It was therefore of the greatest importance for a belligeren
power to intercept on the high seas not only mobilized members
of the opposing army who might be found travelling on neutra
ships, but also " those agents whom the enemy sends to injun
his opponent abroad, or whose services he enjoys without hav
ing himself commissioned them."
In fact practical considerations from the belligerents' pain of view had changed, and the change necessarily implied a modification in the description of enemy subjects whom it is lawful to arrest, supposing such a description can be said to have existed in any binding form.
With regard to the case of the " Trent " the British Govern- ment contended that the " China " case was of an entirely dif- ferent nature from that on which the U.S. Government relied. At the date when the " Trent " case occurred no agreement had been reached as to the claim put forward by certain coun- tries that a belligerent is entitled to remove certain classes ol individuals from a neutral ship without bringing the vessels in for adjudication in the Prize Court. Since then a considerable measure of agreement has been reached on this point:
" In any case the nature of the persons concerned in the episode of the 'Trent' was entirely different from that of the individuals removed from the ' China.' Messrs. Slidell & Mason were pro- ceeding to Europe, according to their contention, as the diplomatic representatives of a belligerent; at that time the suggestion that the functions of a diplomatic representative should include the organizing of outrages upon the soil of the neutral country to which he was accredited was unheard of, and the removal of the gentle- men in question could only be justified on the ground that their representative character was sufficient to bring them within the classes of persons whose removal from a neutral vessel was justifi- able. The distinction between such persons and German agents whose object is to make use of the shelter of a neutral country in order to foment risings in British territory, to fit out ships for the purpose of preying on British commerce, and to organize outrages in the neutral country itself is obvious." 1
6. Armed Merchant Ships and the Submarine. The subject of the legitimacy of arming merchant ships arose in the course of the war, and the death penalty inflicted on Capt. Fryatt gave a tragic importance to it, which excited British public opinion on a matter which is not so easily disposed of, from the point of view of international law, as the public at the time was led or seemed to suppose.
The British Government, on the outbreak of war, at once (Aug. 4 1914 and Aug. 9 1914) called the attention of the U.S. Government to the distinction between a merchantman com- missioned to act as a cruiser and a merchantman merely armed for defence against attack. According to the British rule it was pointed out that " British merchant vessels cannot be con- verted into men-of-war in any foreign port, for the reason that Great Britain does not admit the right of any Power to do this on the High Seas." This is not perhaps very clearly expressed by the Government communication, which goes on, however, to state that " the duty of a neutral to intern or order the immediate departure of belligerent vessels is limited to actual and potential men-of-war, and, in the opinion of H.M. Government, there can, therefore, be no right on the part of neutral Governments to intern British armed merchant vessels which cannot be converted into men-of-war on the High Seas, nor require them to land their guns before proceeding to sea."
A certain number of British merchant vessels had been armed " as a precautionary measure adopted solely for defence."
Later (Sept. 9 1914) the British Government handed to the U.S. Government a short memorandum in justification of its action in arming merchant ships for defence and of its claim that they should enjoy the status of peaceful trading vessels in neutral ports. This memorandum, which has a certain impor- tance, was as follows:
" The German Government have openly entered upon the policy of arming merchant ships as commerce destroyers and even claim the right to carry out the process of arming and equipping such merchant ships in neutral harbours or on the high seas. It is m con- sequence of this that the British Admiralty have been compelled, in accordance with the practice followed in the great wars of his-
1 In Sir E. Grey's letter to Mr. W. H. Page, March 16 1916.
tory, to arm a certain number of British merchant ships for self- defence only.
" The practice of arming ships in self-defence is very old ana has been ordered by Royal proclamation in England from early in the seventeenth century. During the Napoleonic wars the right to arm in self-defence was recognized by British and United States Prize Courts in the cases of the Catherine Elisabeth (British) and the Nereide (United States). The right of a merchant ship of a belligerent to carry arms and resist capture is clearly and definitely laid down in modern times. The right of resistance of merchant vessels is recognized by the United States Naval War Code, by th Italian Code for Mercantile Marine, and by the Russian Priz Regulations. Writers of authority in many European countric also recognize the right. To mention a German authority, it ma be stated that the late Dr. Perels, at one time legal adviser to the German Admiralty, quotes with approval Art. 10 of the United States Naval War Code, which states " the prisoners of merchant vessels of an enemy who, in self-defence and in protection of the vessel placed in their charge resist an attack, are entitled to the status of prisoners of war." The Institute of International Law at its meeting in 1913 prepared and adopted a manual of the laws of naval warfare, Article 10 of which expressly declared that private ships are allowed to employ force to defend themselves against the attack of an enemy's ship.
"A merchant vessel armed purely for self-defence is therefore entitled under international law to enjoy the status of a peaceful trading ship in neutral ports and His Majesty's Government do not ask for better treatment for British merchant ships in this respect than might be accorded to those of other Powers. They consider that only those merchant ships which are intended for use as cruisers should be treated as ships of war and that the question whether a particular ship carrying an armament is intended for offensive or defensive action must be decided by the simple criterion whether she is engaged in ordinary commerce and embarking cargo and passengers in the ordinary way. If so, thene is no rule of international law that would justify such vessel, even if armed being, treated otherwise than as a peaceful trader."
The U.S. Government replied to this memorandum by draw- ing up some general rules which it declared to be its intention to follow in dealing with cases involving the status of armed merchant vessels visiting American ports. These rules, which very clearly define what constitute armament for self-defence, are likely to become a precedent, and are, therefore, in view of future naval warfare, of considerable value. They were as follows:
(a) A merchant vessel of belligerent nationality may carry an armament and ammunition for the sole purpose of defence without acquiring the character of a ship of war.
(b) The presence of an armament and ammunition on board a merchant vessel creates a presumption that the armament is for offensive purposes, but the owners or agents may overcome this presumption by evidence showing that the vessel carries armament solely for defence.
(c) Evidence necessary to establish the fact that the armament is solely for defence and will not be used offensively, whether the armament be mounted or stowed below, must be presented in each case independently at an official investigation. The result of the investigation must show conclusively that the armament is not intended for, and will not be used in, offensive operations.
Indications that the armament will not be used offensively are:
1. That the calibre of the guns carried does not exceed six inches.
2. That the guns and small arms carried are few in number.
3. That no guns are mounted on the forward part of the vessel.
4. That the quantity of ammunition is small.
5. That the vessel is manned by its usual crew, and the officers are the same as those on board before the war was declared.
6. That the vessel intends to and actually does clear for a port ying in its usual trade route, or a port indicating its purposes to
continue in the same trade in which it was engaged before war was declared.
7. That the vessel takes on board fuel and supplies sufficient only to carry it to its port of destination, or the same quantity sub- stantially which it has been accustomed to take for a voyage before the war was declared.
8. _ That the cargo of the vessel consists of articles of commerce unsuited for the use of a ship of war in operations against an enemy.
9. That the vessel carries passengers who are as a whole unfitted .o enter the military or naval service of the belligerent whose flag he vessel flies, or of any of its allies, and particularly if the passenger 1st includes women and children.
10. That the speed of the ship is slow.
(d) Port authorities, on the arrival in a port of the United States >f an armed vessel of belligerent nationality, claiming to be a mer- hant vessel, should immediately investigate and report to Wash- ngton on the foregoing indications as to the intended use of the armament, in order that it may be determined whether the evidence s sufficient to remove the presumption that the vessel is, and should
