On April 28, 1904, the Congress of the United States adopted a resolution expressing the opinion that it was desirable that the President should endeavor to bring about an understanding among the principal maritime powers for the incorporation into "the permanent law of civilized nations" of "the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction by belligerents." This resolution was quoted in Mr. Hay's circular of October 21, 1904, suggesting the calling of the Second Hague Conference, and also in the instructions given on May 31, 1907, to the delegates of the United States to that conference, who were authorized to advocate the proposition submitted by the American delegation at the first conference. In conformity with these instructions, the proposal was duly presented and pressed, but without success. Mr. Scott, the technical delegate of the United States, in his narration of the work of the conference, states that the failure "was due solely to the fact that large maritime powers such as Great Britain, Japan, and Russia, and in a lesser degree France, were unwilling to renounce the right of capture of private property, either as a means of preventing a resort to arms or of shortening the war by bringing the enemy to terms."

Still another, and a somewhat curious, phase of the subject is dealt with in the report of the delegation of the United States. Among the measures formulated by the conference and signed by a num

ber of the delegations, but not by that of the United States, is a convention regulating the transformation of vessels of commerce into vessels of war. The report states that the delegation of the United States would, perhaps, have signed this convention had not the conference regarded it as a "corollary" of the Declaration of Paris of 1856, which undertook to abolish the practice of privateering, and as a guarantee against a return to that practice. The delegation, in a formal statement to the conference, pointed out that the United States had never adhered to the Declaration of Paris or renounced the right to resort to privateering, but, in conformity with instructions, offered to vote for the abolition of the practice, in case the conference "should establish the inviolability of private property on the seas," subject, of course, to the law of contraband and of blockade. The report of the delegation intimates, however, that the government of the United States is under a disability to agree by treaty to the abolition of privateering, because the Constitution confers upon Congress the power, which has repeatedly been exercised, to "grant letters of marque and reprisal," that is to say, privateering commissions. If this be so, it is not clear why the disability does not preclude an abandonment of the thing authorized to be done. Letters of marque and reprisal never were regarded as being, like trinkets and ornaments, an end in themselves. They are merely the appropriate documentary evidence of authority

to carry on war in a certain way. But the particular method of warfare to which they relate is neither more sacred nor more constitutional than any other method contained in the grant of war powers to Congress, which clearly embrace the capture of private property at sea. On the contrary, to agree generally to forego such capture would involve a far greater relinquishment of power than would the renunciation of a particular method of capture.

In reality, the suggested constitutional difficulty seems to lack substance. To say nothing of the fact that the regulation of methods of warfare would appear to be peculiarly within the treaty-making power, the principle of interpretation on which the doubt is suggested appears to be radically unsound and to belong in the category of notions which tend to bring constitutional law into disrepute. That the United States cannot internationally agree to forego the exercise of any power which the Constitution has conferred on Congress, or other department of government, is a supposition contradicted by every exercise of the treaty-making power since the government came into existence. When we reflect upon the number and extent of the powers conferred upon the national government, and upon their distribution and the methods prescribed for their exercise. it is obvious that the attempt to act upon such a supposition would exclude the United States from any part in the progress of the world through the amelioration of law and practice by international action.

Immediately on the outbreak of war in Europe, in August, 1914, the President of the United States issued the normal proclamation of neutrality; but controversial questions soon arose concerning the rights as well as the duties of neutrals. The safety of ships was imperilled by the placing of mines in the open seas, each belligerent charging its adversaries with the first overt act. As early as August, 1914, the British authorities gave warning of danger from mines in the North Sea, and on November 2d the British Admiralty, alleging that the Germans had scattered mines there indiscriminately, issued a notice declaring that the entire North Sea must be considered a "military area," within which merchant shipping would be exposed to danger from mines as well as from war-ships searching for suspicious craft. Sailing directions were given for ships wishing to trade with Norway, the Baltic, Denmark, and Holland.

The age-long dispute as to contraband was revived, particularly as to foodstuffs, which fall in the "conditional" category of things not subject to capture unless intended for the consumption of military or naval forces. An attempt to deal comprehensively with this subject was made in the Declaration of London (1909), and, although the declaration had not been ratified, the United States proposed that the belligerents should individually adopt it. Austria-Hungary and Germany substantially assented on condition of reciprocity.

Great Britain conditioned her assent upon certain modifications judged "indispensable to the efficient conduct" of her naval operations. The United States on October 22, 1914, withdrew its proposal, declaring that it would rely on "the existing rules of international law" and its treaties.

Apparently with a view to make a test case, a ship called the Wilhelmina was, early in 1915, loaded in the United States with.foodstuffs for Germany. On her way she was seized by the British authorities, and her cargo sent to a prize court. On February 4th the German government, while denouncing Great Britain's conduct of commercial warfare as illegal, announced that, just as England had declared the North Sea to be a "military area" Germany would, in retaliation, treat the waters surrounding Great Britain and Ireland, including the entire English Channel, as a "war zone," wherein, after February 18th, every enemy merchant-ship would be destroyed, and even neutral ships would be exposed to danger because of the misuse of neutral flags which the British government was said to have ordered. February 10th the United States replied that if German vessels of war, assuming a misuse of the American flag, should "destroy on the high seas an American vessel or the lives of American citizens," the United States would view the act "as an indefensible violation of neutral rights," for which it would hold the German government "to a strict accountability"; and an assurance was requested