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CURRENT TOPICS AND NOTES. OUR CONTRIBUTORS—ROCHESTER H. ROGERS, the writer on “Mil. itary Powers of Nation and State Under the Constitution,” is a member of the Bar of Rochester, New York, and was for some years an officer in the New York ational Guard.
CARL ZOLLMANN, the author of “Church Officers in the American Law,” is a graduate of the Law School of the University of Wisconsin; has practiced law in both Wisconsin and Illinois, and is at present engaged in writing a treatise on American Civil Church Law.
JOHN C. PALMER, JR., the author of “Constructive Contempt," is a member of the Bar of Ohio County, West Virginia, and was born in that state in 1868. He graduated from Washington & Jefferson College in 1890. He was admitted to the Bar of West Virginia in 1891. He is President of the Wellsburg National Bank and a member of the law firm of Erskine, Palmer & Curl, of Wheeling, West Virginia.
U. G. DUBACH, the writer of “Quasi-Judicial Powers of Health Officers,' graduated at the University of Indiana, 1908, and at Harvard in 1909 with the degree of M. A. In 1913 he obtained the degree of Doctor of Philosophy from the University of Wisconsin. He was instructor in History and Economics in Oklahoma University Preparatory School, 1909-1911, and has been Professor of Political Science in the School of Commerce of Oregon Agricul. tural College since 1913.
GENERAL ENOCH H. CROWDER, whose portrait appears in this issue, is a native of Missouri. He graduated at West Point in 1881, but was detailed from his regiment in 1885 as Commandant of Cadets at the University of Missouri. While there he entered the Law School and obtained the degree of Bachelor of Laws. He went back to active service after that, and was engaged in military operations against the Sioux Indians. In 1895 he became judge advocate with the rank of Major. In 1898 he went to the Philippine Islands, where he was judge advocate with the rank of Colonel, and afterwards in turn Associate Justice of the Supreme Court and Secretary to the Military Governor. Returning to the United States, he was appointed Judge Advocate for the Department of the Lakes and in 1904 was sent by the Government as Senior Military Attache with the Japanese Army in the field in Manchuria during the Russo-Japanese war. Later he was appointed ActingSecretary of State, Attorney General and President of the Advisory Commission in Cuba. He was a delegate to the Fourth Pan-American Congress at Buenos Aires in 1910 and a member of the Special Commission to Cuba in 1913. In 1911 he was made Judge Advocate General of the Army of the United States, which position he now holds. He had been selected by President Taft as one of the three delegates from the United States to the Third Hague Congress, unfortunately made possible by the outbreaking of war. When Mr. Taft went to the Philippines as Chairman of the Philippine Commission he found General Crowder Secretary to General MacArthur, the Military Governor. Afterwards he was the legal advisor of Governor Magoon in Cuba, a member of the code commission which prepared the election law of Cuba and made many other additions to its statutes. And when he became President, Mr. Taft said of him, “I regard him as the best Judge Advocate General we have had in a long time. He is a real lawyer; his opinions are based on his own judgment and do not respond merely to the wishes of the men who ask his opinion. He is a student of law and politics and economics, and therefore makes a rare combination in that reserve of useful men available for governmental exigency which fits a nation to meet any crisis.”
DESTROYING NEUTRAL VESSELS—THE CASE OF THE WILLIAM P. FRYE.—On Jan. 27, 1915, the William P. Frye, an American vessel, owned by American citizens and sailing under the American flag, en route from Seattle, Wash., to Queenstown, Ireland, carrying a cargo of 186,500 bushels of wheat, was captured on the high seas by a regularly commis. sioned ship of the German navy, The Eitel Friedrich, and, though no resistance was offered by the merchantman, she was sunk, together with her cargo. These are the essential facts in the case.
Though the commander of The Eitel Friedrich showed the extraordinary consideration of not sinking the crew along with the ship, a clearer violation of international law could hardly be found in the treatment of the unoffending merchant ships of a friendly nation. And yet a settlement, demanded at once by our state department on behalf of the owners of the vessel, has not been made by the German government. Neither has said government pleaded inability to pay as a defense for its failure to meet its legal obligations.
The first proposition of the German government was to submit the case to a German prize court for adjudication. This proposition was at once refused by our state department, and very properly so. Why should the defendant be allowed to be judge and jury for the purpose of passing upon the validity of a claim by American citizens where there are no facts in dispute and the cause of action did not arise within the jurisdiction of the German courts? No neutral government can assent to the proposition that a belligerent can by the commission of torts upon the high seas extend the jurisdiction of its courts so as to enable them to
determine definitely the liability of its government for such torts. As the United States could not accept as final a decision of a German prize court adverse to the claims of its citizens, why submit to the unnecessary delay which would result from such a proceeding? In suggesting a resort to a German prize court, the German government must be resorting to the tactics of a defendant who seeks delay, in the absence of a bona fide defense, or expects from its court a vindication of the lawless act of its naval commander.
Lest we appear to dispose of the German case too cavalierly, let us examine the German contentions in the light of treaty provisions and the well established principles of international law. We need mention the cargo but incidentally, because at the time of its destruction it was not owned by American citizens.
It is contended by the German government that the vessel was carry. ing contraband. This contention finds no support in international law. Wheat, if contraband at all, is but conditional contraband; unlike that of absolute contraband, it is not sufficient to show that it is going to an enemy port, it must, in order to warrant its condemnation, be established that it was destined for the use of the enemy's army or navy. There is no contention that this fact appeared from the invoice. The fact that it was destined for such a use, rather than for the use of the civilian population, must be inferred, if inferred at all, from the character of the port, or ports, to which the vessel was going.
Where the harmless or hostile use to which articles belonging in the list of conditional contraband are to be put must be inferred from the character of the port to which they are going, the well recognized rule of international law is that if the predominant character of the port is that of a military or naval base, it is a fair conclusion that the goods are destined for a military or naval use, and it raises a legal presumption that they will be so used, notwithstanding the fact that a large amount of such imports are used by the civilian population. On the contrary, if the predominant character of the port is one of ordinary peaceful commerce, the presumption is that the goods are destined for the use of the civilian population even though warships may occasionally enter such port,
Applying this rule to the case in hand, what do we find? Queenstown is not now and has not been a military or naval base. On the contrary, it is predominantly a commercial port, a more pronounced example of such a port could scarcely be selected. The same is true to almost the same extent with regard to Falmouth and Plymouth, the other ports at which the vessel was to stop. There is, therefore, no sufficient basis in the general rules of international law for concluding that the Frye was carrying contraband. If she was not carrying contraband, there was no warrant in international law for sinking her and there is no legal reason why immediate reparation should be refusel by the government whose official servant committed the unlawful act.
We say unlawful, because even though the Frye were carrying contraband there is no warrant in the law of nations for sinking a neutral prize under the circumstances in this case. The destruction of the contraband, which was entirely possible without destroying the vessel, would have answered every legitimate purpose of the captor and was therefore the limit of his right. To cripple American commerce by sinking its few ocean-going vessels is an act which is hard to harmonize with a spirit of friendliness, and to quibble about it afterwards is scarcely more defensible than the lawless act itself.
But apart from the general rules of international law law, which have appealed but feebly to the German government during the present war, the claim of the American citizens whose property has been tortiously destroyed rests upon a treaty which is as binding as any other treaty between the United States and Germany. Article 12, of the treaty of 1785, negotiated with Frederick the Great by John Adams, Thomas Jefferson and Benjamin Franklin, provides that "If one of the contracting parties should be engaged in war with any other power, the free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent powers shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neuter party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods.” This provision was incorporated into the treaty of May 1, 1828. This latter treaty incorporated also a provision from the treaty of 1799, which, after providing for pre-emption of contraband cargoes, adds: "But in the case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage."
This treaty provision, forming as it does a part of the supreme law of both states, is constructively known and therefore binding upon all German naval commanders, and also upon all other German officials whether diplomatic or judicial. Unless they are prepared to disregard this obligation, no useful purpose could be served by referring so clear a violation of treaty rights to a German prize court for adjudication. Every consideration of national honor and fair dealing demands that prompt reparation be made. It is in this way rather by quibbling, when there is nothing substantial to quibble about, that the German government can show that it places at least one of its treaties above the low plane of being a "mere scrap of paper."
The latest proposition of the German government is to pay for the vessel, with the understanding that there is no legal obligation to do so. The United States cannot accept payment under such conditions. To surrender principle and pauperize itself by accepting charity under such circumstances does not accord with national self-respect. The state department is in this case seeking neither alms nor bribes, but standing upon its legal rights. It can do no less and asks no more.1
1 Edwin Maxey, Professor of In ternational Law, University of Ne
THE RIGHT TO BOMBARD.—Little as Americans commonly interest themselves in military matters, the events of the great war now in progress in Europe have served to draw general attention to many things with which few but soldiers and students of international law have hitherto concerned themselves. So it is that the laws of war-certain features of them, in particular--are under daily discussion in the newspapers, in the magazines, and in private conversation, while not many months ago there were comparatively few who knew that such laws existed, and fewer still who had any conception of their nature or scope. When the opinions and notions thus offered are so numerous, it would be too much to expect that all, or even a great part, should be based upon any appreciable amount of study or information. And yet, of all branches of law, municipal or international, there are perhaps none so simple, none of which a layman may so readily acquire a fair degree of knowl. edge. Not but that situations may and do arise in which the best-informed must hesitate to say whether such and such actions are legal—this must happen in every department of the law, however simple its nature and however thoroughly covered by statute and judicial decision. But considering the number of persons, the variety of interests, the extent of territory, affected by the laws of war, the number of doubtful cases that arises is surprisingly small. Then, too, these laws have been so thoroughly codified by the Hague and Geneva conventions, and the code has been so widely published, that on most points anyone who chooses may readily satisfy himself as to the real state of the law, without the necessity of seeking expert opinion.
It is true, however, that the brevity and conciseness of this code, while affording convenience of reference, makes it impossible to do more than state a number of general principles, leaving their application to special cases to be determined by logical inference or by knowledge of the recognized custom of war. Taking as text the provisions of the Hague conferences upon one matter-the bombardment of undefended placeslet us see what the accepted law is.
Article 25 of the Hague Convention respecting the laws and customs of war on land, adoptd in 1907, reads: "The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.” As article 25 is merely declaratory of previously recognized law, the rule therein stated is binding upon all states, whether they have ratified the convention or not. Practically all, however, have adhered either to this agreement or to the similar one adopted at the first Hague conference, in 1899. It should be noted that there are exceptions to this rule in the case of naval bombardment, which is regulated by another convention.
The object of the prohibition is clear enough. While situations may be imagined in which a real military purpose would be served by the bombardment of an undefended place, such action would usually result only in distress and injury to noncombatants, without in the least affecting the outcome of a campaign or war. It is therefore possible to lay down a general rule exempting undefended towns at all times from bombardment by land forces. This would be impossible were any apprecia