TOPICS . OF THE DAY.

HOW OUGHT WE TO DEAL WITH THE KAISER ? THE question that heads this article is one which is in the minds of us all. What is the true answer ? The abstract reply is easy enough :—With justice, and justice not merely in name but in fact. However great the crimes of which the Kaiser is accused, and as we believe rightly accused, he is entitled to as full and unprejudiced a hearing of his case as the meanest of petty criminals. And here we must enter a caveat which in a case like this is of special moment. If the crimes of which a man is accused are only vile enough and terrible enough, if, that is, they revolt the human conscience in a special degree, men are very apt to think that those who demand the strictest justice for the alleged criminal are Ealliating the crime.—Remember, no man is a criminal while he is under accusation, but only after he has been tried and found guilty.—Especially is this the case when great power and great office are added circumstances. Yet in truth not less but more care is demanded in the proof of guilt in the case of crimes so great that by their mere statement they inflame the human mind and judgment, and also in the case of men who have played a great part in human affairs. No doubt it is in the abstract true that the crimes of the great are often morally far work than the crimes of private people, but that, though it may and does demand a sterner punishment, also demands the strictest adhesion to the principles of justice. The more there is temptation in men's minds to be carried away by the nature of the issues, the more the need for care and circum- spection. It is much easier to be absolutely just to a man accused of stealing a hen than to one who is alleged to have outraged a woman or tortured a child. In the first instance there is no necessity for those concerned to ask themselves whether they are sure that they are not letting their minds be influenced by the unconscious conviction that it is better to run the risk of an innocent man being punished than the other risk of a man guilty of a crime so terrible escaping the sword of justice. In the second instance there is a . real danger of such a sophistry controlling men's minds. That being so, though we wholly disagree with Sir Herbert Stephen's letter, published in the Times of last Saturday, urging that there is no Tribunal before which the Kaiser can be legally arraigned—though of course Sir Herbert Stephen thinks that we should seize the Kaiser as a matter of right—we are glad that this argument has been put forward. It shows the authentic spirit of English justice—the spirit which insists not only that no man shall be assumed to be guilty, but that he shall be tried not merely because he is believed, and probably rightly believed, to be a bad man, but solely on the charge that he has committed a definite offence.

Sir Herbert Stephen, as we believe, takes too narrow a view of the legal position—the view upon which Charles I. relied, and which no doubt affected the minds of many lawyers in those days, but which did not afford a sufficient answer to those who demanded that the King should be tried. But though we hold that the Kaiser has committed offences for which he can be justly called to answer, and that a Tribunal competent to try him can be formed, we protest most strongly against the notion, which seems popular for the moment, that he can be found guilty by acclamation, and without a clear charge, and the most careful investigation into the truth and relevance of that charge. The Kaiser is entitled like every other alleged criminal to know exactly what he is accused of having done. He must be accused of definite and specific acts, and those acts must further be not merely morally wrong, but punishable on principles recognized before the time of his acts or his criminal failure to restrain others and not by laws made after the event. Again, the Tribunal must be one which is, as far as is humanly possible, clear of prejudice—one which will not decide in heat or indignation, or ask with Caiaphas the question : " What further need have we of witnesses ? "

We must now deal with the question of jurisdiction. If the Kaiser had been taken in arms, the Government of the capturing Army might technically have tried him by Court-Martial on a charge of breach of the established customs of war, or of the Hague Conventions, just as they might have tried any other soldier alleged to have been guilty of offences such as those just described-4.e., offences during war condemned by the uni- versal consent of mankind, or offences condemned by a code, system, or rules of warfare to which adhesion has been publicly and Acially given by all the belligerent States engaged in the recent contest. We need not, however, deal further with this matter. Even if technically a Court-Martial would, after an armistice or a peace, be held to be an appropriate Tribunal for trying a soldier guilty of ordering the infringe- ment, or neglecting to prevent the infringement, of acts condemned by the Hague Conventions and made punishable under them, it is probable that the general opinion of the world would be against a military trial. In that case the proper body before which the Kaiser should be brought is a civilian Tribunal. As to its nature we will speak later. The notion that the Kaiser is not subject to trial cannot hold. The Kaiser, having abdicated, is in law a national of the nation of which he was once Sovereign. In our law he is an enemy alien no less and no more than Herr Schmidt. The question of ex- tradition we cannot deal with here. We assume that Holland will yield to a demand made by the Allies.

We must deal next with the offences which the Kaiser has committed. That the Kaiser was guilty of a great moral crime in provoking or assenting to the war, when he might have prevented it, we do not doubt for a moment. The func- tions which he exercised under the German Constitution gave him powers in the matter of peace and war which involved the maximum of individual responsibility for his decisions. Here, however, it would be very difficult to draw an indictment upon which condemnation could be justly claimed. There is no agreement by the Powers that a State shall only make just wars or defensive wars, and shall refrain from provoking hostilities by craft and subtlety. The facts may prove, and we believe do prove, the Kaiser to be a bad man in the largest sense, but there was no broken pact in making war on Serbia, France, and Russia.

Among the crimes of which the Kaiser can be justly and rightly accused are :— Allowing, although he had the legal power to prevent— (1) The grossest cruelty to prisoners, such cruelty being expressly prohibited and declared an offence by the Hague Conventions. He is estopped from urging the plea of ignorance by the fact that Mr. Gerard, the United States Ambassador, repeatedly brought the facts before the German Government.

(2) The ravaging and burning by military orders of towns in France and Belgium on the plea of retaliation. That plea was barred by the Hague Conventions.

The shooting of hostages. Men admittedly individually innocent were punished for crimes which they could not have committed, and were only alleged to have been committed by others. This also is specifically con- demned by the Hague Conventions.

(4) The breach of the customs of war at sea in the case of the German submarines. Their policy of sinking merchant vessels without a trace was sanctioned by the silence of the Kaiser.

The introduction of the use of poisoned gas into war. This again is specifically forbidden by the Hague Conventions.

(6) The attacks on Red Cross vessels, and other deliberate breaches of the Geneva Convention.

Whether the Kaiser can be proved to have been guilty, and so worthy of punishment, in respect of these six points, or any of them, we cannot of course presume to say. To do so would be to assume the guilt of an accused person. What we do say is that all these are matters which if proved involve breaches of law—though we admit it is International Law—and there- fore can be rightly brought before a Tribunal, even though the exact nature of that Tribunal may not in most cases have been agreed upon. To form a new Tribunal to try admitted crimes is not open to the objections of an ex post facto creation of new crimes.

The German Empire, and therefore its War Lord, the man who gave the final word in all matters concerning military action in Germany, agreed in the condemnation of the practices involved in all the six charges made by us, and so made them criminal offences. If we are met by the technical objection that we are only talking about International Law, and that International Law has no sanction, and so forth, we can only say that it is too late to entertain such a plea. The world has been acting for more than two centuries on the assumption that something in the nature of International Law does exist. To urge now that it has no existence, because its prohibitions are few and its sanctions weak, would be like objecting to the principles of the Common Law because they cannot be found in any Statute, or pleading that the clauses of Magna Carta were ultra wires because the assembly at Runnymede was no Parliament and not even a Magnum Concilium. The Powers that set their hands to the two Hague Conventions and to the Geneva Convention are bound by those Conventions, and those of their rags found (3) (5) to be responsible for breaches of the Agreements can have that responsibility brought home to them. Remember here that we are not talking of mere understandings, or even of the customs of war, or quoting Pufendorf and Grotius, but relying on the clauses of the Hague Conventions, in which matters are dealt with specifically and with a legal spirit and intention.

We cannot in the space at our command quote the text of the Conventions in regard to the whole of our six points, but we will refresh our readers' memories by one or two examples, both as regards the treatment of the civil population and as regards the introduction of such methods of war as poisoned shells, &c. :— " The attack or bombardment, by any means whatever, of undefended towns, villages, dwellings, or buildings is forbidden." (Article 25.)

" The giving over to pillage of a town or place, even when taken by assault, is forbidden." (Article 28.) ' Family honour and rights, individual life, and private property, as well as religious convictions and worship, must be respected. Private property may not be confiscated." (Article 46.) Pillage is expressly forbidden." (Article 47.) " No collective penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which it cannot be regarded as collectively responsible." (Article 50.) " The launching of projectiles or explosives from balloons or by other similar new methods is prohibited."• " The use of projectiles the only object of which is the diffusion of asphyxiating or deleterious gases is prohibited."

We must next consider the most appropriate machinery for giving scope to that ample justification for the trial of an individual, and for the formation of a Court to try him, which we contend is established in what we have written above. The first step which we hold should be taken is an inquiry with a view to the framing of an indictment. We should like to see a small Commission, consisting of a single representative of each of the Allies primarily concerned—i.e., of France, Belgium, Italy, the United States, and the British Empire— which would be charged with making a Report in answer to the following questions :—

(1) Of what crimes and offences, if any, has the Kaiser been guilty under the International Agreements to which Germany was a party and in respect of the recognized customs of war on sea and land ?

(2) What should be the constitution of the Court established to try the Kaiser, assuming that the reply to the first question is that he has committed offences of the kind there described ?

If the decision were for a trial, we have a specific proposal to make in regard to our second question. We suggest that the Tribunal charged with the duty should be the Supreme Court of the United States. Our ground for this is very much that on which a change of venue may be claimed in the case of a criminal trial—i.e., on the ground that if it is held in the locality of the alleged crime an inflamed condition of public opinion may prejudice the case of the accused. It is obvious that if a specially brutal murder is committed in Liverpool, London is a fairer place of trial than the city in which the murder took place. In the same way, though we do not suppose that the Judges of France, Italy, Belgium, or Britain would be less impartial than the Judges of the Supreme Court, we do think that an atmosphere more favourable to the exactest justice could be found in Washington than in any European capital. Five Judges of the Supreme Court bound by a majority decision would make an admirable Tribunal. The Tribunal might report their decision, both as to the extent of guilt, and, if the person were found guilty, as to the nature of the punishment they recommend to the Allied Powers. They could then take action under the right which they must surely claim, and which in our opinion unquestionably belongs to them, to secure to International Agreements that supreme sanction which comes from the exemplary punishbient of persons, no matter how high their offices, who treat Inter- national Agreements—Agreements expressly made not to prevent war, but to mitigate its horrors in the matter of the civil population, prisoners of war, and wounded soldiers—as " scraps of paper." When we say " take action " we do not mean to limit the Allies to the punishment, if any, prescribed by the Court. The responsibility of altering, or mitigating, a sentence must always rest with the Executive Power. The Allies, even if the Kaiser were found worthy of death by a Tribunal, might think imprisonment for life a punishment less likely to create sympathy for the criminal, as we did in the ease of Arabi Pasha.

We want justice of the most scrupulous kind for the Kaiser, but we want also to show those who wield supreme power that they are not less but more responsible than humbler

• Thule two clauses arc to be found In the Convention of 1899. The other clauses are from the Convention of 1907.

men for what they do and for what they knowingly permit to be done. How can we make rulers like Lenin and Trotsky responsible for their ten thousand homicides if we are too pedantic or too fastidious or too timid even to try the Kaiser ?