(3) MEMORANDUM ON THE RIGHT OF AMERICAN CITIZENS TO TRAVEL UPON ARMED MERCHANT SHIPS, TRANSMITTED TO THE COMMITTEE ON FOREIGN AFFAIRS OF THE HOUSE OF REPRESENTATIVES, MARCH 4, 1916

The question to be considered in the present memorandum is whether Americans intending to travel on armed belligerent merchant vessels should be warned by the United States that in doing so they travel at their own risk, and that the United States should so warn its citizens about to embark upon armed belligerent merchant vessels. This raises the question whether or not a neutral citizen and subject can avail himself of a belligerent armed vessel for the transport of his person or goods, the determination of which seems to depend upon the further and the fundamental question whether a belligerent merchant ship may, without violation of law, carry armament to defend itself against attack upon the high seas.

The conclusions to be sustained by this memorandum, and which it is believed are supported by the practice of nations, are that a neutral has the right to transport his person and property upon armed belligerent merchant ships; that the vessels so armed may defend themselves if attacked by the enemy; that, in so doing, they are within their rights under the law of nations as interpreted and applied by the Supreme Court of the United States; and that the neutral does not partake of a belligerent character although he is on board the belligerent merchant vessel, nor does he sacrifice his neutral character nor the neutral quality of his goods, according to the law of nations as interpreted by the Supreme Court of the United States, if the armed. belligerent merchant vessel resists attack, unless the neutral actually took part in the hostilities committed under these circumstances by the armed belligerent merchant vessel upon which his person may happen to be.

The memorandum will also endeavor to show that, while the outbreak of war authorizes a belligerent to capture the private property of his enemy upon the high seas, the declaration of war does not operate as a confiscation of the property, but only authorizes the belligerent to use the force necessary to capture the property, and that, according to the law of nations, the formalities hitherto recognized must be complied with-namely, that a merchant vessel of the enemy before capture must be summoned to surrender, and that upon its surrender, whether after the use of force or an attempt to escape the

capturing vessel, it shall not be sunk or destroyed without first putting in a place of safety the persons on board and, if possible, the property; that the use of an agent or instrumentality such as the submarine that does not and cannot comply with these requirements is not authorized by the law of nations to capture the enemy vessel; that the law ought not to be changed to suit the convenience of the submarine or of the belligerent, but that the agency of the belligerent ought to be changed. to meet the requirements of the law; and that the requirements of this law cannot be overcome by an ex parte announcement or warning issued by a belligerent government that it will destroy without warning any merchant vessel of the enemy which the commanding officer of that vessel may, before visit and search, decide to be an armed enemy vessel.

The right of a belligerent vessel to arm is not the result of a sudden decision on the part of a belligerent in order to protect his merchant vessels from capture upon the high seas, but has been for centuries the practice of nations. An armed merchant vessel differs from a privateer, which was a vessel owned by a private personalthough commissioned by a belligerent and, by virtue of its commission, authorized to commit hostilities and to make captures-in that the merchant vessel carries its armament for defensive purposes and is not commissioned by the government whose flag it flies. It is therefore a merchant vessel, having none of the marks of a war vessel, and its arms are for purely defensive purposes, to protect it from capture, a protection it would enjoy without armament if the policy of the United States, extending over a period of a century, were recognized to-day-as it was, in 1785, recognized by Prussia in the treaty of September 10 of that year. It is not, however, necessary to consider this matter in the light of history or in the light of theory, because, in so far as the United States is concerned, the right of an enemy merchant vessel to arm itself for defensive purposes has been solemnly adjudged in the case of the Nereide (9 Cranch 388), decided in 1815, and, upon reconsideration, affirmed three years later in the case of the Atalanta (3 Wheaton 409). The judgment of the court. in the first, which is the leading case on the subject, was written and delivered by Chief Justice Marshall, in the course of which he said:

A belligerent has a perfect right to arm in his own defence and a neutral has a perfect right to transport his goods in a belligerent vessel. These rights do not interfere with each other. The neutral has no control over the belligerent right to arm-ought he to be accountable for the exercise of it? By placing neutral property in a belligerent ship, that property, according to the positive rules of law, does

not cease to be neutral. Why should it be changed by the exercise of a belligerent right, universally acknowledged, and in common use. when the rule was laid down, and over which the neutral had no control?

The Nereide was a British merchant vessel. It was not commissioned, so that it did not partake of any of the characteristics or enjoy the rights or privileges then accorded to privateers, and which the United States at the present day could accord to its privateers if it availed itself of the right to use them. It was armed for defense. It was attacked and it defended itself. The neutral, with his cargo, was aboard the vessel. He took no part in the armed resistance, and the Supreme Court of the United States laid down the rule that neither his rights as a neutral nor his property as that of a neutral were affected by the resistance to the capture of the belligerent armed ship. As this decision is so important, and is binding upon the United States -for the decision of the Supreme Court on a point of law binds all departments of the Government until it is changed, which it has not been to the present day-it is more advisable to quote certain portions of the opinion to the Court rather than to indulge in theoretical speculations, however well grounded they may appear. Thus, Chief Justice Marshall said:

That a neutral may lawfully put his goods on board a belligerent ship for conveyance on the ocean, is universally recognized as the rightful rule of the law of nations. It is, as has already been stated, founded on the plain and simple principle, that the property of a friend remains his property, wherever it may be found. "Since it is not, says Vattel, the place where a thing is, which determines the nature of that thing, but the character of the person to whom it belongs, things belonging to neutral persons, which happen to be in an enemy's country, or on board an enemy's ships are to be distinguished from those which belong to the enemy." Bynkershoek lays down the same principles in terms equally explicit; and in terms entitled to the more consideration, because he enters into the inquiry whether a knowledge of the hostile character of the vessel, can affect the owner of the goods. The same principle is laid down by other writers on the same subject, and is believed to be contradicted by none. It is true, there were some old ordinances of France, declaring that a hostile vessel or cargo should expose both to condemnation; but these ordinances have never constituted a rule of public law.

After laying down this general principle and supporting it by authority, if authority other than that of his own great name and of his unanswerable reasoning be required, the great Chief Justice continues:

It is deemed of much importance, that the rule is universally laid down in terms which comprehend an armed as well as an unarmed vessel; and that armed vessels have never been excepted from it.