be treated as, a ship of war. Clearance will not be granted until authorized from Washington, and the master will be so informed upon arrival.
(e) The conversion of a merchant vessel into a ship of war is a question of fact which is to be established by direct or circumstan- tial evidence of intention to use the vessel as a ship of war. (Dept. of State, Sept. 19 1914.)
The German Government on Oct. 15 1914 communicated by telegram a counter-memorandum to the U.S. Government which stated that it had learnt from " an official notice " in the Westminster Gazette (Sept. 21 1914) that the Department of State at Washington had ruled that ships of belligerent nations when equipped with ammunition and armament shall neverthe- less be treated, while in American ports, as merchant ships, provided the armament serves for defensive purposes only. " This ruling," the memorandum stated, " wholly fails to com- ply with the principles of neutrality. The equipment of British merchant vessels with artillery is for the purpose of making armed resistance against German cruisers. Resistance of this sort is contrary to international law, because in a military sense a merchant vessel is not permitted to defend itself against a war vessel. ... It is a question whether or not ships thus armed should be admitted into ports of a neutral country at all. Such ships, in any event, should not receive any better treatment in neutral ports than a regular warship, and should be subject at feast to the rules issued by neutral nations restricting the stay of a warship. If the Government of the United States considers that it fulfils its duty as a neutral nation by confining the admis- sion of armed merchant ships to such ships as are equipped for defensive purposes only, it is pointed out that so far as deter- mining the warlike character of a ship is concerned, the dis- tinction between the defensive and offensive is irrelevant. The destination of a ship for use of any kind in war is conclusive, and restrictions as to the extent of armament afford no guar- antee that ships armed for defensive purposes only will not be used for offensive purposes under certain circumstances."
The U.S. Government replied (Xov. 7 1914) in a telegram that it dissented from the views of the German Government as above expressed in regard to the treatment to be accorded armed merchant vessels of belligerent nationality in neutral ports. The practice of a majority of nations and the consensus of opinion by the leading authorities on international law, including many German writers, supported the proposition that merchant vessels may arm for defence without losing their private character and that they may employ such armament against hostile attack without contravening the principles of international law. The purpose of an armament on a merchant vessel was to be determined by various circumstances, among which were the number and position of the guns on the vessel, the quantity of ammunition and fuel, the number and sex of the passengers, the nature of the cargo, etc. Tested by evidence of this character, the question as to whether an armament on a merchant vessel was intended solely for defensive purposes may be readily answered and the neutral Government should regu- late its treatment of the vessel in accordance with the intended use of the armament. In permitting a private vessel having a general cargo, a customary amount of fuel, an average crew, and passengers of both sexes on board, and carrying a small armament and a small amount of ammunition, to enjoy the hospitality of an American port as a merchant vessel, the U.S. Government was (it contended) in no way violating its duty as a neutral. Nevertheless, it was- not unmindful of the fact that the circumstances of a particular case may be such as to cause embarrassment and possible controversy as to the character of an armed private vessel visiting its ports. Recognizing, there- fore, the desirability of avoiding a ground of complaint, the U.S. Government, " as soon as a case arose, while frankly admitting the right of a merchant vessel to carry a defensive armament, expressed its disapprobation of a practice which compelled it to pass an opinion upon a vessel's intended use, which opinion, if proven subsequently to be erroneous, might constitute a ground for a charge of unneutral conduct."
As a result of these representations Secretary Lansing said
that no merchant vessels with armaments had visited the ports of the United States since Sept. 10. In fact, from the beginning of the World War only two armed private vessels had entered or cleared from U.S. ports, and as to these vessels their charac- ter as merchant vessels had been conclusively established. He expressed the hope that the German Government would also prevent their merchant vessels from entering the ports of the United States carrying armament even for defensive purposes " though they may possess the right to do so by the rules of international law."
The theoretical justification of the German position regarding the status of merchantmen armed solely for defence is that a non-combatant ship carrying arms is not essentially different from a non-combatant person earning arms. In practice the really important consideration, however, was brought out by the new situation arising out of the weakness of submarine vessels for defence. A comparatively small projectile can destroy a submarine. And is not defence necessarily offence where the merchantman opens fire, though the submarine " may not have committed any hostile act such as firing a gun or torpedo"? (See British instructions of April 1915.) Moreover, may not the merchant vessel, to defend itself effectively, have to round on the pursuer and get to close quarters with him?
These considerations no doubt influenced the U.S. Secretary of State, who on Jan. 18 1916 handed a confidential letter to the British ambassador on the subject, in which he set out that in order to bring submarine warfare within the general rules of international law and the principles of humanity, without destroying its efficiency in the destruction of commerce, he believed that a formula might be found which would appeal to the sense of justice and fairness of all the belligerents.
In pursuance of the object he made the following proposi- tions:
" I. A non-combatant has a right to traverse the high seas in a merchant vessel entitled to fly a belligerent flag and to rely upon the observance of the rules of international law and principles of humanity if the vessel is approached b; a naval vessel of another belligerent.
" 2. A merchant vessel of enemy nationality should not be attacked without being ordered to stop.
" 3. An enemy merchant vessel, when ordered to do so by a belligerent submarine, should immediately stop.
" 4. Such vessel should not be attacked after being ordered to stop, unless it attempts to flee or to resist, and, in case it ceases to flee or resist, the attack should discontinue.
"In the event that it is impossible to place a prize crew on board an enemy merchant vessel, or convoy it into port, the vessel may be sunk, provided the crew and passengers have been removed to a place of safety."
In complying with the foregoing propositions, which, in the Secretary of State's opinion, embodied the principal rules the strict observance of which would insure the life of a non-com- batant on a merchant vessel which is intercepted by a sub- marine, he was not unmindful of the obstacles which would be met by undersea craft as commerce destroyers. Prior to the year 1915, belligerent operations against enemy commerce on the high seas had been conducted with cruisers carrying heavy armaments. Under these conditions international law appeared to permit a merchant vessel to carry an armament for defensive purposes without losing its character as a private commercial vesseL This right was justified by the superior defensive strength of ships of war, and the limitations of armament seemed to be dependent on the fact that it could not be used effectively in offence against enemy naval vessels, while it could defend the merchantmen against the generally inferior arma- ment of piratical ships and privateers. The use of the sub- marine, however, had changed these relations. Comparison of the defensive strength of a cruiser and a submarine showed that the latter, relying for protection on its power to submerge, is almost defenceless in point of construction. Even a merchant ship carrying a small-calibre gun would be able to use it effec- tively for offence against a submarine. Moreover, pirates and sea-rovers had been swept from the main trade channels of the seas, and privateering had been abolished. Consequently, the
