The Hawaiian gazette., 1915-06-01
GERMANY AND THE UNITED STATES -. THE

Vertiser submits the following, written by NiDert
r. Pillsbury, former attorney general OF Massa-
chusetts and now lecturer on constitutional law
NJ the Boston University Law School. as the law
in the case OF the sinking OF the Lusitana and the
various other activities OF the begcrcnt overs
in their blockades and war zones. The article was
written two weeks ago shortly alter the l-uSl-
tania was suhmarined
"The development Of 4 sound and dlSpaSS1pnate
public opinion upon the relations ct the United
States with Germany, and incidentally with Great
Britain, depends upon an accurate knowledge OF
the controlling facts and principles winch 60 To-
make up the substance of the existing SITUATION,
writes the American lawyer-author.
"rhey are comparatively few, but in the public,
discussions of the subject some of them are more
or less overlooked or mi Sstated in the heat OF
excitement natural under the circumstances, but
liable to impair the judgment of men and OF news
papers.
"The whole controversy, originating at different
points centers about Germany's war-zone policy,
nnder which the Lusitania was destroyed. The.
Falaba case is the same that in prGnclpe, and.
may be regarded a. merged in the greater affair
OF the Lustana. The cases OF the Cushing 9nd
the Ciulhight, in which American vessels, under
their own cOl0rs, were directly attacked While
more serious in their international aspect even
than the case of the Lusitania, still open "a,
explanation or dsavowal by Germany, and so do
not, in strictneSS, enter into the merits of the
case it now stands. ..,.
"The situation is peculiar in that Germany,
i
States by holding us responsible for alleged mis-,
conduct OF Great Britain, especially i'll attempting
unlawfuly, she says, to cut Off food supplies,
from Germany, which, she says, we could and
should have prevented; and it is complicated to
some extent, though not materially by the tact
that the principal issues arise out OF methods
OF maritime warfare especially in the use OF mines
and submarines upon which the law OF nations
4 has not hitherto been brought to bear, and the
treaties and conventions are silent or for
tbar, limo As n
the source OF the whole trouble, and each power
is now avowedy pursuing a policy OF retaliation
against alleged unlawful practises of the other it
is interesting, and perhaps necessary. to 60 back
and see which was first to OverStep the accepted
laws and uSages OF war, in other words, VIII" be-
gan it -. - s>.sN.-~".'.V
1T early became evident that Germany would
seek to recGiip herself against the superior naval
power Of Great Britain by extensive of mines
and submarines, for which apparently she was bet
ter equipped than her enemy. To mine the open
sea has never been recognized permissible by
international law 1t is directly forbidden by the
eighth Hague convention OF 1907, though this is
not binding as an express compact in the present
war, as all the beigerents do not appear to have
come into it. 1t is. however, declaratOry OF the
previously accepted rule. Germany is a party t.
this convention, and it is significant that she with
held her consent from Article 2, which iorlld~
the laying OF mines off an enemy'S ports or coast,
FOR the sole purpose Of intercepting commercial
shipping 49,,
81 CAS- to submarines. the use which has been
made OF them against merchant shipping, even {"
the enemy, cannot be made to square with the
laws of war. IT is a fundamental rule that
tral merchant ship can I've nterfered with except
first for visit and search. any ship, enemy or
neutral, destroyed except case of necessity anI
that in every all human lie on board must
be safes guarded Fu force a ships company over
the side without boats or into stormy sea, 1T
any distance from a port or shore, would not uI-
fl the requirements Of the law; they must be a'-
ed. TO destroy merchant ship, even OF the enemy.
without warning. cannot be regarded i'll law other
wise than , pratical act The submarine, beng
unable to take off and deliver ships company
or even to take lawful possession of prizes by
prize-Crew, i, as government justly intr'"teS
in its Of May 3D. practically incapable of law
full use against merchant shipping; and until IN
law of nations is changed, to say nothing of tn,
laws OF humanity, must be confined, unless in eX
ceptional instances where it might take capture
Into port. to operating against enemy ships OF war
''As early as August 10 Great Britain ordered
fishermen off the North Sea as dangerous She
has since denied that she had then laid any mines
and the contrary has not been claimed. On the
other hand, Great Britain publicly declared i'll the
memorandum to the United States of March Is
that AT the very outset Of the German
mine layer was discovered laying mine field
the high sea- Further mine fields have been laid
gWithOut warning The same memorandum denies
that Great Britain has laid any except anchored
mines, and no mines whatever were laid by the
British authorities till many weeks after the Ger
mans had made regular practise OF laying mines
on the high seas Neither OF these statements
was publicly denied by Germany.
Subsequent mining and submarine activities
need not be followed in detail. 1t will not be
difficult to draw from the foregoing facts cor
rect inference as t" winch power Is primarily re
sponSible for what has followed.
~ "About the end of the year the German gov
ernmcnt took all food supplies A little later
Z Great Britain exercised the right reserved by her