CURRENT TOPICS AND NOTES

OUR CONTRIBUTORS THOMAS GOLD FROST, the author of "Some Remedies for Judicial Recall," was born in Illinois and is a graduate of Knox College, the Columbia Law School and the Columbia School of Political Science. He practiced in Minneapolis from 1888 to 1898, when he removed to New York City, where he has since carried on his profession as the senior member of the firm of Frost & Nieman, which is largely engaged in corporation business. Mr. Frost is well known as a legal writer of law books, among others being: Incorporation and Organization of Corporations, Guaranty Insurance, New York Corporations, Federal Corporation Tax. Federal Income Tax, The French Constitution of 1793. He is an honorary doctor of laws of Knox College.

JAMES APPLETON MORGAN, the writer of "American Law and the Desuetudo," was born in Portland, Maine, in 1845, and graduated from Columbia College in both arts and law. He began the practice of law in New York City in 1871, but later became interested in literary work, especially Shakespearian. He advanced the theory that the Shakespeare plays, as printed in the 1623 folio, are not monologies, but the work of many actors and stage censors, improving them constantly from their original mounting by Shakespeare, and in support of that theory published the Bankside Edition of Shakespeare, in twenty volumes. He founded, in 1885, and has since been president of the Shakespeare Society of New York. He is the author of "Macaronic Poetry," 1870; "The Law of Literature," 1874; "Legal Maxims," 1877; "The Shakespearean Myth," 1880; "Shakespeare in Fact and Criticism," 1884; "A Study in the Warwickshire Dialect," 1884; Shakespearean Commentators," 1885; "Digesta Shakespearianna,' 1887; "The People and the Railways," 1888; also several legal treatises, and has edited: "Addison on Contracts," 1875; "Best on Evidence," 1876; "For syth on Trial by Jury," 1876.

JAMES HARRIS VICKERY is an American lawyer who practiced in Berlin before the war. The article on "German Law and Lawyers" is condensed from a paper by Mr. Vickery which has been run

ning in the summer numbers of International Law Notes under the title "German Law, Lawyers and Courts; Sketches and Experiences.'

L. DEE MALLONEE, the writer of "Police Power; Proper and Improper Meanings," will be remembered by our readers as the author of two very instructive articles published in these columns within the last three years-The Growth of Custom into Law, 49 Am. Law Rev. 239, and Revised Statutes and Codes, 48 Id. 37.

OLIVER H. DEAN, the author of "The Basic Principle," has a fondness in the intervals of an active practice to speak and write on great constitutional questions and principles, as his former articles in the Review very clearly attest. See 44 Am. Law Rev. 341; 48 Id. 642. The present paper is condensed from an address given by him to the law students of the University of Michigan.

GEORGE SUTHERLAND, whose portrait appears in this month's issue and who is the new president of the American Bar Association, is a native of England. Though prominent at the bar of Utah for many years, it is as a public man that he is best known, having been a member of the House of Representatives and since 1905 one of the Senators from Utah in the National Congress.

THE PROTECTION OF AMERICAN CITIZENS ABROAD-The most fundamental necessity for bringing the state into existence is the protection of its citizens. This is equally true whether we consider the need of the individual for protection against other individuals within the state or against other individuals or groups outside of the state. The duty as well as the obligation of the state to protect the citizens against encroachments by his fellow citizens which interfere with his enjoyment of his lawful rights are matters of constitutional law and are too firmly established to make inquiry into them of any practical importance at the present time.

But the duty and obligation of a state, as well as the means to which it may resort, in protecting its citizens who are beyond its own borders is a question of international law which is by no means so academic in its character at the present time. That it exists to some degree and for some purposes cannot be questioned. The relation between the citizen and his state and the consequences arising therefrom are not so thoroughly local in character that they cannot and do not follow him beyond his national boundary line.

Whether we base the right and duty of the state to protect its citi

zens abroad upon the ground of self-preservation, as does Hall, or upon the equality of states, as does Pomeroy, or upon intercourse, as does Oppenheim, the essential fact is that it exists and is sanctioned by the law and practice of nations. The difficulty arises not in justifying the existence of the right, but in fixing the limits so that its exercise may promote rather than hamper the development of that friendly intercourse which should exist between states. This task would be much lighter if all states had reached the same stage of civilization and were governed by the same judicial system, with like stability of institutions for administering justice. Such unfortunately is not the case, and it is not certain that it ever will be.

This lack of confidence in the judicial system of some states to administer justice in cases involving the rights of aliens has led to what is known as consular jurisdiction. In states where this prevails, the consular court furnishes protection to citizens of its nationality by enabling them to have their controversies decided in accordance with standards of justice prevalent in their own country rather than being compelled to take their chances before a court in which the prejudice against aliens might outweigh legal principles.

Not only is there this differentiation which recognizes a special degree of protection necessary in states not sufficiently civilized to be taken into full fellowship in the family of nations, but even among the latter there has been a strong tendency to recognize a distinction between states, and to sanction in those a degree of diplomatic protection to aliens which is not considered necessary and would not be tolerated by states of the first rank. The United States has been among the powers which have felt that the facts warranted a differentiation of this sort. Whether or not there is a sufficient justification of this we will not argue here, but will rather content ourselves with pointing out the fact of its existence.

The practical phase of the question which now forces itself upon the attention of the American Government and people is: what degree of protection should the government of the United States extend to its citizens who choose to traverse the high seas in a lawful way and for a lawful purpose? The necessity for answering this question has been forced upon the United States by the action of Germany in the case of the Lusitania and of Austria in the case of the Ancona. Though the fundamental question in both cases is the same, it will perhaps tend to clearness to discuss them separately, because of the difference in details. On May 7, a German submarine, acting under orders of the government, yet in disregard of our friendly warning and in defiance of all law, torpedoed the Lusitania, an unarmed merchant vessel, on the high seas, and caused the death of several hundred non-combatants and neutrals on board. This was done without warning and with full knowledge of the fact that American citizens were on board, and that the sinking of the vessel would very probably result, as it did, in the destruction of their lives. Whatever grievance Germany may have had against England which would justify or even palliate such a slaughter of

her non-combatant citizens on board the Lusitania, she had no grievance against the United States or the other neutral states whose citizens were on board. With respect to these, the act was deliberate and premeditated murder.

No one could expect the United States to overlook so grave a crime against its citizens. And it did not. On May 13 it sent a note to Germany calling attention to this and other violations of our rights and informing her that the United States "takes it for granted that, at least within the practicable possibilities of every such case, the commanders even of submarines were expected to do nothing which would involve the lives of non-combatants or the safety of neutral ships, even at the cost of failing of their object of capture or destruction. It confidently expects, therefore, that the Imperial German Government will disavow the acts of which the government of the United States complains, that they will make reparation, if possible, for injuries which are without measure, and that they will take immediate steps to prevent the recurrence of anything so obviously subversive of the principles of warfare. The Imperial German Government will not expect the Government of the United States to omit any word or act necessary to the performance of its sacred duty of maintaining the rights of the United States and its citizens and of safeguarding their free exercise and enjoyment."

To this note, Germany made, on May 30, an evasive reply, raising a question of fact as to whether the Lusitania was a merchantman or a warship. As this question of fact had already been decided by a United States official at the port of New York, Germany's plea was very manifestly a dilatory one. It suggested arbitration, but gave no assurance that the act would not be repeated. Until such assurance was given arbitration was clearly out of the question. You cannot arbitrate with a man while he continues to slash at your throat with a deadly instrument. Had the above assurance been given, liability for past acts might easily enough have been settled by arbitration, and, if Germany were sincere in her desire for arbitration and willing to respect her legal obligations to her friends, she would not have hesitated to give the desired assurance. Manifestly, the United States could not afford to drop the correspondence at this point. And it did not. It was entitled to a real reply and proposed to have one. It therefore dispatched a note to Germany under the date of June 10, admitting that "it was its duty to see to it that the Lusitania was not armed for offensive acion, that it was not serving as a transport, and that it did not carry a cargo prohibited by the statutes of the United States, and that, if in fact it was a naval vessel of Great Britain it should not receive clearness as a merchantman; and it performed the duty and enforced its statutes with scrupulous vigilance through its regularly constituted officials. It is therefore able to assure the Imperial German Government that it has been misinformed." It then adds that "the Government of the United States cannot admit that the proclamation of a war zone from which neutral ships have been warned to keep away may be made to operate as in any degree an abbreviation of the rights of American citizens bound on lawful errands as passengers

on merchant ships of belligerent nationality. The Government of the United States, therefore, deems it reasonable to expect that the Imperial German Government will adopt the measures necessary to put these principles into practice in respect of the safeguarding of American lives and American ships and asks for assurance that this will be done."

To this clear and courteous statement of the issue, Germany responded in a note of July 10 that was neither an answer nor a reply. It was insulting in tone and unsatisfactory in substance. The gist of it is that, as the German Government had a grievance against England, it need not respect the rights of American citizens. It tells us in effect that we may exercise on the high seas such rights and such rights only as it sees fit to recognize, that the will of a belligerent and not the law of nations is the measure of the rights of neutral citizens. What we had supposed we held as a matter of right, we are now told that we hold only by sufferance of the belligerent. If Germany can tell American citizens to keep off the sea, and they must keep off, it might next tell him to get off the earth, and they would have to get off, and many in common with myself are not ready to go.

The third note was more firm than its predecessors and more insistent upon a prompt settlement as being to the advantage of both states. Whether to the force of our logic or to the force of circumtsances, Germany yielded and its ambassador in Washington admitted the principle of our contention and promised "full satisfaction." The United States accepted this confession of judgment and assumed that it was made in good faith. Subsequent events have cast some doubt upon the correctness of this assumption. After giving the German Government six months in which to make good its promise, the Government of the United States cannot be accused of precipitancy if it now informs Germany that compliance with the promise of its authorized agent is the only evidence of good faith which we can accept, and that compliance cannot be indefinitely postponed, if diplomatic relations are to continue. For, why should diplomatic relations continue, unless the promises of diplomats are to be kept, and a decent respect for international rights is shown?

The declaration of Bethmann-Hollweg, the German Chancellor, that "I have been willing to concede to America everything that Germany can concede within the principles of justice and honor; but I cannot concede a humiliation of Germany and the German people," is but chauvinistic rubbish. The United States has, and Bethmann-Hollweg knows it has, a right to a clear and definite, unequivocal and unreserved statement by Germany that the sinking of the Lusitania was an unlawful, criminal act deliberately planned and executed regardless of the fact that it would almost certainly result, as it did, in the destruction of the lives of law-abiding citizens of the United States, but that such outlawry will not be further indulged in by Germany. The real humiliation of Germany and the German people was completed by the commission of the unlawful act and would be alleviated rather than accentuated by a frank disavowal of it and assurance that it would not be repeated. Bethmann-Hollweg's