July 31, 1915, 
LAND AND W.ATER, 
OTHER EXCEPTIONS. 
It is, of course, obvious that other cases were 
included. They can only be : 
(1) Those in wiiich the ship has been challenged and has 
stopped, her papers examined, her passengers and 
crew sent adrift in boats, and the ship then 
scuttled, torpedoed, or otherwise sunk. 
(2) Those in which the ship has refused to stop, and has 
been attacked after such refusal ; cases, in short, 
of ships resisting the legal right of search. 
It is possible to construct an argument for 
including both these cases as substantially con- 
sonant with regulated war, but to do so involves 
a straining of the legal meaning of terms and the 
ignoring of a very hard and obstinate set of facts. 
We are, first, driven to the conclusion that 
the President has so far accommodated himself 
to the acceptance of the modern instruments of 
war as to approve the action of German sub- 
marines in sinking ships and trawlers, in the 
cases where they have turned the passengers and 
crews adrift in boats. It is surely a very 
dangerous concession. The principle for which 
Mr. Wilson contends is that the lives of non-com- 
batants shall in no case be put in jeopardy. Can 
it be said that an open and crowded boat, not 
necessarily too seaworthy, which in no circum- 
stances can carry more than a very limited supply 
of food and water, and set adrift so far from 
a coast or port that currents wiU make the pull 
home a long and dangerous one, is a sufficient safe- 
guard of the lives of those who are set afloat in 
her I This procedure has been regularly practised 
in a climate in which weather conditions change 
with startling suddenness. Every day we hear of 
cases in which such boats haA^e taken from twenty- 
four to forty-eight hours to reach port. It is not 
to the point if, as a fact, no such boats have been 
lost. If they have not been, their escape has in 
many cases been providential, and it seems an 
extraordinary' departure from civilised principles 
to sanction a practice of which the world has not 
heard since the days of the pirates and the 
buccaneers. 
Will America submit to the destruction of 
the ship without trial ? It is a point not touched 
on in the Note; not touched on, if I remember 
rightly, except in the early days of the contro- 
versy, and that began with a repudiation of the 
so-called blockade as illegal. 
In the first American reply to Germany's 
proclamation of the war zone round England, 
President Wilson stated in unequivocal terms that 
if any American life was taken or ship was sunk, 
Germany would be held to strict accountability. 
Does he now recognise that belligerent ships may 
be sunk without trial and neutrals also ? Is this 
an instance of necessary accommodation to new 
conditions? Nearly half the American case is 
abandoned if this attitude is to be read into the 
Note. 
MURDER IN SELF-DEFENCE. 
The second category is a more plausible in- 
clusion. But it must be remembered that the 
Germans began by the sinking of a merchantman 
on sight, and have continued by doing so. Their 
reason for continuing is obvious. There are many 
cases in which the submarine has the choice be- 
tween firing a torpedo when it is hidden — a pro- 
ceeding which is quite safe for the submarine — or 
exposing itself to challenge a merchant ship in a 
position that permits of the merchantman attack- 
ing her. It is largely a question of what bearing 
the submarine can reach while still submerged. 
At certain bearings a resolute skipper with a 
handy ship and a small reserve of speed can run 
the submarine down every time. If many, or all, 
merchantmen were armed, the danger to the sub- 
marine would be greater still. It is this possible 
danger that was the basis of the whole German 
argument in the last reply to America. Had not 
the submarine sunk the Lusitania on sight, the 
Lusitania would surely have sunk the submarine. 
It is an argument that is ignored in the American 
Note. Yet it is the crux of the whole question. 
Existing sea law has arisen out of the fact 
that the challenge of the surface ship has two 
things behind it. The warship was faster or she 
would not have overhauled the merchantman. She 
could not jump up suddenly from under the sur- 
face. And, being a warship, she possessed over- 
whelming military power. The merchantman, 
then, had no choice but to surrender. Cases of 
resisting capture practically never arose, and 
partly because surrender involved no risk to life, 
while fight or resistance did. 
The submarine seldom or never satisfies these 
conditions. A merchant captain, on being chal- 
lenged by a submarine, has these choices before 
him. If he stops, the loss of his ship is certain 
and the safety of his passengers and crew exceed- 
ingly doubtful. The time to get them into the 
boats may be inadequate; and, as was the case 
with the Falaha, they may be attacked with tor- 
pedoes or gunfire while in the boats. The situa- 
tion for them may, in any event, appear desperate. 
If he has a chance to ram, and does so, his ship 
and aU in her are safe. If he tries to escape by 
flight, he may be sunk by a torpedo or riddled by 
gunfire. In either case he will, quite likely, have 
just as good a chance of saving the lives of his 
passengers and crew as if he had surrendered. 
Many such cases have, indeed, occurred. The 
Armenian and Anglo-Calif ornian are cases in 
point. 
Are we to understand that the whole world 
has watched with interast and increasing satis- 
faction the conduct of the submarines that have 
attacked and .sunk the ships that tried to escape 
from them? It is surely special pleading to 
isolate these cases as if they stood by themselves. 
It is to argue in a vicious circle. They should be 
looked on as part of the whole German procedure. 
Sir Edward Grey and Lord Robert Cecil have 
told the House of Commons, for instance, that all 
the neutral Governments, including the United 
States, have recognised the propriety of merchant- 
men arming themselves in self-defence, and have 
announced that such armament does not change 
their non-combatant character. The arming of 
merchantmen is a tradition from the days when 
pirates infested the Spanish Main, the China 
Seas, and the Malay Peninsula. Is not the re- 
vival of the practice with the neutrals acceptance 
of its propriety, a recognition that the submarine 
campaign is piratical ? 
In any event, and whatever instances the Pre- 
sident may have in view, and thinks in substantial 
accord with the rules of war, it seems to me that 
the neutral Powers will have given away half 
their case if they admit a principle of attack on 
trade that w-aives the procedure of capture and 
trial. And it is possible, when we are told in 
detail what instances it is that the President had 
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