order in Council of March 11, 1915, as follows:

Germany is adopting these methods [of submarine warfare] against peaceful traders and noncombatant crews with the Official text, American Journal of International Law, Special Supplement, October, 1916, pp. 82-83.

avowed object of preventing commodities of all kinds, including food for the civil population, from reaching or leaving the British Isles or northern France.

Her opponents are therefore driven to frame retaliatory measures in order in their turn to prevent commodities of any kind from reaching or leaving Germany. These measures will, however, be enforced by the British and French Governments without risk to neutral ships or to neutral or noncombatant life and in strict observance of the dictates of humanity.'

Admitting, for the purposes of argument, the right of a belligerent to devise and to put into effect measures by way of retaliation or reprisal in so far as they concern merely the enemy, it cannot be admitted and it was not admitted by the United States that a belligerent could indulge in retaliation and reprisals which wounded the neutral over the shoulder of the enemy.

1Official text, American Journal of International Law, Special Supplement, July, 1915, p. 102.

CHAPTER XIII

STATUS OF MERCHANT VESSELS

SECTION 1. THE RIGHT OF MERCHANT VESSELS TO ARM

The contention has been repeatedly advanced in the course of the present war that the presence of armament on board a belligerent merchantman, and in a lesser degree upon a neutral merchantman, deprives the vessel of the right to be treated as an ordinary merchant vessel; that the presence of an armament, although for defensive purposes, changes the rule of law and renders the vessel liable to destruction as an enemy cruiser, without warning, visit, and search, and without removing the officers, crew, and passengers, and if possible their effects, from the vessel before destruction. It has been further contended that it is the duty of a belligerent merchant vessel to submit to the visit and search of an enemy cruiser, that it has neither the right to defend itself aggressively nor by flight. This contention finds no justification in practice if we have in mind vessels hitherto employed in maritime warfare. It has also been contended that a neutral merchantman with armament is not to be considered as an ordinary merchantman because it is in a posi tion to resist visit and search, and that if it can it probably will, with resultant danger to the belligerent vessel. But it may also be said that this danger has not heretofore deprived vessels of the kind hitherto employed in maritime warfare from complying with the requirements of visit and search. Each of these classes of vessels will be considered in turn.

It would be easy to show that in times past merchantmen were in the habit of carrying arms for their defense upon the high seas and that the mere presence of arms on board did not convert the vessel carrying them into a privateer, that is, into a vessel owned by private persons and authorized by a Government to engage in hostilities for private gain. Indeed, it has been held and affirmed, after great consideration, by the Supreme Court of the United States in the case of The Nereide, confirmed on appeal in the case of The Atlanta, that a belligerent vessel was entitled to arm in its own defense and

ordinarily did so; that it was not only entitled as of right to resist, but that it was its duty to resist capture at the hands of its enemy; that, being its right to resist, it forfeited nothing of its right by its unsuccessful resistance; that if its resistance were overcome, it would be treated as a capture of an ordinary merchant vessel which had not resisted; that a neutral could intrust his person and his property to such a vessel and that neither he nor his property was affected by the resistance of the vessel, unless he took part in such resistance. This opinion was not the view of a scholarly publicist, but of a judge upon the bench; it was not merely the view of one judge, but of a majority of the Court, and the judgment of the Court and the opinion justifying it bear the name of Marshall and the impress of his intellectual supremacy.

The opinion of Chief Justice Marshall in this case was not incidental to the judgment of the Court. It was involved in the judgment; indeed, it was the judgment.

A belligerent has a perfect right to arm in his own defense; and a neutral has a perfect right to transport his goods in a belligerent vessel. These rights do not interfere with each other. The neutral has no control over the belligerent right to armought he to be accountable for the exercise of it? By placing neutral property in a belligerent ship, that property, according to the positive rules of law, does not cease to be neutral. Why should it be changed, by the exercise of a belligerent right, universally acknowledged, and in common use when the rule was laid down, and over which the neutral had no control? 1

The Chief Justice, who had been Secretary of State and left the Foreign Office for the bench, was of course aware that the belligerent would object to the arming of the merchant vessels of the enemy, as the presence of armament would make them more difficult to capture, and indeed might enable them to elude capture altogether. Considering this question, Chief Justice Marshall said:

The belligerent answers, that by arming, his rights are impaired. By placing his goods under the guns of an enemy, the neutral has taken part with the enemy, and assumed the hostile character. Previous to that examination which the Court has been able to make of the reasoning by which this proposition is sustained, one remark will be made, which applies to a great part of it. The argument which, taken in its fair sense, would prove that it is unlawful to deposit goods for transportation in the 19 Cranch, pp. 426-427.