Where a neutral vessel has been captured under the circumstances set forth in Article 39, for carrying contraband, or in Articles 77 and 78, for breach of blockade, or in Article 51, for rendering unneutral services, the commander may destroy the same, provided that:

a) the vessel is subject to condemnation addition thereto,

and, in

b) the bringing into port would subject the war vessel to danger, or be liable to impede the success of the operations in which it is at the time engaged. Among other circumstances, this may, inter alia, be assumed to be the case, if:

a) the vessel, on account of its defective condition or by reason of deficiency of supplies, cannot be brought into port; or

b) the vessel cannot follow the war vessel, and is therefore liable to recapture; or

c) the proximity of the enemy forces gives ground for a fear of recapture; or

d) the war vessel is not in a position to furnish an adequate prize crew.

Article 116 relates to the safety of persons on board and reads literally as follows:

Before proceeding to a destruction of the vessel, the safety of all persons on board, and, so far as possible, their effects, is to be provided for, and all ship's papers and other evidentiary material, which, according to the views of the persons at interest, is of value for the formulation of the judgment of the prize court, are to be taken over by the commander.

It will be observed that, in the provisions of the Prize Code which have been quoted, there is no reference to visit and search of merchant vessels of the enemy, and the articles which have been quoted apply expressly to neutral merchantmen. There are, however, several statements from which a neutral could presume, although apparently the German authorities have not drawn this conclusion, that mer. chant vessels of the enemy were entitled to the formalities of visit and search. Indeed, the very opening paragraph of the Prize Code is more than an intimation. This paragraph reads literally:

During a war the commanders of H. M. ships of war have the right to stop and search enemy and neutral merchant vessels, and to seize-and, in exceptional cases, to destroy-the same, together with the enemy and neutral goods found thereon.

In the second article it is stated that "public vessels of the enemy are confiscable under the laws of war, without further proceedings,"

which would seem to imply that private vessels are subject to further proceedings. It is, therefore, important to determine what are and what are not private vessels. This the next paragraph of the article proceeds to do and at the same time to lay down the ear-marks of public vessels.

Public vessels comprise ships of war as well as ships used in the public service of and subject to the command of the state. Other ships, the property of the state, are placed in the same category.

The necessary criteria of a ship of war are: the war ensign (usually in conjunction with the pennant), a commander appointed by the state, whose name appears in the list of officers of the navy, and a crew under naval discipline.

A proper construction of this would seem to be that, if a vessel did not meet these requirements it was not to be considered a public vessel, although it is only fair to add that it does not of necessity follow that all vessels not war vessels are to be considered as entitled to the privileges of merchantmen. However, some light appears to be thrown on the subject by the schedule annexed to the Prize Code, dated June 22, 1914, prepared apparently in contemplation of war. This schedule consists of two paragraphs, the first relating to offensive action of an armed ship, the second dealing with the resistance of an armed ship to measures taken against it and the treatment to be accorded it. Thus :

1. The exercise of the right of stoppage, search, and capture, as well as any attack made by an armed merchant vessel against a German or neutral merchant vessel is piracy. The crew is to be dealt with under the ordinance relating to extraordinary martial law.

2. If an armed enemy merchant vessel offers armed resistance against measures taken under the law of prize, such resistance is to be overcome with all means available. The enemy government bears all responsibility for any damages to the vessel, cargo, and passengers. The crew are to be taken as prisoners of war. The passengers are to be left to go free, unless it appears that they participated in the resistance. In the latter case they may be proceeded against under extraordinary martial law.

The wording of this schedule seems to make it clear that we are here dealing with "an armed merchant vessel" which has not

been incorporated in the navy and which is not commanded by a naval officer, or with the crew subject to military discipline. Otherwise it would have the right of stoppage, search, and capture, which a merchant vessel would not possess. This interpretation seems to be confirmed by the second paragraph, because by its express terms "an armed merchant vessel" in the sense of the schedule appears to be one carrying "cargo and passengers," and it is well known that men-of-war carry neither cargo nor passengers. Again, the statement that "the crew are to be taken as prisoners of war" can only refer to a merchantman, because it would be unnecessary to state that the crew of a war vessel should be made prisoners of war notwithstanding resistance, whereas it might be doubted whether the crew of an armed merchant vessel which resisted would be treated as prisoners of war or, like passengers taking part in resistance, subjected to the extraordinary provisions of martial law.

However this may be, the American Government from the beginning to the end of its neutrality considered a merchant ship, armed for defensive purposes, and only using force as a defense against attack, as a merchantman and subject to the treatment of a merchantman, namely, to visit and search and the preservation of the lives of the officers, crew, and passengers. Although the United States did not concede the right to destroy neutral prizes, it had a right to expect, from the express provisions of the German Prize Ordinance of August 3, 1914, that, before resorting to this extreme measure, the merchantman should be subjected to visit and search in order that the neutral vessel should not by mistake be treated as an enemy vessel, and that, in any event, the lives of persons aboard, of one as well as the other, should be saved. This was expressly provided for in respect to neutral merchantmen and it was incidentally provided for in the case of armed enemy merchant vessels, because not even the most powerful and efficient of belligerents can make of the dead prisoners of war.

SECTION 3. THE PRUSSIAN-AMERICAN TREATIES

But whether the German publicists whose views have been invoked would condemn or justify the action of the Imperial German Government in its conduct upon the high seas, or whether the views of publicists of other nationalities would condemn or justify that action, is immaterial from the legal, although not from the moral, point of view, because the Imperial German Government was not a

free agent or, to use a favorite German expression, did not have a free hand in these matters, as it was bound hand and foot, so to speak, by the provisions of treaties concluded long before the war, repeatedly recognized and invoked before the war, and indeed cited by the Imperial German Government itself during the course of the war as binding that Government and the United States.

The provisions of these treaties are not the result of a sudden inspiration, but of negotiation extending over many years, and they had stood the test of the wars of the French Revolution and of the Empire. The treaty of May 1, 1828, between Prussia and the United States, in force and applicable, in the opinion of both Governments, to the German Empire as well as to the United States, revived the twelfth article of the first treaty between the two countries of September 10, 1785, and articles thirteen to twenty-four of the second treaty of July 11, 1799, between them.

Article 12 of the treaty of 1785 reads as follows:

If one of the contracting parties should be engaged in war with any other Power, the free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent Powers shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other; and the same freedom shall be extended to persons who shall be on board a free vessel, although they should be enemies to the other party, unless they be soldiers in actual service of such enemy.

This article means, if it means anything, that the United States had the right of free intercourse and commerce with Germany's enemy or enemies to the same degree and under the same conditions as if war had not broken out and as if the world were at peace. The article does not stop here, but states that the principle of free ships. free goods, shall apply not merely to the vessel and to its cargo but to all persons on board, "although they should be enemies to the other party," with the very proper restriction, "unless they be soldiers in actual service of such enemy." And yet the Imperial German Government, in the teeth of this treaty, has prohibited all trade with Great Britain and has actually sunk American vessels attempt1 Malloy's Treaties, etc., between the United States and Other Powers, vol. 2, p. 1481.

ing to trade with Great Britain, together with the neutral members of the crew and passengers on board.

It was not to be expected that there should be no restrictions placed upon intercourse with Prussia's enemy, even although the article under consideration seemed to imply that intercourse and commerce with the enemy should be free and untrammeled. Incidents would be sure to arise if the matter were left here. Therefore, Article 13 of the treaty of 1799, dealt with and specified the commerce which should be illegal in order, as the treaty said, to prevent "all the difficulties and misunderstandings that usually arise respecting merchandise of contraband." It therefore enumerated the articles that should be considered contraband by the two countries, stating them generally as "arms, ammunition, and military stores of every kind." In the same connection, indeed in the same sentence and without interruption, the treaty provided that "no such articles carried in the vessels, or by the subjects or citizens of one of the parties to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation and a loss of property to individuals."

It was likewise foreseen that the delivery of contraband to the enemy would prejudice the warlike operations of the belligerent party, but the treaty was to be satisfied, not by causing loss to the contracting party happening to be neutral, but by enabling the party belligerent to intercept and to purchase the contraband for its own use, thus supplying its needs at its own expense and depriving the enemy of the contraband without causing loss to the other contracting party. Thus Article 13 continues:

Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage. that might ensue from their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors: And it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination.1 Foreseeing further that disputes were likely to occur as to the price to be paid for the articles thus detained and used, it was wisely provided that neither party was to determine the price, but that, as this would require negotiation and might result in disagree

1

Malloy, Treaties between the United States and Other Powers, vol. 2, p. 1481.