batants, considers in successive paragraphs visit and search before seizure, attack after refusing visit and search, or to pro eed as directed after seizure, destruction without placing personnel in safety, and the application of these so-called universal rules, and adds

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 seizure and to permit the merchant vessel to proceed unmolested. (Conference on Limitation of Armament, p. 836.)

By this last clause the submarine is required under certain conditions, to desist "from attack and from seizure." Manifestly it is not the purpose to deny the right of visit and search, but, as Mr. Root says, "to declare that submarines are, under no circumstances, exempt from those humane rules for the protection of the life of innocent noncombatants," and Article I itself simply declares" that among the rules adopted by civilized nations""the following are to be deemed an established part of international law." The discussion in the conference indicates this understanding.

The conclusion is that Article I does not change existing law but, as said in Article II, aims to establish "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."

Further in Article III penalty "as if for an act of piracy" is provided for "attacks upon and the seizure and destruction of merchant ships" in violation of these rules.

In the original proposal Mr. Root stated the first resolution as follows: "A merchant vessel must be ordered to stop for visit and search to determine its character before it can be captured." Later, in reply to Mr. Hanihara, who suggested "seize " instead of "capture" in a later paragraph of the same article, Mr. Root said "that the subcommittee understood the word 'capture' to describe the whole process, one step of which was seizure, and it

was intended to make the term 'capture' comprehensive." (Ibid. p. 688.)

It was not understood that this term included visit and search, as by the article itself visit and search must precede capture or seizure, and was to determine the character of the merchant vessel and its liability to seizure or capture.

Early opinions.-Visit and search as necessarily preceding seizure or capture has long been recognized. Sir William Scott in the case of the Maria in 1799 declared he takes it to be incontrovertible

That the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. I say, be the ships, the cargoes, and the destinations what they may, because, till they are visited and searched, it does not appear what the ships, the cargoes, or the destinations are; and it is for the purpose of ascertaining these points that the necessity of this right of visit and search exists. This right is so clear in principle, that no man can deny it who admits the legality of maritime capture; because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can be legally captured, it is impossible to capture. . . . In short, no man in the least degree conversant in subjects of this kind has ever, that I know of, breathed a doubt upon it. (1 C. Robinson, p. 340.)

Similarly in the case of the Marianna Flora Mr. Justice Story said of visit and search:

This right is strictly a belligerent right, allowed by the general consent of nations in time of war, and limited to those occasions. (11 Wheaton, 1)

No treaty would renounce such a generally recognized right as visit and search, which is the subject of so many treaty agreements, without express stipulation. From a practical standpoint the exercise of visit and search when camouflage or other concealment of identity are possible and much resorted to is essential to the conduct of war on the seas. This seems to be admitted in the first clause of the provisions of Article I which states "a merchant

vessel must be ordered to submit to visit and search to determine its character before it can be seized." Further, it may be said that visit and search does not necessarily imperil "the lives of neutrals and noncombatants" which it is the aim of the submarine treaty to protect.

German practice, 1914-1918.-Germany on February 4, 1915, proclaimed the waters about Great Britain and Ireland a war zone in which every enemy merchant ship would, after February 18, "be destroyed without it being always possible to avert the dangers threatening the crews and passengers on that account." Neutral vessels were warned that they were exposed to danger in the war zone, because neutral flags had been used by belligerent merchantmen and because of possible accidents.

In what has been called the "strict accountability " note of Mr. Bryan of February 10, 1915, it was said:

It is, of course, not necessary to remind the German Government that the sole right of a belligerent in dealing with neutral vessels on the high seas is limited to visit and search, unless a blockade is proclaimed and effectively maintained, which this Government does not understand to be proposed in this case. To declare or exercise the right to attack and destroy any vessel entering a prescribed area of the high seas without first certainly determining its belligerent nationality and the contraband character of its cargo would be an act so unprecedented in naval warfare that this Government is reluctant to believe that the Imperial Government of Germany in this case contemplates it as possible. The suspicion that enemy ships are using neutral flags improperly can create no just presumption that all ships traversing a prescribed area are subject to the same suspicion. It is to determine exactly such questions that this Government understands the right of visit and search to have been recognized. (Spec. Sup. Amer. Jour. Int. Law, July, 1915, p. 86.)

Germany had previously attempted to justify, on the ground of retaliation, its action, which was admittedly beyond the law, saying:

Great Britain invokes vital interests of the British Empire which are at stake in justification of its violations of the law of nations, and the neutral powers appear to be satisfied with theoretical protests, thus actually admitting the vital interests of

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a belligerent as sufficient excuse for methods of waging war of whatever description.

The time has come for Germany also to invoke such vital interests. It therefore finds itself under the necessity, to its regret, of taking military measures against England in retaliation of the practice followed by England. (Ibid. p. 85.)

In the German note of February 16, 1915, it was said:

Moreover, the British Government have armed English merchant vessels and instructed them to resist by force the German submarines. In these circumstances it is very difficult for the German submarines to recognize neutral merchant vessels as such, for even a search will not be possible in the majority of cases, since the attacks to be anticipated in the case of a disguised English ship would expose the commanders conducting a search and the boat itself to the danger of destruction.

The British Government would then be in a position to render German measures illusory if their merchant marine persists in the misuse of neutral flags and neutral vessels are not marked in some other manner admitting of no possible doubt. (Ibid. p. 94.) Sir Edward Grey, in a note of February 19, 1915, stated:

The obligation upon a belligerent warship to ascertain definitely for itself the nationality and character of a merchant vessel before capturing it and a fortiori before sinking and destroying it has been universally recognized. (Ibid. p. 97.)

American discussion.-On February 20, 1915, the United States, anxious to establish a modus vivendi between the belligerents, proposed "That neither will use submarines to attack merchant vessels of any nationality except to enforce the right of visit and search." Many notes between the belligerents and the United States were exchanged, and Mr. Bryan, replying on March 30, 1915, to certain British notes, said:

The order in council of the 15th of March would constitute, were its provisions to be actually carried into effect as they stand, a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area and an almost unqualified denial of the sovereign rights of the nations now at peace. This Government takes it for granted that there can be no question what those rights are. A nation's sovereignty over its

own ships and citizens under its own flag on the high seas in time of peace is, of course, unlimited; and that sovereignty suffers no diminution in time of war, except in so far as the practice and consent of civilized nations has limited it by the recognition of certain now clearly determined rights, which it is conceded may be exercised by nations which are at war.

A belligerent nation has been conceded the right of visit and search, and the right of capture and condemnation, if upon examination a neutral vessel is found to be engaged in unneutral service or to be carrying contraband of war intended for the enemy's government or armed forces. (Ibid. p. 117.)

In the note of April 21, 1915, to the German ambassador, the Secretary of State said of the Government of the United States:

It has, indeed, insisted upon the use of visit and search as an absolutely necessary safeguard against mistaking neutral vessels for vessels owned by an enemy and against mistaking legal cargoes for illegal. (Ibid. p. 128.)

On June 9, 1915, in a note to Germany, the United States said:

Nothing but actual forcible resistance or continued efforts to escape by flight when ordered to stop for the purpose of visit on the part of the merchantman has ever been held to forfeit the lives of her passengers or crew. (Ibid. p. 139.)

The United States has therefore insisted upon the necessity of visit and search before seizure in order to safeguard neutral rights and has denied the right to attack merchant vessels except on the ground of resistance or attempts to escape.

Review of proposed treaty.-Article IV of the submarine treaty is a "prohibition of the use of submarines as commerce destroyers."

In reply to Lord Lee's query as to whether "commerce destroyer" was a recognized legal term, or whether it included the process of attack and seizure referred to in the first resolution, "Mr. Root said he believed it covered the whole process. He thought 'commerce destroyer' was a perfectly well-known term." (Conference on Limitation of Armament, p. 700.)