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Middle Ages, affords no trace of the total destruction of a ship and all on board being recognised as a lawful penalty for the breach of blockade.

The stern reprobation of the Government of this country at this great offence against public law, perpetrated by the foe within the immemorial jurisdiction of the King's Chambers, has been as continuous in fact as it is juristically consistent.

There was a brilliant symposium of expert opinion in The Times on the issue, whether the officers and crews of German submarines who had torpedoed ships without notice, and had sacrificed civilian lives in the process, could, if taken prisoners, be put on their trial as murderers or pirates. In spite of the announcements of the Board of the Admiralty and the Foreign Office communiqués, and the declarations of Ministers (the speech of Mr. Churchill in the House of Commons on February 16th may be specially referred to in this connection), it must be nevertheless admitted that the weight of authority in the symposium, initiated in March by Mr. Frederic Harrison, was against the propriety of indicting the officers and crews of the German submarines as either pirates or murderers. But there was a strange lacuna in the discussion in The Times on what appears to be substantially decisive, the bearing of the arbitral award at Geneva, 1871, by which the public vessels of a recognised belligerent were declared to have committed an offence both against International law and the Criminal law of England, on the subject. There were also, it is submitted, great misconceptions as to the extent of the Admiralty jurisdiction in the case of piracy and murder on the high seas.

For the following conclusive reasons, the authorities for which will be alluded to, it is submitted that it is right in point of law that the officers and crews of German submarines should be put on their trial for either murder or piracy. In the ensuing sentences the matter is discussed purely from a juridical point. Matters of sentiment, and even the question of reprisals, may be at once dismissed. As regards the last point, the course was adopted by Professor T. E. Holland in the columns of The Times.

An analysis of the five contributions to The Times, written more or less from a purely juridical point, reveals that, substantially, the objections to placing German submarine officers and crews on their trial as pirates or murderers resolved themselves into the objection that a public vessel cannot be treated as a pirate unless it abrogates its allegiance or is disowned by the Government of the State to which it belongs. Unless these qualifications enter into the matter (they obviously do not as regards the German submarines), the acts of a public vessel are presumed to be done under the authority of the State, and the only redress for its excesses is an appeal to that quarter. Yet, will it be believed, that this very argument was displayed by Great Britain in the Alabama controversy, and therefore history has indeed taught us little if we can infer anything as to its reliability ? The circumstance fully appears from a reference to the printed case of the United States at Geneva (p. 205). The principal authority for the position that the acts of a public vessel are presumed to be done under the authority of the State, and that, consequently, it cannot be treated as a pirate, is probably a passage in Hall's International Law. The principle is there admitted to be subject to exceptions, but the case of the Confederate cruisers clearly introduces another exception which ought to be categorically set out in that work, but this is not done. A principle that is admittedly subject to three conspicuous exceptions is in the impaired position of a principle, of which it may be said, in the words of Lord Campbell, that “the exceptions eat up the rule.” The fact that the issue, whether a public vessel can commit an offence both against International law and the Criminal law of a third State (a pirate can do no more), was decided at Geneva as between a neutral and a belligerent, and not between two belligerents after a war, makes no difference. The fact that the Confederacy was a recognised belligerent (before it had a ship of war on the seas), and that the Alabama and other Confederate cruisers were all commissioned ships of war or public vessels is, of course, indisputable, and was not in controversy at the time.

It would involve refurbishing rusty weapons of controversy to decide the question whether the Alabama was a pirate. The fact remains that the United States was the successful litigant at Geneva, the most important arbitral tribunal ever convened, and that, throughout the Civil War, the Federal Secretaries of State, and the diplomatic representatives of the United States in two hemispheres, consistently applied the term pirate to the Alabama. In his last diplomatic letter, Mr. Fish wrote to Mr. Motley, American Ambassador to the Court of St. James:-“Our merchant vessels were destroyed piratically by captors who had no port of their own."

The truth probably is that the case was very near the line. In the then state of International law, there was little or no authority for the position that it was a legitimate act of war for a belligerent to destroy his prizes at sea, even if he was careful not to sacrifice life in the process, as the Alabama always was. Strictly speaking, in 1861-4, there was no authority for a belligerent destroying neutral prizes. But there were two decisions of Lord Stowell, that probably turn on the very exceptional circumstances of the case, that a belligerent might destroy enemy ships carrying food. The question whether the Confederate cruisers were pirates may be dismissed. It is not merely a proper, but the only possible rendering of the arbitral award at Geneva (so far as it is relevant to the submarine question), that it decided that the public vessel of a recognised belligerent State might commit an offence both against International law and the Criminal law of a neutral State. The United States would never have prosecuted their case before the tribunal at Geneva if they had not maintained that the building and dispatch of the Alabama constituted an infraction of the Foreign Enlistment Act 1819. But to contend that the acts of a public vessel cannot amount to piracy because they are presumed to be done under the authority of the State, and that criminal responsibility may nevertheless be incurred by officers and crews before the Courts of other States for the acts of the vessel, are two mutually exclusive and contradictory propositions. Both propositions cannot be false, but both cannot be true, one or other must go. From the point of view of usage, the case is unanswerable; and it is hardly possible to insist on the position that the Geneva arbitral tribunal did not substantially declare the Confederate cruisers were pirates. But if so, the point that the acts of a public vessel cannot be treated as piracy because they are presumed to be done under the authority of the State, to use an expression of Lord Denman, falls as soon as it is mentioned, and cannot be relied upon as an irrebuttable plea to the jurisdiction in the case of the officers and crews of German submarines who torpedo a merchant ship and all on board without notice. It is an ultimate postulate of all the learning about the Treaty of Washington and the arbitral tribunal at Geneva that a public vessel of a belligerent is not dispunishable by the municipal Criminal law of another State. But that being once conceded, it equally follows that, in a proper case, she is punishable as a pirate by the law of another State, where there is no question of her having evidently thrown off her allegiance to the State under circumstances which prevent her from being looked upon as the instrument of another politically organised

community, or unless, under like circumstances, she has been declared to be piratical by the legitimate Government. It bears upon the subject that the debates at the Hague in 1899 and 1907 show that prisoners of war are criminally responsible for Common law offences, even after the conclusion of the peace.)

Next, it is proposed to examine, exclusively from the point of view of the Criminal law of England, the criminal responsibility of officers and crews of the German submarines who have torpedoed British merchant vessels without notice.

Criminal responsibility, for this purpose, means either criminal responsibility for murder or else for piracy. As to murder, it has been observed in the columns of The Times that it is practically certain that the officers of German submarines who have torpedoed a British merchant ship without notice, when that act was accompanied with loss of life, have not murdered anyone within the jurisdiction of the Central Criminal Court, i.e., in England, or within three miles of the coast.

It seems both a reasonable and fair explanation of this conclusion of Sir Herbert Stephen, that he considers that criminal venue is determined by the locus in quo of the offender, and not by that of the offence. But the contrary is too clear to admit of dispute. It is a doctrine, founded on a convenient fiction, that a crime must, for the purpose of determining the venue, be held to have been committed on an English ship where the death occurred. When a person being in one jurisdiction fires a shot at a person who is in another, it may well be that the blow struck by the bullet is an act done in the jurisdiction in which the bullet takes effect. The question was specifically raised for adjudication at a time when there were still some relics remaining of the conflict between the ancient jurisdiction of the Admiral of England and that of the ordinary Courts. It

1 Westlake, Int. Law, Part II : War.

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