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in the ordinary course of duty involves such & violation of the law as is punishable, the superior officer issuing such an order is alone responsible. According to No. 2, however, the subordinate obeying such an order is liable to punishment, if it was known to him that the order of the superior involved the infringement of civil or military law. This applies in the case of the accused. It is certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else but a breach of the law. As naval officers by profession they were well aware, as the naval expert Saalwächter has strikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the case here. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out a breach of the law. They should, therefore, have refused to obey. As they did not do so, they must be punished.
The witnesses, Vice-Admiral (retired) von Trotha, and Toepffer, the President of the District Court (the latter acted during the war as an adviser to the Navy on the law relating to war), admitted frankly that in the German fleet, the impression prevailed that a naval officer, who in the course of a fight exceeded the bounds of the law, was not thereby rendered liable to punishment, although he might be answerable for his action to his superiors. The statements of these two witnesses relate, however, to the point of iew, which was held by the higher command in the fleet at the time. They did not maintain that the accused shared this opinion. It appears that neither of these witnesses applied himself to the application of these ideas to the incidents now in question. These opinions are based on a misunderstanding of the law and are irrelevant here. They are of no avail for the accused, because the sinking of the life-boats was not done in the course of a fight, neither in an attack on the enemy nor in defence against him. Although a submarine, while cruising, must continually and in a special degree be ready for fighting, and is always (in the sense of para. 11 of the Military Penal Code) "before the enemy,” nevertheless it can do things which are not concerned with fighting.
The defence finally points out that the accused must have considered that Patzig would have enforced his orders, weapon in hand, if they had not obeyed them. This possibility is rejected. If Patzig had been faced by refusal on the part of his subordinates, he would have been obliged to desist from his purpose, as then it would have beem impossible for him to attain his object, namely, the concealment of the torpedoing of the Llandovery Castle. This was also quite well-known to the accused, who had witnessed the affair. From the point of view of necessity (para. 52 of the Penal Code), they can thus not claim to be acquitted.
In estimating the punishment, it has, in the first place, to be borne in mind that the principal guilt rests with Commander Patzig, under whose orders the accused acted. They should certainly have refused to obey the order. This would have required a specially high degree of resolution. A refusal to obey the commander on a submarine would have been something so unusual, that it is humanly possible to understand that the accused could not bring themselves to disobey. That certainly does not make them innocent, as has been stated above. They had acquired the habit of obedience to military authority and could not rid themselves of it. This justifies the recognition of mitigating circumstances. In determining the punishment under para. 213, 49, para. 2, 44 of the State Penal Code, a severe sentence must, however, be passed. The killing of defenceless shipwrecked people is an act in the highest degree contrary to ethical principles. It must also not be left out of consideration that the deed throws a dark shadow on the German fleet, and specially on the submarine weapon which did so much in the fight for the Fatherland. For this reason a sentence of four years' imprisonment on both the accused persons has been considered appropriate.
In accordance with Section 34, para. 1, No. 2, Section 40, para. 1, No. 1, and Section 36 of the Military Penal Code, the accused, Dithmar, is dismissed from the service, and the accused, Boldt, is condemned to lose the right to wear officer's uniform.
The behavior of the accused during the proceedings has not been such as to justify reducing the period of imprisonment by the comparatively short period, during which they have already been detained.
The determination of the costs is based on para. 497 of the St. P.O., in conjunction with Art. 1, para. 4, of the law of 24th March, 1920 (R.G. Bl., page 341). The last-mentioned regulation only comes into operation in regard to a prosecution demanded by the Allied Powers in virtue of the Treaty of Peace. Such an accusation is only made against Patzig, but not against the two accused men. The proceedings against them are a direct result of the accusation made against Patzig. The concessions made by a reduction in the costs under the regulations of para. 4 are applicable in the present case.
It has therefore been requested that para. 4 may be applied. The expenses, which fall on the State Treasury, do not include those of the accused persons themselves and particularly not those of the evidence put forward in order to obtain their acquittal.
The members of the Senate, Dr. Paul and Dr. Schultz, were prevented by absence from affixing their signatures.
(Signed) SCHMIDT. The above copy agrees with the original.
Official Clerk of the Second Criminal
Senate of the Imperial High Court. (Seal of the Court.)
BOOK REVIEWS AND NOTES*
War and Treaty Legislation. By J. W. Scobell Armstrong. London:
Hutchinson & Company, 1921. pp. xix, 489. 288. net.
The legislation of Germany, Austria and Great Britain directed at the private enterprises of enemy nationals is conveniently compiled (in English) in this volume. The volume is divided into four parts, three covering the legislation of each of the three countries mentioned and a fourth covering treaties and treaty legislation. Each part is introduced by a brief explanatory survey of the legislation following, which enables the reader to obtain a general view of the history and nature of the laws treated. These introductions are the bright spots in the volume so far as the lay reader is concerned, for the remainder of the work is a careful reprint of the laws, decrees, orders, licenses, etc., of the three countries affecting enemy property during and after the war. Here in convenient form is an opportunity for comparative study of this kind of legislation which went much further in the late war than in any war of recent times. A comparison with the attitude of belligerents in previous wars, the growth of nationality in the definition of enemy property and enemy enterprises and activities, the effect upon foreign investments of the precedent of controlling, seizing and disposing of enemy property and businesses, and even the proverbial consequence of a bad example, may all be studied in the laws printed in this little volume. Great Britain initiated the legislation aimed to “cut the roots of enemy commercial enterprises” not only at home but in neutral countries. She was followed in this course by Germany on the principle of retaliation, and subsequently though less vigorously and more reluctantly by Austria and Hungary, and lastly by the United States in a gingerly fashion.
The part on treaties and treaty legislation brings together the British Acts relating to the termination of war prior to the treaties of peace, and also data on the legislation and orders of Great Britain, Germany and Austria under the treaties of peace. The clearing office legislation and procedure is particularly interesting and instructive, as, so far as the writer knows, this is the first instance of the establishment of international machinery for the settlement of prewar debts between nationals of former belligerent countries.
The appendices are copious and interesting. They contain tables of general licenses, dates of commencement of war, prewar rates of exchange as defined in the treaties of peace, the German Nationality Law of 1913,
* The JOURNAL assumes no responsibility for the views expressed in signed or unsigned book reviews or notes.
post-Armistice licenses for the resumption of trade, orders relating to industrial property, arrangements for the settlement of prewar debts, rules of procedure of the Anglo-German Mixed Arbitral Tribunal, the German reparations law, etc.
It is not derogatory to the work to say it is largely a compilation, for without the studious, painstaking research among documents, to which this volume is a testimonial, we in America would not have easy access to this body of valuable material and we should be grateful for this convenience.
L. H. WOOLSEY.
Traité de droit international public. By Paul Fauchille. Tome II, Guerre
et Neutralité. Paris: Librairie Arthur Rousseau, 1921. pp. xi, 1095. 35 francs.
In 1894 appeared the first edition of M. Henry Bonfils' Manuel de droit international public. Because of the author's death, the subsequent editions were edited by M. Paul Fauchille. The second edition appeared in 1898, and showed the condition of international law just before the first of the Hague conferences. The preface to the seventh edition bore date June 30, 1914; and thus it happened that the seventh edition of the Manuel must have value forever as a picture of international law just before the outbreak of the World War—a pathetic picture of a hopeful science that was soon to be strained and twisted and insulted.
And now comes, in place of the Manuel, M. Fauchille's Traité, in two volumes, carefully explaining on the title page that it is in a sense an eighth edition of the Manuel, rewritten and brought to date. The first volume, dealing with peace, has not yet arrived; but the second volume, dealing with war and neutrality, shows at a glance the propriety of replacing the modest designation of Manuel with the more appropriate designation of Traité and of assigning to the present work the name of M. Fauchille; for omissions and additions and rearrangements are countless, the space now given to war and neutrality is three times the space given to those subjects in the first edition by M. Bonfils, and the treatment includes discussions not expected in a handbook. Yet much more important than the changes in title and in method is the fact that this earliest edition of M. Fauchille's Traité will have permanent value as a faithful picture of international law as it has been left by the World War. The Traité is not warped by national prejudices. M. Fauchille points out, as occasion arises, departures from earlier doctrine by the several belligerents, and his spirit is moderate and judicial.
The text abounds in events of the World War, and in comments showing that it is now difficult to affirm what former doctrines of international law are to be recognized as having been altered through new inventions or new practices. In his last ten pages, M. Fauchille gives the generalization that