Mr. BURLING: I think it is a very happy suggestion. The ARBITRATOR: I regret to abridge the discussion, even for a few minutes, but today I have this special appointment. Therefore, it would be better for us to adjourn now, I believe, inasmuch as you have closed one part of your argument, rather than have you go ahead and enter upon another part of it.

Mr. BURLING: Thank you.

The ARBITRATOR: We shall meet again at 2:30.

(Whereupon, at 11:40 o'clock a.m., a recess was taken until 2: 30 o'clock p.m.)

AFTERNOON SESSION

The proceedings were resumed, pursuant to adjournment, at 2: 30 o'clock p.m.

The ARBITRATOR: We will resume the hearing. Before proceeding, may I say that I have been assailed by newspaper men, but I told them I had nothing to say to them. I want to ask whether it would not be practicable just to give them a note saying what has been done? We may say that the case is being heard here, the persons concerned, who are present, and nothing else?

Mr. METZGER: I am sure, so far as the United States side of the case is concerned, we are willing to leave the matter entirely in your hands.

The ARBITRATOR: I should not like to do anything without permission of either party; therefore I submit the question. Of course, it would not be the substance of what was said, only mentioning the fact that the Tribunal has had a meeting and certain gentlemen were heard.

Mr. BOSTRÖM: Has it not been in the newspapers that the proceeding was going to take place? I think I saw a statement to that effect. If we give out a statement it will result in the newspaper men going to the State Department and to the Legation. Would it not be satisfactory to state that the proceedings are going on and until they are over nothing will be said?

The ARBITRATOR: That is what I said. Tell them the proceedings are going on, that they are ruled by a conven

tion which provides among other things that the meetings are not public, and that is the end of it. We may perhaps wait and see.

Mr. BOSTRÖM: I had one newspaper man call me up today and I told them exactly the same thing, that nothing will be told them as long as the proceedings are going on. It seems to me that is the easiest way to answer them. The ARBITRATOR: We may at the end of the proceedings see what we can do. We will proceed then.

Mr. BURLING: There was one other thing. During the recess the parties have been considering how they would like to have the report of the reporter delivered to them, and I think they have agreed they would rather have three copies delivered to the respective Agents so that they may get them more quickly, than to have them all delivered to the Secretary General. If that is agreeable, two copies could be delivered to the Secretary, three to the United States Agent, and three to the Swedish Agent.

The ARBITRATOR: That is entirely satisfactory.

OPENING ARGUMENT OF MR. BURLING-Continued Mr. BURLING: This morning I was about to take up the actual measures which were adopted by the United States for the purpose of controlling shipping and of securing ships for Allied needs. In this policy they followed the British experience.

I would like to refer you to the Swedish Appendix, page 277, top of the page. This is a part of the report of the War Trade Board and this is what they say that they did on this subject, which ought to be authoritative to that extent. This is at the top of the page in the third line:

As the British had already developed a system of bunker control, their advice was sought and a plan was drafted for thus controlling vessels.

In other words, it was the British experience which was put into effect in this country. That is all I wish to show you at that point.

These missions came over in the spring of 1917, and evidently the British officials acquainted the American authorities as to the measures they had found effective for controlling ships. So the American Government proceeded promptly to establish machinery for the purpose of accomplishing the same result that the British had been accomplishing in the way of securing shipping through bunker control.

The first thing they did was to pass what is called the Espionage Act. Why it is so called I do not know, because it includes a great many things. That is on page 55 of the Appendix, at the bottom of the page. There is title II of that Espionage Act which reads:

Whenever the President by proclamation or Executive order declares a national emergency to exist by reason of actual or threatened war, insurrection, or invasion, or disturbance or threatened disturbance of the international relations of the United States, the Secretary of the Treasury may make, subject to the approval of the President, rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States, may inspect such vessel at any time, place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States, or to secure the observance of the rights and obligations of the United States, may take, by and with the consent of the President, for such purposes, full possession and control of such vessel and remove there from the officers and crew thereof and all other persons not specially authorized by him to go or remain on board thereof.

Section 2 merely imposes a severe penalty for any violation of the act.

Title VII of the act is next given. That is of this same act. It goes on at the bottom of that page, which is really the most significant piece of legislation in connection with the case now before this Tribunal.

Section 1: Whenever during the present war the President shall find that the public safety shall so require, and shall make proclamation thereof, it shall be unlawful to export from or ship from or take out of the United States to any country named in such proclamation

any article or articles mentioned in such proclamation, except at such time or times, and under such regulations and orders, and subject to such limitations and exceptions as the President shall prescribe, until otherwise ordered by the President or Congress: provided, however, that no preference shall be given to the ports of one State over those of another.

The Tribunal will understand that except for this legislation there was no limitation whatever on exports from the United States. Until this act was passed the meanest citizen could take out of the United States any commodity whatever; any foreigner could come into the United States and remove any article that he became lawfully the owner of. This was a war measure and it gave the PresidentI wish to emphasize that, that it was the President of the United States and no lesser official-no board, nor organization, no one else-Congress gave to the President, the Commander in Chief of the Army and Navy, the sole and exclusive power to put an absolute embargo on the removal of any article whatever from the confines of the United States.

Now, suppose someone had attempted to violate that provision? Suppose he attempted to slip out of a harbor with some commodity named by the President? Section 2 of the same title provides what the penalty shall be for any such conduct. Section 2 says:

Any person who shall export, ship, or take out, or deliver or attempt to deliver for export, shipment, or taking out, any article in violation of this title, or of any regulation or order made hereunder, shall be fined not more than $10,000, or, if a natural person, impris oned for not more than two years, or both; and any article so delivered or exported, shipped, or taken out, or so attempted to be delivered or exported, shipped, or taken out, shall be seized and forfeited to the United States; and any officer, director, or agent of the corporation who participates in any such violation shall be liable to like fine. or imprisonment, or both.

The Tribunal will perceive that just as soon as the President named an article in a proclamation, from that moment it became a felony to attempt to take that article out of the

country. If the President issued a proclamation and said that cotton, wheat, corn-"these articles I name under this act"-it immediately became a serious crime under the laws of the United States to attempt to take those articles out of the country; and that applied just as much to a Swedish citizen as to an American citizen. Any person within the confines of the United States who attempted to remove any article which the President named in a proclamation was guilty of a very serious crime.

There is on the preceding page, page 54 (Appendix), another act that was passed on the same day. It is in the middle of the page. It is what is called the Emergency Shipping Fund Provision Act, and the parts I wish to call your attention to is that the President is authorized-if you will go over to the next page, page 55, second paragraph (e):

To purchase, requisition, or take over the titles to, or the possession of, for use or operation by the United States, any ship now constructed or in the process of construction or hereafter constructed, or any part thereof, or charter of such ship.

So here you will see that following the advice of their British allies, the United States quickly passed very comprehensive legislation and gave to the President as Commander in Chief of the Army and Navy very broad powers to requisition any ship, foreign or domestic, and to put an embargo on the exportation or taking out of any article of commerce. The Dutch ships were obtained by virtue of this clause. This was the clause which gave the President power to act and seize the ships by force. Title VII of the Espionage Act was the act under which they developed the system of bunker control, which gave them power to control ships just as completely as though it had been directed against ships. You will note that that title VII does not seem to be directed against the ships. It just gives the President power to prohibit the export of any commodity. It does not seem to be aimed at giving the