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attempt to escape or resistance to visit and search, the statement would be in accord with practice. There would be some doubt as to the meaning of the words "to proceed as directed after seizure." If a merchant vessel is in control of a prize crew there might be some question as to the interpretation of the clause. If, however, the merchant vessel was under escort of a vessel of war the liability would be recognized. It might be possible that after seizure a merchant vessel had been directed to proceed without prize crew or escort to a named port; then under this paragraph some maintain that the vessel would be liable to attack if deviating from the prescribed course.

As the paragraph seems to read, a merchant vessel must not be attacked unless it refuse to submit to visit and search after warning or (refuse) to proceed as directed after seizure, it may be said that this clause "or to proceed as directed after seizure" did not appear in the draft resolutions as originally presented.

It has been claimed that the fourth paragraph greatly extends the liability of merchant vessels to destruction because stating that "A merchant vessel must not be destroyed unless the crew and passengers have been first placed in safety" might imply that after placing the crew and passengers in safety, the vessel might lawfully be destroyed, which is not an established part of international law, and some have questioned how this restriction applies in case of refusal to submit to visit and search.

The second part of Article I affirmed that the above are universal rules, and that if a submarine can not capture a merchant vessel in conformity with these rules, the existing law of nations requires it to desist from attack and to permit the merchant vessel to proceed unmolested. Verbal questions, such as whether the use of the word "desist" was with intention to imply that the attack had already begun have been put forward. In view of the use of the word "seizure," in preceding para

graphs, and the use of the words "capture" and "seizure" in this part of Article I, there has been uncertainty as to the significance of these words and the order of action implied.

Article II invites the assent of civilized powers to Article I as a 66 statement of the established law so that there may be a clear public understanding throughout the world of the standards of conduct by which the public opinion of the world is to pass judgment upon future belligerents." This clearly aims to secure the sanction of public opinion for Article I, while Article III aims to secure legal sanction for making a man who may be under orders of his government and liable for disobedience to those orders, also liable to the civil or military authorities of any other power, even the enemy, "as for an act of piracy." This is not necessarily confined to officers of submarines.

Article IV affirms what has been further questioned, "the practical impossibility of using submarines as commerce destroyers without violating, as they were violated in the recent war of 1914-1918, the requirements universally accepted by civilized nations for the protection of the lives of neutrals and noncombatants." There are many different points of view as to what are destroyers" and in regard to other matters.

commerce

Some of these and other queries were raised at the Conference on Limitation of Armament and in the course of the subcommittee discussions, as may be seen from the official report.

Preparation of treaty on submarines.-The treaty, as stated in the official report, was not referred to technical subcommittees for consideration and hence the discussion of its provisions is found in the reports of the subcommittee on limitation of armament.

The original proposition as to the rules for submarines was made by Mr. Root, of the American delegation, on December 28, 1921. Mr. Root said:

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One fact which seemed very clear was that mere agreements between Governments, rules formulated among diplomats in the course of the scientific development of international law, had a very weak effect upon belligerents when violation would seem to aid in the attainment of the great object of victory. This has been clearly demonstrated in the war of 1914-18.

Another fact established by the war was that the opinion of civilized nations had tremendous force and exercised a powerful influence on the condition of belligerents. The history of propaganda during the war had been a history of almost universal appeal to the public opinion of mankind and the result of the war had come largely as a response.

The report further says:

The purpose of the resolutions he was about to read was to put into such simple form the subject which had so stirred the feelings of a great part of the civilized world that the man in the street and the man on the farm could understand it.

The first resolution, Mr. Root said, aimed at stating the existing rules, which, of course, were known to the committee but which the mass of people did not know, in such a form that they would be understood by every one.

Mr. Root then read the following:

"I. The signatory powers, desiring to make more effective the rules adopted by civilized nations for the protection of the lives of neutrals and noncombatants at sea in time of war, declare that among those rules the following are to be deemed an established part of international law:

"1. A merchant vessel must be ordered to stop for visit and search to determine its character before it can be captured.

"A merchant vessel must not be attacked unless it refused to stop for visit and search after warning.

"A merchant vessel must not be destroyed unless the crew and passengers have been first placed in safety.

"2. Belligerent submarines are not under any circumstances exempt from the universal rules above stated; and if a submarine can not capture a merchant vessel in conformity with these rules, the existing law of nations requires it to desist from attack and from capture and to permit the merchant vessel to proceed unmolested."

This, Mr. Root said, was a distinct pronouncement on the German contention during the war in regard to the conflict between the convenience of destruction and the action of the belligerent under the rules of international law.

Mr. Root then read the following:

"II. The signatory powers recognize the practical impossibility of using submarines as commerce destroyers without violating the requirements universally accepted by civilized nations for the protection of the lives of neutrals and noncombatants, and to the end that the prohibition of such use shall be universally accepted as a part of the law of nations, they declare their assent to such prohibition and invite all other nations to adhere thereto." (Conference on the Limitation of Armament,3 p. 594.)

Discussion of treaty.-When taken up for discussion on December 29, 1921, Mr. Balfour (British) and Admiral de Bon (French) adhered in principle to the propositions of Mr. Root.

Senator Schanzer said that he associated himself entirely with Mr. Balfour's and Admiral de Bon's remarks. The Italian delegation at the preceding meeting gave its full adherence to the aim to which Mr. Root's proposal tended, but they also thought that the question of formulating rules for the use of submarines in war was, above all, a legal question, which ought to be examined by a competent committee of jurists. (Ibid. p. 606.)

Replying to certain questions of Senator Schanzer, Mr. Root said:

First, as to the agreement of Resolution I of the resolutions now before the committee, with the second resolution relative to the prohibition of making use of submarines as commerce destroyers, which Senator Schanzer deemed inconsistent with Resolution I. Resolution I was a statement of existing law; Resolution II, if adopted, would constitute a change from the existing law and therefore it was impossible to say that it was not inconsistent. If it were not inconsistent, there would be no change. Resolution II could not be consistent with Resolution I and still make a change.

The report continues:

Senator Schanzer had also suggested that the Resolution I be completed by including a definition of "a merchant ship." Throughout all the long history of international law no term had been better understood than the term "a merchant ship."

It could not be made clearer by addition of definitions which would only serve to weaken and confuse it. The merchant ship,

These references are to the full report printed in English and French. Government Printing Office, 1922.

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its treatment, its rights, its protection, and its immunities, were at the base of the law of nations. Nothing was more clearly or better understood than the subject called "merchant ship." (Ibid. p. 610.)

*

Mr. Root declared he was opposed to the reference of this resolution to a committee of lawyers or to any other committee. He asked for a vote upon it here. If the delegation of any country represented here had any error to point out in it, he was ready to correct it, but he asked for a vote upon it in furtherance of the principle to which every one of his colleagues around the table had given his adherence.

Mr. Root said that, in answering Senator Schanzer's very discriminating question regarding the relations between Resolutions I and II, he had omitted to say that, of course, if the second resolution were adopted by all the world, it would supersede Resolution I. This, however, would be a long, slow process and during the interval the law as it stood must apply until an agreement was reached. Resolution I also explained in authorized form the existing law and could be brought forward when the public asked what changes were proposed. In proposing a change, he said, it was necessary to make clear what the existing law was. It was very important to link this authoritative statement in Resolution I with the new principle proposed in Resolution II. (Ibid. p. 618.)

Mr. Balfour, on the afternoon of December 29, 1921, said of the British Empire delegation—

the members of that delegation would have preferred that the document itself should have been rendered unnecessary by the abolition of submarines. Since they had not been able to carry out this policy, however, Mr. Root's resolution provided them with an alternative. (Ibid. p. 630.)

Mr. Hughes, on the same day, said:

Such a declaration as the one proposed in the first resolution would go to the whole world as an indication that, while the committee could not agree on such limitation, there was no disagreement on the question that submarines should never be used contrary to the principles of law governing war. (Ibid. p. 636.)

Drafting committee. The first resolution, later Article I of the submarine treaty, was referred to a drafting committee of one member from each delegation, Mr. Root