Can any of these things be done? Can the law be strengthened and made effective? Imperfect and conflicting as is the information upon which conjecture must be based, I think there is ground for hope that from the horrors of violated law a stronger law may come. It was during the appalling crimes of the Thirty Years' War that Grotius wrote his De Jure Belli ac Pacis and the science of international law first took form and authority. The moral standards of the Thirty Years' War have returned again to Europe with the same dreadful and intolerable consequences. We may hope that there will be again a great new departure to escape destruction by subjecting the nations to the rule of law. The development and extension of international law has been obstructed by a multitude of jealousies and supposed interests of nations each refusing to consent to any rule unless it be made most favorable to itself in all possible future contingencies. The desire to have a law has not been strong enough to overcome the determination of each nation to have the law suited to its own special circumstances; but when this war is over the desire to have some law in order to prevent so far as possible a recurrence of the same dreadful experience may sweep away all these reluctances and schemes for advantage and lead to agreement where agreement has never yet been possible. It often happens that small differences and petty controversies are swept away by a great disaster, deep feeling, and a sense of common danger. If this be so, we can have an adquate law and a real court which will apply its principles to serious as well as petty controversies, and a real public opinion of the world responding to the duty of preserving the law inviolate. If there be such an opinion it will be enforced. I shall not now inquire into the specific means of enforcement, but the means can be found. It is only when opinion is uncertain and divided or when it is sluggish and indifferent and acts too late that it fails of effect. During all the desperate struggles and emergencies of the great war the conflicting nations from the beginning have been competing for the favorable judgment of the rest of the world with a solicitude which shows what a mighty power even now that opinion is.

Nor can we doubt that this will be a different world when peace comes. Universal mourning for the untimely dead, suffering and sacrifice, the triumph of patriotism over selfishness, the long dominance of deep and serious feeling, the purifying influences of self-devotion, will surely have

changed the hearts of the nations, and much that is wise and noble and for the good of humanity may be possible that never was possible before. Some of us believe that the hope of the world's progress lies in the spread and perfection of democratic self-government. It may be that out of the rack and welter of the great conflict may arise a general consciousness that it is the people who are to be considered, their rights and liberties to govern and be governed for themselves rather than rulers' ambitions and policies of aggrandizement. If that be so, our hopes will be realized, for autocracy can protect itself by arbitrary power, but the people can protect themselves only by the rule of law.

ELIHU ROOT.

SOME QUESTIONS OF INTERNATIONAL LAW IN THE EUROPEAN WAR1

IX

DESTRUCTION OF NEUTRAL MERCHANT VESSELS

2

The history of the naval operations of the present war is quite without parallel, not only on account of the large number of enemy merchant vessels that have been destroyed without warning and the consequent loss of life of both neutral and non-combatant persons, but also because of the destruction on a large scale of ships of neutral Powers. According to the press dispatches, about one hundred and fifty neutral merchantmen, American, Danish, Dutch, Greek, Italian, Norwegian, Portuguese, and Swedish, have already been sunk by one or another belligerent-in most cases by German cruisers and submarines.3 The merchant marines of Denmark, Holland, Norway, and Sweden have been the heaviest sufferers. In a few cases the destruction was the re

1 Continued from the January, April, July and October (1915) numbers of this JOURNAL.

2 Discussed in the July number of this JOURNAL, pp. 594-626.

3 Senator Nelson of Minnesota in a speech in the Senate on January 20, 1916 (Cong. Record, pp. 1461-1465) stated that the total number of Dutch, Danish, Swedish, and Norwegian merchant ships that had been sunk by submarines, mines and cruisers since the beginning of the war was one hundred and thirty-four. This, of course, did not include the American, Spanish, Portuguese and other neutral ships that have been destroyed. Of the one hundred and thirty-four neutral vessels thus destroyed, one hundred and three, according to Senator Nelson, were sunk by German submarines, and the rest by either German or British mines. Eleven of these were Dutch, fifteen were Danish, twenty-seven were Swedish, and eighty-one were Norwegian. Senator Nelson's speech contains a list of the ships destroyed, with the date and in most cases their tonnage. According to a statement of the British Admiralty made in July last, German submarines had up to that time destroyed ninetyeight British merchant vessels and "no less than ninety-five neutral merchantmen." As there are more British than neutral merchantmen plying the seas, it will be seen that the toll taken of neutral shipping has been relatively larger than that taken of the merchant marine of Germany's chief enemy.

sult of error due to the alleged inability of the captor to distinguish the markings of the vessel, but in the majority of cases the reason alleged was that the ships were carrying contraband of war. In view of the extensive and unprecedented scale upon which this practice has been resorted to during the present War, the conditions under which the destruction by belligerents of neutral merchant vessels is permissible, if at all, well merit consideration in the light of international law and practice. Mr. Thomas Baty, an English authority of high standing, writing in 1911, thus states the practice of the past:

It is surely very remarkable, that in all the history of war up to the twentieth century not a single instance can be adduced of a neutral ship's being destroyed on the high seas. Surely it is most significant that despite the utmost temptations and the fiercest stress of conflict, belligerents uniformly and scrupulously abstained from the least interference with neutral vessels, beyond ascertaining their characters and bringing them into port. French, Americans, Spaniards, Dutch, Danes strict navy men and lax privateers-polished admirals and rough desperadoes-none of them dared send to the bottom a ship wearing the flag of a neutral state."

Again he says:

Let the reader think of the dozens of wars, small and great, of the past two centuries: of the Russo-Turkish, the Franco-German, the Crimean, the British-American, the Napoleonic, the French Revolutionary, the American Civil, wars-to name only the greatest and latest. Let him reflect on the numberless occasions on which a cruiser's commander must have longed to send a suspicious neutral to the bottom, and must have paced his quarter-deck, consumed by impatience to set the torch to her cargo. And yet there is no instance of this having been done.5

Mr. Baty admits, however, that there have been a few exceptions, real or apparent, to this general practice. Thus during the Napoleonic Wars four American merchantmen (the Acteon, the Rufus, the Felicity, and the William) were sunk by "over-zealous" British captains; but, in fact, he claims, they were not neutral ships at all, but hostile vessels, because they flew the enemy's ensign and were prima facie liable to destruction. Not even the "corsair " Semmes was "imbecile " enough,

Britain and Sea Law, p. 2.

1 Ibid, p. 23.

6

8

he adds, to destroy neutral ships and alienate neutral sympathy. Semmes destroyed only enemy ships and then only after saving their crews and passengers. There is, it is believed, no record of the destruction by a belligerent of a neutral ship on the high seas during the Crimean War or American Civil War or the Franco-German War,' the Spanish-American War, the Boer War, the Turco-Italian War,' or the Balkan Wars. The first war in which the right to destroy neutral vessels was asserted and exercised on a considerable scale was that between Russia and Japan in 1904-05. During this war, Russian naval commanders destroyed eight neutral merchantmen: the Knight Commander, the Hipsang, the Saint Kilda, the Oldhamia, the Ikhona, the Thea, the Tetartos and the Princess Marie. They were all English ships, except the Thea and the Tetartos, which were German, and the Princess Marie, which was Danish. In every case, it appears, the crew, the passengers and the mails were taken off and there was no loss of life, except that several persons were killed by the gun-fire directed against the Hipsang while the ship was attempting to escape, and a Chinese woman and boy were drowned. The destruction of this vessel may be distinguished from the others for the reason that it was not a case of the sinking of a vessel for carrying contraband, but the destruction of a ship for refusing to stop after repeated warning shots and for attempting to escape. The case of the Oldhamia, likewise, belongs in a class by itself. It had been captured and while in charge of a prize crew was stranded, and it being impossible to float it, the captor fearing that delay might lead to its recapture, sank it. It was not, therefore, the willful destruction of a prize, but of a wreck. The other ships were sunk because their cargoes were alleged to be contraband, and owing

See his own testimony in Service Afloat, p. 535, the truth of which is confirmed by the Solicitor of the United States Navy during the Civil War, Bolles, in the Atlantic Monthly, Vol. 30, p. 50.

7 Six British ships were destroyed in the Seine by the Germans in 1870, but, as Baty adds, (op. cit., p. 24) this was no violation of the law of nations because a neutral vessel venturing into France at the time was subject to the risks of war.

There were a few cases of capture of neutral prizes during the war with Spain, but none were destroyed. Cf. Benton, International Law and Diplomacy of the Spanish American War, pp. 205–209.

9

Coquet, La Guerre Italio-Turque, Rev. Gén. de Droit Int. Pub., Vol. 21 (1914), p. 40.