and punish a commissioned officer as a pirate; with the consequence that all the signatories and adherents of this article are in honor bound to act together in sustaining the civil or military authorities of the Power that undertakes to execute the treaty; that is, to join it in a common war upon the state of the offending officer. It is, of course, highly probable that under so grave a contingency the casus belli may never arise.

In Article IV, the signatories of this treaty propose to prohibit altogether the use of submarines as commerce destroyers, on the ground that it is impossible so to use them without violating the laws of war. The article reads:

The signatory Powers recognize 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, and to the end that the prohibition of the use of submarines as commerce destroyers shall be universally accepted as a part of the law of nations they now accept that prohibtion as henceforth binding as between themselves and they invite all other nations to adhere thereto. 19

If this treaty is duly ratified by the signatory Powers, it will be binding law as between themselves. It will also become binding law as between themselves and all Powers that may adhere to it. Its future may be similar to the history of the Declaration of Paris of 1856, which has now come to be considered a part of international law.

It is, however, doubtful if the submarine will on this account cease to be an instrument of naval warfare. The signatories of the treaty have not altogether proscribed it, even for themselves, and are not likely to do so. It may still have an important rôle to play.

If Article IV of the Washington Treaty is generally accepted, the moral objection to the use of the submarine in naval warfare will have been removed; for the submarine is as legitimate a weapon for the destruction of other war vessels as the battleship, and when so used is no more inhuman in its effect.

The British delegation to the Washington Conference desired to abolish the submarine altogether, as an intrinsically wicked and diabolical contrivance directed solely at commerce, contending that the only value of an undersea vessel lies in its power as a commerce destroyer. The truth of this position is, however, disputed by the highest British naval authorities. The following expression of opinion by Admiral of the Fleet, Lord Wester Wemyss, late First Sea Lord, in an article written since the Washington Conference, will suffice to indicate the grounds for the dissent of competent naval authorities from the condemnation of the submarine as a useless weapon except as a commerce destroyer. Lord Wemyss writes as follows:

19 Senate Document No. 125, p. 110.

Mr. Balfour, with that persuasive eloquence for which he is so justly famed, laid it down that the submarine as a weapon of offence against its legitimate target, the warship, had proved itself of negligible value; that as one of defence it was useless; and that it was only as a commerce destroyer that it had proved successful. This, he said, he stated on authority, a phrase which must have sounded strange in the ears of Admirals de Bon and Sims, the close collaborators of the British Admiralty in the anti-submarine campaign. Whose was the authority. quoted? It is difficult to believe that it was that of the naval staff, for, however ill-informed the public was, and to this day is, on the subject of the naval war, naval officers, at all events, must know that such conclusions are in direct contradiction to experience. The claim that the efficacy of these vessels is based on their successes obtained in commerce-destroying is incorrect, for their successes in that line were solely due to the illegality of the way in which they were used. To presume that this in future will be the sole method of their employment is to attribute to those who believe in submarines a mentality for which there is not the slightest justification.

Who, with the lessons of the Dardanelles campaign before him, can say that they are useless as a weapon of defence? Had any been present off Gallipoli in April 1915, the landing of the troops on the Peninsula would have been impossible; never could the transports and supply ships have lain quietly off those beaches, pouring forth men and munitions as they did, had they been open to submarine attack. As it was, when they did, later on, make their appearance, they sank two battleships and drove the transports into the security of Mudros harbour, thus increasing enormously the labour and difficulty of keeping the Army supplied.

Submarines have rendered a close blockade impossible, and the duties they carried out in the North Sea watching the enemy coasts have proved them to be a most valuable adjunct to the main fleet. As commerce destroyers, however, their lack of means for providing for the safety of the crews of vessels seized is in itself sufficient to make them useless for this purpose, unless the illegal and inhuman practice of sinking without warning is resorted to.

In fact, Mr. Balfour's statement is open to the gravest criticism, for experience proves that as a weapon of offence the submarine is a useful adjunct to the main fleet, that as one of defence it plays an important rôle, and that as a commerce destroyer it is, if legitimately used, practically useless.20

The following statistics support the opinion of Lord Wemyss.

From the Admiralty Report of August, 1919, to the House of Commons, we learn that over 38 per cent. of the battleships lost in the recent war were lost by submarine attack.

Five battleships, 72,000 tons, were sunk by submarines, five by mines, some of which may have been laid by submarines, and one in action.

Of all British warships, 62 were lost by submarine attack and 42 in action.

Of naval auxiliaries, 35 per cent. of the 815 lost were sunk by submarines. 20 The Nineteenth Century and After, for March, 1922, pp. 406, 407.

In conclusion, your Subcommittee calls attention to the fact that the maintenance of sea-law depends upon the power to enforce it, and in the end to determine what it shall be. In the last war, all the Powers that now possess great naval strength were on the same side. In the next war the case may be different. The interests of America will probably be those of a neutral. But, if we allow the Navy of the United States to fall into the second rank, who will then defend the rights of neutrality, which are likely to constitute our greatest concern in any future war?

During the recent war, two practices arose which, if they are to be repeated, will gravely affect the commerce of neutral nations.

The first is the proscription of neutral ports, on the ground that internal communication across frontiers by land or secluded waterways may render a belligerent destination probable, even when there is no decisive proof. The other is the alleged impossibility of exhaustive search at sea, coupled with the extension of absolute contraband to nearly every kind of merchandise. Taken together, they almost entirely destroy the protection given to neutral commerce by the existing rules of visit and search; and, if recognized, would transform the belligerent right into an almost unlimited right of capture.

It is difficult to believe that maritime nations will passively consent to have their access to an entire continent debarred, and their commerce with neutral Powers within the barred zone utterly destroyed, in a war in which they have no national or moral interest, but which is prosecuted for merely economic or territorial advantage. It is, therefore, of the highest consequence that the laws of maritime warfare should be carefully revised, and remedies sought for conditions brought into existence since the simple rules of visit, search and capture were adopted for the purpose of creating a balance between neutral and belligerent rights on the common highways of the sea.

DAVID JAYNE HILL, Chairman,

EDWIN D. DICKINSON,

GEO. GRAY,

CHARLES NOBLE GREGORY,

H. S. KNAPP.

The CHAIRMAN. We have yet three reports from the subcommittees. We can see how important the subjects are, because I doubt whether anywhere has been stated so clearly, so informingly, the subject of the laws of the sea. I cannot refrain from complimenting Dr. Hill and his committee for this admirable report upon this very important subject, which I think will form an admirable basis for the statement on that subject as a beginning of international law, and also what it ought to be.

I am somewhat in doubt as to asking the chairmen of the other three subcommittees to submit their papers tonight on account of the fact

that the hour is late, and I would like to consider their wishes on the subject.

Of Subcommittee No. 2 Dr. Harry Pratt Judson is the chairman. What is your pleasure? Will you read it now or will you read the report tomorrow morning?

Dr. JUDSON. It is wholly immaterial to the committee, Mr. Chairman. The CHAIRMAN. As it is a short report, I suggest that it be read now. It is not that we welcome its shortness; we want the committee to have its full say and full time to say it. Will you not kindly come to the platform?

REPORT OF SUB-COMMITTEE NO. 2

STATUS OF GOVERNMENT VESSELS

PRESENTED BY DR. HARRY PRATT JUDSON, CHAIRMAN

Mr. President, ladies and gentlemen: The function assigned to this Subcommittee upon its original appointment was "to formulate and agree upon the amendments and additions, if any, to the rules of international law, shown to be necessary or useful by the events of the war" and by subsequent international developments.

In its report made to the Society in 1921, it suggested certain subjects for further study and consideration, including the following:

THE STATUS OF GOVERNMENT VESSELS

a. Owned by a government.

b. Requisitioned by a government.

c. Used for strictly public purposes.

d. Used in whole or in part for commercial purposes.

e. As to neutral governments or individuals in war.

f. As to co-belligerent governments or individuals in war.

g. As to other governments or individuals in war.

The Subcommittee has been requested this year to make a further and more detailed report upon this particular subject.

The events of the war demonstrated the need of a further development and formulation of rules of international law in regard to the status of government vessels, especially those of foreign governments, and their immunity from local jurisdiction. A large proportion of the shipping of the belligerent nations passed under various forms of government control and the transportation of men and materials was a vital factor in the conduct of the war. The all-embracing scope of the war obliterated in great degree former distinctions between military supplies and supplies for the civilian population. In fact, the provisioning of the civilian population became a quasi-military operation. Much of this transportation was effected upon vessels belonging to private owners, and operated by their employees, but requisitioned

by a government at a rate of hire fixed by it, and controlled as to their movements by government officials.

A brief indication of the present state of the law is a necessary preliminary to the recommendations which this Subcommittee is to make. It is well settled that public vessels of war, including naval auxiliaries, and vessels belonging to a government and used for distinctly public purposes, such as revenue cutters, light-house tenders and the like, are immune from judicial process. (See The Exchange, 7 Cranch 116; Briggs v. The Lightboats, 93 Mass. 157.) Vessels belonging to a government but employed by it for commercial purposes have also been held immune, both in England (see The Parlement Belge, L. R. 5 P. D. 197), and in the United States (see The Maipo, 252 Fed. 627.)

Under the Act of Congress of September 7, 1916, Shipping Board vessels when employed for commercial purposes were subjected to all the usual liabilities of merchant vessels, but by the amendment of March 9, 1920, they were made immune from arrest, and other methods of obtaining jurisdiction and enforcing liability were provided.

The present status, in foreign jurisdiction of vessels requisitioned by or chartered to a government and operated by or for it, is somewhat uncertain. In England, Shipping Board vessels were held immune. (The Crimdon, 35 Times Law Rep. 86.) In The Roseric, 254 Fed. 154, a similar decision was made in respect to a British requisitioned vessel serving as an "Admiralty Transport." In Ex parte Muir (The Gleneden) 254 U. S. 522, the question was presented to the United States Supreme Court, but was not decided, as the case went off on questions of procedure. In The Luiji, 230 Fed. 493, and The Attualita, 238 Fed. 909, suggestions of immunity were overruled. These cases, however, arose during the period of American neutrality and the suggestions of immunity were not very vigorously pressed. It may have been thought that a direct claim of the public character of a vessel of one of the belligerent nations might subject it to the limitations and disabilities attaching to a belligerent vessel of war coming into a neutral harbor.

In the case of chartered or requisitioned vessels, distinctions may also be made depending upon whether they are under public control or under private control, since they are sometimes operated by government officers and sometimes by private persons or firms under contract with the govern

ment.

Another question also arises when vessels temporarily in government ownership or under government control pass thereafter into private hands. In the case of American government vessels, it has recently been held by the United States Supreme Court that the immunity which attaches to them while in government service or ownership, continues as to causes of action then arising even after they pass into private ownership (The Western Maid cases, U. S. Supreme Court, January 3, 1922). This decision in effect over