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 carrying 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. Το 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 Nebraska.

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 knowledge. 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 rccognized 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

ble military advantage to be derived from the habitual use of such means. War is not a game, to be played by arbitrary rules designed to insure a close and exciting match. Suffering is inseparable from it. So long as any form of attack is powerfully effective to bring nearer victory and peace, so long will it be used by every belligerent. But when experience has shown that the suffering caused by some measure hitherto used in war is useless, that the success of the war can rarely be hastened thereby, then all nations, for their own sakes and for the sake of humanity, are ready to restrict by so much their liberty of action.

Now, let us look a little more closely at the language of the article in question. The phrase "by whatever means" did not appear in the rule as originally adopted in 1899. That the prohibition was general can hardly be doubted, but out of abundance of caution the words just quoted were inserted in the article of 1907, in order to make it clear that no exception was allowed in the case of aircraft. It application to them is nowhere questioned.

An undefended place, then, is exempt from bombardment. What is an "undefended" place? Many persons evidently take the word to be synonymous with "unfortified." A moment's thought will suffice to reveal the absurdity of such a notion. No one has ever dreamed of allowing the troops of a belligerent to escape from gunfire by the simple expedient of taking sanctuary in an unfortified town. It is clear that a place may be rendered liable to bombardment not only by the existence of permanent or field fortifications surrounding it, but also by the presence of troops. That anything else might conceivably bring a place within the category of defended places seems improbable, but as to the things already mentioned there can be no question. The "Rules of Land Warfare," published for the United States Army in April, 1914, names as certainly included in the class of defended places, (a) a fort or fortified place, (b) a town surrounded by detached forts, (c) a place that is occupied by a military force or through which such force is passing. So also in the British "Manual of Military Law," published in February, 1914, is the statement: "The defended locality need not be fortified, and it may be deemed defended if a military force is in occupation of or marching through it." Both of the works cited, by the way, are of interest in all matters pertaining to the laws of war, published as they were on the very eve of the general European war.

one.

If a town is defended, it can claim no immunity, not even a partial The right to bombard at all turns upon the question whether or not the place is defended; if that question is answered in the affirmative, then fire may be directed upon every part of it save only those buildings which are universally recognized as exempt, such as hospitals, churches, and art galleries. Whether fire shall be confined to the neighborhood where troops are known to be is a matter to be determined by the judgment of the attacking commander, as a question of expediency and not of law. Unless he is grossly incompetent he will not waste ammunition in ways from which no military advantage may be hoped for, but the shells that fall among hostile troops are by no means the

only ones that may help to decide a war. On this point the British manual says: "No legal duty exists for the attacking force to limit bombardment to the fortifications or defended border only. On the contrary, destruction of private and public buildings by bombardment has always been, and still is, considered lawful, as it is one of the means to impress upon the local authorities the advisability of surrender." And again: "A town which is defended by detached forts, though they are at a distance from it, is liable to bombardment, for the town and forts form an indivisible whole."

What has been said up to this point applies solely to bombardment by land forces. There have always been, and still are, certain differences in the laws, both customary and conventional, governing naval bombardment, partly because of essential differences in conditions which can never be done away with, and partly because in many respects the advance of civilization has been slower to ameliorate the savagery of war on sea than on land. The idea that land forces might bombard an undefended town was long ago utterly abandoned, but until the Hague conference of 1907 there were some who claimed that from the fire of warships no place was exempt. A notable defender of this doctrine was Admiral Aube, who in 1882 wrote that fleets should "turn their power of attack and destruction against all the cities of the coast, fortified or not, peaceful or warlike, burn them, ruin them, and at the very least subject them without mercy to ransom." It does not appear that the French government ever sanctioned these views. Still more recently, however, British naval meneuvers have been conducted in which undefended towns were systematically bombarded or put to ransom, the naval view being that such action was legitimate.

This matter was settled by the ninth convention of the second Hague conference, the rule governing bombardment on land being extended, but with certain exceptions, to naval attack. In general, therefore, an undefended place may not be bombarded by warships. Here again it must be borne in mind that undefended and unfortified are words of very different meaning. That the presence of troops is the true criterion is indicated by the express provision that "a place cannot be bombarded solely because automatic submarine contact mines are anchored off the harbor." Unquestionably the mines constitute a most effective defense, but it is a defense which the bombardment of the town cannot affect in the least degree. If the mines are controlled from casemates on shore, the town's immunity is of course forfeited, for it is then defended not only by mines but also by military personnel. It has been said that the general rule is now the same on land and sea. But while troops on land may under no conditions bombard a truly undefended place, it is still permissible under certain circumstances for naval forces to do so. One of these cases is perhaps not a true exception to the rule, for it does not authorize fire to be intentionally directed upon the town itself. This case arises when in an undefended town are ship yards, arsenals, factories for war material, and other works of like character. A land force could destroy these by other means than gunfire; it might well be that a warship or a squadron could not do so. In