enlightened practice obtaining before the outbreak of the war of 1914, to preserve the property captured, and to pass it before a prize court in order to determine the validity of the prize by a court of justice passing upon the evidence in the case, instead of virtually allowing a naval commander to set up a prize court upon the quarterdeck to determine the enemy character and to take such action as might occur to him in the premises. The practice of nations before the outbreak of the present war was for a belligerent vessel having to make capture to summon the vessel suspected of being an enemy ship to lie to. If it did not do so, the belligerent war vessel was authorized to proceed to the use of force necessary to complete surrender. If the enemy vessel attempted to escape it was the right of the belligerent man-ofwar to give pursuit and to use such force as was at its disposal to compel the ship to halt, even although the vessel should be sunk in the conflict. The practice which crystallized into law on the question was that, as the enemy vessel had the right and the duty, as Chief Justice Marshall said, to avoid capture, either by resisting attack or by escaping if it were able, the vessel so exercising its right and performing its duty was not subjected to punishment therefor; and enlightened practice at the outbreak of the current war required that the vessel should not be sunk if it could be taken into port, or, if it was sunk, that this should not be done until the persons on board and, if possible, the property, had been saved. This was the procedure prescribed in the Imperial German Prize Ordinance, issued on the 3d day of August, 1914.

The right of a submarine to carry on hostile operations is not questioned. It is a public vessel, built for a military purpose, duly commissioned, under command of commissioned naval officers, with a crew subjected to military discipline. It therefore is a man-of-war and entitled to exercise the rights thereof in so far as her structure and personnel permit such exercise in accordance with international law. It is likewise bound by all the obligations resting upon a manof-war. It does not have any greater rights than a man-of-war would have, and is not relieved of any duties of a man-of-war which operates upon the surface. It may summon a merchant vessel to lie to. It can, however, exercise the right of visit and search under exceptional circumstances only. Its limited personnel does not admit of furnishing prize crews. On the other hand, it cannot take on board the personnel of captured ships to insure their safety if the destruction of the prize is intended. Its commander can rarely, if ever, secure the papers on board a prize. In fact, it is a vessel which was originally designed for military action against military vessels, where

safety of personnel and warning of attack are not essential. By its limitations it cannot, unless the circumstances be exceptional, act as a cruiser against commerce and fulfill the requirments of international law and the dictates of ordinary humanity.

If the United States yields the point that its citizens have not the right to travel on armed merchant ships of belligerents, to the extent of the public warning by the legislative branch of the Government, to United States citizens not to take passage on such vessels, it will, in the face of its own precedents, in effect consent to a change of international law, which will result to the advantage of one belligerent and to the disadvantage of his adversaries. This would be unneutral. Furthermore, it would be consenting to a change of international law during war, a thing against which the United States has earnestly and steadily protested in other international questions that have arisen during the war.

The conditions under which enemy merchant vessels can be destroyed were correctly laid down by the German Government in official instructions issued to its naval officers at the beginning of the war. The German Prize Code (Prizenordnung) of the 30th September, 1909, and issued at the beginning of the war, is given in its amended form as in force July 1, 1915, after the submarine warfare against merchant vessels had begun, in a book entitled The German Prize Code, translated by Huberich and King (Baker, Voorhis & Co., New York, 1915). Articles 113 to 116, inclusive, and Articles 118 and 119 refer to the destruction of prizes. Article 113 refers to the destruction of neutral prizes. Article 114 reads, translated:

Before the commander determines on the destruction of a vessel, he must consider whether the damage thereby done to the enemy will outweigh the damages payable for the parts of the cargo not subject to condemnation (op. arts, 18, 42, 51, 56 and 80), and which are destroyed at the same time.

Article 18, referred to in Article 114, must be read in connection with Article 17. Those two articles read as follows:

17. A captured enemy vessel is subject to condemnation.

18. The following parts of the cargo of such vessels are subject to condemnation :

(a) Enemy goods;

(b) Goods belonging to the master and owner of the vessel, if the vessel was captured by reason of resistance (see art. 16b).

(c) Articles of contraband, and goods belonging to the owner of

the contraband, as provided for in Part III;

(d) In case of breach of blockade, goods liable to confiscation under art. 80.