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Thus, when the Lusitania sailed from New York, her owner and master were justified in believing that, whatever else had theretofore happened, this simple, humane, and universally accepted principle would not be violated. Few, at that time, would be likely to construe the warning advertisement as calling attention to more than the perils to be expected from quick disembarkation and the possible rigors of the sea, after the proper safeguarding of the lives of passengers by at least full opportunity to take to the boats.
It is, of course, easy now, in the light of many later events, added to preceding acts, to look back and say that the Cunard Line and its captain should have known that the German Government would authorize or permit so shocking a breach of international law and so foul an offence, not only against an enemy, but as well against peaceful citizens of a then friendly nation. But the unexpected character of the act was best evidenced by the horror which it excited in the minds and hearts of the American people.
The fault, therefore, must be laid upon those who are responsible for the sinking of the vessel, in the legal as well as moral sense. It is therefore not the Cunard Line, petitioner, which must be held liable for the loss of life and property. The cause of the sinking of the Lusitania was the illegal act of the Imperial German Government, acting through its instrument, the submarine commander, and violating a cherished and humane rule observed, until this war, by even the bitterest antagonists. As Lord Mersey said: “The whole blame for the cruel destruction of life in this catastrophe must rest solely with those who plotted and with those who committed the crime."
But while, in this lawsuit, there may be no recovery, it is not to be doubted that the United States of America and her allies will well remember the rights of those affected by the sinking of the Lusitania, and, when the time shall come, will see to it that reparation shall be made for one of the most indefensible acts of modern times.
The petition is granted, and the claims dismissed, without costs.
The grounds upon which the decision is put render unnecessary the discussion of some other interesting questions suggested. As to the exception to interrogatory 20, brushing aside all technical points,
I am satisfied that the withheld answer relates to matters irrelevant to the issues here. It certainly can not be expected, in wartime, that an American court will ask for the disclosure of information deemed confidential by the British Admiralty, nor can I see any good reason for delaying a decree until some future date, when information may be forthcoming; for it seems to me that, no matter what other general advices of the Admiralty may have been given prior to May 7, 1915, the result of this case must be the same.
BOOK REVIEWS 1
A Treatise on International Law. By William Edward Hall, M.A.
7th ed. Edited by A. Pearce Higgins, M.A., LL.D. Oxford: University Press (American Branch, New York). 1917. $9.60.
A new edition of a legal classic, faithfully executed by a competent hand, is always welcome. In this volume Mr. Higgins has made it his aim to preserve the form of the original work, so far as he deemed it possible. Its relative proportions remain the same. He had a task which grew upon his hands from day to day, but he has not yielded to the temptation to rearrange and restate de novo, in the light of what had occurred since Hall's death in 1894. On the contrary, the original section numbers, which the editor of the fifth and sixth editions had changed, are restored, with occasional interealations of new sections, dealing with new states of fact.
Hall, himself, wrote with coming changes of international practice in mind. In the preface to the third edition, prepared in 1889, he expressed the fear that Europe was moving towards a time at which the strength of international law would be severely tried. “Whole nations,” he adds, "will be in the field; the commerce of the world may be on the sea to win or lose; national existence will be at stake; men will be tempted to do anything which will shorten hostilities and tend to a decisive answer. But there can be very little doubt that if the next war is unscrupulously waged, it will also be followed by a reaction towards increased stringency of law. .. I therefore look forward with much misgiving to the manner in which the next great war will be waged, but with no misgiving at all as to the character of the rules which will be acknowledged, ten years after its termination, by comparison with the rules now considered to exist” (pp. xx, xxi).
Mr. Higgins hardly feels the same confidence. “The Central Powers," he says (p. x), “have acted on the principle that, when war breaks out, there is no international law; and should the present
1 The JOURNAL assumes no responsibility for the views expressed in signed Book Reviews.-Ed.
war terminate in an inconclusive peace, the fabric of international law will fall, and the doctrine that might is right be enthroned in its stead.” That this language is overstrained is shown by his own mention of apologies during the war promptly made by the greatest Powers for violations of international law committed by their naval commanders (p. 663).
Any work on international law which is published during a great war by a citizen of one of the belligerents, must be inevitably colored by the author's circumstances and surroundings. In treating such topics as the doctrine of angary, the creation of war zones, and the right of retaliation, Mr. Higgins writes from the standpoint of an Englishman anxious to vindicate the course of action taken by his country. He stands for interpreting the international law of today in view of today's conditions of the conduct of warfare. The right of visit and search he considers as fairly including that of taking the vessel, for the purpose, into a port of the belligerent. It seems a necessary incident of modern modes of navigation and maritime attacks (pp. 800, 809).
The creation by Great Britain, under Orders of Council, in 1915 and 1917, of war zones, Mr. Higgins justifies as an act of retaliation (p. 439), without inquiring whether it could otherwise be regarded as a legitimate incident of war. His ultimate conclusion is that the Eighth Hague Convention as to the use of submarine mines is in effect useless (p. 571).
The obligations imposed on the signatories by the Hague Conventions of 1907 have naturally engaged Mr. Higgins' special attention. After noting its discussions on the subject and those later in the Naval Conference of London, he concludes that it is still the general rule that neutral ships seized as prize can not be destroyed on account of the difficulty of taking them to a port of the captor, even if all persons on board be first placed in safety (pp. 791, 809).
Mr. Higgins recalls attention from time to time to the refusal of several of the signatory Powers to ratify certain of the Hague Conventions of 1907. From this cause, for instance, the fifth and thirteenth conventions, as to the Rights and Duties of Neutrals with respect to rules of warfare, are inapplicable to present conditions (p. 633).
He regards the rejection of the proposal made by Serbia to Austria on July 23, 1914, to refer the differences between them to the